[House Hearing, 116 Congress]
[From the U.S. Government Publishing Office]
OVERSIGHT OF THE CIVIL RIGHTS DIVISION OF
THE DEPARTMENT OF JUSTICE
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON THE
CONSTITUTION, CIVIL RIGHTS, AND CIVIL
LIBERTIES
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED SIXTEENTH CONGRESS
SECOND SESSION
__________
SEPTEMBER 24, 2020
__________
Serial No. 116-88
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Printed for the use of the Committee on the Judicary
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
Available http://judiciary.house.gov or www.govinfo.gov
__________
U.S. GOVERNMENT PUBLISHING OFFICE
42-636 WASHINGTON : 2022
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COMMITTEE ON THE JUDICIARY
JERROLD NADLER, New York, Chairman
MARY GAY SCANLON, Pennsylvania, Vice-Chair
ZOE LOFGREN, California JIM JORDAN, Ohio,
SHEILA JACKSON LEE, Texas Ranking 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 DOUG COLLINS, Georgia
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
SYLVIA R. GARCIA, Texas BEN CLINE, Virginia
JOE NEGUSE, Colorado KELLY ARMSTRONG, North Dakota
LUCY McBATH, Georgia W. GREGORY STEUBE, Florida
GREG STANTON, Arizona
MADELEINE DEAN, Pennsylvania
DEBBIE MUCARSEL-POWELL, Florida
VERONICA ESCOBAR, Texas
Perry Apelbaum, Majority Staff Director & Chief Counsel
Christopher Hixon, Minority Staff Director
------
SUBCOMMITTEE ON THE CONSTITUTION, CIVIL RIGHTS, AND CIVIL LIBERTIES
STEVE COHEN, Tennessee, Chair
JAMIE RASKIN, Maryland MIKE JOHNSON, Louisiana,
ERIC SWALWELL, California Ranking Member
MARY GAY SCANLON, Pennsylvania, LOUIE GOHMERT, Texas
MADELEINE DEAN, Pennsylvania GUY RESCHENTHALER, Pennsylvania
SYLVIA R. GARCIA, Texas BEN CLINE, Virginia
VERONICA ESCOBAR, Texas KELLY ARMSTRONG, North Dakota
SHEILA JACKSON LEE, Texas
James Park, Chief Counsel
C O N T E N T S
----------
September 24, 2020
OPENING STATEMENTS
Page
The Honorable Steve Cohen, Chairman, Subcommittee on the
Constitution, Civil Rights, and Civil Liberties from the State
of Tennessee................................................... 1
The Honorable Mike Johnson, Ranking Member, Subcommittee on the
Constitution, Civil Rights, and Civil Liberties from the State
of Louisiana................................................... 5
The Honorable Jerrold Nadler, Chairman, Committee on the
Judiciary from the State of New York........................... 13
The Honorable Jim Jordan, Ranking Member, Committee on the
Judiciary from the State of Ohio............................... 14
WITNESSES
Catherine E. Lhamon, Chair, U.S. Commission on Civil Rights
Oral Testimony................................................. 16
Prepared Testimony............................................. 19
Sherrilyn Ifill, President and Director-Counsel, NAACP Legal
Defense and Educational Fund
Oral Testimony................................................. 30
Prepared Testimony............................................. 33
Thomas A. Saenz, President and General Counsel, Mexican American
Legal Defense and Educational Fund
Oral Testimony................................................. 41
Prepared Testimony............................................. 44
Hiram Sasser, Executive General Counsel, First Liberty Institute
Oral Testimony................................................. 48
Prepared Testimony............................................. 50
Sharon M. McGowan, Chief Strategy Officer and Legal Director,
Lambda Legal
Oral Testimony................................................. 57
Prepared Testimony............................................. 60
Sam Mabrouk, Small Business Owner, Columbus, Ohio
Oral Testimony................................................. 71
Prepared Testimony............................................. 73
Michael Waldman, President, Brennan Center for Justice, New York
University School of Law
Oral Testimony................................................. 74
Prepared Testimony............................................. 76
Jonathan M. Smith, Executive Director, Washington Lawyers'
Committee for Civil Rights and Urban Affairs
Oral Testimony................................................. 89
Prepared Testimony............................................. 92
LETTERS, STATEMENTS, ETC. SUBMITTED FOR THE HEARING
A letter from Stephen Boyd to Chairman Nadler regarding AAG Eric
Dreiband's congressional testimony, submitted by the Honorable
Mike Johnson, Ranking Member, Subcommittee on the Constitution,
Civil Rights, and Civil Liberties from the State of Louisiana
for the record................................................. 10
A memo from Attorney General Sessions to U.S. Attorneys regarding
civil consent decrees, submitted by the Honorable Sheila
Jackson Lee, Subcommittee on the Constitution, Civil Rights,
and Civil Liberties from the State of Texas for the record..... 132
APPENDIX
Statement submitted by the Honorable Sheila Jackson Lee,
Subcommittee on the Constitution, Civil Rights, and Civil
Liberties from the State of Texas for the record............... 141
OVERSIGHT OF THE CIVIL RIGHTS DIVISION OF THE DEPARTMENT OF JUSTICE
----------
THURSDAY, SEPTEMBER 24, 2020
House of Representatives
Subcommittee on the Constitution, Civil Rights, and Civil Liberties
Committee on the Judiciary
Washington, DC.
The subcommittee met, pursuant to call, at 9:33 a.m., 2141
Rayburn Building, Hon. Steve Cohen [chairman of the
subcommittee] presiding.
Present: Representatives Cohen, Nadler, Raskin, Scanlon,
Dean, Garcia, Escobar, Jackson Lee, Jordan, Johnson of
Louisiana, Gohmert, and Cline.
Staff present: David Greengrass, Senior Counsel; John Doty,
Senior Advisor; Madeline Strasser, Chief Clerk; Jordan Dashow,
Professional Staff Member; Anthony Valdez, Staff Assistant;
John Williams, Parliamentarian; James Park, Chief Counsel;
Keenan Keller, Senior Counsel; Will Emmons, Professional Staff
Member; James Lesinski, Minority Counsel; Kiley Bidelman,
Minority Clerk.
Mr. Cohen. The Committee on the Judiciary--this is the
Subcommittee on the Constitution, Civil Rights, and Civil
Liberties--will come to order.
Without objection, the chair is recognized to declare
recesses of this subcommittee at any time. I welcome everyone
to today's hearing on the ``Oversight of the Civil Rights
Division of the Department of Justice,'' a lonely place.
I thank all of our witnesses for joining us today.
Before we begin, I would like to remind members we have
established an email address and distribution list dedicated to
circulating the exhibits, motions, and other written materials
that members might want to offer as part of our hearing today.
If you would like to submit materials, please submit them
to judiciarydocs--that is d-o-c-s as in doctors--judiciarydocs
@mail.house.gov. We will distribute them to members and staff
as quickly as we can.
I will now recognize myself for an opening statement. With
the authority to enforce this nation's civil rights laws, the
Department of Justice's Civil Rights Division is supposed to be
the guardian of our most cherished and fundamental rights: the
rights to be treated equally, the right to cast a vote in a
free and fair election regardless of race, the right to obtain
a job, a home, or an education free from discrimination, and
the right to exist in a society where the police respect your
constitutional rights and your rights as a human being.
So that is a pretty good group of rights to protect,
treated equally regardless of race, free from discrimination,
and exist in a society where the police respect your rights.
Over 60 years ago, Congress passed the Civil Rights Act of
1957, when Dwight Eisenhower was president, and as some people
we know would say, you know, Dwight Eisenhower was a
Republican, just like Abraham Lincoln.
To protect the voting rights of Black Americans and other
minorities, it was the first civil rights law Congress had
passed since Reconstruction. It would later be overshadowed in
importance by the Voting Rights Act of 1965 and, of course, the
Civil Rights Act of 1964.
He represented a start of the reinvigorated effort by the
federal government to ensure that all Americans could exercise
their right to vote. The Civil Rights Act of 1957 established
the Civil Rights Division in Justice.
It is important to highlight that the very genesis of the
Civil Rights Division was rooted in a renewed federal effort to
protect voting rights. The right to vote is the foundation
right upon which all other rights I have previously described,
ultimately, rest.
Voting rights in the '50s were, of course, most in jeopardy
in the South. It is why I am especially concerned about efforts
around the country since the Supreme Court's decision in Shelby
County v. Holder to prevent Americans from exercising the right
to vote.
Since Shelby County, we have seen the enactment of various
voter ID laws with the purpose and effect of preventing people
from voting under the pretext of protecting the integrity of
elections.
Many of you may remember Shelby County v. Holder in a
wonderful dissent written by the late Justice Ruth Bader
Ginsburg.
These efforts are not without precedent in our country.
Literacy tests, grandfather clauses, and poll taxes had been
used to silence the voices of Black Americans and other
minorities that those in power did not want to hear from.
Literacy tests would have failed Albert Einstein. They were
impossible to pass for the most brilliant of human beings
because they were designed by some of the less brilliant to
make them the predominant voice.
Today, we see different methods intended to achieve that
same end such as voter roll purges, which include removal of
voters we know for a fact are qualified, or the requirement of
particular forms of voter identification that we know some
segments of the population are less likely to possess.
Yet, where is the Civil Rights Division? Where is the
guardian of our civil rights? It pains me to say that despite
its righteous history and traditional role, the Civil Rights
Division, appears under the Trump administration, to have
abandoned its historical mandate to protect voting rights, more
interested in protecting other newfound important rights that
sometimes trample on other people's rights.
Since the start of this administration, the Civil Rights
Division has filed zero new Voting Rights Act cases until this
past May, and none that enforce the rights of Black and Latino
voters. It has also abruptly changed positions in several
existing voting rights cases including a case against a
racially discriminatory voter ID law in Texas and a challenge
to a purge of Ohio's voter rolls.
As bad as this is, it is not the only change for the worse
we have seen in the Civil Rights Division since the start of
the current administration.
Under the former attorney general, Jeff Sessions, the
division sought to curtail the use of consent decrees as a tool
to reform police departments that engaged in a pattern and
practice of unconstitutional conduct, asserting that such
decrees reduced the morale among officers and had the effect of
increasing violent crime.
Reduce the morale among officers. Despite the new wave of
protests against racial injustice and police violence that
began after the murder of George Floyd, these policies have
continued under Attorney General Bill Barr.
One of the purposes of justice is to bring peace to
communities. Yet, Attorney General Barr has only intensified
the divisions and refused to allow Civil Rights Division to
perform what its function is supposed to be.
Indeed, despite a request from leading civil rights groups
and calls from the community, Attorney General Barr as so far
refused to allow DOJ to open a pattern or practice
investigation into systemic racial discrimination by the
Minneapolis Police Department following the killing of George
Floyd, perhaps thinking that the institution of law and order
on the streets from Washington was a better way to achieve that
and to boost the morale of the police.
The Civil Rights Division has become a twisted shadow of
its former self in Bill Barr's dystopian Justice Department and
under this administration. The division must answer for its
inaction or, in some cases, its active opposition to civil
rights enforcement.
With the guidance of our witnesses today it must chart a
new course, going forward.
Today, we have a special guest, or the absence of a special
guest. Normally, at a hearing like this the assistant attorney
general for civil rights would appear before us to testify
about the work of the Civil Rights Division custom and norms.
The assistant attorney general for civil rights have
typically appeared before this subcommittee for these hearings.
In July, when Attorney General Bill Barr acquiesced to
appear before this committee after refusing to do so over a
year earlier, when he chickened out because he didn't want to
have two attorneys, Mr. Eisen and his cohort, question him, I
asked at the insistence of my counsel on the committee--I asked
Mr. Barr to send Assistant Attorney General Eric Dreiband and
ask him to commit to sending him to testify before this
hearing.
He replied, in a condescending tone, ``I will talk to him
about it,'' and turned his head aside. And I asked him again. I
said, ``Will you get him to appear before this committee,'' and
once again, in that same condescending tone, he turned away and
said, ``I will talk to him about it.''
Well, I don't know what he said to him but Mr. Dreiband is
not here. There is a seat for him, just as there was a seat for
Mr. Barr in 2019, an unoccupied seat, showing the disdain they
have for this committee, for the legislative process, for the
House of Representatives.
And, apparently, they think the unitary president is not
just the president who controls the entire executive but
controls the entire government.
On August 28th, the committee sent a formal invitation to
Assistant Attorney General Dreiband to testify today, and on
Monday, in the latest pattern of a long-standing pattern of
complete obstruction, the Justice Department informed us that
Mr. Dreiband would not be appearing for this hearing.
Worse yet, the excuse that the department provided was
about as immature and unsophisticated as saying the dog ate my
homework. Evidently, the department feels we were too rough on
Attorney General Barr. We hurt his feelings.
We didn't treat him with the respect that previous attorney
generals deserved when he appeared before us and is, therefore,
refusing to send other officials to testify before this
committee.
That dog won't hunt. Under our system of checks and
balances, the Congress has the right and the obligation to
conduct vigorous oversight of the executive branch, and the
executive branch has the obligation to be responsive to
Congress's legitimate oversight inquiries, even those inquiries
which may be pointed in tone.
That is why the Congress is Article I. The Founding Fathers
intended Congress's Article I to be the top branch, the
people's representatives. The department's broad refusal to
cooperate with the committee's legitimate request not only
undermines our nation's constitutional system, a system in
which no branch is above scrutiny, but also does a disservice
to the public.
The American people who pay for the Justice Department and
who the department is supposed to serve have a right to know
what the Civil Rights Division has been doing and to assess the
quality of its performance, particularly as we approach an
election in which the people have a chance to render their
judgment about such a performance.
By keeping this subcommittee in the dark, the department
keeps the public in the dark. We know why they keep us in the
dark. Because they don't want to tell us what they have not
done.
This is totally unacceptable and I call upon the department
once again, and I know calling upon the vacant seat, calling
upon the department, asking Bill Barr to do anything is
fruitless.
But I will call once again, as my able and learned and wise
counsel suggested, asking Mr. Barr if he would ask Mr. Dreiband
to come before this committee, knowing that he would not do it
and I wasted 30 seconds of my time.
But we got him on the record to say he would discuss it.
And when I saw his condescending tone after I watched the film
of that, I realized it was wise that I didn't ask him questions
and I attacked him for destroying the First Amendment at
Lafayette Square and sending the troops in, because he wasn't
going to answer any questions appropriately.
His not sending his representative here, the people's
representative, is unacceptable and I will call upon the
department to make Assistant Attorney General Dreiband
available promptly to testify about the civil rights work of
his committee.
Now, my pleasure to recognize the ranking member of the
subcommittee, the gentleman from Louisiana, Mr. Johnson, for
his opening statement.
Mr. Johnson of Louisiana. Thank you, Mr. Chairman.
Good morning. Thanks, everybody, for being a part of this
hearing today. I am really just kind of stunned at the opening
statement by the chairman.
I respect you, my friend, but what you have said here is
just, clearly, in contradiction to the facts. I mean, you say
that the Civil Rights Division and the attorney general are
running a dystopian operation.
What is dystopian here is the way this committee has been
run for the last two years. Everybody can see this for
themselves. The American people have watched what has gone on
here--the lack of decorum, the danger it has done to the
legitimacy of this institution.
To say that the attorney general chickened out is just
outrageous. It is not only counterproductive rhetoric; it is
direct defiance to the history that is recorded on video that
every American can see for themselves.
It is theatrics. It is what all the Judiciary Committee has
become. For two years we have been doing theatrics. It is, of
course, in direct contradiction to what everybody can see for
themselves.
I just want to read--take a minute to read from this letter
that has just been criticized here. It is dated September 21
from the Office of the Assistant Attorney General in response
to the request to show up.
I will point out, first of all, there was no subpoena
issued for Mr. Dreiband. Of course, this committee uses
subpoenas all the time and, certainly, could have done that.
But instead, they sent a snarky letter, and this was the very
respectful response that they got back.
I will just read you a couple of excerpts. ``Dear Mr.
Chairman, I write in response to your August 28, 2020, letter
to Assistant Attorney General Eric Dreiband.''
It goes on, ``The Department of Justice recognizes that the
committee has a legitimate interest in oversight of the
department including the matters indentified in your letters.
That is why the attorney general himself recently appeared in
person to testify about these subjects and others at the
committee's oversight hearing on July 28th, 2020.
Prior to the attorney general's testimony, the committee
advised that the members would seek to ask him about the
policies of the Civil Rights Division with respect to police
conduct, the election, and voting rights that we just heard
about. Unfortunately''--skipping down--``when given the
opportunity to obtain information from the head of the
Department of Justice himself about precisely these matters,
many committee members chose instead to use their allotted time
to air grievances rather than attempt to obtain information
from the department that would assist the committee in
recommending legislation to the House.
Many members of the majority devoted their time entirely
towards scolding and insulting the attorney general of the
United States. These members refused to allow the attorney
general to respond to their accusations or to answer question
as for rhetorical effect.''
It goes down--just reading a couple excerpts. ``We very
much regret that the committee did not elect to engage in a
meaningful good faith effort to obtain information and views
from the attorney general while he was present and prepared
fully to testify.
Having squandered its opportunity to conduct a meaningful
oversight hearing with the AG, it remains unclear how further
public spectacles with other department officials would now, a
mere 14 legislative days since the attorney general's hearing,
advance the committee's oversight efforts.
In short, the attorney general recently appeared before the
committee, was available to address the topics that are to be
covered at today's hearing, and although the department is not
in a position to provide witnesses for these hearings at this
time, should the committee nonetheless continue to have
particular interest in obtaining information from the
department.
And should the committee commit to doing so in an
appropriate and productive manner, the department would be
happy to work with you regarding the scheduling of additional
oversight hearings in the future. Sincerely, signed Stephen
Boyd, Assistant Attorney General.''
The point is very clear. Everyone saw the spectacle. It has
become a point of comedy in the country. That hearing was just
absolutely outrageous.
I think it is going to backfire on our friends that tried
to use it for political purposes, and I do not begrudge in any
way Mr. Dreiband's not being here this morning because why
would he? It is another spectacle.
I am going to just say this in response to what was said
here in the beginning. The Civil Rights Division of the
Department of Justice, obviously, plays a very important role
in enforcing our nation's civil rights.
But rather than becoming--I just wrote the quote down. It
is rather incredible. A twisted shadow of its former self, as
the chairman said. Instead of that, the division has been very
active and innovative.
They have done some exceptional work over the last 3\1/2\
years. The division prosecutes cases involving hate crimes,
discrimination in education and housing, employment,
immigration and many other areas.
I spent most of my 20-year legal career prior to Congress
as a religious liberty defense attorney and I watch those areas
very closely because it is of personal interest to me.
I have been particularly grateful to the Trump
administration for the emphasis it has given to the protection
of our first freedom under his leadership. A couple of examples
just in this subcategory.
Under his leadership the assistant attorney general, Eric
Dreiband, the Civil Rights Division has taken affirmative steps
to protect the religious liberty of everyone.
In June of 2018, the DOJ launched its place to worship
initiative that focuses on ensuring that religious institutions
are not discriminated against in land use cases in violation of
RLUIPA, the Religious Land Use and Institutionalized Persons
Act.
To date, under this initiative the Civil Rights Division
has intervened in cases to protect the rights of churches,
synagogues, a Buddhist retreat center, a Hindu temple, and an
Islamic association.
In July of 2018, a month later, the DOJ created the
Religious Liberty Task Force to coordinate the efforts of DOJ
components on litigation and policy relating to religious
liberty.
And just as COVID-19 has come to define the lives of
Americans in recent months, the Civil Rights Division's most
recent work has also addressed novel issues relating to the
pandemic.
We know that state and local governments implemented
restrictions on travel and public gatherings in response to the
pandemic, and the ability of many religious institutions to
conduct in-person worship services was eliminated or curtailed.
While churches and other houses of worship must comply with
generally applicable requirements the same as any other entity,
the Supreme Court has held very specifically the government
can't use religion as a basis of classification for the
imposition of duties or penalties, privileges, or benefits.
Some jurisdictions have, nonetheless, targeted houses of
worship for discriminatory treatment during the COVID-19
pandemic and the DOJ has sought to address this conduct.
On April of this year, Attorney General Barr issued a memo
directing Assistant Attorney General Dreiband and Matthew
Snyder, the U.S. Attorney the Eastern District of Michigan, to
lead an effort to monitor and, if necessary, intervene to stop
discrimination against religious institutions and religious
believers.
Consistent with this directive the Civil Rights Division
has taken action to intervene where state or local governments
treated religious institutions less favorably than secular
institutions and restrictions relating to the pandemic.
The mantle has also been taken up by public interest legal
organizations who provided critical pro bono legal services to
houses of worship, seeking to be treated the same as comparable
secular entities.
In addition to religious institutions, private individuals
who have sought to express conservative or religious viewpoints
through peaceful protests have been subjected to discriminatory
treatment by state and local officials.
This happened in New York, New Jersey, North Carolina, here
in the District of Columbia. Local authorities arrested
individuals merely for engaging in constitutionally-protected
conservative and religious speech.
These same state and local authorities have often
encouraged similar activity by individuals who support causes
they favor such as police reform.
Of course, those protests, encouraged by state and local
authorities have at times devolved into violent riots, and
after so many of those riots that resulted in the destruction
of public and private property, residents and businesses in
those communities have been left to pick up the pieces. We are
going to hear a little bit about that today.
Under our constitutional system there is never an excuse,
even during a pandemic, to discriminate on the basis of
religion or the viewpoints of the people expressed. Respecting
the civil liberties of citizens and protecting public health
are not mutually exclusive pursuits.
In America, we have to do both. The attorney general
summarized this very well when we said the Constitution is not
suspended in times of crisis.
Mr. Chairman, I would just ask unanimous consent to enter
into the record of the hearing this letter than I read from
that we received from the attorney general. And I----
Mr. Cohen. Without objection, it will be done.
[The information follows:]
MR. JOHNSON FOR THE OFFICIAL RECORD
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Mr. Johnson of Louisiana. And I thank you for that and I
look forward to hearing from all our witnesses today. I hope we
can have a productive conversation, and I yield back.
Mr. Cohen. Thank you. Mr. Nadler, the ranking member, is
arriving and he will be recognized in a second for his opening
statement.
But I do appreciate the fact that the ranking member
brought up what the division has done for the protection of
religion, because it is going to be important for us to have
religion and a place to pray for the return of democracy if
things don't turn around soon.
I yield to Mr. Nadler for his opening statement.
Chairman Nadler. Thank you, Chairman Cohen.
Thank you, Chairman Cohen, and thanks to all our witnesses
for joining us today.
When Attorney General William Barr came before the full
committee earlier this year, many of our questions focused on
the Trump administration's abysmal record on civil rights.
We pressed Mr. Barr to answer questions about federal
officials tear gassing protestors at his direction, about
voting rights, about police violence, and about other pressing
matters where it appears the Civil Rights Division has been
either absent or actively counterproductive.
Today, Assistant Attorney General Eric Dreiband--I hope I
pronounced that right--the man who is in charge of the Civil
Rights Division, simply refuses to appear to defend his record
such as it is.
And although I would like to focus on the substance of this
hearing, I must take a minute to acknowledge the department's
truly astonishing explanation for his absence.
Late Monday night, DOJ sent a letter stating that Mr.
Dreiband would not be attending today's hearing and that the
heads of the Bureau of Prisons and the U.S. Marshal Service
also plan on boycotting an upcoming hearing before the
Subcommittee on Crime, Terrorism, and Homeland Security.
Now, this administration has come up with a lot of reasons
for ignoring Congress. We have heard them assert absolutely
immunity.
We have heard them complain about the terms in which
government lawyers are allowed to accompany the witnesses. We
have heard them say the hearing date is too soon. But this one
takes the cake.
The United States Department of Justice now says, in
complete seriousness, that it is not sending any more witnesses
to this committee because we were mean to Attorney General Barr
when he was here in July, or as the department put it, that we,
quote, ``used our allotted time to air grievances,'' closed
quote.
Apparently, it is too--excuse me, apparently it is too much
for DOJ to stomach the thought that when the attorney general
orders the tear gassing of peaceful protestors, repeatedly
interferes in criminal investigations to protect the President,
and actively foments distrust in an upcoming election, he might
get some pressing questions when he comes before the Congress.
But in a way, Mr. Dreiband's absence from today's hearing
is fitting because this hearing is really about the complete
absence of the Civil Rights Division when it comes to enforcing
civil rights.
Mr. Dreiband is not being here--his not being here
perfectly encapsulates what we have been seeing from his office
over the past four years, an empty chair.
The Civil Rights Division is a large office with a proud
tradition of enforcing some of our most sacred laws. From
voting rights to housing and disability rights, and from
employment and education rights, to the right to be free from
police violence, the Civil Rights Division is supposed to stand
up for the values that protect all people in our nation.
But during this administration, time and time again the
division has fallen short. As far as justice and policing goes,
it has abandoned the idea of pursuing structural reform through
consent decrees, a critical tool that courts and DOJ have used
in the past to reform unconstitutional policing in our cities.
As for voting rights, what we have seen is a near total
abdication of responsibility. The division has filed precious
few cases protecting Americans' voting rights and it has filed
no new cases protecting the rights of Black or Latino voters,
among others.
After reviewing a list of activities published by the
division, one former official commented, ``Frankly, it is hard
to see what the Voting Rights Section is doing all day where
still, in many instances, the Civil Rights Division has
switched its earlier positions to fight actively against the
interests of minority voters.''
In cases involving LGBTQ rights as well, we have seen the
Justice Department actively litigate against gay, lesbian, and
transgender Americans, including by arguing in the Supreme
Court that federal law permits employers to fire their
employees for being gay or transgender. Fortunately, they lost.
And now, the Civil Rights Division is urging the courts to
eliminate what remains of affirmative action and diversity in
college admissions.
Fortunately, and in the absence of actual participation
from Mr. Dreiband, we have excellent witnesses before this
committee today who can help inform us about where the division
has fallen short and, most importantly, where it can improve. I
thank Chairman Cohen for holding this hearing and I look
forward to hearing from the panel.
I yield back the balance of my time.
Mr. Cohen. Thank you, Chairman Nadler.
I would now like to recognize the ranking member, my
classmate, Mr. Jordan.
Mr. Jordan. I thank the chairman, and I would just point
out the chairman subcommittee said the attorney general is
immature. What? This from the guy who brought a bucket of
chicken to a hearing?
Mr. Cohen. Did not say he was immature. I said a lot of
things about him.
Mr. Jordan. You did, too.
Mr. Cohen. I did not.
Mr. Jordan. The chairman said the attorney general was
condescending during the hearing two months ago. He was
interrupted 70 times by the Democrats. Over 30 times they used
the phrase ``reclaiming my time.''
Everyone saw the spectacle that the ranking member of the
subcommittee talked about, and you want to say he was
condescending? You got to be kidding me.
No wonder the guy doesn't want to come. Jeepers, I have
never seen anything--well, I will tell you one thing I do
remember from that hearing, too.
I remember when the attorney general of the United States
asked the Democrats, ``Why won't you speak out against the mob?
Why won't you speak out against the violence?'' And guess what
he got in response?
Silence from the Democrats. We got a witness here today,
Sam Mabrouk, from Columbus, Ohio, who knows what the mob can do
to his store. Looted, his store destroyed, stole his property,
and you guys refuse to speak out against it. But you can bring
a bucket of chicken to a hearing? This is ridiculous.
I want to thank our witness. I want to thank--I want to
thank Mr. Sasser for coming. I want to thank Mr. Mabrouk for
testifying.
We feel for what you have had to go through as a business
owner, the mob that they won't speak out against destroying
your property, looting your store, and all they want to do is
lecture the attorney general, get mad at the Justice Department
because they won't send a witness after the way the attorney
general was treated.
The American people saw that hearing. They know how you
guys treated him. Five hours of it. Five hours of it. And the
guy who brings a bucket of chicken wants to--wants to condemn
and critique the attorney general. You have got to be kidding
me. You have got to be kidding me.
Mr. Cohen. One more time and [inaudible] Cool it.
Mr. Jordan. Oh, that is great. That is great.
Mr. Cohen. Cool it.
Mr. Jordan. The--I look forward to our witnesses. I
appreciate what the ranking member of the subcommittee had to
say.
I yield back the balance of my time.
Mr. Cohen. Thank you, Mr. Jordan, for your prescient
remarks.
We welcome our witnesses and thank them for participation
in today's hearing in person or virtually. I will now recognize
each of the witnesses, and after each introduction will
recognize that witness for his or her testimony. Your written
statement will be entered into the record in its entirety.
Accordingly, I ask you to summarize your oral testimony in
no more than five minutes. Before proceeding with the
testimony, I would like to remind all of our witnesses that you
have a legal obligation to provide truthful testimony and
answers to this subcommittee, and that any false statement you
may make today may subject you to prosecution under Section
1001 of Title 18 of the United States Code.
Our first witness is Catherine Lhamon. Ms. Lhamon is chair
of the United States Commission on Civil Rights, a position she
has held since 2016.
Ms. Lhamon previously served as the assistant secretary for
civil rights at the U.S. Department of Education from June 2013
until January of 2017. She clerked for the Honorable William A.
Norris on the U.S. Court of Appeals for the Ninth Circuit.
Ms. Lhamon received her JD from Yale Law School where she
was the Outstanding Woman Law Graduate and she graduated summa
cum laude from Amherst.
Ms. Lhamon, you are recognized for five minutes.
STATEMENTS OF THE HONORABLE CATHERINE E. LHAMON, CHAIR, U.S.
COMMISSION ON CIVIL RIGHTS; SHERRILYN IFILL, PRESIDENT AND
DIRECTOR COUNSEL, NAACP LEGAL DEFENSE AND EDUCATIONAL FUND;
THOMAS A. SAENZ, PRESIDENT AND GENERAL COUNSEL, MEXICAN
AMERICAN LEGAL DEFENSE AND EDUCATIONAL FUND; HIRAM SASSER,
EXECUTIVE GENERAL COUNSEL, FIRST LIBERTY INSTITUTE; SHARON M.
MCGOWAN, CHIEF STRATEGY OFFICER AND LEGAL DIRECTOR, LAMBDA
LEGAL; SAM MABROUK, SMALL BUSINESS OWNER, COLUMBUS, OHIO;
MICHAEL WALDMAN, PRESIDENT, BRENNAN CENTER FOR JUSTICE, NEW
YORK UNIVERSITY SCHOOL OF LAW; JONATHAN M. SMITH, EXECUTIVE
DIRECTOR, WASHINGTON LAWYERS COMMITTEE FOR CIVIL RIGHTS AND
URBAN AFFAIRS
STATEMENT OF CATHERINE E. LHAMON
Ms. Lhamon. Thank you to the chair and thank you to each of
the members for inviting me to testify.
I am Catherine Lhamon and I chair the United States
Commission on Civil Rights, which Congress has charged to
evaluate the effectiveness of civil rights enforcement
including at the United States Department of Justice.
The Department of Justice's Civil Rights Division is
tasked, as we heard this morning, with enforcement of all
federal civil rights laws and, among other duties, files civil
rights litigation to fulfill its mission.
As 17 state attorneys general testified to the commission I
chair, Congress has reserved exclusively to the federal
government and, specifically, to DOJ powerful remedies to
address civil rights wrongs. But if DOJ does not enforce these
laws, the states are not positioned to pick up the slack.
Notwithstanding these very high stakes to the American
people, the Civil Rights Division is not currently fulfilling
this mandate, dangerously leaving Americans vulnerable to
violation of their civil rights.
The Civil Rights Division's case resolutions dropped nearly
25 percent between fiscal year 2016 and fiscal year 2018.
In addition to the actual drop in case resolutions in
recent years, the Trump administration has repeatedly requested
funding reductions to DOJ's civil rights work, signaling its
dollar commitment to doing less work and has, in fact, reduced
the number of staff at the Civil Rights Division.
I am pained to report to you today that in this
administration the Department of Justice Civil Rights Division
fails to make statutory promises and constitutional convictions
real in the lives of all Americans.
Concern over that failure should not be partisan. The
commission received powerful testimony from former Republican
administration DOJ civil rights officials about what should
occur in conservative administrations, including, and this is a
quote, ``that one thing a Republican administration should be
able to do is to enforce mightily the kind of core statutory
functions DOJ has.''
To concretize the civil rights harm that can follow from
Justice Department inaction, I offer a handful of examples.
In 2018, the commission unanimously found that pernicious
race discrimination in voting endures today and that barriers
to voter access and discrimination continue today for voters
with disabilities and voters requiring language assistance.
Despite this ongoing discrimination in voting, we at the
commission found that DOJ enforcement is lacking, with actual
enforcement work lagging well behind nonprofit litigation in
the area, notwithstanding a statutory charge and associated
appropriated taxpayer funding to do the work.
Our 2018 assessment, of course, predated the pandemic that
we now live. There are specific additional civil rights risks
associated with the rise of COVID-19.
The commission received testimony about the increased
health risks associated with people casting in-person ballots,
with insufficient measures to guard against the transmission of
COVID-19, against the backdrop of what we know about pronounced
racial disparities in deaths due to coronavirus.
The commission received bipartisan calls for increased
access for mail-in ballots as well as substantial testimony
about the need for safe in-person voting options to preserve
access for voters with disabilities and voters who require
language assistance.
But in the face of these dire concerns about American
citizens' ability to practice that most essential core function
of our democracy in casting a ballot, the commission received
testimony the DOJ has been still largely absent from
enforcement that protects and ensures voter access.
Turning to oversight of law enforcement, several uses of
deadly force against Black civilians earlier this year
underscore an ongoing need for federal leadership in
enforcement against unconstitutional policing practices to
protect civil rights.
Congress specifically authorized DOJ to conduct pattern or
practice investigations to determine if law enforcement have
violated constitutional or federal rights.
But in the Trump administration, the DOJ has abandoned
pattern or practice investigations, criticized them as a tool,
and refused to initiate new investigations and curtailed the
use of consent decrees.
As police leaders generally recognize, fostering community
trust, positive community relations, and cooperation are
essential for law enforcement to effectively discharge their
public safety duty.
Yet, the department now fails to use the full measure of
its authority to conduct investigations into these cases and to
bring enforcement actions if appropriate to prevent these
events and other systemic deprivations of constitutional rights
from occurring.
Finally, DOJ has taken affirmative steps to promote an
interpretation of sex discrimination laws that the United
States Supreme Court roundly rejected. Yet, DOJ has not altered
course to accommodate even that ruling from the highest court
in the land.
DOJ persists in ignoring law as it is, in Justice Gorsuch's
words. Violating DOJ's own civil rights----
Mr. Cohen. We are going a little bit over. If you can wrap
up in about 10 seconds. You are over about 30 already.
Ms. Lhamon. I will. Thank you.
Just to say the DOJ is harming not only the LGBT community
most directly impacted but also all people whose rights are
limited by incorrect federal understanding of and commitment to
protection against sex discrimination. We need the Department
of Justice to live up to the justice in its name.
Thank you.
[The statement of Ms. Lhamon follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Mr. Cohen. Our next witness is Sherrilyn Ifill. Ms. Ifill
is the president and director-counsel of the NAACP Legal
Defense and Education Fund, a position she has held since 2013,
and I think a position Mr. Ogletree might have held at some
time. No, he didn't hold it. Well, he was a star litigator
there.
She first joined the staff of the Legal Defense Fund in
1988 as an assistant counsel and litigated voting rights cases
at that time.
For 20 years, she taught constitutional law and civil
procedure at the University of Maryland School of Law. She has
her JD from New York University School of Law, which is in Mr.
Nadler's district, and her B.A. from Vassar.
Ms. Ifill, you are recognized for five minutes.
Ms. Ifill.
STATEMENT OF SHERRILYN IFILL
Ms. Ifill. Good morning, Chairman Cohen and Ranking Member
Johnson, members of the subcommittee.
My name is Sherrilyn Ifill and I am president and director-
counsel of the NAACP Legal Defense Fund and I thank you for the
opportunity to testify this morning regarding the ongoing need
for oversight of the Civil Rights Division of the Department of
Justice.
LDF was founded in 1940 by Thurgood Marshall, the
trailblazing civil rights lawyer whose groundbreaking
litigation created the field of civil rights law. Marshall
later became the first Black justice to sit on the United
States Supreme Court.
LDF has been an entirely separate entity from the NAACP
since 1957. We were launched at a time when the nation's
aspirations for equality and due process of law were stifled by
widespread state-sponsored racial inequality.
The Civil Rights Division of the Department of Justice was
created by the Civil Rights Act of 1957, the first civil rights
statute enacted since Reconstruction. The division formation in
the early days of the civil rights movement proved critical to
ensuring protection for civil rights demands for equal
citizenship in southern states by Black citizens.
I feel compelled to say that the core purpose of the
creation of the division was to protect against racial
discrimination.
Because of the presentation I heard earlier from
Representative Johnson about the department's role in religious
discrimination, I feel compelled to call the names of the civil
rights martyrs who were killed in the years leading up to the
passage of the Civil Rights Act of 1957 to ensure we remember
the context in which the division was created.
Harry Moore, who was assassinated in his bed in Florida in
1951. Reverend George Lee in Mississippi in 1955, and of
course, young Emmett Till in 1955 in Money, Mississippi. It was
in that context that the Civil Rights Division was created as
part of the Civil Rights Act of 1957.
LDF is particularly well suited to speak about the work of
the Civil Rights Division because for former LDF staff
attorneys served as assistant United States attorney generals
for civil rights, the position that Mr. Dreiband holds today,
leading the Civil Rights Division in its work during critical
times in the division's history. They include Drew Days, 1977
to 1980, Deval Patrick, 1994 to 1997, Bill Lann Lee, 1997 to
2001 and, most recently, Vanita Gupta, from 2014 to 2017, and
she appeared most recently before this committee in 2016.
The work of the division is advanced through 11 sections.
But I really want to touch on just a few. We have already heard
about the department's traditional role in voting.
In fact, the Civil Rights Act of 1957 empowered the
division to issue injunctions to protect voting rights. This is
years before the passage of the Voting Rights Act. The division
was empowered to engage in voter protection work.
In the 30 years that I have been a civil rights litigator,
the department, through Republican and Democratic
administrations, has often partnered with civil rights
organizations in bringing voting litigation.
Of course, the principal role of the division in protecting
voting rights was, largely, advanced through Section 5 of the
Voting Rights Act. But after the Supreme Court struck down the
core provision of Section 5, the preclearance formula, we were
left only with the other provisions of the act, including
Section 2, which is a vital tool for advancing voter
protection.
And yet, today, the division only has one case on its
docket under Section 2 of the Voting Rights Act protecting
minority voting rights, and that case was already on the docket
before 2017.
Even worse, the division has reversed itself in cases in
which it formally was advancing voting rights cases under
Section 2, including a case in which the division was co-
counsel with the Legal Defense Fund challenging Texas's voter
ID law. The division switched its position and later withdrew
from the case.
The result has been that civil rights organizations have
had to essentially function as private civil rights divisions
themselves because we have no longer had the partnership of the
Civil Rights Division at the Department of Justice.
The same is true in the area of policing, which we have
already heard about. Not only has the department withdrawn from
vigorous enforcement of the law enforcement misconduct statute
passed in 1994 in the wake of the unrest following the beating
of Rodney King in Los Angeles and the acquittal of the officers
who assaulted him. Under prior administrations, pattern and
practice investigations provided opportunities to transform
unconstitutional policing in police departments around the
country.
Under first Attorney General Sessions and now Attorney
General Barr, the department has abandoned that work.
Mr. Cohen. We are starting to run over. Ms. Ifill, I
appreciate we are starting to run over a little bit. If you
could close in the next 10 seconds.
Ms. Ifill. There is no private civil rights organization
that can replace the resources of the Civil Rights Division of
the Department of Justice. The Department of Justice has the
investigators, the lawyers, the team, the research, and the
history to do the best civil rights work.
But they are absent from this work. We need a Civil Rights
Division to return to its core mission protecting against
racial discrimination, protecting voting rights, protecting
against criminal justice discrimination, and I hope that this
hearing will be the opening for us to begin to talk about how
to right the ship at the Civil Rights Division.
Thank you.
[The statement of Ms. Ifill follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Mr. Cohen. Thank you. Thank you very much. We appreciate
your testimony. Thank you very much.
Our next witness is Mr. Thomas Saenz. Mr. Saenz is the
president and general counsel of the Mexican American Legal
Defense and Education Fund, or MALDEF, a position he has held
since August 2009.
Mr. Saenz previously was a litigator for MALDEF for 12
years, leading numerous civil rights cases in the areas of
immigrant rights, education, employment, and voting rights.
He served as law clerk for the Honorable Harry L. Hupp of
the U.S. District Court for the Central District of California,
and the Honorable Stephen Reinhardt of the U.S. Court of
Appeals for the Ninth District.
Mr. Saenz received his JD with honors from Yale Law School
and his undergraduate degree summa cum laude from Yale.
Mr. Saenz, you are recognized for five minutes. I know you
could talk to us like our previous folks, at more length, and
it would be good to have it. But we are limited to five
minutes.
Thank you, sir.
STATEMENT OF THOMAS A. SAENZ
Mr. Saenz. Thank you, Mr. Chair.
Good morning, Congress members. My name is Thomas Saenz. I
am president and general counsel of MALDEF, the Mexican
American Legal Defense and Educational Fund, which has for over
52 years now worked to promote the civil rights of all Latinos
living in the United States.
I appear before you remotely today from the city of Los
Angeles, California.
MALDEF focuses its work in four subject matter areas:
education, employment, immigrant rights, and voting rights.
With the possible exception of immigrant rights, our areas of
expertise and litigation overlap with areas within the
responsibility of the Civil Rights Division.
Unfortunately, at MALDEF we have seen the division alter
its formal alignment and legal position in pending cases,
decrease its role and interest in cases where it has previous
preformed an important part, and turn its attention to issues
that do not fall within the broad realm of protecting the
rights of communities, including Latinos, that have faced
ongoing problems of discrimination in equity and exclusion.
I would start with voting rights. As we approach a new
decade in the decennial necessity of redrawing electoral
districts for Congress, state legislatures, and local governing
bodies, the division's activities do not suggest that it will
participate actively in ensuring that redistricting in 2021
will protect the voting rights of communities of color.
I give you one experience. MALDEF was a leader in the
litigation that began in 2011 and continued until 2019 against
the initial and subsequent redistricting plans enacted by the
state of Texas state legislature.
The Section 2 litigation in Texas, as I mentioned,
continued until 2019 through several trials and included
damning evidence of both vote dilution and of intentional
discrimination by the Texas legislature.
The United States, represented by the Civil Rights
Division, participated in the case on the side of plaintiffs.
The division helped plaintiff's counsel to marshal and present
evidence of intent to discriminate.
It was clear to all that one significant purpose of proving
intent to discriminate, which is otherwise not required to
prove a violation of the Voting Rights Act Section 2, was to
build the necessary prerequisite for a request to the three-
judge panel to order the state be subject to a judicially
ordered preclearance requirement, in particular for its
upcoming 2021 redistricting plan.
Unfortunately, in January of 2019, the Civil Rights
Division filed a motion indicating that the United States had
changed positions and seeking to file a brief opposing the
order to require the state of Texas to subject its electoral
changes to preclearance.
Even after collecting and presenting evidence of
intentional discrimination, the division sought to prevent the
consequence of such evidence in the form of a court-ordered
bail-in order.
The three-judge court ultimately declined to enter a bail-
in order so Texas will, in 2021, be free to adopt new district
lines without having to seek preclearance. This is despite
several decades of court judgments against the state of Texas
for its unlawful decennial redistricting.
In our education work, MALDEF has had a different but also
disturbing experience with the Civil Rights Division. We
continue to represent a class of Latino students in long-
standing litigation regarding desegregation of the Tucson
Unified School District.
After the development of a new unitary status plan
following an appeal in 2011, the United States, the Civil
Rights Division, had been an important participant in ongoing
discussions about compliance in several areas of the USP in
particular with respect to disparate discipline, a matter of
concern to both Latino and African-American plaintiff classes.
Despite continued concerns regarding compliance, in recent
years the Civil Rights Division has been decidedly less active
and engaged on these issues including the issues including the
issues related to discipline.
Moreover, the division has now taken a position in support
of granting unitary status to the Tucson Unified School
District, even though both plaintiff classes continue to raise
significant concern about compliance, and the district court
itself has indicated that future obligations are necessary and
appropriate for the school district.
We can readily observe a significant shift in the priority
of the Civil Rights Division. This shift has been away from
addressing traditional civil rights concerns faced by
communities of color.
Yet, the current pandemic and associated economic down turn
have only accentuated and brought to more prominent public
attention the disparities confronted by people of color,
including Latinos.
Recent demonstrations nationwide have also brought renewed
attention and greater discussion and awareness around issues of
police conscious and subconscious bias, and the systematic
disparities in law enforcement violence faced by both Blacks
and Latinos in the United States.
In such times, the Civil Rights Division and, in
particular, its special litigation section, should be an
acknowledged leader in identifying and pursuing legal and
litigated solutions to these ongoing disparities.
Instead, we have seen a division that subscribes to a
different world view than many of its predecessors. It is time
for us to return the Civil Rights Division to a place of
creativity and innovation and aggressive attention to the
disparities throughout society that we continue to see faced by
numerous communities of color, including Latinos.
Thank you.
[The statement of Mr. Saenz follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Mr. Cohen. Thank you, sir.
Our next witness is present here in the chamber, Mr. Hiram
Sasser. He is the executive general counsel of First Liberty
Institute, a public interest law firm that focuses on religious
liberty issues for people of all faiths.
Mr. Sasser also serves as an adjunct professor of law at
the University of Texas Austin School of Law, as well as an
adjunct professor of law at Oklahoma City University School of
Law. He received his JD from Oklahoma City University, the
Chieftains, and his B.A. from Oklahoma State University, the
Cowboys.
Mr. Sasser, you are recognized for five minutes.
STATEMENT OF HIRAM SASSER
Mr. Sasser. Thank you, Chairman Nadler and Chairman Cohen,
and Ranking Member Johnson and members of the committee.
Throughout my almost two decades of litigation experience,
the Department of Justice Civil Rights Division has proven
itself a consistent and stalwart ally in fighting against
religious discrimination by enforcing the strong civil rights
protections in the Constitution and federal law.
I will tell you a story to start it off with is Nashala
Hearn in Muskogee, Oklahoma. It is a small town. It is just on
the border of the Cherokee Nation in Oklahoma. That is actually
where my wife was born.
And we were visiting there and saw on the news that there
was a small young lady, young child, wearing her hijab to
school and she was being discriminated against. Told her that
she couldn't wear a hijab. Everyone else was allowed to wear
hats for various reasons but she couldn't wear her hijab.
I, and I suppose others, contacted the Department of
Justice Civil Rights Division and asked them to do something
about this, and they took it on. They sued the school district
and they were able to solve that problem for Nashala.
And then another issue came along, and this was just a
short time thereafter. I saw a case in which the Falun Gong--
you may not be familiar with their religious practice. It is an
ancient Eastern religious practice that is practiced mostly in
China.
The Falun Gong were trying to protest the visiting
president of China and they were--they had obtained hotel rooms
at a hotel chain that subsequently kicked them out of their
hotel, allegedly because the Chinese government asked them to
and paid them substantially more for their rooms. At least that
was the allegation.
We thought it was wrong how this took place and, you know,
it was a very difficult case for them to try to prove. But the
Civil Rights Division opened an investigation, and soon
thereafter we were able to reach a resolution with the hotel
chain in order to make sure that this kind of discrimination
did not happen again.
And then we had a case that--I have it mentioned here in
the--in my written testimony but I think it is important to
note another case we did. Those cases were during the Bush
administration.
During the Obama administration we did a case with the
Civil Rights Division together representing an African-American
church that was told that it couldn't be on the old town square
of Holly Springs, Mississippi.
And so we ended up having to sue Holly Springs,
Mississippi, and we were able to win at the Fifth Circuit after
losing at the district court, and we were ultimately able to
get a preliminary injunction to allow the church to be able to
continue on there.
And all this tradition of fighting for religious liberty
from minority faiths continued with the Trump administration
unabated. When we were contacted by the Islamic Association of
Collin County, it was a very disturbing story.
It was a town--I won't name the town--in Texas that was
prohibiting the Islamic Association from having a cemetery in
their town. You can imagine the kind of cultural and religious
affront that this must be that you can't even find a place to
bury your loved ones.
And so there was this property that the Islamic Association
owned and, for whatever reason, the city wouldn't allow them to
be able to use that property for a cemetery.
And I won't go to the reasons that they raised. They were,
mostly, illegitimate and somewhat ridiculous. But we
represented the Islamic Association of Collin County and we
asked the Department of Justice to also get involved in that,
and they were very enthusiastic about coming to the aid of the
Islamic Association and a matter of fact through their
participation were able to resolve that issue and now they have
their cemetery today.
I would also like to share a story. This started during the
George Herbert Walker Bush administration. Then Attorney
General Barr led the fight to stop discrimination against the
Orthodox Jewish community in Airmont, New York.
Airmont was founded for the purpose of excluding the
Orthodox Jewish community. It was a city and it is just north
of New York City. And the Department of Justice had to sue them
in order to provide civil rights protections for the Orthodox
Jewish community there.
But, then again, the Bush administration also had to sue,
and now, almost like General MacArthur returning, as he would
have promised to have done, General Barr has once again come to
the aid of the Orthodox Jewish community in Airmont who have
now suffered for almost three decades of continuous
discrimination and continuous needs for lawsuits in order to
understand that equal protection also applies to the Orthodox
Jewish community.
And it is through Attorney General Barr's leadership that
we have been able to achieve lots of advances for people of
minority faiths, because I think it is very important that we
recognize that when we protect minority faiths we are
protecting the religious liberty of everybody because religious
liberty rises and falls on the rights that we acknowledge for
our neighbors.
Thank you.
[The statement of Mr. Sasser follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Mr. Cohen. Thank you, sir.
Our next witness is Ms. Sharon McGowan, chief strategy
officer and legal director of Lambda Legal. As legal director,
she oversees Lambda Legal's efforts to resist any attempt by
opponents of LGBTQ equality to thwart or roll back the
community's progress towards full equality.
Previously, she served as the principal deputy chief of the
appellate section of the Civil Rights Division in the
Department of Justice.
Ms. McGowan is a graduate of Harvard Law School, the
University of Virginia. She was a law clerk for the Honorable
Norman Stahl of the U.S. Court of Appeals of the First Circuit
and also for the Honorable Helen Berrigan of the U.S. District
Court for the Eastern District of Louisiana.
Ms. McGowan, you are recognized for five minutes.
STATEMENT OF SHARON McGOWAN
Ms. McGowan. Good morning. Let me begin by thanking
Chairman Cohen, Ranking Member Johnson, Chairman Nadler, my
congressman, Vice Chairman Raskin, and the distinguished
members of the committee.
My name is Sharon McGowan and I currently serve as the
chief strategy officer and legal director of Lambda Legal
Defense and Education Fund, the oldest and largest national
legal organization dedicated to securing full equality for
LGBTQ people and everyone living with HIV.
Prior to joining Lambda Legal, I was proud to serve for
many years as a career attorney in the Civil Rights Division of
the United States Department of Justice, starting first as an
appellate line lawyer and eventually becoming the principal
deputy chief of the appellate section.
My years with the Civil Rights Division are among the
proudest of my career. I felt tremendous responsibility of my
role whenever I stood at a lectern and introduced myself with
the words, Sharon McGowan, on behalf of the United States.
Unfortunately, upon learning that President Trump intended
to nominate Jeff Sessions to lead the Justice Department, I
made the difficult decision that in order to continue advancing
civil rights, I would need to leave what had been for me a
dream job. Perhaps even more unfortunately, the past three-plus
years have confirmed that my fears were not overblown.
As an American, I have found it exasperating to see how the
Civil Rights Division's scarce resources have been deployed to
undermine rather than advance civil rights. But as someone who
once proudly served in the division, I have found it
heartbreaking.
It has been so painful to witness the damage that has been
done to the reputation and the stature of the Civil Rights
Division, which I still hold so dear to my heart.
I say this knowing that we are all still grieving over the
recent loss of two civil rights champions, Justice Ruth Bader
Ginsburg and the Honorable John Lewis.
And yet, I find comfort in the knowledge that we are
honoring their legacy and their commitment to equal justice
under law through the work that we are doing here today as well
as through the incredible work of some of my fellow witnesses.
I always felt incredibly proud whenever I heard the Civil
Rights Division referred to as the conscience of the federal
government and I had the privilege of witnessing firsthand the
many ways in which this was true.
First and foremost, and perhaps most obviously to the
public, the Civil Rights Division enforces the landmark federal
statutes enacted to promote equal opportunity in critical
spheres of public life, including employment, housing, credit,
policing, education, voting, and access to public spaces.
The impact and influence of the Civil Rights Division,
however, extends beyond its affirmative litigation docket.
During my tenure, the Civil Rights Division would have a seat
at the table whenever significant questions were under
consideration within DOJ.
We would play an important role in identifying civil rights
implications of actions that the federal government might take
or not take, whether in the context of litigation, regulatory
work, or broader policy discussions, and we would back up our
advice with legal analysis proving that our recommended
position was not only defensible but, in fact, the best reading
of the law.
Perhaps the most recent public example of what I am
describing occurred this past June when the U.S. Supreme Court,
in a 6-3 decision written by Justice Gorsuch and joined by
Chief Justice Roberts, ruled that the federal prohibition on
sex discrimination contained within Title 7 of the Civil Rights
Act of 1964 encompasses discrimination on the basis of sexual
orientation and gender identity.
This view of the law was one that the Civil Rights Division
had championed within the department for many years and which,
with respect to gender identity, at least, had become the
litigation position of the United States.
That is, until Attorney General Sessions summarily reversed
it during the first years of the Trump administration.
These reversals in position by the Justice Department over
the past three-plus years have damaged the credibility of the
institution as a whole but have been particularly devastating
with respect to the Civil Rights Division, and we must never
forget that these policy changes affect real people's lives,
denying them physical safety, legal security, and a chance to
succeed, a chance that we all deserve.
The ways in which the legal and moral authority of the
Civil Rights Division has been commandeered to advance
positions that are antithetical to civil rights is as
mortifying as it is infuriating.
In the realm of employment, I am referring to the fact that
Civil Rights Division attorneys participated in the
unsuccessful effort to carve LGBT people out of the workplace
protections of Title 7.
In education, I am referring to the Civil Rights Division's
withdrawal of guidance designed to protect the health, safety,
and educational opportunity of transgender students, to their
joining forces with organizations committed to denigrating and
ostracizing transgender people from public life and filing
briefs on behalf of the United States using language negating
the identity of transgender girls.
With respect to public accommodations, I am referring to
Civil Rights Division lawyers filing briefs in the Supreme
Court and in lower courts seeking to gut nondiscrimination laws
that prevent businesses from turning people away simply because
of their sexual orientation, gender identity, or the fact that
they are in a same-sex marriage.
These are just a few of the examples of how the Civil
Rights Division has turned its mission on its head and has
abandoned its noble legacy of defending the civil rights of
those who have been historically shut out, turned away, or
treated as less than others in our community and I look forward
to the day when the Civil Rights Division can once again be
viewed as a credible partner in the important work of advancing
civil rights in our country.
Thank you.
[The statement of Ms. McGowan follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Mr. Cohen. Thank you, Ms. McGowan, and I know Greg Nevins
looks forward to that day as well.
Sam Mabrouk is the owner of 89 & Pine, a small business in
Columbus, Ohio. First opening his doors in 2011, he sells
upscale, modern, and original men's and women's apparel.
And before you are recognized, I just want to say that many
if not all of us, but I know the chair of this subcommittee is
against looting and unlawful behavior, and the previous
statement made that nobody responded to Mr. Barr, it was not
our appropriate time to respond.
But that is a fact, and if you were injured I regret it and
it shouldn't have happened.
Mr. Mabrouk, you are recognized.
STATEMENT OF SAM MABROUK
Mr. Mabrouk. Good morning, ladies and gentlemen. My name is
Sammy Mabrouk and I am here today to testify as the owner of 89
& Pine, Columbus, Ohio.
My store started in January--my story started in January of
2010 when I first moved to the United States as a legal
immigrant. That is the same year I started laying the
groundwork for my small business, which has been growing ever
since.
By the beginning of 2020, I owned two brick and mortar
retail stores and had a team of six people working under me,
most of whom are minorities. My stores carry three brands that
I am proud to say that I designed them here in the United
States of America.
When COVID-19 hit, we were forced to close our stores,
which resulted in the loss of all of our business. In May 2020,
we were, thankfully, able to reopen for business.
I was very excited to reopen for business and was ready to
work even harder to make up for what was lost during the
closure.
Then May 29th and 30th happened. That is when the
protesting started in downtown Columbus, exactly where my
stores are located. On the night of May 30th, the protests
turned into riots, violence, and a wave of destruction that hit
the city that I had been calling home for over a decade.
I never thought that a protest in support of minority
rights would flip and do harm to a local minority-owned
business. Unfortunately, that is exactly what happened to me as
well as many other businesses in the downtown Columbus area.
My store was completely looted and I lost 10 years of hard
work and savings in two hours. Yeah, it was two hours of
looting that made me lose 10 years of hard work and savings.
If that isn't enough, I was also threatened to be shot
twice that same night. I have been living in the American
dreams. I have been living in the American dream, along with
all the blood, sweat, and tears that it requires.
Then one day I woke up to a nightmare of loss and
destruction. But I am not a quitter and I am ready to work
harder than before to get my small businesses back to where
they were before that horrible night of May 30th, 2020.
The last thing that I wanted to say is I actually had to
spend the night here at this store that I am talking to you
from to keep an eye on the situation in downtown Columbus
again.
Due to the current unrest in Louisville, Kentucky I spent
the night monitoring local media and social media to make sure
that--to make sure there wouldn't be a repeat of that fateful
day this past summer.
It is sad that I had to do that instead of spending time
with my two little kids after a long day of work. But I am
willing to do it because it is not just material. It is my
family's livelihood.
Thank you for giving me the time to speak out my heart and
my mind.
[The statement of Mr. Mabrouk follows:]
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
Mr. Cohen. Thank you for your testimony, and contrary to
canards that have been passed, we do regret your damages and
think they were wrong, and it is unfortunate.
Our final witness is Jonathan Smith. Mr. Smith is--excuse
me? Oh, Mr.--sorry. We will go to Mr. Waldman, Michael Waldman.
Michael Waldman is president of the Brennan Center for
Justice at the NYU School of Law, a constitutional lawyer,
expert in the presidency and American democracy. He has led the
Brennan Center since 2005.
He previously was director of speech writing for President
Clinton from 1995 to '99 and special assistant to the president
for policy coordination from '93 to '95.
Among other works, he is the author of the ``Fight to
Vote,'' a history of the struggle to secure voting rights for
all Americans. He is a graduate of NYU and Columbia.
Mr. Waldman, you are recognized for five minutes.
STATEMENT OF MICHAEL WALDMAN
Mr. Waldman. Thank you, Mr. Chairman, Ranking Member,
members of the subcommittee.
As we have heard, the Civil Rights Division has a storied
past and it should play a vital role in the fight for democracy
and equality in our country today.
But in this administration in recent years it has retreated
from that vital role, strikingly, at a moment of pain and
solemnity in this country when we are reckoning with years and,
indeed, centuries of systemic racism and its consequences for
our country.
In my testimony, I will focus in particular on voting and
the duty of this part of the Justice Department to stand up for
and play its role in the fight for voting rights. It has
retreated from that.
Much of that retreat, of course, comes from the Supreme
Court's decision in Shelby County, which took away from the
division the preclearance tool that had proven so effective and
that had made the Voting Rights Act the most effective civil
rights law in the country.
But that is not only the blame to be assigned to the
Supreme Court. We cannot solely blame the court. This division
simply brings no cases. This is the first time since the
passage of the Voting Rights Act, the first administration that
has brought no cases under its terms.
As you have heard, the division has actually switched sides
in two key cases, in Texas and Ohio, and that is pretty
remarkable. We should pause on that. Something that was deemed
to be discriminatory, deemed to be illegal for years suddenly,
overnight, became acceptable and okay.
Was that because the practice changed or was that because
the political overseers changed? Unfortunately, the latter
interpretation is far more likely.
The most noteworthy thing in many ways that this Civil
Rights Division has done is to play its role in the concocting
of a pretext on the Census as called out by the Supreme Court
when it blocked the citizenship question.
This division can do better. It is striking as well that it
acts within the context of a highly politicized Department of
Justice, grossly so.
The president has been reported to be saying he wished he
had a Roy Cohn. Well, it is, unfortunately, the case that it
seems he has one in the current attorney general.
The attorney general has said when it comes to voting that
elections have been--that have been held with mail have found
substantial fraud and coercion. That is a lie.
Last month, the president threatened to use law
enforcement, to send law enforcement in in case there are,
quote, ``riots on election day.'' That is not lawful and the
attorney general proclaimed it to be lawful.
This is worrisome as the election approaches. What can be
done to renew the division? What can be done so the Civil
Rights Division again plays the role that it has played under
administrations of both political parties in the past?
Well, first, this Congress can restore the strength of the
Voting Rights Act to enact the John Lewis Voting Rights
Advancement Act in his name, in his honor, and carrying forward
that legacy.
The second thing is this division, even with its current
tools, can focus on the actual real threats to the vote that
exist right now of abusive voter purges, long lines especially
in communities of color, deceptive practices, and others.
The third thing that this division could do is to use the
tools that it has that sit unused to protect election security.
We all know that in 2016 our election system was attacked by
Russia and we have every reason to think that malevolent
foreign actors, including Russia, are at it again, according to
the intelligence community.
There are things that the Civil Rights Division can do to
help in that fight. It can enforce provisions of HAVA, the Help
America Vote Act, such as those giving voters the right to a
provisional ballot, which is a failsafe in case there is a
cyber security problem at a polling place.
The final thing that this Congress can do to help this
division do its job is to take steps to restore the
independence of the Justice Department, which has been so
undermined.
In the last day, legislation has been introduced, the
Protect Our Democracy Act, by Chairman Nadler and others that
would require, among other things, disclosure of contacts
between the White House and the Justice Department on things of
the very kind that could undermine impartial enforcement of
civil rights laws in this division.
Again, I will restate what my written testimony says, what
other witnesses have said. This division can and should play an
extraordinarily important role in our country in the great and
never-ending quest for equality and democracy. It has before
and we hope it does so again in the future.
Thank you.
[The statement of Mr. Waldman follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Mr. Cohen. Thank you, Mr. Waldman.
Now, Mr. Jonathan Smith. Mr. Smith is executive director
for the Washington Lawyers Committee for Civil Rights and Urban
Affairs.
He previously was a chief of the special litigation section
of the Civil Rights Division of the Department of Justice from
2000 to 2015.
Under his leadership, the section conducted the civil
investigation of the Ferguson, Missouri, Police Department
following the death of Michael Brown.
Mr. Smith received his JD from Antioch School of Law and
his BA from the University of Maine at Orono.
Mr. Smith, you are recognized for five minutes.
STATEMENT OF JONATHAN SMITH
Mr. Smith. Thank you, Mr. Chairman. Thank you, committee
members. It is an honor to be able to testify about the Civil
Rights Division.
I had the honor to serve as the chief of the special
litigation section from 2010 through 2015. The section has a
responsibility, among others, to undertake police
accountability cases.
I have submitted longer testimony for the record. In the
few minutes that I have to speak with you, I want to touch on
two critical issues.
First, for the last 3\1/2\ years the division has, in
critical ways [inaudible] laws as they apply to [inaudible] and
in some cases asserted positions that have set back the cause
of civil rights.
As the nation struggles with its history of racial
injustice, the division has been missing and the department has
taken actions adverse to the cause of race equity.
Second, the politicization of certain enforcement decisions
has undermined the credibility of the division and done serious
damage to the reputation of the department and the morale of
the career staff.
The work of the division is done, largely, by career
lawyers, investigators, and paralegals who joined the
department with dedication and idealism. The cynical abuse of
the enforcement actions for electoral political gain demeans
and diminishes their hard work.
In the wake of the deaths of George Floyd, Breonna Taylor,
Ahmaud Aubery, and others, people have flooded the streets
demanding change and policing the communities of color, and
that the criminalization of Black and brown people cease.
At this historic inflection point, the Civil Rights
Division has been conspicuously absent, or worse. The
department has retreated from the sections of police reform
work.
The attack on the sections of police reform work started at
the beginning of the administration. Attorney General Sessions
criticized the section's investigations and use of consent
decrees.
Admitting that he had not even read the findings issued by
the section, he called them anecdotal. He walked away from the
Chicago investigation and attempted to withdraw from the
Baltimore consent decree.
Attorney General Sessions' last act was to issue a
directive that severely limited the use of consent decrees, one
of the very few remedies that has proven effective in police
reform cases.
At the same time, the president, in a speech to police
officials, urged that they bang the heads of arrestees on squad
car doors and stated that the, quote, ``handcuffs,'' end quote,
on law enforcement had been removed.
Attorney General Barr frequently criticizes those who
protest police brutality, acts to suppress protest, and
threatened the communities that do not show adequate support
for police will not be provided police protection.
During the last administration, 25 police investigations
were open, resulting in comprehensive consent decrees in major
cities across the country. During this administration, the
section has entered into no police reform consent decrees.
A simple contrast between the last administration's
response to the death of Michael Brown and this
administration's response to the death of George Floyd and
others shows why this matters.
Michael Brown's death and the resulting uprisings in the
streets of Ferguson and elsewhere caused the department to
spring into action.
The attorney general authorized a civil investigation of
the Ferguson Police Department, a criminal investigation into
Michael Brown's death, and ordered the community-oriented
policing office to review the law enforcement response to the
demonstrations.
The community relations service was dispatched and the
attorney general personally traveled to Ferguson to meet with a
broad swath of community members and public officials.
By contrast, the repeated in-custody deaths of Black and
brown people under circumstances that suggest widespread
systemic deficiencies and racial bias, this administration has
opened no investigations and entered into no consent decrees.
Not in Minneapolis, not in Louisville, not in Fort Worth, not
in Rochester, not in Kenosha, not in any other city.
Finally, to be effective, the section's work must be free
of partisan politics. I am proud that the division I work for
undertook the investigations regardless of the political party
of the mayor, sheriff, or governor. We investigated the police
departments in Democratic cities like Newark, New Jersey when
Cory Booker was mayor, and Republican strongholds like Maricopa
County, Arizona, and Sheriff Joe Arpaio.
The abuse of power for political purposes does not better
policing. In August, the department targeted the states of New
York, New Jersey, Pennsylvania, and Michigan with threatening
enforcement actions for their response to the COVID-19 in
nursing homes.
The targeted states and the tactics used belie the
seriousness of the department to gauge in an actual inquiry as
opposed to an effort to influence the upcoming elections.
Typically, information requests are made by career
attorneys, not by the political leadership through a press
release. Moreover, while nursing home deaths have declined
nationwide and dramatically declined in the northeast, Sunbelt
states have seen a dramatic spike. The states targeted did not
pose the most serious concerns nor the most potent use of
section resources.
The division has a long and proud history, and it is
difficult to watch the harm being done to it by this
administration.
Thank you.
[The statement of Mr. Smith follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Mr. Cohen. Thank you, Mr. Smith.
I have been advised that maybe my statement after Mr.
Mabrouk's testimony that I think everybody on this committee
regrets the damages done to your store and the inconvenience to
your life and that it is not something that any of us approve
of didn't go out. So I wanted to make that point clear.
We now go to a question period where we each have a chance
to ask questions with the five-minute rule imposed upon us, and
I will begin by recognize myself for five minutes.
I will start with Ms. Catherin Lhamon. Until May of this
year, the Civil Rights Division under the Trump administration
did not file, as I understand it, a single case enforcing
Section 2 of the Voting Rights Act.
Can you explain this shortcoming, if you believe it is one,
and is it--if it is such that do you believe, as some might
claim, that there simply isn't much voter discrimination going
on?
Ms. Lhamon. I think there is no question that there is
substantial voter discrimination still taking place. That was a
unanimous finding of the U.S. Commission on Civil Rights. And
the failure to file litigation using a tool that Congress funds
the department to use is astonishing to me and inexcusable.
I want to really concretize that by recognizing that the
ACLU alone has filed more cases than the Department of Justice
has to protect voting rights in this country. Likewise, the
Lawyers Committee for Civil Rights has filed more cases itself
than the United States Department of Justice has.
That nonprofits are bringing more litigation on behalf of
American voters than the nation's litigator charged by
Congress, funded by Congress, funded by taxpayers to do that
job is jaw-dropping and inexcusable, and leaves voters
profoundly unprotected.
Separate and apart from the number of cases brought, voting
rights cases are among the most challenging cases to litigate,
among the most expensive cases to litigate.
They take a long time. They require experts. They are
enormously challenging to prosecute to completion, and to see
the Department of Justice absent in this area when we know and
we have documented all across the country that there are
ongoing voting rights challenges for voters with disabilities,
voters with language access issues, and for voters of color in
this country, that we don't see the department active in
litigating in that area is a crisis in the country.
Mr. Cohen. Thank you very much.
Ms. Ifill, communities of color have experienced years of
police misconduct and they are distrustful of their police
departments. We see it in Louisville and Minneapolis, et
cetera. How can an outside investigation by the Civil Rights
Division remedy this systemic misconduct and start to alleviate
the distrust, and how would you rate the division's performance
under the Trump administration in this regard?
Ms. Ifill. Well, the performance has been, frankly,
abysmal. In the years [inaudible] Obama administration the
department was taking a very active role in addressing police
misconduct.
Communities responded to the presence of the attorney
general, to the presence of lawyers for the Civil Rights
Division in Baltimore, in Ferguson, and in other cities.
Members of the community regarded it as important that the
federal government, that the Civil Rights Division at the
Department of Justice was being attentive to these long-
standing systemic issues that local communities have had with
police departments.
The current Civil Rights Division not only has pulled out
of pattern and practice investigations, which really is the
most important tool to get at systemic discrimination in law
enforcement, they have tried to frustrate the efforts to do
those kinds of investigations in other fora.
You already heard that they really attempted to reverse
themselves in the Baltimore case but were stopped from doing so
by the--by the federal judge.
They also filed a statement of interest in Chicago when the
state of Illinois filed its own pattern and practice
investigation against the Chicago Police Department.
The Department of Justice submitted a statement of
interest, essentially, suggesting that they should not enter
into a consent decree. This is a case the department was not
even part of, but they wanted to frustrate the efforts of the
state of Illinois to do what the department has failed to do.
So this is actually quite serious, indeed, not only the
absence of the Civil Rights Division in aggressively entering
this space but also the effort to frustrate the attempts by
others to try and address systemic unconstitutional policing.
The law enforcement misconduct statute was passed after the
unrest following Rodney King's beating in Los Angeles, and that
statute empowered the attorney general to do these
investigations, and it, essentially, sits dormant.
So the attorney general, essentially, has made the decision
and the Civil Rights Division has, essentially, abdicated its
role under an authorized statute to do this work. It sits--it
lies dormant, unused by the department because they have chosen
not to do so.
Mr. Cohen. Thank you.
Ms. Ifill. And much of what we have seen today----
Mr. Cohen. Thank you, Ms. Ifill.
Ms. Ifill [continuing]. The frustration around the country
is a reflection of that.
Thank you.
Mr. Cohen. Thank you, Ms. Ifill.
Mr. Sessions had said that bringing these type of pattern
and practice investigations reduced officer morale and
suggested they had the effect of increasing crime.
That seems analogous to their not appearing before our
committee because we hurt their feelings once. Do any of you
all believe--Mr. Smith, I guess, or Ms. Ifill--that we should
not have pattern and practice investigations for concern that
we might be reducing the officers' morale?
Ms. Ifill. Representative Cohen, I met with Attorney
General Sessions early in his term and I shared with him the
existing scholarship that actually demonstrated the contrary,
and I shared with him the way in which we increased the morale
of the police department by increasing trust with the community
and community trust is increased by ensuring that there is not
unconstitutional policing.
I shared this with him directly. His view is
unsubstantiated and simply untrue, and as we can see, I think
things have deteriorated in this country around policing,
largely, because of that decision by this department.
Mr. Cohen. Thank you very much.
I now yield to Mr. Johnson for questions.
Mr. Johnson of Louisiana. Thank you, Mr. Chairman, and
thank you for being here, Mr. Sasser. I just want to just make
a comment at the outset that you and First Liberty Institute
have just done extraordinary work over the years defending what
we often refer to is our first freedom, religious liberty.
And I have often heard Kelly Shackelford, our good friend,
who is the CEO and president of First Liberty Institute, he
says when religious freedom is taken from a people, their
political freedom soon follows, explaining the urgency and the
importance of protecting that first freedom. And your
organization has called religious freedom the foundational
right that all others are built upon.
Elaborate on that sentiment for us. Why is it so important
for not only public interest law firms but also the Department
of Justice Civil Rights Division to be engaged in this battle?
Mr. Sasser. Well, I think Thomas Jefferson said it best,
that religious institutions guard against state absolutism, and
that whenever--any time a totalitarian regime takes over a
people group the first thing it has to do is it has to crush
the ability of the people group to have an allegiance that is
higher than the state.
Any competition with the state has to be crushed. And so it
is very, very important.
A lot of the people who support our work are actually
immigrants from Eastern Europe who are not of any particular
faith but they support our work because they saw, in their
experience, that the very first freedom that is deprived of any
people whenever a totalitarian regime takes over is religious
liberty and that that is the guardian of all the other
liberties, and that is what we really believe and we feel very
strongly about.
Mr. Johnson of Louisiana. I really appreciate you
highlighting today the protection of religious liberty being a
point of emphasis for the Civil Rights Division or the Trump
administration and, importantly, that the division has devoted
its energy and resources to assisting all Americans equally.
I mean, your examples of the recent cases of Nashala Hearn
and the Falun Gong and Islamic Association of Collin County,
Texas, are helpful, compelling examples of how minority faiths
have been protected with the help of the DOJ as well.
I know First Liberty does work in a lot of these areas. One
of them I just wanted to highlight in the limited time we have.
The work you guys have done recently representing religious
institutions in lawsuits against state and local governments
that have infringed upon their rights under the cover of the
COVID-19 pandemic, one of those cases was a--involved a church
in Greenville, Mississippi, the drive-in services. Could you
elaborate a little bit more on that one, just as an example?
Mr. Sasser. Sure. In Greenville, Mississippi, the mayor
there was concerned that the church was having a drive-in
church service where the cars would all come and park six feet
apart from each other, and the mayor, I assume, was concerned
that the virus could penetrate the steel and the glass of the
vehicles.
And so we brought a lawsuit and the Department of Justice
also got involved in a sister lawsuit against the same mayor in
order to bring an end to that discrimination that was going on,
because you were allowed to drive your car to go pick up food
or whatever else it may be but you weren't allowed to
congregate in your vehicles for purposes of going to church.
Mr. Johnson of Louisiana. And the DOJ's involvement
involves sometimes statements of interest, other tools. How do
they help in a typical case like that?
Mr. Sasser. Well, usually the Department of Justice starts
off with a statement of interest. They usually do a very
thorough investigation and then sometimes they intervene.
Sometimes they file an amicus brief. When the Obama
administration helped us, it was filing an amicus brief. We
have seen a lot more intervention under the Trump
administration.
Mr. Johnson of Louisiana. And you had done previous work
under the Obama DOJ and, as you mentioned, you were around
during the Bush DOJ. In your estimation, how is this Civil
Rights Division doing on these issues and others that you have
heard about today?
Mr. Sasser. Well, the--I think the best measure is really
what is going on in Airmont, New York, with the Orthodox Jewish
community suffering discrimination there. It was the first Bush
administration that fought.
It was then the second Bush administration that fought, and
now it is the Trump administration fighting again. You know, we
appreciate the Department of Justice and their fight for the
Jewish people.
Mr. Johnson of Louisiana. Very good.
Mr. Mabrouk, I had a quick question for you. I just have
limited time. But I really appreciate you sharing your story
today with us and we are really sorry about what happened to
you. I do believe everybody is.
Do you think city officials failed to adequately ensure
your safety and prevent the looting of your store?
Mr. Mabrouk. Absolutely, and that is why I spent the night
at my store. Last night at the store [inaudible]
Mr. Johnson of Louisiana. Has the city responded to the
looting of your store and the other damage in the downtown
Columbus area? I mean, do you know if there have been
prosecutions yet?
Mr. Mabrouk. Zero.
Mr. Johnson of Louisiana. I know that you mentioned--I just
have a second left--I know you mentioned that you had been a
part of protests in Egypt back in the late 1990s.
But that was a different kind of protest, right? You guys
didn't loot and destroy property. Why is that so important?
What message do you have about that?
Mr. Mabrouk. Well, I hope I don't get in trouble.
[Laughter.]
Well, it is--I think we had a message that tried to
[inaudible] on that, like, on day one but we had a message we
are determined--we actually, you know, carried the chains to
protect personal properties because it is--again, I really
believe it is not material. It is not.
It is people's livelihood. So and it is--I mean, I am
minority myself. I always say I am a minority within the
minority. You guys all hear the accent. So if this is happening
to protect me, then why is it destructing me? It is really
frustrating.
Mr. Johnson of Louisiana. Thank you for being here and
pursuing your American dream. I yield back. I am out of time.
Mr. Cohen. Thank you, sir.
I now recognize the chairman of the committee, Mr. Nadler,
for five minutes.
Chairman Nadler. Thank you, Mr. Chairman.
Mr. Waldman, you note in your testimony that Attorney
General Barr is actively fomenting distrust in our upcoming
election and spreading false information about voter fraud.
What are some of the ways in which the attorney general may
actively seek to help President Trump gain improper advantages
and what can we do to stop him?
Mr. Waldman. Well, so far, Mr. Chairman, that active
involvement has in particular been the public statements that
he has made, which are documented in some length in our
testimony.
We are trying, as a nation, to do something important but
hard, which is to vote in a critical election in the middle of
a pandemic.
And, as we know, the president has responded to this by
loudly spreading falsehoods about vote by mail and about the
election system being rigged, and repeatedly the attorney
general has, when asked or even when not asked, validated those
misrepresentations.
So, first and foremost, his voice, rather than being a
voice for the vote is a voice to undermine the vote. It is also
the case that there is reason to worry as the election day
itself approaches that this administration could try to engage
a misconduct to stir the pot to undermine faith in the election
or to bring law enforcement or other uniformed personnel into
play in a way that is not allowed, is not appropriate.
The attorney general's willingness to step forward in
Lafayette Square to organize a sort of motley assortment of law
enforcement personnel to clear the square suggests that that is
something we ought to worry about.
The most important thing, I would say, is that the Justice
Department, rather than undermining confidence in the vote,
should be out there helping to bolster confidence in the vote.
Even if it were not--even if it were not repeating lies, it
should be out there advancing those very core values.
Chairman Nadler. And what can we do to stop them?
Mr. Waldman. Well, a hearing like this can play a
significant role. It is also worth noting that states have
power here and sovereignty, and that if, for example, federal
uniformed law enforcement is sent in to a city, the President
has threatened to send them to, quote, ``Democrat-run cities,''
under the pretext of protecting federal property, but in fact
to deter people from voting or to do so in a discriminatory
way, that is illegal.
The courts can be involved, and also states and cities
have--and counties have a considerable role. We, certainly,
hope that not--that is never the reality we need to deal with
and, hopefully, people will understand that for all the scare
talk from the White House, the worries that people have, this
system can work, has many checks and balances, and we all hope
that voters will be able to understand they can vote this year.
Chairman Nadler. Thank you very much.
Ms. Lhamon, according to recent press reports, the
Commission on Civil Rights spent months working on a detailed
report about threats to minority voting rights through the
COVID-19 pandemic.
But Republican appointees to the commission voted the
shelve the report and prevent it from ever seeing the light of
day. Can you describe some of the enormous challenges facing
Black, Latino, and other minority voters right now and the
commission's recommendations for how to respond?
Ms. Lhamon. Well, unfortunately, Chair Nadler, I am unable
to offer recommendations from the commission because the
commission voted them down. So those are not available.
But we took in incredibly compelling bipartisan testimony
about the challenges that voters of color, voters with
disabilities, voters with language access needs face in this
time to exercise their right to vote.
The very long lines, the need--and we received bipartisan
interest in increasing access to mail-in votes so that people
would be able to vote safely either at home or in person
[inaudible] and a need for ensuring that poll workers are
trained and available to assist voters who are present and have
safety measures in place.
There was incredibly compelling testimony about the
specific kinds of protections that should be in place in this
time because of----
Chairman Nadler. Thank--thank you. Before my time expires,
I want to ask Ms. McGowan, your testimony describes in detail
the Trump administration's efforts to undermine the rights of
gay, lesbian, bisexual, and transgender Americans.
In your view, what are some of the most indefensible
positions the administration has taken and how has the Civil
Rights Division played a role?
Ms. Lhamon. Thank you, Mr. Chairman.
Obviously, the fact that the Civil Rights Division played a
role in trying to convince courts and, ultimately, the Supreme
Court unsuccessfully, I may add, to basically write LGBT people
out of the protections of our foundational workplace
discrimination law, Title 7, was really one of the low
watermarks of the division.
And I would note that even still to this day the employment
litigation section of the Civil Rights Division does not have
an updated website reflecting the fact that its mandate to root
out sex discrimination includes sexual orientation and gender
identity.
From the minute of the decision we have worked with allies
here in Congress, both in the Senate and the House, urging
Attorney General Barr and the entire federal government to
demonstrate that it would follow the rule of law, follow the
ruling of this decision, and the fact that they have not causes
us deep, deep concern.
And, in fact, we have actually seen different agencies
within the federal government act as though Bostock never
happened. As you may know, the Department of Health and Human
Services, just days after the Bostock decision, rolled out a
regulation rolling back protections within the Affordable Care
Act, specifically sex discrimination protections, advancing the
view of sex discrimination advanced by the Department of
Justice that had been resoundingly rejected by the Supreme
Court.
Lambda Legal has been in court and, fortunately, we have
been able to enjoin enforcement of that regulation. But that is
an example of the lawlessness of this administration as a whole
and the ways in which it has undermined not only the
credibility of the Civil Rights Division but civil rights
offices throughout the administration.
Chairman Nadler. Thank you very much.
Mr. Cohen. Thank you, Mr. Chairman.
I now recognize Judge Gohmert for five minutes of
questioning.
Mr. Gohmert. Thank you. I appreciate the witnesses being
here.
With regard to the attorney general's response to the
demand to be here, for those of us who were here, it was a bit
shocking to have the attorney general of the United States
asked questions and then being refused the opportunity to
answer those questions.
It is one thing when an answer is nonresponsive, but we had
occasions when the attorney general was providing response or
trying to provide responsive answers and he was cut off,
treated rudely, abused in completely inappropriate ways.
The attorney general also noticed those who showed a real
hatred. Adversary positions to the attorney general were
provided extra time as opposed to those who were interested in
getting his answers. So it is not surprising to me to see the
response, and I don't think in this case it was inappropriate.
We also had the classification of the DOJ not coming
because their feelings were hurt. Hurt their feelings.
Actually, that is unfair and inaccurate, and I hope we will at
some point arrive at being more fair and accurate to witnesses
that the current majority wishes to bring in here and make
whipping people out of.
With regard to things deteriorating at the Department of
Justice, I couldn't agree more. We saw that illustrated when
the Department of Justice participated in Fast and Furious, and
was complicit in an operation that got guns to some of the
worst criminals in this hemisphere, and yet totally denied any
opportunity for information that would have gotten to the
bottom of how the DOJ helped play such an integral role in
killing people--hundreds in Mexico, at least one of our own
federal agents here.
So I totally agree. Hopefully, the Department of Justice
will continue to come back from the damage that was done
through those days.
With regard to Russian interference in the U.S. election, I
am glad we agree on that. But to have Russia provide so-called
witnesses and those witnesses provide information to people
hired by the DNC, by the Hillary Clinton campaign, and have
them totally fabricate stories about the candidate for
president and then president, and put this country through
three years of hell to get down to the bottom of it that
actually it was all fabricated and it likely did come from
Russians is just abysmal as well.
With regard to Mr. Mabrouk, did the state and local
government protect your property and your liberty?
[No response.]
Mr. Gohmert. I am not hearing----
Mr. Mabrouk. I did not see that.
Mr. Gohmert. Okay. And when the state and local government
do not protect a citizen's property or liberty, then the
federal government does need to step in. And we have the
Insurrection Act that allows the federal government to do that
even without the governor's invitation.
Mr. Sasser, if a commission here in the United States is
supposed to be devoted to protecting civil rights actually puts
in writing that evangelical Christians, in its opinion, are the
biggest hate group threat in America, is that commission really
serving civil rights interests?
Mr. Sasser. Well, I sure hope that nobody has written that.
Somebody has written that?
Mr. Gohmert. Yes.
Mr. Sasser. Well----
Mr. Gohmert. So that is why the question. I take it by your
response you don't believe that does.
I yield back.
Mr. Cohen. Thank you, Mr. Gohmert.
I now recognize Mr. Raskin, who is here in his office, but
he is virtual in terms of his appearance today.
Mr. Raskin, you are recognized for five minutes.
Mr. Raskin. Mr. Cohen, thank you very much. Thanks for
calling this hearing.
A week ago, FBI Director Wray warned the Homeland Security
Committee that Vladimir Putin and Russian agents are, again,
interfering in the U.S. presidential election in order to skew
and influence the outcome of the election.
Mr. Waldman, what is it that the states should be doing to
secure the election against cyber attack and what is it
Congress can do, if anything at this point, other than make
funds available as the House is trying to do through the HEROES
act?
Mr. Waldman. Well, Congressman Raskin, you are right that
states have a key role, and counties, and election officials,
in our experience, of both parties are working hard to try to,
in effect, harden their systems against the types of cyber
attacks that began in 2016 and that could be well underway now.
One of the most important things they can do is to make
sure there is resiliency so that if there is an attack on poll
books or something else, or other problems at a polling place,
that voters can vote and that votes can be counted. There could
be a recount. There could be audits after the fact to see if
there has been something inappropriate.
States can only do this with resources, and that is
something where the federal government and Congress have a
critical irreplaceable role to play in providing resources.
Over the past few years, the federal government has
provided resources. They have been used by states. Earlier this
year, as you know, $400 million was appropriated to help states
run safe elections and including for security. But that is only
one-tenth of the amount of funds needed to run this election
this year.
The House did pass $3.6 billion, but it hasn't been voted
on in the Senate and it is tied up, as you know, in stimulus
negotiations.
My one point here, we talk to election officials every day.
It is not too late. Funds appropriated now will be used and
useable. But it is critically important, I would suggest, that
Congress and the president do so.
Mr. Raskin. Let me follow up on this.
Yesterday, President Trump refused to commit himself to the
peaceful transfer of power when he was asked by a reporter, and
he said, ``We are going to have to see what happens. You know
that I have been complaining very strongly about the ballots
and the ballots are a disaster. Get rid of the ballots and you
will have a very peaceful--there won't be a transfer, frankly.
There will be a continuation.''
Now, in the face of that blatant violation of his oath of
office to swear to uphold and defend the Constitution, what
would a real attorney general be doing in terms of consulting
with the president who takes this attitude about a democratic
election in the United States of America?
Mr. Waldman. Well, it would be encouraging to hear law
enforcement leaders from the federal government as well as
other parts of our federal system make very clear that the
peaceful transfer of power is one of the key aspects of having
a republic.
I do think that an independent attorney general would also
point out to any president who says the kinds of things about
voting that this president says, that when you hear
widespread--when you hear this president make unsubstantiated
claims that voting by mail is rigged and is fraudulent, that is
not really a charge.
That is a lie. Already one in four people in the United
States vote by mail before this year. It has happened in states
with minimal problem and with no, no, no evidence of widespread
fraud or misconduct, and we need it this year to help so
everybody could vote safely.
Mr. Raskin. Thank you.
Ms. Ifill, the NAACP tried to get Texas placed under court
supervision based on its continuing violations of the voting
rights of African-American and Latino American citizens. The
Civil Rights Division initially supported that effort but then
changed course, did a U-turn under President Trump.
What explains that switch from supporting your lawsuit to
opposing it?
Ms. Ifill. Well, it is an excellent question,
Representative Raskin. We learned, as we [inaudible] oral
argument in the Court of Appeals that they would [inaudible]
our shared argument. Our successful argument in the Texas law
had deliberately discriminated against African-American and
Latino voters.
It is hard to say. It very much relates to the question
that you just asked. So LDF is in active litigation on behalf
of Black voters seeking to relax onerous absentee voter
requirements because of the COVID-19 pandemic.
When the president said what he said yesterday about the
ballots, he is talking to the people that I represent. He is
talking to the African-American voters who are
disproportionately vulnerable to COVID who we have encouraged
to vote absentee because they need to be able to vote safely,
and we are in that kind of active litigation that we would have
thought the Civil Rights Division would have brought.
So what would an attorney general do? First of all, an
attorney general would be bringing the litigation that LDF has
been compelled to bring, but an attorney general would also be
saying every vote should be counted.
The entire voting rights movement of the 1960s that was
designed to ensure that Black people could finally, at long
last, participate equally in the political process, was
premised on the idea that we would be able to cast votes but
that our votes would also count.
So it is shocking to hear the silence from the attorney
general after the president's comments.
Mr. Raskin. Thank you. And, Ms. McGowan----
Mr. Cohen. Thank you, Mr. Raskin. Your five minutes are up.
I hope you will be around for a second round and I hope you
will bring up the fact that African Americans are the most
disproportionately hurt by the coronavirus, therefore, the most
likely to want to use mail-in voting to protect their health
and, therefore, likely to be the most discriminated against,
once again. So I hope you will do that.
Mr. Cline, you are recognized for five minutes.
Mr. Cline. Thank you, Mr. Chairman.
The Constitution is clear that Congress shall make no law
respecting an establishment of religion or prohibiting the free
exercise thereof. And yet, during this pandemic some
jurisdictions have discriminated against houses of worship.
In my home state of Virginia, this unequal treatment has
been seen, and I brought this issue to the attention of the
attorney general when he testified before the full committee
back in July.
I am also pleased to see that the Civil Rights Division at
DOJ has taken the issue seriously. Attorney General Barr's
memorandum directing Assistant Attorney Eric Dreiband and
Matthew Schneider, the U.S. Attorney for the Eastern District
of Michigan to monitor and, if necessary, intervene in
discrimination against religious institutions and believers is
a welcome step toward ensuring that our rights are preserved.
Particularly thankful for the department's intervention in
the case in Chincoteague, Virginia, and similarly I am glad to
see that for now the governor of Virginia has agreed that for
churches with fewer than 250 attendees the only remaining
restriction is the executive order related to face coverings.
However, we should not have gotten to this point and our
rights should have always been protected, and that is why I
have co-sponsored legislation to prohibit states and units,
local government that issue orders limiting gatherings to a
certain number of people pursuant to an emergency declaration
from discriminating in the enforcement of such order in the
case of persons who are exercising a right protected under the
First Amendment, and authorizes the private right of action in
U.S. District Court by a person who is harmed by a violation of
this provision.
I want to ask Mr. Sasser--thank you for being here. I thank
all our witnesses for participating. The Department of Justice
Civil Rights Division has been active in responding to
discrimination against houses of worship during COVID-19.
Are you aware of efforts undertaken by the Civil Rights
Division to combat discrimination against religious
institutions during the pandemic?
Mr. Sasser. Yes. I mean, they have been pretty active. They
have sent several letters out. They have filed some statements
of interest.
We actually just filed a case this week against the
District of Columbia for their ban on church services, and that
is going to get litigated, and perhaps we might have a decision
on emergency relief coming in a week or so and that would--you
know, obviously, we welcome the Department of Justice's
participation if they so choose to participate in that.
Mr. Cline. Has the Department of Justice supported any
cases that your organization has taken on through statements of
interest or other tools?
Mr. Sasser. Yes. I have highlighted some of them with the
Islamic Association of Collin County, the issue in Airmont New
York with the Orthodox Jewish community, and then a small rural
church in Nebraska that ministers to a very large Native
American population.
Mr. Cline. Your organization--I believe the church in
Chincoteague is represented by Liberty Counsel. But the--and
that case was decided at the district court level but it is on
appeal, to my understanding.
It sounds to me like there are several cases in other
states that are--that are moving forward. Would you say that
and would you say that is happening?
Mr. Sasser. Well, sure. There is--there is another wave of
these types of cases that are challenging the restrictions on
religious liberty during the COVID-19 situation that are going
to make their way through the court system, and there will be
another opportunity for the Supreme Court to provide some
robust protection to the first freedom that is mentioned in the
Bill of Rights.
Mr. Cline. Thank you. Well, I appreciate your work and I
appreciate you being here today.
Mr. Chairman, I yield back.
Mr. Cohen. Thank you, Mr. Cline.
Ms. Scanlon, you are recognized for four minutes and 60
seconds.
Ms. Scanlon. I appreciate your generosity, Mr. Chairman.
Thank you.
Thank you to our witnesses being here. Listening to your
testimonies I have certainly been reminded of the Civil Rights
Division's critical and honorable role in our country's fight
against discrimination, and it is sad and maybe even pathetic
how far from that legacy the current division has fallen not
because of the dedication and knowledge and commitment of the
career civil servants but because of the administration's
politicization of the Department of Justice.
You know, the Civil Rights Division is tasked with
protecting individuals from discrimination on the basis of
race, sex, disability, religion, and national origin.
But this--the department and DOJ, at large, during the
Trump administration have, largely, failed to accomplish this
task, even going back to undo the progress of previous
administrations, and this was decades of bipartisan progress.
It is really quite astonishing to see where we are with this.
Mr. Smith, your testimony touched on this politicization
and you talk about how important it was during your tenure at
the Civil Rights Division that decisions be made without any
political consideration.
Why is it important that the Civil Rights Division enforce
anti-discrimination laws without political bias and how has
this administration changed that equation?
Mr. Smith. Certainly. Thank you for the question.
You know, I was proud when I was in the Civil Rights
Division that we went to where the problems were. We were able
to go into communities where there was an identified issue,
whether it be in policing with regard to what was happening
inside a correction facility, psychiatric hospitals to enforce
the Americans With Disabilities Act and the immigration
mandate.
We went all across this country, and as I said earlier, we
were often in cities where there was Democratic leadership and
we were in places where there was Republican leadership, and
that never played a role and that added to the credibility of
our enforcement decisions.
And it was critical that when we went in and we conducted
an investigation, we reached conclusions about the facts. We
applied those facts to the law and we recommended a remedy.
In fact, those recommendations and those findings have
credibility and that they were independent from the political
process. In order--the project of overcoming the history of
racial injustice in this country is a difficult one.
It is one that takes--it takes a tremendous amount of
effort and it requires an independent Department of Justice
that comes with credibility that communities can trust, that
the jurisdictions trust, that the members of the very diverse
communities that make up any jurisdiction can rely on. And so
that independence is critical.
What we have seen with his administration is the targeting
of the use of the enforcement to gain political advantage in
the upcoming election and that has been just very, very
disturbing to see.
And as you have pointed out, you know, the career staff in
the Department of Justice does extraordinary work and to have
that work undermined by political consideration is just very
damaging both to their morale but also to the credibility of
the work that they do.
Ms. Scanlon. Yeah, and it has just been so disturbing. As
someone who worked in this field as a pro bono ally with the
Department of Justice and many of the groups on this call, to
see not only has there been no enforcement, no new cases
brought, but to see the reversal of positions that were--you
know, principled positions has just been so, so destructive,
and to have--I think we had Acting Attorney General Whitaker
before us here, he had no idea whether any cases had been
brought.
So it just, clearly, has not been a priority, which is so
antithetical to the whole point of the Office of Civil Rights.
I wanted to take a minute with Mr. Waldman. The Census is a
huge issue in our area. We have a lot of undercounted
communities, both because of socioeconomic factors and fully 10
percent or more of my district is foreign born.
We saw reports just today indicating that there are
probably a million people in the Philadelphia region who have
not yet been counted and, surprisingly, that is equal to at
least one or maybe more congressional seats.
So it is clear why this administration has interest in
suppressing the Census. But how has the Civil Rights Division
helped the Trump administration push xenophobic Census policies
to exclude people like my constituents?
Mr. Waldman. Well, in a number of ways. As you may recall,
the administration tried to add a question, unprecedented, to
ask everybody, are you a citizen. And the rationale that was
concocted by this was from the Civil Rights Division and it was
supposedly so that it could enforce the Voting Rights Act.
Except as this hearing has heard, it doesn't enforce the
Voting Rights Act. This was a pretext. And when the case went
to the Supreme Court, in fact, the question was removed
precisely because this purported rationale was--evaporated as
soon as it came in contact with sunlight.
There are other things as well where the Justice Department
is defending--the Justice Department institutionally is
defending conduct and policies that would make it harder to
count in the Census.
In particular, the Brennan Center and others are involved
in litigating the abrupt early end of the Census that was
deemed necessary--that was ordered by the administration, and
the courts have said no, you need to take as much time as
possible.
Again, there is a pandemic. We haven't lived through this
in nearly a century. We have to make sure that everybody is
counted so they can have their votes counted and be heard by
our government.
Ms. Scanlon. Thank you. I see my time has expired. But I
will be out this weekend in a Census caravan trying to do some
of the work the administration is unwilling to do.
I yield back.
Mr. Cohen. Thank you.
Ms. Dean is recognized for five minutes.
Ms. Dean. Did you skip Ms. Garcia?
Mr. Cohen. I don't go in order of who comes at times. I go
in order of seniority. So I think you are next.
Ms. Dean. I thank you, and I thank you, Ms. Garcia.
Mr. Waldman, in your testimony you discuss areas where the
Department of Justice has abdicated its responsibility in
protecting voting rights from oppressive restrictions in areas
in which it acts in opposition to its duty.
I am from Pennsylvania. So I would like you to think about
Pennsylvania. We are well in the news in terms of the legal
fight surrounding our elections and our ballots. The state
supreme court rules last week that there will be a three-day
extension for mail-in ballots to be counted as long as they are
postmarked by 8:00 p.m. on November the 3rd, election night.
Previously, ballots were due when the polls close on
election day, but the state's Democratic Party filed a lawsuit
to push back that deadline.
Republicans have challenged this, arguing that, in effect,
expanding mail-in voting would give Democrats an unfair edge in
the election. We now have 203,000 Americans dead of COVID.
Of course, mail-in ballots are essential. We have a
president saying, quote, ``Get rid of these ballots,'' an
extraordinarily transparent attempt to grab political power.
Ordinarily, could we expect the Department of Justice to
act in cases like this one in Pennsylvania maybe by submitting
an amicus brief or intervening? Could you describe what
processes we should expect or should have expected?
Mr. Waldman. Well, Congresswoman, of course, if the
president were a local official and were saying these things
and taking these steps to make it harder for people to vote,
that would be precisely the kind of thing a strong Civil Rights
Division would take a look at.
You are absolutely right that all across the country,
including especially in Pennsylvania there are so many issues
relating to how ballots are counted, whether people will have
their votes counted if they send them by election day, whether
there are drop boxes that people can safely use to drop off
ballots, and many other things, all related in new ways to the
pandemic.
And there are litigants that are private litigants, that
are political campaigns, who are pushing. In the case of the
Pennsylvania matters you describe, the Trump campaign actually
is pushing to make it harder for these ballots to be counted
and in other cases voting rights groups are trying to make sure
that states and counties give their citizens full ability to be
heard.
The Justice Department and the Civil Rights Division has a
long practice of filing amicus briefs, ``friend of the court''
briefs, to state, in effect, the interest of voting rights and
the interest, therefore, of the federal government in
protecting those voting rights, even if it is not bringing the
case itself.
We note that this Civil Rights Division has pulled back
dramatically from filing amicus briefs of that kind at a pace
far less than either the Obama administration or the George W.
Bush administration.
One would hope that this division would speak out in that
way to make clear that the right to vote needs to be protected
in new circumstances with new technologies, with new issues.
But it is a core right for Americans.
Ms. Dean. I want to ask you, and this is really just from
constituents who text me, call me. They are fearful for their
vote. They are in a panic now. Maybe I shouldn't have done with
a mail-in ballot. Maybe I will walk in on election day. We know
that if they do that they have got to bring their ballot so it
can be spoiled or they are going to have to vote provisionally,
further muddying and delaying the count.
What can you say to my constituents? My sister-in-law, who
texted me at midnight last night, I am in a panic over the
security of my vote, even though I try to tell them, with
confidence, your mail-in ballot is secure.
What should we say, particularly in light of Pennsylvania
being one of the--the keystone state yet again?
Mr. Waldman. It is an excellent question, and all who care
about this election being free and fair and secure need to be
careful in how we speak to the public.
What I would say to your constituents, first and foremost,
is we all have a extra responsibility this year. Make sure you
are registered. Make sure that if you can you can vote early.
Whatever you do, make it easier for election officials to
handle the new wave of ballots coming in or the new wave of
voters. I would say also that we who care a great deal about
the challenges that are being erected or the challenges that
exist need to be careful not to alarm voters unduly and----
Ms. Dean. And if I----
Mr. Waldman. Go ahead.
Ms. Dean. Exactly right. And just in the remaining seconds,
I want to give a shout out to my counties, Montgomery and Berks
Counties, who have done just that. They have invested in the
security of our elections.
We are trying to get the word out that your ballot is
secure, up against a president who says, ``Get rid of these
ballots.'' Incredibly transparently corrupt.
Thank you.
Mr. Waldman. And I would say we can all speak out and have
the backs of the local election officials of both parties who,
all across the country, are doing their best to try to make
this situation work well.
Mr. Dean. Thank you, Mr. Waldman. I yield back.
Thank you, Mr. Chairman.
Mr. Cohen. Thank you.
Representative Garcia is recognized for five minutes.
Ms. Garcia. Thank you, Mr. Chairman, and thank you so much
for this opportunity for this committee to shed light on the
work and, yes, the failures of the Department of Justice Civil
Rights Division. And thank you to all the witnesses who have
come to visit with us today.
This hearing on this topic comes at a critical point in our
country's history as we near the 2020 elections. Following
reports that the Civil Rights Division has virtually abdicated
its responsibility to protect the rights of minority voters
makes it even more critical.
Essentially, the Civil Rights Division has responsibility
to uphold civil and constitutional rights of all Americans,
particularly some of the most vulnerable members of our
society.
Specifically, the division carries the responsibility of
exercising its enforcement of voting rights and consent decrees
with local police departments found to have engaged in a
pattern or practice of violation of constitutional rights.
Months ago, I proudly joined my colleagues of this full
committee in consideration of the George Floyd Justice in
Policing Act.
To this day, this attorney general has so far refused to
allow DOJ to open a pattern or practice investigation into
systematic racial discrimination by the Minneapolis Police
Department following the killing of George Floyd.
We need a real attorney general, someone who can really
talk about the reality of what is going on on the streets and
someone who can speak truth to law and order, and must rebuild
the Civil Rights Division of the Department of Justice and help
it reclaim its purpose of enforcing federal statutes
prohibiting discrimination.
I want to start with Sherrilyn Ifill and Thomas Saenz
representing the NAACP and MALDEF. I think--Ms. Ifill, again,
thank you for being here. I know we have visited with you
before. You talked a little bit about the Texas case in
response to my colleague, Representative Raskin, and there is
more cases in Texas where this attorney general has reversed
course, reversed position.
Could you, for the record, and, you know, I know you have
mentioned some and, Mr. Thomas Saenz, you too, you have
mentioned some. But I think it is important for the public to
hear what a difference having an attorney general, whether it
is, like Mr. Raskin said, we don't have a real attorney
general, but this attorney general has done so much damage.
Could you give us just some quick examples not only in
Texas but across the country of where reversing course has hurt
minority rights, voting rights, civil rights, et cetera?
And I will start with Ms. Ifill.
Ms. Ifill. Thank you. I will leave the Texas cases to my
colleague, Mr. Saenz.
One area that we haven't talked about is education and, in
particular, affirmative action. Every time affirmative action
has gone--cases have gone to the Supreme Court over the last 40
years, the Supreme Court has upheld the constitutionality of
the practice in the Bakke case, in the Gratz and Grutter cases,
and in the Fisher cases, and in the Fisher cases the Department
of Justice actually argued in support of affirmative action.
And yet, this year--this year and beginning last year, the
Department of Justice has, essentially, switched side on
affirmative action, filing a statement of interest in the case
challenging affirmative action against Harvard last year and
the brief in the court of appeals just recently, Mr. Dreiband
himself sending a letter to Yale University threatening to sue
Yale University for its affirmative action program, and now
recently sending a threatening missive to Princeton University
after Princeton University voluntarily chose to acknowledge its
own history of discrimination.
This is yet another area, affirmative action, where the
department has essentially switched its position and now
actively works against affirmative action, once again, a core
civil rights measure.
We combined that with voting. We combined that with the
policing cases, and we see a Civil Rights Division that,
essentially, has abandoned its core mission.
I am listening today to the conversations about religious
discrimination, which is certainly part of the portfolio and
docket.
But it is one part of the portfolio and docket. On race
discrimination cases, this department has essentially stood on
the opposite side of core civil rights positions.
And as I suggested earlier, in some cases, actually not
just, you know, withdrawing but actually seeking actively to
undermine civil rights protections in the area of race
discrimination, a reminder again that the division was created
at a moment when this country was fracturing around race
discrimination, and here we are again all over this country,
racism from the highest levels of government, explicit white
supremacy, the DHS telling us that white supremacist violence
is the number-one domestic terrorism threat.
And yet, silence from the Civil Rights Division as we see
this violence unfold around the country. Really alarming and
shocking, and time for a reversal.
Ms. Garcia. Thank you. Mr. Chairman, could we allow Mr.
Saenz to respond to my question?
Mr. Cohen. Yes.
Mr. Saenz. Thank you, Congress member.
As I mentioned in my testimony, the Department of Justice
changed its position on preclearance for the state of Texas
following the lengthy redistricting litigation. It changed its
position, as Ms. Ifill testified, in the voter ID litigation in
Texas.
I want to emphasize with respect to redistricting that that
change of position and not subjecting the state of Texas to
preclearance it has its greatest cause for the state itself.
The fact is that preclearance is a much more efficient and
effective means of quickly addressing flaws in redistricting.
Without preclearance in 2021, I expect we may end up in
lengthy litigation lasted eight years plus, in this decade,
lengthy litigation against the state of Texas that is, frankly,
very costly for the state.
I would simply add, in the state of Texas, as you know,
Congress member, a year ago the secretary of state attempted to
remove a hundred thousand voters from the rolls based on faulty
data, data that the secretary of state knew was faulty, from
the Motor Vehicles Department, and this would have resulted in
removing up to a hundred thousand naturalized voters from our
voter rolls, and that would have had an impact in this
election.
That is the kind of case that ordinarily one would expect
the Civil Rights Division to step up and arrive at a very quick
resolution with the state of Texas.
Ms. Garcia. Thank you. I yield back.
Mr. Cohen. I would now like to recognize the honorable lady
from Houston, Texas. Oh, I am sorry. I am sorry. Off camera. El
Paso, Texas.
Representative Escobar for five minutes.
Ms. Escobar. Thank you so much, Mr. Chairman, and many
thanks to all of our panelists.
I would like to use my five minutes to focus on two areas
of great concern to me. The first is the increase in hate
crimes and the second is police brutality.
And as you all know, August 3rd of 2019, El Paso suffered
one of the deadliest targeted attacks against Latinos in modern
American history where a gunman drove over six hours--I am
sorry, over 10 hours and 600 miles in order to kill people that
he believed were immigrants, in order to kill Mexicans, but
essentially to kill people with brown skin.
And I believe that that hate in his heart has been fueled
and was fueled by the racism coming from the White House and
racism that has been amplified by other leaders across our
country.
And the fact of the matter is we are seeing hate crimes
increasing tremendously and they have increased since 2016
since the president was installed in office.
Chair Lhamon, it is so wonderful to see you again and I
want to thank you once again for joining me at a town hall
where we marked that terrible anniversary about the shooting
and where we came together to talk about what needs to--what
more needs to be done to fight hate crimes in our country. And
we discussed the commission's report entitled ``In the Name of
Hate: Examining the Federal Government's Role in Responding to
Hate Crimes.''
And the report, obviously, affirmed what we all know, which
is that there has been this increase in hate crimes since the
election.
If we had an attorney general interested in keeping our
communities safe from hate crimes, what more could and should
the Department of Justice be doing?
Ms. Lhamon. Thank you so much for that question, and thank
you again for lifting up the critical importance of addressing
hate in this time. I just want to recognize that the Department
of Justice in fiscal year 2018 prosecuted 27 hate crimes
allegations. That is a tiny fraction of the level of hate that
we know to exist in the country.
So we, first, need more than rhetoric and more than baby
steps, but actual action from the Department of Justice. In
addition, the Department of Justice knows and has recognized
that the data that it has is not sufficient and it does not
require that the local departments around the country actually
submit data to the Department of Justice and then make sure
that it is accurate and transparent.
And so we need better transparency, we need--we need better
data, and we need more fulsome commitment from the department
actually to prosecute hate crimes.
Ms. Escobar. Thank you so much, Chair Lhamon.
Ms. Ifill, we, obviously, have been just shocked and I had
hoped that we had reached a tipping point in our country on
police brutality and confronting what we need to do as a
country to finally overcome institutionalized racism.
But we continue to see injustice and we continue to see
civil unrest because of the desperation that exists in this
country around racism and around injustice and lack of
accountability.
We just saw it in the Breonna Taylor case and in what was
revealed yesterday, and it feels as though our country is--it
is hard for our country to come to grips with what we need to
do.
But Congress passed the George Floyd Justice in Policing
Act. I continue to urge our Senate colleagues to pass it. But
along the same lines of what I asked Chair Lhamon, if we had an
attorney general interested in addressing police abuses, what
could the DOJ do? What tools do they have to help our country
right now?
Ms. Ifill. Well, the attorney general has soft tools and
hard tools. The hard tools are the actual statutory provisions
that empower the attorney general to take action.
One of the most important is the Law Enforcement Misconduct
Statute which authorizes the attorney general to conduct invest
patterns and practice investigations of unconstitutional
policing.
This is how you get at systemic discrimination in police
departments. But we have heard this attorney general say he
does not believe that there are systemic issues in police
departments. He only believes that there are individual police
officers who have engaged in misconduct.
So he has, essentially, set to the side a statute passed by
this Congress, by the United States Congress, to authorize the
attorney general to probe into this important area.
And then he has soft tools, which is what he says, and this
attorney general and this head of the Civil Rights Division
have not used those soft tools to address the issue of racism
in policing and to be a--to stand with communities around
seeking to ensure that those who carry weapons and have the
license of the state to take life or doing so in a manner that
is consistent with the Constitution.
Ms. Escobar. Thank you very much, both of you.
I yield back, Mr. Chairman.
Mr. Cohen. Thank you, Ms. Escobar.
I now recognize the lady from Houston, Texas, where they
not only sing but they dance. [Laughter.]
Ms. Jackson Lee. Thank you very much, Mr. Chairman, and I
can't thank you enough and the ranking member for the list of
stellar witnesses.
I don't think we have had a gathering of this amount of
compassion, talent, and genius on the question of civil rights
in this committee for a very long time.
I want to, very quickly, indicate that this committee's
responsibility is oversight, and to my friends on the other
side of the aisle, I remember distinctly General Holder coming
and not being able to even give a comment, a comma, or a period
in his answers because there was this intense oversight.
Oversight is the duty of the United States Congress in the
equal branches of government. So let me emphasize, pointedly,
my concern. Black lives matter. Black women lives matter. And
in the last two days, we have seen in particular a narrative
given to a grand jury in Kentucky that brought about an altered
position.
Questions of facts remain on the table, and the nation--
mothers with strollers and grandmothers and young nonviolent
protestors--are in the streets asking for justice.
So I am interested in a memo dated November 17th, 2018,
issued by the attorney general, a directive which, among other
things, limits the limited circumstances in which such a
consent decree may be appropriate and the terms for consent
decrees and settlement agreements.
So let me ask a first question to Mr. Smith, I think it is.
I am going to ask you--Mr. Smith? Yeah, I see you moving.
Mr. Smith. Yes. Hi, Congresswoman.
Ms. Jackson Lee. I want to ask you the question. This
seemingly skewed presentation to the grand jury--defective
warrant, no clarification of whether they had a uniform--but
the point is what could be the immediate response that the
Justice Department, with a functioning Civil Rights Division,
could give relief to Breonna Taylor's mother about an
additional investigation, working with the FBI?
Mr. Smith. Certainly.
So there are a couple of things that could happen
immediately. First, I [inaudible] we, in the last
administration, opened up a pattern and practice civil
investigation to determine whether there is a pattern or
practice of the violation of the Constitution or federal law
with regard to the law enforcement in Louisville.
We have seen in the--just in this incident significant
indications that there are serious problems in that department
that go much deeper than just what happened to Ms. Taylor, and
it is a city that is ripe for a pattern and practice
investigation.
The United States could also open up an investigation under
the--its criminal laws that permit the prosecution for the
willful violation of someone's civil rights.
Now, I must note that there are very few tools in the
criminal toolkit for the Civil Rights Division----
Ms. Jackson Lee. And I have two other questions to two
other panelists.
Mr. Smith. Certainly. And the third--I am so sorry.
And the third thing that it can do is to, through its grant
making authority, it can make a tremendous difference in terms
of forcing the obligation [inaudible] of its grants.
Ms. Jackson Lee. So she can--there should be relief if we
had a functioning Civil Rights Division of the DOJ.
Mr. Smith. Correct.
Ms. Jackson Lee. Let me ask you, Mr. Saenz.
Mr. Saenz, as you well know, in Texas we had a voter ID law
in the state--on the district court level that was found
unconstitutional.
Again, my time is very short. What is the impact of a Civil
Rights Division that is not supporting voting rights?
Mr. Saenz.
Mr. Saenz. It is tremendous cost. It is tremendous cost to
the state of Texas. It is tremendous cost to those that have to
litigate the cases in the absence of the Civil Rights Division,
and it misses an opportunity to send an important message to
others around the country about not pursuing similar measures.
Ms. Jackson Lee. And as we go into a very tumultuous voting
period, November 3rd, we need the protectors of the American
people in the DOJ.
Ms. Ifill, I want to go back to that document dated 11/7/18
where it looks as if there are directions to not have consent
decrees.
Can you provide me with the overall chaotic response or the
chaotic actions that come about when you don't have a tool to
correct policing misconduct?
And what I have known is that when you give them a roadmap
they feel better, the community feels better, and they save
lives. But here is a direct directive not to do that. Could you
respond to that, please?
Unmute.
Ms. Ifill. That is correct, and that is consistent with
then Attorney General Sessions' stated opposition to consent
decrees at his confirmation hearing.
Consent decrees in policing actually improve policing not
only for the community but for police officers themselves
because it provides a framework in which police officers
receive training.
They tend to receive greater funding to implement the
provisions and the requirements of the consent decree. And as
you point out, they receive a roadmap for constitutional
policing.
So yes, this undermines actually improving policing itself
and undermines the protection of the community.
Ms. Jackson Lee. Thank you very much.
Mr. Chairman, I yield back my time.
Mr. Cohen. Thank you, Ms. Jackson Lee.
We will now have a second round, and first I would like to
ask Ms. McGowan, you noted in your testimony that when you
submitted your resignation to the Civil Rights Division it was
the same day that Acting Attorney General Yates was fired for
refusing to defend President Trump's Muslim ban.
Did you consider that an attack on religion by singling out
Muslims for discrimination?
Ms. McGowan. Mr. Chairman, the attacks of this president
against the Muslim community are among the most horrifying
legacies of this administration.
And I will tell you, it was a very, very difficult day for
me to submit my resignation from what I was describing as a
dream job, and I will say when I first learned that Attorney
General--Acting Attorney General Yates had stood up to the
president and said that the Department of Justice has a duty to
do justice and enforce the Constitution and would not defend
that ban, I had a moment of thinking that maybe I had jumped
ship too soon.
I thought maybe the good folks on the inside would be there
to serve as that firewall against what we feared might come
from this administration. And then, as many of you all know, we
all came back from commercial break, watching whatever program
we might have been watching, and then we learned that she had
been summarily fired.
And so to the extent that is, again, is a sign from day one
of the lawlessness of this administration and the fact that
anyone who would be standing up for civil rights was inevitably
going to have an extraordinarily hard time and, in fact,
actually would be forced to choose between whether or not they
could continue to serve in their role or actually live up to
the Constitution is why I left, why so many amazing people have
left.
And I just want to make clear that the ramifications of
what have happened, has been happening over these past three
years, will have a legacy for many, many years to come. Civil
rights lawyers at the Justice Department, even if we turn the
corner and have new leadership, will be now handicapped trying
to go into communities with any level of credibility, right.
It is not just the FBI that has been damaged. It is Civil
Rights Division lawyers going into communities, and why should
they be trusted?
The amount of energy that will need to be spent
rehabilitating that credibility is effort that will be wasted
when, in fact, it can and should be spent on reinforcing and
rebuilding civil rights in this country.
Mr. Cohen. Thank you, Ms. McGowan.
Mr. Sasser, did your firm--group, public interest group,
get involved with opposing the Muslim ban?
Mr. Sasser. No, we did not. We did not file any briefs have
any clients in that matter.
Mr. Cohen. You didn't see that as a religious issue when
every Muslim was not permitted to come to this country?
Mr. Sasser. We just didn't analyze it, and so I don't have
any comment to share with you.
Mr. Cohen. Thank you, sir.
The--Ms. Ifill, do you see any reason why the Civil Rights
Division should be involved with the unfortunate incident that
happened to Mr. Mabrouk and others when they had their
businesses damaged during riots in this country? Is that a
Civil Rights Division claim or is that a--should that be the
Criminal Division?
Ms. Ifill. Well, I think it is the Criminal Division except
in this way, which is that, you know, the question today in
Louisville is what are people supposed to think; what is the
action that is going to be taken that is going to make changes
in a department that has had problems over many, many years in
the situation in which there are officers on the force,
including the officer who was indicted yesterday, who, when he
left the Lexington Police Department, his supervisor said he
should never be hired again.
And yet, he was hired by Louisville. He has been accused of
multiple incidents of sexual assault. This department has been
having problems for many, many years, and if business leaders
want their businesses to be protected and they want to ensure
that the community is at peace then they too should want the
Department of Justice to bring their resources in to conduct a
pattern and practice investigation to find out what has been
happening in the Louisville Metro Police Department and to, if
necessary, bring suit and enter into a consent decree to create
a roadmap so that there can be peace and a path forward for
public safety in Louisville. Business leaders should want that,
too.
Mr. Cohen. So, Ms. Ifill--Ms. Ifill, what you are saying, I
guess, one of my colleagues on the other side said that when
the city, like in Columbus, Ohio, can't come in and protect Mr.
Mabrouk's property that the federal government should and, of
course, the Republican government of the state didn't ask for
the federal government.
What you are saying is when the rights of African Americans
can't be protected by the locals, then the Civil Rights
Division should come in with patterns and practices. Is that
correct?
Ms. Ifill. That is correct, and that will help protect
businesses as well because it will bring some order, some
vision, and some roadmap for public safety to the community.
Mr. Cohen. I appreciate your responding. And I would just
like to comment that we saw it at the Republican Convention
when Mr. Pence recognized the lady whose brother had been
killed in Oakland, California.
He was a Homeland--I think was a Homeland Security officer
and he was killed during the riots that occurred afterwards.
They were unable to say as the members of this committee
during the hearings when we had Mr. Barr before us and others--
they can't say the word ``Boogaloo.'' They could be
waterboarded and they would not say the word ``Boogaloo.'' And
FBI Director Wray made clear in his testimony that most of the
violence that the FBI sees as terrorism comes from the right
wing, the right side, from groups like Boogaloo. Boogaloo.
Waterboard. Won't talk. Won't talk.
I yield back.
Mr. Johnson.
Mr. Johnson of Louisiana. Sometimes I am not sure how to
take the baton after this.
It is interesting how we see this from very different
lenses. You know, I was just listening to you, Ms. McGowan, and
you said the attacks of this administration against the Muslim
community have been outrageous or something like that.
But, yet, we just heard this morning in the course of this
hearing, Mr. Sasser himself gave us specific example here today
just that his organization has been involved with the
Department of Justice's Civil Rights Division where they have
aggressively intervened to protect Muslims across the country,
and many other minority faiths as well.
The facts just don't line up with so much of the rhetoric
we are hearing, and the fact that the volume has been turned up
on this partisan bickering is--I think it is destructive to our
institutions, and the Department of Justice and the Civil
Rights Division is one of the most important institutions we
have.
I mean, the American people have to believe in the
integrity of the system. And all of us have complaints. I mean,
we had--our side had complaints during the Obama
administration. It is never perfect.
But we are on our way to making a more perfect union. And I
just want to say this in the defense of our attorney general
because he has been maligned so maliciously here today, as he
has been all this--since he took the office, you know.
When he was at his confirmation hearing he said, very
clearly--this is his quote, I wrote it down--``The attorney
general has a unique obligation. He holds in trust the fair and
impartial administration of justice,'' unquote.
Many of us believe that he has done exactly that. He is a
serious law enforcement officer with a sterling reputation. He
didn't have to do this job. He had done it before in the past
but he came do it because he believes in this country and he
believes in the pursuit of justice.
And I think, from many people's perspective, he has done a
fair job at that. He has administered justice impartially and I
believe they are doing their best. He had to clean up some
messes of the previous administration.
I mean, we all know about the Comey FBI and the special
counsel investigation, all the flaws. I won't go down that
rabbit trail.
But there was a lot to do when he came in, and as we know,
since the pandemic we have had some of these mayors and
governors who have failed pretty miserably.
The attorney general has had to protect federal property.
He has had to restore order to cities by using federal
resources to quell left wing extremist violence so that
peaceful protestors may safely exercise their First Amendment
rights.
That is his job. It is his duty. It is a hard one. It is
controversial. But if he had not done it, we would have more of
this massive property destruction, personal and private
property all across the country, and I think that he ought to
be applauded for taking a strong stand on that because if he
didn't the safety of every single American is in jeopardy.
Let me ask a question of Mr. Sasser. You have been in this
arena, litigation constitutional law cases for a long time,
particularly in the realm of civil liberties and defending our
first freedoms and all that.
What can Congress actually do to assist the protection of
civil liberties instead of just merely pontificating and
engaging in, you know, personal attacks on various DOJ
officials?
Mr. Sasser. Well, I will tell you what I tell my law school
students, which is that if you have a problem with civil rights
enforcement, it is Congress's fault.
Congress has abandoned its post. The F 42 USC 1983, all you
have to do is amend it to establish respondeat superior
liability. Create vicarious liability for the government
entities for the actions of the government employees.
You want to reform the police? Then you don't--then all you
have to do is amend 1983 in order to make that reformation take
place. You won't need custom and practice investigations
because you won't need to establish custom and practice as an
alternative route to liability because you will have respondeat
superior liability, just like private companies have to do.
But for whatever reason, we have decided to take this
position as a country that we are going to treat the government
officials as if they are so incompetent and buffoons that they
can't possibly--that the government entity can't possibly be
held responsible for their actions and, thus, accountable to
train them properly and to properly make sure that they are
doing the right thing.
So what can Congress do? Instead of talking about why won't
the executive branch do their job, Congress could do its job
and amend 1983 and establish respondeat superior liability, and
that will bring an end to a lot of problems.
Mr. Johnson of Louisiana. That is a great idea and if we
had the political will to do some of that around here, if we
could get a majority of members together to make actual change
we probably could prevent a lot of the things that everyone is
complaining about.
But I appreciate your expertise and what you brought to the
table today. Again, I want to say to Mr. Mabrouk, thank you for
your compelling testimony, and you bought a lot to the hearing
today and we are grateful for that.
I am out of time. I yield back.
Mr. Cohen. Thank you, Mr. Johnson.
Mr. Raskin, you are recognized.
Mr. Raskin. Thank you very much, Mr. Chairman.
I am coming to Ms. McGowan, and I want to thank her for her
excellent testimony. Let me start with a yes or no question,
Ms. McGowan. Is there a general religious-free exercise
exemption from public health orders that are handed down by a
state or a county?
Ms. McGowan. I am sorry, Congressman. Is there a general
exemption for religious----
Mr. Raskin. Yeah. Does the religious-free exercise clause
exempt churches and synagogues and so on from public health
orders that are handed down by states or counties?
Ms. McGowan. No, to the extent that they are places where
the public health is at issue, these are generally applicable
laws.
Mr. Raskin. Right. And did the Supreme Court on May 29th of
this year in a case called South Bay Pentecostal Church v.
Newsom reject precisely the argument that my dear colleague,
Mr. Johnson, has been spending most of his time on today, which
is that somehow churches have a special exemption from public
health orders that are handed down because of COVID-19?
In that case, the court said that churches were being
treated just like other institutions having public gatherings
like lectures, concerts, movie showing, spectator sports,
theatrical performances.
There are a lot of people who are participating in First
Amendment activity like a political party gathering indoors or
a political organization gathering indoors, and if there is a
ban on assembling in, say, more than 50 people it applies to
everybody whether it is secular or religious. Isn't that right?
Ms. McGowan. That is right.
Mr. Raskin. Well, why are we getting this continual barrage
of complaints that somehow religious groups are being unfairly
targeted in COVID-19 when in fact the Supreme Court has already
rejected the argument that they are making?
Ms. McGowan. Well, Congressman, it is, I think,
unfortunately, part of a larger pattern where we see the use of
religious liberty arguments as a sword, as a way to carve out
coverage from generally applicable laws, and that has been a
clearly established principle in this country for quite some
time, that when you have generally applicable laws, even if
there is some incidental burden those laws can and should be
enforced.
Now, in this context, we see attempts being made to suggest
that somehow religious groups are being targeted when I don't
think that in most cases there is anything of factually back
that up.
But, as we know, this has actually been a pattern that we
have seen with respect to other laws as well where the
government has been trying to advance compelling government
interests whether it is protecting public health or whether it
is about rooting out discrimination in places of public
business and anytime that law is applied against religious
entities, unfortunately, there is a pattern of suggesting that
they have been targeted for unfavorable treatment when, in
fact, what we are seeing is an attempt to create a different
set of rules.
Mr. Raskin. Yeah. And, in fact, didn't the Supreme Court in
the 1960s in cases like Ollie's Barbecue and the Heart of
Atlanta Motel precisely reject the argument that there is
somehow a First Amendment free association or religious-free
exercise right or free speech right to discriminate?
And that seems to be, really, the only civil rights agenda
that seems to animate my friends, which is to take the
religious-free exercise clause and claim that it provides an
exemption from generally applicable universal laws, especially
in the civil rights field.
Ms. McGowan. You are absolutely right, and the Civil Rights
Division has a long history of using laws like the Religious
Land Use Act to ensure that religions are not being
discriminated against.
But when I talk about sort of the misdirection of the
resources of the Civil Rights Division, I am talking about this
in particular, the way in which, and as Ms. Ifill and others
have indicated, the overwhelming redirection of resources to
this one particular issue, in many cases which often have the
effect of gutting civil rights protections.
By suggesting that somehow the application of law is
designed to advance this compelling government interest are
somehow the most important work of the Civil Rights Division is
certainly not consistent with the long history, and to the
extent that it actually has very negative effects for civil
rights it is a troubling way to see the Civil Rights Division
dedicating the majority of its time.
Mr. Raskin. Thank you.
Mr. Smith, let me turn to you because the--several of the
witnesses have--including Ms. McGowan have referred to the
Civil Rights Division as the crown jewel of the Department of
Justice.
And, one, I wonder what you think of what has happened to
the crown jewel under Donald Trump and Bill Barr, and two, will
there be any way to recover the muscle memory, the focus, and
the effectiveness of the Civil Rights Division in the future?
Mr. Smith. So thank you. The crown jewel has experienced a
tremendous amount of tarnish during this administration
because, as I think every one of the witnesses has said, it is
heartbreaking to watch this storied organization that plays
such an important role not only in our government and our
Department of Justice but in the nation's history of promoting
equity and equality and equal opportunity. It is heartbreaking.
The answer is yes. It is going to take us--as Ms. McGowan
said, it is going to take some real work to rebuild the
department. But there have been a number of--there have been a
large number of incredibly talented dedicated committed career
staff who have stayed.
Under new leadership they can rebuild the docket of the
department. But it will take--it will take a lot of work to
rebuild that department by getting back into the communities
that are most impacted by the policy decisions that create
inequity and injustice, rebuild that trust that the department
is real about the work that it is doing, and get back with the
long complicated project of addressing the racial injustice
that has been the hallmark of history of this country.
You know, when you think about policing and, you know, just
to be very brief, when you think about policing, when we
entered in consent decrees those were roadmaps for change in a
police department that was to address a history of
unaccountability and problems in the department that had
developed over decades.
And these are not--consent decrees are not the kind of
thing that are going to turn the corner in a minute. It takes
years of hard work implementing that roadmap to reform to bring
about the kind of change that is necessary to address racial
bias, excessive use of force, and the broad range of other
accountability issues.
And it is going to take that same kind of time to rebuild
the department's credibility in communities and to get back to
that really important work.
Mr. Raskin. Thank you. Mr. Chairman, I am out of time.
Mr. Cohen. Thank you, Mr. Raskin. Thank you, sir. I
appreciate it.
Ms. Garcia, do you have any questions?
Ms. Garcia. I do. Thank you.
I want to start with Ms. Lhamon, and I just wanted to
clarify a point that Representative Gohmert made earlier in his
first round of questions. I am not sure if he is coming back.
He seemed to implicitly criticize the Civil Rights
Commission with his question and probably false assertion that
the Civil Rights Commission has designated evangelical
Christians--evangelical Christians as a hate group.
Could you respond to that and correct the record? Because I
don't recall that you all did that but thought I would give you
the opportunity to clear that up.
Ms. Lhamon. Thank you very much for the opportunity. It is
absolutely not the position of the U.S. Commission on Civil
Rights, and I want to be very clear that the commission is made
up of eight independent commissioners, each of whom is given an
opportunity to make a statement at the end of reports that we
issue, and in a report issued before my tenure on the
commission the chair I replaced made a comment that was not
quite the comment that Mr. Gohmert suggested but that has been
inflammatory and has raised many people's hackles.
It was not then the position of the U.S. Commission on
Civil Rights and it is not now the position of the U.S.
Commission on Civil Rights, which is wildly protective of
religious freedom and wildly protective of religion, among all
other civil rights.
Ms. Garcia. So you have not designated them a hate group.
Is there any other religious group that you may have done and
there may some confusion?
Ms. Lhamon. The U.S. Commission on Civil Rights is not in a
position of designating any group as a hate group. So we have
not designated evangelical Christians or anyone else as a hate
group, and it is not the position of the U.S. Commission on
Civil Rights that any religion or any faith is a hate group.
Ms. Garcia. All right. Thank you. I just wanted to clarify
the record. Now I have a question for Mr. Lhamon.
Mr. Lhamon, you were--your testimony earlier in a response
to a question was talking about the enforcement of or potential
scenario where law enforcement may be sent to polling places.
And I know that in some of the states where some law
enforcement was sent it was because--or in the pretense, if you
will, that it was to protect federal property.
So if there is no polling place that is on federal
property, does it follow logically that the president cannot
send forces to polling places? Not ICE, not any local law
enforcement or any of these groups that he is putting together?
[Pause.]
Mr. Waldman.
Mr. Waldman. Oh, I didn't realize that was for me.
Yes, federal forces can be used in limited circumstances to
protect federal property. But when they stray beyond that--in
fact, when they go to polling places, that raises federal legal
issues. It raises----
Ms. Garcia. Right. My question was that if the polling
places are not on federal property because, frankly, I have
been voting since I could and I don't recall ever seeing a
polling place at a federal property. So the question is----
Mr. Waldman. That is right.
Ms. Garcia [continuing]. Would they have any right to send
any law enforcement or any of these--you know, ICE officers are
being put on a place and come here to D.C. to join in the fight
against the protestors. Would they have any authority to do
that?
Mr. Waldman. No. Their authority is very limited and must
be guarded, especially in the context of an election where
there is a long history of law enforcement being used to
intimidate voters, especially voters of color.
Ms. Garcia. Right. So what is the best way that we can work
with local officials to ensure that the rights of all voters
coming to a polling place, because under COVID there will be
long lines if they are in person.
There will--at least in our county there is--you know,
major voting centers to ensure that local officials get the
support that they need to ensure the voting rights of all the
people that come on election day?
Mr. Waldman. Well, first of all, you are right that the
principle responsibility here is a responsibility for local
officials.
The Brennan Center for Justice and our website and numerous
other voting rights and democracy organizations have ample
material making clear that it is currently illegal, flatly
illegal, to intimidate voters.
It is flatly illegal to keep other people from exercising
their right to vote. Local officials have authority to enforce
those laws.
In addition, the courts have a role. We know that there are
both private groups and political entities that, in the guise
of ballot security, are basically vigilantes. Voters--again,
this goes back to an earlier point. There is every reason to
expect that voters will be able to vote without this kind of
interference.
Ms. Garcia. Right.
Mr. Waldman. The law is quite clear that people cannot----
Ms. Garcia. If I could interrupt you, because my time is--
my time is up.
I think the problem we have locally is that in--before this
administration when we had issues like that, we would call the
Justice Department. Now we are afraid to call the Justice
Department.
So, really, my question was what can we do more locally to
ensure that we can take care of things locally because, quite
honestly, we fear calling the Justice Department. We are not
sure what they will or will not do.
Mr. Waldman. Well, and we wouldn't really want to have
uniformed federal personnel in any case. But this is under an
ideal world the kind of misconduct that monitors would be able
to look at from the Justice Department.
This year, a lot of us are all going to have to step up in
different and new ways to make sure the election is run right.
Ms. Garcia. All right. Thank you. I yield back, Mr.
Chairman.
Mr. Cohen. Thank you, Ms. Garcia.
Ms. Jackson Lee is our last questioner, for five minutes.
Thank you.
Ms. Jackson Lee. Mr. Chairman, thank you very much.
Mr. Waldman, I hope by your statement that we can make this
public knowledge and demand the Justice Department to do its
job, which is, as my colleague has said, we have always--from
Texas, we are always in the midst of, unfortunately, voter
suppression every election.
Intimidation at the polls by poll watchers in Latinx and
African-American polling. I remember clearly in the year 2000
the intimidation, using a database from Texas, of turning away
people who had done their time but they were ex-felons and they
were able to vote or they were--I am sorry, they were claimed
to be ex-felons and they were not. They were African-American
men.
So I hope that we are making that statement.
Let me go to Mr. Saenz, and I am so sorry, Mr. Saenz. I
always say this but I know you will be pointed. What should the
Voting Rights Section top priorities be right now as we move
into an election where the president of the United States said,
``Throw away the ballots?''
Mr. Saenz.
Mr. Saenz. They should be bolstering our competence in the
use of vote by mail and making sure that it is widely available
because of the special circumstances we face with the pandemic.
You know in the state of Texas the absence of no excuse
remote voting is a barrier, particularly for Black and Latino
communities and that is somewhere where the division could be a
real leader in bolstering, understanding that that is a
legitimate means of voting. It is a nonfraudulent genuine means
of voting and should be widely available.
Ms. Jackson Lee. So what you are saying is contrary to the
person holding the presidency, they should boldly adhere to
their dicta or their--excuse me, their directions or their
mission and tell the American people through outreach that that
is a secure way of voting, that it will be protected and that
they can vote that way, along with early vote?
Mr. Saenz. Absolutely. That is the role of the division. It
is to make clear that access to the ballot is the right of
every eligible citizen.
Ms. Jackson Lee. Not to be dominated by words spoken from a
podium about throwing out the ballots.
Mr. Saenz. Exactly, particularly when that person has
himself remote voted on numerous occasions in the past. That is
Exhibit 1 for what the division could be using to create
confidence in giving access to remote voting to all voters.
Ms. Jackson Lee. Thank you.
I don't want to create chaos, but--Mr. Waldman, and I want
to ask Ms. Ifill a question. So let me--I don't want to create
chaos. I want to create security and safety.
But we have been pummeled by chaotic messages from the
White House regarding the transfer of power, the safe transfer
of power. I always think of civil rights because I always,
during local elections, get empowered by being able to say, I
am going to call the DOJ in terms of the Civil Rights Division.
Just give me--I know the Brennan--the Center for Justice
has an array of perspectives on this threat not to commit to
the democratic constitutional protocols of transfer of power.
Mr. Waldman. Well, Congresswoman, as you know, it is
extraordinary in American history for a candidate for
president, let alone the president of the United States, to say
something like that, to so openly and flagrantly scorn our
democratic norms. It is vital for leaders of both parties to
speak up and make clear that we believe in the rule of law and
this election will be run accordingly.
I will note, and I think this is, again, important in us
all keeping our eye on the ball, it is really not up to
President Trump or any candidate whether he accepts the results
or not.
That is up to our system. Lots of candidates lose and they
don't like it. But it is really not up to them whether they
accept the results.
We need to make sure that the law is followed, that states
follow their laws, that Congress, should it need to become
involved, follows the rules, and whether President Trump feels
right or not is, you know, not as--not a first order
[inaudible].
Ms. Jackson Lee. Thank you.
Let me, quickly, to Ms. Ifill and I do want to get Ms.
McGowan, very quickly.
The lack of the respectful comment about nonviolent
protests and dealing with bringing down the temperature and not
acknowledging that white provocateurs, white nationalists, and
others are involved in promoting violence in these peaceful
protests, how damaging is that and how much schism does that
create in the efforts that all of us are making to reimagine
policing and to work on police community relations in your--in
the civil rights perspective?
Ms. Ifill.
Ms. Ifill. It is damaging and it is dangerous. We--the LDF
has appealed first to Attorney General Sessions and then to
Attorney General Barr to really investigate white supremacist
violence.
We most recently asked for an investigation of what
appeared to be a kind of concerted decision by white
supremacists to drive cars through protestors, and we just saw
this happen again last night. And yet the rhetoric we hear from
the attorney general is always about Antifa and never about
what DHS says is the number-one threat.
It makes it very difficult for us to move forward with
reimagining public safety and moving forward with the kinds of
reforms that many of us have advocated and which the department
previously advocated but have abandoned under this
administration.
Ms. Jackson Lee. And the FBI said it.
Ms. McGowan, let me thank you for your courage for stepping
down. I know what it is like to have a job--not a job, a
profession.
So can you--I think you will be the last voice before the
chairman--can you characterize what you have seen, as now what
I see, is a total disarray and the skewing of the duties of the
various divisions in the Department of Justice? And we are
focused on civil rights. We have focused on the LGBTQ
community.
But the complete flipping of what comfort Americans are
supposed to have by calling their DOJ or getting their local
official to call the Civil Rights Division to bring order to
their life when they have been deprived of their civil rights.
Ms. McGowan. Thank you so much for that question, and I
said to my colleagues as I was leaving the Justice Department
that they should stand strong because there were people in the
country counting on them.
And when we talk about sort of low watermarks for the Civil
Rights Division, sort of these dark moments, you know, I think
about the rescission of the guidance from the Department of
Justice Civil Rights Division and the Department of Education
to protect transgender children and the fear that their parents
now experience, because they used to know that the Department
of Justice was on their side. And now, not only is it not on
their side but it is attacking their children in schools.
And so the fact that we have now found ourselves in a
situation where people have to question whether or not the
Department of Justice is a place that will vindicate civil
rights, that will be a place of justice, is going to be the
most important work that we need to do when we finally turn
this page in our history.
Ms. Jackson Lee. I thank you so very much for closing
remark.
Mr. Chairman, I yield back. Thank you for your courtesy.
Mr. Cohen. You are very welcome.
We are about to close. I do want to clear up a matter of in
correction. We would like to make the record clear, even though
the truth is at trial in these last--What I said in my
introduction was that we are still--the excuse that the
department provided was about as mature and sophisticated as
saying the dog ate my homework.
So Mr. Jordan was incorrect and I was correct in saying I
did not say Bill Barr was immature. If I would have, it would
have been one of the nicer things I would have said about him.
And I didn't say that.
Ms. Jackson Lee. Mr. Chairman, I have a--sorry.
Mr. Chairman, I have a submission before you close the
hearing. Thank you.
Mr. Cohen. You are recognized.
Ms. Jackson Lee. Mr. Chairman, I would like to submit into
the record the attorney general memorandum Heads of Civil
Litigation Components, United States Attorneys, principles and
procedures for civil consent decrees and settlement agreements
with state and local governments. That is where he diminished
that authority, and it is dated November 7th, 2018.
I ask unanimous consent.
Mr. Cohen. Without objection, so done.
[The information follows:]
MS. JACKSON LEE FOR THE OFFICIAL RECORD
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Ms. Jackson Lee. Thank you. I yield back.
[Pause.]
Mr. Cohen. Hearing is adjourned.
[Whereupon, at 12:30 p.m., the subcommittee was adjourned.]
APPENDIX
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