[House Hearing, 116 Congress]
[From the U.S. Government Publishing Office]
OVERSIGHT OF THE
U.S. DEPARTMENT OF JUSTICE
=======================================================================
HEARING
before the
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED SIXTEENTH CONGRESS
FIRST SESSION
__________
FEBRUARY 8, 2019
__________
Serial No. 116-3
__________
Printed for the use of the Committee on the Judiciary
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Available http://judiciary.house.gov or www.govinfo.gov
_________
U.S. GOVERNMENT PUBLISHING OFFICE
36-001 WASHINGTON : 2019
COMMITTEE ON THE JUDICIARY
JERROLD NADLER, New York, Chairman
ZOE LOFGREN, California DOUG COLLINS, Georgia, Ranking
SHEILA JACKSON LEE, Texas Member
STEVE COHEN, Tennessee F. JAMES SENSENBRENNER, Jr.,
HENRY C. ``HANK'' JOHNSON, Jr., Wisconsin
Georgia STEVE CHABOT, Ohio
THEODORE E. DEUTCH, Florida LOUIE GOHMERT, Texas
KAREN BASS, California JIM JORDAN, Ohio
CEDRIC L. RICHMOND, Louisiana KEN BUCK, Colorado
HAKEEM S. JEFFRIES, New York JOHN RATCLIFFE, Texas
DAVID N. CICILLINE, Rhode Island MARTHA ROBY, Alabama
ERIC SWALWELL, California MATT GAETZ, Florida
TED LIEU, California MIKE JOHNSON, Louisiana
JAMIE RASKIN, Maryland ANDY BIGGS, Arizona
PRAMILA JAYAPAL, Washington TOM McCLINTOCK, California
VAL BUTLER DEMINGS, Florida DEBBIE LESKO, Arizona
J. LUIS CORREA, California GUY RESCHENTHALER, Pennsylvania
MARY GAY SCANLON, Pennsylvania, BEN CLINE, Virginia
Vice-Chair KELLY ARMSTRONG, North Dakota
SYLVIA R. GARCIA, Texas W. GREGORY STEUBE, Florida
JOE NEGUSE, Colorado
LUCY McBATH, Georgia
GREG STANTON, Arizona
MADELEINE DEAN, Pennsylvania
DEBBIE MUCARSEL-POWELL, Florida
VERONICA ESCOBAR, Texas
Perry Apelbaum, Majority Staff Director & Chief Counsel
Brendan Belair, Minority Staff Director
C O N T E N T S
----------
FEBRUARY 8, 2019
OPENING STATEMENTS
Page
The Honorable Jerrold Nadler, a Representative in the Congress
from the State of New York, and Chairman, Committee on the
Judiciary...................................................... 2
The Honorable Doug Collins, a Representative in the Congress from
the State of Georgia, and Ranking Member of the Committee on
the Judiciary.................................................. 9
WITNESS
Matthew G. Whitaker, Acting Attorney General, U.S. Department of
Justice
Oral Testimony............................................... 16
Prepared Statement........................................... 20
LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING
A letter with questions for the record from the Honorable Jerrold
Nadler, a Representative in the Congress from New York, and
Chairman, Committee on the Judiciary........................... 5
A letter for the record from the Honorable Doug Collins, A
Representative in the Congress from Georgia, and Ranking
Member, Committee on the Judiciary............................. 10
Articles for the record from the Honorable David N. Cicilline, A
Representative in the Congress from the State of Rhode Island.. 66
The Constitution of the United States of America for the record
from the Honorable Ted Lieu, a Representative in the Congress
from the State of California................................... 96
An article for the record from the Honorable Mary Gay Scanlon, a
Representative in the Congress from the State of Pennsylvania.. 111
A case in the U.S. District Court for the Eastern District of
Michigan, Southern Division from Mary Gay Scanlon, a
Representative in the Congress from the State of Pennsylvania.. 114
Articles for the record from the Honorable Sylvia Garcia, a
Representative in the Congress from the State of Texas......... 122
Internal Revenue Code for the record from the Honorable Debbie
Mucarsel-Powell, a Representative in the Congress from the
State of Florida............................................... 161
Questions for the record from the Honorable Sheila Jackson Lee, a
Representative in the Congress from the State of Texas......... 167
Articles for the record from the Honorable Shelia Jackson Lee, a
Representative in the Congress from the State of Texas......... 171
APPENDIX
An article for the record entitled, Texas Border Sherriffs: There
Is No Crisis and We Don't want Trump's Wall.................... 189
An article for the record entitled, Mueller's investigation of
Trump is going too far......................................... 196
OVERSIGHT OF THE U.S. DEPARTMENT OF JUSTICE
----------
FRIDAY, FEBRUARY 8, 2019
House of Representatives
Committee on the Judiciary
Washington, DC
The committee met, pursuant to call, at 9:30 a.m., in Room
2141, Rayburn House Office Building, Hon. Jerrold Nadler
[chairman of the committee] presiding.
Present: Representatives Nadler, Lofgren, Jackson Lee,
Cohen, Johnson of Georgia, Deutch, Bass, Richmond, Jeffries,
Cicilline, Swalwell, Lieu, Raskin, Jayapal, Demings, Correa,
Scanlon, Garcia, Neguse, McBath, Stanton, Dean, Mucarsel-
Powell, Escobar, Collins, Chabot, Gohmert, Jordan, Ratcliffe,
Roby, Biggs, McClintock, Lesko, Reschenthaler, Cline, and
Armstrong.
Staff Present: Perry Apelbaum, Staff Director; David
Greengrass, Senior Counsel; Susan Jensen, Parliamentarian; Arya
Hariharan, Counsel; Aaron Hiller, Oversight Counsel; Lisette
Morton, Director of Policy, Planning and Member Services;
Elizabeth McElvein, Clerk; Rosalind Jackson, Professional Staff
Member; Brendan Belair, Minority Staff Director; Bobby
Parmiter, Minority Deputy Staff Director/Chief Counsel; Jon
Ferro, Minority Parliamentarian; Carlton Davis, Minority Chief
Oversight Counsel; Ashley Callen, Minority Counsel; Ryan
Breitenbach, Minority Chief Counsel, National Security; Alley
Adcock, Minority Chief Legislative Clerk; Ella Yates, Minority
Director of Member Services and External Affairs; and Jess
Andrews, Minority Communications Director.
Chairman Nadler. The Judiciary Committee will come to
order.
Without objection, the Chair is authorized to declare
recesses of the committee at any time. We welcome everyone to
this morning's hearing on Oversight of the Department of
Justice, and we welcome our witness, the Acting Attorney
General of the United States Matthew Whitaker.
Before we turn to the business at hand, I want to take a
moment to comment on the passing of our friend and former
colleague Chairman John Dingell of Michigan. Representative
Dingell was elected to Congress in 1955 and went on to become
the longest serving Member of Congress in the history of the
United States and, by virtue of enduring accomplishment, one of
the greatest. He was a presence in the hearing room, a
determined investigator, and a true believer in congressional
oversight. He loved the House of Representatives. We remember
him for his humor, his charm, his unshakeable integrity, and,
of course, his fantastic Twitter account. Our thoughts are with
our colleague Debbie Dingell and the entire Dingell family.
Chairman Dingell will be missed.
Mr. Collins. Mr. Chairman, can I just echo that as well,
and you know, for Mr. Dingell's service and also with our
colleague Debbie during this time. Our thoughts and prayers are
with them, and the service that he rendered, I will agree with
you on that.
Chairman Nadler. I thank you. I will now recognize myself
for an opening statement.
Mr. Whitaker, I want to begin my remarks by commending the
tradition of independent law enforcement at the Department of
Justice. As you and I both know, it is the career officials at
the Department, the FBI, and the U.S. attorneys' offices whose
commitment to the rule of law protects our democracy. Given the
focus of this hearing, I therefore feel compelled to single out
for praise the career ethics officials who helped you
transition into your role as Acting Attorney General.
On December 20th, in a letter from the Department meant to
justify some of the decisions we will examine here today,
Congress learned the following, quote: In a meeting with the
Acting Attorney General's senior staff, ethics officials
concluded that if a recommendation were sought, they would
advise that the Acting Attorney General should recuse himself
from supervision of the special counsel investigation because
it was their view that a reasonable person with knowledge of
the relevant facts likely would question the impartiality of
the Acting Attorney General, close quote.
In other words, even though you apparently did not ask for
their advice on this topic, these career officials went out of
their way to tell you that your many past public--many public
past criticisms of the special counsel's investigation were
grounds for you to step aside. They insisted that your recusal
would have been right for the Department and good for the
country. They gave you this advice with no guarantee that their
jobs would be protected 2 years into an administration
distinguished for firing officials of the Department and the
FBI who offended the President. They did so knowing that
Attorney General Sessions had just been removed for no reason
other than following their guidance 2 years earlier. Their
advice to you is an act of bravery. It is worthy of the best
tradition of independence and integrity at the Department of
Justice. But in my view, your conduct, including your decision
to ignore important ethics advice when you became Acting
Attorney General no matter the consequences, falls well short
of the mark.
Before you joined the Department of Justice as chief of
staff to former Attorney General Sessions, you were the sole
full-time employee of the Foundation for Accountability and
Civic Trust. Your organization has been described by
Republicans as, quote, a chop shop for fake ethics complaints,
unquote, against Democratic politicians. FACT, as it is called,
also funded your appearances in print and on cable television
in the years leading up to your tenure at DOJ. These media
appearances--and this is why this is relevant--have become the
cause of much concern. One month before you joined the
administration, you wrote a column titled, quote, ``Mueller's
investigation of Trump is going too far,'' unquote. You stated
that the investigation was, quote, a lynch mob. You warned of
serious consequences if the special counsel were to examine the
President's personal finances. You suggested that the special
counsel's budget should be squeezed until its investigation,
quote, grinds to almost a halt, unquote.
Like everyone else at the Department of Justice, you are
entitled to your own political opinions. This committee should
not be in the business of vilifying government personnel for
their private views, particularly when the Department takes
steps to mitigate even the appearance of a conflict of interest
in an ongoing investigation. But when career officials of the
Department recommended that you take steps to mitigate your
apparent conflicts of interest, when they told you that your
public criticism of the special counsel was bad for the
Department and bad for the administration of justice, you
ignored them. You decided that your private interest in
overseeing this particular investigation and perhaps others
from which you should have been recused was more important than
the integrity of the Department.
The question that this committee must now ask is, why? Why
did President Trump choose to replace Attorney General Sessions
with an outspoken critic of the special counsel instead of with
any number of qualified individuals who had already received
Senate confirmation? Why did you ignore the career officials
who went to extraordinary lengths to tell you that your
continued involvement in the special counsel's work would
undermine the credibility of the Department of Justice? Why did
you choose to comment at length on the substance of the special
counsel's investigation at a January 29th press conference? Is
it true that you have been, quote, fully briefed, unquote, on
the investigation and that the special counsel's work is,
quote, close to being completed, unquote? And why did President
Trump leave you running the Department in an acting capacity as
long as he did? What did he hope to get out of it? What did you
provide?
The committee is determined to find the answers to these
questions today. To that end, we have taken certain steps to
ensure your cooperation with members on both sides of the
aisle. First, although I am pleased you eventually agreed to
appear here voluntarily, the committee has authorized me to
issue a subpoena to compel your testimony if necessary.
The Ranking Member will no doubt argue that the subpoena
threat was a mistake, but as you know, I gave you no assurances
until after you agreed to appear today. Given our concerns
about your attendance until late last night, our taking steps
to ensure your appearance seems perfectly appropriate.
Now that you are here and prepared to testify, I agree
there is no need for us to resort to that measure for now.
I nonetheless am concerned by some of the arguments the
Department raised in a lengthy letter we received late
yesterday. I very much doubt, for example, that any privilege
attaches to communications about criminal investigations where
the President, his campaign, his business, and his close
associates are subjects and, in some cases, targets of the
investigation.
I also take issue with your written testimony, which we did
not receive until almost midnight last night, when you suggest
that you, quote, will continue the longstanding executive
branch policy and practice of not disclosing information that
may be subject to executive privilege, close quote. In other
words, you reserve the right to refuse to answer the question
forever. That is not how it works.
Nearly 3 weeks ago, I provided you with a list of questions
related to communications you may have had with the White House
about the circumstances of your hiring, the termination of Mr.
Sessions, and any insight you may have into the special
counsel's investigation, among other topics. I gave those
questions in advance so that you would have time to consult
with the White House on any possible question of executive
privilege.
I understand that you may disagree with the committee about
your responsibility to undertake that review and, as a
consequence, you may not fully respond to every question we ask
today.
As we discussed, I am willing to work with the Department
on those disagreements on a case-by-case basis, but I take your
reluctance to answer questions about these communications as a
deeply troubling sign. When our members ask if you conveyed
sensitive information to the President or ignored ethics advice
at the direction of the President or worked with the White
House to orchestrate the firing of your predecessor, the answer
should be no.
Your failure to respond fully to our questions here today
in no way limits the ability of this committee to get the
answers in the longer run, even if you are a private citizen
when we finally learn the truth, and although I am willing to
work with the Department to obtain this information, I will now
allow that process to drag out for weeks and months. The time
for this administration to postpone accountability is over.
It is my intent that there be no surprises today. We have
laid all of the groundwork for this hearing out in the open. We
have given you months to prepare. We have publicly documented
every request we have made. We have provided our Republican
colleagues with a meaningful opportunity to weigh in on the
process. We have nothing to hide from you or anyone else. We
hope you have nothing to hide from us. Despite the ethics
advice you were given, Mr. Whitaker, you insisted on remaining
in charge of the special counsel's investigation, a job that
comes with the responsibility to protect the special counsel
until his work is complete. Your testimony here today is vital
to that responsibility and to our shared responsibility to find
the truth, to protect the Department, and to follow the facts
and the law to their conclusion. Thank you.
It is now my pleasure to recognize the Ranking Member of
the Judiciary Committee, the gentleman from Georgia, Mr.
Collins, for his opening statement.
[The statement of Chairman Nadler follows:]
CHAIRMAN NADLER FOR THE RECORD
=======================================================================
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Mr. Collins. Thank you, Mr. Chairman.
And thank you, Acting Attorney General, for being here.
But I would like to thank--I will start off this way--and I
would like to thank the Chairman for a show of honesty. We now
have the reason for this hearing. It has nothing to do with the
oversight of DOJ. It has everything to do as we found out this
morning in a document dump from the Democratic side of this
committee and also another committee that this is nothing more
than a character assassination, and we are going to also decide
to see if we can just do something and get at the President
while we have the chance.
Yesterday--I want to tell you a story. My kids are now
grown. They are 26 and down to 20, and I used to always love
the Easter season and the time of the especially hide and seek
and going to find, you know, eggs and that look on their face
when they found that last egg they were looking for and just
that look of surprise. And yesterday was that for me again. I
was back being a father again because yesterday was nothing but
pure political theater. It was wonderful. It was a time for
hide and seek.
The Chairman had a hearing: Let's do a subpoena; we are
going to stand tough.
And let's just do the timeline real quick. We get through
with it, and as I had warned this committee, a preemptive
subpoena was not a good idea. It chills all other witnesses
coming before this committee and will probably have a
detrimental effect to the Acting Attorney General. But, hey, I
am the minority; who cares?
So, we do it. And the Acting Attorney General's Office
responded. And at about 5 o'clock, the Chairman sent a letter
saying: We know we will examine it on a case-by-case basis.
The Acting Attorney General said: No, we need assurances
that you are not going to issue a subpoena today or yesterday
or today.
So okay. We are back and forth. DOJ, as is our
understanding, said: No, that is not enough assurance.
And we were informed around a certain time last night,
about 7 o'clock last night, that an agreement had been made,
and it was a full cave by the Committee Chairman: no subpoenas
today.
So everything that we did earlier in the day was a complete
waste of time.
Now, what was even worse about this--and let's talk about,
you know, Twitter accounts--last night around 8 o'clock, the
Chairman's Twitter account said the Acting Attorney General is
going to show up today at 9:30.
The interesting thing about that is they linked to the 5
o'clock letter, not this letter, which I ask now to be admitted
to the record, which by the way, I was cc'd on but never--you
know, I guess we are going to put this into the record now, the
letter to the Acting Attorney General in which the Chairman of
this Committee says there will be no subpoena tomorrow, and any
differences we have we will work on later. And I ask unanimous
consent that be entered into the record.
Chairman Nadler. Without objection.
[The information follows:]
MR. COLLINS, RANKING MEMBER FOR THE OFFICIAL RECORD
=======================================================================
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Mr. Collins. So, at 8 o'clock, we decide to send out a
tweet to the world, which many in the media, by the way, picked
up on, and they were running stories today saying the reason
the Judiciary chairman wins: The Attorney General is coming; he
doesn't have assurance.
No, he does. Right here. There is going to be no subpoena
today.
So, when we talk about transparency, which was so evident
yesterday, now we get to the real meat of the issue. It is also
amazing to me, as I said yesterday, when you come here and you
put an issue of this hearing, yet, on Thursday, Bill Barr was
approved out of the Senate Judiciary Committee. By next
Thursday, he will be the Attorney General. This gentleman right
here is finishing up the last term of Acting Attorney General.
He is willingly--was willing to come, but yet we had the
charade yesterday. This hearing is pointless and basically was
made even more pointless by the Chairman's opening statement.
This is not about what the good men and women at the
Department of Justice are doing. This is not about FBI agents
are doing their job. It could be about the FBI agents that we
on our side have talked about that didn't do their job, and we
will probably hear a lot about that today. There is plenty of
frustration of issues of DOJ oversight.
But, sir, I am not sure, frankly, that the oversight of
your financial situation from 2014 to 2016 has anything to do
with this hearing. It is beyond the scope of this hearing.
So, if this is what we are going to do, if this is where we
are going, then I want to remind everyone that this is not the
Senate. If my friends on the other side of the aisle of this
committee wanted to do a confirmation hearing, they just ought
to said it up front, and if they want to do a confirmation
hearing as Senators, run for Senate. This is not a confirmation
hearing. This is a Department of Justice oversight hearing,
supposedly. Oops, oops, I am sorry. Back to theatrics again.
The curtain opened up, and we found out what was really going
on. No, we want to damage the President. We want to talk about
your private conversations. We want to talk about what you did
and why the President--the most amazing quote I just heard a
moment ago: We want to know why the President may have put you
there for what--that is offensive.
When we look at this and we go through this, Mr. Whitaker,
there are a lot of issues that we have discussed personally and
also as far as knowing this and discussing things that we could
do as oversight, that frankly, on our side, we are frustrated
with, and that is going to come out today. But for the chairman
to do what we did yesterday, to have this hide-and-seek game,
to play it all, and then to willingly mislead the press and
everybody else to think you are coming here today because of a
partial assurance, not a full-blown cave, which is exactly what
happened in this letter, is a travesty not only to this
committee but to the people watching and the reporters who
thought it was real.
When we look forward into this hearing today, it is time on
this one, if this is the way we are going to go, then we will
have plenty of stunts. We are going to have plenty of
theatrics. Bring your popcorn. I am thinking about maybe we
just set up a popcorn machine in the back because that is what
this is becoming. It is becoming a show.
When your presence was here, you were coming voluntarily.
You have always said you are coming voluntarily. So we had the
show yesterday. We now have had the curtain dropped down, and,
Mr. Whitaker, I guess your confirmation hearing is here. You
only have 5 days left on the job or 6 days left on the job.
We could join together with the Chairman and say, Mr. Barr,
come in here because you have been--actually the Attorney
General, Mr. Barr has been the Attorney General, and he has
been before this committee before. We could have had
substantive hearings, but no, we are going to have a show, a
dog-and-pony show. Let's get it out.
This is the most amazing thing when--you know, but I go
back to something--sometimes as a father--I started this as a
father; I am going to end it as a father--I would give my kids
advice, and they would look at me like, ``Dad, I love you,''
but then they give me that sort of dog look: I don't believe
you.
You know what the sad part about this is? We predicted it
all yesterday. We knew what was coming. The sad part about it
is, is the chairman chose to play hide and seek. He chose to
cave at the end, and by the way, still not have open and
transparency. I am glad we did, glad we got it now, but this is
no way to run the railroad, and it is definitely no way to run
one of the most prestigious committees in this House. And this
is something that everyone should be concerned about.
There is enough at DOJ for us to do oversight on, but, Mr.
Whitaker, this is your life, like the old TV show. They just
want a piece of you.
Mr. Collins. And, with that, Mr. Chairman, pursuant to
clause 4, rule XVI, I do now move to adjourn.
Chairman Nadler. A motion to adjourn has been made.
Motion is to adjourn and not debatable.
All in favor of the motion to adjourn, say aye.
Opposed, nay.
The noes have it.
Mr. Collins. Roll call.
Chairman Nadler. Roll call has been requested.
Where is the clerk? If the clerk is here, she will call the
roll. We will wait a moment for the clerk. Where is the clerk?
Voice. Mr. Chair----
Chairman Nadler. The roll call is in progress.
The clerk is prepared. The clerk will call the roll.
Ms. McElvein. Mr. Chairman?
Chairman Nadler. No.
Ms. McElvein. Mr. Chairman votes no.
Ms. Lofgren?
Ms. Lofgren. No.
Ms. McElvein. Ms. Lofgren votes no.
Ms. Jackson Lee?
Ms. Jackson Lee. No.
Ms. McElvein. Ms. Jackson Lee votes no.
Mr. Cohen?
Mr. Cohen. No.
Ms. McElvein. Mr. Cohen votes no.
Mr. Johnson?
Mr. Johnson of Georgia. No.
Ms. McElvein. Mr. Johnson votes no.
Mr. Deutch?
Mr. Deutch. No.
Ms. McElvein. Mr. Deutch votes no.
Ms. Bass?
Ms. Bass. No.
Ms. McElvein. Ms. Bass votes no.
Mr. Richmond?
Mr. Richmond. No.
Ms. McElvein. Mr. Richmond votes no.
Mr. Jeffries?
Mr. Jeffries. No.
Ms. McElvein. Mr. Jeffries votes no.
Mr. Cicilline?
Mr. Cicilline. So we may continue to pursue the truth, I
vote no.
Ms. McElvein. Mr. Cicilline votes no.
Mr. Swalwell?
Mr. Swalwell. No.
Ms. McElvein. Mr. Swalwell votes no.
Mr. Lieu?
Mr. Lieu. No.
Ms. McElvein. Mr. Lieu votes no.
Mr. Raskin?
Mr. Raskin. No.
Ms. McElvein. Mr. Raskin votes no.
Ms. Jayapal?
Ms. Jayapal. No.
Ms. McElvein. Ms. Jayapal votes no.
Mrs. Demings?
Mrs. Demings. No.
Ms. McElvein. Mrs. Demings votes no.
Mr. Correa?
Mr. Correa. No.
Ms. McElvein. Mr. Correa votes no.
Ms. Scanlon?
Ms. Scanlon. No.
Ms. McElvein. Ms. Scanlon votes no.
Ms. Garcia?
Ms. Garcia. No.
Ms. McElvein. Ms. Garcia votes no.
Mr. Neguse?
Mr. Neguse. No.
Ms. McElvein. Mr. Neguse votes no.
Mrs. McBath?
Mrs. McBath. No.
Ms. McElvein. Mrs. McBath votes no.
Mr. Stanton?
Mr. Stanton. No.
Ms. McElvein. Mr. Stanton votes no.
Ms. Dean?
Ms. Dean. No.
Ms. McElvein. Ms. Dean votes no.
Ms. Mucarsel-Powell?
Ms. Mucarsel-Powell. No.
Ms. McElvein. Ms. Mucarsel-Powell votes no.
Ms. Escobar?
Ms. Escobar. No.
Ms. McElvein. Ms. Escobar votes no.
Mr. Collins?
Mr. Collins. Yes.
Ms. McElvein. Mr. Collins votes yes.
Mr. Sensenbrenner?
[No response.]
Ms. McElvein. Mr. Chabot?
Mr. Chabot. Aye.
Ms. McElvein. Mr. Chabot votes aye.
Mr. Gohmert?
Mr. Gohmert. Aye.
Ms. McElvein. Mr. Gohmert votes aye.
Mr. Jordan?
Mr. Jordan. Yes.
Ms. McElvein. Mr. Jordan votes yes.
Mr. Buck?
[No response.]
Ms. McElvein. Mr. Ratcliffe?
[No response.]
Ms. McElvein. Mrs. Roby?
[No response.]
Ms. McElvein. Mr. Gaetz?
[No response.]
Ms. McElvein. Mr. Johnson?
[No response.]
Ms. McElvein. Mr. Biggs?
Mr. Biggs. Aye.
Ms. McElvein. Mr. Biggs votes aye.
Mr. McClintock?
Mr. McClintock. Aye.
Ms. McElvein. Mr. McClintock votes aye.
Mrs. Lesko?
Mrs. Lesko. Aye.
Ms. McElvein. Mrs. Lesko votes aye.
Mr. Reschenthaler?
[No response.]
Ms. McElvein. Mr. Cline?
Mr. Cline. Aye.
Ms. McElvein. Mr. Cline votes aye.
Mr. Armstrong?
Mr. Armstrong. Yes.
Ms. McElvein. Mr. Armstrong votes aye.
Mr. Steube?
[No response.]
Ms. McElvein. Are there any other members wishing to vote?
Chairman Nadler. Haven't voted? The gentleman from Texas.
Mr. Ratcliffe. Yes.
Chairman Nadler. Are there any other members who wish to
vote who haven't voted?
Ms. McElvein. Mr. Ratcliffe votes aye.
Chairman Nadler. The clerk will report.
Ms. McElvein. Mr. Chairman, there are 24 noes and 10 ayes.
Chairman Nadler. The motion to adjourn is not approved.
I will now introduce today's witness. Matthew G. Whitaker
is the Acting Attorney General of the United States.
Previously, Mr. Whitaker served as Chief of Staff to Attorney
General Jeff Sessions. He was appointed as the U.S. attorney
for the Southern District of Iowa on June 15, 2004, by
President George W. Bush. Before that, he was a managing
partner of the Des Moines-based law firm Whitaker Hagenow &
Gustoff LLP. He was also the executive director for FACT, the
Foundation for Accountability and Civic Trust, between 2014 and
2017. Mr. Whitaker graduated with a Master of Business
Administration, Juris Doctor, and Bachelor of Arts from the
University of Iowa. We welcome Mr. Whitaker, and we thank him
for participating in today's hearing.
Now, if you would please rise, I will begin by swearing you
in.
Raise your right arm. Do you swear or affirm under penalty
of perjury that the testimony you are about to give is true and
correct to the best of your knowledge, information, and belief,
so help you God?
Mr. Whitaker. So help me God.
Chairman Nadler. Thank you.
Let the record show that the witness answered in the
affirmative.
Thank you, and please be seated. Please note that your
written testimony will be entered into the record in its
entirety. Accordingly, I ask that you summarize your testimony
in 5 minutes. To help you stay within that time, there is a
timing light on your table. When the light switches from green
to yellow, you will have 1 minute to conclude your testimony.
When the light turns red, it signals the time has expired.
Mr. Whitaker.
TESTIMONY OF MATTHEW G. WHITAKER, ACTING ATTORNEY GENERAL,
UNITED STATES DEPARTMENT OF JUSTICE
Mr. Whitaker. Thank you, Mr. Chairman and Ranking Member
Collins, for the opportunity to testify before the committee
today. I am looking forward to discussing with you some of the
accomplishments and priorities of the Department of Justice.
Before I start, I would also like to acknowledge the
passing of former Chairman Dingell. He was a statesman and a
leader, and it is a sad day on this committee, I am sure.
First of all, let me say that it is an honor to represent
the 115,000 men and women of the Department of Justice. The
Department is blessed with extremely talented, highly
principled public servants who are dedicated to upholding our
great Constitution and the laws of the United States. I saw
that up close during my 5 and a half years as United States
attorney for the Southern District of Iowa. Our office put
criminals behind bars, and we kept the people of Iowa safe. I
personally prosecuted several important criminal cases and
worked with the men and women of the ATF, DEA, FBI, and U.S.
Marshals Service and our State, local, and Federal partners. It
was a privilege.
In 2017, I returned to the Department and served for 13
months as chief of staff to former Attorney General Jeff
Sessions, a man for whom I have great respect. He led the
Department with integrity, with dedication to the rule of law,
and with a commitment to carrying out the policies of the
President of the United States. I am deeply honored that the
President selected me to continue this work at the Department.
The Senate will soon consider the President's nomination
for our next Attorney General, and let me just say this: No one
is more qualified than Bill Barr. I am working to ensure that
he will inherit a strong, confident, and effective Department
of Justice, and I believe that he will.
For the last 3 months, I have had the privilege of serving
as Acting Attorney General, and I am impressed every single day
by the dedication and hard work of our agents, our attorneys,
and our support staff.
Over this time, I have visited a number of our offices and
met with Federal prosecutors from across the country. For
example, in December, we held our Project Safe Neighborhoods
conference where employees from nearly every U.S. attorney's
office and hundreds of our State and local partners celebrated
our successes and reductions in violent crime.
Our hard work is paying off. I firmly believe that your
constituents are safer because of the work that we have done
over the past 2 years. Under this administration, crime is down
and police morale is up. In fiscal year 2017, the Justice
Department charged the largest number of violent crime
defendants since we started to track this category back when
Bill Barr was Attorney General the last time. And then, in
fiscal year 2018, we broke that record again by a margin of
nearly 15 percent. We also charged more defendants with gun
crimes than ever before. In fact, we broke that record by a
margin of 17 percent.
The Department has also banned bump stocks, improved the
background check system, and prosecuted those who lied to get a
gun. Our work is having an impact. In 2017, after 2 years of
increases under the previous administration, violent crime and
homicide rates went down nationwide. We do not have official
numbers yet for 2018, but one estimate projected that the
murder rate in our 29 biggest cities would drop by 7.6 percent.
Those are real lives being saved.
Much of the crime in this country is related to drug abuse
and drug trafficking, but under this administration,
prescriptions for the seven most frequently abused prescription
drugs are down more than 21 percent to the lowest level in at
least a decade. At the same time, the DEA has lowered the legal
limits on production of the active ingredients in these
prescription opioids by 47 percent since 2016.
And there is no doubt in the law enforcement community that
the vast majority of the illegal drugs in this country are
coming through our southern border. There is also no doubt that
criminals and cartels seek to exploit weaknesses in our
southern border for their own profits and purposes, including
by subjecting women and children to dangerous and unspeakable
conditions in an attempt to smuggle them into the United
States. And, of course, the dangers of our porous southern
border become all more apparent every time an illegal alien
causes harm or death to an innocent American across this
country, such as what happened to an outstanding young woman
from my home State, Sarah Root. For this reason and for others,
we continue our efforts to restore the rule of law at the
border and in our immigration system.
In fiscal year 2018, we charged more defendants with
illegal entry than in any other year in American history. In
fact, we charged 85 percent more defendants with illegally
entering America than we did the previous year. At the same
time, we increased the number of felony illegal reentry
prosecutions by more than 38 percent. Whatever our views on
immigration policy, we should all be opposed to illegal
immigration, and we should support these efforts.
The Department is also taking decisive action against human
trafficking, both domestically and internationally. Human
traffickers, like other criminal enterprises, take advantage of
our southern porous border to smuggle women and children into
the United States to exploit them. We are bringing prosecutions
to dismantle transnational trafficking networks that lure
victims across our borders and traffic them for profits.
Last year, the Department of Justice secured a record of
526 human trafficking convictions, a 5-percent increase from
the previous year. The Department is also doing its part to
aggressively prosecute hate crimes. Under this administration,
we indicted 50 hate crime defendants and obtained 30 hate crime
convictions in fiscal year 2018. In November, the Department
provided election monitoring at polling places around the
country. Our Civil Rights Division deployed personnel to 35
districts in 19 States to monitor for compliance with Federal
voting rights laws. Our public integrity section prosecutor
served as subject-matter experts for Federal prosecutors and
investigators nationwide working with the FBI at the strategic
information and operations center.
Over my time as Acting Attorney General, I have done
everything in my power to continue regular order at the
Department of Justice. The Department has continued to make its
law enforcement decisions based upon the facts and the law of
each individual case in accordance with established Department
practices and independent of any outside interference. At no
time has the White House asked for, nor have I provided, any
promises or commitments concerning the special counsel's
investigation or any other investigation.
Since becoming Acting Attorney General, I have run the
Department of Justice with fidelity to the law and to the
Constitution. During my time as the leader of the Department of
Justice, the Department has complied with the special counsel
regulations, and there has been no change in how the Department
has worked with the Special Counsel's Office.
Over the past day, the Department and the committee have
exchanged letters concerning the respective prerogatives of the
legislative and executive branches. I am pleased that we are
able to reach an agreement that allows me to appear here
voluntarily. I am pleased also that we agreed that each branch
would seek to accommodate each other and that if we have
differences, we will try to work them out in good faith before
resorting to subpoenas or other formal legal processes.
I will answer the committee's questions as best I can, but
I will continue the longstanding executive branch practice of
not disclosing information that may be subject to executive
privilege, such as the contents of conversations with the
President. As the Supreme Court has recognized, this executive
privilege is fundamental to the operation of government and
inextricably rooted in the separation of powers under the
Constitution.
I have spent nearly one third of my professional career at
the Department of Justice, and I am personally committed to its
success and integrity. I hope that today's hearing will be
constructive and help us partner together to address the
priorities of the American people. The men and women of this
Department are proud of our accomplishments, but we know that
Congress can help us to achieve even more. And as our agents
and our prosecutors have shown you again and again, they
deserve your support. Thank you once again for the opportunity
to testify today and for your attention to the matters facing
the Department of Justice.
[The statement of Mr. Whitaker follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Chairman Nadler. Thank you for your testimony.
We will now proceed under the 5-minute rule with questions.
I will begin by recognizing myself for 5 minutes.
Now, we fully intend to examine substantive questions of
Department policy, but part of our job is to make sure that
core investigations at the Department have not been
compromised.
So, at a press conference last week, sir, you said that you
have been fully briefed on the special counsel's investigation.
I would like to better understand that comment. Yes or no,
since your appointment as Acting Attorney General, have you
been briefed on criminal or counterintelligence matters within
the special counsel's purview?
Mr. Whitaker. Chairman, thank you for that question. As you
know, I cannot talk about ongoing investigations.
Chairman Nadler. You can say whether you have been briefed
or not.
Mr. Whitaker. And as you commented about my recent press
conference as it relates to the special conference--the special
counsel's investigation, I have been briefed on it.
Chairman Nadler. So the answer is yes. Thank you. Were you
briefed on those matters at any point while you were serving as
chief of staff to Attorney General Sessions?
Mr. Whitaker. Chairman, I know you are very interested in
the special counsel's investigation, and so I want to be very
clear about this: Because General Sessions was recused from the
special counsel's investigation, I had no involvement in the
special counsel's investigation.
Chairman Nadler. So the answer is no. So the answer is no.
Thank you.
How many times were you briefed about the special council's
work, and when did the briefings take place?
Mr. Whitaker. Mr. Chairman, I have said all that I am
planning on saying about the number of times or the briefings
that I received on the special counsel's investigation. It is
the subject matter of an ongoing investigation. I think it
would be very improper for me as I sit here today to talk any
more about it.
Chairman Nadler. Wait a minute. Whether you were briefed is
the subject of an ongoing investigation? I didn't follow that.
Mr. Whitaker. No, the number of times I have been briefed
and my involvement in the investigation, sir.
Chairman Nadler. Well, it is our understanding that at
least one briefing occurred in December before your decision
not to recuse yourself on December 19th and Christmas day. Is
that correct?
Mr. Whitaker. What is the basis for that question, sir?
Chairman Nadler. Yes or no, is it correct?
Mr. Whitaker. Well, I mean----
Chairman Nadler. It is our understanding that at least one
briefing occurred between December--between your decision not
to recuse yourself on December 19th and 6 days later, Christmas
day. Is that correct? Simple enough question, yes or no.
Mr. Whitaker. Mr. Chairman, I, again, what is the basis for
your question? You are saying that it is your understanding----
Chairman Nadler. Sir, I am asking the questions. I only
have 5 minutes, so please answer yes or no.
Mr. Whitaker. No, Mr. Chairman. I am going to--you are
asking me a question it is your understanding. Can you tell me
where you get the basis?
Chairman Nadler. No, I am not going to tell you that. I
don't have time to get into that. I am just asking you if that
is correct or not. Is it correct? Were you briefed in that time
period between December 19th and Christmas day? It is a simple
question, yes or no.
Mr. Whitaker. Congressman, if every member here today asked
questions based on their mere speculation----
Chairman Nadler. All right. Never mind----
Mr. Whitaker [continuing]. Factual basis, that would be
very difficult for me to answer.
Chairman Nadler. At any point--yes or no--yes or no, at any
point since that briefing have you communicated any information
you learned in that briefing to President Trump?
Mr. Whitaker. Mr. Chairman, I know that there is a----
Chairman Nadler. It is a yes-or-no question.
Mr. Whitaker [continuing]. Unique and special interest in
this. I am sorry.
Chairman Nadler. It is a yes-or-no question. Have you
communicated anything you learned in that briefing about the
investigation to President Trump, yes or no?
Mr. Whitaker. Mr. Chairman, as I have said earlier today in
my opening remarks, I do not intend today to talk about my
private conversations with the President of the United States.
But to answer your question, I have not talked to the President
of the United States about the special counsel's investigation.
Chairman Nadler. So the answer is no. Thank you.
To any other White House official?
Mr. Whitaker. Again, Mr. Chairman, as I mentioned in my
opening statement, I do not intend today to talk about my
private conversations with the President nor White House
officials, but I will tell you, consistent with what I have
already said, I have not talked about the special counsel's
investigation with senior White House officials.
Chairman Nadler. Okay. To any third party not already
briefed about the special counsel's investigation who might
have conveyed that information to the President or his legal
team?
Mr. Whitaker. Who do you consider third-party individuals?
Chairman Nadler. It is really for your consideration. To
any third party not already briefed about that investigation
who might have conveyed--who you think might have conveyed that
information to President Trump or his legal team?
Mr. Whitaker. Third persons who I think may have conveyed
that information?
Chairman Nadler. Yes, yes.
Mr. Whitaker. You know, as I sit here in this chair right
now, Mr. Chairman, you know, that is an impossible question for
me to ask. I mean, I do not believe that I have briefed third-
party individuals outside of the Department of Justice. I have
received the briefings myself, and I am usually the end point
of that information.
Chairman Nadler. But you won't answer the question?
Mr. Whitaker. I just did answer your question.
Chairman Nadler. I don't think you did, but let me just say
this: Your iteration of the Department's longstanding policy
appears designed to delay answering these questions as long as
possible. I find that unacceptable. I understand the role of
executive privilege and respect its value in our system of
governance. However, Congress is a coequal branch of
government. We have a responsibility to conduct oversight. This
is a responsibility we take very seriously.
I have repeatedly tried to work with your office first in
delaying the hearing until February and then in providing you
our questions in advance. I did this because the executive
branch's own rules governing assertion of privilege, which were
issued by President Reagan and have been followed ever since,
say that ultimately it is up to the President to decide whether
or not he wants to assert executive privilege. You cannot
repeat forever that the President might want to assert
privilege.
I have given you a fair opportunity to prepare for the
hearing and to speak with the White House in advance so that we
could avoid this fight in the first place, but you don't appear
to have done any of that. The Department's failure to do its
due diligence here to me is deeply troubling. I do not believe
that issuing a subpoena here would correct the problem, but I
am going to give you the opportunity to rectify the situation.
After today's hearing, we will attempt to reach an
accommodation with the Department to obtain answers to these
questions. As part of that process, I ask for your commitment
to return for a deposition before this committee in the coming
weeks under oath with an understanding that the transcript will
be released to the public as soon as practicable thereafter.
Any questions that are unanswered today or require
consultation with the White House will be asked again at that
proceeding, and I expect either a clean answer or a proper
assertion of privilege claimed by the President. I would ask
members on both sides of the aisle to make those questions
clear for the record so we know what must be addressed at the
future proceeding.
Now, in your capacity as Acting Attorney General, have you
ever been asked to approve any requests or action to be taken
by the special counsel?
Mr. Whitaker. Mr. Chairman, I see that your 5 minutes is
up, and so--I am here voluntarily. We have agreed to a 5-
minutes round, and----
Mr. Collins. I think that is a fine place to end the 5-
minute rule.
Chairman Nadler. The committee will come to order. I will
point out that we didn't enforce the 5-minute rule on Acting
Attorney General Whitaker. We will----
Mr. Collins. I understand, Mr. Chairman. I was just saying
that might be a good breaking point for you.
Chairman Nadler. The Attorney General was in the middle of
saying something. Answer the question, please.
Mr. Chabot. Regular order.
Chairman Nadler. Should I ask the question? Okay. In your
capacity----
Mr. Whitaker. Please ask the question.
Chairman Nadler. Let me just repeat the question so people
remember what we are talking about. In your capacity as Acting
Attorney General, have you ever been asked to approve any
requests or action to be taken by the special counsel?
Mr. Whitaker. Mr. Chairman, I, as the Acting Attorney
General, I am--under the special counsel's rules, I am the
person that is ultimately in charge of the investigation, and I
have exercised that authority under the special counsel's
regulations of the Department of Justice.
Chairman Nadler. So I assume the answer is yes?
Mr. Chabot. Regular order, Mr. Chairman.
Chairman Nadler. I assume the answer is yes, you have been
asked to approve a request or action, and you have said yes or
no?
Mr. Whitaker. Mr. Chairman, I want to be very clear about
what you are asking me. Are you asking me if I have asked the
special counsel to do something?
Mr. Chabot. Regular order, Mr. Chairman.
Chairman Nadler. Well, I am asking if--I think my words
were clear enough. Have you ever been asked to approve any
requests or action to be taken by the special counsel?
Last week, you commented on the status of the investigation
stating it was close to being completed, unquote. This was said
despite the fact you recognized just moments before that it was
ongoing stating, quote: I really am not going to talk about an
open and ongoing investigation otherwise, close quote.
So all I am asking you is, have you been asked to approve
or disapprove a request or action to be taken by the special
counsel?
Mr. Chabot. Point of order, Mr. Chairman.
Chairman Nadler. I have asked the question.
Mr. Chabot. Point of order, Mr. Chairman.
Chairman Nadler. I have asked the question.
Mr. Chabot. Point of order, Mr. Chairman.
Chairman Nadler. Point of order is not in order until the
question is answered.
Mr. Chabot. We are not operating under the 5-minute rule
anymore then?
Chairman Nadler. The witness will answer the question.
Mr. Whitaker. I want to be very specific about this, Mr.
Chairman, because I think it is going to allay a lot of fears
that have existed among this committee, among the legislative
branch largely, and maybe amongst some American people. We have
followed the special counsel's regulations to a T. There has
been no event, no decision that has required me to take any
action, and I have not interfered in any way with the special
counsel's investigation.
Chairman Nadler. Very good. Thank you. My time has expired.
I now recognize the Ranking Member, the gentleman from
Georgia, Mr. Collins.
Mr. Collins. Thank you, Mr. Chairman.
Again, it is playing out exactly as we thought. This is my
colleagues across the aisle, when we had questions about the
FBI's operation and investigations, it was: Oh, stay away; we
don't want to get close to Mueller.
In fact, the Chairman even said, you know, it is no longer
okay to wait for Robert Mueller. Well, let's no longer wait.
They have got you in front of them right now, so get ready.
This is all this is going to be DOJ oversight. And it is--I am
just going to say for a second there is some things interesting
here that you did point out in your opening statement that do
need addressing. I think there is a lot of things, whether it
be voting rights issues, whether it be civil rights issues and
other things, and I get that, but I am also going to deal with
something that is directly under your oversight supervision,
Mr. Acting Attorney General, and we are going to talk about
because something I have written a letter about, and believe
me, I believe that lying before this body or any body is wrong,
especially under oath, and that is not the issue. But the issue
is tactics.
And my question is, were you aware of Roger Stone's
indictment before it became public?
Mr. Whitaker. Congressman, that is a, as you know, an
important question. It is also--Mr. Stone is part of an ongoing
investigation, but I have, again, been briefed on the special
counsel's investigation. That would have been--you know, that
would have been considered a development that I would have been
briefed on, and I was briefed on that.
Mr. Collins. Are you familiar from public reports or
otherwise that a CNN reporter was camped out outside of Stone's
house when the FBI arrested him? This wouldn't be part of the
investigation.
Mr. Whitaker. I am aware of that, and it was deeply
concerning to me as to how CNN found out about that.
Mr. Collins. Well, that is--I am glad we are going down
that road, Mr. Attorney General. Did somebody at the Department
of Justice seemingly share a draft indictment with CNN prior to
Stone's arrest or prior to a grand jury's finding of a true
bill?
Mr. Whitaker. Ranking Member Collins, the court had a
sealed indictment that after Mr. Stone's arrest was unsealed.
Consistent with all of its prior indictments, the DOJ's basic
policy for transparency in criminal cases is that the
indictment is posted on the DOJ web page promptly after it is
unsealed, and then media outlets were notified.
We do not know of any, and I do not know of any, other
Special Counsel's Office notice or DOJ notice to media outlets
regarding Mr. Stone's indictment or his arrest and otherwise--
you know, I really, as I sit here today, don't have any other
information that I can talk about regarding Mr. Stone.
Mr. Collins. Well, given your answer even just then, it
does seem concerning given the timing of this reporter's
knowledge and other things that there seems to have been a gap
in that discovery. And just another question is, if anybody was
outside this, would you view this as a problem? Because this
looks like this is something--I am just going to ask you, in
your final days here, would this be a problem with DOJ if we
are looking at the timing doesn't match up, that somebody was--
it seems to appear this was given pre or prior knowledge, not
going through the normal channels? Because if it was given
through normal channels, every media outlet would have been
there, but only one was.
Mr. Whitaker. Mr. Collins, I share your concern with the
possibility that a media outlet was tipped off to Mr. Stone's
either indictment or arrest before it was made, that
information was available to the public.
Mr. Collins. One of the other issues, and this is--you
know, since we are going to go down this, the chairman wanted
to have this, and this is a question that is not unfamiliar,
and it should be, is Bruce Ohr still employed with the
Department of Justice?
Mr. Whitaker. To answer your question directly, Mr.
Collins, Bruce Ohr is currently employed with the Department of
Justice.
Mr. Collins. Okay. Is there any process at this point or
any that you can comment on--I understand personnel issues--but
are you aware of the discussions and also the implication of
investigations from Congress and from others surrounding Bruce
Ohr's involvement in many of the investigation problems that we
have seen over the past few years at DOJ?
Mr. Whitaker. Mr. Collins, I am generally aware of Mr. Ohr
being--questions being raised about his behavior at the
Department of Justice.
Mr. Collins. Let me tell you in a different way. Knowing
what you know and seeing what you have seen and using your past
experience and prior knowledge, do you believe Mr. Ohr was
operating outside normal channels and appropriate channels in
which he was operating under, which has been publicly reported?
Mr. Whitaker. Mr. Collins, this is a very important
question for many people both in this body and in the general
public. The Office of Inspector General is currently looking at
the Carter Page FISA application.
Mr. Collins. Which is very much a concern.
Mr. Whitaker. And it is also being reviewed at the same
time as simultaneously by Mr. John Huber, who is the U.S.
attorney from Utah, who was asked by Attorney General Sessions
to conduct a review of certain matters at the Department of
Justice. And so, together with the fact that any situation
regarding Mr. Ohr's employment would be part of a confidential
human resources process, I just am unable to talk any more
about Mr. Ohr, his involvement in any matters that could be
subject to either an inspector general's investigation or a
human resource matter.
Mr. Collins. Well, Acting Attorney General Whitaker,
barring the now again as we had another part to our play this
morning and are now finding out that you may be subpoenaed to
come back and do a deposition, which, again, as we continue
down this line, any way around this to continue to attack at
the investigation of the President--this is again is just an
amazing. I just want to say, one, in your last few days, you
know, do your best, do your job, and continue to do that part,
but also, at a certain point in time, there are many on this
committee and many on our side of the aisle as well as the
other side of the aisle that have been very concerned with what
we have seen at the Department of Justice, especially in the
FBI and especially over the last few years, that should turn
every citizen, whether they are Republican, Democrat,
Independent, could care less about politics, when there is ever
a perception, and I have shared this with others that came
before you to testify, whenever there is a perception that
there is not an equal treatment on either side, that is a
problem. It needs to be addressed. I am hoping that when Bill
Barr comes in, this will be one of his first steps that we can
continue with. I know you attempted to do that, but this is
going to be a long day, and it is going to be a day in which we
chase a lot of rabbits. Unfortunately, when we get to the end
of the day, the good men and women on the Department side, the
Department of Justice, which is what you were pitched with back
before the Chairman was the Chairman--this is not going to be
an oversight hearing; it is going to be more of a rabbit chase
down a lot of holes.
With that, I yield back.
Mr. Whitaker. Mr. Collins, if you don't mind--Mr. Chairman,
may I answer his question?
Chairman Nadler. You may.
Mr. Whitaker. I think it is important as we sit here today
that we understand that this is not a confirmation hearing,
that I am probably going to be replaced by Bill Barr in the
next week. This is an oversight hearing for the Department of
Justice, and I am surprised, as we both had the chairman and
the ranking member talk about what they want to talk about,
that we haven't talked anything about the work regarding
violent crime; we haven't talked about the opioid crisis; we
haven't talked about religious liberty; we haven't talked about
free speech on our college campuses and a whole host of other
issues that I know are very important to you.
And I look forward to talking about the substance of the
work at the Department of Justice, but if this--I mean, it is
your 5 minutes, and you can ask the questions that are of most
interest to you, but, you know, as I sit here today, I would
like to talk about the incredible work that we have been doing
at the Department of Justice since I was chief of staff and now
Acting Attorney General.
Mr. Collins. I appreciate that, but if you had been glued
to a TV yesterday morning, you would have found out this wasn't
what this was going to be about.
Thank you, Mr. Attorney General.
Chairman Nadler. Ladies and gentlemen, there are votes on
the floor. There are 11 minutes left. We are informed they are
going to strictly enforce the 15-minute rule. We will see if
that is true, but we will not risk it. So the committee will
stand in recess until after the--immediately after the last of
this series of votes.
[Recess.]
Chairman Nadler. The committee will come to order again. We
will now resume questioning under the 5-minute rule.
Ms. Lofgren.
Ms. Lofgren. I thank you, Mr. Chairman.
And thank you, Mr. Whitaker, for being here today. On
January 28th, you made a statement, and I am trying to
understand more about that. You mentioned, and this is a direct
quote: Right now--referring to the Mueller investigation--right
now the investigation is close to being completed.
What was the basis for that statement that you made, Mr.
Whitaker?
Mr. Whitaker. Thank you for that question, Congresswoman. I
had a press conference announcing an important indictment
related to Huawei and their stealing, alleged stealing of
intellectual property of an American company. During that
course of that press conference, I was asked questions about
the special counsel's investigation, and I prefaced that answer
by saying I can't talk about an ongoing investigation like the
special counsel's investigation. And as I sit here today, I
really don't have anything to add to what I said.
Ms. Lofgren. Well, it seems to me that you did talk about
an ongoing investigation, and therefore, you can understand, I
am sure, we would like to know what you meant by what you said.
In that same statement, you said, quote: You were, quote,
comfortable that the directions that were made will be reviewed
through the various means we have, unquote. What does that
mean?
Mr. Whitaker. Congresswoman, thank you for that question. I
would refer you to the special counsel regulations that, again,
the question that I was--the--the answer that I gave to the
inquiry was regarding the timing of the special counsel's
investigation. I have nothing, as I sit here, to add to that.
But I do want to mention that the special counsel's regulations
by their very nature say that the Attorney General will receive
a report, that that will be a confidential report, and that
that will--that report will cover the decisions. And so I was
talking about as Attorney General if--as Acting Attorney
General, if and when I received that report, again, I only have
less than a week, as you know, before Mr. Barr comes on board,
that I would review those decisions pursuant to that report.
Ms. Lofgren. So is it fair to say that really what you are
saying is that the special counsel's investigation is
proceeding within the scope of the authority set forth in
Deputy Attorney General Rosenstein's May 2017 order? Is that
what you are saying?
Mr. Whitaker. Congresswoman, thank you for an opportunity
to clarify that. I think what I just explained to you is that
the special counsel's investigation is proceeding consistent
with the regulations that outline why the appointment happened
consistent with Mr. Rosenstein's appointment.
Ms. Lofgren. All right. Thank you very much for that
clarification. I would just like to note that, to some extent,
it is hard to ignore that the willingness to discuss ongoing
investigations has not been applied evenly. I mean, you have
just mentioned today the Roger Stone indictment, and that is an
ongoing matter, but let me get back to an opportunity you have
to clear the air. Many have speculated that your appointment
was based on your public appearances that harshly criticized
the special counsel's investigation prior to your hiring as
chief of staff to then Attorney General Jeff Sessions. I would
like to know. Did you discuss or share your private opinions of
the special counsel investigation with President Trump or other
White House officials, such as Mr. Kelly or Trump family
members or public surrogates like Mr. Giuliani? And I would
note that this is not covered by executive privilege because at
that time, you were a private citizen.
Mr. Whitaker. Congresswoman, thank you for that question. I
came to Washington, D.C., in October of 2017 to be Attorney
General Sessions' chief of staff. I have the greatest respect,
as you know, for General Sessions, and I am really, you know,
honored to carry out the role of Acting Attorney General.
Ms. Lofgren. Well, if I may, that is very nice, but that
wasn't the question I asked.
Mr. Whitaker. Well, as you know, I am, as I mentioned,
honored to serve as Acting Attorney General, and I am honored
that the President selected me to be the Acting Attorney
General. I can assure this committee that before appointing me
to this position, the President did not ask for and I did not
provide any commitments, promises concerning the special
counsel's investigation or any other investigation, as I
mentioned in my opening statement.
Ms. Lofgren. That is not the question I asked, sir, and I
see that my time is about to expire. So, Mr. Chairman, I would
like to add I know that we are going to have a followup
deposition----
Chairman Nadler. I will allow you to ask the question again
more specifically and ask the witness to answer the question
specifically and not to continue filibustering.
Ms. Lofgren. The question is: Whether you shared your
private opinions of the special counsel investigation with
President Trump; other White House officials, such as John
Kelly; Trump family members; public surrogates, such as Rudy
Giuliani? At the time that I am referencing, you were a private
citizen. So this is before you were hired, so it is not covered
by executive privilege. Did you do that?
Mr. Whitaker. Congresswoman, just to be clear, you are
asking me whether or not I talked with anybody essentially in
the President's circle or at the White House about my views of
the special counsel's investigation----
Ms. Lofgren. Correct.
Mr. Whitaker [continuing]. When I was a private citizen----
Ms. Lofgren. Correct.
Mr. Whitaker [continuing]. And not at the Department of
Justice?
Ms. Lofgren. Correct.
Mr. Whitaker. No, I did not.
Chairman Nadler. Thank you.
Mr. Chabot.
Mr. Chabot. Thank you, Mr. Chairman.
Mr. Acting Attorney General, as you mentioned earlier,
there are other important matters within the purview of the
Justice Department and within the oversight responsibilities of
this committee besides fishing expeditions, trying to get the
goods on this President in an apparent effort to impeach him.
For example, 70,000 Americans died from drug overdoses in 2017.
I am old enough to remember back in the mid '80s when President
Ronald Reagan and his wife felt so compelled to do something
about the scourge of drugs in this country that the effort to
just say no began and other efforts following that, and that
was because back at that time, we had 10,000 deaths a year due
to drug overdoses, and we now have over 70,000 deaths. So it is
gotten, unfortunately, over time worse, not better. And most of
the increase in deaths in 2017 were due to synthetic drugs,
synthetic opioids specifically, like fentanyl, which accounted
for a significant number of those deaths. This is clearly an
epidemic which has been declared a state of emergency
nationwide by the President and has deeply affected families in
my home State of Ohio as well as families all across this
Nation.
What efforts and resources has or does the Justice
Department intend to use to combat this growing epidemic, and
what help can Congress provide to assist you in your efforts?
Mr. Whitaker. Congressman, I appreciate that question, and
I know how Ohio has been dramatically affected by the opioid
crisis. We have done a lot at the Department of Justice, and I
would like to partner with this committee and I am sure General
Barr would as well to combat and have additional tools to
combat this opioid crisis. But some of the things that we have
done is we set up in 2017 the Opioid Fraud and Detection Unit,
which was a way that the Justice Department could utilize data
to help combat the devastating opioid crisis. We did the
largest healthcare fraud takedown in June of 2018. We set up
the PIL Task Force, otherwise known as the Prescription
Interdiction and Litigation Task Force, in February of 2018. We
set up a really innovative way called Operation SOS, which was
Synthetic Opioid Surge. General Sessions and I went down to
Tampa, Florida, where we saw Manatee County had taken an AUSA
and embedded them once a week into the sheriff's office in
order to take every fentanyl overdose case, and they
dramatically reduced the number of overdose deaths in Manatee
County. And we decided to take that model and apply it to the
most affected States and districts that could really make a
dramatic difference in saving lives.
Mr. Chabot. Let me just--if I could, let me stop you there.
I just have a followup question----
Mr. Whitaker. Sure.
Mr. Chabot [continuing]. Along the same topic, and the
President addressed this to a considerable degree in his State
of the Union the other night. And do you have an opinion; is
there a relationship between enhancing border security,
particularly at our southern border, and making at least some
progress in reducing the scourge of drug addiction in this
country?
Mr. Whitaker. Congressman, absolutely there is a connection
between the drugs that are being imported through our southern
border, which is a large majority of those drugs, and the
opioid crisis we now face. In fact, I went to China in August
as chief of staff for then General Sessions. He asked me to go
to talk to the Chinese about what more they could do to reduce
the amount of fentanyl that is being produced in China, and we
had a nice dialogue with some high-level government officials.
And the President, as you know, has agreed with General Xi to
reduce fentanyl and eliminate fentanyl production in China. And
one of the ways that China has agreed to do that was by
scheduling the analogs of fentanyl. It is a very serious
problem, and I know Ohio is dramatically affected by it.
Mr. Chabot. Thank you very much.
I have only got about 30 seconds, so let me just touch on
one last thing. I know you only have about a week left, so you
probably won't personally----
Mr. Whitaker. Less than a week, actually.
Mr. Chabot. Yeah. Less than a week. Yesterday, this
committee in a bipartisan manner passed the No Oil Producing
and Exporting Cartels Act of 2019. This is something that I had
introduced almost 20 years ago along with my Democratic
colleague John Conyers, who was chair and ranking member of
this committee over the years, that would basically give the
Attorney General the authorization to bring suit against oil
cartels when they manipulate, artificially manipulate the
prices, and we all pay for this at the gas pump time and time
again. So I know we have been in contact with the Justice
Department, and we look forward to working with your successor
in that effort. I don't know if you have any comments you would
like to make about that.
Mr. Whitaker. Congressman, I am fully aware of that bill,
and I look forward to the Department of Justice working with
you to successfully not only pass it but implement it.
Mr. Chabot. Thank you.
I would like to give Mr. Nadler and some of our Democratic
colleagues as well as Mr. Collins and others a lot of credit
for that as well. So thank you very much.
I yield back. Thank you.
Chairman Nadler. Ms. Jackson Lee.
Ms. Jackson Lee. I thank the Chairman very much.
These are extraordinary times, Mr. Attorney General. We
know that the former Director of the FBI testified to the House
Intelligence Committee in open hearing that there was an active
investigation into the associates of the Trump campaign, and he
was fired subsequently. Mr. Mueller was then hired.
Investigations have secured numerous indictments, convictions,
or guilty pleas, and, of course, a deal with perjury charges
like obstruction of justice, perjury, false statements. So, at
the current rate, we are seeing so many of the Trump
organizations being indicted, and with the short time that I
have, I want to make sure that your questions are answered in a
yes-or-no manner. This is the first oversight hearing we have
had in the Justice Department in almost 15 months. You did not
have a confirmation hearing, and you have not yet appeared for
an oversight hearing. Yes or no? Yes or no?
Mr. Whitaker. Congresswoman----
Ms. Jackson Lee. Yes or no?
Mr. Whitaker. Congresswoman, I am the Acting----
Ms. Jackson Lee. Yes or no. Have you appeared before an
oversight hearing in the Congress?
Mr. Whitaker. Congresswoman, I have not.
Ms. Jackson Lee. It has been 10 years----
Chairman Nadler. The witness will answer the question as
asked, please.
Mr. Whitaker. Mr. Chairman?
Mr. Collins. Mr. Chairman, if he has--feels that a yes or
no is appropriate, he will answer in a yes or no. If he does
not feel it is appropriate, he should be able to answer in an
appropriate, as many Democrat administration officials have
done before this committee before. This is unreal.
Chairman Nadler. The member has only 5 minutes, and if
she----
Mr. Collins. If we have just discovered----
Chairman Nadler. If she wants a yes-or-no answer, she is
entitled to it. I will not allow the witness to stall and waste
members' time.
Mr. Collins. Where were you when Mr. Holder was here?
Ms. Jackson Lee. Chairman, may I have my time restored? I
think it was at 4 minutes.
Chairman Nadler. Yes, you may.
Ms. Jackson Lee. Thank you.
Again, Mr. Attorney General, the question is, did you have
a confirmation, and has it been more than 10 years since you
have testified before Congress?
Mr. Whitaker. Congresswoman----
Ms. Jackson Lee. Can the clock be restored?
Mr. Whitaker. I am sorry. What was your--I don't know if
your time has been restored or not.
Ms. Jackson Lee. Mr. Attorney General, we are not joking
here, and your humor is not acceptable. Now, you are here
because we have a constitutional duty to ask questions, and the
Congress has the right to establish government rules. The rules
are that you are here. So I need to ask the question, and I
need to have my time restored so that you can behave
appropriately. I will behave appropriately as a member of the
Judiciary Committee. I have asked a question.
Did you have a confirmation hearing, and have you not yet
appeared for an oversight hearing?
Mr. Whitaker. Congresswoman, I am an Acting Attorney
General. I have been appointed according to the Vacancies
Reform Act, and I have never appeared in front of Congress for
any hearing, even when I was a United States attorney.
Ms. Jackson Lee. I asked for a yes-or-no answer. Is that?
Yeah. Let me--and so you have never appeared.
Let me quickly ask a question. Prior to the firing of
former Attorney General Jeff Sessions, did you discuss or share
your private opinions of the special counsel investigation with
the chief of staff, some family members and others, yes or no?
Mr. Whitaker. As I previously answered, Congresswoman----
Ms. Jackson Lee. Yes or no, sir?
Mr. Whitaker. As I previously answered, Congresswoman, I
have not discussed----
Ms. Jackson Lee. Yes or no.
Mr. Whitaker. As I previously answered, Congresswoman, I
have not discussed----
Ms. Jackson Lee. And since you were appointed Acting
Attorney General, did you discuss or share your private
opinions with the special counsel?
Mr. Whitaker. Again, the special counsel's investigation is
an ongoing investigation, and I don't--I have nothing more to
say than what I have already said.
Ms. Jackson Lee. So you are denying reports that you shared
many one-on-one calls with President Trump and his then Chief
of Staff, John Kelly, when Jeff Sessions was still Attorney
General?
Mr. Whitaker. Again, Congresswoman, is there someone that
provides you the basis for that question, or is that an
anonymously sourced article?
Ms. Jackson Lee. I am asking the question, sir. Answer the
question yes or no.
Mr. Whitaker. Could you repeat the question, please?
Ms. Jackson Lee. So you are denying the reports that you
shared many one-on-one calls with President Trump and then his
chief of staff, John Kelly? Are you denying that, yes or no?
Mr. Whitaker. Congresswoman, as I mentioned several times
today, in my opening statement and otherwise----
Ms. Jackson Lee. Yes or no.
Mr. Whitaker [continuing]. I am not talking about the
conversations that I have had with the President of the United
States or senior staff.
Ms. Jackson Lee. So that is a no?
Mr. Whitaker. I don't think you can assume anything from
that.
Ms. Jackson Lee. Well, let me just pursue on my line of
questioning.
Since the investigation secured numerous indictments, I
would like to pursue the line of questioning with respect to
your understanding of the Mueller investigation and the review
that you have given. Have you given an extensive review?
Mr. Whitaker. Congresswoman, I have been briefed on the
special counsel's investigation.
Ms. Jackson Lee. Do you believe the involvement of the
hostile foreign entities interfering with the elections is more
severe than the false representation of voter fraud in
elections? Do you believe that a foreign interference with the
elections is more severe?
Mr. Whitaker. Congresswoman, I think foreign interference
in our election system in the United States is a very serious
and ongoing concern. I also believe that voter fraud is a
serious concern.
Ms. Jackson Lee. After you left office, you pursued a
series of other political offices, one of which was the United
States Senate. Yes or no, if, during the pursuit of that
office, a hostile foreign power contacted you to offer dirt on
your opponent which at the same time included other candidates,
such as Steve King and now Senator Joni Ernst, would you have
contacted the FBI?
Mr. Whitaker. Congresswoman, I am not here to address----
Ms. Jackson Lee. Yes or no?
Mr. Whitaker [continuing]. Hypothetical questions and, I am
here for an oversight hearing. I don't believe--you know, I was
very unsuccessful in my Senate campaign----
Ms. Jackson Lee. You have the responsibility of answering
the question. Would you have contacted the FBI if you were
asked to take dirt on your opponents?
Mr. Whitaker. Congresswoman, if I was contacted by a
foreign national or a foreign country when I was a candidate
for the United States Senate, I would have most likely reached
out to the FBI, but it didn't happen, so it is hard for me to
answer your hypothetical question.
Ms. Jackson Lee. With respect to civil rights, you have not
under your jurisdiction prosecuted one voting rights case. Is
that correct?
Chairman Nadler. The time of the gentlelady has expired.
The witness may answer this question.
Mr. Whitaker. Congresswoman, and just so I have a complete
answer on this, we will follow up in writing as to the voting
rights cases that we have done.
Chairman Nadler. Thank you.
Mr. Gohmert.
Mr. Jordan.
Mr. Jordan. Thank you, Chairman.
Mr. Whitaker, did why did Rod Rosenstein send a memo to Bob
Mueller on August 2nd, 2017, concerning the scope of the
special counsel investigation?
Mr. Whitaker. Congressman, thank you for that question, and
I know this is of a great interest to you, and I hope we can
have a discussion about this today. The special counsel
regulations require a scoping of the special counsel's
investigation that identifies the subjects and the targets of
the investigation, so I am certain that it would have
identified the scope of the investigation pursuant to the
special counsel's----
Mr. Jordan. Well, my question is--my question is not what--
I will get to that. My question is, why? Because it was 2 and a
half months after the special counsel was formed. So let's go
back to the beginning document, which you told the chairman
earlier you were completely briefed on the special counsel's
investigation. I want to go--this is a 1-page document, Order
No. 3915-2017. It says this, Mr. Whitaker: The special counsel
is authorized to conduct the investigation, including any
matters that arose or may arise directly from the
investigation.
That is pretty broad. Do you agree?
Mr. Whitaker. Yeah, and in my experience, it is consistent
with other appointments of special counsels.
Mr. Jordan. That is fine. I mean, I think it may be too
broad, but it is as broad as you can get. One page order: Go do
your investigation, and anything that arises out of it, you can
investigate as well.
But then 2 and a half months later, we get this, this 3-
page memo from Rod Rosenstein, Acting Attorney General, to
Robert Mueller, special counsel. Title says: Scope of the
Investigation and Definition of Authority. This is what
confuses me, because in this memo, that only Mr. Mueller and my
guess is you and Mr. Rosenstein and a few people at the Justice
Department have seen, most of it is blacked out, in this memo,
it says this: The following allegations were within the scope
of the investigation at the time of your appointment and are
within the scope of the order.
Well, if that is true, why do you have to say it? If you
could do it all along, why do you have to put it in a memo?
Mr. Whitaker. Congressman Jordan, first of all, I was--
because of General Sessions' recusal from the special counsel's
investigation, I was also recused from that investigation, and
so I was not at the Department of Justice----
Mr. Jordan. I am not asking that. I am asking--you said you
were fully briefed.
Mr. Whitaker. You are asking me why at the time Rod
Rosenstein----
Mr. Jordan. I am asking you why 2 and a half months after
the broadest order you can have, why did Rod Rosenstein say,
``Hey, you could do this all along, but now I am putting it in
a memo''? And I will tell you what really troubles me, Mr.
Whitaker, is right after that statement, the following
allegations were within the scope of the investigation at the
time of your appointment and are within the scope of the order.
Right after that, you know what? You know what happens?
Everything is redacted. Look at this. The whole darn thing. So,
if you could do it all along and you have to send a memo to
them 2 and a half months later--and then you redact everything
after it. Do you know what is under the redactions, Mr.
Whitaker?
Mr. Whitaker. I do, sir.
Mr. Jordan. You do. Are there names under the redactions,
Mr. Whitaker?
Mr. Whitaker. In my experience with investigations
generally, you would not have a public document identify
targets or subject matter of an investigation, especially if
someone is not ultimately charged with a crime.
Mr. Jordan. Let me frame it this way. Did Rod Rosenstein
give the special counsel the authority to investigate specific
Americans?
Mr. Whitaker. Congressman, Mr. Rosenstein, acting as the
Attorney General because of Mr. Sessions' recusal, gave
authorization and jurisdiction to the special counsel. And so,
yes, under the special counsel regulations, that is the whole
purpose of the special counsel.
Mr. Jordan. So I want to make sure. So you said yes, so
there are specific names 2 and a half months into the
investigation that Rod Rosenstein gave the special counsel
specific American names to go investigate?
Mr. Whitaker. Congressman, as you know----
Mr. Jordan. If that is the case, I hope you--I want to know
yes or no.
Mr. Whitaker. As you know, this is the subject of an
ongoing investigation, and I spoke to you generally about
investigations.
Mr. Jordan. And I am asking you specifically, or let me ask
it this way: Can you give us assurances that there are not
specific names under this 70-percent-redacted memo that Rod
Rosenstein sent to the special counsel?
Mr. Whitaker. Congressman Jordan, I know this is a very
important subject for you.
Mr. Jordan. And you know why I am asking this, Mr. Attorney
General, because in this country we don't investigate people;
we investigate crimes. And if there are specific American
citizens' names in this redacted memo--and I asked Mr.
Rosenstein to see this, and he got all mad and huffy with me in
his office and wouldn't show it to me, but I think the American
people--if this alters, changes, and names specific Americans,
the scope of the investigation of the special counsel, don't
you think it is appropriate for the American citizens to know
the full parameters of an investigation into the guy they made
President of the United States?
Mr. Whitaker. Congressman, let me be very specific about
this because you are right: we investigate crimes, not
individuals.
Mr. Jordan. That is why I am asking you the question. I
would like a yes-or-no answer. Are there names mentioned under
this redacted portion of this memo?
Mr. Whitaker. On that, as I mentioned before, that memo
props up a confidential investigation, as is every Department
of Justice investigation----
Mr. Jordan. Simple question, Mr. Whitaker. Are their names,
specific American names, mentioned in this redacted--70-
percent-redacted memo that happens 2 and a half months after
the special counsel gets his order to start his investigation
where he was given the broadest latitude you can possibly have?
Chairman Nadler. The time of the gentleman has expired. The
witness may answer the question.
Mr. Whitaker. I would just refer the Congressman to the
general practices of the Department of Justice, that we
investigate crimes and not individuals.
Chairman Nadler. Thank you.
Mr. Cohen.
Mr. Cohen. Thank you, Mr. Chair.
Mr. Attorney General, the inspector general of the GSA had
a rather scathing report on the GSA's decision not to address
significant issues concerning the government's Post Office and
its lease to the Trump family concerning the Emoluments Clause,
and it was said that GSA attorneys said they did not refer the
matter to OLC, but a senior attorney told the IG that the OLC,
the Office of Legal Counsel, knew about the Old Post Office
lease, and it was up to them to do something. Were you aware of
anything this Justice Department did to look into violations of
the Emoluments Clause at the Trump Hotel?
Mr. Whitaker. Congressman, the Emoluments Clause as it
relates to the Trump Hotel is the subject of several ongoing
litigation matters.
Mr. Cohen. Right.
Mr. Whitaker. And so, while I can acknowledge that I am
aware of the--not only of the situation you described but
generally the litigation surrounding the Emoluments Clause, as
the Acting Attorney General sitting here today, I am unable to
talk specifically about those cases.
Mr. Cohen. You can't say if there are any memos from the
Office of Legal Counsel regarding Emoluments Clause violations
and limitations?
Mr. Whitaker. Congressman, as I sit here today, those--the
Emoluments Clause as it relates to The Trump Organization,
especially the hotel in Washington, D.C., is the subject of
ongoing litigation.
Mr. Cohen. And the Justice Department is helping to
represent the President in those suits, is he not? Is that
appropriate when it is a violation of him making personal
monies out of the Trump Hotel and being charged with violations
of the Emoluments Clause by not reporting it to the Congress as
he is supposed to by the Constitution? Shouldn't he have his
personal lawyers and not Justice Department lawyers represent
him for this nefarious conduct?
Mr. Whitaker. Congressman, I can understand that this is an
important issue to you, but as it relates to the Emoluments
Clause and the Department of Justice defense of the President
of the United States, it is well within our purpose to be
involved in that case.
Mr. Cohen. You said that if the special counsel's
investigation looked into President Trump's finances it would
be crossing a red line. You said that, I think, in a television
interview. The Attorney General has made clear that Mr.
Rosenstein told the special counsel he could go into any
matters that arose or may arise directly from the
investigation. If matters arose from the investigation directly
or indirectly that the Trump family owed lots of money to
Russian oligarchs and people real close to Putin and that
affected the actions that they took as the President of the
United States on behalf of the United States of America, would
you agree that that was not crossing a red line but, in fact,
was a red line from Moscow that we need to look into?
Mr. Whitaker. Congressman, when I made that statement, I
was a private citizen and had no publicly available
information--I only had publicly available information, and so
I made that as a commentator and not as the Acting Attorney
General of the United States. I am very familiar with the
responsibilities of my office as Acting Attorney General, and
we make our decisions based on the law and the facts on a case-
by-case basis.
Mr. Cohen. So that is no longer your opinion. It is not
crossing a red line for him to look into the finances if they
might have interfered with the objective judgment of the
President concerning his duty of trust to the United States of
America and not to his personal financial interest or his
family's.
Mr. Whitaker. Congressman, as I mentioned earlier, at the
Department of Justice and as long as I am Acting Attorney
General, we are going to follow the law and the facts wherever
they may lead, and we are going to do our jobs with fidelity.
Mr. Cohen. Thank you, sir.
Let me ask you this: There has been a conviction in the
special counsel investigation of Mr. Manafort, a jury trial
conviction. There have been guilty pleas for Flynn, Manafort,
Gates, Papadopoulos, and Michael Cohen and dozens of
indictments including 13 Russian nationals, 3 Russian
companies, and Roger Stone. Would you say the special counsel's
investigation is a witch hunt? Are you overseeing a witch hunt?
Mr. Whitaker. Congressman, as I have mentioned previously,
the special counsel's investigation is an ongoing
investigation, and so I think it would be inappropriate for me
to talk about----
Mr. Cohen. But you wouldn't oversee a witch hunt, would
you? You would stop a witch hunt, wouldn't you?
Mr. Whitaker. Congressman, it would be inappropriate for me
to talk about an ongoing investigation.
Mr. Cohen. You said that you are not interfering with the
special counsel's investigation. Have you denied him any funds
he has requested at all?
Mr. Whitaker. Congressman, I can tell this is an important
issue for you, but----
Mr. Cohen. It is an important for the American public and
for the whole world.
Mr. Whitaker. Congressman, to answer your question
directly, I have not denied any funds to the special counsel's
investigation.
Mr. Cohen. Have you denied him the opportunity to go any
areas where he wanted to investigate or any matters of
investigation?
Mr. Whitaker. Congressman, as I previously testified, I
have not interfered with the special counsel's investigation.
Mr. Cohen. I yield back the balance of my time.
Chairman Nadler. Thank you. I thank the gentleman.
Mr. Gohmert.
Mr. Gohmert. Thank you, Mr. Chairman.
And, Acting Attorney General, thank you for being here
today.
Mr. Whitaker. It is good to see you again, Congressman.
Mr. Gohmert. I am amazed that you would be coming since
your successor is going to apparently be confirmed next week,
and you will no longer be Acting Director, so I don't know what
kind of suicide wish you had or whatever, but it is good to see
you.
One thing I wanted to hit first was a statement that you
had made, and I want to confirm that these are your words. And
I quote: There is no doubt in the law enforcement community
that the vast majority of the illegal drugs in this country is
coming over our southern border, a pattern that is true for all
crimes generally, and there is no doubt that criminals and
cartels seek to exploit weaknesses in our southern border.
Are those your words?
Mr. Whitaker. Well, I don't know which speech or statement
you are quoting. It sounds like something I would have said,
yes.
Mr. Gohmert. Yeah. And you wouldn't have said that if you
didn't believe that, correct?
Mr. Whitaker. Oh, I believe what you are saying. The drugs
and the general illegality that is pouring in through our
southern border is having a negative effect on our country.
Mr. Gohmert. Now, I want to get to this issue of career
officials since colleagues on the other side of the aisle have
made such a big deal about it, that you have not--they accuse
you of not following the advice of career officials. Do you
know the backgrounds of the people that are working directly
under you and directly under Rod Rosenstein?
Mr. Whitaker. Congressman, I sit on top of an organization
that has 115,000 employees.
Mr. Gohmert. I am talking about the people directly to you
and directly to Deputy Rosenstein.
Mr. Whitaker. I am familiar with the people that report to
both of us, yes.
Mr. Gohmert. Yes.
Mr. Whitaker. Although I will tell you, I think Rod
Rosenstein as Deputy Attorney General has over 100 direct
reports as Deputy Attorney General.
Mr. Gohmert. Well, that was something I recommended to
Attorney General Sessions, that he needed to reorganize and
have some of those people reporting directly to him.
But one of the mistakes I think my dear friend, Jeff
Sessions, for whom I have immense respect, one of the mistakes
that I saw him making: he was listening to people who love
Sally Yates, loved her efforts to disrupt anything that
President Trump tried to do. They loved what President Obama
did through the Justice Department, and in fact, I had informed
Jeff that one--that his contact with the NSC was sitting on his
notices, so either he developed conflicts or wasn't properly
prepared, and that was Tashina Gauhar, and she reported
directly to Rosenstein. The AG should have somebody--the
liaison with the NSC should report directly to the AG and not
go through Rod Rosenstein and especially when they were setting
the Attorney General up to be harmed. But this--and then
Anthony Ferrante, I know currently apparently he is the senior
managing director of FTI Consulting. He was another one that
some considered a career position at the DOJ. Let's see. He had
Jordan Kelly there. She is currently Director of Cybersecurity
Policy and Incident Response at the NSC through the White
House. There are reports that she met routinely with the
Mueller investigators. You know, between these people who, like
Tashina Gauhar, just thought Yates was wonderful, I would hope
that wisdom in you as acting director, wisdom in the incoming
Attorney General will be to look at the backgrounds, look at
the people who are political hacks, and figure out: Oh, they
are giving me advice on this? This is not for my well-being.
This is to hurt the President of the United States.
And I know you may just have another week, but I would
encourage you that, as people make a big deal about career,
look beyond career. Look where their loyalties are because even
though they may be in a career position, if their loyalties are
not to the Attorney General and not to the President of the
United States and are more political than they are
constitutional, disregard what they say.
I yield back.
Chairman Nadler. The time of the gentleman has expired. Mr.
Johnson.
Mr. Johnson of Georgia. Thank you.
General Whitaker, do you agree with the President's
statement that the Russian investigation is a witch hunt?
Mr. Whitaker. As I mentioned previously, Congressman, I
think it would be inappropriate for me to comment about an
ongoing investigation.
Mr. Johnson of Georgia. Well, you commented about the Roger
Stone investigation, which is ongoing, did you not?
Mr. Whitaker. Congressman, just to be clear about this----
Mr. Johnson of Georgia. You did comment. I mean, we heard
you comment on the Roger Stone investigation. Why would you
comment on the Roger Stone investigation, but you are reluctant
to answer our questions about the Mueller investigation?
Mr. Whitaker. Well, that is a good question, Congressman,
and my comments about the Roger Stone investigation were merely
to acknowledge that I was aware that CNN had appeared to
receive or was at the residence on location----
Mr. Johnson of Georgia. Well, you don't know whether or not
the CNN reporter was camped out with no advance knowledge or
whether or not he was tipped off or not. Isn't that true?
Mr. Whitaker. Congressman, that is true, but I am very
concerned that an operation of the FBI----
Mr. Johnson of Georgia. Let me move on. Let me move on
that, sir. I am controlling the time. Let me move on.
I would like to take a moment to better understand your
decision not to recuse yourself from the supervision of the
special counsel's investigation. Isn't it a fact, sir, that you
received your final ethics guidance on this matter on December
19th, 2018?
Mr. Whitaker. I appreciate this question, and I am glad
this is an opportunity----
Mr. Johnson of Georgia. It is a pretty direct question. Did
you receive your final guidance on that question on December
19th----
Mr. Whitaker. As you know, we have communicated with
Congress the entire process that I went to--went through to
address any recusal questions that I might have, and I had no
conflict of interest. I had no financial----
Mr. Johnson of Georgia. Well, let me just ask you: I
understand you take that position, but my simple question is,
isn't it a fact that you received your final ethics guidance on
that question on December 19th, 2018?
Mr. Whitaker. Congressman, we laid out very explicitly the
process that we went through, and ultimately the decision
whether or not to recuse was my decision.
Chairman Nadler. Mr. Whitaker, you were asked a direct
question. Mr. Whitaker, you were asked a direct question, and
it is getting a little tiresome hearing you stall and wasting
the member's time. The member only has 5 minutes. He asked you
a specific question. Did you last receive advice on that on
December 18th? The answer ought to be yes or no or some other
date or ``I don't remember,'' but we don't need a speech. The
gentleman may repeat his question.
Mr. Collins. Mr. Chairman, if we are going to counsel the
witness and act as his attorney on how he should answer, are
you answering the question, or is the witness answering the
question?
Chairman Nadler. I am asking the witness not to stall.
Mr. Collins. And we have endured that many times here were
when he is trying to ask the question in the way that he is
asked.
Mr. Cohen. Point of order. Point of order.
Chairman Nadler. The gentleman is out of order. Mr. Johnson
has the floor. Your time will be restored.
Mr. Johnson of Georgia. Thank you, sir.
Sir, isn't it a fact that career officials at DOJ
recommended to you that you recuse yourself to avoid an
appearance of a conflict of interest or bias? That was the
guidance that you got from career DOJ officials about your
participation or oversight of the Mueller investigation. Isn't
that correct?
Mr. Whitaker. Congressman, I made my recusal decision by
myself after consulting with----
Mr. Johnson of Georgia. But there were career DOJ officials
who advised you that you should not touch that investigation.
Isn't that correct?
Mr. Whitaker. Congressman----
Mr. Johnson of Georgia. Yes or no.
Mr. Whitaker [continuing]. I consulted with career ethics
officials. I consulted with my senior staff. I consulted with
the Office of Legal Counsel. It was my decision to make. I
decided not to recuse. I am happy to walk through the step-by-
step advice that I received. And I consulted----
Mr. Johnson of Georgia. There were four individuals who you
consulted who advised you that you had the ability to not
recuse yourself from this investigation. Isn't that correct?
Mr. Whitaker. Congressman, the regulations actually say I
have----
Mr. Johnson of Georgia. Four individuals advised you that
you did not have to recuse yourself. Is that correct?
Mr. Whitaker. Congressman, let me be clear. It was my
decision----
Mr. Johnson of Georgia. You are not being clear sir, other
than in your obstruction and refusal to answer the question.
Mr. Whitaker. I am not obstructing anything. I am answering
your question.
Mr. Johnson of Georgia. Well, you are obstructing----
Mr. Whitaker. I consulted with a lot of people regarding my
recusal, but it was my decision to make.
Mr. Johnson of Georgia. But you are not telling me who it
was. Who did you consult with?
Mr. Whitaker. As I mentioned, I consulted with career
officials----
Mr. Johnson of Georgia. Name me some names.
Mr. Whitaker. I consulted with my senior staff, and I
consulted with the Office of Legal Counsel.
Mr. Johnson of Georgia. Name me some names, sir.
Mr. Whitaker. Well, one person would be the Assistant
Attorney General for our Office of Legal Counsel.
Mr. Johnson of Georgia. What is his name or her name?
Mr. Whitaker. Steve Engel. He is a Senate-confirmed----
Mr. Johnson. And who else? Who else did you consult with?
Mr. Whitaker. I also consulted with his principal deputy.
Mr. Johnson of Georgia. And that person's name is?
Mr. Whitaker. His name is Curtis Gannon.
Mr. Johnson of Georgia. And who else did you consult with,
sir?
Mr. Whitaker. Congressman----
Mr. Johnson of Georgia. I am asking you a pretty clear
question, sir. Who else did you consult with about whether or
not you should recuse yourself from the Mueller investigation?
Mr. Whitaker. Generally who did I consult with?
Mr. Johnson of Georgia. I want to know specifically who you
talked to.
Mr. Whitaker. Okay. Well, I talked to Brad Weinsheimer, who
is the senior career official at the Department of Justice.
Mr. Johnson of Georgia. And he advised that your recusal
was unnecessary, or did he advise you to recuse?
Mr. Whitaker. He actually could not identify any precedent
for me to recuse. He said it was a close call. He said--I am
sorry. Did you have a question?
Mr. Johnson of Georgia. Go ahead.
Mr. Whitaker. Okay. He said that my other public statements
did recognize the professionalism and competence of the special
counsel. He said that, out of an abundance of caution, that he
would--that, if asked, he would recommend a certain course, but
again, it was--he also said----
Mr. Johnson of Georgia. Did he recommend that you recuse
yourself?
Chairman Nadler. The time of the gentleman has expired.
Mr. Whitaker. Can I finish?
Chairman Nadler. The witness may finish his answer.
Mr. Whitaker. Okay. He also said, Congressman, that the
decision was mine to make based on the regulations of the
Department of Justice, and I made that decision, and I stand by
that decision.
Chairman Nadler. Mr. Ratcliffe.
Mr. Ratcliffe. Mr. Attorney General, I spent a number of
years as a Federal prosecutor and because of that service, I
have literally hundreds of friends at the Department of Justice
right now and at its component agencies like the FBI, folks
that I have tremendous respect for. And so I appreciate your
stated desire earlier today to want to highlight their good
work.
And for the new members of the Judiciary Committee, an
oversight hearing is typically where that would take place,
where an Attorney General would give an accounting of the work
of 115,000 men and women in the Justice Department and provide
some idea of the vision with respect to the Department's
priorities, priorities like drug and human trafficking,
preventing terrorism, reducing gun and gang violence.
Now, earlier this week, my colleagues on the other side of
the aisle indicated that they had a great desire to reduce gun
violence in this country. In fact, we had an 8-hour hearing
with six witnesses that talked about the need to reduce gun
violence in this country. We started this hearing at 9:30 this
morning. It is now 12:30 in the afternoon, and I haven't seen
you field a single question from the other side of the aisle
about any of the enforcement priorities of the Department of
Justice, despite the fact that you are the head of an
organization that has greater ability to impact and reduce gun
violence than anyone or anything in the country. So I may be
the only person today that wants to ask you a question about
that, but I am going to use the remainder of my time for that
purpose.
When I was at the Department of Justice, we had a very
successful initiative called Project Safe Neighborhood. It was
a program that took guns out of the hands of criminal
offenders. It was a successful program that was killed by the
Obama administration. The Obama Justice Department ended it. I
understand that it has been reinstated during the Trump
administration. I would like you to inform us about its
progress as well as any other measures or programs or
enforcement priorities of the Department of Justice with
respect to reducing gun violence in this country.
Mr. Whitaker. Thank you, Congressman. As you know, we
served as United States attorneys together, until you went into
politics, and I went into private practice. I want to talk
specifically, and this is a really good question, about Project
Safe Neighborhoods.
In 2017, the Attorney General Sessions announced the
expansion of Project Safe Neighborhoods, which encourages U.S.
attorneys' offices to work specifically with their unique
communities they serve to develop a customized crime-reduction
strategy. One study showed that, when you and I were doing PSN,
it reduced crime over all by 4.1 percent and with case studies
showing reductions up to 42 percent of violent crime. We had
the Project Safe Neighborhoods national conference, as I
mentioned in my opening statement, and I can tell you that
especially in our largest cities, our 29 major cities, we are
seeing a reduction of violent crime because of U.S. attorneys
specifically working with their sheriffs and police chiefs and
their Federal and State and local partners in reducing gun
violence. You know, some other things that we have done is the
Attorney General is one of the four Cabinet positions that were
part of the School Safety Commission that came out with a
report in the last several months that gave a practical outline
as to how States especially could work to reduce gun violence,
including the idea of ERPOs. And there is, you know,
Congressman, I really--I appreciate your tone that this
oversight hearing is not a hearing about the types of things
that we are talking about, but to--you know, the Chairman sent
me a letter specifically outlining things that he wanted to
talk about, and I don't feel like we have talked about many of
those things. So I am glad that you offered that opportunity to
talk about the Department of Justice's efforts to reduce gun
violence.
Mr. Ratcliffe. Thank you, Attorney General.
I would like to yield the remainder of my time to
Congressman Jordan.
Mr. Jordan. I appreciate the gentleman yielding.
Mr. Whitaker, are there any other memos, any other memos
that Mr. Rosenstein has sent to Mr. Mueller that we don't know
about, and if we did, would be redacted like the one that
happened on August 2, 2017?
Mr. Whitaker. Congressman, as you know, the special
counsel's investigation is ongoing, and it would be
inappropriate for me to talk about any other memos related to
that.
Mr. Jordan. Well, Mr. Whitaker, we already know that there
has been some modification of the broadest order I think you
could have with this August 2, 2017, memo. And all I am asking
is, are there any other modifications, any other changes to the
parameters of an investigation into the President of the United
States?
Chairman Nadler. The time of the gentleman has expired.
The witness may answer the question.
Mr. Whitaker. Congressman, just to be clear, the special
counsel understands the scope of its investigation and is
complying with all the regulations and orders related to that.
Chairman Nadler. Thank you.
Mr. Deutch.
Mr. Deutch. Thank you, Mr. Chairman.
General Whitaker, you and I are both lawyers. My first day
of crim law, my professor came in and said: If someone asks you
a yes-or-no question, don't just repeat the question; answer
yes or no. Otherwise, during your career, people will think you
are not a good lawyer. We know you are a good lawyer. Let's
heed that advice going forward.
In November----
Mr. Whitaker. We did not go to the same law school.
Mr. Deutch. We did not. The advice is good nonetheless. In
November 2018, Chris Wallace asked the President a question. He
said: Did you know before you appointed him that he--meaning
you--had a record that was so critical of Robert Mueller?
And the President said: I didn't know that. I didn't know
that he took views on the Mueller investigation.
Do you believe President Trump was telling the truth when
he said that he just did not know that you were critical of
Mueller before your appointment?
Mr. Whitaker. Congressman, the President----
Mr. Deutch. No. I understand how it all worked. I am just
asking you. Do you believe the President was telling the truth
when he said he did not know that you had been critical of
Robert Mueller before making your appointment?
Mr. Whitaker. Congressman, I have no reason to believe when
I sit here today that the President wasn't saying what he
believed.
Mr. Deutch. Who did you interview with for this--for the
Chief of Staff job? Not for this job, for the chief of staff
job?
Mr. Whitaker. It was General Sessions' decision to make. I
interviewed with him, and he offered me the job.
Mr. Deutch. And before you got the job, did you ever--
before you took this job, did you ever speak with the President
about the Mueller probe from May 17th, 2017 to September 22nd,
2017?
Mr. Whitaker. Are you saying about before I was actually
the chief of staff?
Mr. Deutch. I am saying between May 17, 2017----
Mr. Whitaker. Well, Congressman, I had never met the
President until after I joined the Department of Justice in
2017.
Mr. Deutch. So have you--let me just ask you another
question. If you didn't communicate with him, did you
communicate with anyone at the White House about the special
counsel investigation before September 22, 2018?
Mr. Whitaker. I assume you are excluding my appearances on
CNN because I don't think anybody at the White House was
watching----
Mr. Deutch. If you talked to anybody at the White House--I
mean, you have told me that the President wasn't watching
those. Otherwise, he would have been aware of your position. So
I assume the President wasn't watching. Did you talk about
those appearances with anyone at the White House?
Mr. Whitaker. I did not talk about my experiences on CNN
with----
Mr. Deutch. Did you talk about your views of the Mueller
investigation with anyone at the White House?
Mr. Whitaker. I did not talk about my views of the Mueller
investigation with any of the White House during--in this time
period, essentially May of 2017, until I joined the Department
of Justice in October of 2017.
Mr. Deutch. And throughout that process, did you ever
communicate with anyone--here is the question. By my count, you
made six comments in op-eds, talk radio, or on cable news
critical of the special counsel between the time you
interviewed in June 2017 and the time you were hired as Chief
of Staff to the Attorney General. Did you ever use any
intermediaries? Did you have anyone--since the President didn't
know, did you have anyone communicate with the White House or
anyone at the White House, either staff members, friends, or
others, to let them know exactly where you stood as expressed
in at least those six public statements?
Mr. Whitaker. Congressman, I had--at the time you describe,
May of '17 until I joined the Department on October 4th of
2017, I didn't have a relationship with the White House.
Mr. Deutch. Did you talk to any White House personnel
before you were hired, anyone at the White House?
Mr. Whitaker. Congressman, I----
Mr. Deutch. That is an easy one. Did you talk to anyone at
the White House? Is the answer no?
Mr. Whitaker. Congressman, I had previously been at the
White House when I was a private citizen to talk about a
different position.
Mr. Deutch. No. I understand. But did you talk to anyone at
the White House about your views on Mueller, any personnel at
the White House at all before you assumed the position? Let me
just ask----
Mr. Whitaker. In May----
Mr. Deutch. Let me just go forward because here is the
issue. When you became the Attorney General--since becoming the
Attorney General, you said that you had been briefed on the
special counsel. Did you use anyone else to have
communications? Did you do anything to make sure that the White
House might have learned some of what you learned in those
briefings? Could it be that someone else on your staff might
have spoken to someone at the White House since you told us you
didn't?
Mr. Whitaker. Congressman, I am not aware of that
happening.
Mr. Deutch. Who else--how many people were in those
briefings with you when you were briefed about the Mueller
investigation?
Mr. Whitaker. Congressman, I am not going to go into the
specifics of the briefing, but it was a very limited group.
There was only one member of my staff who was present with me.
Mr. Deutch. And have there been--have you ever attempted to
use any intermediaries to get information to the President or
others on his staff?
Mr. Whitaker. No. I have not attempted to use any
intermediaries to get information to the President or his
staff.
Mr. Deutch. So I will close, Mr. Chairman, by saying this
is going to be a long hearing. We have been going on for a
while. The concern that we have, Mr. Whitaker, is that there
was no Senate confirmation here. We are not the Senate, but the
administration justified their decision in picking you under
the Vacancies Reform Act. There was a law on the books for the
Attorney General succession and the authority to oversee the
special counsel's work. It goes from one Senate confirming
official to another, from the AG, Deputy AG, Associate Attorney
AG, Solicitor General, Assistant Attorney General, the Attorney
General in charge of the Office of Legal Counsel, Assistant AG
for National Security, Assistant AG in charge of the Criminal
Division, and on and on and on. None of them, none of them are
the Chief of Staff to the Attorney General. I think what we are
trying to figure out is why is it exactly----
Mr. Collins. Point of order.
Mr. Deutch [continuing]. That the President chose to go
beyond the statute and choose you, and I hope over the balance
of this hearing, that will become clear.
I yield back.
Chairman Nadler. The time of the gentleman has expired. The
witness may answer.
Mr. Whitaker. Thank you, Congressman. I believe the
President chose me to be the Acting Attorney General for a
couple reasons. First, I had served previously in the
Department as a United States attorney, which is a very
important position, as Mr. Ratcliffe previously stated, in the
administration of justice, and for 13 months, I was the Chief
of Staff for Attorney General Sessions, and I had done the full
year with him, side by side. Obviously, he made the decisions,
but I gave him advice and counsel, and I was aware of
everything that was going on at the Department of Justice that
I--obviously that General Sessions wasn't recused from, and so
I think the President was comfortable that to continue the
momentum at the Department of Justice that we had established
in addressing these important priority issues, like reducing
violent crime, combating the opioid crisis, and others that the
President felt I was best positioned to do the duties of
Attorney General.
Chairman Nadler. Mr. Biggs.
Mr. Biggs. Thank you, Mr. Chairman.
I will just say to Mr. Whitaker: My questions normally--in
a normal oversight committee would be vastly different than the
direction I am going to go because we have kind of wandered
into this other stream over here, so I am going to ask you some
questions.
The longstanding constitutionally based Department of
Justice policy holds that a sitting President cannot be
indicted. Is that--and that is based on the last review, which
happened under the Clinton administration. Is that still in
effect, or has it changed?
Mr. Whitaker. That is still the policy of the Department of
Justice.
Mr. Biggs. Have you spoken to Deputy Attorney General
Rosenstein about his statements on invoking the 25th Amendment
and wiretapping President Trump?
Mr. Whitaker. I have seen the statements by Deputy
Rosenstein that he made to the press regarding those
statements, and I have no reason to believe that he did not--
that those statements, you know, were consistent with what he
believed at the time.
Mr. Biggs. Okay. I am not sure I understood that. You said
you have no reason to believe that they were not consistent, so
there are a couple of negatives there. Do you believe they were
consistent with what he believed at the time?
Mr. Whitaker. I do. I believe what Deputy Attorney General
Rosenstein said to the press when it was first reported about
his decision.
Mr. Biggs. Oh. You are talking about his comments, not--his
comments to the press, not the ones about him wearing a wire?
Mr. Whitaker. I am talking about Deputy Attorney General
Rosenstein's comments to the press after it was reported that
he had considered wearing a wire and invoking the 25th
Amendment.
Mr. Biggs. And his response--I didn't mean to interrupt,
but his responses you think are consistent. So did you talk to
him about this issue at all?
Mr. Whitaker. Again, I am not here to talk about the
internal discussions that I had with----
Mr. Biggs. This is really critical. With all due respect,
this is not an ongoing--this has nothing to do with an ongoing
investigation. What it has got to do with is Mr. Rosenstein and
his role as an unbiased overseer of the Mueller investigation.
So it is not directly dealing with the investigation but deals
with his capacity to be unbiased. So I am not asking whether--I
am not trying to get into the substance or even the periphery.
I want to know, though, did you have a conversation with Mr.
Rosenstein about his comments as reported?
Mr. Whitaker. Congressman, this is an important question to
you, but I am not going to answer my conversations with Deputy
Attorney General Rosenstein. I believe that they are
deliberative. Obviously, I am exercising the full
responsibilities of the Acting Attorney General position.
Mr. Biggs. I appreciate that. I appreciate that. I know
that that answer is important to you. I know that is important
to you, but answering in a way that we as the American people
can understand it, that is important to us.
So let's get to June 21, 2017, where you said: The truth is
there was no collusion with the Russians in the Trump campaign.
There was interference by the Russians into the election, but
there was not collusion with the campaign. That is where the
left seems to be combining those two issues. The last thing
they want right now is the truth to come out, and the fact that
there is not a single piece of evidence that demonstrates that
the Trump campaign had any illegal or even improper
relationships with the Russians, it is that simple.
Do you still adhere to that statement? Is that still true
in your mind today?
Mr. Whitaker. Congressman, as I have mentioned before in a
previous questioning about my statements, as a private citizen
before I joined the Department of Justice, those were made
based on publicly available information, and I had no inside
information. I did not know the details of the investigation. I
obviously know the traditions of the Department of Justice, the
rules and regulations, and I will continue to follow those as I
exercise the duties of Acting Attorney General.
Mr. Biggs. I remember the answer that you gave to a similar
question but not this question here, and so that is not what I
am asking. What I am asking is, as we sit here today, a year
and a half later, has your opinion changed from what you stated
June 21, 2017? Has it changed? That is a simple question. That
is not hard.
Mr. Whitaker. Congressman, the special counsel's
investigation is an ongoing investigation, and I am not going
to characterize that investigation or give you my opinion of
that investigation as I sit here today.
Mr. Biggs. So the scope memo indicates that the scope of
the Mueller investigation was any links and/or coordination
between the Russian Government and individuals associated with
the campaign of President Donald Trump and, two, any matters
that arose or may arise directly from that investigation. Has
that scope been expanded in any way?
Mr. Whitaker. Congressman, as I was discussing with
Representative Jordan, I am not going to talk about the scope--
--
Mr. Biggs. Okay.
Mr. Whitaker [continuing]. Of the special counsel----
Mr. Biggs. Then I will go forward, then, and say the
indictments and the relation to the scope: One, Papadopoulos
for false statements occurring after Mueller was appointed;
Manafort for acts unrelated to the election or campaign; Gates,
acts unrelated to the election or the campaign; Flynn, false
statements about post-election conversations; Richard Pinedo,
unrelated to the campaign or election; Cohen, referred by
Mueller to Southern District of New York because it was out of
his scope; Sam Patten, not related to the 2016 election or
campaign; and Stone for false statements occurring after
Mueller was appointed. Not one indictment alleged an illegal
relationship between a member of the Trump campaign and Russia,
and that is consistent with what we have seen so far.
And I thank you, Mr. Chairman.
Chairman Nadler. The time of the gentleman has expired.
Ms. Bass.
Ms. Bass. Thank you, Mr. Chair.
Mr. Acting AG, I actually wanted to ask you some questions
regarding what you did prior to being Acting AG. It is my
understanding that before you moved to the Department of
Justice, that you were the Executive Director of the Foundation
for Accountability----
Mr. Collins. Mr. Chairman. Mr. Chairman. I have a point of
order. Mr. Chairman, a point of order.
Ms. Bass. FACT is a conservative ethics watchdog----
Mr. Collins. I have a point of order.
Ms. Bass [continuing]. He made full use of the opportunity
to call for investigations of multiple Democrats.
Chairman Nadler. The gentleman will state his point of
order.
Mr. Collins. My point of order about the statement from the
gentlelady is outside of the scope of an oversight
investigative hearing of the Department of Justice.
Ms. Bass. It is not. You need to let me finish my question,
and you will see what I was asking.
Chairman Nadler. The gentlelady will suspend.
That is not a valid point of order. The gentlelady will
continue.
Ms. Bass. Thank you.
Mr. Collins. Mr. Chairman, I make a point of order rule
pursuant to the House rules that the question is outside the
scope of----
Chairman Nadler. The gentlelady has the floor.
Mr. Collins. Are you just going to override a point of
order?
Ms. Bass. Yeah, because your point of order is not valid.
Chairman Nadler. The gentlelady will suspend. I ruled that
it was not a valid point of order, and the gentlelady has the
floor.
The gentlelady will continue.
Ms. Bass. Thank you.
Mr. Collins. I was not through with my point of order.
Chairman Nadler. The gentlelady will continue.
Mr. Collins. Appeal the ruling of the chair.
Mr. Cicilline. Move to table.
Ms. Jackson Lee. I move to table.
Chairman Nadler. The motion to table the appeal of the
ruling of the Chair is before the committee. Motion to table is
not debatable.
The clerk will call the roll.
One moment while we set up the clerk.
Mr. Cicilline. Mr. Chairman, may I make a unanimous consent
request while we are waiting for this vote?
Chairman Nadler. The clerk will call the roll.
Ms. McElvein. Mr. Chairman?
Chairman Nadler. Aye.
Ms. McElvein. Mr. Chairman votes aye.
Ms. Lofgren?
[No response.]
Ms. McElvein. Ms. Jackson Lee?
Ms. Jackson Lee. Aye.
Ms. McElvein. Ms. Jackson Lee votes aye.
Mr. Cohen?
Mr. Cohen. Aye.
Ms. McElvein. Mr. Cohen votes aye.
Mr. Johnson?
[No response.]
Ms. McElvein. Mr. Deutch?
Mr. Deutch. Aye.
Ms. McElvein. Mr. Deutch votes aye.
Ms. Bass?
Ms. Bass. Aye.
Ms. McElvein. Ms. Bass votes aye.
Mr. Richmond?
Mr. Richmond. Aye.
Ms. McElvein. Mr. Richmond votes aye.
Mr. Jeffries?
Mr. Jeffries. Aye.
Ms. McElvein. Mr. Jeffries votes aye.
Mr. Cicilline?
Mr. Cicilline. Aye.
Ms. McElvein. Mr. Cicilline votes aye.
Mr. Swalwell?
Mr. Swalwell. Aye.
Ms. McElvein. Mr. Swalwell votes aye.
Mr. Lieu?
[No response.]
Ms. McElvein. Mr. Raskin?
Mr. Raskin. Aye.
Ms. McElvein. Mr. Raskin votes aye.
Ms. Jayapal?
[No response.]
Ms. McElvein. Mrs. Demings?
Mrs. Demings. Aye.
Ms. McElvein. Mrs. Demings votes aye.
Mr. Correa?
Mr. Correa. Aye.
Ms. McElvein. Mr. Correa votes aye.
Ms. Scanlon?
Ms. Scanlon. Aye.
Ms. McElvein. Ms. Scanlon votes aye.
Ms. Garcia?
Ms. Garcia. Aye.
Ms. McElvein. Ms. Garcia votes aye.
Mr. Neguse?
Mr. Neguse. Aye.
Ms. McElvein. Mr. Neguse votes aye.
Mrs. McBath?
Mrs. McBath. Aye.
Ms. McElvein. Mrs. McBath votes aye.
Mr. Stanton?
Mr. Stanton. Aye
Ms. McElvein. Mr. Stanton votes aye.
Ms. Dean?
Ms. Dean. Aye.
Ms. McElvein. Ms. Dean votes aye.
Ms. Mucarsel-Powell?
Ms. Mucarsel-Powell. Aye.
Ms. McElvein. Ms. Mucarsel-Powell votes aye.
Ms. Escobar?
Ms. Escobar. Aye.
Ms. McElvein. Ms. Escobar votes aye.
Mr. Collins?
Mr. Collins. No.
Ms. McElvein. Mr. Collins votes no.
Mr. Sensenbrenner?
[No response.]
Ms. McElvein. Mr. Chabot?
[No response.]
Ms. McElvein. Mr. Gohmert?
[No response.]
Ms. McElvein. Mr. Jordan?
[No response.]
Ms. McElvein. Mr. Buck?
[No response.]
Ms. McElvein. Mr. Ratcliffe?
[No response.]
Ms. McElvein. Mrs. Roby?
Mrs. Roby. Nay.
Ms. McElvein. Mrs. Roby votes nay.
Mr. Gaetz?
[No response.]
Ms. McElvein. Mr. Johnson?
[No response.]
Ms. McElvein. Mr. Biggs?
Mr. Biggs. No.
Ms. McElvein. Mr. Biggs votes no.
Mr. McClintock?
Mr. McClintock. No.
Ms. McElvein. Mr. McClintock votes no.
Mrs. Lesko?
Mrs. Lesko. No.
Ms. McElvein. Mrs. Lesko votes no.
Mr. Reschenthaler?
Mr. Reschenthaler. No.
Ms. McElvein. Mr. Reschenthaler votes no.
Mr. Cline?
Mr. Cline. No.
Ms. McElvein. Mr. Cline votes no.
Mr. Armstrong?
Mr. Armstrong. No.
Ms. McElvein. Mr. Armstrong votes no.
Mr. Steube?
[No response.]
Chairman Nadler. Is there any member of the committee who
hasn't voted who wishes to vote?
Ms. Lofgren. Mr. Chairman?
Chairman Nadler. Ms. Lofgren.
Ms. McElvein. Ms. Lofgren?
Ms. Lofgren. Aye.
Ms. McElvein. Ms. Lofgren votes aye.
Chairman Nadler. Is there any other member who hasn't voted
who wishes to vote?
The clerk will report.
Ms. McElvein. Mr. Chairman, the ayes are 21, the noes are
8.
Chairman Nadler. In that case, the motion to table is
adopted.
We return to Ms. Bass.
Ms. Bass. Thank you, Mr. Chair.
Mr. Whitaker, during the time that you were the executive
director of the Foundation for Accountability and Civic Trust,
you recommended that--FACT called for ethics investigations
into, or filed complaints about, the following Democratic
politicians, officials, and organizations: the Democratic
National Committee, Hillary Clinton, John Kerry, Speaker
Pelosi, Representatives Ami Bera, Huffman, Lewis. In fact, the
organization actually called for an investigation into a member
of this committee, Representative Hank Johnson.
So that is a total of about 46 individuals or organizations
that over the time period when you were the executive director
of FACT you called for either ethics investigations or filed
complaints.
So, since you have joined the AG's office, I want to know
whether or not any investigations have been initiated into
those people and--well, just answer that. Yes or no, have there
been investigations initiated into the people that you
suggested be investigated during the time you were the ED of
FACT?
Mr. Whitaker. Congresswoman, I was the Executive Director
of the Foundation for Accountability and Civic Trust. We were
an independent, nonpartisan ethics watchdog group. We did file
ethics complaints against Members of both parties.
Ms. Bass. You filed ethics complaints against Republicans?
Can you tell me which Republicans you filed ethics complaints
against?
Mr. Whitaker. All of--again, you know, I am here for an
oversight hearing, and I cannot imagine----
Ms. Bass. Yes, you are, and so my questions are leading to
that. So can you answer that? Which Republicans did you file or
ask for ethics investigations of?
Mr. Whitaker. The nice thing about being an ethics watchdog
group is that FACT filed all of its complaints on its website,
and I would refer you to that.
Ms. Bass. I don't have time to look into the website. I am
asking you a question now. You were the Executive Director.
Which Republicans did you file?
Mr. Whitaker. Congresswoman, again, I--as I sit here today,
all I can do is refer you to the website----
Ms. Bass. Okay. So, let me just ask this. Since you have
been at the----
Mr. Whitaker [continuing]. Of the Foundation for
Accountability and Civic Trust.
Ms. Bass. Since you have been in the DOJ, have any
complaints been initiated against the 46 Democrats, either
individuals or organizations, in the time that you have been
the Acting AG?
Mr. Whitaker. Congresswoman, as I sit here today, I am not
aware of any, but, obviously, if I had recommended as the
executive director of FACT that someone be investigated, I
would--and my recommendation was adopted by the Department of
Justice, I am certain that I could not be involved in that
investigation.
Ms. Bass. You are certain, but you don't know whether you--
did you recuse yourself of any?
Mr. Whitaker. You know, recusal decisions--I think this is
important for everyone to understand, is recusal decisions are
made based on a matter----
Ms. Bass. Let me move on. I wanted to ask questions about
ethics guidance that you received in December. Did they
recommend that you recuse yourself from any involvement in the
criminal investigation into the World Patent Marketing, the
fraudulent patent promotion scam to which you still owe almost
$10,000 to the court? Did they provide an ethics opinion, or
did you not seek one related to the World Patent Marketing
matter?
Mr. Whitaker. Just to be clear, Congresswoman, who do you
mean by ``they''? Do you mean the ethics officials?
Ms. Bass. I am asking you, what guidance--did they
recommend that you recuse yourself? So that is a question to
you. Did they recommend that you recuse yourself from any
involvement in the criminal investigation into the World Patent
Marketing?
Mr. Whitaker. I am recused from the investigation into that
company.
Ms. Bass. What about any matter involving Hillary Clinton?
It has been well documented of your public calls for renewed
investigations into matters related to Mrs. Clinton.
Mr. Whitaker. Again, any investigations into former
Secretary Clinton, if they are open--confirmation or denial of
a recusal would suggest that there is or is not an
investigation regarding that person.
Ms. Bass. You know, I actually believe I have more time on
the clock since I was interrupted.
Chairman Nadler. I am informed we paused the time.
Ms. Bass. Okay.
Go ahead. Continue.
Mr. Whitaker. What I am saying is your inquiry about
whether or not I am recused from any matter concerning former
Secretary Clinton would, by its very nature, suggest that there
is an open matter regarding Secretary Clinton.
Any recusal decision that I would make would be based on
what the matter was, and we would go through the exact same
analysis that I went through in the case of the special
counsel's investigation.
Ms. Bass. Thank you.
Chairman Nadler. At the request of a number of people, the
Committee will stand in recess for 5 minutes.
[Recess.]
Chairman Nadler. The Committee will come to order. We will
resume questioning the witness under the 5-minute rule.
Mr. McClintock.
Mr. McClintock. Thank you, Mr. Chairman.
Mr. Whitaker, I am sure you would agree that the appearance
of favoritism or partisanship by law enforcement agencies is
absolutely deadly to a Nation that is founded upon the
principle of equal justice under law. If law enforcement
agencies are perceived to be biased or partisan, I think faith
in them and in our system of justice can quickly collapse. And
I am concerned about many alarming developments in the conduct
of the FBI and the Department of Justice that call its
impartiality into question.
I have been reading Gregg Jarrett's book on the Comey
investigation into the Clinton emails and the Uranium One deal
and the Mueller investigation into the Trump campaign. And in
it, Mr. Jarrett meticulously documents case after case of
political bias by the FBI, of illegal conduct at the highest
levels of the Department of Justice, destruction of evidence,
possible obstruction of justice by Mr. Comey himself, perjury
by top DOJ officials, prosecutorial misconduct and political
bias throughout Mueller's team.
Now, if the Russia investigation was initiated because of a
patently false dossier, why aren't we seeing an equally
aggressive investigation into these very meticulously
documented charges?
Mr. Whitaker. Congressman, as you mentioned at the
beginning, we do conduct our investigations independent of
political interference at the Department of Justice. The----
Mr. McClintock. That is not what----
Mr. Whitaker. Let me finish. Let me finish.
Mr. McClintock [continuing]. The preponderance of the
evidence is telling me from sources such as this one.
Mr. Whitaker. Well, and specifically related to the
document you just described, that is the subject of an
Inspector General's review, investigation, together with the
U.S. attorney from the District of Utah, that was appointed by
General Sessions to look into and review certain matters that
this Committee had asked be reviewed.
Mr. McClintock. Can we expect a full, complete, and
aggressive investigation of charges of wrongdoing by officials
in the FBI and the Department of Justice on these matters?
Mr. Whitaker. Congressman, I can assure you that any
allegation of misconduct by an employee of the Department of
Justice will be looked into thoroughly.
Mr. McClintock. Well, I think back to the Lois Lerner
scandal, and that never was addressed. Why should I be more
confident in your assurances now?
Mr. Whitaker. Congressman, I was a private citizen when the
Lois Lerner situation occurred. In fact, it occurred mostly
under the previous administration. I know that General Sessions
did a review of that matter before I was chief of staff. So I
really don't have any visibility, as I sit here today as Acting
Attorney General, as to what happened in that situation.
Mr. McClintock. Let me talk about the apparent double
standard and disproportionate show of force in cases like the
arrest of Roger Stone.
As I understand it, Stone's attorneys were in constant
contact with the Department of Justice. He is 66 years old,
doesn't own any firearms, and yet he was the subject of a pre-
dawn raid by 29 combat-armed officers.
And as Mr. Jordan has pointed out, CNN was obviously tipped
off to have cameras there. And, in fact, they arrived to set up
before the raid began. They were allowed to stay to film the
entire spectacle, despite the fact the public was kept out,
ostensibly because the FBI was so concerned of violence by this
66-year-old unarmed man in this pre-dawn raid.
You compare that to cases like Bob Menendez, who was
allowed to quietly turn himself in. The obvious explanation is
that this was a political act whose purpose was to terrify
anyone thinking of working in the Trump campaign in the future.
Again, it harkens back to the conduct of the IRS, terrifying
rank-and-file Tea Party members with tax audits because of
their political views.
How do you explain this, and what are you doing about it?
Mr. Whitaker. Congressman, this is a very serious situation
that you raise, but just know that the FBI makes arrests in a
manner most likely to ensure the safety of its agents and of
the person being arrested. The FBI must also consider----
Mr. McClintock. Well----
Mr. Whitaker [continuing]. The safety of the surrounding
community.
Mr. McClintock [continuing]. I mean, how do you explain the
discrepancy between the way Roger Stone was treated and the way
Bob Menendez was treated?
Mr. Whitaker. Again, the arrest team has to consider
numerous factors in making the judgment as to how to conduct
the operation.
Mr. McClintock. Do you at least understand the appearance
of impropriety that that projects to the country and undermines
the faith that the American people have in their justice system
and in its detachment from politics?
Mr. Whitaker. Congressman, I cannot provide the details in
this open hearing without revealing what factors the FBI
considers in those decisions. And, obviously, that information
could be used to put other FBI agents conducting other
operations in harm's way.
What I can assure you, Congressman, is that the FBI is
prepared to brief this matter, on the decisions that were made
in that particular arrest, in a closed session of this
committee.
Chairman Nadler. Time of the gentleman has expired.
Mr. Richmond?
Mr. Richmond. Thank you, Mr. Chairman.
Mr. Whitaker, the DOJ was created in 1957 under the Civil
Rights Act, correct?
Mr. Whitaker. Congressman, I believe----
Mr. Richmond. It was.
Mr. Whitaker [continuing]. Grant signed the Department of
Justice----
Mr. Richmond. No, no, no, no, no. It was. We are just not
going to do all this delay stuff. It was.
And it was created to protect against discrimination based
on race, color, sex, disability, religion, familial status, and
national origin. Wouldn't you agree?
Mr. Whitaker. You are talking about the Civil Rights
Division specifically?
Mr. Richmond. No. DOJ.
Mr. Whitaker. The Department of Justice was set up to----
Mr. Richmond. You know what? Never mind. Let's keep going.
You were Chief of Staff when Jeff Sessions testified in
this committee in 2017, correct? November.
Mr. Whitaker. I was. And, in fact, I sat right behind him--
--
Mr. Richmond. Right. That is exactly where I am going.
Because do you remember me asking him a question about
diversity in leadership in DOJ and the fact that they had no
African Americans in leadership at DOJ?
Do you have any African Americans at the top leadership in
the Department of Justice?
Mr. Whitaker. If the Senate confirms my friend Don
Washington to be head of the U.S. Marshals, which I believe is
pending on the floor of the Senate currently, then the answer
to that question would be yes.
But as we sit here today, I do not believe--but what do you
consider the leadership of the Department of Justice?
Mr. Richmond. The hierarchy with people responding to them,
head of a division, Deputy Attorney Generals. If you look at
the flowchart, the upper echelon.
So think about the image to me. DOJ created to protect
civil rights and advocate for all. We have had the last two
Attorney Generals come here; not one of them thought they could
find, or did find, an African American at DOJ to bring with
them. And you are charged with enforcing civil rights and
making people feel that you are fighting for equality.
You mentioned Charlottesville and charging the person with
30 counts, and I applaud you for that. Do you believe that in
Charlottesville there were good people on both sides?
Mr. Whitaker. Congressman, I think the act, while it is,
you know, again, part of an ongoing prosecution, I can tell
you----
Mr. Richmond. Let me just say this.
Mr. Whitaker [continuing]. The act was charged as a hate
crime----
Mr. Richmond. I agree with you, and I applaud you----
Mr. Whitaker [continuing]. Heinous act.
Mr. Richmond. I applaud you for that. But that is one
individual. I am asking you, in general, do you believe that
there were good people that were protesting and there were good
people that were anti-protesters? So I am talking about the
people----
Mr. Whitaker. Congressman----
Mr. Richmond [continuing]. Marching with lights--I mean,
the tiki torches and the chants. Do you think that some of them
were good people, is the short question.
Mr. Whitaker. Congressman, there is no place in a civil
society for hate, for white supremacy, or for white
nationalism.
Mr. Richmond. Thank you.
Also, out of the 115,000 employees that you have at DOJ,
are any of them transgender?
Mr. Whitaker. Congressman, as I sit here today, I don't
know the answer to that question. I could imagine that
generally, based on the way the population is distributed, that
we would. I would also be happy to get back to you with that
answer if those people identify that way.
Mr. Richmond. Would you have a problem with a transgender
person being from a clerk to an agent in the field for any of
your law enforcement agencies?
Mr. Whitaker. No.
Mr. Richmond. Thank you.
You mentioned also that voter fraud is of a serious
concern. How many voter fraud cases have you all initiated?
Mr. Whitaker. Congressman, as I mentioned in previous
questioning, I am happy to get those specific details back to
you. As I sit here today, I don't know off the top of my head.
Mr. Richmond. Is it a lot? Is it a few? I mean, we are
talking about a serious concern in the United States of
America. I would think we are talking over 100. Are we talking
less than 25? Just--but if you don't know a ballpark, I am fine
with that.
What about North Carolina? Because that is the only
congressional seat that has not been determined because of
widespread voter suppression in that race. Has the DOJ--have
they opened an investigation in that? And if they have, I guess
you can't talk about it.
Mr. Whitaker. Congressman----
Mr. Richmond. But are you looking at that?
Mr. Whitaker [continuing]. While I can't talk about open
investigations--and I appreciate your acknowledging that there
might be open investigations--I am very aware of what is
happening in North Carolina. We have previously done voting
rights cases in North Carolina. And we are watching that
situation very carefully.
Mr. Richmond. Well, I don't want to go over my time, and I
guess in the last 12 seconds I would just implore you to
implore which will now be the third Attorney General during
this term that after 2 years we should be doing better with
diversity in the Department of Justice. And I am talking, more
specifically, black and brown people and women. I applaud you
for having one woman with you, but the DOJ should look like the
country. And you all have been here twice, and it is not a fair
representation of what makes this country great.
With that, I yield back the balance of my time.
Chairman Nadler. I thank the gentleman.
Mr. Cline?
Oh, I am sorry. I am sorry.
Mrs. Lesko?
Mrs. Lesko. Thank you.
You know, I have to say that I am very disappointed in this
hearing. You know, I ran for Congress to get things done. And
at the beginning of this, you know, we were told that this is
about asking about DOJ oversight and some legitimate questions.
And here we are. It is nothing but character assassination,
harassment of our witness. And it is really disappointing.
At first, I was mad. I have to tell you, when this thing
started hours ago, I went outside, and a reporter asked me,
``What do you think of the hearing?'', and I said, ``It is a
joke.''
But now I am just sad. I am sad. Because we were on the
floor just a little while ago talking about how we were
honoring our late Representative Dingell and talking about
bipartisanship and how we need to get things done. And yet here
we are with a blatant political show that doesn't help
anything. I imagine if American people are watching this right
now, they would be shaking their heads, like, what are you
doing there? We need to work together to get things done.
And so that is my statement, but I do have a question for
Mr. Whitaker about DOJ oversight.
Following the New York Governor Cuomo's support of abortion
up to the moment of birth and Governor Northam of Virginia's
comments indicating support of an action which, in my opinion,
relates to infanticide, are you concerned about some of these
actions of late that implicate the Federal Partial-Birth
Abortion Act that criminalizes gruesome procedures? I mean, I
am getting really concerned that this is violating the law. And
has DOJ looked into this?
Mr. Whitaker. Yes, as an American citizen, I am very
concerned.
Mrs. Lesko. And can you also tell me--I read recently a
Wall Street Journal opinion piece. It was from 2018. And in
that, it said, in New York City, thousands of more black babies
are aborted than born alive each year. And my grandkids are
African American.
And so, you know, if there was a crime occurring in this
country that exceeded the number of deaths from cancer, heart
disease, AIDS, accidents combined, which abortions do, is that
something that the DOJ would get involved in and be concerned
about and try to stop?
Mr. Whitaker. Congresswoman, every life is valuable. And
while I can't wade into the political issue that you raise, the
members of this committee have a lot of power as to how we
value life and how we enforce the laws at the Department of
Justice.
And this is an issue that I know there is a lot of passion
about, and I appreciate your passion, and it is something that
we actually share together. And if you look at my statements
previous to joining the Department of Justice, especially
during the 2014 campaign for the United States Senate, I was
very outspoken in this regard.
But as I sit here as Acting Attorney General, I think it
would be inappropriate for me to comment more fulsomely on this
issue. But we are going to enforce the laws that Congress
passes, and we are going to hold those accountable that violate
the law.
Mrs. Lesko. Thank you.
I yield back my time.
Chairman Nadler. Thank you.
Mr. Jeffries?
Mr. Jeffries. Mr. Whitaker, thank you for your presence
here today.
This hearing is important because there are many Americans
throughout the country who are confused. I am confused. I
really am. We are all trying to figure out: Who are you, where
did you come from, and how the heck did you become the head of
the Department of Justice? So hopefully you can help me work
through this confusion.
Mr. Whitaker. All right, well, I mean, Congressman----
Mr. Jeffries. Mr. Whitaker, that was a statement, not a
question.
Mr. Whitaker. Okay.
Mr. Jeffries. I assume you know the difference.
The investigation into possible Trump-Russia collusion in
the 2016 election has resulted in 37 indictments. Is that
correct?
Mr. Whitaker. I believe that number is correct, but most of
those folks were Russian citizens.
Mr. Jeffries. Thirty-four individuals have been indicted,
true?
Mr. Whitaker. While I haven't counted those as I prepared
for my hearing preparation, I believe those are consistent with
the numbers as I know them.
Mr. Jeffries. Three corporate entities have been indicted,
correct?
Mr. Whitaker. I believe so. Correct.
Mr. Jeffries. The investigation has identified 199
different criminal acts. True?
Mr. Whitaker. I haven't counted every indictment, but that
sounds consistent with what I understand.
Mr. Jeffries. There have been seven guilty pleas, correct?
Mr. Whitaker. Yes, there have been seven guilty pleas.
Mr. Jeffries. Four people have already been sentenced to
prison. True?
Mr. Whitaker. I believe so, but, again, I do not have this
information in front of me. So, to the extent that I disagree
with you, it is because these are facts----
Mr. Jeffries. Understood. Thank you.
Trump's best friend, Roger Stone, was recently indicted for
lying to Congress in connection with his possible involvement
with WikiLeaks and Russian interference with the 2016 election,
correct?
Mr. Whitaker. Yes. And I mentioned Mr. Stone's indictment
and arrest.
Mr. Jeffries. Trump's Campaign Chairman, Paul Manafort,
pled guilty to conspiracy to defraud the United States. True?
Mr. Whitaker. Mr. Manafort did plead guilty, yes.
Mr. Jeffries. Trump's Deputy Campaign Manager, Rick Gates,
has pled guilty to lying to the FBI, correct?
Mr. Whitaker. While I don't have the indictment in front of
me, I have no reason to disagree with you.
Mr. Jeffries. Trump's former National Security Advisor,
Michael Flynn, has been guilty to lying to the FBI, correct?
Mr. Whitaker. That is a true fact, yes.
Mr. Jeffries. Trump's longtime personal attorney and
consigliere, Michael Cohen, pled guilty to lying to Congress
about the Trump real estate organization's Moscow project. Is
that true?
Mr. Whitaker. I believe that was one of the bases for his
plea agreement. I actually--there were several other reasons
that Mr. Cohen pled guilty.
Mr. Jeffries. Trump's campaign foreign policy advisor,
George Papadopoulos, has pled guilty to lying to Federal
investigators about his contacts with Russian agents during the
2016 campaign. True?
Mr. Whitaker. While I am sure there are many who would
disagree with the title that you put on Mr. Papadopoulos, it is
true that he has pled guilty, yes.
Mr. Jeffries. So, despite all of the evidence of criminal
wrongdoing that has been uncovered, do you still believe that
the Mueller investigation is a lynch mob?
Mr. Whitaker. Congressman, can you tell me specifically
where I said that?
Mr. Jeffries. I would be happy to. So, in a tweet that you
issued on August 6 of 2017, you made reference to ``Note to
Trump's lawyer: Do not cooperate with Mueller's lynch mob.'' Do
you recall that?
Mr. Whitaker. I recall that I said--that I retweeted an
article that was titled that. I did not necessarily agree with
that position, but my point was that it was an interesting read
for those that want to understand the situation.
Mr. Jeffries. Okay. Reclaiming my time.
Manafort, Gates, Flynn, Cohen, Papadopoulos, and Stone are
all in deep trouble. One by one, all of the President's men are
going down in flames. It is often said, where there is smoke,
there is fire. There is a lot of smoke emanating from 1600
Pennsylvania Avenue right now.
Yet you decided not to recuse yourself. Is that right?
Mr. Whitaker. Congressman, the decision to recuse was my
decision to make. I looked at all of the information, I
consulted with many people that I have discussed today, and I
determined that it was not necessary for me to recuse.
Mr. Jeffries. And Donald Trump considered the Sessions
recusal to be a betrayal. Is that right?
Mr. Whitaker. Congressman, I have no idea, as I sit here
today, what the President believed about General Sessions'
recusal.
Mr. Jeffries. Okay, so let's be clear. The investigation
into Russia's attack on our democracy is not a witch hunt, it
is not a fishing expedition, it is not a hoax, it is not a
lynch mob. It is a national security imperative. The fact that
people suggest otherwise comes dangerously close to providing
aid and comfort to the enemy.
In your final week, keep your hands off the Mueller
investigation.
I yield back.
Chairman Nadler. I thank the gentleman.
I now recognize the gentleman from Virginia, Mr. Cline.
Mr. Cline. Thank you, Mr. Chairman.
Thank you, Mr. Acting Attorney General.
I was hopeful that we would get into some oversight over
the array of areas of the Department of Justice that are so
critical and so important to addressing the problems that are
facing my community. Drugs, crime--all of these issues are of
top concern to my constituents.
And one of the most important things that I hear about when
I get back to my district is, are you going to keep the
government operating? Can you reach an agreement on immigration
issues?
So when we talk about immigration, I can ask you a couple
of questions that would probably help get to an immigration
agreement.
The backlog of pending cases in immigration courts
nationwide have been growing exponentially since 2008, from
fewer than 200,000 cases in 2008 to more than 800,000. And
Border Patrol is currently apprehending almost 50,000 aliens
each month, a certain percentage of which ends up in that same
pending-case backlog.
And in the face of this backlog, what steps is DOJ taking
to ensure that its immigration judges can efficiently and
effectively adjudicate cases and reduce this backlog of pending
cases in a fair and efficient manner?
Mr. Whitaker. Thank you, Congressman. This is an important
issue to the Department of Justice, and our immigration judges
work hard every day to adjudicate those cases. But, quite
frankly, the number of immigration judges we have have been
overwhelmed by the number of asylum seekers.
Over 80 percent, and really over 90 percent, of those that
are encountered at the border and detained and arrested claim
some form of asylum. Ultimately, that causes those folks to be
put into the immigration court system and then requires that a
hearing be held by an immigration judge.
And, meanwhile, most of these folks, those 800,000 that are
pending, are not part of the detained docket; they are part of
the released docket. And those cases take longer, the ones that
are not detained, the nondetained docket. And they have caused
since 2008 that number to go dramatically up.
What we have done about that situation is General Sessions
and I have issued Attorney General orders changing some of the
specifics as to how those cases are adjudicated. And, in
addition, we have, together with the help of Congress--which
you have authorized and funded more immigration judges--we have
put a dramatic number of more judges especially to the areas
where it is needed, which is oftentimes at the border.
Mr. Cline. So you have also put in place an additional
performance metric to gauge the performance of judges working
to complete cases and reduce the backlog. Are those working?
And you have gotten pushback from groups who are concerned
that they amount to case quotas. And if they are working, are
you aware of any organization in which productivity of its
workers isn't assessed as one part of a multidimensional
performance review?
Mr. Whitaker. Yes. In fact, government-wide, where there
are administrative law judges, similar to our immigration
judges, there are typically performance metrics that are in
place to not only evaluate their productivity but also to
budget and manage that workforce.
Mr. Cline. And what are you doing to ensure that
continuances in immigration cases are not abused and are
granted solely for good cause?
Mr. Whitaker. We issued an Attorney General order which set
the standard, which had been different based on what the
immigration appeals board, which is an internal--the Board of
Immigration Appeals, which is an internal DOJ body that the
Attorney General sits over. We have passed rules and
regulations and a new standard for issuing those continuances
for good cause, as you mentioned.
Mr. Cline. All right. Thank you.
I yield back.
Chairman Nadler. I thank the gentleman.
I will now yield to the gentleman from Rhode Island for the
purpose of a unanimous consent request.
Mr. Cicilline. Thank you, Mr. Chairman.
I would ask unanimous consent that the following articles
be placed in the record.
The first is an article entitled ``Exclusive: Trump
Loyalist Matthew Whitaker Was Counseling the White House on
Investigating Clinton.''
The second article, ``Sessions Replacement Matthew Whitaker
Called Mueller's Appointment `Ridiculous' and `a Little Fishy.'
''
The third article, All the Times Robert Mueller's New Boss
Railed Against the Russia Probe.'' ``Trump's Pick to Replace
Jeff Sessions Once Said Mueller Investigation Risked Becoming a
`Witch Hunt.' ''
And, finally, an article entitled ``Trump's New Acting
Attorney General Once Mused About Defunding Robert Mueller.''
Chairman Nadler. Without objection, these documents will be
placed in the record.
[The information follows:]
MR. CICILLINE FOR THE OFFICIAL RECORD
=======================================================================
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Chairman Nadler. I now recognize the gentleman for 5
minutes.
Mr. Cicilline. Thank you, Mr. Chairman.
Mr. Whitaker, I am going to be really straight with you up
front. I am going to cut you off if you make long speeches. We
have very limited time. You do not need to thank me for asking
the question or compliment me that it is a good one. I will
assume they are all good questions and you are grateful.
One, you were briefed by the special counsel. You have
acknowledged that. Did you share that information with any
members of your staff, the information you learned in that
briefing from the special counsel or his team?
Mr. Whitaker. Congressman, as I previously testified, there
was one other individual in that briefing with----
Mr. Cicilline. And who was that individual?
Mr. Whitaker. It is the U.S. attorney from the Eastern
District of California who I brought on----
Mr. Cicilline. What is the name of the individual, Mr.
Whitaker?
Mr. Whitaker. His name is Gregg Scott.
Mr. Cicilline. Did you communicate any information you
learned in those briefings to other members of your staff?
Mr. Whitaker. I don't believe so, no.
Mr. Cicilline. Do you know whether any information that you
learned in those briefings were communicated to anyone at the
White House?
Mr. Whitaker. As I mentioned previously, Congressman, we
have a kept a very close----
Mr. Cicilline. Mr. Whitaker, it is a ``yes'' or a ``no.''
Do you know whether it was communicated to anybody at the White
House?
Mr. Whitaker. As I sit here today? I don't know whether it
was communicated, but I do not believe Mr. Scott or I----
Mr. Cicilline. Did you put into place any restrictions or
limitations or instructions to your staff not to share this
information with anyone at the White House or the President's
legal team?
Mr. Whitaker. Yes, together with the general standard that
investigative information and materials are need-to-know and
law enforcement----
Mr. Cicilline. Thank you, Mr. Whitaker.
Did the President lash out at you after Michael Cohen's
guilty plea for lying to Congress about a Trump Organization
project to build a tower in Moscow?
Mr. Whitaker. The President specifically tweeted that he
had not lashed out.
Mr. Cicilline. I am asking you, Mr. Whitaker, did the
President lash out at you? I am not asking what he tweeted. I
don't have a lot of confidence in the veracity of his tweets. I
am asking you under oath.
Mr. Whitaker. Congressman, that is based on an
unsubstantiated----
Mr. Cicilline. Sir, answer the question ``yes''' or ``no.''
Did the President lash out to you about Mr. Cohen's guilty
plea?
Mr. Whitaker. No, he did not.
Mr. Cicilline. And did anyone from the White House or
anyone on the President's behalf lash out at you?
Mr. Whitaker. No.
Mr. Cicilline. Mr. Whitaker, did the President lash out to
you on or about December 8th, 2018, to discuss a case before
the Southern District of New York where he was identified as
Individual One?
Mr. Whitaker. No, Congressman.
Mr. Cicilline. Did anyone on the President's behalf, either
inside the White House or outside the White House, contact you
to lash out or express dissatisfaction?
Mr. Whitaker. Did they contact me to lash out?
Mr. Cicilline. Yes. Did they reach out to you in some way
to express dissatisfaction?
Mr. Whitaker. No.
Mr. Cicilline. Okay.
Did you ever share the questions that Mr. Nadler forwarded
to you prior to this hearing with anyone at the White House or
the President's legal counsel?
Mr. Whitaker. Congressman, I did not.
Mr. Cicilline. So when you claimed earlier that you were
going to invoke a privilege, you were invoking a privilege
about questions the President hasn't even seen.
Mr. Whitaker. Congressman, to be clear, I am not invoking
any privilege.
Mr. Cicilline. Well, you said earlier in your written
testimony that you would not answer questions about your
conversations with the President, did you not?
Mr. Whitaker. Yes, I did.
Mr. Cicilline. So you are not sitting here today saying the
President has instructed you not to answer a question, correct?
Mr. Whitaker. I am not sitting here today saying that the
President has instructed----
Mr. Cicilline. So then you are prepared to answer all these
questions?
Mr. Whitaker. Congressman, I think I was pretty explicit in
my opening statement----
Mr. Cicilline. So have you spoken to the President, Mr.
Whitaker, about the Mueller investigation?
Mr. Whitaker. Congressman, as I previously testified, I did
not talk to the President about the Mueller investigation.
Mr. Cicilline. Have you ever spoken to the President or
parts of his legal team about information that you learned in
your capacity as Acting Attorney General related to the Mueller
investigation or any other criminal investigation involving the
President?
Mr. Whitaker. Congressman, while I have specifically been
saying that I am not going to comment about my conversations
with the President or his senior staff, I have also been very
clear that the President has not instructed me to do anything--
--
Mr. Cicilline. That wasn't my question. My question is,
have you had conversations about what you learned? That is a
``yes'' or a ``no.''
Mr. Whitaker. Congressman, I have--I spend all day every
day talking----
Mr. Cicilline. Mr. Whitaker, my question is very specific.
Have you spoken to the President or his legal team about what
you have learned in the Mueller investigation or the related
criminal investigations that may involve the President? Yes or
no?
Mr. Whitaker. Congressman, as I specifically answered
earlier to a question----
Mr. Cicilline. Mr. Whitaker, you are clearly not going to
answer the question, so I am going to move on.
You know Professor John Barrett, correct?
Well, anyway, this is a law school professor who tweeted
that you told him in June of 2017 that you were flying out from
Iowa to New York City to be on CNN regularly because you were
hoping to be noticed as a Trump defender and, through that, to
get a Trump judicial appointment back in Iowa.
You then went on to describe the Mueller appointment of the
special counsel as ridiculous and a little fishy, that Mueller
investigating Trump's finances would be going too far, that
there was no criminal obstruction of justice charge to be had
against President Trump, that there was no collusion with the
Russians in the Trump campaign, that any candidate would have
taken the same meeting as Donald Trump Jr. with the Russian
lawyer; and, finally, that a replacement for Sessions could
have reduced Mueller's budget so low that his investigation
grinds to almost a halt.
You said all those things, and they are all in print. And
it answers Mr. Deutch's question. The American people wonder,
just how is it that Mr. Whitaker becomes the Acting Attorney
General of the United States in violation of existing statutes?
Was he put there for a particular purpose?
That wasn't a question. It is a statement.
I yield back.
Chairman Nadler. I observe that the time of the gentleman
has expired. Who is next?
Mr. Reschenthaler is recognized.
Mr. Reschenthaler. Thank you, Mr. Chairman.
And thank you, Mr. Whitaker, for being here today.
I just want to quickly reference the letter that was sent
to you from the chair on January 9th. In this letter, in the
Chairman's own words, it said that this committee was here to,
quote/unquote, ``conduct oversight of the Department.''
In this letter, there are also important other topics that
were supposed to be discussed here today, like immigration, gun
violence, the Violence Against Women Act, ObamaCare, national
security. And that is not even the complete list. I know you
read the letter.
I was excited to be here. I thought these were critically
important issues that affected constituents in my district and
millions of Americans. And, frankly, a lot of these issues are
life-and-death.
So I am really confused as I sit here today in this hearing
with my Democrat colleagues focused solely on one topic, and
that is the Mueller investigation. I really hoped that my
friends across the aisle would have used this opportunity for
more bipartisanship and less showmanship, but clearly I was
wrong.
With that said, I want to get to some of the important
topics that we were supposed to have focused on today. One of
those is sanctuary cities.
In my home State of Pennsylvania, the sanctuary city of
Philadelphia has released at least three child molesters back
onto the streets. And everyone knows the tragic story of 32-
year-old Kate Steinle, who was murdered by an illegal immigrant
who was convicted of seven felonies and deported five times.
Now, those child molesters in Philadelphia, the murderer of
Kate Steinle, they were all released because some city wanted
to score cheap political points. And that is why I am focused
on ending sanctuary cities.
Mr. Whitaker, what steps is the DOJ taking to end the
dangerous practice of sanctuary cities?
Mr. Whitaker. Well, first of all, we are ending taxpayer-
funded grants to sanctuary jurisdictions.
Attorney General Sessions announced new conditions for our
Byrne/JAG grants that will increase information-sharing between
Federal, State, and local law enforcement to ensure public
safety.
I don't know if the Congressman knows this, but one of the
challenges we have is, in a sanctuary jurisdiction, jails will
release convicted criminals back into the community instead of
informing Immigration and Customs Enforcement that the person
is available to be picked up at the jail.
It is an incredibly dangerous situation to make an ICE
officer go into a community to try to arrest somebody that is
here illegally and has been convicted of a crime, oftentimes
crimes like you mentioned. And I cannot imagine a situation
where a mayor or a city council or a county executive or
otherwise would put law enforcement officers in harm's way.
It is, quite frankly, bad policy, and we are going to work
very hard to end it. And one of the ways we are ending it is by
taking away the resources to those jurisdictions that have that
policy.
Mr. Reschenthaler. Thank you, Mr. Whitaker.
Mr. Whitaker, I have one more question regarding the opioid
crisis. This crisis is striking our country hard, particularly
southwestern Pennsylvania. Data from 2017 shows that it is more
likely now that someone is going to die of a drug overdose than
a car crash. My district has been hit really hard. In
particular, Fayette County saw an 88-percent increase in
overdose deaths from 2015 to 2017.
What steps has the DOJ taken to address this shift? And do
you think that a lot of the problems that we are seeing in
these stats comes from a porous southern border?
Mr. Whitaker. I will address your second question first. I
do believe that most illegal opioids, like fentanyl--
nonprescription illegal opioids, like fentanyl, heroin, and
their derivatives, are imported through our southern border.
Some, not a majority, but some are also imported via direct
mail--for example, an order off the dark net.
I went through a list of things that the Department of
Justice is doing to combat this opioid epidemic. I hope that
this committee, while, you know, it is something I was prepared
and wanted to talk about--and I appreciate the question--will
look at other ways that we can put resources into the opioid
crisis.
Seventy-thousand people, as you mentioned, have died of
drug overdoses. A majority of those are from some form of
opioids.
And we also, quite frankly--and I mentioned my trip to
China last August. We have to work together with the Chinese
Government to reduce the inflow of fentanyl. And we also have
to--you know, we have emergency scheduled right now the
fentanyl analogs, but we need an act of Congress--and I hope
that we can get that--to make that permanent, that these
fentanyl derivatives and creative chemists that change the
chemical makeup of fentanyl do not continue to try to evolve
their drug to avoid our regulation.
Mr. Reschenthaler. Thank you, Mr. Whitaker.
I yield back my time.
Chairman Nadler. Mr. Swalwell is recognized.
Mr. Swalwell. Thank you.
Mr. Whitaker, does your watchdog organization ever receive
contributions from foreign donors?
Mr. Collins. Mr. Chairman, point of order.
Mr. Swalwell. I would ask to stop the clock.
Chairman Nadler. The gentleman will suspend.
The gentleman will state his point of order.
Mr. Collins. My point of order--and I am going to go back
to this, and, again, undoubtedly, that majority does not care,
but this is outside the scope of this hearing. This was not
while he was employed here. And whether he outside had donors
or not during the time he was not employed, making no
connection either way, is not inside the scope of this hearing.
And that is not the call of this committee.
Now, you know, look, I am outgunned over here. I have no
votes. This is not part of the call of the hearing.
Mr. Swalwell, there are plenty of things to do.
And, Mr. Cicilline, you----
Mr. Cicilline. Will the gentleman yield?
Mr. Swalwell. Mr. Collins, if you want to sit down there
with his lawyers, you can go sit down there----
Chairman Nadler. The gentleman----
Mr. Swalwell [continuing]. But you are not his lawyer.
Chairman Nadler. The gentleman will suspend.
Mr. Collins. And neither are you, Mr. Swalwell.
Chairman Nadler. The gentleman will----
Mr. Collins. And if you have any questions that are
actually part of this, instead of running for President, damn
near we could get this done.
Mr. Swalwell. You can sit down there. There is room.
Chairman Nadler. Both gentlemen will suspend.
Mr. Cicilline. Mr. Chairman?
Chairman Nadler. The gentleman has stated a point of order.
The Chair will rule the point of order is not well-taken. The
scope of people's questioning, we afford a wide latitude. And
we don't even know where it is going at this point. The
gentleman--so the gentleman's point of order is not well-taken.
The gentleman will resume.
Mr. Collins. Appeal the ruling of the chair.
Ms. Jackson Lee. Move to table.
Chairman Nadler. The gentleman appealed the Ruling of the
Chair. The gentlelady moved to table. A move to table is not
debatable.
The clerk will call the roll on the motion to table.
Staff. Voice vote.
Mr. Collins. Mr. Chairman?
Chairman Nadler. Oh, let's--call the roll--all in favor of
tabling the resolution--I am sorry. All in favor of tabling the
appeal of the ruling of the chair will say aye.
Nay?
The ayes have it. The appeal of the--the motion is tabled.
The gentleman will continue.
Mr. Swalwell. Mr. Whitaker, does your organization have
foreign contributions?
Mr. Whitaker. Just to be clear, are you talking about----
Mr. Swalwell. Yes or no?
Mr. Whitaker. What do you mean by my organization?
Mr. Swalwell. You led an organization called FACT. Did it
receive foreign contributions while you were there?
Mr. Whitaker. I don't actually know the answer to that. I
do not believe, as I sit here today, that it did. But our main
donor was a group that was a U.S. entity.
Mr. Swalwell. Did you interview with Don McGahn in July
2017 to have the job that Ty Cobb would ultimately get?
Mr. Whitaker. I ultimately did not meet with Mr. McGahn,
so--I met with his staff.
Mr. Swalwell. Did you talk with him on the phone?
Mr. Whitaker. You know, we actually never did end up
talking on the phone either.
Mr. Swalwell. Who do you meet with on his staff?
Mr. Whitaker. I talked to Annie Donaldson from his staff,
who was his Chief of Staff at the time.
Mr. Swalwell. And when you talked to Mr. McGahn's Chief of
Staff, did you express in that conversation your prior views
about the Mueller investigation?
Mr. Whitaker. No, I did not. In fact----
Mr. Swalwell. Was it brought up by the Chief of Staff?
Mr. Whitaker. In fact, at the time, Congressman, everyone
at the White House did not want to talk about the special
counsel's investigation----
Mr. Swalwell. But you were interviewing for a job that
would respond to the special counsel's investigation. Is that
right?
Mr. Whitaker. At the time I was interviewing for the
position that was ultimately occupied by Ty Cobb----
Mr. Swalwell. But I want to understand how you could
interview for a job that would respond to the special counsel
investigation but you were not to talk at all about the special
counsel investigation. How would they know----
Mr. Whitaker. Well, I said we didn't talk about it. They
did not want to talk about the investigation because the folks
were dealing with that investigation. And that is why they
wanted to bring in someone that had been unrelated to the
investigation and the campaign----
Mr. Swalwell. Did they talk to you about your prior
opinions about the Mueller investigation?
Mr. Whitaker. No, we did not discuss it.
Mr. Swalwell. Has there been----
Mr. Whitaker. We discussed about my background as a United
States attorney and my legal practice.
Mr. Swalwell. Has there been discussion at the Department
about keeping the Mueller report from going to Congress?
Mr. Whitaker. No. In fact, we are continuing to follow the
special counsel regulations as it relates to the report. We
haven't received the report, but----
Mr. Swalwell. Has there been a draft opinion about keeping
it from going to Congress?
Mr. Whitaker. You know, Congressman, I am not going to talk
about the, kind of, ongoing investigation that is the special
counsel. I will share with you that----
Mr. Swalwell. Mr. Whitaker, did Donald Trump ask you if you
would recuse before you became Acting Attorney General? If that
question came up, did he ask you what you would do?
Mr. Whitaker. Congressman, I have already answered that
question in my opening statement.
Mr. Swalwell. Do you believe Attorney General Sessions
should have recused?
Mr. Whitaker. As I mentioned in my answers previously, the
recusal decision----
Mr. Swalwell. No. Do you believe, yes or no, that he should
have recused?
Mr. Whitaker. I actually, as I sit here today, I do not
have an opinion. I believe he determined it was the right
decision for him to make, and so I agree that he made the right
decision for him.
Mr. Swalwell. Have there been any discussions at the
Department about pardons for Paul Manafort, Roger Stone,
Michael Flynn, or Michael Cohen?
Mr. Whitaker. Congressman, we have a very well-worn system
for----
Mr. Swalwell. That the President doesn't follow. But have
there been discussions about pardons for those individuals that
you are aware of, yes or no?
Mr. Whitaker. Congressman, as I have been Acting Attorney
General, I have not been involved in any discussions of any
pardons, even--and including the ones you are discussing.
Mr. Swalwell. You made a public statement last week that
the investigation was nearly complete. Is that your
characterization, or is that Bob Mueller's characterization?
Mr. Whitaker. Congressman, that position that I mentioned
last week in a press conference was my position as Acting
Attorney General.
Mr. Swalwell. Would Bob Mueller, if sitting before us right
now, agree with you?
Mr. Whitaker. You know, Congressman, Bob Mueller is going
to finish his investigation when he wants to finish his
investigation.
Mr. Swalwell. Is Mr. Mueller honest?
Mr. Whitaker. Congressman, I have been on the record about
my respect for Bob Mueller and his ability to conduct this
investigation.
Mr. Swalwell. Do you believe he is honest, yes or no?
Mr. Whitaker. I have no reason to believe he is not honest,
so, yes, I do believe he is honest.
Mr. Swalwell. Do you believe he is conflicted, yes or no?
Mr. Whitaker. Congressman, as I mentioned regarding
recusals, you know, sort of, the conflict analysis is for the
individual lawyer to make once a matter is before them. And I
am sure that whether it is Bob Mueller, whether it is Rod
Rosenstein----
Mr. Swalwell. But the President has called him conflicted.
Mr. Whitaker [continuing]. Or anybody else at the
Department of Justice----
Mr. Swalwell. The President has called him conflicted, and
you oversee the investigation. Do you believe that Mr. Mueller
is conflicted?
Mr. Whitaker. Congressman, as Acting Attorney General, I
have followed regular order at the Department of Justice, and I
have expected that the lawyers and the support staff and the
agents that work for me follow regular order. And as I sit here
today, I don't have any reason to believe that.
Mr. Swalwell. So you don't believe--you believe he is
honest; you don't believe he is conflicted. Can you say right
now, ``Mr. President, Bob Mueller is honest and not
conflicted''?
Mr. Whitaker. Congressman, I am not a puppet to repeat what
you are saying. I----
Mr. Swalwell. Are you able to say it, or do you not believe
it?
Mr. Whitaker. I have answered your question as to what I
believe about the special counsel. I stand by my prior
statement.
Mr. Swalwell. Can you say it to the President, though?
Mr. Whitaker. Congressman, I am not here to be a puppet to
repeat terms and words that you say that I should say.
Mr. Swalwell. Can you say that to the President?
Mr. Collins. Regular order.
Mr. Swalwell. Mr. Chair, he hasn't answered that question.
Chairman Nadler. Sorry?
Mr. Swalwell. He has not answered the question, if he would
say that Mr. Mueller is honest and not conflicted to the
President.
Chairman Nadler. The time of the gentleman has expired.
The witness may answer the question.
Mr. Whitaker. I don't have anything further to add. I think
I have answered the Congressman's question.
Chairman Nadler. That is a question for observers.
The gentleman from North Dakota, Mr. Armstrong.
Mr. Armstrong. Mr. Whitaker, you have obviously been Acting
Attorney General during some fairly interesting times, and we
have heard a lot about that today. But I also want to commend
the Department of Justice, the FBI, the White House, and all
other law enforcement who was involved in the FIRST STEP Act.
This is a tremendous shift not just for the Department of
Justice, not just for Republicans, and not just for Democrats.
And it is the way government is supposed to work. It is
supposed to show redemption; tough on traffickers, organized
crime; and also work towards a smarter way to deliver criminal
justice, particularly with addiction-related crimes.
So my only hope is that, because it is called the FIRST
STEP Act, there will be a second step. And if you ever--
unfortunately, I have some other questions for you, so any time
on your way out, if you have any advice on something Congress
can do to continue this momentum, I would be very, very
appreciative.
Mr. Whitaker. Well, you know, Congressman, I was involved
on behalf of the Department of Justice in the FIRST STEP Act.
And I just want to commend everyone on this committee that
worked on the FIRST STEP Act. To successfully get that passed
and to get it through both the House and the Senate, I actually
know how difficult that is.
I think one of the things that we could use your help on is
to make sure you fund the FIRST STEP Act and you have requested
the Department of Justice to do. You know, we continue to
implement the FIRST STEP Act consistent with the law that you
passed. And, in fact, just last night, we sent out guidance to
our U.S. attorneys offices on how to implement the FIRST STEP
Act. And I know that the Bureau of Prisons, as well, is
implementing the act.
Mr. Armstrong. And I would hope to work towards having a
Federal-level pretrial release program to be available to every
State and county courthouse across the country. Because one of
the great ironies I have always found about your pretrial
release program is it is incredibly effective and then you get
a 10-year minimum mandatory.
So the pretrial release program at the Department of
Justice and U.S. attorneys offices across this country is
phenomenal, and they deserve to be credited for that.
Mr. Whitaker. And as a former United States attorney for
5\1/2\ years in Des Moines, Iowa, I understand uniquely how
pretrial release works. And so, you know, we would be
interested in your proposal, and we will look at that and work
with you carefully to try to implement something like that.
Mr. Armstrong. Now, in our role as oversight, I do actually
have a question about something that has come up in the past
and that, given the nature of the testimony today, very
possibly could come up in the future.
And I think, often, when we have names like Clinton and
Comey and Rosenstein and Trump and Mueller and Russia, we
forget that the law is the law. You testified earlier to
Representative Jordan that we prosecute crimes, not people. And
I think, often, across this country, we think laws apply
differently to people depending on their status.
And one of the areas where this came up--and it was
something that concerned me before I was involved in this--is
when we started talking about the difference between gross
negligence and intent. And it was in a very particular statute,
and we were dealing with it, and there were members of the FBI
and the DOJ that were concerned about vagueness.
But as far as I understand, in the Federal Code,
particularly the Federal Criminal Code, gross negligence has
the same definition approximately everywhere in the Criminal
Code, right?
Mr. Whitaker. In my experience, your statement is generally
correct, yes.
Mr. Armstrong. So, if gross negligence would be vague under
one particular statute of the Criminal Code, then we should be
concerned that it is vague under every other criminal--other
section of the Criminal Code.
Mr. Whitaker. That is correct. And there is, for example,
jury instructions that would, say, inform a jury as to how to
evaluate a gross negligence standard to convict someone of a
crime.
Mr. Armstrong. And assuming that it wasn't political in
nature as to why gross negligence wasn't looked forward in any
particular case has--under your leadership under the DOJ, has
anybody reviewed this, looked at it, and made any proposals to
Congress particularly regarding whether or not we need to
tighten up gross negligence language, not just let's say in the
Espionage Act but in any section of the Federal Criminal Code?
Mr. Whitaker. As I sit here right now, I don't know the
answer to your question, but I would be happy to get back to
you on that.
Mr. Armstrong. I would appreciate that. And just, again,
under normal course of order, I am assuming it works the same
as everywhere. Law enforcement agents--and I know a lot of FBI
agents do have law degrees, but FBI agents investigate crimes,
and then it goes up the food chain to the U.S. attorney's
office.
Mr. Whitaker. Remember, you need a predication to even open
investigation, and that is the step that I think a lot of
people forget. I mean, there are many steps along the way and
when you conduct a criminal investigation--first, you have to
predicate the investigation. Then it is investigated by the
special agents that investigate the crimes. Typically an AUSA
works with them to get, you know, search warrants and the like,
and then, ultimately, a case is developed and presented to a
grand jury, and that is charged. So, I mean, that is, you
know--and then, again, there is a discovery process and a trial
process.
It is very well worn, and to, you know, go back to
something you mentioned earlier, Congressman, all of that is
done at the Department of Justice without interference,
improper interference or interference based on a political
nature.
Mr. Armstrong. Well, I am just concerned moving forward
that we have this--I mean, everybody knows--and obviously this
is hypertension and hyperpolitical, but I am very concerned
moving forward that everybody knows what the rules of the game
are as far as statutes are and that the law is actually applied
in the way the law should be applied because I do believe in
the past it has not been, and obviously this is continuing to
go on. This hearing today is noticeable of that. So, on your
way out, maybe it is the best time to deal with some of those
things because sometimes that is when we have the courage to do
it, but this could very much come up again in the future.
Chairman Nadler. The time of the gentleman has expired. The
committee will stand in recess for 2 minutes. I would ask that
the members remain here if they can.
[Recess.]
Chairman Nadler. The hearing will come to order, and we
will resume questioning under the 5-minute rule with Mr. Lieu.
Mr. Lieu. Thank you Chairman Nadler.
Mr. Whitaker, thank you for being here today. Last year,
FBI Director Christopher Wray came before this committee and
stated that no one is above the law. You would agree with that
statement, wouldn't you?
Mr. Whitaker. I would, and, in fact, there is a Time
Magazine that is----
Mr. Lieu. Thank you, we are good.
Mr. Whitaker [continuing]. Framed in my office that says
the same thing.
Mr. Lieu. Thank you. You don't have to keep saying, but
thank you. You haven't taken any sort of a loyalty oath to
Donald Trump, have you?
Mr. Whitaker. No, I have not taken a loyalty oath.
Mr. Lieu. Have you signed any nondisclosure agreement with
the White House or Donald Trump?
Mr. Whitaker. We signed our ethics pledge, which was the
most robust ethics pledge, but I haven't signed any other
documents other than the normal DOJ employment documents.
Mr. Lieu. And there was no nondisclosure agreement with
anything you signed, correct?
Mr. Whitaker. I don't believe so, but I don't know what the
standard DOJ forms are.
Mr. Lieu. In fact, the only thing you really had to do
before you could assume your current position was take an oath
to the United States Constitution. Isn't that right?
Mr. Whitaker. I probably took the oath for the second time
when I came back to the Department of Justice.
Mr. Lieu. Thank you. So let me ask you a series of
questions about the U.S. Constitution that you can easily
answer yes or no. And the first question is: There is no
sentence in the Constitution that states that the President's
National Security Advisor can't be indicted, correct?
Mr. Whitaker. Congressman, as is consistent with the
practice of the Department of Justice, we investigate crimes,
and we prosecute individuals that commit crimes.
Mr. Lieu. I am just asking a simple question. I will go on.
There is no sentence in the U.S. Constitution that states the
President's former Campaign Chairman can't be indicted,
correct?
Mr. Whitaker. Same answer to your previous question.
Mr. Lieu. Does that sentence exist in the Constitution?
Mr. Whitaker. Of course it does, Congressman. You know
that, and I know that.
Mr. Lieu. Right. Because Paul Manafort was indicted. There
is no sentence in the Constitution that says the President's
children can't be indicted, correct?
Mr. Whitaker. Congressman, you know, you can give me the
whole list, I mean, you know, sort of----
Mr. Lieu. No, I will give you three more.
Mr. Whitaker. Okay.
Mr. Lieu. Yes. Right?
Mr. Whitaker. There is no sentence in the United States
Constitution that says that the President's children cannot be
indicted.
Mr. Lieu. There is no sentence in the U.S. Constitution
that says the Vice President can't be indicted, correct?
Mr. Whitaker. That is correct.
Mr. Lieu. Right. There is no sentence in the U.S.
Constitution--this is my last one--there is no sentence in the
U.S. Constitution that says the sitting President of the United
States cannot be indicted, correct?
Mr. Whitaker. Congressman, because that is the opinion of
the Office of the Legal Counsel at the Department of Justice--
--
Mr. Lieu. I don't actually care what the DOJ policy is. I
am asking about the Constitution.
Mr. Whitaker [continuing]. Consistent with the practices of
the Department of Justice for years.
Mr. Lieu. Mr. Whitaker, it is a yes-or-no question. Mr.
Whitaker----
Mr. Whitaker. Under both administrations.
Mr. Lieu. After this hearing, you can spin the Constitution
all you want. As you sit here today----
Mr. Whitaker. I am not spinning the Constitution.
Mr. Lieu. You just have to answer a factual yes-or-no
question. I am going make it even easier for you: There is no
sentence in the Constitution that says, quote, ``The sitting
President of the United States cannot be indicted,'' unquote,
correct?
Mr. Whitaker. Congressman----
Mr. Lieu. It is a yes or no?
Mr. Whitaker. You know----
Mr. Lieu. I have it right here. Is that----
Mr. Whitaker. I have a copy myself, Congressman.
Mr. Lieu. Is that sentence in this Constitution? It is not,
correct? I am not trying to trick you. It is not a hard
question.
Mr. Whitaker. Again----
Mr. Lieu. It is a founding document of our Federal
Government. Is that sentence in this Constitution?
Mr. Whitaker. Congressman, you and I both know that the way
that the OLC opinion is written is that----
Mr. Lieu. I am asking about the Constitution----
Mr. Whitaker [continuing]. Lays out a very clear question
as to why the President of the United States, sitting President
of the United States, cannot be indicted.
Mr. Lieu. I am just going to--Mr. Chair, I am just going to
submit the U.S. Constitution for the record and say: No, that
sentence is not in there.
Now I am going to move on.
Chairman Nadler.--Record.
[The information follows:]
https://CONSTITUTIONUS.COM
Mr. Lieu. Earlier today, you had testified that you did not
communicate to Donald Trump or senior White House advisers
about the special counsel's investigation. So I am going to ask
you a related question. Did you communicate to Donald Trump or
any senior White House advisors about investigations from the
Southern District of New York concerning The Trump
Organization, the Trump inaugural committee, Michael Cohen, or
the investigations that relate to Trump entities or potentially
the President?
Mr. Whitaker. Congressman, I mentioned that I said other
investigations in my opening statement, and I really don't have
anything further to add to that answer.
Mr. Lieu. And when you said ``other investigations,'' you
mean you communicated to the President about other
investigations?
Mr. Whitaker. No. That is not what I said in my opening
statement. I will refer you back to my opening statement. I was
very clear about that.
Mr. Lieu. Did you communicate to the President or any
senior White House advisers about investigations from the
Southern District of New York related to Trump entities----
Mr. Whitaker. Again, I was very explicit in my opening
statement as to that not only about my communications regarding
the special counsel's office, and I said ``other
investigations,'' and the Southern District of New York would
be included in other investigations.
Mr. Lieu. Okay. Thank you. So I want to move to another
subject. The President has talked about a national emergency.
Under the latest FBI data, it is correct, isn't it, that
violent crime across the United States has gone down?
Mr. Whitaker. Yeah, we celebrate actually that violent
crime has gone down in the last 2 years.
Mr. Lieu. In fact, property crime has gone down as well,
isn't that right?
Mr. Whitaker. Congressman, as I sit here right now, I
believe generally all crime is down over the last 2 years since
President Trump was elected.
Mr. Lieu. My last question to you is: You would agree with
Donald Trump when last year he tweeted out that border
crossings are at a 45-year low?
Mr. Whitaker. We saw a precipitous decline in border
crossings after the President was elected and sworn into
office. Unfortunately, we haven't been able to retain those
gains, and we have seen an absolute dramatic surge in family
units.
Mr. Lieu. Thank you.
Chairman Nadler. The time of the gentleman has expired.
Mr. Raskin.
Mr. Raskin. Mr. Whitaker, before you took the call from
President Trump, you had a fascinating career: owned a daycare
center, a concrete supply business, trailer of sales, GOP
activist, U.S. attorney who unsuccessfully prosecuted Iowa's
first openly gay State legislator on trumped-up Hobbs Act
charges that were dismissed by the jury in about an hour,
Senate candidate.
There have been some scandals, too. Here is one: ``Trump's
Acting Attorney General involved in firm that scammed veterans
out of life savings.'' Veteran says: I spent the money on a
dream. I lost everything.
But the newspapers say you struck gold when you arrived in
Washington, which the President calls the swamp. Here is one
that tells the story: ``Conservative nonprofit with obscure
roots in undisclosed funders paid Matthew Whitaker $1.2
million.'' According to The Washington Post, in the 3 years
after he arrived in Washington, Whitaker received more than
$1.2 million as the leader of a charity that reported having no
other employees. That is a pretty good deal.
Now what was the name of the charity that you ran, Mr.
Whitaker?
Mr. Whitaker. Congressman, you have mentioned a lot in
your----
Mr. Raskin. No, but I am asking you a very specific
question.
Mr. Whitaker. You have challenged my character, and I have
the ability to answer.
Mr. Raskin. No, no. I am asking you a question. I control
this time, Mr. Whitaker. If you want to ask the Chairman for
time of your own, you can do it. This is my time. Mr. Whitaker,
you don't run this Committee. You don't run the Congress of the
United States, and you don't run the Judiciary.
Chairman Nadler. The gentleman will suspend. The gentleman
is correct. The witness will answer the questions, and it is up
to the gentleman to decide what questions. The gentleman will
continue. We will resume.
Mr. Raskin. What was the title of the not-for-profit that
you ran?
Mr. Whitaker. What time period, sir?
Mr. Raskin. What was the last title? I know it changed its
name three different times, right? What was the final name?
Mr. Whitaker. While I was employed as the executive
director, it was called the Foundation for Accountability and
Civic Trust.
Mr. Raskin. Did you name it?
Mr. Whitaker. I did. Actually----
Mr. Raskin. Those are highly noble goals: accountability
and civic trust. So let's talk about some accountability.
Mr. Whitaker. He asked me a question. I would like to
answer.
Mr. Raskin. Mr. Whitaker, I have got a question for you.
Mr. Whitaker. No, you asked me a question.
Mr. Raskin. I asked you a question. I control the floor,
Mr. Whitaker. You don't understand.
Chairman Nadler. The gentleman is correct. The gentleman
controls the time, and if he wishes, as many members have done
on occasion, they make a statement and they don't even ask a
question, but if he wishes to proceed to another question, it
is his time.
Mr. Whitaker. But Congressman--I mean, Mr. Chairman, I do
not feel--I do not feel like my answer would be complete on the
record to the question he asked.
Mr. Raskin. Okay. Mr. Whitaker, see if you can get into
this. Tell us where the money came from that you were paid, the
$1.2 million that you were paid before you went to the
Department of Justice?
Mr. Collins. Mr. Chairman, point of order.
Mr. Raskin. I am asking my question.
Mr. Collins. Mr. Chairman, point of order, which overrules
your question. Point of order.
Chairman Nadler. The gentleman will suspend. The gentleman
will state his point of order.
Mr. Collins. Look, we are going to go down this probably
many more times, but again, if he wanted to do a confirmation
hearing, this is not within the scope of this hearing. This is
not a confirmation hearing, and he has not shown----
Chairman Nadler. The gentleman's point of order is not well
taken.
The gentleman from Maryland has the discretion to ask the
questions. The gentleman will proceed.
Mr. Collins. Appeal the ruling of the chair.
Chairman Nadler. The gentleman has appealed the Ruling of
the Chair. The gentlelady has moved to table. All in favor of
the Motion to Table the Appeal of the Ruling of the Chair will
vote aye.
Opposed, nay.
The ayes have it. The ruling--the motion is tabled.
Mr. Collins. Mr. Chairman, can you and I engage in a
colloquy? Suspend the clock. Can we suspend the clock and you
and I can engage in a colloquy? It may solve some----
Mr. Cicilline. Point of order, Mr. Chairman. Is the Ranking
Member just going to continue to interrupt when he doesn't like
the flow of questions?
Mr. Collins. I will probably make a point of order when it
needs to be made.
Mr. Cicilline. It would be useful it was actually a point
of order.
Chairman Nadler. Everyone will please suspend. The
gentleman made a point of order. It was ruled out of order.
Right now, the gentleman has the time. If the Ranking Member
wants to make a point, I will recognize him after the gentleman
is completed. The gentleman will resume.
Mr. Raskin. Thank you, Mr. Chairman.
It has been reported publicly that there was one donor, and
as we understand it, I think you are testifying today that you
were the sole employee of the group. So there was one donor and
one employee. Do you know who the donor was to the group that
funded your salary for $1.3 million?
Mr. Whitaker. Yes, I do.
Mr. Raskin. Who was the donor?
Mr. Whitaker. The donor was another nonprofit 509(c)(3)
organization called the Donors Trust.
Mr. Raskin. Okay. Now that was the passthrough vehicle, but
who reached into their pocket and wrote the check to go through
that to pay your salary?
Mr. Whitaker. Congressman, as you know, because you have
looked at this issue, the Donors Trust is much bigger than the
Foundation for Accountability and Civic Trust and raises
millions if not hundreds of millions of dollars every year. I
actually, as I sit here today, have no idea who the donors to
Donors Trust then funded the foundation----
Mr. Raskin. I have got a theory that I want to float with
you, and it goes to something very strange that has been
happening in the Department of Justice really recently. Casino
billionaire and magnate Sheldon Adelson hates online gambling
for obvious reasons: it is competition for him. He wants people
in the casinos not online. And he spent more than a million
dollars lobbying Congress to override the 2000 opinion by the
Office of Legal Counsel at DOJ saying that the Wire Act plainly
prohibits only sports gambling online, not gambling in the
States, which was why Florida, Pennsylvania, New Jersey, lots
of States have built important businesses for themselves
online. But Congress wouldn't change the law according to the
demands of Mr. Adelson, so rather than change the law, he
decided to try to get the Department of Justice to change the
interpretation of the law, and he threw millions into a
campaign to remake the DOJ and get the Office of Legal Counsel
to perform a complete reversal and say that the Wire Act bans
the kinds of lotteries that States run online, even though its
language plainly prohibits only sports betting.
And when Donald Trump won and Mr. Sessions became AG and
you became chief of staff, DOJ leadership ordered a
reevaluation of this legal question, and what do you know? The
Office of Legal Counsel found some subtle and invisible points
of law that apparently escaped the Department of Justice back
in 2011, and it reversed the plain reading of the
interpretation, which talked specifically about sports betting.
Now, were you involved in that decision?
Mr. Whitaker. Congressman, General Sessions was recused at
the time that that decision came out.
Mr. Raskin. So you were recused, too?
Mr. Whitaker. Therefore I was recused, and so I was not
involved in that decision.
Mr. Raskin. Did you ever talk to Sheldon Adelson about it?
Mr. Whitaker. No. I have actually never met Sheldon
Adelson.
Mr. Raskin. Did you talk to any of his lobbyists about it?
Mr. Whitaker. No, I did not.
Mr. Raskin. Did you talk to Charles Cooper about it?
Mr. Whitaker. No, but I do know Charles Cooper. And I would
point out: One of the things, Mr. Raskin, it is very
important----
Mr. Raskin. You can ask the Chairman for time, but I can't
give you my time. Forgive me, we only have 5 minutes here.
Chairman Nadler. The gentleman controls the time. At the
conclusion of his statement--at the conclusion of his 5
minutes, I will afford the witness some time, but the gentleman
controls the time.
Mr. Whitaker. Okay.
Mr. Raskin. Thank you, Mr. Chairman.
In January and February of 2018, the Chairman and Vice
Chairman of Wild Rose Casino and Resort--it is a casino in
Iowa--each donated $2,600 to your Senate campaign, which was
over 4 years before when you lost that campaign. How did these
casino operators come to donate to your campaign several years
after you lost? Did you talk to them?
Chairman Nadler. The time of the gentleman has expired.
The witness may answer the question.
Mr. Whitaker. To answer your question specifically, no, I
did not.
To go back to the other point I would like to make,
Congressman, is that the first OLC opinion that preceded the
one we just issued in November was done, and the State of
Illinois provided a white paper regarding the position on the
Wire Act. And so I think it is very consistent, and your
inference that somehow that that process was corrupted or
corrupt is absolutely wrong, and the premise of your question I
reject.
Chairman Nadler. The gentlelady from Washington, Ms.
Jayapal.
Ms. Jayapal. Thank you, Mr. Chairman.
Mr. Whitaker, thank you for being with us.
Our country is still reeling from the horrors of family
separation that occurred at the border. I was the first Member
of Congress to talk to hundreds of women and men who had been
ripped apart from their children. I went into a Federal
detention--Federal prison to talk to those women. Many of them
had not even been able to say goodbye to their children. They
sat in the room next door as they heard their children yelling
for them, and they were not able to go and speak to their
children. And for weeks they didn't know where their children
were.
Most of these women, most of the men were seeking asylum,
and your Department, instead of allowing them their legal right
to seek asylum, your Department instead imposed a zero-humanity
policy to prosecute them in mass proceedings, resulting in the
U.S. Government tearing thousands of children from their moms
and dads, and this is still happening. And the truth is we may
not know how many children were separated from their parents.
So, Mr. Whitaker, you were Attorney General--former
Attorney General Jeff Sessions' chief of staff at the time. Is
that correct?
Mr. Whitaker. Of the zero-tolerance policy being
implemented?
Ms. Jayapal. You were his chief of staff at----
Mr. Whitaker. At what point in time?
Ms. Jayapal [continuing]. Of the family separation policy.
Let me just tell you, you were.
Mr. Whitaker. There was no family separation policy. There
was a zero-tolerance policy in the Department of Justice.
Ms. Jayapal. This has been given four Pinocchios multiple
times. I am just going to tell you, you were the former
Attorney General's Chief of Staff at the time.
Last month, Senator Merkley released a leaked draft memo by
senior officials at the Department of Justice and Homeland
Security outlining policies to separate children from their
families. Were you aware of this memo at the time?
Mr. Whitaker. No.
Ms. Jayapal. So, as the chief of staff, you were not aware
of what your boss was doing?
Mr. Whitaker. Was the memo--I am sorry. You are talking
about the leaked memo or the memo that General Sessions
issued----
Ms. Jayapal. There was a leaked draft memo by senior
officials at the Department of Justice. You were the Chief of
Staff; I would think you would know--and you would be a senior
official--you would know about that memo. The memo stated that
a policy of criminally prosecuting parents would require close
coordination between DHS and the Department of Health and Human
Services, which would be tasked with housing children separated
from their moms and dads. And yet a report released by the
Government Accountability Office last October says that DHS and
HHS were, quote, unaware that your former boss' zero-tolerance
prosecution policy memo was coming. Is it correct that the
Department of Justice provided no advance notice to those
Departments?
Mr. Whitaker. Congresswoman, the Department's policy----
Ms. Jayapal. It is just a yes or no. Did you provide
advance notice to the----
Mr. Whitaker. We conducted a press conference in San Diego
with the head of the Immigration Customs Enforcement when we
announced the zero-tolerance policy, and all the zero-tolerance
policy does is it says we will take all referrals from DHS.
Ms. Jayapal. I am going to stop you right there because it
is my time.
According to the GAO report, the GAO, the Government
Accountability Office, report on family separation: DHS and HHS
officials told us the agencies did not take specific planning
steps because they did not have advance notice of the Attorney
General's April 2018 memo.
It went on to say specifically: CBP, ICE and ORR officials
stated that they became aware of the April 2018 memo when it
was announced publicly. So, before or after the zero--and
actually let me go back. Are you saying that CBP, ICE, and OOR
lied to the GAO and that they were somehow aware and given
advance notice?
Mr. Whitaker. No, I am not going to suggest that anybody
was not telling the truth. I am saying that when we publicly
announced the zero-tolerance policy, it was pursuant to a
public event in San Diego----
Ms. Jayapal. And so, prior to the public event--Mr.
Whitaker, prior to the public event, these ICE, CBP, and ORR
officials told the GAO that they had not gotten any notice--I
am not talking about once it was public; I am talking about
whether there was advance notice.
Let me go on. Before or after the zero-tolerance policy was
put into place, and I call it the zero-humanity policy, did the
U.S. attorneys track when they were prosecuting a parent or
legal guardian who had been separated from their child? There
is only one answer to this. It has gone through the courts.
Mr. Whitaker. You know, did we track it?
Ms. Jayapal. Did you track when you were prosecuting a
parent or legal guardian who had been separated from a child?
Mr. Whitaker. I don't believe we were tracking that.
Ms. Jayapal. You were not tracking it. That is the correct
answer. And when parents are prosecuted and sentenced, they are
in DOJ custody, correct?
Mr. Whitaker. Correct, their custody is transferred to the
U.S. Marshals.
Ms. Jayapal. So these parents were in your custody. Your
attorneys are prosecuting them, and your Department was not
tracking parents who were separated from their children. Do you
know what kind of damage has been done to children and families
across this country, children who will never get to see their
parents again? Do you understand the magnitude of that?
Mr. Whitaker. I understand that the policy of zero-
tolerance----
Ms. Jayapal. Has the Justice Department started tracking
parents and legal guardians who were separated from their
children at the border?
Chairman Nadler. The time of the gentlelady has expired.
The witness may answer the question.
Mr. Whitaker. Congresswoman, I appreciate your passion for
this issue, and I know that you have been very involved on the
front lines of this.
Ms. Jayapal. This is about more than my passion. This is
about the children's future, Mr. Whitaker. Please answer. Go
ahead, please.
Chairman Nadler. The witness may answer.
Mr. Whitaker. Congresswoman, the responsibility for the
arrest and the detention and together with the custody of the
children was handled by DHS and HHS before those people were
ever transferred to DOJ custody through the U.S. Marshals.
Chairman Nadler. Thank you. The time of the gentlelady has
expired.
Mrs. Demings.
Mrs. Demings. Thank you so much, Mr. Chairman.
Mr. Whitaker, I spent 27 years in law enforcement. I served
as the Chief of Police. I took an oath just like you did, and I
took that oath very, very seriously to uphold the Constitution
and to protect this country from all enemies foreign and
domestic. I hope you took the oath that you took very, very
seriously.
But today, as I have sat through--and my colleague is
right. This has been painful because I believe that you have
worked to make our criminal justice system to make a mockery
out of it, and it is painful for me for you to do that and
anybody up to and including the President of the United States.
But let me ask you this, and it really has been painful for
someone who has been given so much responsibility representing
the men and women who have dedicated their lives to public
service. That really means a lot to me. I hope it means a lot
to you.
Mr. Whitaker. It does.
Mrs. Demings. Mr. Lieu asked you if you had ever proven--
Mr. Lieu asked you if you ever communicated with President
Trump about investigations in the Southern District of New
York. Instead of answering, you referred him back to your
statement, referred him back to what was written for you. But
all you said is that you didn't make--in your statement--that
you didn't make any promises or commitments to President Trump.
I want to know whether you talked to President Trump at all
about the Southern District of New York's case involving
Michael Cohen.
Mr. Whitaker. Congresswoman, as I have mentioned several
times today, I am not going to discuss my private conversations
with the President of the United States.
Mrs. Demings. So yes or no, did you----
Mr. Whitaker. No matter what the question is.
Mrs. Demings. Yes or no, did you discuss with President
Trump anything about Michael Cohen?
Mr. Whitaker. Congresswoman, as I have expressed several
times today, I am not going----
Mrs. Demings. Did you ever have any conversations with the
President about firing or reassigning any personnel, U.S.
attorneys or others, who work with the Southern District of New
York, with the President or anybody, anybody at all? Did you
ever have any conversations with anybody about reassigning or
firing any personnel, including U.S. attorneys with the
Southern District of New York?
Mr. Whitaker. Congresswoman, I sit on top of the Department
of Justice, as you mentioned----
Mrs. Demings. Did you ever have any conversations about
anybody who worked with the district of Virginia firing or
reassigning, with anybody, not just the President, anybody at
all?
Mr. Whitaker. Congresswoman, I am not going to talk today--
--
Mrs. Demings. Okay. So let's talk about the great 115,000
men and women who work for the Department of Justice, because I
agree that they, as your words, are extremely talented, highly
principled public servants, who are dedicated to upholding our
great Constitution and the laws of the United States. I am sure
you are familiar with this because you keep up--at a rally last
fall the President said: Look what is being exposed at the
Department of Justice and the FBI. You have some real bad ones.
You see what has happened at the FBI. They are all gone. They
are all gone, but there is a lingering stench, and we are going
to get rid of that, too.
Do you agree with the President's characterization of the
Department of Justice and the FBI? As the Attorney General,
please tell me why you would agree or why you would not agree
with that statement?
Mr. Whitaker. Congresswoman, since I have become the Acting
Attorney General I have reestablished a positive relationship
between the Department of Justice and the White House----
Mrs. Demings. Before you became--established that positive
relationship, what was your opinion of the 115,000 men and
women who dedicate their life to public service? Before you had
your current position, what was your opinion of them?
Mr. Whitaker. I have actually a very high estimation of the
men and women at the Department of Justice. They are the most
exceptional, hardworking people that I have ever----
Mrs. Demings. So you disagree with the President's
characterization, because they don't deserve it, Mr. Whitaker.
And you are here--you supervise; you manage them. You don't--
then you don't agree with the President's characterization of
them. Is that correct?
Mr. Whitaker. Listen, before--Congresswoman, in all due
respect, I feel very strongly that, as the Acting Attorney
General of the United States, that I have to set the tone for
the entire Department of Justice, and what is so important----
Mrs. Demings. If I worked for you, Mr. Whitaker, and you
thought I was highly principled and very talented and that was
your answer when I was asked or you are asked about how do you
view the people who work for you, that is your answer; that is
pretty pitiful.
Let me ask you this: You have only mentioned drugs coming
through the southern border, the problem at the southern border
as characterized by you and the President. Could you please
paint a picture of drugs flowing through our ports of entry?
Because I am told the overwhelming number of percentage of
drugs that flow into our country come through the ports of
entry. Do you agree or disagree with that statement? And if so,
yes or no, why not?
Chairman Nadler. The time of the gentlelady has expired.
The witness may answer the question.
Mr. Whitaker. Congresswoman, we actually both agree the
ports of entry at our southern border are most trafficked with
drugs and illegality. It also comes in between ports----
Mrs. Demings. Overwhelming of drugs come through the ports
of entry----
Mr. Whitaker. On our southern border, yes.
Mrs. Demings. Do you agree or disagree with that?
Mr. Whitaker. I believe that a tremendous amount of drugs
come through our ports of entry on the southern border, yes.
Chairman Nadler. The gentlelady--I am sorry.
Mr. Correa.
Mr. Correa. Thank you, Mr. Chairman.
Good afternoon, sir. I wanted to ask you about your
enforcement priorities. One of my jobs here in Congress is to
serve on the Department of Homeland Security, and within that
job, one of my most important critical jobs is to make sure our
citizens are safe to protect our Nation against terrorist
threats.
In May of 2017, a joint FBI-DHS bulletin warned of a
growing threat of violence posed by white supremacists, neo-
Nazis, right-wing extremists, and other white nationalist
groups. An extensive study of terrorist plots between '08 and
'16 found that plots and attacks by white nationalist groups in
the U.S. outnumbered the threats by Islamic extremists 2 to 1.
White supremacist groups have been aggressively recruiting on
our college campuses, and violent incidents involving these
groups have more than tripled since 2017. More than 100 people
have been killed or injured since 2014, and more than 60 in
2017 alone by these alt-right groups.
Sir, just a very basic question, do you believe that white
nationalism, white supremacists, extremists or right-wing
groups in this country pose a threat?
Mr. Whitaker. Yes, I do.
Mr. Correa. Is it growing?
Mr. Whitaker. Based on that report issued by the FBI, I
have no reason, as I sit here today, to disagree with it.
Mr. Correa. Do you believe that the administration is
placing enough of an emphasis, enough resources allocated
dedicated to stopping these kinds of homegrown terrorist
attacks?
Mr. Whitaker. I believe that we are dedicating resources to
the appropriate threats. That is done obviously below my role.
It is done mostly at the line and the management level at the
FBI and our other agencies, including our partners at DHS, as
you mentioned. And I really, as I sit here today, I think we
are adequately addressing the threats that we face, but we are
always reallocating resources based on how those threats
evolve.
Mr. Correa. Adequately addressing the threat, and you
mentioned earlier in your opening statement 30 convictions--
hate crime convictions, yet in 2017, an increase of 17 percent
hate crimes reported, which they are usually underreported in
this country. More than 7,000 hate crimes in 2017, and you have
30 convictions. Do you think you are allocating adequate
resources towards prosecuting hate crimes?
Mr. Whitaker. I do. And if you look at some of the high-
profile cases we have done, like the synagogue shooting in
Pittsburgh or the Charlottesville situation that we previously
discussed or even the case where we sent a prosecutor to my
home State of Iowa to help prosecute a State hate crime, I
think we have addressed the hate crime.
Mr. Correa. Again, sir, if you look at the number: 7,000
reported, almost 20 percent increase in 2017, 30 convictions.
Adequate?
Mr. Whitaker. Congressman, we always work with our State
partners and the local police to determine where is the best
place and the most effective place to prosecute a crime, and so
to suggest that somehow that those victims of those crimes
don't receive the proper justice I think would be----
Mr. Correa. I think I am looking at it from relative--we
are looking at foreign terrorism, and yet are we ignoring
domestic terrorism?
Mr. Whitaker. No, we are not ignoring that.
Mr. Correa. Are we allocating the equal or more resources
to domestic versus foreign, yes or no?
Mr. Whitaker. Congressman, we allocate our resources based
upon the threats and where the Federal Government should deploy
those resources. And, again, it is a very dynamic daily
evaluation as to where the threats are, and I believe that we
are adequately resourcing all of the threats including the ones
you described.
Mr. Correa. Do you think domestic terrorism from white
extremist groups is on the rise, and do you think we should
allocate additional resources to combatting these kinds of
terrorist attacks in this country?
Mr. Whitaker. Congressman, I believe I already answered
this question, but I just want to be clear: I agree with the
FBI's assessment----
Mr. Correa. I am sorry. I didn't hear your answer.
Mr. Whitaker. Okay. Well, I believe, with the FBI's
statement, that those crimes are on the rise. I also believe
that we have adequately deployed our resources on a daily basis
dynamically as required by those threats, and I have seen it
based on my intelligence briefings that I participate on almost
a daily basis, and I know that the FBI and the other Federal
law enforcement agencies are adequately resourcing these
threats in addition to all the other threats we face. It is a
target-rich environment when it comes to law enforcement and
making sure that----
Mr. Correa. Sir, I am running out of time. I will say we
are going to continue to look at this on Homeland Security
because I believe that we are missing the ball here. In 2017,
DHS terminated granted funding to look at some of these issues
of domestic terrorism. We have to keep addressing this issue.
Lives, the safety of our citizens is at stake.
Mr. Chairman, I yield.
Chairman Nadler. The gentleman has yielded.
Ms. Scanlon.
Ms. Scanlon. Good afternoon, Mr. Whitaker.
Mr. Whitaker. Good afternoon.
Ms. Scanlon. In response to a question from my Pennsylvania
colleague, you mention that the Department of Justice has been
attempting to withhold Federal dollars from so-called sanctuary
cities. Is that right?
Mr. Whitaker. Well, yes, I talked about the Byrne JAG
grants.
Ms. Scanlon. Thank you. And one of those cities is
Philadelphia, right?
Mr. Whitaker. I believe so, yes.
Ms. Scanlon. I happen to represent Philadelphia. Isn't it
true that Judge Mike Baylson of the Eastern District of
Pennsylvania ruled that the Department of Justice's attempt to
withhold this money was illegal and unconstitutional?
Mr. Whitaker. Congresswoman that is----
Ms. Scanlon. Isn't it correct that that was the ruling of
the Federal court?
Mr. Whitaker. Congresswoman----
Ms. Scanlon. Isn't it correct----
Mr. Whitaker. I am not going to discuss ongoing litigation.
Ms. Scanlon. Isn't it correct that the Federal court ruled
that the Department of Justice's action was illegal and
unconstitutional? That is a matter of public record, sir.
Mr. Whitaker. Congresswoman----
Ms. Scanlon. Is that correct?
Mr. Whitaker. Congresswoman, I don't disagree----
Ms. Scanlon. Mr. Whitaker, you may be confused here. This
may appear to be a contact sport, but it is not a gridiron, and
I am not letting you run out the time, okay? Isn't it true the
Federal court ruled that that was illegal and unconstitutional?
Mr. Whitaker. Congresswoman, again----
Ms. Scanlon. Okay. I will take that as a yes.
Mr. Whitaker. This is the subject of ongoing litigation,
and----
Ms. Scanlon. Isn't it also true, Mr. Whitaker--Mr.
Whitaker, I am asking the question. Isn't it also true that the
court found that the Department of Justice had not produced any
credible evidence that undocumented immigrants committed crime
at a higher rate than any other group?
Mr. Whitaker. Congresswoman, this is the subject of ongoing
litigation----
Ms. Scanlon. Isn't it true that the Federal court found
that in a public opinion?
Mr. Whitaker. Congresswoman, I am not going comment on
ongoing litigation.
Ms. Scanlon. Okay. I will take that as a yes as well. Let's
move on to some other questions. And just to be clear I am
asking oversight questions about your enforcement priorities
during your tenure, okay, at the Department of Justice. I want
to make sure we are clear on when that tenure began. I have a
date of September 22, 2017, that you became chief of staff. Is
that correct?
Mr. Whitaker. That is incorrect.
Ms. Scanlon. Okay. When is your first working date as chief
of staff for Attorney General Sessions?
Mr. Whitaker. I started at the Department of Justice on
October 4th of 2017.
Ms. Scanlon. Okay. And then you became Acting Attorney
General as of November 7, 2018?
Mr. Whitaker. The President tweeted that I was going to be
the next Acting Attorney General on November 7th of 2018. The
order that I have received from the President has the date of
November 8th of--I am sorry, 2018.
Ms. Scanlon. Okay. Do you have a copy of that order?
Mr. Whitaker. I do have a copy of that order.
Ms. Scanlon. Can you provide it to the committee please?
Mr. Whitaker. I would be happy to. I don't have it with me,
though, if that is your question.
Ms. Scanlon. Okay. That would be wonderful. Turning to some
other enforcement priorities. On December 22, 2017, the
Department of Justice sent a formal request to the Census
Bureau asking for an addition to the Census of a question
asking about citizenship status. Did Attorney General Sessions
direct the Department lawyers to draft that request?
Mr. Whitaker. Congresswoman, the Department is currently
defending the Census Bureau in litigation on this issue across
the country.
Ms. Scanlon. Did Attorney General Sessions ask or are you
refusing to answer the question?
Mr. Whitaker. I think it is inappropriate for me to comment
about the subject of ongoing litigation.
Ms. Scanlon. Okay.
Mr. Chairman, I would like to reflect Mr. Whitaker hasn't
answered the question, and I would ask this matter to be
addressed in the upcoming deposition.
Do you know if the President directed Department of Justice
lawyers to make that request?
Mr. Whitaker. Congresswoman, this is the subject of ongoing
litigation----
Ms. Scanlon. Okay. So you are not going to answer that
question either.
Mr. Whitaker [continuing]. That we are currently defending
in the United States courts.
Ms. Scanlon. Thank you. Was Acting Assistant Attorney
General John Gore involved in the drafting of that request to
add the Census question?
Mr. Whitaker. Congresswoman, as I have previously stated,
this is the subject of ongoing litigation that we----
Ms. Scanlon. Okay. So we will let the record reflect that
again you are refusing to answer the question.
Okay. We can agree that one of the functions of the
Department of Justice is to enforce the Voting Rights Act,
correct?
Mr. Whitaker. Correct. One of the jobs of the----
Ms. Scanlon. Okay. Thank you. Isn't it also true that the
most recent Voting Rights Act enforcement action was filed on
January 10, 2017?
Mr. Whitaker. As I have mentioned previously, the
Department is----
Ms. Scanlon. Is it correct that the most recent voting
rights enforcement action filed by your Department was in 2017,
January 10?
Mr. Whitaker. Congresswoman, I will give you an example----
Ms. Scanlon. It is a yes-or-no question.
Mr. Whitaker. During the first term of the Obama
administration, they filed, I believe, one section----
Ms. Scanlon. Okay. Reclaiming my time, no running out the
clock.
Mr. Whitaker. I am trying to answer your questions.
Ms. Scanlon. Chairman, if we can enter into the record the
Department of Justice website, which reflects when the last
Voting Rights Act case was filed: January 10, 2017.
Chairman Nadler. Without objection, the fact is noted on
the website and will be entered into the record.
[The information follows:]
MS. SCANLON FOR THE OFFICIAL RECORD
=======================================================================
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Ms. Scanlon. Thank you.
Isn't it true that, under the Trump administration, the
Department of Justice has reversed its position on at least
three important Voting Rights Act cases?
Mr. Whitaker. May I answer the question? I see my time has
expired.
Ms. Scanlon. I think there is a yes or a no.
Chairman Nadler. The gentlelady's time has expired.
The witness may answer the question.
Mr. Whitaker. Thank you. The Department of Justice has
changed positions only in one voting case, and that is the
Husted case, and the Supreme Court agreed with our new reading
of the statute.
Chairman Nadler. Ms. Garcia.
Ms. Garcia. Thank you, Mr. Chairman.
I have about four documents I ask unanimous consent be
entered into the record. The first one is titled ``Crime and
Murder in 2018: A Preliminary Analysis.'' The second one reads,
``Border Communities Have Lower Crime Rates.'' The third one
reads, ``Amid `crisis' rhetoric, local leaders defend border
region from misconceptions,'' and this is a report from the Rio
Grande Valley in Texas. And then the last one is Progress
Times, Mission, Texas, ``Sheriff: Crime dropped 10 percent in
rural Hidalgo in the last year.''
Chairman Nadler. Without objection, these documents will be
entered into the record.
[The information follows:]
MS. GARCIA FOR THE OFFICIAL RECORD
=======================================================================
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Chairman Nadler. The gentlelady is now recognized for 5
minutes.
Ms. Garcia. So, Acting Attorney General, what is it in your
mind that leads you to conclude that the border region is
crime-ridden when these documents that I just entered into the
record clearly show that Del Rio, Brownsville, El Paso, all the
areas in the border region--and, in fact, even El Paso is
listed in the top 29 cities where crime has gone down that you
quoted in your written testimony--if all of these stats show
differently, why are you still insistent that this is a crime-
ridden area? And just, please, a short answer because I have
only got 5 minutes.
Mr. Whitaker. I don't recall saying today that the border
region is crime-ridden, but I will answer your question as
fulsomely as I can, and that is that illegal immigration
through our southern border is dramatically and negatively
impacting the crime rate in our cities. It would be lower if we
didn't have illegal immigration. I point to the example of
Mollie Tibbetts, for example----
Ms. Garcia. You are talking about other cities, not the
cities that are, in fact, in the border areas.
Mr. Whitaker. Well, I think you would agree with me that
most illegal immigrants that come into our southern border
don't reside at the border regions, that they transit through
there and then make their way to other parts of our country.
Ms. Garcia. Well, I know many come to Houston because we
have got good jobs, and we are an open city. But I heard you
say earlier, and maybe the word crime-ridden was not the exact
word you used, but it was alluding to the fact that the border
areas had a lot of crime, and I just simply don't agree with
you.
But let me move on to another topic and following up some
questions about the family separation policy or the zero-
tolerance policy. You said earlier in answer to a question
about some of your background that you were by General
Sessions' side for 4 years side-by-side, and you were aware of
everything in the Justice Department's separation policy. Is
that true?
Mr. Whitaker. I served as chief of staff for 13 months, and
I am familiar with the zero-tolerance policy, yes.
Ms. Garcia. But you said you were with him side-by-side, so
can you tell us if you were in the room when it happened when
the actual zero-tolerance policy was hatched?
Mr. Whitaker. I participated in discussions about the zero-
tolerance policy internally, but, again, I am not going to talk
about the internal deliberations. The decision was to issue a
zero-tolerance policy.
Ms. Garcia. But who is the brain child of the policy? Who
hatched it? I mean, where did it come from? We have never had
it before to the level it is being executed now.
Mr. Whitaker. It was General Sessions' decision to
implement, and he signed the memo implementing it and
distributed that to our border district U.S. attorneys.
Ms. Garcia. All right. So let me go on and ask this
question: How many children are still separated from their
families as we sit here today?
Mr. Whitaker. That is a number that only DHS and HHS would
know. As I sit here, the Department of Justice isn't involved
in handling children that are encountered at the border,
whether as a family unit or as unaccompanied minors.
Ms. Garcia. So you have no idea how many children might
be--you have not seen any documents cross your desk from DHS or
OOR or anybody else?
Mr. Whitaker. Again, those are different departments within
the----
Ms. Garcia. I know that, sir, but I know that you are the
Acting Attorney General and you get a lot of reports, a lot of
documents, a lot of data. You have not seen anything to give us
any idea just how many children have been torn away from the
arms of their mothers?
Mr. Whitaker. No, I would have to refer you to HHS and DHS.
Again, when----
Ms. Garcia. Do you know how many have been reunited with
their families?
Mr. Whitaker. Again, Congresswoman, those are not
statistics that I am involved in because those cases----
Ms. Garcia. Again, you don't have to be the one to write
the little finger sticks counting the children. I just want to
know if you have seen anything cross your desk or any member of
your staff so that Americans who are--just find this policy to
be abhorrent and inhumane, they have an idea as to when the
children will ever be reunited with their families; you cannot
tell us that today?
Mr. Whitaker. No, I would have to refer you to HHS and DHS,
which would be responsible for the parts of the process because
once we have received individuals for prosecution under the
zero-tolerance policy, we only deal with the adults, and we
don't keep track----
Ms. Garcia. One last question because I am running out of
time. At the State of the Union, the President said he was
going to make, and I am paraphrasing, it a priority to make
sure that people with preexisting conditions were protected.
Does that mean that you are going to drop all the ACA
litigation that you are involved in?
Mr. Whitaker. As you know, Congresswoman, the Affordable
Care Act litigation is ongoing.
Ms. Garcia. The question is, are you going to be willing to
settle it? Are you going to be able to drop some of that since
the President is changing priorities and direction for his
Department of Justice?
Chairman Nadler. The time of the gentlelady has expired.
The witness may answer the question.
Mr. Whitaker. We have a unitary executive, and if the
President sets a policy and issues a policy directive, we will
follow that policy.
Ms. Garcia. Thank you.
Chairman Nadler. Mr. Neguse.
Mr. Neguse. Mr. Attorney General, thank you for being here.
I also want to thank my colleague, the distinguished
gentleman from South Dakota, for his support of criminal
justice reform and looking forward to working with him.
Mr. Armstrong. North Dakota.
Mr. Neguse. North Dakota. My apologies. I look forward to
working with him on criminal justice reform.
I want to talk about another policy matter with respect to
cannabis. I represent the State of Colorado. In Colorado,
recreational use of marijuana was legalized in 2014. Today,
more than half the States have legalized either the
recreational or medical use of marijuana.
Researchers at the University of Colorado, which I am proud
to represent, are working hard to understand the health
effects. They are studying promising approaches that use
marijuana to relieve chronic pain and the symptoms of
Parkinson's disease.
In August of 2016, I understand this is before you were at
the Department of Justice, Mr. Attorney General, the DEA took a
big step towards improving scientific research on marijuana
when it submitted a request in the Federal Register for
applications to produce federally approved research-grade
marijuana. Several institutions have submitted an application
but have yet to receive a response. What is the status of those
applications, if you might know, and do you know if the
Department of Justice and the DEA intend to support legitimate
cannabis research that could help protect the health and safety
of our citizens?
Mr. Whitaker. For the 3 months that I have been the Acting
Attorney General, this is an issue that I have been aware of,
and I have actually tried to get the expansion and the
applications out. We have run into a very complicated matter
regarding a treaty that we are trying to work around. We have
some international treaty obligations that may not allow the
way the marijuana has to be handled from the research
facilities to the researchers--or the grow facility to the
researchers. So it is something that I am very aware of. It is
something I am trying to push. Unfortunately, I have 6 days
left in this chair at the most. I don't know if I am going to
successfully get to it, but I understand the concern and know
that we are trying to make it work.
Mr. Neguse. I appreciate that and applaud that. And if I
could get your assurances that, within the 6 days, if you could
just follow up with the Department staff to follow up with our
office in writing, it would be incredibly helpful for us as
folks reach out.
Mr. Whitaker. We will try to get an answer as to the
current status, but my recollection where I last found it is
that----
Mr. Neguse. That is sufficient. Thank you, Mr. Attorney
General.
You mentioned earlier that the public essentially learned
that Attorney General Sessions was fired on November 7, 2018,
by tweet. And you were appointed via that same tweet. When did
you first learn that Mr. Sessions was fired, would be fired?
Mr. Whitaker. I learned on November 7th, if that is your
question. I mean, I, you know----
Mr. Neguse. It is.
Mr. Whitaker. Yeah, okay.
Mr. Neguse. So you learned by virtue of that same tweet
that we all learned.
Mr. Whitaker. Yes. I would suggest--the only point I would
put on that, Congressman--I am sorry to interrupt--is that Mr.
Sessions resigned, you know, sent in his resignation letter.
Mr. Neguse. Understand. Did you have any conversations with
folks at the White House prior to November 7, 2018, about
Attorney General Sessions resigning or being fired, however you
would characterize that?
Mr. Whitaker. As is the longstanding practice of the
Department of Justice and the executive branch generally, the
President is entitled to confidential communications, and while
I am not confirming or denying the existence of any
conversation, I am not going to talk about my private
conversations with the President of the United States.
Mr. Neguse. We will follow up on that front--or I would ask
the chairman to take that up in a deposition to the extent one
is noticed.
All right. A question around--you mentioned earlier in some
of your testimony around the reasoning behind your appointment
that one of the reasons you believed in your view that you were
appointed was--to the position of Acting Attorney General--was
your experience as a former U.S. attorney, correct?
Mr. Whitaker. Yes, correct. I spent 5 and a half years as a
United States attorney for the Southern District of Iowa.
Mr. Neguse. Yes, sir. And you also mentioned that one of
the reasons in your view that you believed you were appointed
Acting Attorney General was that you have been at the
Department of Justice for the last year or so working as the
chief of staff to Attorney General Sessions, side-by-side I
think you mentioned.
Mr. Whitaker. Yes. I knew all of the active matters that we
weren't recused from, obviously. I knew all the policies that
we had not only implemented but that were in progress. I knew
all the people and the individuals both inside the Department
of Justice and the interagency.
Mr. Neguse. I understand. I want to reclaim my time here.
So I appreciate that, and I guess the question I have is I am
sure you are aware that Deputy Attorney General Rod Rosenstein
is a former U.S. attorney, that he also has been at the
Department of Justice, that he knows the people, he knows the
matters and that, under the Vacancies Act, he was next in line
in succession to be appointed Attorney General in the occasion
in which that office was vacant occasioned by Mr. Sessions'
termination or resignation or what have you. And so I am trying
to understand--were you surprised that you were appointed
rather than Deputy Attorney General Rosenstein, that the
ordinary rules of succession weren't followed?
Mr. Whitaker. It has been an honor of a lifetime to serve
as the Acting Attorney General, and I have, as I mentioned, 6
days left, and I am going take full advantage of that,
including enjoying this hearing, but, you know, there are two
different statutes that applied to the vacancy that was created
by General Sessions' letter of resignation, and one was the
succession statute by the Department of Justice, and as you
know, the other one is the vacancy reform act, which has been
passed by Congress. And so my appointment, as is outlined in
the 20-page OLC opinion, is legitimate and has precedent.
Mr. Neguse. And I am not, with respect to the Attorney
General, I was not referencing the legitimacy. The point of
what I was saying is, under the Vacancies Act, 28 U.S.C. 508,
the Deputy Attorney General is the first assistant to the
Attorney General, and so, therefore, would be the appropriate
designee to fill that role, but with that, I yield back the
time.
Chairman Nadler. The gentleman has yielded back and----
Mr. Whitaker. Mr. Chairman? Mr. Chairman? Mr. Chairman, I
am sorry.
Chairman Nadler. Yes.
Mr. Whitaker. I just wanted to address that issue really
quickly just so we are all on the same page. The first
assistant together with any other Senate-confirmed individual
together with anyone that served 90 days or less, 365 days at a
senior position is eligible to be, and there is really no
ranking or hierarchy of those three positions. Obviously, I am
in the third bucket as chief of staff. I just wanted to make
sure we were clear on that.
Chairman Nadler. Thank you.
Mrs. McBath.
Mrs. McBath. Thank you, Mr. Chairman.
Mr. Whitaker, I am completely aware that North Carolina and
Georgia were dealing with similar problems with voter
suppression, and I can actually tell you I witnessed voter
suppression firsthand in Georgia even as I was running in my
own election.
Is it fair to say that the Department was not remotely
interested in securing the elections in North Carolina, rather
that its intent was abusing its subpoena powers and wielding
its mandate to protect our elections in a thinly veiled effort
to suppress minority elections and populations?
Mr. Whitaker. The Department of Justice is committed to
upholding the voting rights of all Americans.
Mrs. McBath. I understand that. But what I need you to
clarify for me is what actions were taken for all of the voting
rights to be upheld, because you have stated earlier--your
statement earlier was that you were side-by-side with Attorney
General Sessions advising him on all aspects of the Department,
yet you don't know--but at this point, you are saying you don't
appear--you do not suspect that there was any voter
suppression. So what I am asking is that, do you not know of
any voter suppression, or do you not know whether or not those
laws are being enforced?
Mr. Whitaker. I don't believe I said that I am not aware
that there might have been voter suppression. Did I--that is
something you heard me say?
Mrs. McBath. I am just asking you, might it be the case
that you were not aware of any voter suppression?
Mr. Whitaker. Well, at the Department of Justice, I sit
atop a massive organization, as you can imagine, and cases
regarding voter suppression, voter fraud, or really any
enforcement of the Voting Rights Act or other statutes is done
by U.S. attorneys and FBI agents that are in the district doing
those cases. And so it would be unusual that I would have
specific knowledge about any of the evidence in those cases.
So, you know, obviously, we do our cases free of political
interference, and if there is evidence of, as you suggest,
voter suppression, and we can predicate investigation, that is
something we will seriously look at.
Mrs. McBath. So did the Department assess the need for
election monitors in the 2019 elections?
Mr. Whitaker. I think I--I mentioned in my opening
statement that we sent out 35 Civil Rights Divisions teams to I
believe 19 States, if I remember right. I might be wrong, and I
would refer you back to my statement, but I--we did send out
election monitors from the Civil Rights Division.
Mrs. McBath. Okay. Because I was in Georgia, and I can tell
you, I saw the problems, but I didn't see the election
monitors. Did you send any that you are aware of?
Mr. Whitaker. As I sit here today, I do not know if Georgia
received what I am describing. Obviously, we would have--we
would have--the Civil Rights Division would have determined
where those assets could be deployed. I know in the 2004
election when I was U.S. attorney, the Civil Rights Division
sent, I think, three or four lawyers to my office to monitor
the elections in Des Moines, so I wouldn't be surprised that
they did send election monitors to Georgia.
Mrs. McBath. Well, I can tell you, I--I really think that
we needed them, and I am very disappointed in the numbers that
we received. We needed far more help than we--than we got.
But also, on February 1, the committee sent you a letter
asking again for information on the Department's voting rights
enforcement, and these questions were asked by members during
the 115th Congress but were never answered. Will you commit to
providing this information for this committee?
Mr. Whitaker. We try to respond to all the letters we
receive from Congress. Obviously, February 1 was I believe only
a--a week or so ago. I have kind of lost track of what day it
is, but yeah. I mean, we will--we will look at that letter and
we will respond consistent with the way we respond to requests
from Congress. But I mean, these are important issues, and I--
and I share your concern about some of these places where there
is alleged voter suppression. And I know that we are going to
enforce the voters rights, the Voting Rights Act robustly, and
we will continue--again, if--if there is evidence, we should
get that to our FBI and the people that enforce these laws so
we can properly predicate an investigation.
Mrs. McBath. Okay. Well, thank you for that, because if we
don't get answers, I promise you, we will keep asking.
Another question that I have is what steps did the
Department take to support election security efforts during the
2018 election, specific efforts?
Mr. Whitaker. Are you talking about the actual voting
devices----
Mrs. McBath. Yes.
Mr. Whitaker [continuing]. Or--the responsibility for the
security of the voting devices, the machines, is actually the
responsibility of the Department of Homeland Security.
Mrs. McBath. Uh-huh. Can you tell this committee what
those--what those responsibilities were, those steps that were
actually taken? Because I can tell you, there were many, many
instances in Georgia we saw over and over again where people
were not allowed to vote.
Chairman Nadler. The time of the gentlelady has expired.
The gentleman--the witness may answer the question.
Mr. Whitaker. Again, if there is specific evidence that
crimes have been committed, we would be very interested in that
at the Department of Justice.
Mrs. McBath. Thank you.
Chairman Nadler. Thank you.
Ms. Stanton--Mr. Stanton.
Mr. Stanton. Thank you very much, Mr. Chair.
Mr. Whitaker, thank you for appearing before us here today.
Your time as Acting Attorney General is near end. After that,
you may or may not be working for the Department of Justice or
another position within the Trump administration, but there
are, of course, several congressional investigations that
involve yourself. And I want you here today to pledge that you
will answer any Inspector General questions and cooperate fully
with his investigations even after you depart from your current
position.
Mr. Whitaker. Are you talking about the DOJ Office of
Inspector General?
Mr. Stanton. Yes, sir. The Justice Department's Inspector
General is currently considering several congressional requests
for information and investigations that involve you. Since you
will be leaving this position soon, I want you to commit here
today in front of this committee that you will answer the IG's
questions and cooperate fully with those investigations.
Mr. Whitaker. I am happy to commit to that. I will
cooperate with the Inspector General. Michael Horowitz is a
fine DOJ career employee. I have the utmost respect for him. I
think he has done exceptional work.
Mr. Stanton. Excellent. Thank you so much.
The impact of the government shutdown on the functioning of
the Department of Justice, the law enforcement functions, is it
fair to say that the shutdown was devastating on the ability of
the Department to do their work?
Mr. Whitaker. The shutdown really was a difficult time at
the Department of Justice, because most of our employees are
law enforcement and are--you know, are excepted in their
performance of their duties, and so they showed up every day
like dedicated public servants and did their job knowing that
you here in Congress would ultimately pay them and come to some
resolution of the shutdown.
Mr. Stanton. We appreciate your recognition of that. I
think every person up here, in a bipartisan way, would agree
that the work of the rank-and-file members of the Department of
Justice, FBI, the other law enforcement officials is
outstanding. It seems appropriate, then, that the Department
did issue a memorandum saying that, during the time of the
shutdown, ancillary functions of the Department that involve
travel would be not allowed. Is that accurate?
Mr. Whitaker. I don't have that memo in front of me, but
that is consistent with my understanding of our guidance in
that regard.
Mr. Stanton. On January 13, 2019, in the middle of the
government shutdown, did you travel to give a speech to The
Heritage Foundation?
Mr. Whitaker. Congressman, this is an important question,
but I want to be very clear. I have 24/7 security detail that--
that drives me everywhere, and so the term ``travel,'' I am not
sure what you mean. I went to Capitol Hill to give a speech to
The Heritage Foundation, yes.
Mr. Stanton. Okay. Would you consider that activity, a
speech to The Heritage Foundation, to be an ancillary function
of the Department?
Mr. Whitaker. You know, Congressman, again, I had no other
way to get to a speech that I had committed to give before the
shutdown.
Mr. Stanton. Thank you. The speech involved the topic of
RFRA and the Commemorate RFRA. In October 2017, during the time
that you were Chief of Staff to the Attorney General, the
Attorney General's office did issue guidance on the--on Federal
law for religious liberty. The guidance involved expansion of
exemptions to RFRA at a religious liberty summit held in the
summer of 2018. Attorney General Sessions announced the
formation of the Religious Liberty Task Force to further
coordinate implementation of the guidance across the Federal
departments at agencies. It is fair to say that there has been
limited public information on the task force and its work. The
only public documentation is a 2-page memorandum issued
establishing the task force. Are you aware of any additional
documents or guidance that further explain the task force's
mandate and processes?
Mr. Whitaker. No, I am not familiar with any additional----
Mr. Stanton. Do you know what the budget is of the task
force?
Mr. Whitaker. I do not believe, as I sit here today, that
we have actually effectuated the task force yet, and so I
don't--you know, again, it is going to be an internal task
force that would come--that would have no specific separate
budget.
Mr. Stanton. Will you commit that during the remaining time
that you are attorney--Acting Attorney General to provide to
this committee any additional details regarding that task
force, which has been in place now for, I guess, 7 months or
more?
Mr. Whitaker. Yes. Congressman, I will be happy to follow
up in writing with you or someone from the Office of
Legislative Affairs about that religious liberty task force.
Mr. Stanton. Recently, HHS interpreted RFRA to allow a
Christian-based foster cage--foster care agency that does
receive Federal tax dollars to discriminate against a potential
foster parent because they happened to be Jewish. Do you know
if the Justice Department stands behind this HHS determination
that a taxpayer subsidized organization can discriminate
against a Jewish individual?
Mr. Whitaker. I am certain that the Department of Justice
will defend that--that position of a--of a sister agency.
Mr. Stanton. Thank you very much.
Chairman Nadler. The time of the gentleman has expired.
Ms. Dean.
Ms. Dean. Thank you, Mr. Chairman, and thank you, Mr.
Whitaker, for agreeing to appear before us today. And I am
delighted to hear of your Department's focus on the scourge of
gun violence, and so I look forward to your full endorsement
and support for H.R. 8, the universal background check bill.
Today you said a couple of things that really touched me.
You said that you have to set the tone of the Department, and
you said that the job you are doing now is the honor of a
lifetime. All of us here can quite imagine that. I believe that
actually you do, as the head, as the Acting AG, set the tone
for the Department.
Tell me--and this is not a negative question. It is just a
factual question--how many positions did you interview for with
this administration prior to you going to the Department of
Justice?
Mr. Whitaker. As we previously explored with one of your
colleagues, I had interviewed preliminarily for the position
that ultimately Ty Cobb occupied and then Emmett Flood I think
currently occupies, and then I interviewed with General
Sessions and some of his staff for the chief of staff job. So
in fact, I--I had never--after the election of 2016, I had
never intended to come into the administration, but I was--you
know, I was--I was happy to be asked, and I explored
opportunities. And those are the two that I interviewed for.
Ms. Dean. And in the meantime, in your private life, you
became a commentator on CNN and other places, and you
disparaged the Mueller investigation. Is that true?
Mr. Whitaker. I used my experience as a United States
attorney----
Ms. Dean. Is it true? Yes or no?
Mr. Whitaker. No. I wouldn't characterize it as
disparagement, no. I--I think I tried to explain to the
American people, when I was on CNN and--and other outlets, how
the process worked, how the process for appointment, how the
process for----
Ms. Dean. No, I am not asking you about process. I am
asking you about the subject and the investigation and--and the
validity of the investigation. We know--the record is public--
that you did say very negative things in your private life, and
you have said today you are not willing to take those back, so
they stand. Your thoughts on the Mueller investigation are
fully public and they stand because you did not take them back
today.
How did you learn of the extraordinary honor that was
bestowed upon you? How did you learn you got the job?
Mr. Whitaker. You know, I can't remember if it was--which
preceded which, but I--I believe I received a phone call from
the President of the United States asking me to be the Acting
Attorney General.
Ms. Dean. A moment ago you said you learned by tweet. Did I
misunderstand you?
Mr. Whitaker. Yeah, I think you did.
Ms. Dean. Okay. So it was--you learned first by a phone
call from the President?
Mr. Whitaker. I believe so, but they were very close in
time, and so I--actually as I sit here right now, I can't
remember which preceded which.
Ms. Dean. Okay. And how long was that phone call? Was it
just simply, I am letting you know of this, or was there
substantive conversation about your role?
Mr. Whitaker. Well, I am not going to discuss the private
conversations I have had with the President. I think it is
important that he is entitled to that confidentiality from a
Cabinet secretary, even acting like I am.
Ms. Dean. Okay. Tell me your----
Mr. Whitaker. I will tell you that it was not a substantive
phone call.
Ms. Dean. It was an honorary--an honor phone call,
probably.
And following that and the tweet, when did you next meet
with the President about your job? Because it is during this
time you have to decide----
Mr. Whitaker. Congresswoman, I don't remember.
Ms. Dean. It was during this time, in that month or more,
that you have to decide whether or not to recuse. Am I right?
So how many times did you meet with the President prior to your
decision not to recuse?
Mr. Whitaker. Congresswoman, while I am not going to
discuss any meetings that I have had with the President nor
conversations, I will tell you that I--I--I interact with the
President on a regular basis, including after I was appointed
Acting Attorney General.
Ms. Dean. You said you set the tone for the entire
Department, and so you had to carefully consider whether or not
to recuse yourself from any dealings with Robert Mueller----
Mr. Whitaker. Yeah. I spent 5 weeks--I spent 5 weeks
considering that question.
Ms. Dean [continuing]. Five weeks determining that. And you
got information from two sources, that we know of. Career
officials at the Justice Department recommended you recuse
yourself to avoid the appearance of a conflict or bias. Is that
correct? And that was on December 19. To avoid even the
appearance of a conflict or bias, based on your previous
statements. Is that correct? Is that the advice you got?
Mr. Whitaker. Congresswoman----
Ms. Dean. It is a yes or no, please. My time is running
out.
Mr. Whitaker. Congresswoman, I would just point you to the
letter----
Ms. Dean. And I have waited a long time. Please. It is a
yes or no.
Chairman Nadler. Answer the question.
Mr. Whitaker. This--this question is not a yes or no
because it is--it--you have to understand how it was my
decision to make.
Ms. Dean. I am not talking about your decision. I am
talking about the guidance that you received, not your
decision.
Mr. Whitaker. It was not their decision to make.
Ms. Dean. No, no, no. I am asking you factually about the
guidance you received. Career officials told you you should
recuse to avoid even the appearance of an impropriety of bias,
and you set the tone for your Department. Am I correct?
Mr. Whitaker. Congresswoman, they told me it was a close
call. They said it could go either way, and they said----
Ms. Dean. So to set the tone, you think on a close call,
you go the other way?
Mr. Whitaker. As the Attorney General, and not to bind my
successors, yes, I believe on a close call as the Attorney
General of the United States that I made the right decision. It
was my decision to make.
Ms. Dean. And yet you had--have I lost my time, Mr.
Chairman?
Chairman Nadler. Get this question out, and I will let him
answer it, and that will be that.
Ms. Dean. Would you be able to provide us the written
guidance that you got from the career professionals in terms of
recusal? They recommended recusal. Would you please provide
this committee that written document?
Mr. Whitaker. Congresswoman, that would require me to
provide you internal deliberations that are not typically
provided in this relationship, but I can tell you, as we sit
here today, I did not receive any written advice from the
career ethics officials.
Chairman Nadler. The time of the gentlelady has expired.
Ms. Dean. Thank you, Mr. Chairman.
Chairman Nadler. You are welcome.
Ms. Mucarsel-Powell.
Ms. Mucarsel-Powell. Thank you, Mr. Chairman.
Mr. Whitaker, I want to go back to your time when you
worked for the Foundation for Accountability and Civil Trust. I
worked for many, many years for various 501(c)(3)s, so I--it is
very interesting to me, when I look at the board, is this a
private or a public foundation? FACT, is that--the 501(c)(3).
Is it a private or a public?
Mr. Whitaker. It is a 501(c)(3). I don't know.
Ms. Mucarsel-Powell. There are two separate types.
Mr. Whitaker. Congresswoman, I don't have the 990 filings
or----
Ms. Mucarsel-Powell. But you worked there from 2014 to
2017?
Mr. Whitaker. I was.
Ms. Mucarsel-Powell. And you were the executive director
for the foundation.
Mr. Whitaker. Yes, I was.
Ms. Mucarsel-Powell. But you don't know if it is a private
or a public?
Mr. Whitaker. I haven't worked for FACT in 16 months and
I--in my preparation for this oversight hearing----
Ms. Mucarsel-Powell. Okay. Thank you. Thank you, Mr.
Whitaker.
Mr. Whitaker [continuing]. I didn't review the filings, so
I don't know which----
Ms. Mucarsel-Powell. So were there only--thank you, Mr.
Whitaker. Thank you.
Were there only three board members in this 501(c)(3)?
Mr. Whitaker. I believe there were--yes, there were three
board members.
Ms. Mucarsel-Powell. William Gustoff, Neil Corkery, Matthew
Whitaker, correct?
Mr. Whitaker. Yeah.
Ms. Mucarsel-Powell. Okay. So it is also my understanding
that you filed numerous FEC complaints while working there?
Mr. Whitaker. All of our complaints were posted online.
Ms. Mucarsel-Powell. Were they FEC complaints, Mr.
Whitaker? You filed FEC complaints.
Mr. Whitaker. We filed all--we filed many different types
of complaints that were--that were very similar to----
Ms. Mucarsel-Powell. Were--did you file FEC complaints? I
am just--this is very--you worked as the executive director of
this 501(c)(3). Did you file FEC complaints? Very----
Mr. Whitaker. Yes.
Ms. Mucarsel-Powell. Very easy----
Mr. Whitaker. Yes. Yes. We filed FEC complaints, in
addition to others.
Ms. Mucarsel-Powell. And--and who made the decision to file
these complaints?
Mr. Whitaker. I was the executive director. I believe I
signed all, if not all of those----
Ms. Mucarsel-Powell. Did you make the sole decision to file
these complaints or were you directed----
Mr. Whitaker. No.
Ms. Mucarsel-Powell [continuing]. By any----
Mr. Whitaker. I was not directed. I--I was the executive--
--
Ms. Mucarsel-Powell. You did that on your own?
Mr. Whitaker. Yes. We were an independent nonpartisan----
Ms. Mucarsel-Powell. 501(c)(3). Nonpartisan.
Mr. Whitaker. Ethics watchdog, yes.
Ms. Mucarsel-Powell. It is a nonpartisan.
Did you file any FEC complaints against any Republicans?
Mr. Whitaker. As I sit here today, I don't recall, but I
mean, all of our complaints----
Ms. Mucarsel-Powell. Okay.
Mr. Whitaker [continuing]. Are posted online.
Ms. Mucarsel-Powell. Thank you. Thank you, Mr. Whitaker.
I would like to ask for unanimous consent to make part of
the record the restriction of political campaign intervention
by section 501(c)(3) tax-exempt organizations, and it reads:
Under the Internal Revenue Code, all section 501(c)(3)
organizations are absolutely prohibited from directly or
indirectly participating in or intervening in any political
campaign on behalf of or in opposition to any candidate for
elected public office.
Chairman Nadler. Without objection.
[The information follows:]
MS. MUCARSEL-POWELL FOR THE
OFFICIAL RECORD
=======================================================================
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Ms. Mucarsel-Powell. Thank you.
I have some other questions here, if you give me some time.
All this time I am waiting, and I can't find the--the
questions. No. No. Thank you.
This pertains to also an issue that is very close and dear
to my heart, LGBTQ issues. In October 2017, the Department of
Justice withdrew a 2014 memo which stated that the best reading
of the Title VIII--Title VII prohibition on sexual
discrimination in the workplace encompasses antitransgender
discrimination. The new memo instructs the Department of
Justice attorneys to now argue that Federal law does not
protect transgender workers from discrimination.
Are you familiar with both memos?
Mr. Whitaker. Yes, I am familiar with those memos that do
not extend Title VII to LGBTQ.
Ms. Mucarsel-Powell. Thank you. And at the time of the
reversal, were you serving as the chief of staff for Attorney
General Sessions, correct?
Mr. Whitaker. I served as chief of staff from October 4 of
2017 until I was appointed Acting Attorney General in 2018.
Ms. Mucarsel-Powell. So who ordered the reversal of this
policy?
Mr. Whitaker. I am--I am certain it was Attorney General
Sessions who sets the entire policy for the Department of
Justice.
Ms. Mucarsel-Powell. And who drafted the new memo?
Mr. Whitaker. I don't have--as I sit here today, I--I don't
have any idea. That would be deliberative work done by, I am
sure, many people at the Department of Justice.
Ms. Mucarsel-Powell. Any outside groups that were involved
in the process?
Mr. Whitaker. Not that I am aware of, but again, I wasn't--
I wasn't directly----
Ms. Mucarsel-Powell. And do you stand by the Department's
decision to reserve its position that Title VII protects
transgender people from discrimination?
Mr. Whitaker. Congresswoman, I think a plain reading----
Ms. Mucarsel-Powell. Please just answer the question. Do
you stand by the Department's decision to reverse its position
that Title VII protects transgender people from discrimination?
Mr. Whitaker. If Congress wants Title VII to extend to
transgender people, you can change the law. We cannot read into
something that is not the law.
Ms. Mucarsel-Powell. So I take that as yes. Okay.
Do you believe that members of the LGBTQ community should
not be protected under Federal discrimination laws?
Mr. Whitaker. Again, Congresswoman, I personally believe
that discrimination of any kind shouldn't happen, but I will
tell you that Title VII----
Ms. Mucarsel-Powell. Mr. Whitaker, yes or no, please. I
don't have much time. Do you believe that members of the LGBT
community should not be protected under Federal discrimination
laws?
Mr. Whitaker. The plain reading----
Ms. Mucarsel-Powell. Yes or no.
Mr. Whitaker. The plain reading----
Ms. Mucarsel-Powell. Yes or no.
Mr. Whitaker [continuing]. Of Title VII----
Ms. Mucarsel-Powell. Yes or no.
Mr. Whitaker [continuing]. Does not extend----
Ms. Mucarsel-Powell. Okay. Thank you.
Mr. Whitaker [continuing]. To transgender, and you uniquely
control what is the law. We merely enforce the law.
Ms. Mucarsel-Powell. Do I still have time, Mr. Chairman?
Chairman Nadler. The gentlelady's time has expired.
Ms. Escobar.
Ms. Escobar. Thank you, Mr. Chairman.
Mr. Whitaker, this hearing began this morning at 9:30. I
have been waiting almost 6 hours. It is nearly 3:30 in the
afternoon. I have been waiting nearly 6 hours to ask my
questions. I am going to ask you for a favor. Out of respect
for this committee, out of respect for me as a Member of
Congress, I am going to ask that you try not to run out the
clock and that you please answer my questions with a yes or a
no, and if I have a followup, that you please answer the
followup as succinctly as possible.
Mr. Whitaker. Congresswoman, with all due respect----
Ms. Escobar. I am sorry. Excuse me. If I could please get
my statement out, sir.
Mr. Whitaker. With all due respect, I am going to answer
your questions.
Ms. Escobar. I have watched you do that to every member on
this committee. I am asking that you please----
Mr. Whitaker. Because a lot of questions don't have yes no
answers.
Chairman Nadler. The time belongs to the member.
Ms. Escobar. Thank you.
I represent El Paso, Texas. I live on the safe, secure,
vibrant U.S.-Mexico border. Unfortunately, my community, one of
tremendous goodwill and generosity, has been ground zero for
many of this administration's cruel anti-immigrant, anti-
American policies, including family separation, child detention
in tents, the ongoing prevention of asylum seekers from
stepping foot on American soil at our ports of entry, and in
December, the death of two immigrant children in U.S. custody.
Earlier, you said you believed every life is valuable, and
I would hope and assume that that includes the lives of the
most vulnerable among us.
There is a new policy that is about to unfortunately be
rolled out in my community called the Migrant Protection
Protocol, which I believe is a misnomer for a dangerous and, in
some cases, deadly and I believe also an illegal policy that
allows our government to return migrants and asylum seekers
back to Mexico while they await their asylum hearing.
Here is my question. Because the Department of Justice
oversees the Executive Office for Immigration Review, will the
Department of Justice ensure that asylum seekers have access to
counsel in Mexico in order to allow them to prepare for their
hearings? Yes or no.
Mr. Whitaker. We are going to continue to follow the
policies at EOIR that are currently in place.
Ms. Escobar. Will you facilitate, assist, help ensure that
asylum seekers have access to legal counsel in Mexico? Yes or
no.
Mr. Whitaker. Congresswoman, there is a very well-defined
process for asylum seekers to obtain counsel and we are going
to continue to follow that. I----
Ms. Escobar. Mr. Whitaker, even while they are in Mexico?
Mr. Whitaker. As the Acting Attorney General, I--I cannot
make an assurance, especially regarding what happens in a
foreign country. I mean, I--I know you understand that.
Ms. Escobar. And this is part of the reason why this is
such a terrible policy.
Another question. About a week after the policy was
announced, reports surfaced that immigrant rights advocates and
attorneys were denied entry into Mexico. The attorneys said
their passports had been flagged, and reports also indicated
that this was not an issue on the Mexican side, but it was on
the U.S. side. Did the Department of Justice have anything to
do with flagging these passports?
Mr. Whitaker. Congresswoman, I am not familiar with the
situation you are describing, but I am happy to look into it
and get back to you.
Ms. Escobar. Thank you.
Another question related to this issue. Does the Department
of Justice have an immigrant advocate watch list?
Mr. Whitaker. Congresswoman, I am not aware of the question
you are asking me, the answer to it, so I am happy to look into
it and get back to you, but I just----
Ms. Escobar. Thank you. I appreciate that.
Mr. Whitaker. That is not something that sounds familiar
and that I prepared for today.
Ms. Escobar. I look forward to the answers to those
questions.
Now, switching gears a little bit. At the President's State
of the Union address, he claimed that my community, El Paso,
Texas, quote, used to have extremely high rates of violent
crime, one of the highest in the entire country, end quote, and
he claimed that we became one of the safest communities in
America because of the wall.
Data from the FBI's Uniform Crime Reporting Program shows
that El Paso has historically been one of the safest
communities in the--in the Nation and that we were such long
before a wall was constructed. Do you have any reason to
disagree with the FBI's Uniform Crime Reporting data?
Mr. Whitaker. Congresswoman, we use the UCR on a regular,
ongoing basis to not only know where our crime hot spots are,
but to also put our resources at the Department of Justice.
Ms. Escobar. Sir, that is not my question. Let me repeat my
question.
Mr. Whitaker. Okay.
Ms. Escobar. Do you have any reason to disagree with the
FBI's Uniform Crime Reporting data?
Mr. Whitaker. Congresswoman, I think the UCR----
Ms. Escobar. Do you have any reason, sir, to disagree with
your FBI's data?
Mr. Whitaker. As I sit here today----
Ms. Escobar. Yes or no.
Mr. Whitaker [continuing]. I do not have any reason to
disagree----
Ms. Escobar. Okay. Great. Perfect.
Mr. Whitaker [continuing]. With the FBI's data.
Ms. Escobar. Thank you very much.
Switching gears again. Did you ever create----
Chairman Nadler. The gentlelady's time has expired. I will
let her finish this one question.
Ms. Escobar. Thank you, Chairman.
Did you ever create, direct the creation of, see, or become
aware of the existence of any documents relating to pardons of
any individual?
Mr. Whitaker. I am aware of documents relating to pardons
of individuals, yes.
Chairman Nadler. The gentlelady's time as expired.
I am going to ask one question to follow up on the
gentlelady's. Sir, since it is, well, black letter law that
someone in the United States may apply for asylum, that any
person who applies for asylum and states a reason therefore is
entitled to have that claim adjudicated, that that person is
entitled to legal assistance as that claim is adjudicated,
doesn't it strike you that a policy that says that people who
set foot on American soil and claim asylum will be sent to a
foreign country where they may not have access to legal help
which they are constitutionally guaranteed for their asylum
adjudication may have a constitutional problem?
Mr. Whitaker. Congressman, I am sure you are aware that
Federal law allows asylum seekers to be returned to a safe
third country.
Chairman Nadler. I am not aware, though, that it allows
people not to--that it allows the government to do something
that effectively eliminates their right to counsel for their
asylum claim.
This concludes today's hearing. I want to thank all the
members who are still here for their patience and their
fortitude. I want to thank Attorney General Whitaker for
appearing today.
Ms. Jackson Lee. Mr. Chairman?
Chairman Nadler. Ms. Jackson Lee.
Ms. Jackson Lee. Thank you. I am not asking--I am putting
these questions on the record.
Chairman Nadler. Excuse me. Submit them for the record.
Without objection, the questions are admitted.
[The information follows:]
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Ms. Jackson Lee. And the article--and two articles,
articles--three articles, for the record, GQ, Washington Post,
New York Times, and also an article by Shane Crouch.
Chairman Nadler. Without objection, the articles are
admitted.
[The information follows:]
MS. JACKSON LEE FOR THE OFFICIAL RECORD
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Chairman Nadler. Before we adjourn, I want to note for the
record that--Mr. Whitaker, that you owe us responses on a
number of issues raised here today, responses that we intend to
secure, including but not limited to the times and dates you
were briefed on the special counsel's investigation, your
communications with the President after you received those
briefings, the basis for your statement that the special
counsel's investigation is reaching its conclusion, and whether
you told the special counsel not to take any specific
investigative or prosecutorial steps.
I would also note that your testimony was, at best,
inconsistent on the topic of your communications with the White
House prior to your tenure at the Department. It is not
credible that you both interviewed for a job handling the
President's response to the special counsel's investigation and
never conveyed your opinions about that investigation to the
White House.
We require answers to these questions. I ask the Department
to work with the committee to provide them. As part of that
work, I fully intend to call you back for an interview under
subpoena, if necessary, and I expect more fulsome answers at
that time.
Without objection, all members will have 5 legislative days
to submit additional written questions for the witness or
additional materials for the record.
And with the thanks of the chairman, the hearing is
adjourned.
[Whereupon, at 3:23 p.m., the committee was adjourned.]
APPENDIX
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