Transcripts For CSPAN Attorney General Nomination Hearing Day 2 20150129

For the members who are present, except for the ones that are here already, it will be on seniority, then other people that come in, youll be called on according to how our respective staff keep track of you in the order of your appearance. Before chairman leahy and i give our Opening Statements, id like to go over some things i said yesterday. First of all, we welcome everybody back to this second day of hearing on ms. Lynchs nomination to be attorney general. As i said yesterday and everybody abided by this, and i want to thank everybody that was here yesterday for their courtesy i want everyone to be able to watch the hearing without obstruction and if people stand up and block the view of those behind them or speak out of turn its not fair considerable to the others. So officers would remove those individuals. Thats what i want to thank because we didnt have any of those incidents yesterday. Before we begin the Opening Statements take care of a couple housekeeping items and explain the process, first of all i want to thank everyone for their patience yesterday. Looks like we are going to have more votes today, so again im asking for your flexibility. After Opening Statements, the plan is to start the first round of questions then recess so members can vote. We would then return after the first series of votes and i am assuming that will be around 12 45. You folks answering questions for us, you cant necessarily count on that. Then we would keep going through theres four votes this afternoon. We wont adjourn at that particular time, well do like we did yesterday. We will take time to take turns going and voting. Senator leahy then and i will now give our Opening Statements. Then well return turn to our witnesses for their Opening Statements. Following their statements, well begin with the first round of questions in which each senator will have 10 minutes after the first round. Then well go to eight minutes of questions. And so then i will give my Opening Statement. Obviously welcome everybody audience as well as witnesses, to our second day of hearings on ms. Lynchs nomination to be attorney general. Yesterday we heard from the nominee. I thought she was very engaging, very confident. Theres no question about her competence from what shes done as far as her legal background and her work as u. S. Attorney. We appreciated her willingness to stay here through it all so we could get done with her in one day. Everybody that wanted to ask questions verbally could do it. Of course theres going to be a lot of questions in writing for her to answer in time. Shes clearly a skilled and competent lawyer. We asked questions yesterday, but i have to say at least from my standpoint, im not speaking for any other member, it seemed like indirect answers. So i suspect that those will be followed up with questions for the record. Today we will hear this second panel in front of us right now. Many of these will speak to many ways in many ways the department of justice under its current leadership has failed to fulfill some of the most basic aspects of its mission. The question for me and a lot of members on this side is whether ms. Lynch is committed leading the department of justice in a new direction. Theres obviously people here that are going to speak about the direction the department in a different way, and well listen courteously to that as well. Well hear from Sharyl Attkisson as one example of a personal who was an investigative journalist whos been bullied, threatened, and literally blocked from entering the department of justice because she had the guts to report on issues like fast and furious and benghazi. Thats one example of something wed like to have a new attorney general fix. Well also hear from Katherine Engelbrecht who was targeted by the i. R. S. Simply because shes a conservative whos had the courage to stand up in the defense of freedom and the constitution. The department has paid lip service to the investigation that is supposedly leading. So i would like to know how ms. Lynch will take seriously the targeting of fellow citizens based on their political views. Then we have sheriff david cooke, milwaukee who will testify about how thousands of local Law Enforcement officers across this country feel as though their current leadership doesnt fully appreciate the work their Law Enforcement does every day. Thats important to see how ms. Lynch might do to mend the broken relationships. And then well hear from professors turley and rosenkrantz who will address how the department of justice under eric holder has rubberstamped the president s lawless actions from the unlawful recess appointments in the unlawful executive action, specifically on immigration. Those people will bring up points that we have made not quite as directly as they have or personally as they have. In hopes ms. P lynch will restore ms. Lynch will restore the office of Legal Counsel to the impartial role it used to play on the check of the president s authority. I look forward to the hearing today. Now its senator leahys turn to give his Opening Statement. Thank you, mr. Chairman. This is a second day of the committees consideration of Loretta Lynch to serve as our nations attorney general. We had a long day yesterday. Today well hear testimony from outside witnesses about ms. Lynch, i would especially be interested in testimony from those who actually know her. Yesterday we heard directly from her. For nearly eight hours of testimony. She testified about the values and independence she would bring to the office of the attorney general. She testified how she would make its priorities National Security and Public Safety, but still preserve the values that we as americans, i hope all of us, hold dear. I was encouraged when republican senators on the committee agreed with me that the key question for voting for a nominee to be attorney general is independence. Some of us remember past attorney general who told us hes a member of the president s staff. And we all had to remind him, no hes not. Hes not like the secretary of justice. Hes the attorney general of the United States. And is supposed to be independent. Responded to questions on issue after issue. It is clear that ms. Lynch is an independent lawyer, strong character. And obvious abilities. I also want to take a moment to thank chairman grassley for his handling of yesterdays hearing. It was no easy feat, especially when you had 18 votes i believe it was yesterday afternoon, and kept it going. He made sure that every senator who had a question on his side of the aisle, they were given the time to ask the question and be heard. I commend him for that. I appreciate the tote way youre handling this hearing. I was not surprised that we have been friends for decades and i know you well. We are going to hear from Law Enforcement officials who actually worked with ms. Lynch. These are the people who have the best knowledge of her. They strongly support her nomination. Their presence today will speak of the support ms. Lynch has among republicans and democrats similar to the letter that one of the finest f. B. I. Directors weve ever had has submitted on her behalf, louis freeh. Barack obama is not the nominee. That may come as a surprise to some who lettered some of the questions. Eric holder is not the nominee. Loretta lynch, the daughter of lore reason and reverend lynch, twice unanimously confirmed by the United States senate, has been applauded for her Law Enforcement work, thats who is being called upon to consider. Im confident after hearing her testimony before the committee and after reviewing her record, knowing in good faith no one in good faith could question her integrity or her ability. She said yesterday she looks forward to working with congress to confront the many issues facing americans today. Shes met with over 50 senators in both parties. So i hope we can come together in the senate, support this historic confirmation. For an outstanding Public Servant and move quickly doing it. Thank you. Can i ask you there is no reason to make these people stand for an oath. Can they do it sitting down . Sure. I want to know whats legal do you affirm that the testimony would you raise your hand, please. Do you affirm that the testimony you are about to give before the committee will be the whole truth let me start over again, please. Do you affirm that the testimony youre about to give before the committee will be the truth, the whole truth, and nothing but the truth, so help you god. Thank you. Im going to introduce everybody at the table all at once instead of separately when one person gets done speaking. Be patient with me. Sharyl attkisson is an investigative journalist and author for over 20 years she worked for cbs news, winning multiple emmy awards for her Investigative Journalism pieces. Including her reporting on the 2012 benghazi report and fast and furious. Next we have david bar low barlow we know well. He served as u. S. Attorney for the district of utah, 2011, 2014. Prior to his tenure as u. S. Attorney, he served on this committee as senator leahys chief counsel. Hes now a partner of sydney, austin washington, d. C. Next is reverend newsome. Reverend Clarence Newsome is president of the National Underground Railroad Freedom center in cincinnati, ohio. Next is janice, she served as assistant director in charge of f. B. I. s new york division, 20102012. She currently runs a Consulting Firm in washington, d. C. I know i pronounced it wrong. Next we have steven, professor at john s. Lehman University Professor at Washington University school of law. Next we have jonathan turley, j. B. And morrisy shapiro professor of Public Interest law, george Washington University law school. David clarke, sheriff, Milwaukee County and served for over 36 years as a Law Enforcement professional. Next, nichlas rosenkrantz is a professor of constitutional law and federal jurisdiction, georgetown University Law center and a senior fellow at the kato cato institute. Finally, we have Katherine Engelbrecht. Shes the founder and chairwoman of truth the vote, an Election Integrity organization, the founder of king street patriots, a citizen led liberty group, and the coowner of engelbrecht manufacturing, a Small Business she owns with her husband in her home state of texas. Now we will start with ms. Attkisson. Thank you. If i didnt maybe i should say i think you have all been informed but wed like to have five minutes. Go ahead. I have been a reporter for 30 years at cbs news. I have been a reporter for 30 years at cbs news pbs cnn, and local news. My producers and i probed countless political, corporate charitable, financial stories ranging from iraq contract waste and fraud under bush to Green Energy Waste under obama to consumer stories relating to the drug industry. Some of these reports have been recognized for excellence in journalism, most recently investigative emmy nominations and awards for reporting on tarp benghazi, green energy spending, fast and furious, and a group of stories including an undercover investigation into republican fundraising. The job of getting at the truth has never been more difficult. Facets of federal government have isolated themselves from the public they serve. They covet and withhold Public Information that we as citizens own. They bully and threaten access of journalists who do their jobs, News Organizations that publish stories they dont like and whistle blowers who dare to tell the truth. When i reported on factual contradictions in the administrations accounts regarding fast and furious, pushback included a frenzied campaign with white house officials trying to chill the reporting by calling and emailing my superiors and colleagues using surrogate bloggers to advance false claims. One white house official got so mad he cussed me out. The Justice Department used its authority over Building Security to handpick reporters allowed to attend a fast and furious briefing, refusing to clear me into the public Justice Department building. Advocates had to file a lawsuit to obtain Public Information about fast and furious improperly withheld under executive privilege. Documents recently released show emails in which taxpayer paid white house and Justice Department press officials complained that i was out of control and vowed to call my bosses to stop my reporting. Let me emphasize my reporting was factually indisputable. Government officials werent angry because i was doing my job poorly, they were panicked because i was doing my job well. Many journalists have provided their own accounts. The white house made good on its threat to punish cspan after cspan dared to defy a white house demand to delay airing of potentially embarrassing interview with the president. 50 News Organizations, including cbs and the Washington Post wrote the white house objecting to unprecedented restrictions on the press that raised constitutional concerns. A New York Times photographer likened the white house practices in some cases to the soviet news agency tass, former Washington Post executive editor len downy called the obama war on leaks by far the most aggressive hes seen since nixon. David sanger of the New York Times called this the most closed control freak administration hes ever covered. New york times public editor said its the administration of u. N. Precedented secrecy and unprecedented attacks on a free press. Months before we knew that the Justice Department had secretly seized a. P. Phone records and surveiled fox news james rosen before director of National Intelligence director James Clapper incorrectly testified under oath that americans werent subject to mass data collection, i was tipped off that the government was likely secretly monitoring me due to my reporting. Three forensic exams concerned the intrusive longterm remote surveillance. That included key stroke monitoring, password capture, use of skype to listen to audio and more. Getting to the bottom of it hasnt been easy. Its unclear what if anything the f. B. I. Has done to investigate. The Justice Department has refused to answer simple, direct written congressional questions about its knowledge of the case. It has stonewalled my freedom of information request, first saying it has no responsive documents, then admitting to 2,500 of them but never providing any of them. In 2013, Reporters Without Borders downgraded americas standing the global free press rankings, rating the Obama Administration as worse than bushs. It matters not that when caught the government promises to dial back or that james rosen gets an apology. The message has already been received. If you cross this administration with perfectly accurate reporting they dont like, youll be attacked and punished. You and your sources may be subjected to the kind of surveillance devised for enemies of the state. For much of history, the United States has held itself out as a model of freedom democracy, and open accountable government. Freedoms of expression and association are of course protected by the constitution. Today those freedoms are under assault due to Government Policies of secrecy leak prevention, and officials contact with the media, combined with large scale surveillance programs. The nominee if confirmed should chart a new path and reject the damaging policies and practices used by others in the past. If we arent grave enough to confront these concerns, it could do serious longterm damage to a supposedly free press. Thank you. If im accurate, professor rosenkrantz, you recently had a back operation and you need to stand. We would not object. Whatever you have to do. Mr. Barlow. I would ecothat sitting here eco that, sitting here recovering from two fractured vertebrae. I know how important it is to be able to stand. Mr. Barlow. Thank you chairman grassley Ranking Member leahy members of the judiciary committee. It is my privilege to appear before you here today in support of the nomination of my former colleague, Loretta Lynch, to serve as attorney general of the United States. I would be remiss if i did not first thank this committee for the strong support i received in 2011 when my own nomination to serve as United States attorney was before you. It was a tremendous honor to serve as u. S. Attorney in the department of justice. I always will be grateful for the trust you had in me when you supported my nomination. Its now my privilege to recommend ms. Lynch to you. You already heard and read much about her storied 30year legal career. So instead of elaborating on her many credentials i want to take just a few minutes to share a couple of personal observations about my former colleague. I first met loretta at a conference of United States attorneys several months after i was sworn in. What i remember most vividly about her was the way she handled a portion of the gram where u. S. Attorneys were asking questions of the executive office of the United States attorneys. Loretta moderated the session. Some of the discussion regarding budgets, resource allocation hiring authority and other issues understandlyback intense as my colleagues and i argued our various views and articulated the many needs our districts had during lean budgetary times. But loretta was calm and unruffled. She asked hard questions, but she did so in an unfailingly dignified and respectful way. Where strong feelings created the risk of bringing more heat than light to the conversation, loretta brought only light. She was clearly tough, but also fair and gracious. That impression of loretta was confirmed and deepened as i served with her on the attorney generals advisory committee. The agac is a committee of roughly a dozen United States attorneys who serve as a voice of their colleagues to the department of justice and provide counsel to the Department Leadership on various management policy, and operational issues. Loretta was the chair of the agac during the time i served as a member of it. I know that you already know the United States attorneys are not attendant group. All are in accustomed to being in charge, all are used to expressing their view, all are at least in part the products of very different backgrounds experiences, and places. If you put 12 or so United States attorneys together in a room as the agac does, you will get a wide variety of ideas and perspectives, often very strongly held. It takes someone very special to lead that kind of group. For the agac to work well, as intended, that someone needs to be smart insightful, organized articulate inclusive, and experienced. Loretta was and is all those things and more. She was always well prepared. She made sure that all points of view were fairly and fully considered. She listened far more than she talked. She facilitated consensus wherever possible, and made space for dissent when consensus could not be reached. By her example and her conduct, she elevated the discourse and refined the exchange of ideas in our committee. Through these experiences, my initial impressions of Loretta Lynch were fully confirmed. Shes tough fair, gracious, smart, and independent. In conclusion, during my time as United States attorney, i had the privilege of serving with a truly Outstanding Group of u. S. Attorneys throughout the nation. I learned much from them. I was inspired by their service and their commitment. But of all these dedicated and talented Public Servants, the honorable Loretta Lynch truly stood out. If confirmed by the senate, i am sure she will make an excellent attorney general of the United States. Thank you. The speaker pro tempore reverend newsome. Mr. Chairman and mr. Ranking member and members of the judiciary committee, it is my pressure and honor to appear before you to support the nomination of attorney Loretta Elizabeth Lynch for position of United States attorney general. I have known loretta virtually all of her life. Our family relationships cover a period of 40 or more years. Her family has been associated with several branches of my family by way of the Baptist Church connection, and the network of educators of the great state of north carolina. Her grandfather was a highly regarded and respected clergyman. The same can be said of her father and her brother, both of whom have been distinguished leaders at the state and National Level for some time. For many years her father was a key leader in the life of the general Baptist State Convention of north carolina, and the National Baptist convention u. S. A. Her brother continues in that tradition of leadership even now. Her father and i have been ministerial colleagues, we have been ministerial colleagues since the 1970s. It was my privilege to teach her brother during the years that i served on the dukedy vinity school faculty. I have been able to maintain a warm personal association with her mother, an esteemed Church Leader and educator in her own right for decades. Through her father, brother, and mother and mutual family friends, i have been able to stay abreast of lorettas impressive and remarkable rise to a position of preeminent leadership in the life of our nation. Loretta is the product of one of the most outstanding families in the state of north carolina. To the degree that virtue counts in our society im bold to say that she is the product of one of the most outstanding families in the United States of america. The members of the lynch family are known for their exemplary character, integrity excellent achievement, civic mindedness, commitment to the common good, and deep and compelling sensitivity to the wellbeing of all people. Over the years it has been my privilege to witness the development and emergence of the best of who we are as a nation in the person of loretta. In the religious educational, and social circles which our families have moved, she has had a reputation for being stellar in everything she has done. As a teenager she drew the admiration of adults and more significantly her peers as well. She stood out among them without alienating herself from them. She stood out in many, many ways. She was as approachable then as she is now. Even then she enjoyed a reputation for being levelheaded, balanced in her thinking, and wise in her judgments. She evidenced a level of maturity that was out of the ordinary but only in those ways that garner the respect of young and old alike. As a teenager, loretta was the daughter every parent would love to have. Early in life the quality of her character was evident. This is why the cities of greensboro where she was born, and durham, where she graduated from high school with honors claims her as a daughter who has made them proud. All of more proud we north carolinians will be if she is appointed the first u. S. Attorney general in the states history. As a student during her precollege years she performed such a high level that it only seemed natural she would attend and graduate from Harvard University and harvard law school. In fact, her career trajectory is consistent with the extraordinary intellectual ability and prowess, discipline, even courage she demonstrated during her youth. Early on she dared to dream to become the best of the best, and she has accomplished this in the field of law and jurisprudence. As her professional record shows, she has become the best of the best without qualification. In the way that her career has taken shape, i discern several attributes worth noting at a time such as this. First of all, she is an informed independent thinker who listens well and studies hard. Second, he she has the capacity to maintain the strength of her own convictions. Third, she is morally grounded and principleled principled. Highly principled. Fourth she acts decisively and judicially. And fifth, she is a Public Servant of the highest order, the type that works well with others to bring about good results with positive outcomes. Thank you very, very much. Chairman grassley, Ranking Member leahy, and members of the committee, its my pleasure to appear before you this morning to speak about my association with the attorney general nominee, Loretta Lynch. I wholeheartedly endorse her confirmation from the vantage points of someone who worked closely alongside loretta in her role as the United States attorney of the Eastern District of new york during my two years as the assistant director in charge of the f. B. I. s new york office. I served in that capacity for two years, retiring in 2012 after 25 years of service in the f. B. I. I was responsible for the Largest Field Office in the f. B. I. And inherent to that are the most complex and sensitive investigations in all of this nations Law Enforcement. New york was and will remain the target for the terrorism activities of individuals and groups that espouse their violent agenda. From World Trade Center one in 1993, to the terrorist attacks of 9 11 and beyond, we continue to see this terrorist agenda manifested against new york. As a result, the f. B. I. s resources and the considerable talents of the United States attorneys in both the eastern and southern districts of new york are almost in a daily undertaking to protect this nations security. I think its also important that the committee appreciate the magnitude of the criminal violations the new york office works. These violations range from the complicated and pervasive financial crimes the insidious and debilitating effects of organized crime and public corruption, and the Violence Associated with National Gangs and other violent offenders. Given this challenging environment, it was a necessity to establish a substantial and Seamless Partnership with loretta and her office. Over the course of the next two years, we formed an Effective Partnership to address not only the National Security in criminal threats but also to engage in outreach and liaison to make a positive impact in the community. The basis for my unquestioned support for lorettas nomination is founded upon the numerous success her office has achieved, the close professional and personal relationship that provided me extraordinarily insight into loretta both as United States attorney and as a person. I was privileged to observe her commitment to commission, her personal involvement in issues that invariably arose in our work, as well as those within the broader Law Enforcement community. In supporting lorettas nomination as the next attorney of the attorney general of the United States, i would like to comment on three areas that form the foundation of my recommendation. Sound judgment, legal acuemen, and independence. In all of my interactions with loretta, her approach to addressing and resolving issues invariably involved gathering information to understand the issue, obtaining input from stakeholders, and making a decision based upon the facts and law. As you heard ms. Lynch yesterday commit to a collaborative and clib brat approach, i can assure you that she will follow through. While not an attorney, i do recognize that loretta was nominated and confirmed twice as United States attorney in the Eastern District of new york, served on the attorney generals advisory committee, and was named as a chair of the committee in 2013. And her favorable reviews by the executive office foreUnited States attorney which called her exceptional any exceptionally well qualified. I never known her to base a decision on politics. She showed fairless, respect for others, and deep sense of duty. Her office embraced those qualities in their work. As i previously stated, a multitude of criminal investigations including the arrest of approximately 138 mafia figures that represented the largest single day operation against the mafia in history, but other notable accomplishments span the spectrum of the National Priorities and are an example of her successes in the Eastern District including International Terrorism public corruption gang violations, violent offenders, etc. Ms. Lynchs recognition that task force has brought the best of interagency investigative resources to bear on entrinched crime problems was integral to broader and deeper successes than would have been the case for any one agency or department to achieve alone. These task forces included the nations largest joint Terrorism Task force Violent Gang Task force, Long Island Gang Task force, Health Care Task force, and Financial Fraud Enforcement Task force to name a few. In closing Abraham Lincoln said character is like a tree and reputation like a shadow. The shadow is what we think of it. The tree is the real thing. Ms. Lynch is the real thing. Thank you. The speaker pro tempore thank you very much. Professor. Thank you, mr. Chairman. Honorable members of the committee. Thank you for the privilege of testifying this morning. Im here to focus on the concerns that some have expressed about the president s recent executive actions on immigration. I do sincerely appreciate that reasonable minds can and do differ about the policy decision as to precisely what the enforcement priorities ought to be. It is clearly within his Legal Authority. That is not just my opinion. 135 Immigration Law professors and scholars signed a letter just this past november expressing that same view in strong terms. This is the mainstream view among those of us who have spent our careers teaching and researching Immigration Law. The president has not just one but multiple sources of Legal Authority for these actions and i submitted a detailed written statement that documents how each of these. The written statement also identifies every legal objection i could think of that the president s critics offered and explains why in my view none of them can withstand scrutiny. With limited time ill hit a few key points and refer you to the written same. We all now agree in a world of limited resources, prosecutorial discretion is unavoidable. You cant go after everyone, you have to prioritize. In the case of immigration, congress has made this explicit. It charged the secretary of Homeland Security with, and i quote, establishing National Immigration enforcement policies and priorities. Priorities. That alone would seem to suffice, but in addition, year after year, congress knowingly gives the administration only enough money to pursue less than 4 of the undocumented population. That to me is the clearest evidence possible that congress intends for d. H. S. To decide how those limited resources can be most effectively deployed. Congress has effectly required d. H. S. To prioritize three things National Security, border security, and the removal of criminal offenders. Those are exactly the three priorities that these recent executive action memos incorporated. On top of all that, we have the 2012 Supreme Court decision in arizona v. U. S. Where the court struck down most of arizonas Immigration Enforcement statute precisely because it would interfere with the federal governments Immigration Enforcement discretion. The court went on at some length to emphasize the breadth. Some critics claim if the recent executive actions are legal, that would mean there are no limits at all and therefore some future president could suspend enforcement of some other law. But dacca and dopa dont even approach the sort of hypothetical nonenforcement that that argument conjures up. If the president were to refuse to substantially spend the resources congress has appropriated, then i believe we would have a serious legal issue. Thats not even close to the present reality. Even after daca and dopa are fully operational, the president still will have only enough resources to go after a small percentage. As long as he continues to use those enforcement resources that congress has given him its hard for me to see how that can be called an abdication. For deferred action specifically, the program has been around for more than 50 years. Not only has Congress Never acted to prohibit it or even restrict it, congress has affirmatively recognized it, by name, in several provisions. The formal Agency Regulations also recognize it, by name. A long line of courts, including the Supreme Court, have recognized it by name. Not one of these legal authorities, not one, says or even inat this mates that its legal if the small number of people but otherwise not. The same is true for work permits. The statute authorizes d. H. S. To grant permission to work, and the regulations specifically make deferred action recipients eligible for them. Some extent deferred action is ok on an individual basis but not for a whole class. First of all, nothing in the law actually says that. In fact, almost every modern president has granted reprieves for removal and work permits to large, specifically defined classes of undocumented immigrants. At any rate, the secretary november memo is filled with clear, careful repeated instructions to officers that even if the general criteria in the memo are all satisfied, they still have to make individualized case by case discretionary judgment. In fact, the very form the officers are required to use when they deny deferred action, and denied it more than 32,000 times on the merits, contains a list of the reasons. One of those specific reasons listed is discretion. I think this is the way an agency should work. It arparticular late general criteria. And expects officers to use the judgment in applying those criteria to individual cases. Thank you very much for your time. Thank you, chairman grassley, Ranking Member leahy, members of the Senate Judiciary committee. I thank you for the honor appearing before you. Its a historic moment. Looking for the confirmation of the 83rd attorney general of the United States. I want to begin by saying i have Great Respect for ms. Lynch. As i have said before, her extraordinary career as a prosecutor pays great credit to her. And to her nomination. Indeed if confirmed, and i hope she is, i believe that she could be a truly great attorney general. If great leaders are shaped at great moments in history this could be such a moment for Loretta Lynch. The Justice Department is at the epicenter of a constitutional crisis. A crisis that consumed her predecessor and his department. My focus, therefore, of my written testimony and my oral testimony today is less on ms. Lynch than the department she wishes to lead. As my academic writings indicate i have been concerned about the erosion of lines of separation of powers for many years, particularly the erosion of legislative authority of this body and of the house ups house of representatives. That concern has grown to alarm in the last few years under barack obama. Someone that i voted for. Someone with whom i happen to agree on many issues, including some of the issues involved in these controversies. We are watching a fundamental change in our constitutional system. Its changing in the very way that the framers warned us to avoid. The Justice Department has played a central and troubling role in those changes. In my view attorney general holder has moved his department outside of the navigational beacons of the first and second articles of our constitution. In that sense, ms. Lynch could be inheriting a department that is floundering. The question is whether she can or will tap back to calmer waters. As discussed in my written testimony, the framers focused on one defining single danger in our system and that is theing a a diesment of power in any one branch or hands. They sought to deny every branch the power to govern alone. Our system requires consent and compromise. It goes without saying that when we are politically divided as a nation, as we are today, less things get done. But that division is no license to go it alone as the president has suggested. You have only two voices in the mad sownian system. You madisonian system. You can seek to replace your adversaries, you dont get to go it alone. There is nothing noble about circumventing the United States congress because it means youre circumventing the United States constitution. And any person who claims that they can get the job done alone is giving the very sirens call that the framers warned us against, and one that i hope this body resists. In my testimony, i have laid out examples of how this change is occurring. I have divided it between obstruction of legislative authority and the use of patient legislative authority. The obstruction ever legislative authority includes the blocking of the contempt siteation nondefense of federal statutes, usurpation includes many of the legislative changes that we will be talking about today and has been discussed by others. The American People in my view have been poorly served in recent years by the Justice Department. The balance that has been sought in recent years has been lost precisely as the framers have feared. The rise of a dominant executive within our system, a type of uber presidency. It is certainly true that the framers expected much from us, but no more than they demanded from themselves. They expected this institution to fight jealousy over its own authority. They gave you that authority not to protect your power, the separation of power is designed to protect liberty from the concentration of power. It doesnt matter what party we are from and it doesnt matter if we agree with what the president has done, in my view he he has chosen unworthy means under the constitution. And the Justice Department has been the catalyst for that. In exercising the power of confirmation, this body has an undeniable interest in confirming the nominee will address these relational breaches. These unconstitutional actions. I can only imagine the pride that ms. Lynchs family will have when she raises her hand to take the oath of office. When that moment comes, however there should be a clear understanding as to what she is swearing true faith and allegiance to. As the 83rd attorney general of the United States of america. The department that she leads should be the embodiment not the enemy of the separation of powers. Its a convenant of faith that we have with each other. And i sincerely hope that she regains that faith. As she takes over, as she may, the department of justice. Chairman grassley and members of the Senate Judiciary committee. And Ranking Member leahy. Im honored to address you this morning about a frequent news topic, american policing at the local level. These hearings are focusing on the confirmation of possibly the next attorney general of the United States, ms. Loretta lynch, and i wish her well. I want to spend some time critiquing outgoing attorney general eric holders tenure at the United States department of justice and use it as the framework as a way forward. The Mission Statement of the u. S. D. O. J. Says to enforce the law and defend the interest of the United States according to the law. Let me repeat that, according to the law. To ensure Public Safety against threats foreign and domestic. Provide federal leadership and preventing and controlling time. To seek just punishment for those guilty of unlawful behavior and ensure Impartial Administration of justice for all americans. In my 36 years in Law Enforcement, i viewed the United States department of justice as an ally in pursue of justice. Local Law Enforcement has always been on the frontlines of preventing and controlling crime and seeking just punishment for those guilty of unlawful behavior, as the mission of the d. O. J. Implies. What i have witnessed from the department of justice under the leadership of attorney general eric holder has been almost hostility towards local Law Enforcement. I have seen this in both public statements made about the profession and some of the policy decisions that treats Police Officers as adversaries instead of allies in the pursuit of justice. Partnering with local Law Enforcement agencies and ensuring the fair treatment of all americans in the pursuit of justice are not mutually exclusive. What we all witnessed in ferguson, missouri, back in august was a tragedy. An unfortunate incident for officer Darren Wilson and citizen mike brown. What followed however compounded that tragic situation as people across the United States converged on ferguson to exploit the situation for selfserving purposes. Suffice it to say that was not americas finest hour. In the days and weeks that followed in ferguson missouri, the Police Related use of force was forefront in the national news. What was called for at that moment when the u. S. D. O. J. Inserted itself early into the process was an appeal to reasonableness, responsible rhetoric and cautioning against a rush to judgment. Instead some very powerful people made statements that only heightened rising tensions. Unfortunately, race is has been, and will always been an explosive issue in america. The incendiary rhetoric used by eric holder create add pathway for a false narrative that then became the rallying crying for cop haters across america. It sparked unjustified hatred toward americas Law Enforcement agencies and its officers. Without a shred of evidence a broad brush has been used to unfairly malign the reputation of the profession of policing in the United States. The accusation has been made that our communitys finest systematically engaged in the practice of targeting young blackmen because of the color ever their skin. That claim is patently false. And i reject out of hand the mere suggestion of it. If im wrong, then someone needs to show me the evidence. Officers at the local level put on their uniforms and go out every day to make their communities better and safer with which to live. Without them, our communities would collapse into utter chaos. The world that our officers operate is complex, dynamic, uncertain, and one where unfortunately things can and do go wrong. When that happens, the american Law Enforcement officer needs to know that after a thorough and transparent investigation the facts and evidence of a particular case will be applied to the rule of law standard for a decision about their actions. After putting their lives on the line, they do not deserve a standard of false narratives preconceptions misconception emotional rhetoric, or racial demagoguery. Author and scholar, thomas soul, said in a thought provehicling piece on the rule of law, if police who are told they are under arrest and refuse to come with the police cannot be forcibly taken into custody, then we do not have the rule of law when the law itself is downgraded to suggestions that no one has the power to enforce. So where do we go from here . How do we get beyond this frayed relationship between local police and the u. S. D. O. J. . My suggestion is for the next u. S. Attorney general to articulate clearly a renewed commitment to rebuilding trust with local Law Enforcement. That involves open lines of communication with an emphasis on listening to the suggestion of Law Enforcement executives and for the nations sake, please stop undermining the character and integrity of the american Law Enforcement officer. Next, resist at the federal level to interfere with local Police Training standards. Are cops perfect . No, far from it. But they are communitys finest. Every community is unique and what will work and what will not work. We already have state standards. Finally, i want to speak on two emerging issues on the radar screen in criminal justice. Sentencing and Prison Reform. Any discussion about reform in these areas that does not include a counter view about the consequences of this shortterm technical fix and impact on crime victims will have a catastrophic consequence on an already stressed black and hispanic communities. The recidivism nature of criminals will cause more minorities to be victimized by violence similar to what happened in milwaukee, a 10yearold girl shot in the head and killed on a school playground. The shooters were career criminals. The black community does not have the support structures in place for an influx of career criminals sent back into the community or to deal with the habitual criminals who currently rain terror in neighborhoods. Adding more crimes and violence in that mix will bring more misery to the overwhelming number of decent black lawabiding citizens just trying to get through life against already great odds. Reform simply lowers the bar is nothing more than normalizing criminal behavior. Thank you very much. Thank you mr. Chairman, Ranking Member leahy, members of the committee. I thank you for the opportunity to testify at this momentous hearing. The committees rightly focused decided to explore not just the qualifications of the nominee, but also the proper role of the office. I myself take into position on the ultimate question whether the nominee should be confirmed. Rather i offer observations about the proper role of the attorney general and comments, alas, on the ways in which the Current Administration has fallen short of its constitutional obligations. You explored at length the attorney generals weighty responsibility to supervise the various components of the department of justice, but as you know the most important responsibility of attorney general is not the supervision of the tens of thousands who work beneath her, its the solemn counsel that she gives to the one who works above. Her most important job is giving sound legal advice to the president of the United States. And perhaps the most important dimension of this function is to advise the president on the scope of his executive powers and duties. The attorney general should rightly explore all Legal Options for the president to achieve his goals, but at the end of the day, if no Legal Options are available, the attorney general must be prepared to say no mr. President , you have no constitutional power to do that. The fortitude, the rectitude required to say no to the president is perhaps the single most important job criterion for attorney general of the United States. Im afraid its particularly important now in an administration that is inclined to press the outer bounds of executive power and skirt the obligation to take care of the laws be faithfully executed. I hope the committee will thoroughly explore the nominees conception of the faithful excuse of the laws and advise the president when he runs afoul of this constitutional obligation. The constitution provides that the President Shall take care that the laws be faithfully executed. First, notice that this is not a grant of power. It is the imposition of a duty. The President Shall take care. This is not optional. Its mandatory. Second, note that it is personal. Execution of the laws may be delegated, but the duty to take care that the laws be faithfully executed is the president s alone. Third, notice that the president is not required to take care of the laws be completely executed. That would be impossible. But so the president does have power to make enforcement choices, but he must make them faithfully. Finally, its important to remember the Historical Context of the clause, english kings claimed the power to suspend laws unilaterally, the framers rejected this practice. These principles in mind, we can turn to three recent examples, alas there are many more one could choose. First, the obamacare suspension. So on july 2, 2012 just before the long weekend, the Obama Administration announced the president would unilaterally suspend the employer mandate of obamacare. Notwithstanding the unambiguous command of the law. The statute is perfectly clear. It provides that these provisions become effective on january 1, 2014. This blog post written under the breezy orwellian tighting, continuing to implement the a. C. A. In a careful thoughtful manner, makes no mention of this deadline. Now, whatever it may mean to take care that the laws be faithfully executed, it simply cannot mean declining to execute a law at all. Second example immigration is almost an exact mirror of the first. In this context rather than declining to comply with the duly enacted statute, the president has decided to comply meticulously but with a bill that never became law. So congress repeatedly considered a statute called the dream act, which would have exempted a broad category of aliens from the i. N. A. , but congress declined to pass it, so on june 15, 2012, the president announced he would simply not enforce the i. N. A. Against the precise category of aliens described in the dream act. He announced that the dream act would have been enacted into law though it had not. Now, this is clearly not an effort to conserve resources. After all the solicitor general went to the Supreme Court to forbid arizona from helping to enforce the i. N. A. Exempting more than 1. 76 Million People from the Immigration Laws goes far beyond any traditional conception of prosecutorial discreppings. Now, professor legomosky cited an unsurprising consensus of liberal imdwration law professors approving the most recent action. Ill cite one authority the president of the United States just a few years ago, quote, america is a nation of laws which means i as the president am obligated to enforce the law with respect to the notion that i can just suspend deportations through executive order, thats just not the case. Because there are laws on the books that congress has passed, there are enough laws on the books by congress in terms of how we have to enforce our immigration system that for me through executive order ignore these congressional mandates would not conform with my appropriate role as president. I would hope that nominee would agree with this statement. My final example is i. R. S. Targeting. Ill be happy to answer constitutional questions on that topic as well. Thank you. Good morning, mr. Chairman, members of the committee. Im the founder of true the vote, a National Nonprofit initiative to protect voters right and promote Election Integrity. Im here today because i was targeted by this government for daring to speak out. Im one of the thousands of americans who have become sadly, living examples of this kind of trickle down tyranny is actively endorsed by the Current Administration and rigorously enforced by the department of justice. Over these past few years the department of justice has made their presence very wellknown in both my professional and personal life. Since filing for Tax Exemption from the i. R. S. In 2009, my private businesses, my nonprofit organizations and i personally have been subjected to more than 15 instances of audit, inquiry or investigation by federal agencies, including the i. R. S. , osha, a. T. F. And the f. B. I. All of these inquisitions began after filing for Tax Exemption. There is no other remarkable event or rationale to explain how for decades i went unnoticed by the federal government but now find myself on the receiving end of interagency coordination into and against all facets of my life. I shared that same timeline as a part of testimony given in february of 2014 at had a hearing before the House Oversight and government reform subcommittee. Time did not permit then nor does it now to give a full account of the cast of characters and confluence of events that fill a binder with over 800 pages worth of government subter huge but the department of justice has found its way into almost every aspect of my story. In my attorneys testimony last years house hearing she spelled out before the committee why we believe that department of justice investigation into the i. R. S. Targeting scandal was in fact a sham. Within hours of her filing, she received a phone call from the department of justice. Now, suddenly wanting to interview me. It was the first time we had been contacted in approximately nine months after the investigation purportedly commenced. An arrangement was made by the department of justice Public Integrity division but we were then told that Civil Rights Division would also be participating in my interview. Now, this is significant because at the time that same Civil Rights Division was fighting against true the vote in a courtroom back in texas trying to prevent us from becoming an intervening party for the state in voter i. D. Litigation that the department of justice had brought against them. The d. O. J. Told my attorney that unless i was willing to waive my rights and obligations to involvement to the involvement of the Civil Rights Division that they would not interview me at all. And to date they still have not. A handful of months later we met the department of justice in court again. This time as they represented the Internal Revenue service in a lawsuit true the vote filed against the i. R. S. In 2013. The d. O. J. Assured the judge that there was no more evidence that could be recovered from any of the hard drive crashes that had befallen i. R. S. Employees named in our suit. All of the contents from all of the hard drives was certainly irrevocably lost. This purported dead end in discovery became the judges ultimate decision to miss our case. Yet, just one month later the treasury Inspector Generals investigation turned up an additional 2. 5 million emails of which 30,000 were lois lerners. Is there the will to ever get to the truth behind this nightmare of citizen targeting . For six years the department of justice has operated as an increasingly rogue agency where personal liberties runs a district distant second of preservation of political power. Will this new leadership be any different . As a leader of a voter Rights Organization i was extremely dispinted to hear ms. Lynchs comments in a speech she made in los angeles last february when she said that voter i. D. Laws were passed in the deep south so that, as i quote, minority voters would be disenfranchised. And further, that she applauded d. O. J. s lawsuits filed against those states having i. D. Programs and promised that those lawsuits would continue. 70 of americans believe that showing photo identification in order to vote is a commonsense safeguard to our electoral process. Should we count on continued resistance from the department of justice led by Loretta Lynch . In fact, the most significant voter disenfranchisement threat currently facing our country was made possible by the president s recent order of executive amnesty. States are not prepared to deal with the coming influx of illegal aliens wanting social Service Programs like medicaid, medicare and federal drivers licenses. They say they offer Voter Registration opportunities which is a wonderful thing for american citizens but these programs were not designed to verify citizenship leaving states without the necessary fire walls to ensure that noncitizens do not end up as registered voters. And every vote cast by a noncitizen disenfranchises the vote of a citizen. We know mr. Holder is a proponent of amnesty. Where will ms. Lynch stand on the issue . In a 2009 speech, general holder called america a nation of cowards. Well if you remember nothing else from my comments, please remember this. I am not a coward and im not a victim. Im a messenger for all of those americans who love our country, love our fellow countrymen and pray for a better tomorrow, and im here to say our country right now is at a tipping point. We have replaced rule of law with moral relatively, weve removed truth with Political Correctness and in all of the double speak and double think we have become increasingly unsteady about how we the People Factor into a future left into the hands of our current leaders. So please be bold, please choose wisely because americas watching. Thank you. And now ms. Engelbrecht, ill call in just a minute or 30 seconds ill call on professor not professor. Chairman leahy to ask the first questions because he cant come back this afternoon but would you go ahead senator hatcher . I want to say that were thoroughly investigating this. The only issue we have to report so far is that the, as you mentioned, there were 30,000 more emails finally discovered. And the investigative arm of i. R. S. Has not yet released those to us and were going to have to go through those before we issue a final report. You have my total sympathy for what youve gone through. Thank you, senator. Hes speaking as chairman of the finances committee. Of the fn committee. Senator leahy. Thank you, mr. Chairman. I appreciate your courtesy. Id ask consent to put in the record without objection. Former f. B. I. Director, we all know very well supporter of Loretta Lynch and congressman john lewis. A number of Justice Department officials, both the bush administrations and various democratic administrations, f. B. I. Agents association. I wont list all of them but they could all be part of the record. They will, senator leahy. We have nine witnesses here today. With those who oppose Loretta Lynch as f. B. I. Director would they please raise their hand . I mean as attorney general, im sorry. I was thinking of lieu eye. Those who oppose her as f. B. I. As attorney general, will they please raise their hand . No hands were raised. Its amazing your record, you started off as a beat cop in nevada joined the f. B. I. And 23 years later youre heading up the f. B. I. s Largest Field Office. And like many here, i was briefed during that time with some of the investigations you had under way, especially in the terrorist area. Remarkable in their complexities. You also dealt, as you said with Loretta Lynch during that time. Do you believe she has a temperament and the demeanor to be the attorney general . Senator my two years exposure working alongside loretta and i say alongside because it truly was a Seamless Partnership, i think gives me a little bit of background and experience to be able to say that i firmly believe that Loretta Lynch possesses all of the necessary attributes that the nation should demand of an independent attorney general and i wholeheartedly support her nomination and confirmation. I dont want to put words in your mouth. Would you say she would make independent judgments . Yes sir. In fact, that was part of my Opening Statement, the fact one of the three atributes that i wanted to touch upon was the fact that she operated independently, did not bow to outside influences, looked at the facts, looked at the issues. When she was confronted with an issue, she gathered input from share stakeholders solicited their input, took a look at the law, made sure that her decisions were wholly based on the facts and the law and independently arrived at. Your career in Law Enforcement is a lot longer than my career in Law Enforcement, but i know during my years in Law Enforcement what we wanted was was independence and i appreciate that. Mr. Bar low, nice to have you mr. Barlow, nice to have you back here. Usually we see you in the other committee room. Do you believe that Loretta Lynch has the independence to stand up to others in the executive branch including the president , if she feels she is in the right and has to stand up to do her job as attorney general . Yes, senator, i do. In my experience working with her and working through any number of different issues, seeing her in a variety of different circumstances, i have always known her to be thoughtful, well prepared and someone who is interested in the facts and the law. I dont believe the president or anyone on this earth could get her to make a decision that she did not believe was right and had a firm basis in where her duty was at that moment. In louies letter, he said her being part of the group of going to italy for the funeral of one of the top mafia fighters someone that both director free and i had known and she was there with him for that because of organized crime. As ive known her peripherally over the years and more since the nomination, but dr. Newsome, youve known her longer than all of the rest of us. Do you believe she would stand up for what she believes is right no matter who she might be getting pressure from, president , me, senator grassley or you . Or me. [laughter] absolutely, senator. Use your mic please. Absolutely senator leahy. She would demonstrate independence in the most constructive of ways. One of her greatest atributes, as already been noted, is her ability to hold forth with the strength of her own convictions, having prepared herself thoroughly, thought through matters very, very comprehensively, having identified the issues in a way that she could communicate her position in a way that would garner nothing but the highest of respect. I talked about yesterday about as a young law student being recruited by the thenattorney general of the United States to come to work for him and id asked him whether he would stand up to the president of the United States if need me, he assured me he would. Later he did when he prosecuted a man who was essential to the election of the president as president. And when i asked him later about that, i said, attorney general robert kennedy, what was the reaction . I stayed away from family gatherings a little while. And president turley, ive seen you many, many times. The House Republicans have hired you to sue the administration in another area and taxpayers will pay your fee. This could cost as much as 3 million. Theyre not paying you 3 million, are they . Im certainly open to that, senator leahy, but, no, no ones offered me 3 million. What is the hourly rate you do charge . I think its the hourly rates set by the contract, not by me, its top at 500. I seem to recall that. I want to correct something. Im actually working not for the House Republicans but for the house of representatives. They voted to approve the republican vote. Partisan vote, you know. Not to put two do you get paid for your testimony here today . Oh, no, of course not. Thank you. I thought it had actually, the question i asked first was probably the one that i appreciated the answer the most when no hands went up and i hope we can move on. Many of you have questions about past operations of the department of justice. I have some disagreements with that but i think were talking about the remaining time of this Administration Department of justice. As a former prosecutor and as the longest serving member of the senate and one who has voted on a lot of attorneys general, both republicans and democrats, i feel very, very confident in voting for Loretta Lynch as attorney general and again, i thank you, mr. Chairman, for your courtesy. You bet. Im going to start out with ms. Attkisson. I dont know whats wrong with this microphone. Can someone fix it . In your testimony, you say you have a long career of the best im sure you dealt with pushback from powerful people before. What makes the last few years different . I defer somewhat to some of my colleagues that i voted in my Opening Statement who said this was in their experience, which is longer than mine, the most Difficult Administration theyve dealt with. Ann compton, another correspondent, said this is the most closed president shes dealt with in seven president s shes covered. I say it as a high point on a trajectory and continuum meaning every administration seems to be worse than the last. Although they come in promising openness and transparency, they seem to pick up where the last one left off. And there hasnt been as much pushback, i think, from congress and the media in some cases, to keep that balance because of course the government tends to for whatever reason covet information, separate itself from the public and treat itself as one and apart. But were supposed to help create a balance so it doesnt get out of whack. And i think we havent done a very good job at that in the last couple of years. Additionally, this administration has employed very aggressive techniques that have available to it that were not available years ago such as using social media and surrogate bloggers to put out false information to controversialize any reporters who dare to do the normal oversight reporting that weve done in other administrations and i think thats been somewhat successful. You say in your testimony that you were once briefing a Justice Department. What reasons were you given . A briefing was called on fast and furious and i was sent over to the office, but tracy, the press officer, called back immediately and said, dont bother to come, that she wouldnt clear me in the building. Although i have press pass, i have bean cleared to the f. B. I. To walk up to the president of the United States, but she wasnt going to clear me through Building Security. She didnt give a reason other than to just say they only wanted the normal beat reporters to attend. I cant tell you how improper that is, in my view, how improper it is that government officials who control public assets would misuse their authority to in essence hand pick the reporters who get to cover the story i think in essence the way theyd rather it be covered and keep out in some cases more knowledgeable reporters whove been covering that particular issue. That had never happened to me before. I never tried to go there afterwards. It didnt happen to me afterwards, but i think that was a very important thing that was done and i think it was very improper. Do you think any of your colleagues and fellow journalists pull punches because they think they might be barred . I dont personally know. I think the reporters on the ground do a great job, but i do know there are managers and editors and ive spoken to executives from three networks who have given instances in which theyve been civically threatened with loss of some sort of access if the News Organization takes a particular news course. So that threat of access is definitely felt. My next question gets to the fact that we arent here to talk about her qualifications. I dont think anybody questions that, but whether she can make changes in the department of justice. What do you think needs to be done to correct the Chilling Effect on the press over the last few years . Sometimes i think its more than just the physical steps that are taken. Its an action thats seen and a message thats perceived. Right now regardless of steps that have been taken to mitigate damage thats been done, theres still a large distrust of the Justice Department. In some cases government in general. There are members of congress and staff and whistleblowers and other journalists who commonly talk about the idea that they believe, whether its true or not, that they believe theyre being monitored on their phones or computers and or computers. How you get past that suspicion thats been created by the actions that weve seen, its going to be difficult. One very tangible thing that can be done and i think needs to be done and i wont belabor it but has to do with freedom of information law which is pretty much pointless and senseless now in its application at the federal level. It does no good. Its been used instead of facilitate the release of information. Its been used to destruct and delay the release of Public Information. Its no good. Even if you do go to court to get your public documents, thats a taxpayer expense. It still serves the purpose of delay, that the bureaucracy wishes to serve. And at the end, even if they have to play the plaintiffs fees, its done with our tax dollars, and basically the federal agency gets rewarded for a Job Well Done because theyve been able to obscure and delay the release of these public documents. So foia is extremely broken at the federal level. Just to make clear, you felt your computer was hacked, you filed for information on it and you still dont have an answer, is that right . Thats right. The f. B. I. , i think, Something Like i filed a request just in general for information 540 days ago. Response is due in Something Like 20 Business Days but this is typical of foia responses. I got a very partial incomplete response last night to a foia request that i made at the department of justice Inspector General which did not include the forensics that supposedly came along with some conclusions and summaries they made so that will be a process that who knows if ill ever get the documents ive been asking for for months. But this is very typical, reporters will tell you and citizens and consumers, of their efforts to obtain easily accessible Public Information or information that should be easily accessible. Ms. Engelbrecht may 20, 2013, general holder announced that he ordered the department of justice conduct a criminal investigation within the i. R. S. Of targeting conservatives at the time. The attorney general called the i. R. S. Practices quoteunquote outrageous and run acceptable. When did the department of justice first reach out to you or your lawyer to learn the details of your ordeal . We heard nothing from the department of justice right up until the day before we were to testify before the house subcommittee. My attorney and i were both prepared to testify. My attorney filed her testimony in which we were very critical of what had happened at that point and it was not hours later that the department of justice called for the first time to ask to speak with us. So nine months, approximately. So after nine months, general holder ordered the investigation, reach out to you and what prompted them to do so . Do you have any idea . I think it was i think it was that testimony that was filed that left no stone unturned about what we already experienced. So let me get this straight. Attorney general holder announces an investigation into the i. R. S. s targeting of taxexempt groups like yours and nine months later it takes a congressional hearing for you to be contacted by the attorneys at the department of justice. You just said yes to that. Yes, sir. Thats disgraceful. To your knowledge, who did they talk to before they reached out to you . Certainly we saw over the news they were talking to lois lerner and others inside the department. I was in very regular contact with lots of other leaders of other organizations that had been targeted. Best of my knowledge, no one has been contacted, still, by the department of justice. Mr. Chairman, i would note that the Alabama Tea Party leader who was victimized has still not been investigated, even been interviewed even though i directly asked the f. B. I. Director to do so a long time ago. Then, so to date, youve not been interviewed by the f. B. I. . No, sir. They did ask about nine months ago but it was upon the contention that they would be allowed to have the Civil Rights Division in and i was not i was not willing to do that because the Civil Rights Division had already been on record opposing my organization. Ok. Well i dont blame you for declining to speak to the department of justice. If i had been subjected to 15 audits and inquiries from four different federal agencies in less than three years, i would only want to meet with a neutral and fair investigator and certainly not a person who had been appointed to do this investigation, who also had an outstanding record as president obamas campaign donor. One final question. Has the department of justice or anyone else for that matter, advise you why four powerful federal agencies descended upon your doorstep . No, sir, but id sure like to know. You know, im at a loss here. Let me check from my staff if i need to ok. Senator hatch. Well, thank you, mr. Chairman. I really appreciate what youve gone through. I cant say much about it because of 6103 authority, but we are going to get to the bottom of it. Thank you sir. Weve already gotten quite a bit to the bottom of it. I want to come back for at least a few minutes to thank this panel of witnesses for contributing to the confirmation process regarding ms. Lynchs nomination. Im going to be a strong supporter of her nomination. And i believe shes not only qualified but exceptionally well qualified and a very good person. I especially want to recognize david barlow, whos here today that served as a u. S. Attorney in my home state of utah for three years, and before that worked on this committee as chief attorney for my companion here in the senate, senator lee. Professor turley welcome back. Thank you senators. Yesterday, i asked ms. Lynch whether the attorney general has the duty to defend the constitutionality of duly enacted laws, if there are reasonable arguments to do so. You discussed this in your prepared statement and i want your comment on one specific issue that i raised. Attorney general holder did not decide never to defend the constitutionality of the defense of marriage act but to stop defending its constitutionality. His own Justice Department lawyers had already been making reasonable amendments defending doma or this bill, and mr. Holder decided to stop making them. And that is what made me say hes abandoned his duty. Do you agree . I agree. I thought that the decision was wrong. I happen to agree with the president. I was a critical of doma. But i thought that the abandonment of the defense of doma was to the rule of law. I thought it violated a longstanding understanding with this body. You know, theres history here, as you know. Youre a student of the constitution. And you know that theres always been this tension between the congress and the Justice Department as to who can be in court defending things of this kind. The Justice Departments always insisted theyre the exclusive representative. Huh been attorney general you would not have stopped that. Absolutely. I would have defended that law. Even though you didnt agree with doma, the defense of marriage act. Theres no definition in the attorney generals position as to when they will abandon a federal law. I happen to agree with the criticism of the law. But there were plenty of people with good faith arguments that it was constitutional, including people on the Supreme Court. If this is the standard for abandoning a federal statute, i could see a president doing this in a host of different statutes. Youre right about that. I appreciate your comments. Im also glad that youre prepared statement discussed the controversy over a recess appointments. The idea that the president has the authority to tell the senate when it is in or out of this or that sort of recess is astounding. Im glad the Supreme Court unanimously rejected the administrations position on that matter. And yesterdays discussion of prosecutorial discretion, the administrations defenders repeatedly said that this is really only about wisely using limited resources. You refer in your statement to the, quote illconceived litigation strategy of the Justice Department, unquote defending this bizarre position on recess appointments. I wonder how many resources the department uses pursuing these extreme positions in court that is, i said yesterday, got shot down over and over again. Some 20 times. Do you agree . Absolutely. I testified before the litigation after the appointments were made and i said in my view even though i thought very highly of the nominee that the appointments were flagrantly unconstitutional. There are close questions in the constitution. This is not one of them. This is one of the reason i admire you. You are wrong on so many reasons but you stand up. I got a lot of respect for you. Professor legomosky, your prepared statement refers to a november 2014, letter from Immigration Law scholars. It states that president s action establishing the deferred action for parental Accountability Program is, quote, one the Legal Authority of the executive branch of the United States, unquote. But didnt the Justice Departments own office of Legal Counsel in its opinion issued a week earlier conclude that, quote, the proposed Deferred Action Program for parents would not be a permissible exercise of Enforcement Discretion unquote, even though office of Legal Counsel which seems to be into advocacy rather than analysis these days, disagrees with these scholars on this issue . Senator, the l. L. C. Memo distinguished between granting deferred action to those children who arrived at an early age on the one hand and in addition granting it to the parents of u. S. Citizens and lawful permanent residents while at the same time suggesting it might not be legal to extend deferred action to the parents of the Daca Recipients themselves and i do personally disagree with that latter suggestion of o. L. C. But oice i thought the memo was otherwise i thought the memo was very thoroughly and well articulated. Ok. Sheriff clarke, i want to personally thank you had a for your advocacy for Police People for this country and coming here today and giving your testimony. As i observed the reactions to those like ferguson, missouri, i the rhetoric and broad brush picture that was developing about you a all Law Enforcement. We heard elected officials that Police Officers across the country were indiscriminantly shooting black men simply out of fear. Those indents happened at the local level and local Law Enforcement. How much do you think the attorney general of the United States could affect the situation negatively or positively . Thank you senator. A lot. The attorney general of the United States is a big stage and when he or she talks, people listen all across the country and it gives the impression that that is the policy of the United States department of justice and they have to choose their words carefully. Well, thank you. Ms. Attkisson, i dont know what your politics are, but i admire you greatly. Youre what an Investigative Reporter ought to be. And frankly, your testimony here today has been very profound, very strong and it ought to wake everybody up at the Justice Department and in the administration and in all administrations both this one and anyone in the future. So youre doing a great Public Service here and having the guts to stand up and take the positions that you have. I have a lot the admiration for you. Professor rosenkranz, during the hearing yesterday i acknowledged that prosecutorial discretion obviously involves enforcement or resource allocation decisions in individual cases but i said, quote, applying that discretion to entire categories of individuals has the same effect of changing the law itself, unquote. Do you agree with that . Yes i do, senator. Its not a clear line that one can draw but when you start to talk about exempting millions and millions of people from act of congress, this looks like legislation than Enforcement Discretion. Professor legomosky offers the Supreme Courts decision in arizona v. The United States, to justify using prosecutorial discretion in a categorical fashion. The court in its opinion uses the word individual. More than a dozen times. For example, it discusses, quote, the power to bring criminal charges against individuals, unquote. And whether, quote an officer has probable cause to believe that an individual is removable, unquote. In fact, one of the quotes from the courts opinion that professor legomosky includes in his prepared statement says, quote, the equities of an individual case may turn on many factors, end quote. Does that Decision Support using discretion for individual enforcement decisions in a categorical way which has the effect of changing the underlying statute itself . I quite agree with you, senator. I think the traditional conception of prosecutorial discretion has always been case by case. Ok. Your prepared statement says that the most important dimension of the attorney generals function quote, is to advise the president on the scope of his executive powers and duties, unquote. Does that function happen on a blank slate or do the essential principles of our system of government actually counsel special attention to the limits of president ial power . Quite right, senator. I think the core of that responsibility is for the department of justice and the attorney general, in particular, to think hard about the meaning of faithful execution of the laws. And to counsel the president when he is close to the line of unfaithful execution. In other words, is the attorney general there to find some plausible theoretical justification for whatever the president wants to do orp is she there to enforce the power that sness for all of our liberty . The attorney general should help the president to find legal ways to do what he wants to do, but at the end of the day its essential for the attorney general to be able to say, no, mr. President , thats something you cannot do. My time is up. Thanks very much, mr. Chairman. Im going to be very brief. This is really a hearing to discuss the qualifications of a nominee. In this case a very distinguished, very exceptionally wellqualified nominee on virtually any area that one can state. I really dont want to see that diminished by a critique by various people of the administration. And to me, Loretta Lynch is an outstanding role model, not only for women but for all of us in this arena because, as you can see, so much of this arena has become so partisan that uses a hearing of the qualifications of a nominee to be used to criticize the administration and areas that Loretta Lynch had nothing to do with. I guess thats the coin of our realm here, but i mean, i remember other nominations where if the issue was independent, where nominees fully admitted and the Ranking Member mentioned this, that they were a wing of the staff to the president. So i think we have a very special nominee in front of us. Very skilled, very determined, but most importantly i think shes used her life so well to be that combination of what was said by one newspaper combination of velvet and steel, and to see the impact of that on the strong support that she has for all of us in this arena i think is a kind of role model as to there are a lot of people that know how to separate everybody. There are very few people that know how to bring people together again and really develop a kind of consensus that can lead us forward. And because this institution is so split, the role of Loretta Lynch in this day and age i dont think can be underestimated. So the fact that when senator leahy asked the question i forget how he put it. Which of you is in opposition to Loretta Lynch, no one raised their hand. And i think its that way throughout the nation. I think we should get on with the business. We should see this woman confirmed as quick as possible. Thank you very much. Thats my statement. Senator whitehouse. Before i start claiming my time let me say where we stand in terms of whats going on here because the chairman has just had to leave for a vote and he has left me instructed that if senator lee arrives or if another republican arrives at the conclusion of my time, then they will be recognized, but if no one else is here, then well recess at that point until 1 00 p. M. Is that correct . Ok. Good. Let me take my time to sort of review the bidding where wrer. No witness present today opposes ms. Lynch as the nominee for attorney general. Ms. Attkisson is here as a litigant against the United States with her lawyer sitting beside her. Her testimony never mentions the nominee. And i would ask, actually, unanimous consent that the redacted version of the i. G. Report related to her claims which she now has, be made a matter of record which without objection it will be. Mr. Barlow supports the nominee enthusiastically. Reverend newsome supports the nominee enthusiastically. Ms. Fedarcyk, to use her words, wholeheartedly supports her nominee. Mr. Legomoskys testimony does not make clear whether he or does not support the nominee. Do you . I certainly do. Thank you for asking senator. Thats made clear. Mr. Turley says that his interest today is not to discuss ms. Lynch as much as the department she wishes to lead. But he goes on to say he has no reason to doubt the integrity and intentions of ms. Lynch who displays obvious leadership and strength of character. Sheriff clarke is here and wishes the nominee well. But he goes on in his testimony to say, i want to spend some time critiquing eric holders tenure. Professor rosenkranz takes no position on the nominee but comments on the tenure of eric holder. Is that correct, professor . And ms. Engelbrecht did i say that right . Ms. Engelbrecht is an advocate for voter identification laws who would like ms. Lynch to agree that voter identification laws are not efforts to suppress voting but took no specific position on the nominee, is that correct . Most specific positions, iffer all the hope in the world it will work out. So let me say two things. One, some many years ago George Washington set for himself what he called his rules of civility and decent behavior. He wrote 110 rules of civility and decent behavior to help him guide his own conduct in upright and honorable ways. I think it was rule 89 of those rules of civility and decent behavior that George Washington kept that said the following speak not evil of the absent for it is unjust. There are plenty of forums where the attorney general would have an opportunity to defend himself. This is not one. There is no forum here. There is no opportunity here for attorney general holder to answer these various charges that have been made. I think that is fundamentally unjust and i think it is frankly beneath the dignity of this committee at a time when we have a very significant and solemn charge before us to determine the fitness of a specific individual to be attorney general of the United States, to launch a series of unanswerable attacks. I have no problem with the attacks. My problem is the choosing this forum for them where the other the individual in question has no chance to answer. I think fails president washingtons test that one speak not evil of the absent for it is unjust. With respect to the other issues, i think we will have plenty of time to ventilate those in other forums. Im sure well have plenty of time to address immigration, address voter i. D. And voter suppression, address surveillance, address all of those things but once again in this forum theres no opportunity for another side to be presented. And i regret that this hearing and this solemn occasion has been part of that extent and turned into what appears for a sound bite factory for fox news and conspiracy theorists everywhere. We actually have a nominee in front of us. She appears, by all measures, to be a terrific person. I think we should get about the business of confirming her and get about the business of voting on her. And if people have this strength of view that attorney general holder is not a good leader of the department of justice, the very best way to act on that would be to confirm ms. Lynch as quickly as possible. I happen to disagree with that view. I am proud of what attorney general holder has done. And i would once again reference that he did not inherit a department of justice that was in good order. The office of Legal Counsel had written opinions that were so bad and so discreditable that even that administration was forced to withdraw them once they saw the light of day and received peer criticism. U. S. Attorneys of republican and democratic persuasions and appointments alike rose in irritation and anger about the effort to manipulate the United States attorneys that exploded into a scandal. There was that rather creepy midnight assault on a sick attorney general in the hospital when white house lawyers came over to try to get his signature on a document and thankfully now f. B. I. Director put a stop to that norn sense and ultimately the attorney general of the United States was forced to resign from that office. So stepping into that mess, and there were plenty of other features i could add, i think that attorney general holder is entitled to great credit for putting that department back on its feet. I understand that he made decisions that people disagree with. I for one believe that those decisions are within the bounds of legitimate debate. Im not suggesting that my colleagues need to agree with them, but i think to personalize them so much as to say that it shows a moral or personal defect on his part reflects really more the narrowness of a specific ideology than a true judgment about the merit of a man who has served his country as a United States attorney, as the Deputy Attorney general, as a judge and as attorney general with what i consider to be great distinction. So with that ill conclude my remarks. I see my friend and former attorney general colleague senator cornyn here as well so under the chairmans direction as i yield my time it will go, as i understand it, to senator cornyn. Ok. I yield my time. Thank you. I would thank you my colleague and who i work with on a number of important matters. Were working on some important Prison Reform legislation, demonstrating that dysfunction hasnt taken over everything here in washington that we can actually work on things even though we have other differences. But i just have to i just have to disagree with him. And i guess he disagrees with himself. While he criticized the criticism of attorney general holder, he seemed to recall with great clarity the problems with the bush Justice Department that he or at least things he disagreed with. So but thats the great thing about the United States senate and about our great country. Where all of us ought to be free to express our views without fear certainly of government intimidation and, ms. Engelbrecht, im glad to see you personally. I find your testimony once again chilling and i admire your courage. And it cant be easy for a citizen to fight their government with all the vast resources array against you. I assure you are not alone. And senator hatch, whos chairman of the finance committee, which has jurisdiction over the Internal Revenue service, hes an honorable man and i know you can count on his commitment as well to get to the bottom of some of the matters that you referred to. Particular regard with the Internal Revenue service. So thank you for your courage and your willingness to stand up to and i would say also, inspire a lot of americans who feel like governments gotten too big and too intrusive and is crushing the spirit and the voice of a lot of individual citizens. So thank you for being here. And ms. Attkisson, i have to tell you how much im chilled by what you have to say. When i was in college i was a journalism student before i lapsed into the law and became a lawyer. But the idea that you would be targeted and surveiled intimidated or attempt to intimidate you from doing your job. And i know you are a skewer of power on an equal opportunity basis. I can tell from your testimony you are not picking sides but you are trying to do your job. Its repugnant to me that government should try to array its power against the freedom of the press to intimidate people like you. And i appreciate the fact you are not intimidated. And i told senator leahy, who i partnered with on a number of information reform he and i are the odd couples, who are book ends, but who agree in the publics right to know and certainly we want to work with anybody whos got a good idea how we can make the system better. I welcome that opportunity. I just want to say, ms. Lynch appears to be an outstanding example of the American Dream and somebody whos got a distinguished career as a United States attorney. The challenge is for her and for everybody who takes on a job as a member of the president s cabinet is you are no longer just a prosecutor. You are somebody who is responsible for implementing policies, implementing policies of this president. That has been the subject of a lot of discussion here today, and as i told ms. Lynch privately, you got two choices. You can take the job and implement the policies or you can say, mr. President , i think what youre trying to do is improper, even illegal, unconstitutional and quit or not take the job in the first place. I dont see any middle ground on any of that. And while i have the same reaction to ms. Lynchs testimony that i had to sara saldanas testimony, who was a United States attorney from dallas texas who senator Kay Hutchison and i respected for appointment who is now the director of immigration and customs enforcement, i told her the same thing. You were a prosecutor. You did an outstanding job. Now youre going to be in policy position where youre going to be asked to implement policies that i disagree with and you may in fact disagree with. So youll be left with that hobsons choice. So while i hear some of my colleagues talk about the independence of the attorney general well, its perhaps some independence but it really is the independence of ones personal conviction not to cross that line and to be able to tell even some of these powerful someone thats powerful even as president to say hes gone too far. Professor rosenkranz, i would be interested in your view of whether the attorney general can be truly independent. I dont think independence is quite the right word. The executive power is vested in the president which it should be. But the president is delegated to the attorney general to advise him on legal issues. Thats delegated, again to the office of Legal Counsel. And its crucial for that function to be performed with as much integrity and independence as possible. At the end of the day, the president can disagree with the attorney general, can overrule the attorney general, can even fire the attorney general. Its esernings for the attorney general to essential for the attorney general to say no if necessary. Mr. President , i explored every legal option and this is something you cannot do, this violates the constitution. Professor turley, i know that senator grassley asked you questions about your representation of the United States house of representatives in a lawsuit. As you probably know theres also a lawsuit pending in brownsville, texas brought by 26 different states challenging the president s executive action that weve been discussing here this morning. Obviously any lawsuit thats been that is brought, the plaintiff has to establish standing to sue a claim of harm to them and not to the public generally. I remember that much in my law school. But my point is, the policies of the federal government have a direct and very negative impact on state and local governments and on citizens who live, particularly in border states like mine, where just not that long ago we had what the president himself called a humanitarian crisis. Tens of thousands of unaccompanied children coming from Central America drawn by the magnet of a promise if you can make it here youre going to be able to stay here. Something that a lot of people would like to do. So im not going to ask you to opine about the merits of that particular lawsuit. The judge there will probably make a decision here in the coming weeks. But do you see anything inappropriate about people who are agrieved or suffering harm as a result of the actions by the president of the United States going to court and asking the court to make a decision . No, i dont. But ive long been a critic of the current standing doctrines that have been developing over the years. I think walter dallinger put it best. He and i testified together. He spent his career as a standing hawk. I spent my career as a standing dove in that sense. I believe its important to give access to courts, particularly for states. I think its rather absurd to say states have effectively no skin in the game, that they have no injury when you have these federal pronouncements essentially coming down and imposing considerable costs upon them. I think that you really see sharp relief when these states have trouble even being heard on the merits. So when we look at all of these cases in terms of the ert to keep the merits from being heard, i think that has a really dysfunctional effect. I think thats one of the reasons were seeing so much chaos is the lack of definition in the separation of powers and these constitutional rules. That can be rectified if we give greater access in the courts. Well, of course from my perspective, coming from texas, i see the policies of the federal government, particularly with regard to immigration, as having a very direct and real impact on taxpayers and citizens who are forced to pay the price in terms of health care education, Law Enforcement, the like and they really have no recourse because they dont have the ability to do that for ourselves, something that is committed in the constitution to the federal governments responsibility. And when the federal government doesnt do its job, the federal government doesnt necessarily feel the negative impacts. Its people who live in those places like texas where its very real. I want to maybe just ask one last question, not to get too far town in the legalese, but ms. Atkinson as a result of the investigations that have been done here in congress on the fast and furious gunwalking debacle, we were met with a claim of executive privilege by the attorney general that was then embraced by the president of the United States even though there was no indication whatsoever that the president or high level people at the white house were actually