JEFF SESSIONS NOMINATION HEARING: COMMITTEE ISO 1330 - 1530
and it's a responsibility of the military to protect the United States from people who attack us.
GRAHAM:
Do you believe the treats to the homeland are growing or lessening?
SESSIONS:
I believe they are growing and we're seeing that now in Europe and we're also seeing it right here in America.
GRAHAM:
Do you support the continuation of Gitmo as a confinement facility for foreign terrorists?
SESSIONS:
Senator Graham, I think it's designed for that purpose, it fits that purpose marvelously well, it's a safe place to keep prisoners, we've invested a lot of money in that and I believe it could be -- it should be utilized in that fashion and have opposed the closing of it. But as attorney general...
PROTESTER:
No! In the name of humanity (ph)...
GRAHAM:
I just wanted to see if they were still listening.
PROTESTER:
(OFF-MIKE)
GRAHAM:
I think they're on the fence about Gitmo, but I'm not sure.
(LAUGHTER)
Let me tell you, I support this administration's effort to make sure we prosecute terrorism as a military action, not a law enforcement action. They're not trying to steal our cars or rob your bank account, they're trying to destroy our way of life and I hope you'll go after them without apology, apply the law, and the law is the law of war, not domestic criminal law. You'll have a friend in Senator Graham if you intend to do that.
Cyber attacks, do you think the Russians were behind hacking into our election?
SESSIONS:
I have done no research into that. I know just what the media says about it.
GRAHAM:
Do you think you could get briefed any time soon?
SESSIONS:
Well, I'll need to.
GRAHAM:
I think you do too. You like the FBI?
SESSIONS:
Do I like them?
(LAUGHTER)
GRAHAM:
Yeah.
SESSIONS:
Some of my best friends are FBI...
GRAHAM:
Do you -- do you generally trust them?
SESSIONS:
Yes.
GRAHAM:
Are you aware of the fact that the FBI has concluded that it was the Russian intelligence services who hacked into the DNC and Podesta's e-mails?
SESSIONS:
I do understand that.
GRAHAM:
From your point of...
SESSIONS:
At least that's what's been reported and I've not been briefed by them...
GRAHAM:
Right.
SESSIONS:
... on the subject.
GRAHAM:
From your point of view, there's no reason for us to be suspicious of them?
SESSIONS:
Of their decision?
GRAHAM:
Yeah.
SESSIONS:
I'm sure it was honorably reached.
GRAHAM:
How do you feel about a foreign entity trying to interfere in our election? I'm not saying they changed the outcome but it's pretty clear to me they did? How do you feel about it, what should we do?
SESSIONS:
Senator Graham, I think it's a significant event. We have penetration apparently throughout our government by foreign entities. We know the Chinese revealed millions of background information on millions of people in the United States and these, I suppose, ultimately are part of international, big-power politics.
But it -- when a nation uses their improperly gained or intelligence-wise gained information to take policy positions that impact another nation's Democracy or their approach to any issue, then that raises real serious matters.
It's -- really, I suppose, goes in many ways to the State Department, our Defense Department, in how we as a nation have to react to that which would include developing some protocols where when people breach our systems that a price is paid even if we can't prove the exact person who did it.
GRAHAM:
I agree, I've got 20 seconds left. I've known you for, I guess, 15 years now and we've had a lot of contests on the floor and sometimes we agree, sometimes we don't.
I'm from South Carolina so I know what it's like sometimes to be accused of being a conservative from the South, that means something other than you're a conservative from the South. In your case, people have fairly promptly tried to label you as a racist or a bigot or whatever you want to say.
How does that make you feel? And this is your chance to say something to those people.
SESSIONS:
Well, that does not feel good.
PROTESTER:
(OFF-MIKE)
GRASSLEY:
If nothing else, I'm clearing the room for you.
(LAUGHTER)
GRAHAM:
And I would suggest that the freedom of speech also has some courtesy to listen.
So what's your answer?
SESSIONS:
Senator Graham, I appreciate the question.
You have a Southern name, you come from South Alabama; that sounds worse to some people, South Alabama. And when I came up as a United States attorney, I had no real support group. I didn't prepare myself well in 1986 and there was an organized effort to caricature me as something that wasn't true. It was very painful. I didn't know how to respond and didn't respond very well.
I hope my tenure in this body has shown you that the caricature that was created of me was not accurate. It wasn't accurate then and it's not accurate now.
And I just wanted you to know that as a Southerner who actually saw discrimination and have no doubt it existed in a systematic and powerful and negative way to the people -- great millions of people in the South particularly of our country, I know that was wrong. I know we need to do better. We can never go back. I am totally committed to maintain the freedom and equality that this country has to provide to every citizen and I will assure you that that's how I will approach it.
GRASSLEY:
Senator Durbin.
DURBIN:
Thank you, Mr. Chairman.
Senator Sessions, let me first say it's -- I'm glad that you brought your family with you today. It's a beautiful family with your wife and your son and daughters and those four beautiful little granddaughters. You kept them as quiet as you could for as long as you could, so thank you so much for being here today. I'm sure it was great moral support and part of your effort here today.
When you came by my office last week, I talked to you about a man named Alton Mills, and with permission of the chair, I'd like to -- he's my guest today -- ask Mr. Mills if he'd please stand up. Alton, thank you for being here today. I'd like to tell you story so you can understand my question a little better. When Alton Mills was 22-years-old, unemployed, he made a bad decision; he started selling crack-cocaine on the streets of Chicago.
He was arrested twice for possession of small amounts of crack-cocaine. The third time that he was arrested, the kingpins who had employed him turned on him, and as a consequence, he ended up being prosecuted under the three strikes and you're out law. At the age of 22 -- pardon me -- the age of 24, he was sentenced to life without parole.
He had never been in prison before, and as I mentioned, there were no allegations made against him other than possession and sale. No violence, no guns, nothing of that nature.
Alton Mills ended up, despite the sentencing judge's admonition that he believed this was fundamentally unfair and his hands were tied, Alton Mills ended up spending 22 years in federal prison until December 2015 when President Obama commuted his sentence. He was finally able to go home to his family.
Senator Sessions, seven years ago, you and I co-sponsored a bill known as The Fair Sentencing Act, which Senator Collins referenced earlier, and that reduced the brutal sentencing disparity for crack-cocaine crimes over powder cocaine. It was originally 100 to 1. We agreed, in the Senate gym I might add, to bring that down to 18 to 1.
Inmates, overwhelmingly African-American, were spared thousands of prison years because of our joint effort to end this injustice, yet when I asked you to join me in appealing to the sentence commission -- sentencing commission to follow our law and when I asked you to join Senator Grassley and me in permitting the almost 5,000 still serving under this unfair 100 to one standard to petition individually for leniency, you refused.
And you said of President Obama's pardoning of people like Alton Mills. and I quote, "President Obama continues to abuse executive power in an unprecedented reckless manner to systemically release high-level drug traffickers and firearms felons. So-called low-level non-violent offenders simply do not exist in the federal system," you said.
DURBIN:
Senator Sessions, Alton Mills and many more just like him do exist. So if you refuse to even acknowledge the fundamental injustice of many of our sentencing laws, why should you be entrusted with the most important criminal prosecution office in America?
SESSIONS:
Senator Durbin, I think that's rather unfair, based on our relationship and how we work together.
In 2001, I introduced legislation very similar to the bill that you and I successfully made law. It would have reduced it to 20 to 1, our bill went to 18 to 1. A little better, but fundamentally that I was criticized by the Bush Department of Justice. My legislation was opposed by them. It was seven years later or so or really longer before our bill ever passed.
So I stepped out against my own Republican administration and said openly on the floor of the Senate that I believe that these crack cocaine laws were too harsh, with -- and particularly it was disadvantageous to the African-American community where most of the punishments were falling and it was not fair and we ought to fix it.
So, I just want to say, I took a strong stand on that and I did not agree. You and I did not agree on the retroactivity because a lot of these were plea bargain cases and may not have been totally driven by the mandatory minimums. But, so -- I thought the court had basically now agreed that it is retroactive. I don't know what group is not being covered by it, but a large group was covered by a court decision. We sort of left it open, as I remember.
DURBIN:
We did.
SESSIONS:
You and I discussed...
DURBIN:
Let me see, in the -- on the issue of fairness, I will acknowledge you stepped out on this issue and you and I both recognize the brutal injustice of 100 to 1 and we agreed on 18 to 1. That's how laws are made.
And now, we have 5,000 prisoners sitting in federal prison still there under this brutal unjust 100 to 1, and all I've asked and all Senator Grassley's asked, allow them as individuals to petition to the judge, to the prosecutor, to the Department of Justice so that their sentences can be considered. That's something you've opposed.
So in fairness, tell me why you still oppose that.
SESSIONS:
Well, first, I would tell you with absolute certainty that if -- it is a decision of this body. It's not the attorney general's decision about when and where a mandatory minimum is imposed and whether it can be retroactively be altered. So I will follow any law that you pass, number one.
Number two, I understood the sincere belief you had on that issue and it was a difficult call and that's why we really never worked it out. So I understand what you're saying, but I did believe that you are upsetting finality in the justice system, that you are suggesting that these kind of factors were not considered when the plea bargaining went down. So it's an honorable debate to have and I respect your position on it.
DURBIN:
Senator, you have been outspoken on another issue and I would like to address it, if I could. I have invited here today Sergeant Oscar Vazquez, if he would be kind enough to stand up and be recognized. Sergeant, thank you for being here.
I'll tell you his incredible story in the short form. Brought to the United States as a child, in high school, he and three other DREAMers started a robotics club and won a college-level robotics competition -- they made a movie out of his story. He graduated from Arizona State University with an engineering degree. The Obama administration granted him a waiver and allowed him to become a citizen and enlist in the United States Army where he served in combat in Afghanistan.
Senator Sessions, since joining the Senate in 1997, you've voted against every immigration bill that included a path to citizenship for the undocumented. You described the DREAM Act, which I introduced 15 years ago to spare children who are undocumented through no fault of their own, as quote, "a reckless proposal for mass amnesty."
You opposed the bipartisan comprehensive immigration reform bill, which passed the Senate four years ago. You've objected to immigrants volunteering to serve in our armed forces, saying, quote, "In terms of who's going most likely to be a spy, somebody from Coleman, Alabama or somebody from Kenya."
DURBIN:
When I asked what you would do to address the almost 800,000 DREAMers, like Oscar Vasquez, who would be subject to deportation if President Obama's executive order was repealed, you said, quote, "I believe in following the law. There is too much focus on people who are here illegally and not enough on the law."
Senator Sessions, there's not a spot of evidence in your public career to suggest that as attorney general, you would use the authority of that office to resolve the challenges of our broken immigration system in a fair and humane manner. Tell me I'm wrong.
SESSIONS:
Well, you are wrong, Senator Durbin. I'm going to follow the laws passed by Congress.
As a man of policy, we disagreed on some of those issues. I do believe that if you continually go through a cycle of amnesty, that you undermine the respect for the law and encourage more illegal immigration into America.
I believe the American people spoke clearly in this election. I believe they agreed with my basic view, and I think it's a good view, a decent view, a solid legal view for the United States of America that we create a lawful system of immigration that allows people to apply to this country, and if they're accepted they get it, if they're not accepted they don't get in. And I believe that's right and just and the American people are right to ask for it. We have not delivered that for them.
DURBIN:
Senator Graham asked this question and I listened to your answer. When he asked you what would happen to those 800,000 currently protected by President Obama's executive order, known as DACA, who cannot be deported for two years -- it's renewable -- and can work for two years, and you said, "Let Congress pass a comprehensive immigration reform bill."
You opposed the only bipartisan effort that we've had on the Senate floor in modern memory. And what's going to happen to those 800,000 if you revoke that order and they are subject to deportation tomorrow? What is going to happen to them? What is the humane legal answer to that?
SESSIONS:
Well, the first thing I would say is that my response to Senator Graham dealt with whose responsibility this is. I had a responsibility as a member of this body to express my view and vote as I believed was correct on dealing with issues of immigration. That's not the attorney general's role, the attorney general's role is to enforce the law.
And as you know, Senator Durbin, we're not able financially or any other way to seek out and remove everybody that's in the country illegally.
President Trump (sic) has indicated that criminal aliens, like President Obama indicated, certainly are the top group of people, and so I would think that the best thing for us to do, and I would urge colleagues that we understand this, let's fix this system. And then we can work together after this lawlessness has ended and then we can ask the American people and enter into a dialogue about how to compassionately treat people who've been here a long time.
DURBIN:
That does not answer the question about 800,000 that would left in the lurch, whose lives would be ruined while you're waiting on Congress for a bill that you opposed.
SESSIONS:
Well, I thought it did answer it pretty closely (inaudible) what you ask and I understand your concerns.
GRASSLEY:
Senator Cornyn.
CORNYN:
Senator Sessions, congratulations to you and your family on this once in a lifetime honor to serve as the head of the Department of Justice.
You know, sitting here listening to the questions and some of the comments that have been made, both by the protesters and others, it strikes me that many people have been surprised to learn more about your record, your outstanding record as a prosecutor, as somebody who treated that responsibility to uphold enforce the law in the Constitution without fear or favor. I think some people here listening today have been somewhat surprised by your record in complete context.
Those of us who have served with you in this Senate, some as many as 20 years, like Senator Shelby and Senator Collins, testified to your character. But I'd like to think that those of us who served with you most closely in the Senate, particularly here on the Judiciary Committee, know more about you than just your record and your character, we know your heart. We know what kind of person you are.
CORNYN:
You're a good and decent and honorable man. You've got an outstanding record that you should be proud of, and I know you are and you should be. For example, when somebody says when you unfairly prosecuted some African-Americans for voter fraud in Alabama, it strikes me as incomplete is the most charitable thing I can say, when they leave out the fact that the very compliance in that case were also African-Americans.
In other words, the people you prosecuted were African-Americans, but the people whose voting rights you were trying to vindicate were African-Americans, isn't that correct?
SESSIONS:
That is correct.
CORNYN:
Does that strike you as a fair characterization of your approach toward enforcing the law that people would leave that important factor out?
SESSIONS:
It's not, Senator Cornyn and it's been out there for a long time. If you ask people who casually follow the news, they probably saw it otherwise.
And these were good people who had tried -- asked me to get involved this case in 2002. A majority African-American Grand Jury, with African-American foreman, asked the federal government to investigate the 1982 election.
I declined, I hope that that investigation would've stopped the problem. But two years later, the same thing was happening again. We had African-American incumbent officials pleading with us to take some action. We approached the Department of Justice in Washington.
The vote -- the public integrity voting sanction, they approved an investigation and it developed into a legitimate case involving charges of vote fraud, taking absentee ballots from voters, opening them up and changing their vote and casting them for somebody they did not intend the vote to be cast for.
It was a voting rights case. And I just feel like we tried to conduct ourselves in the right way. I never got in the argument of race or other matters. I just tried to defend myself as best I could.
I would note colleagues, in just in the last few days, the son of Albert (sic) Turner has written a letter and said I was just doing my job and he understood the reason and justification for the prosecution and that that would be a good attorney general. So I was -- that was gratifying to me and that's the real truth to the matter.
CORNYN:
Senator Sessions, I know the nature of these confirmation hearings is that people pick out issues that they're concerned about or where there may be some good faith disagreement on policy. And that's what they focus on.
But lemme just ask you maybe it's not a great analogy, but lemme try any way. You have been married to your wife Mary, almost 50 years, right?
SESSIONS:
Well, it hadn't gotten to 50 yet, 47...
(CROSSTALK)
CORNYN:
OK. Well, that's a good run. Let me just ask you...
SESSIONS:
Let it continue, I've been blessed.
CORNYN:
Are there occasion where you and your wife disagree?
SESSIONS:
No Senator.
(LAUGHTER)
(UNKNOWN)
You're under oath.
SESSIONS:
Wait a minute, I'm under oath. On occasion we do, yes.
CORNYN:
Would you think it would be fair to characterize the nature of your relationship with your wife based upon those handful of disagreements that you've had with her over -- over time?
SESSIONS:
That's a good point. Thank you for making it. No I don't.
CORNYN:
Well, and to your original point, your wife is always right, correct?
SESSIONS:
That is correct.
CORNYN:
You are under oath.
(LAUGHTER)
Well, so this is the nature of this -- these confirmation hearings, people are identifying specific issues where there are policy differences. But my point is, that does not characterize your entire record of 20 years in the United States Senate or how you've conducted yourself as a prosecutor, representing the United States government in our Article III courts.
Let me get to a specific issue, a couple in the time I have remaining. I was really, really pleased to hear you say in your opening statement, that many in law enforcement feel that our political leaders have on occasion, abandoned them.
You said police ought to be held accountable. But do you believe it is ever, under any circumstances, appropriate for somebody to assault a police officer, for example?
SESSIONS:
Adversely, no on defense for that kind of action. And I do believe that we are failing to appreciate police officers who place their lives at risk, as this sergeant was just killed yesterday trying to deal with a violent criminal and vindicate the law and she was killed.
That is the kind of thing that too often happens. We need to be sure that when we criticize law officers, it is narrowly focused on the right basis for criticism and to smear whole departments, places those officers at greater risk.
And we are seeing an increase in murder of police officers, it was up 10 percent last year. So I could just say, I could feel -- I could feel in my bones, how it was going to play out in the real world when we had, what I thought often times, was legitimate criticism of a perhaps, wrong doing by an officer. But spilling over to a condemnation of our entire police force and morale has been affected.
And its impacted the crime rates in Baltimore and crime rates in Chicago. I don't think there's any doubt about it. I regret that's happening, I think it can be restored. But we need to understand the requirement that the police work with the community and be respectful of their community, but we as a nation, need to respect our law officers too.
CORNYN:
Well, I for one, appreciate your -- your comments because we ought to hold our police and law enforcement officers up in the high regard to which they deserve based on their service to the communities.
And your comments remind me to some extent of Chief David Brown's comments, the Dallas police chief, following the tragic killing of five Dallas police officers recently.
Where he said that police ought to be held accountable, but under no circumstances could any assault against a police officer be justified based on what somebody else did, somewhere at some time. So, I for one, appreciate that very much.
You mentioned Baltimore and Chicago. And we've seen an -- an incredible number of people, frequently in minority communities, who've been killed as results of crimes related to felons who perhaps are in possession of guns that they have no legal right to be in possession of.
Earlier, you talked about prosecuting gun crimes and I'm glad to hear you say that. Project Exile, which originated I think in Richmond, Virginia which targeted felons and other people who cannot legally own or possess firearms, was enormously effective.
And when I look at the record of the last five and 10 years as the Justice Department, prosecution of those kinds of crimes down 15.5 percent, in the last five years. Down 34.8 percent in the last 10 years.
Can you assure us that you will make prosecuting those people who cannot legally posses or use firearms a priority again in the Department of Justice? And help break back of this crime wave that's affecting so many people in our local communities, like Chicago or Baltimore and particularly minority communities?
SESSIONS:
I can, Senator Cornyn. I'm familiar with how that plays out in the real world. My best judgment colleagues, is that properly enforced, the federal gun laws can reduce crime and violence in our cities and communities.
It was highlighted in Richmond in Project Exile. But I have to tell you, I've always believed that. When I was the United States attorney in the '80s and into the early '90s, we had a -- we produced a news letter that went out to all local law enforcement called Project Triggerlock. It went to federal law enforcement, too.
And it highlighted the progress that was being made by prosecuting criminals who use guns to carry out their crimes. Criminals are most likely the kind of person that will shoot somebody when they go about their business. And if those people are not carrying guns because they believe they might go federal court, be sent to a federal jail for five years, perhaps they'll stop carrying those guns during that drug dealing and their other activities that are criminal.
Fewer people get killed. Fewer people get killed. So I truly believe, that we need to step that up. It's a compassionate thing. If one of these individuals carrying a gun shoots somebody, not only is there a victim, they end up with hammering senates in jail for interminable periods. The culture, the communities are safer with fewer guns in the hands of criminals.
CORNYN:
Thank you.
GRASSLEY:
Before we go to Senator Whitehouse, people have asked -- members have asked me about our break. And if it's OK with Senator Sessions, it would work out about 1:00, if we have three on this side and three on this side, for the one hour because it's noon right now. Is that OK with you, Senator Sessions?
SESSIONS:
Mr. Chairman, I'm at your disposal.
GRASSLEY:
And so this will give my colleagues an opportunity that want to go to the respective political party caucuses to go and we would take a recess of about 30 to 40 minutes.
SESSIONS:
That's very fair.
GRASSLEY:
OK. Thank you, Senator.
So then, now Senator Whitehouse?
WHITEHOUSE:
Senator Sessions, hello.
SESSIONS:
Thank you, Senator Whitehouse.
WHITEHOUSE:
When we met, I told you that I was going to ask you a particular question. So I'm going to lead off with that particular question.
Following the Gonzales scandals at the Department of Justice; the department adopted procedures, governing communications between the White House and the Department of Justice; consistent with constraints that were outlined years ago in correspondence between Senator Hatch and the Reno Justice Department. Limiting contacts between a very small number of officials at the White House and a very small number of officials at the Department of Justice.
Will you honor and maintain those procedures at the Department of Justice?
SESSION:
I will, Senator Whitehouse. You, as an honorable and effective United States attorney yourself, know how that works and why it's important. Attorney General Mukasey issued a firm, very...
(CROSSTALK).
WHITEHOUSE:
Yes.
SESSION:
... may be still pending. And I would say to you, well that's the appropriate way to do it. I read -- after you and I talked I read Reno memorandum, the Gorelick (ph) memorandum. And I think I would maintain the -- those rules.
WHITEHOUSE:
On the subject of honorable prosecutions, when is it appropriate for a prosecutor to disclose derogatory investigative information about a subject who was not charged?
SESSION:
That's a very dangerous thing and it's a pretty broad question as you've ask it. But you need to be very careful about that and there are certain rules like grand jury rules that are very significant.
WHITEHOUSE:
And isn't it also true that it is customary practice, because of the concern about the improper release of derogatory investigative information; that the department customarily limits its factual assertions, even after an individual has been charged, to the facts that were charged in the information or the indictment.
SESSION:
I believe that's correct, yes. That's a standard operating policy in most offices. Now there may be some exceptions, but I think that's standard operating procedure in the United States attorney's offices like you and I had.
WHITEHOUSE:
As a question of law, does waterboarding constituted torture?
SESSION:
Well, there was a dispute about that when we had had the torture definition in our law. The Department of Justice memorandum concluded it did not necessarily prohibit that. But Congress has taken an action now that makes it absolute improper and illegal to use waterboarding or any other form of torture in the United States by our military and by all our other departments and agencies.
WHITEHOUSE:
Consistent with the wishes of the United States military.
SESSION:
They have been supportive of that. And in fact, I'll just take a moment to defend the military. The military never...
(CROSSTALK)
WHITEHOUSE:
You don't need to defend them from me, I'm all for our military.
SESSION:
I know, but I just -- most -- so many people, I truly believe, think that the military conducted waterboarding. They never conducted any waterboarding, that was by intelligence agencies. Their rules were maintained. I just to teach the Geneva conventions and the rules of warfare as an Army Reservist to my personnel, and the military did not that.
WHITEHOUSE:
And General Petraeus sent a military wide letter disavowing the value of -- of torture, as we -- as we both know. Another question -- another question as a matter of law; is fraudulent speech protected by the First Amendment?
SESSION:
Well, fraudulent speech, if it amounts to an attempt to obtain a thing of value for the person the fraudulent speech is directing...
WHITEHOUSE:
Which is an element of fraud...
SESSION:
... absolutely -- fraud and can be prosecuted. And I think we see too much of that. We see these phone calls at night to elderly people, we see mail -- mailings go out that seem to be to be awfully far from truth and seducing people to probably make unwise decisions.
WHITEHOUSE:
So fraudulent corporate speech would also not be protected by the First Amendment.
SESSION:
That is correct. And it's subject to civil and/or criminal complaint.
WHITEHOUSE:
And speaking of civil complaints; was the Department of Justice wrong when brought and won the civil RICO action against the tobacco industry?
SESSION:
Well, Senator, they won those cases. They took them to court and eventually won a monumental victory, that is correct. And it's part of the law...
WHITEHOUSE:
Hard to say that...
SESSION:
... and firmly established.
WHITEHOUSE:
Hard to say they were wrong if they won, right?
SESSIONS:
That's correct.
WHITEHOUSE:
As you know, the United States has retaliated against Russia for its interference with the 2016 elections. In Europe, Baltic States, Germany and Italy have raised concerns of Russia meddling in their country's elections.
I know this has been touched on before, but I want to make sure it's clear. Will the Department of Justice and the FBI under your administration be allowed to continue to investigate the Russian connection, even if it leads to the Trump campaign and Trump interests and associates?
And can you assure us that in any conflict between the political interests of the president and the interests of justice, you will follow the interests of justice, even if your duties require the investigation and even prosecution of the president, his family and associates?
SESSIONS:
Well, Senator, why ask? If the laws violated and they can be prosecuted then of course you'll have to handle that in an appropriate way.
I would say that they problem may turn out be, as in the Chinese hacking of our -- hundreds of thousands of -- maybe millions of records, has to be handled at a political level. And I do think it's appropriate for a nation who feels that they've been hacked and that information has been improperly used to retaliate against those actions.
It's just a...
WHITEHOUSE:
And I know we share a common interest in advancing the cybersecurity of this nation and I look forward to continuing to work with you on that.
Let me ask you a factual question. During the course of this boisterous political campaign, did you ever chant, "lock her up?"
SESSIONS:
No I did not. I don't think. I heard it in rallies and so forth, sometimes I think humorously done. But it was a matter that I -- have said a few things -- a special prosecutor, I favored that. I think that probably is one of the reasons I believe that I should not make any decision about any such case.
WHITEHOUSE:
And you understand that the good guy law man in the movies is the one who sits on the jailhouse porch and doesn't let the mob in?
SESSIONS:
Exactly. Exactly.
WHITEHOUSE:
So I'm from Rhode Island, as you know Senator. We have NAACP and ACLU members who've heard you call their organization -- who've heard that you called their organizations un-American.
We have a vibrant Dominican community who look at Big Papi, David Ortiz, swinging his bat for the Red Socks and wonder why you said, quote, "almost no one coming from the Dominican Republic to the United States is coming here because they have a provable skill that would benefit us."
I represent a lot of Latinos who worry about modern day Palmer Raids breaking up parents from their kids. And Muslims who worry about so called patrols of Muslim homes and neighborhoods.
And I've heard from police chiefs who worry that you, as attorney general, will disrupt law enforcement priorities that they have set out. And disrupt the community relations that they have worked hard over years of community engagement to achieve.
Time is short, but I noticed that in your prepared remarks these are not unforeseeable concerns. And your prepared remarks did very little to allay the concerns of those people.
Is there anything you'd like to add now in our closing minute?
SESSIONS:
Well, thank you. The -- my comment about the NAACP arose from a discussion that I had where I expressed concern about their statements that were favoring, as I saw it, Sandinista efforts and communist guerrilla efforts in Central America.
And so I said they could be perceived as un-American and weaken their moral authority to achieve the great things they had been accomplished in -- in integration, in moving forward for reconciliation throughout the country.
And I believe that, clearly. And I never said and accused them of that. Number two, with regards...
WHITEHOUSE:
So what would you tell (inaudible) of the NAACP in Rhode Island right now? He's head of the NAACP.
SESSIONS:
Well, I would say, please, look at what I've said about that and how that came about and it was not in that context, it was not correct. I said in 1986 that NAACP represents one of the greatest forces for reconciliation and racial advancement of any entity in the country, probably number one. That's what I said then, I believed it and I believe it now and it's an organization that has done tremendous good for us.
With regard to the Dominican Republic, I had gone on a CODEL with Senator Specter. We came through the Dominican Republic. We visited public service housing projects that seemed to be working and did other things of that nature. And I went and spent some time with the consular official there, just ask him about things. And what I learned was, that there's a good bit of fraud in it and he was somewhat discouraged in his ability to -- he felt to do his job.
And we also understood and discussed that the immigration flow is not on a basis of skills. Immigration flow from almost all of our countries, frankly, is based on a family connection and other visas rather than a skilled-based program more like Canada has today, and that's all I intended to be saying there.
I -- I -- it's -- tell anybody that heard that statement, please don't see that as a diminishment or a -- a criticism of the people of the Dominican Republic. It was designed to just discuss, in my remarks, the reality of our immigration system today. I'd like to see it more skilled-based and I think that would be helpful.
WHITEHOUSE:
Mr. Chairman, my time's expired. Thank you for your patience.
GRASSLEY:
Thank you, Senator Whitehouse.
Before I go to Senator Lee, there's an evaluation of the work of Senator Sessions during his time as U.S. attorney that I speak -- I think speaks to his outstanding record. I'm made aware of this because Senator Feinstein requested an evaluation of Senator Sessions' office from the Department of Justice and I'd note just a few points from their evaluation back in 1992, a couple of short sentences.
"All members of the judiciary praise the U.S. attorney for his advocacy, skills, integrity, leadership of the office and accessibility." And the second quote, "The USAO for the Southern District of Alabama is an excellent office with outstanding leadership, personnel and morale. The district is representing the United States in a most capable and professional manner."
Without objection, we'll put that in the record.
Senator Lee.
(UNKNOWN)
Mr. Chairman, while we're putting things into the record, could I join...
GRASSLEY:
Yes, please do that.
(UNKNOWN)
... and ask unanimous consent that a December 5, 2016 letter from leaders of the U.S. Environmental Movement and a January 5, 2017 letter from the National Task Force to End Sexual Violence and Domestic Violence Against Women be added to the record?
GRASSLEY:
Yes. And those will be included without objection.
Senator Lee.
LEE:
Hello, Senator Sessions.
SESSIONS:
Hello.
LEE:
I've enjoyed working with you over the last six years and always found you to be someone who treats colleagues, regardless of differing viewpoints, with dignity and respect. You've taught me a great deal in the six years I've been here and I've appreciated the opportunity to work with you. I think a lot of this has to do with the fact that we're both lawyers, although being a lawyer around here, certainly having a law degree, is not unusual.
One of the things that sets you apart and makes you different, I get the sense from you that you think of yourself not so much as a senator who used to be a lawyer, but as a lawyer who is currently serving as a senator. And I think that's an important thing, especially for someone who's been named to be the next attorney general of the United States.
Even though you and I have never had the opportunity to discuss the intricacies of the rule against perpetuities or the difference between the doctrine of worthier title (ph) in the rule in Shelly's (ph) case, I get the sense that you would eagerly engage in such banter when the occasion arises. So maybe in a subsequent round, we'll have the opportunity to do that.
But this does raise a -- a discussion that I'd like to have with you about the role of the lawyer. As you know, a -- a lawyer understands who his or her client is. Anytime you are acting as a lawyer, you -- you've got a client. This is a simple thing if you're representing an individual because in almost every instance, unless the client is incapacitated, you know who the client is. The client has one mouthpiece, one voice, and you know what the interests of that client are and you can evaluate those based on the interests expressed by the client.
I gets a little more complicated when you're representing a corporate entity. Typically, you'll interact either with a general counsel or the chief executive officer. The bigger an entity gets, the more complex it gets. There might be some ripples in this relationship between the lawyer and the client.
In the case of the U.S. government and the attorney general's representation of that client, this is a particularly big and powerful client, and that client has many interests. In a sense, the client is, of course, the United States of America, but at the same time the attorney general is there, put in place by the president of the United States and serves at the pleasure of the president of the United States.
And so, in that respect, the attorney general has several interests to balance and must at once regard him or herself as a member of the president's Cabinet, remembering how the attorney general got there and can be removed at any moment by the president. And at the same time, the attorney general has the obligation to be independent, to provide an independent source of analysis for the president and for the president's team and Cabinet.
How do you understand these things as a former U.S. attorney, as a former line prosecutor and as a senator who served on the Judiciary Committee? You've had a lot of opportunities to observe this process. How do you see the proper balancing between all these interests from the standpoint of the attorney general?
SESSIONS:
That's a very insightful or probing question, and it touches on a lot of important issues that we, as attorney general, would need to deal with.
There are even sometimes these government agencies, like foreign countries, they negotiate memorandums of understanding that are akin to a treaty actually. They can't seem to work together, often times, in an effective way, and so the attorney general is required to provide opinions on that. The attorney general ultimately owes his loyalty to the integrity of the American people and to the fidelity to the Constitution and the legitimate laws of the country. That's what he's ultimately required to do.
However, every attorney general has been appointed by a president, or they wouldn't become attorney general. And they've been confirmed by the Senate or they wouldn't be made attorney general. And so, they do understand, I think, that if a president wants to accomplish a goal that he or she believes in deeply, then you should help them do it in a lawful way, but make clear and object if it's an unlawful action. That helps the president avoid difficulty. It's the ultimately loyalty to him.
And you hope that a president -- and I hope President-elect Trump has confidence in me so that if I give him advice, that something can be done or can't be done, that he would respect that. That's an important relationship too. But ultimately, you are bound by the laws of the country.
LEE:
Some of that, I assume, could come into play when you're dealing with a politically sensitive case or a case that is politically sensitive because it relates to a member of the administration or to the interplay between the executive branch and the legislative branch for example.
In some of those instances, there could be calls for a special prosecutor. On the one hand, this is a way of taking the attorney general out of the equation so that it can be handled in a manner that reflects a degree of separation between the administration and -- and the case. On the other hand, there are constitutional questions that are sometimes raised and sometimes people argue that this place is too much of a presumption that a special prosecutor will seek an indictment in order to justify the expense and the time put into appointing a special prosecutor.
For reasons that relate to the complexity of these considerations, there are of course guidelines in place that can help guide the determination to be made by the attorney general as to when, whether, how to put in place a special prosecutor. But even within these guidelines, there's a lot of flexibility, a lot of discretion at the hands of the attorney general in deciding how to do that.
Do you have anything you -- that you would follow? What can you tell us about what considerations you would -- would consider in deciding whether or not to appoint a special prosecutor?
SESSIONS:
Well, it is a -- not a little matter. It is a matter that's created controversy over the years.
I don't think it's appropriate for the attorney general just to willy nilly create special prosecutors. History has not shown that has always been a smart thing to do. But there are times when objectivity is required and the absolute appearance of objectivity is required, and perhaps, a special prosecutor is appropriate.
SESSIONS:
It -- the -- Attorney General Lynch, for example, did not appoint a special prosecutor on the Clinton matter and I did criticize that.
I was a politician. We had a campaign on. I didn't research the law in depth; it was just the reaction as a senator of a concern.
But there are -- should be -- great care should be taken in deciding how to make the appointment or if an appointment of a special prosecutor is required.
The Department of Justice, you're not required to be a judge, to be a prosecutor. One judge said there's nothing wrong with a prosecutor who likes his work and doesn't think laws should be violated. Is that a bias? I don't think so, I think that's strength. So I just would say that's kind of the way -- the best I can give you at this point, Senator Lee.
LEE:
Thank you. That's helpful.
Another challenging issue that relates to this duty of independence that attorneys general have relates to the Office of Legal Counsel. You know, it's of course -- the job of the Office of Legal Counsel, or OLC, as it's sometimes known, to issue opinions within the executive branch in a wide array of subjects. Some are subjects that a lot of people would find interesting.
Others are subjects that only a lawyer could love. And sometimes only a lawyer specializing in something esoteric or specific. There's -- one recent OLC opinion entitled "Completive Bidding Requirements Under the Federal Highway Aid Program," there aren't perhaps that many people who would find that interesting, but there are a lot of others that would capture immediately the public's interest.
What's significant about all of these though, no matter how broad or narrow the topic, no matter how politically sexy or dull the topic might be, they, in many instances almost conclusively resolve a legal question within the executive branch of government. And in many instances they're doing so on the basis of constitutional determinations that may or may not ever be litigated.
Such that the broaching of a constitutional topic might opened, studied and resolved entirely within the executive branch, largely as a result of how the lawyers within the Office of Legal Counsel decide to do their jobs.
What -- what can you tell me about what you would do, if confirmed, to ensure that the Office of Legal Counsel maintains degree of professional and independence requisite for this task?
SESSIONS:
Senator Lee, that office is important. It does adjudicate or actually opine on important issues related to conflicts of disputes within the great executive branch of the American government. Like you said, what kind of competition is required before you get a highway grant? There may be disagreement about that. OLC has asked to review it, and -- and stayed at one position. The government of the United States is wanting to. It's not a multiple government. These departments are not independent agencies.
And so that does -- that office is so exceedingly important as you indicate, because many times those opinions hold and they set policy and they effect things. Sometimes it also has the power and I'm sure you would be sensitive to, to expand or constrict the bureaucracies in their ability to execute under statutes.
In other words, is this within their power or is it not within their power? So there's some of the things like that that can impact the American people overtime in a significant way.
LEE:
Thank you.
GRASSLEY:
Senator Klobuchar?
KLOBUCHAR:
Thank you very much, Mr. Chairman.
Good to see you Senator Sessions. You and I have worked together on a number of bills, including leading the International Adoption Simplification Act, which I believe made a big difference to a lot of families in keeping their siblings together when they were adopted.
Senator Cornyn and I led the sex trafficking bill that passed last year and you have some important provisions in that. And then we worked together on law enforcement issues and I appreciate your respect and support that you have from the community and I also thank you for your work on drug courts. It's something we both share as former prosecutors and believe in the purpose of those courts.
KLOBUCHAR:
But I wanted to lead first with another part of the Justice Department's jobs and that's protecting civil rights and the right to vote. My state has the highest voter turnout in the last election of any state. We're pretty proud of that. And as county attorney for eight years, from Minnesota's biggest county, I played a major role in making sure that the election laws were enforced and that people who were able to vote could vote and that people who shouldn't vote, didn't vote.
Since the Voting Rights Act became law more than 50 years ago, we've made progress, but I've been very concerned about some of the movement by states to restrict access to voting in recent years. We haven't been able to pass the bipartisan Voting Rights Advancement Act forward last Congress and I just think it's an area that's going to be ripe for a lot of work going forward.
You and I talked about how at one point, you previously called the Voting Rights Act an intrusive piece of legislation and I wondered if you could explain that as well as talk about how you will actively enforce the remaining pieces of the act. That would be section two which prohibits voting practices or procedures that discriminate on the basis of race and section three, bail in (ph) provision through which most states can be subject to preclearance.
And you don't have to go into great detail on those two sections, you could do it later. But if you could just explain your views of the Voting Rights Act moving forward and what would happen in terms of enforcement if you were attorney general?
SESSIONS:
The Voting Rights Act passed in 1965 was one of the most important acts to deal with racial difficulties that we face and it changed the whole course of history, particularly in the south. There was a clear finding that there was discriminatory activities in the south, that a number of states was systematically denying individuals the right to vote. And you go back into the history and you can see it plainly.
Actions and rules and procedures were adopted in a number of states with the specific purpose of blocking African-Americans from voting and it was just wrong. And the Voting Rights Act confronted that and it in effect targeted certain states and required any -- even the most minor changes in voting procedure, like moving a precinct across...
KLOBUCHAR:
So how would you -- how would you approach this going forward? For instance, the fifth circuits decision that the Texas voter ID law discriminates against minority voters. That was written by a Bush appointee. Do you agree with that decision? How would you handle this moving forward?
SESSIONS:
Well, I have not studied that. There's going to be a debate about it. Courts are ruling on it now and that is voter ID and whether or not that is an improper restriction on voting that adversely impacts disproportionally minority citizens. So that's a matter that's got to be decided.
On the surface of it, it doesn't appear to me to be that. I have publicly said I think voter ID laws properly drafted are OK. But as attorney general, it will be my duty to study the facts in more depth, to analyze the law. But fundamentally, that will -- can be decided by Congress and the courts as they interpret the existing law.
I did vote to extend the Voting Rights Act several years ago. I thought -- and it included section five, but later section five was eliminated by the Supreme Court on the basis that...
KLOBUCHAR:
And how about the...
SESSIONS:
... progress had been made and this -- and our intrusive question, let me answer that.
It is intrusive. The Supreme Court on more than one occasion has described it legally as an intrusive act because it only focused on a certain number of states. And normally, when Congress passes a law, it applies to the whole country. So it's a very unusual thing for a law to be passed that targets only a few states. But they had a factual basis. They were able to show that it was justified in this fashion.
So that's the foundation for it and that's why I supported it -- its renewal.
KLOBUCHAR:
And I think you'll understand as you look at this issue that there are many voters, people who are trying to vote that view some of these rules that are put in place as intrusive for them because it makes it harder for them to vote. And I think that is the balance that you're going to need.
(CROSSTALK)
KLOBUCHAR:
And I just -- I hope -- I just -- coming from a state that has such high voter turnout, that has same day registration, very good turnout in Iowa as well, right below us, states that have put in place some really expansive voter laws and it doesn't mean Democrats always get elected. We've had Republican governors in Minnesota. We have a Republican governor in Iowa. And I just point out that I think the more that we can do to encourage people to vote, the better democracy we have.
KLOBUCHAR:
And I want to turn to another quick question on a democratic issue as in (ph) a democracy issue that was raised by Senator Graham, and as Senator Whitehouse, I just returned with Senator's McCain and Graham from a trip to Ukraine, Baltics, Georgia, and learned there about how these intrusive cyber attacks are not just unique to our country, not just unique to one party, not just unique to one election. And they've seen that movie before in those countries.
And do you have any reason to doubt the accuracy of the conclusion reached by our 17 intelligence agencies that in fact Russia used cyber attacks to attempt to influence this last election? I'm not asking if you believe it influenced it, just if you believe the report of our intelligence agencies.
SESSIONS:
I have no reason to doubt that and have no evidence that would indicate otherwise.
KLOBUCHAR:
Thank you.
Violence Against Women Act, Senator Leahy asked some of those questions really important to me. You and I discussed it. I just have one question there. If confirmed, will you continue to support the lifesaving work being done by the Office on Violence Against Women?
SESSIONS:
Yes.
KLOBUCHAR:
OK. Thank you.
Immigration, you and I have some different views on this and I often focus on the economic benefits of immigration, the fact that we have 70 of our Fortune 500 companies headed by immigrants. At one point, 200 of our Fortune 500 companies were either formed by immigrants or kids of immigrants. Roughly 25 percent of all U.S. Nobel laureates were foreign born.
And just to understand in a state like mine where we have entry level workers in dairies (ph) are immigrants, major doctors at the Mayo Clinic, police officers who are Somali, if you see that economic of immigrants in our society.
SESSIONS:
Well, immigration has been a high priority for the United States. We've been a leading country in the world in accepting immigration. I don't think American people want to end immigration.
I do think that if you bring in a larger flow of labor than we have jobs for, it does impact adversely the wage prospects and the jobs prospects of American citizens. I think as a nation, we should evaluate immigration on whether or not it serves and advances the nation interests, not the corporate interests.
It has to be the peoples interests first and I do think too often we've -- Congress has been complacent in supporting legislation that might make businesses happy, but it also may have had the impact of pulling wages down. Dr. Borjas at Harvard has written about that. I think he's the world's perhaps most effective and knowledgeable scholar and he says that does happen, wages can be diminished.
And one of the big cultural problems we have today is middle class and lower class Americans have not -- lower class (ph) economically -- are not having the wage increases that we'd like to see them have. In fact, since 2000, wages are still down from what they were in 2000.
KLOBUCHAR:
I just see that we can do a mix of making sure that we have jobs for people here and then understanding that we're a country of immigrants.
SESSIONS:
On that subject, you're familiar with Canada.
PROTESTER:
(OFF-MIKE)
KLOBUCHAR:
OK.
PROTESTER:
And we are people of America. You have (inaudible). You are supported by hate groups (inaudible).
KLOBUCHAR:
Mr. Chairman, if I could just have another 30 seconds here, I had one -- one last question.
SESSIONS:
Maybe 45 seconds, Mr. Chairman.
I would just that you've come up close to the Canadian system, I think maybe some of those policies ought to be considered by the United States.
PROTESTER:
(OFF-MIKE)
KLOBUCHAR:
My last question, Mr. Chairman, is on the reporters issue. Free press, I believe, is essential to our democracy and I've always fought to ensure that those rights aren't compromised. My dad was a reporter, a newspaper reporter for years, and I'm especially sensitive to the role of the press as a watchdog.
You've raised concerns in the past about protecting journalists from revealing their sources. You did not support the Free Flow of Information Act. In 2015, the attorney general revised the Justice Department rules for when federal prosecutors can subpoena journalists or their records and he also committed to releasing an annual report on any subpoenas issues or charges made against journalists and committed not to put reporters in jail for doing their job.
If confirmed, will you commit to following the standards already in place at the Justice Department? And will you make that commitment not to put reporters in jail for doing their jobs?
SESSIONS:
Senator Klobuchar, I'm not sure, I have not studied that -- those regulations. I would note that when I was the United States attorney, we knew -- everybody knew that you could not subpoena a witness or push them to be interviewed if they're a member of the media without approval at high levels of the Department of Justice, that was in the 1980s. And so, I do believe the Department of Justice does have sensitivity to this issue.
There have been a few examples where the press and the Department of Justice haven't agreed on these issues, but for the most part, this is a broadly recognized and proper deference to the news media, but you could have a situation in which a media is not really the unbiased media we see today. And they could be a mechanism through which lawful intelligence information is obtained. There are other dangers that could happen with regard to the federal government that normally doesn't happen to the media covering murder cases in the states.
KLOBUCHAR:
All right. Well, thank you. And I'll follow-up with that in a written question when you have a chance...
SESSIONS:
If you would, I would...
KLOBUCHAR:
Thank you, thank you.
GRASSLEY:
I call for the first time on a new member of the committee, Senator Sasse from Nebraska.
SASSE:
Mr. Chairman, thank you, thank you very having me.
Before I get started, I would like to enter into the record a letter of support from 25 current states attorney general, including Doug Peterson, the attorney general from my state of Nebraska. The letter reads in part "no one is more qualified to fill this role than Senator Sessions." This is obviously an important testimony from the top law enforcement officers of 25 states. I ask unanimous consent, Mr. Chairman to include this into the record.
GRASSLEY:
Without objection, it will be included. Precede Senator Sasse.
SASSE:
Thank you.
Senator Sessions, when you were introducing your grandkids -- and I'm amazed that they've stay around as long as they did, mine would have been more disruptive earlier. I was thinking about all the time I spend in schools and we have a crisis in this country of civic ignorance. Our kids don't know basic civics and we have a crisis of public trust in this country, in that many Americans presume that people in the city are overwhelmingly motivated by partisan perspectives, rather than the public good.
Tragically, our current president, multiple times over the last three or four years has exacerbated this political polarization, by saying he didn't have legal authority to do things and subsequently doing exactly those things, quite apart, from peoples policy perspectives on these matters.
This is a crisis when kids don't understand the distinction between the legislative and executive branches, and when American voters don't think that people who serve in these offices take their oaths seriously. It's not quite as simple as Schoolhouse Rock jingles on Saturday morning. But could you at lest start by telling us what you think the place for executive orders and executive actions are?
SESSIONS:
That's a good question, and a good premise that we should think about. People are taught that Schoolhouse Rock is not a bad basic lesson in how the government is supposed to work. Legislatures pass laws, Congress -- the president executes laws, as does the entire administration, as passed by Congress or follows the Constitution and the judicial branch decides disputes. As a neutral umpire, an unbiased -- un-participant -- any if the sides to the controversy and does it objectively.
So I think every day that we get away from that is really dangerous. And it is true that if a president says I do not have this authority or others say the president doesn't have certain authority and then is done by the president, it confuses people. And it's a -- I think colleagues -- we too little appreciate something that's corrosive happening out in our country.
There is a feeling that judges just vote when they get a big case before them on what their political agenda is and not what the Constitution actually requires. That judges can redefine the meaning of words to advance an agenda they haven that may not be the agenda of the American people and that inevitably is corrosive to respect the law.
SASSE:
Thank you, but take it get one step further, because there are going to be many cases, there will be many instances where the administration in which you are likely going to end up serving, will want to do things and they'll want to know what their limits of their executive discretion is.
It's pieces of legislation that have been passed around here in recent years, sometimes are well over a thousand pages, with all sorts of clauses, the secretary shall dot, dot, dot, fill in the law. So this Congress has regularly under reached an invited executive overreach. This Congress has regularly failed to finish writing laws, and then invited the executive branch to do it.
What are some of the markers that you could use to help understand the limits where the executive branch cannot go?
SESSIONS:
We really need to reestablish that. Professor Turley, Jonathan Turley has written about this. It's just powerful, it's certainly an objective voice, an American jurisprudence. And he says that Congress is just falling down on his job.
Now, of course there are two ways. One of them is that it writes laws that are too broad and I would urge all of you to be sure that when we pass a law or you pass a law, if I'm confirmed, that that law is clear and sets limits. When it doesn't set limits, then you can have the secretary of this agency or that agency claiming they have certain authorities and you end up with a very muddled litigation maybe resulting from it.
So re-establishing the proper separation of powers and fidelity to law and to limits is an important issue. And I think hopefully -- I think that's what you're suggesting.
SASSE:
Could you tell me under what circumstances, if any, you think the Department of Justice can fail to enforce a law?
SESSIONS:
Well, it can fail to enforce it by setting prosecutorial policies with regard to declining to prosecute whole chunks of cases, and in fact, eliminate a statute. If a new tax is passed and the Department of Justice says it can't be collected, then the law was not followed.
You also have circumstances in which you can redefine the statute or alter -- if we're talking about improper actions, it could expand the meaning of the words of the statute far beyond what Congress ever intended, and that's an abuse too.
SASSE:
Not to interrupt you too soon, but the improper, but also what is proper because this administration has made the case regularly that they need to exercise prosecutorial discretion because of limited resources. And obviously, there aren't infinite recourses in the world.
So what are some proper instances, in your view, when an administration might not enforce a law?
SESSIONS:
Well, critics of the immigration enforcement, the DAPA and the DACA laws, said that the prosecutorial discretion argument went too far, it basically just eliminated the laws from the books.
Secondly, with regard to that, the president's realm -- the order came from Homeland Security, not from the Department of Justice. But Homeland Security's order not only said we're not going to enforce the law with regard to certain large classifications of people, but those people who had not been given the legal status under the laws of the United States were given photo IDs, work authorization and Social Security numbers and the right to participate in these government programs that would appear to be contrary to existing law.
So that would me -- to me, suggest an overreach.
SASSE:
And in parallel before the courts, what instances would it be legitimate, if any, for the solicitor general to not defend the law in court?
SESSIONS:
That's a very good question, and sometimes, it becomes a real matter.
In general, the solicitor general as part of the Department of Justice and the executive branch, states the position of the Department of Justice. And it has a duty, the Department of Justice does, to defend the laws passed by this body, by Congress. And they should be defended vigorously, whether or not the solicitor general agrees with them or not, unless it can't be reasonably defended.
And so sometimes, you reach a disagreement about whether or it's reasonably defensible or not. But that's the fundamental question and the Department of Justice should defend laws that Congress passed unless it's -- they're unable do so, in a reasonable way.
SASSE:
What is the place of independent agencies in a unified executive branch? And do you envision that you will be making any recommendations to the president to reign in independent agencies in an effort to preserve the constitutional distinction between the powers of the Congress and the administrative responsibilities of an executive branch?
SESSIONS:
Senator, that's a good question, kind of a historic question at this point in time because it does appear to me that agencies oftentimes see themselves as independent fiefdoms. And sometimes you even hear the president complain about things clearly under his control.
I remember President Clinton complaining about the death penalty processes of the Department of -- federal government when he appointed the attorney general who had just appointed a committee to make sure the death penalty was properly carried out.
So I mean, like, who's responsibility is this? You're in charge of -- you can remove the attorney general if you're not happy. So those kind of things do continue out there that we need to be careful about and I thank you for raising it.
SASSE:
I have less than a minute left, so last question but going back to something that Senator Lee was asking about.
Could you give a top line summary of what you view the responsibilities of the OLC to be and what the relationship would be between the OLC, the Office of the Attorney General, and the White House?
SESSIONS:
Well, OLC has statutory duties to make opinions. The OLC team reports to the attorney general, who could reverse I suppose or remove the OLC head, the deputy attorney general, if he thought those -- that department was not following the law.
But essentially, they are given the power as attorney general -- I had an opinions section in Alabama. And they rendered opinions on a whole host of matters when called upon from school boards and highway departments and that sort of thing. So this OLC does represent a key position in the Department of Justice.
They must have extraordinary legal skill. They have to be terrific lawyers. They have to understand the constitutional order of which we are a part and they should render objective decisions day after day, week after week. Ultimately, the responsibility of the president and the attorney general is to ensure that we have that kind of quality at OLC.
SASSE:
Thank you.
GRASSLEY:
Senator Franken?
FRANKEN:
Thank you, Mr. Chairman.
Senator, congratulations on your nomination.
SESSIONS:
Thank you.
FRANKEN:
In 2009, when you became the ranking Republican on this committee, you were interviewed about how you would approach the committee's work and nominations specifically. You said that Democrats should expect you to be fair because you had been through this process yourself back in 1986 and you felt that back then, the committee had distorted your record.
You said that moving forward, quote, "we're not going to misrepresent any nominees' record and we're not gonna lie about it," unquote. And we certainly don't wanna do that to our colleague. But I also think it's fair to expect that sitting before us today that you're not going to misrepresent your own record. That's fair to say, right?
SESSIONS:
That is fair.
FRANKEN:
Good.
Now, in that same interview, you said, quote, "I filed 20 or 30 civil rights cases to desegregate schools and political organizations and county commissions when I was the United States Attorney." So 20 or 30 desegregation cases. Did I miss read that quote?
SESSIONS:
I believe that's what I've been quoted as saying and I suspect I said that.
FRANKEN:
OK.
OK. Now, that was 2009, but in November, your office said, quote, "When Senator Sessions was U.S. attorney, he filed a number of desegregation lawsuits in Alabama," not 20 or 30 this time, but a number. So tell me, did you file 20 or 30 desegregation cases or is it some other number?
SESSIONS:
Well, thank you, Senator Franken. It is important for us to be accurate. The records don't show that there were 20 or 30 actually filed cases. Some of the cases involved multiple defendants and multiple parties like a school board and a county commission being sued for racial discrimination, things of that nature.
But the number would be less than that, as we've looked at. So I...
FRANKEN:
What -- what do you think would've caused you to say...
SESSIONS:
I don't know, I...
FRANKEN:
... that you filed 20 or 30 desegregation cases?
SESSIONS:
Well, we had cases going throughout my district. And some of them were started before I came and continued after I left. Some of them were brought and then settled promptly.
And so it was extraordinarily difficult to actually I was surprised, to get a record by checking the docket sheets (ph) to find out exactly how many cases were involved. I heard one lawyer from the Department of Justice agreed with that large number...
FRANKEN:
Let me move on...
SESSIONS:
... but I don't -- that record doesn't justify it.
FRANKEN:
The questionnaire you submitted for today asked you to list and describe the, quote, "10 most significant litigated matters you personally handled" -- personally handled. And among the cases that you listed, that you personally handled, are three voting rights cases and a desegregation case.
Last week, I should note, three attorneys who worked at DOJ and who actually brought three of the four cases wrote an op-ed piece in which they say, quote, "We can state categorically that Sessions had no substantive involvement in any of them." Now, you originally said that you personally handled three of these cases, but these lawyers say that you had no substantive involvement.
Chairman Grassley, I would ask that that op-ed from last Tuesday's Washington Post be entered into the record.
GRASSLEY:
Without objection, it will be entered.
FRANKEN:
Are they distorting your record here?
SESSIONS:
Yes. In fact, one of the writers there, Mr. Hebert, spent a good bit of time in my office. He said I supported him in all the cases he brought; that I was more supportive than almost any other U.S. attorney; and that I provided office space. I signed the complaints that he brought. And as you know, may know, Senator Franken, when a lawyer signs a complaint, he's required to affirm that he believes in that complaint and supports that complaint and supports that legal action, which I did. We sued...
FRANKEN:
So that's your -- that's your personal involvement was that your name was on it?
SESSIONS:
Well, look, you can dispute the impact or the import of the questionnaire. Another attorney who -- Paul Hancock, who brought cases in our district, said, "Well, the attorney general claimed credit for the cases in the Department of Justice." He saw nothing wrong with my claiming that this was a case that I had handled.
FRANKEN:
OK. Two of the...
SESSIONS:
So you can disagree with that, but those cases have my signature on -- on the docket sheet. My name is listed number one as the attorney for the case.
FRANKEN:
OK. Look, I'm not a lawyer. I'm one of the few members of this committee who didn't go to law school. And usually I get by just fine, but it seems to me that a lawyer -- if a lawyer has just his name added to a document here or a filing there, that lawyer would be misrepresenting his record if he said he personally handled these cases.
Two of the lawyers who wrote the op-ed have also submitted testimony for today's hearing -- Mr. Gerry Hebert and Mr. Joe Rich. Mr. Hebert says, quote -- says he, quote, "litigated personally two of the four cases" you listed. He said, "I can state with absolute certainty that Mr. Sessions did not participate in either." Mr. Rich worked on one of the four cases you listed. He said, quote, "I never met him at that time nor any other time, and he had no input to the case."
These represent three of the four cases that you claimed that were among the top 10 cases that you personally handled.
Now, in your 1986 questionnaire, you used phrases like, quote, "I prepared and tried the case as sole counsel." And quote, "I was the lead prosecutor on this case," assisted by so and so. Why didn't you use the same level of detail in your 2016 questionnaire?
SESSIONS:
In looking at this questionnaire, we decided that that was an appropriate response, since it was major historic cases in my office. Let me just reply, Senator Franken, in this fashion. Mr. Hebert in 1986 when he testified at my hearing said, quote, "We have had difficulty with several U.S. attorneys in cases we have wanted to bring. We have not experienced that difficulty in the cases I have handled with Mr. Sessions. In fact, quite the contrary," close quote.
He goes on to say, "I've had occasion numerous times to ask for his assistance and guidance. I have been able to go to him and he has had an open-door policy, and I've taken advantage of that and found him cooperative." And that is an accurate statement.
I don't know Mr. Rich. Perhaps he handled a case that I never worked with. He goes on to say...
(CROSSTALK)
SESSIONS:
No, I want to -- you've raised this question...
FRANKEN:
One of the cases that you listed was a case that Mr. Rich handled. So if you don't know him, it's hard for me to believe that you personally handled it.
SESSIONS:
Well, when I found that -- these cases, I had been supportive of them.
FRANKEN:
You have filed...
SESSIONS:
Here I was, Mr. Hebert says, quote, "And yet I have needed Mr. Sessions's help in those cases and he has provided that help every step of the way. In fact, I would say that my experience with Mr. Sessions has led me to believe that I have received more cooperation from him, more active involvement from him, because I have called upon him," close quote.
Quote, "I have worked side by side with him on some cases in the sense that I have had to go to him for some advice," close quote.
FRANKEN:
In some cases -- not necessarily the ones you listed.
SESSIONS:
Well, look, it was 30 years ago. And my memory was of this nature and my memory was my support for those cases.
FRANKEN:
Your memory. OK. Look, I am not -- I'm one of the few members of this committee who's not a lawyer -- the chairman and the ranking aren't. But when I hear "I filed a case," you know, I -- I don't know some of the parlance. It might have a special meaning in legal parlance, but to me as a layman, it sounds to me like "filed" means "I led the case" or "I supervised the case."
It doesn't mean that my name was on it. And it seems to me -- look, I'll close, Mr. Chairman -- setting aside any political or ideological differences that you or I may have, DOJ is facing real challenges whether it's protecting civil rights or defending national security. And our country needs an attorney general who doesn't misrepresent or inflate their level of involvement on any given issue.
I consider this serious stuff, as I know that you would if you were in my position.
SESSIONS:
Well, you are correct, Senator Franken. We need to be accurate in what we say. When this issue was raised, I did do a supplemental that said I "provided assistance and guidance to Civil Rights Division attorneys; had an open-door policy with them; and cooperated with them on these cases," close quote.
I signed them. I supported cases and attempted to be as effective as I could be in helping them be successful in these historic cases. I did feel that they were the kind of cases that were national in scope and deserved to be listed on the form. If I'm in error, I apologize to you. I don't think I was.
FRANKEN:
Well, you couldn't find 20 or 30 desegregation cases that you stated you had participated in. And you don't sound like you personally handled cases that you said you personally handled. Thank you.
SESSIONS:
Well, I was on a radio interview without any records, and that was my memory at the time.
GRASSLEY:
I think you answered the question.
FRANKEN:
Thank you.
GRASSLEY:
Senator Flake, now it's 12:59, so at 2:09 we will adjourn for lunch. I'll be back here then at 2:39, and whoever is present will start then. But I hope everybody can be back here at least by 2:45. Well, whatever -- I got...
(LAUGHTER)
You know what I mean. Go ahead, Senator Flake.
FLAKE:
Well, thank you.
Are you saying we're adjourned or I'm going?
GRASSLEY:
Oh, you go ahead.
FLAKE:
OK. All right. Great. It's always nice being the last one standing between lunch.
GRASSLEY:
Let's have order for Senator Flake.
FLAKE:
I just want to say at the outset how much I've enjoyed working with you and being your colleague. I appreciate having you as a friend.
It's no secret we've had a difference of opinion on immigration legislation that we put forward. You've had different ideas. But I have no doubt that as attorney general, you will faithfully execute the office. And I appreciate the answers that you've given today.
FLAKE:
Let me ask unanimous consent to submit a column written by our own attorney general in Arizona, Mark Brnovich, for The Hill newspaper this week, supporting your...
GRASSLEY:
Without objection it'll be include.
FLAKE:
He's supporting your nomination.
Let me talk to you about an aspect of immigration that's important in Arizona. As you know we have a large border with Mexico. We have a program called Operation Streamline that has, over the years, been tremendously effective in cutting down recidivism in terms of border crossers.
What it is basically it's intended to reduce border crossing by expeditiously prosecuting those who enter the country illegally over -- under a no tolerance or zero tolerance policy. It's credited with being instrumental in achieving better border security, specifically in the Yuma Sector, along the western side of Arizona's border with Mexico.
Nevertheless, in recent years the U.S. Attorney's Office for the District of Arizona adopted a policy that ended prosecutions for those who cross, but for -- well without criminal history other than simply crossing the border.
I've asked Attorney General Holder and Attorney General Lynch, as well as Secretary Johnson at Homeland Security on what is being done here and I haven't gotten a straight answer. No matter how many times I ask the question. So I'm looking forward to a little more candor here.
As attorney general, if you're confirmed, what steps will you take to restore Operation Streamline to a zero tolerance approach that's been so successful in Arizona -- in a portion of Arizona's border.
SESSIONS:
Thank you. Senator Flake, I have enjoyed working with you and I know the integrity with which you bring your views on the immigration system.
Like you, I believe that Streamline was very effective, and it was really surprised that it's been undermined and significantly.
The reports I got initially, some years ago, maybe a decade or more ago, was that it was dramatically effective. And so I would absolutely review that and my inclination would be, at least at this stage, to think it should be restored and even refined and made sure it's lawful and effective. But I think it has great positive potential to improve legality at the border.
FLAKE:
All right. Well, thank you. It's been effective in Yuma and I can tell you there's concern there among the Sheriff's Office, Sheriff Wilmot and others, concern that we're seeing an increase in border crossings simply because the cartels understand very well where there's a zero tolerance policy and where there is not. Word spreads.
And we could quickly get to a situation where we have a problem in the Yuma sector like we do in the Tucson sector. Is there any reason why we haven't expanded this program to the Tucson sector if it's been successful elsewhere?
SESSIONS:
I do not know what reason that might be. It seems to me that we should examine the successes and see if they can't be replicated throughout the border.
FLAKE:
All right. Well, thank you. I look forward to working with you on that.
SESSIONS:
I appreciate that opportunity to work with you on that because I've long felt that's the right direction for us to go.
FLAKE:
Thank you. When we have a successful program it's difficult to see it scrapped. And to see the progress that's been made in certain parts of the border done away with.
Let me get to another subject here. Victim's rights, this is an area of the law that you've show particularly interest in over your time as a Senator.
I have with me letters of support for your nomination from various victims groups and advocates. The Victims of Crime and Leniency, Verna Watt (ph), Victims of -- and Friends United, op-ed by Professors Paul Kassel (ph) and Steve Twist (ph), all in support of your nomination. I'd ask that these documents be placed as part of the record.
As attorney general, what steps will you take to insure that victim's rights are protected?
SESSIONS:
We cannot forget victim's rights. We have a victim witness legislation that creates, within each United States Attorney's Office, a victim witness coordinator. And the job of that person is to make sure that concerns of the victims are heard. If they have to come to court, to help them get there, to make sure that they don't feel threatened and are protected.
SESSIONS:
That's a direct response -- the Department of Justice in the criminal justice system as directed by Congress. So I really think that's one step. And that's the fundamental mechanism -- I think Senator Kyle was a strong advocate for that, and it helped really improve the treatment of victims in -- in federal criminal cases. There's just no doubt about it.
FLAKE:
Well, thank you. I was going to note the presence of former Senator Kyl, my predecessor in this office who did so much work in this area, partnering with you. So thank you for that answer.
SESSIONS:
I'm honored that he's giving of his time to assist me in this effort, honored very greatly.
FLAKE:
Thank you.
Let's talk about Prison Rape Elimination Act. It was mentioned previously, I think, by Senator Collins. As attorney general, you not only led the Department of Prosecutors and Law Enforcement Officers, but also the bureau -- you will lead, not only the Department of Prosecutors, Law Enforcement Officials, but also the Bureau of Prisons.
You'll be responsible for 190,000 federal inmates currently in custody. This is an often overlooked part of the attorney general's role, but it's an important part of the position that you're being nominated for. I believe one of the highlights in your record, in the Senate, is your leadership in passing the Prison Rape Elimination Act of 2003, or PREA.
Which passed both chambers without objection and was signed into law by George W. Bush, this was a bipartisan bill. You worked across the aisle with the late Senator Kennedy, as well as with Republican Representative Frank Wolf, Democrat Representative Bobby Scott in the House and I have letters of support from anti-prison rape activists that I'd also like to put as part of the record, without objection if I could.
GRASSLEY:
Without objection.
FLAKE:
Thank you, thank you.
With the law approaching it's 15th anniversary, 11 states have certified that they're in compliance with the national standards and of the 41 states and territories have provided assurances that they're working toward compliance. Only four states and territories have chosen not to participate. Is PREA meeting the expectations you had for it when you introduced the bill in 2003?
SESSIONS:
I don't think there's any doubt that it's improved the situation. As to whether it's reached it's full potential, I don't think I'm able to tell you with certainty, but I certainly think it's made a positive difference. You know, it was a special time for me, Senator Kennedy was a strong critic of me in 1986.
And he said, you know, as we were working on this, he said, I've wanted to work with you on legislation like this, and I think it was sort of a reconciliation moment. We also worked on another major piece of legislation for several years. It would have been rather historic, but it was private savings accounts for lower wage workers in America that, I guess, the financial crisis of '07 or some things happened that ended that prospect.
But, I believe, that it's important for American people to know, that when an individual is sentenced to prison, they're not subjected to cruel and inhuman punishment under the Constitution at a minimum.
And I -- the idea that was so widely spread, that there's routine sexual abuse and assaults in prisons and other kind of unacceptable activities was widespread in our media and widespread among the American people.
One of our goals was, to establish just how big it was to require reporting to -- and create circumstances that in -- that -- that helped insure that a person who should be prosecuted for violence in the prison actually do get prosecuted was a real step forward. We do not need to subject prisoners to anymore punishment than the law requires.
FLAKE:
Thank you. And just the remaining seconds I have, let me just say, there's another area that we have worked on and -- and hopefully can continue to work on and that's the area of duplicative DOJ grants.
As you know, department awarded approximately $17 billion in grants over the years. OIG reports, GAO reports, have all shown that there's duplication and waste, sometimes fraud and abuse. We continue to commit to work to root out this kind of duplicative action there.
SESSIONS:
Well, I know you've had a -- a history of being a staunch defender of the Treasury against those who would abuse it, and I believe the same way. It's the taxpayer's money. Every dollar that's extracted from an American citizen, that goes into the government needs to get productive, valuable activities. And any of it that's delivered for political and insufficient reasons is a cause of great concern.
I will make it a priority of mine to make sure that the dollars that we have are actually getting to the purposes they're supposed to go for. It's one thing to say, I did a great thing. I got more money for this good purpose, but did it really efficiently and effectively go there? Did it really make a positive difference? So I think the Department of Justice can utilize those grant programs to help valuable activities and it needs to guard against improper activities.
FLAKE:
Thank you Senator Sessions. Thank you Mr. Chairman.
GRASSLEY:
We'll break for about 30 minutes. We'll reconvene at 1:40. Senator Coons will be next up and he's indicated he will be here on time.
So, recess for now.
(RECESS)
GRASSLEY:
Before I call on Senator Coons, I want to explain why one of the members on my side of the aisle can't be here. Senator Tillis is attending -- is unable to attend Senator Sessions' confirmation hearing today because his brother is being sworn in to the Tennessee General Assembly. So he's asked me to have his statement submitted into the record and it signals his strong support for Senator Sessions.
He also -- Senator Sessions, he also wants me to know that he'll submit questions for you to answer in writing.
Senator Coons, as we announced before, will be the first one this afternoon to (ph) proceed.
And Senator Sessions, if there's any -- I won't know unless you tell me. If there's any sort of 15 minute break or anything you need, let me know.
SESSIONS:
Thank you Mr. Chairman.
GRASSLEY:
We'll do that at the end of some person asking questions.
Senator Coons.
COONS:
Thank you, Chairman Grassley.
Welcome Senator Sessions. Congratulations to you and Mary and your whole family on your nomination.
The position of attorney general of the United States is one of the most important positions on which this committee will ever hold hearings and the next attorney general of the United States will assume leadership of the Justice Department on the heels of an election in which there were many issues thrown about in the course of the campaign, some of which have been asked about previously; calls for a Muslim ban or patrols, issues of a potential Russian cyber attack affecting our democracy, calls for mass deportations and chants at some rallies to lock her up for one of the candidates.
And given the divisiveness of this election, I think it is critical that the next attorney general be well suited for this position and this time. And as such, I think a successful nominee has to be able to persuade this committee that he will act fairly and impartially administer justice and advance justice for all Americans.
Senator Sessions, we've served on this committee together for six years and we've worked well together on a few issues, on state and local law enforcement issues, on the reauthorization of the Victims of Child Abuse Act and on the restoration of funding for federal public defenders and I appreciate that partnership.
But there's also been many issues on which we disagreed, issues from immigration to civil liberties to civil rights to criminal justice, voting rights and torture, and I am concerned about your views on a number of these issues as we discussed when we met last week. So I am grateful to the chairman and to you that we're going to have a full and fair hearing on all of these issues today.
Let me start with some questions about your time when you were Alabama attorney general and how you understood some direction you received from the U.S. Department of Justice. At that point, Alabama was the only state in the country that handcuffed prisoners to hitching posts and we talked about this when we met before and I said I would ask you about this in this hearing.
A hitching post was used as a punishment for prisoners perceived as being unwilling to work or participate in the daily lives of the prison, whether serving on a chain gang or participating in work, and they would be cuffed by both wrists to a pole at chest height, sometimes for seven, eight or nine hours unprotected from sun, heat or rain without access in some cases to water or even a bathroom. And as the attorney general, you and the governor received letters from the U.S. Department of Justice telling you that Alabama's use of the hitching post in both men and women's prisons was unconstitutional and unjustified.
But as I understand it, the use of the hitching post continued throughout your term and you did not act to stop it. During this same period, the state of Alabama was sued not just about hitching posts, but also about chain gangs. Prison policies in Alabama said a man could be put on a chain gang if he failed to shave or keep his bed clean, if he disrespected a member of the staff and would end up doing hard labor breaking rocks while being chained together in groups of five, shackled with eight feet of chain between men.
And these practices, the case that was brought demonstrated, were disproportionally affecting African-Americans. In later litigation, the practice of using the hitching post was called by an Alabama judge the most painful and torturous punishment in Alabama short of electrocution. And in 2002, the United States Supreme Court said using the hitching post was clearly unconstitutional when it was used in Alabama.
Can you please, Senator, tell me your view today of the use of the hitching post and chain gang in Alabama corrections and what your view is of what action you would take today if these practices were restored?
SESSIONS:
Thank you very much, Senator.
That was an issue of (ph) the governor who campaigned and promised that prisoners should work and he was determined to make that happen. I believe the litigation occurred after my time as attorney general according to my records, but we could be wrong. I'll supplement the records for you. Certainly, the decision by the Supreme Court and federal courts were after I left office, I believe.
So, working of prisoners is an issue that we've dealt with in the Congress of the United States and by state legislatures. I think good employment of a prisoner is a healthy thing. I do not favor, personally, this kind of work. I think it should be more productive work, work kind of help the individual develop a discipline that they could use when they go on to private life after they leave prison.
After the Supreme Court ruling, I think it's crystal clear what the law is. That was disapproved and disallowed and found to be found unconstitutional and I would absolutely follow that as attorney general.
COONS:
In your view, did it take a ruling by the U.S. Supreme Court to clarify that this constituted torture, that it was just not bad corrections policy, it was actually substantively torture of prisoners?
SESSIONS:
Senator Coons, I don't -- I'm not -- I don't recall ever personally being engaged in the studying of the constitutional issues at stake. It's perfectly legitimate for prisoners to work, but they should be on decent conditions and I think it should be the kind of work that's productive and it could actually lead to developing good habits. I heard some evidence on that subject.
So I do not have a legal opinion about the case; I have not studied the details of it.
COONS:
Just to be clear, what I was -- I -- what I was pressing you on there was the use of the hitching post, which is a disciplinary measure that had been abandoned by all states but Alabama. It's really reminiscent more of the stocks, the stockade that was used centuries ago, and to me somewhat troubling that it continued without -- without challenge.
Let me ask you more broadly. As you know, both Republicans and Democrats on this committee have worked together to address ways in which our criminal justice system is broken and to address the disparate racial impact of over-incarceration that's resulted the last 30 years. Senator Tillis and I just yesterday published an op-ed that we wrote jointly about the importance of responsible balanced criminal justice reform and Senators Grassley and Cornyn, Lee, Graham and Flake all your fellow Republicans, have supported meaningful reforms to address excessive mandatory sentences and incarceration.
And in my experience here in six years with you, you have steadfastly opposed all of these efforts at bipartisan sentencing reform. Help me understand why you've blocked efforts at reducing mandatory minimum sentences, at creating opportunities for the revisitation of sentences that may have been overly harsh when initially imposed and help me understand whether you think it is ever proper for a prosecutor to charge anything less than the most serious offense available and carrying the longest sentence.
SESSIONS:
Well, there's a lot of questions there, Senator Coons.
COONS:
Yes.
SESSIONS:
So, the -- the Sentencing Act has one foundational requirement now, and that's the minimum mandatories. The guidelines have been either made voluntary by the sentencing commission in the courts and the policies of the attorney general. So the thing that does stand in place are the minimum mandatories, the minimum that can be sentenced for a certain offense.
I offered legislation in 2001, it was opposed by the Bush Justice Department, that would have reduced the sentencing guidelines. And in fact, a number of years later, unfortunately, essentially could have been done in 2001, when I made a speech in favor of it. I made a speech saying what you are saying, that it was disproportionally impacting our African-American community and we needed to fix it and eventually that was passed. So I have a record of doing that, number one.
Number two, so these other things happened in the meantime, the guidelines were reduced. The Justice Department has reduced its requirements. The Justice Department now allows a prosecutor to present a case to the judge that doesn't fully reflect the evidence that they have in their files about a case. That's a problematic thing. You shouldn't charge, I think -- it's problematic and difficult to justify a prosecutor charging five kilos of heroin when the actual amount was 10 to get a lower sentence.
Now, there may be circumstances when somehow, proof and other issues could justify that, but I just would say, as a principle, you've got to be careful about it.
Finally, colleagues, sentencing guidelines are within the breast of the Congress, they're mandated by law. I was concerned about what we're seeing as a -- beginning to see a rising crime, and the same time, a decline in sentences.
Sentences are down 19 percent already, as a based on (inaudible) and guidelines changes. So that's a matter of interest, and I felt we should slow down a bit before we go further...
COONS:
Well if I might...
SESSIONS:
... and make sure we're not making a mistake, Senator Coons.
COONS:
It is my hope that if you are confirmed, and we do make progress on bipartisan criminal justice reform, that as attorney general, you will carry out whatever legislative decisions might be made by this body.
But last, let me just say that in my six years here, in addition to not working with us on a number of bipartisan proposals on criminal justice reform, you've been one of the few senators to repeatedly and steadfastly vote against congressional attempts to prohibit torture in the military context or in the interrogation context and to repeatedly defend enhanced interrogation practices.
Are you clear now that our statutes prohibit torture and if the president were to attempt to override that clear legal authority, what actions would you take?
SESSIONS:
On your previous question, I would note that federal prison population has already dropped 10 or more percent, and will drop another 10,000 this year. So what's happening now is reducing the federal population. This law only dealt with the federal prison population and that represents the most serious offenders. Our federal DEA and U.S. attorneys are prosecuting more serious cases.
With regard to the torture issues, I watched them for some time and have been concerned about what we should do about it. This bill that passed last time was a major step. I thought it was really not the right step. Senator Graham, I know has been an opponent of torture steadfastly and supported a lot of different things, opposed it.
It basically took what I was teaching, these -- the young soldiers at the Army Reserve Unit as a lecturer, as a teacher, the fet (ph) -- Army Field Manual, and it made that the law for the entire government, including the intelligence agencies and other departments. I thought that was an unwise step, to take something that directs even the lowest private to do, to make that the rule for higher ups.
COONS:
Well, Senator...
SESSIONS:
But (inaudible) the law, it is a law, and it needs to be enforced, absolutely.
COONS:
As we both know, there was a bipartisan effort to review the -- our experience with enhanced interrogation...
SESSIONS:
It was...
COONS:
... and concluded it was not effective.
SESSIONS:
Yeah, it was, and of course Senator Graham and JAG officers -- I was for a little bit.
GRASSLEY:
(inaudible).
CRUZ:
Thank you, Mr. Chairman.
Senator Sessions, congratulations on your nomination.
SESSIONS:
Thank you.
CRUZ:
You are a friend, you are a man of integrity. You and I have worked closely together on this committee, on the Armed Services Committee, and I have every confidence you are going to make a superb attorney general.
You know, this has been an interesting day at this hearing, listening to Democratic senator after Democratic senator give speeches in praise of the rule of law. And I am heartened by that, I am encouraged by that, because for eight years, it's been absent.
For eight years we've seen a Department of Justice consistently disregarding the rule of law. When Eric Holder's Department of Justice allowed illegal gun transactions, illegally sold guns to Mexican gun traffickers as part of Fast and Furious, guns that were later used to murder border patrol agent Brian Terry, the Democratic members of this committee were silent.
When Eric Holder was found in contempt of Congress, for refusing to cooperate with Congress' investigation into Fast and Furious, once again the Democratic members of this committee were silent. When the IRS illegally targeted United States citizens for exercising the First Amendment views, for exercising their roles in the political process, Democratic members of this committee were silent.
When the Department of Justice refused to fairly investigate the IRS targeting citizens and indeed assigned the investigation to a liberal partisan Democrat who had given over $6,000 to President Obama and Democrats, Democrats on this committee were silent.
When numerous members of this committee called on the attorney general to appoint a special prosecutor to ensure that justice was done in the IRS case, Democrats on this committee were silent. When the Justice Department began using Operation Choke Point to target law-abiding citizens that they disagreed with politically...
PROTESTER:
(inaudible) you are racist. You have tried to (inaudible). You are -- you caused (inaudible) organization. Black lives matter. Black lives matter. Black lives matter. Black lives matter.
PROTESTER:
(inaudible) deportation.
PROTESTER:
(inaudible) white nationalist. Black lives matter.
PROTESTER:
(inaudible) do not protect the rights of African-Americans, Muslims, or immigrants. Senator, (inaudible). Senator, (inaudible). Senator, (inaudible).
CRUZ:
You know, free speech is a wonderful thing.
When the Department of Justice used Operation Choke Point to target legal businesses because they disagreed politically with those businesses, the Democrats on this committee were silent.
When the Obama Justice Department sent millions of dollars of taxpayer money to sanctuary cities that were defying federal immigration law, the Democrats on this committee were silent. When the Obama administration refused to enforce federal immigration laws and unilaterally rewrote those laws, the Democrats on this committee were silent.
When the Obama administration released tens of thousands of criminal illegal aliens, including rapists and murderers, into the general population, Democrats on this committee were silent. When the Department of Justice signed off on the Obama administration paying a nearly $2 billion ransom to Iran contrary to federal law, the Democrats on this committee were silent.
When the Obama administration ignored and rewrote provision after provision of Obamacare, contrary to the text of the law, the Democrats on this committee were silent. When the Obama administration signed off on illegal recess appointments that the Supreme Court had to strike down unanimously, the Democrats on this committee were silent.
And when the Obama administration released five Guantanamo terrorists without the required notification of Congress, the Democrats on this committee were silent. That pattern has been dismaying for eight years, but I take today as a moment of celebration. If once again this committee has a bipartisan commitment to rule of law, to following the law, that is a wonderful thing, and it is consistent with the tradition of this committee going back centuries.
Now, if we were to play a game of tit for tat, if what was good for the goose were good for the gander, then a Republican attorney general should be equally partisan, should disregard the law, should advance political preferences favored by the Republican party.
Senator Sessions, do you believe that would be appropriate for an attorney general to do?
SESSIONS:
No, I do not. I believe you -- and I think we do have to be aware that when something like this is done, and some of the things I'm familiar with enough to agree with you, that I thought were improper, I do believe it has a corrosive effect on public confidence in the constitutional republic of which we are sworn to uphold.
CRUZ:
I think you are exactly right. You and I are both alumni of the Department of Justice, and it has a long, bipartisan tradition of staying outside of partisan politics, of simply and fairly enforcing the law. I will say right now, if I believed that you would implement policies, even policies I agreed with, contrary to law, I would vote against your confirmation.
And the reason I am so enthusiastically supporting your confirmation, is I have every degree of confidence you will follow the law faithfully and honestly. And that is the first and most important obligation of the attorney general.
Now earlier in this hearing, Senator Franken, engaged you in a discussion that I think was intended to try to undermine your character and integrity. And in particular, Senator Franken suggested that you had somehow misrepresented your record.
It is unfortunate to see members of this body impune the integrity of a fellow senator with whom we have served for years. It is particularly unfortunate when that attack is not backed up by the facts. Senator Franken based his attack primarily on an op-ed written by an attorney, Gerald Hebert.
There is an irony in relying on Mr. Hebert because, as you well know, in 1986, during your confirmation hearing, Mr. Hebert testified then and attacked you then, making false charges against you and, indeed, I would note in the 1986 hearing two days later, Mr. Hebert was forced to recant his testimony to say that he had given false testimony to this committee and, indeed, to say quote, "I apologize for any inconvenience caused Mr. Sessions or this committee by my prior testimony."
So, an individual who's testified falsely once before this committee, his op-ed is now the basis for Senator Franken's attack on you. And, indeed, the basis of Senator Franken's attack, is he claims you were uninvolved in several civil rights cases that were listed on your questionnaire. In 1986 Mr. Hebert testified -- this is a quote from him, "I have needed Mr. Session's help in those cases, and he had provided that help every step of the way."
Is that correct that that's what Mr. Hebert testified?
SESSIONS:
Yes, that's correct.
CRUZ:
Now, in the four cases Senator Franken referred to, you reported all four of them in your supplement to the Judiciary Committee, is that right?
SESSIONS:
That is correct.
CRUZ:
Mr. Franken didn't mention that and let me point out here's how you described your involvement in your written submission to this -- to this committee.
Quote, "for the cases described in two, four, eight, and nine, my role, like most U.S. Attorneys in the nation and not with non-criminal civil rights cases, was to provide support for the Department of Justice Civil Rights Division's attorneys."
"I reviewed, supported, and co-signed complaints, motions, and other pleadings and briefs that were filed during my tenure as U.S. Attorney. I provided assistance and guidance to the civil rights attorneys, had an open-door policy with them, and cooperated with them on these cases. For the cases described in six, I supervised litigation and signed the pleadings."
Now that is consistent with the 1986 testimony that you provided help every step of the way. Is that correct?
SESSIONS:
Well, I think so, yes.
CRUZ:
There's no question you've been forthright with this committee and I would note that members of this committee don't have to search far and wide to know who Jeff Sessions is. We've known every day sitting at this bench alongside you.
I want to shift to a different topic, and it's the topic I opened with, which is the politicization of the Department of Justice. The Office of Legal Counsel has a critical role of providing sound legal and constitutional advice, both to the attorney general and the president. And in the last eight years we have seen a highly-politicized OLC.
An OLC that has given politically convenient rulings, whether on recess appointments, whether on executive amnesty and early on perhaps that was started by 2009 Attorney General Holder overruling OLC concerning legislation trying to grant the District of Columbia representation in Congress. And it may well be that that sent a message to OLC that it's opinions were to be political and not legal in nature.
Tell me, Senator Sessions, what will you do as attorney general to restore professionalism and fidelity to law to the Office of Legal Counsel?
SESSIONS:
Senator Cruz, I think any short-term political agenda gains that come from the abuse of the -- the law-making processes and requirements of the Department of Justice just don't make sense.
It will always in the long run be more damaging than the short-term gain that one might have. The Office of Legal Counsel, all of us who've served in the Department know, is a big-time position. You need a mature, smart, experienced person who understands this government, who understands the laws and is principled and consistent in their application of the laws.
That will help the president, it will help the Congress and it will help the American people. I do believe we need to work hard to have that and I will do my best to ensure we do have it.
CRUZ:
One final question. In the last eight years, the Department of Justice's Solicitor General's Office has also, I believe, been unfortunately politicized and it sustained an unprecedented number of unanimous losses before the United States Supreme Court.
Indeed, President Obama's Justice Department won less than half of its total cases before the Supreme Court which is the lowest presidential win rate since Harry Truman. And the average historically for the last 50 years has been about 70 percent.
Numerous of those cases were unanimous with indeed both Obama Supreme Court appointees voting against the lawless positions of this Justice Department, including their assertion that the government has the authority to supervise and direct the appointment and the hiring and firing of clergy in the church.
What will you do as attorney general to ensure the integrity of the Office of Solicitor General? That it is faithful to the law and not advancing extreme political positions like the Obama Justice Department did that have been rejected over and over again by the Supreme Court?
SESSIONS:
I think the problem there is a desire to achieve a result. Sometimes it overrides a commitment to the law. In the long run, this country will be stronger if we adhere to the law, even though somebody might be frustrated in the short term of not achieving an agenda.
The Solicitor General should not advocate to alter the meaning of words to advance an agenda. That is an abuse of office and I would try to seek to have a Solicitor General who is faithful to the Constitution, serves under the Constitution, does not feel that it has the power to rise above it and make it say what it wants it to say.
CRUZ:
Thank you, Senator Sessions.
GRASSLEY:
Mr. Blumental goes.
I think we have votes still scheduled for 2:45. It's my idea that we would continue this going. Like I'll go with the end of the first vote and then vote and come back. And I hope other people will preside and keep asking questions while the two votes are going on, so we can finish at a reasonable time today.
(UNKNOWN)
(inaudible) about Session voting.
GRASSLEY:
What?
(UNKNOWN)
He's not voting.
GRASSLEY:
OK. Well, that's right, I -- did we get a decision? You're -- you can stay here during that voting time.
Senator Blumenthal.
BLUMENTHAL:
Thanks, Mr. Chairman and thank you for conducting this hearing in such a fair-minded and deliberate way. And I want to join you in thanking Senator Sessions for his public service over so many years and his family who have shared in the sacrifices that you have made. So, I am sure that my colleagues and I appreciate your service and your friendship.
This experience for us is a difficult one, not only because you're a colleague, but I consider you to be a friend and someone who is well-liked and respected in this body, understandably. And I know, if you were sitting here, you'd be pretty tough on me, maybe tougher than I'm going to be on you. But it's not personal, as you understand, because we have an obligation to advise and consent to ask those kinds of tough questions.
And you and I have shared some experiences. Both of us have been United States attorneys and attorneys general of our state and I want to thank you as well for thanking our law enforcement community, which is so important to this nation. And it makes sacrifices and those sacrifices often are not only in time and foregone income, but also in lives and I join you in respecting the law enforcement officers who were victims most recently of gun violence.
I want to begin just by asking you a question which I asked in a letter. Will you recuse yourself from voting on your own nomination and the nominations of other cabinet secretaries?
SESSIONS:
I do not have plans on to vote on my nomination. I have not thoroughly examined all the issues, but I think there could be a conflict of interest or a violation of ethics rules and I would comply with the rules.
BLUMENTHAL:
I believe it would be a conflict of interest for you to vote on other cabinet secretaries as they are nominated by the president, who is also your boss and I think that I hope you will consider recusing yourself from those votes as well because I think it will set a tone for what you will do in cases of conflicts of interest.
And I want to talk a little bit about conflicts of interest because I think that the Attorney General of the United States has a unique and special role, especially at this point in our history. He should be a champion, a zealous advocate of rights and liberties that are increasingly under threat in this country.
And he's not just another government lawyer or another cabinet secretary. He is the nation's lawyer. And so any appearance of conflict of interest or compromising positions because of political involvement, I think, is a real danger to the rule of law and respect and credibility of the rule of law.
So I would hope that you would consider appointing special counsel in cases where there may be a conflict of interest involving the president, and one of those cases involves Deutsche Bank. The president of the United States owes the Deutsche Bank several hundreds of millions of dollars, it's currently under ongoing investigation.
Will you appoint a independent counsel to continue the investigation of Deutsche Bank?
SESSIONS:
Well, Senator Blumenthal, I have not -- I'm not aware of that case, I'm not in any way -- have no researched it or even read some of the public's articles about it. So I'm totally uninformed about the merits or lack of it of the case. I don't know that the president is implicated simply because he's borrowed (ph) from a bank.
But I would say that as Senator Lee, I think, raised in his questioning, you just want -- you don't want to be in a position where every time an issue comes up, the attorney general recuses himself. But at the same time, serious questions, when they arise, the attorney general should refuse himself under appropriate circumstances and I guess that goes with -- or the appointment of a special counsel, which is a somewhat different issue.
BLUMENTHAL:
Would you...
SESSIONS:
There have been a lot of criticisms of that, but I think it's a useful tool in the appropriate circumstances.
BLUMENTHAL:
Would you agree with me that the emoluments clause applies to the president of the United States?
SESSIONS:
Well, the emoluments clause applies, I guess the dispute is and the discussion is is -- and to what extent does it apply and how does it apply in concrete situations, which I have not studied.
BLUMENTHAL:
If there's evidence that the president of the United States has violated or may be violating the emoluments clause, will you appoint a special counsel?
SESSIONS:
We would have to examine that. I would not commit to this day -- at this time appointing a special counsel when I'm not aware of a precise factual situation that would be in play.
BLUMENTHAL:
If there is a violation by the president's family of the STOCK Act, which prohibits the use of private or insider information for personal gain, will you apply special counsel?
SESSIONS:
Well, we'll have to evaluate that if such a (ph) circumstance occurs and I would do my duty as I -- as I believe I should do it at the time.
BLUMENTHAL:
I would suggest that in those cases, an independent counsel is not only advisable, but required to avoid a conflict of interest and I would hope that you would be sensitive to those concerns.
SESSIONS:
Well, there are reasonable arguments to be made for that. I suggested that Attorney General Lynch should appoint a special counsel in the Clinton matter. I don't know whether you supported that or not.
BLUMENTHAL:
One reason I'm asking the question is that you have advocated a special counsel in other instances where in fact the argument for it was weaker than it would be in these cases and I think it would be appropriate.
SESSIONS:
Well, I will suggest that during a campaign, sometimes we get excited, but as attorney general, you have to follow the law, you have to be consistent and you have to be honorable in your decision making. And I respect the question you're raising.
BLUMENTHAL:
Let me ask you about another group. I welcome your condemnation of the Ku Klux Klan. You may be familiar with a group called Operation Rescue, and Operation Rescue endorsed you. In fact, Troy Newman, the head of Operation Rescue, said, quote, "We could not be happier about the selection of Senator Jeff Sessions as the next Attorney General."
Operation Rescue has in fact advocated, quote, "execution," end quote, of abortion providers. And as an example of its work, this poster was circulated widely in the 1990s and early 2000s about a Dr. George Tiller who subsequently was murdered. After his murder, Operation Rescue said that his alleged murderer should be treated as a political prisoner. Dr. Tiller was murdered in 2009 and I'm sure you're familiar with is case.
Will you disavow their endorsement of you?
SESSIONS:
I disavow any activity like that, absolutely and a group that would even suggest that is unacceptable and I will enforce the laws that make clear that a person who wants to receive a lawful abortion cannot be blocked by protesters and disruption of a doctor's practice.
I might not favor of that. I am pro life as you know, but we've settled on some laws that are clearly effective and as attorney general you can be sure we would follow them.
BLUMENTHAL:
You would use the FACE statute, the Freedom of Access to Clinic Entrances Act to empower and mobilize the FBI, the Federal Marshal service or the Bureau of Alcohol Tobacco and Firearms to protect clinics if there were harassment or intimidation.
SESSIONS:
I would use the appropriate federal agencies and I do believe it is in violation of the law to excessively or improperly hinder even the access to an abortion clinic.
BLUMENTHAL:
Will you rigorously enforce statues that prohibit purchase of guns by felons or domestic abusers or drug addicts and use the statues that exist right now on the books to ban those individuals from purchasing guns?
SESSIONS:
Well, Congress has passed those laws, they remain the bread and butter enforcement mechanisms throughout our country today to enforce guns laws. The first and foremost goal I think of law enforcement would be to identify persons who are dangerous, who have a tendency or have been proven to be law breakers an been convicted and those who are caught carrying guns during the commission of a crime.
Both of those require mandatory sentences as United States attorney in Alabama it was a high priority of mine. I calculated a number of years, we were one of the top, even though a small office, on a percentage basis, we were one of the top prosecutors of those cases. I think it saves lives Senator Blumenthal. I (inaudible) as a matter -- my judgment at least is experience tells me it can help make -- create a more peaceful community.
BLUMENTHAL:
Will you support laws necessary to effectively apply those laws including universal back ground checks that are necessary to know whether the purchaser is a felon or a drug addict or a domestic abuser?
SESSIONS:
Well, I believe in background check laws and many of them are appropriate. But, in every instance -- there's some instances when it's not practical let's say. For example somebody inherited a gun from their grandfather. Those transactions I'm not sure should require that kind of universal background check.
GRASSLEY:
(OFF-MIKE) member of this committee.
Senator Crapo, welcome to the committee and you may proceed.
CRAPO:
Thank you Mr. Chairman and I too want to thank you for the way you are handling this hearing and appreciate your service here in the committee.
And, Senator Sessions I also want to join those who have congratulated you on your nomination to be the attorney general of the United States.
I am one of those who has had the opportunity to work with you for years and know you very well. I consider you well qualified and look forward to your service as the Attorney General of the United States, if you are confirmed and I expect you will be. I know you to be a man of your word. I know that you're committed to the Constitution of the United States of America and you are committed to enforcing the law of this country as you have said multiple times here in this committee. So, I thank you for that.
I want to go on my question into just a couple of other areas. Beyond just the notion of the enforcement of the law, but the manner in which the Department of Justice enforces the law, three basic carries (ph). One the abuse of the power or discriminatory enforcement of the law. Two the regulatory over reach that we're seeing across this country and what role the Department of Justice plays in trying to deal with that. And, then finally the cooperation of the states.
We live in a Union of 50 states and under our Constitution there are appropriate rules for the federal government and the states and the Department of Justice has a very powerful influence on that. So if I could get into those three areas.
The first one, I'm just going to use as an example of the kind of abusive use of power that I hope you will help stop and prevent from continuing to happen.
It was already -- this example is one that was already referenced by Senator Cruz, Operation Choke Point.
Operation Choke Point, for those that aren't familiar with it, the only appropriate thing about it, in my opinion, is its name, it was named -- it was a program designed by the Department of Justice to help choke financing away from businesses and industries that were politically unacceptable or for whatever reason unacceptable to the administration.
The Justice Department working with, and I think perhaps even pressuring, some of our financial regulatory agencies created this program to give additional scrutiny, indeed such aggressive scrutiny that it pressured them out of their access to finance -- to certain industries.
I don't know how these industries got onto the list, but I'll just read you several that are on the list. Ammunition sales, coin dealers, firearm sales, installment loans, tobacco sales, this list is a list of 30 that was put out by the FDIC. When they -- when they actually realized they shouldn't of put the list out they quickly took it back.
And the FD -- the FDIC says that they're not pursuing this program anymore, but when we tried to de-fund it earlier the administration fought aggressively to make sure we didn't get the votes to defund it.
This program is one where the justification is -- well, the businesses who operate in these industries haven't done anything wrong. But these are industries that might do things wrong more than other industries and therefore we're going to pressure people out of these industries.
It reminds me of a 2002 movie called "Minority Report," it was a Tom Cruise movie and that was one about an advanced police force in the future that had determined -- or had developed the ability to know if you we're going to commit a crime before you commit the crime. And then their job was to go arrest you. It was really good at stopping crime because they arrest you before you even commit it. And then one of them came up on the list and that's the story of that movie.
My point is, we can't really tell for sure whether Operation Choke Point is still operating. Although we still have people in these industries who can't get financing. If that kind of thing is going on in the Department of Justice will you assure that it ends?
SESSIONS:
I will. At least as you've framed this issue and as I understand the issue from what I -- little I know about it but, fundamentally, a lawful business should not be attacked by having other lawful businesses pressured not to do business with the first business.
That's, to me -- it would be hard to justify. I guess maybe they've got some arguments that would be worth listening to. But fundamentally that seems to me, Senator Crapo, you're a great lawyer and you -- but seems to me that goes beyond what would be legitimate in a great economy like ours.
CRAPO:
Well, I would hope the Department of Justice would not be a partner with any of our federal agencies in this kind of conduct.
Another one which I'll throw out as an example is the National Instant Criminal Background Check List, which is now being utilized by the Veteran's Administration and by the Social Security Administration to put people's names on the list so that they can be denied access to owning or purchasing a firearm.
And the way they put their name on the list is to say that they are mentally deficient. If they need a little help on their Social Security benefits, if they're a veteran who put their life on the line for us and goes to war and receives a head injury and so they need a little bit of assistance, then -- then they get their name often put on the list.
I know that these are not the agencies that you supervise, but I know the Department of Justice supervises the NICS list. And I would just encourage your help, whether it's here or anywhere else in our government, as we see agencies using their power to achieve political purposes, or some other discriminatory purpose of the administration I would hope you would stand solidly against it.
SESSIONS:
Well, thank you Senator Crapo, I know you've worked on that issue. So I'd be sympathetic and be willing to receive any information that I know you've gathered on -- to form your views about it.
CRAPO:
All right I appreciate that.
Let me move on to the question of regulatory overreach. I'll just use one example there. I'm one who believes that today, we have gone -- we talked a lot about this hearing today about the rule of law. In America, statutes are passed by Congress and signed into law by a willing president. But now we have multiple agencies that are doing rule makings that, in my opinion, are going far beyond the legal authority of the laws under which they operate.
I'll use one example. The Waters of the United States rule that has been implemented -- or seeking to be implemented by the EPA and...
CRAPO:
doing rulemakings that in my opinion are going far beyond the legal authority of the laws under which they operate. I'll use one example. The Waters of the United States rule that has been implemented, or seeking to be implemented by the EPA and the Army Corps of Engineers.
In my opinion that is totally unfounded in law. And often the Department of Justice is partnered up with these agencies as they try to defend their activities in court. And I'm not sure I actually know the proper role there.
Does the Department of Justice simply have to litigate on behalf of these agencies? Or does it have the ability to advise these agencies that they're pursuing activities beyond the bounds of the law?
SESSIONS:
It can be that an agency would ask an opinion on the Office of Legal Counsel, the Department of Justice. And as to whether their interpretation is sound or not, that opinion, until reversed at some point, stands for the entire government.
But basically these agencies are oftentimes just set about their own agendas without asking for an opinion. And often they are narrowminded or they're focused only on what they feel are the goals of their agency, and don't give sufficient respect to the rule of law and the propriety of what they're doing.
In particular, did the Congress really intend this? Did this law really cover this? Or is it just something you want to accomplish and you're twisting the law to justify your actions? Those are the kind of things that we do need to guard against.
CRAPO:
Well, I appreciate that. And I hope that under your leadership we will have a Justice Department that will give strong advice where it can, and have strong influence where it can across the United States system -- across our agencies in this country, to help encourage and advise that they stay within the bounds of the law.
The last thing, and I'll just finish with this and you can give a quick answer. I'm running out of time here. And that is cooperation with the states.
As I said earlier, our system of government is comprised of 50 states in a union under a Constitution that establishes a federal government. And you and I both know well that the 10th Amendment says that those rights and powers, they're not specifically granted to the federal government in the Constitution, are reserved to the states and to the people, respectively.
Many of our states feel that that proper respect for their sovereignty is being abused, again, by federal agencies, not just the Department of Justice. But the Justice Department often gets involved in this through providing the legal services that it does to our agencies.
And you know I could go through a ton of more examples and lists of litigation that is ongoing right now with my state and other states around the country where if we simply had a better level of respect for the role of states in this union and under our Constitution, we could work out a lot more of these issues. Rather than having the heavy hand of the federal litigation system come to play into forcing compliance by states.
And so I won't go into any specific details, but would just ask your feelings about that importance of respecting the role of states in this country.
SESSIONS:
There's no general federal criminal crimes. So many things like larceny and even murder unconnected to some civil rights connection. These things have traditionally been totally the responsibility of the states.
As a young prosecutor in the 1970s I remember almost all the cases had an interstate commerce nexus. It wasn't the theft of an automobile that you prosecuted. It was interstate transportation of a stolen vehicle.
CRAPO:
A lot of...
SESSIONS:
So a lot of that is just -- now we've forgotten that distinction, that limitation on federal power.
CRAPO:
We have. And a lot of what I'm talking about happens in the environment and natural resource division, and others. There's a lot of litigation out there.
I'd just encourage you -- I see my -- I am out of time.
GRASSLEY:
Let me make a suggestion before I introduce Senator Hirono. And she's welcome back to the committee. She's been off two years.
To make efficient use of our time, when she's done it would be Senator Kennedy's turn. But you probably have to go vote. So if there's somebody back here that can start the second round, do it. And then we'll call on Senator Kennedy to finish the first round.
Senator Hirono?
HIRONO:
Thank you, Mr. Chairman. It's good to be back on this committee.
And aloha to you, Senator Sessions.
SESSIONS:
Aloha.
HIRONO:
I will do my best to be nice to you.
SESSIONS:
Well that won't be hard for you.
HIRONO:
Thank you very much.
I know that the attorney general has broad prosecutorial discretion. You noted in some of your responses to questions from Senator Durbin around the issue of what would happened to the 800,000 DACA registered people if the president-elect rescinds that program. And you indicated that I think at that point the A.G.'s office only has so many resources, and that may not be a high priority for you. But you indicated that's why we needed immigration reform.
So my series of questions will center around how you would exercise your prosecutorial discretion, which I think you would acknowledge is wide as attorney general. Wouldn't you?
SESSIONS:
In most -- in many cases you do -- the federal prosecutors set discretionary limits. But you have to be careful that it does not exceed a reasonable judgment about what a discretionary...
(CROSSTALK)
HIRONO:
I agree.
SESSIONS:
... be.
HIRONO:
It's not totally unfettered. Wide prosecutorial discretion. So my questions will center around how you would exercise prosecutorial discretion with regard to some specific issues.
You probably know, Senator Sessions, that I am an immigrant. You indicated in one response that you would want immigration reform to center around skills based immigration reform. And if that were the case, my mother, who brought me to this country to escape an abusive marriage would not have been able to come to this country. And she acquired her skills later.
But I just want to let you know that it's one of the reasons that issues relating to immigration are very important, not just to me, but to millions of people in this country. And I have heard from them. I've heard from immigrants in this country, LGBT Americans, women and religious minorities who are terrified that they will have no place in President-Elect Trump's vision of America.
And based on what I've heard since the election, I am deeply concerned that their fears are well founded. I'm hoping that you can address some of these concerns today.
So I mentioned the exercise of prosecutorial discretion. When you came to see me we did talk about whether or not you would support a ban on Muslims coming to this country based on the fact that they were Muslims. And you said that you would not support that.
But you also indicated that you would support basically what would be considered enhanced vetting of people with extreme views. What would characterize an extreme view to you? And how would you go about ferreting out people with extreme views when there are millions of people legally coming into our country?
And also a related question. The fact that you would consider vetting people with extreme views to be a proper use of our governmental authority, there must be a connection in your mind that people with extreme views, which I hope you will describe what you mean by, will do something that would compromise the safety of Americans. Could you respond to my series of questions relating to extreme views?
SESSIONS:
Well, I do think first of all the vetting process is in the hands of the State Department, the consular offices and those offices that are meeting people abroad and evaluating them for admission to the United States. So the Department of Justice really does not dictate that, as long as it's perhaps -- as long as it's within constitutional order.
I think the approach that's preferable is the approach that is -- would be based on areas where we have an usually high risk of terrorists coming in, people who could be clearly violent criminals. And those certainly justify higher intensity of vetting.
I think that mainly responds to your question. But again, the ultimate decision about that would be done through the State Department and by the president.
HIRONO:
I'm sure they would ask for the attorney general's opinion as to the limits of the Constitution in requiring these kinds of questions to be asked of people who come to our country. And you did indicate once that religious views would be a factor in determining whether somebody has extreme views.
Let me turn to...
SESSIONS:
Their religious views in...
(CROSSTALK)
HIRONO:
Not in and of itself...
SESSIONS:
... extremism. Right. Not -- if they -- their interpretation of their religious views encompasses dangerous doctrines and terroristic attacks I think they should certainly deserve more careful scrutiny than someone whose religious views are less problematic.
HIRONO:
Yes. Senator Sessions, you did say that one's religious views would be a factor in determining whether one has extreme views that would enable -- that would not enable them to come to our country.
Let me turn to the question of abortion. On Roe v. Wade, you did say quote, "I firmly believe that Roe v. Wade and its descendants represent one of the worst colossally, erroneous Supreme Court decisions of all time and it was an activists decision."
My question is do you still hold that view? I believe you answered yes to someone who asked you that question previously. That you believe that Roe v. Wade was a bad decision.
SESSIONS:
Well, I do...
HIRONO:
Do you still believe that?
SESSIONS:
Well, I guess I've said that before, so I'm a pro-life advocate...
HIRONO:
Thank you.
SESSIONS:
... but fundamentally, the problem, as I see it, with Roe versus Wade is that is denies the people to right to make laws that they might feel appropriate. Did the Supreme Court have that power? I concluded they didn't, because the Constitution didn't answer that question, but...
HIRONO:
Well, Senator Sessions...
SESSIONS:
... I respect the...
HIRONO:
I hate to interrupt you, but I have less than two minutes. So, I don't want to get into the substance of Roe v. Wade. I realize you still believe that that was a bad decision, although it was based on constitutional privacy protections.
So, we can expect the make up of the Supreme Court to change, and we can very well end up with a Supreme Court that will be very open to overturning Roe v. Wade. And should you be the attorney general, would you direct or advise your solicitor general to weigh in, to -- to weigh in before that Supreme Court, which has an opportunity to overturn Roe v. Wade? And would your solicitor general go in and weigh in to repeal or to overturn, I should say, Roe v. Wade?
SESSIONS:
Well, Roe versus Wade is firmly asconced as the law of the land and I don't know we would see a change in that. You're asking a hypothetical question. Those cases seldom come up on such a clear issue. They come up at the margins. I just would not be able to predict what a well researched, thoughtful response to -- would be to manage it could happen in the future.
HIRONO:
I think most of us know that the next opportunity for the Supreme Court to weigh in on whether or not to change Roe v. Wade would be a very close decision and, likely possible a five to four decision. And that it's not just a hypothetical, but it is a real concern to a lot of people.
Let me turn to the Voting Rights Act. While the Supreme Court did eliminate parts of the Voting Rights Act, it still retains Section II, which prohibits states from enacting laws that would have a discriminatory impact.
The Attorney General's Office was a party to challenging two states laws, I believe it was Texas and there was another state, that the Supreme Court ultimately agreed with the attorney general's position that these laws violated the Voting Rights Act, Section II. Would you, should you become the attorney general, just as vigorously prosecute those kinds of state laws that have a discriminatory voting impact?
SESSIONS:
Well, this administration's attorney general has intervened when it felt it was appropriate and not intervened when it did not feel it was appropriate. So, I think my responsibility would be to ensure that there's no discriminatory problems with a Voting Rights Act of a state. If there is, if it violates the Voting Rights Act or the Constitution, I think the United States -- the attorney general may well have a responsibility and a duty to intervene. You cannot allow improper erosion of -- of the right of Americans to vote.
HIRONO:
Well, we know that since the Supreme Court's decision that did away with major parts of the Voting Rights Act that numerous, perhaps 13 states have already enacted laws that could be deemed contrary to the Voting Rights Act. So I would hope as attorney general, you would vigorously review those kinds of laws and to prosecute and to -- to seek to overturn those state laws just as your predecessors have done.
I want to turn to VAWA. I know that you voted against the most recent iteration of VAWA because you had concerns about how non-Indians would be prosecuted under tribal law. And you indicated that yes, you do acknowledge that non-Indians do go on tribal lands, commit crimes and that these should be, these kinds of crimes should be prosecuted at the federal level. And I would expect that should you become attorney general, that you will do that.
But at the same time, my question is, would you then seek to overturn that part of VAWA that allows the tribal courts to proceed?
SESSIONS:
That would be a strictly legal decision. We should give respect to the laws of Congress that have been passed. As a member of Congress, I was uneasy with it, did not think it was a good approach, and I believe eight out of nine Republicans on the committee shared that concern and did vote against it. As I noted earlier, I voted for the Violence Against Women Act in 2000, 2010 and I voted for the Grassley version of the Violence Against Women Act this past time, even though I did vote against the same law.
HIRONO:
So, as attorney general, you would not do anything to -- to challenge that part of VAWA that allows for tribal courts to proceed.
SESSIONS:
Well, I would have to make a legal decision on that. I'm not able to do so today.
HIRONO:
Thank you Mr. Chairman.
GRASSLEY:
Thank you.
LEE:
Senator Sessions, you are aware, many instances, Congress when enacting a law will choose to issue a broad, sort of, mandate, a broad aspirational statement, leaving the details of the actual law making process to a regulatory system that then has to follow certain procedures in term to effectively make laws. We call those regulations, typically, and sometimes an executive branch agency will go a step further.
And outside the process that has to be followed when propagating a new regulation, they'll just issue a guidance document. A guidance document outlining what the agency feels is the status of the law in this area. Guidance documents have received a lot of criticism from members of the public, who point out that they are bereft of any kind of safeguard. And they haven't gone through a legislative process, they haven't even gone through any time of revue process that would normally accompany the regulatory -- the regulatory rule making cycle.
As a matter of policy making, will the Department of Justice, under your leadership, assuming you're confirmed, use guidance documents as a matter of course in propagating legal interpretations?
SESSIONS:
Senator Lee, a guidance document that's clearly within the intent of Congress and the laws plain words can be beneficial. I think they're normally issued by the agency or department that administered it, like, for example, Health and Human Services, Homeland Security, Department of Commerce.
The often, or sometimes, they ask the Office of Legal Counsel for their opinion about what the proper interpretation of a statute is, but I do think you raise a valid concern. A guidance document cannot amount to an amendment to the law. Bureaucrats do not have -- that's a majority term, but department and agency attorneys and members don't have the ability to rewrite the law to make it say what they'd like it to say. And if we get away from that principle, we've eroded respect for law and the whole constitutional structure where Congress makes the laws not the executive branch.
LEE:
What about in the context of litigation? Where you're litigating a case involving one of these guidance documents that you're representing, the federal agency in question. Will the department, under your leadership, assuming your confirmed to this position, ask courts to defer to non-binding guidance documents in the same way that courts are routinely asked to defer to regulations?
SESSIONS:
Well, that's a good question, from a good lawyer I have to say. In other words, the question you're suggesting is, the established law of the land or the courts is that they give certain deference to well established, properly established regulations issued pursuant to -- to statute, but what if the secretary just issues a guidance document? Does the court -- is the court entitled to give full deference to that? I would -- first of all, I don't know. I haven't researched it. But I do think that would be a pretty bold step to go that far and would be dubious about it.
LEE:
Thank you.
As you know, from time to time, the Department of Justice receives subpoenas or -- or one of the entities being represented by the Department of Justice might receive requests from members of Congress, from committees in Congress, including some committees that have the power issue subpoenas, in other instances, just letters or other types of requests from Congress for documents.
I suspect that there may be a number of outstanding requests of this nature that are left pending at the end of this administration, requests that were issued during the 114th Congress, the -- the Congress previous to this one, but will still need to be handled within the department after you're confirmed, assuming you are confirmed.
Will you commit to reviewing any of those that remain pending and -- and doing so in a manner that's timely and -- and showing the respect for a coordinate branch of government?
SESSIONS:
Senator Lee, if you would, repeat for me the -- what kind of...
LEE:
Yep, pending request for documents that -- that might be left over form the previous Congress...
SESSIONS:
Request for documents in what kind of -- proceeding?
LEE:
Request for documents either from the department itself or in matters where the department is involved, representing an entity within the federal government. I just want to make sure that those don't get left behind -- that they don't get ignored simply because they haven't been dealt with by the previous administration.
SESSIONS:
Well, I -- I do think that in time it'll be evaluated in proper request. I -- I would assume would continue to be valid and we would try to follow up whatever the law requires in that regard.
LEE:
Thank you. I appreciate that.
I want to talk about the use of the attorney client privilege by members of the executive branch -- by executive branch officials. In a 1998 opinion, the U.S. Court Appeals for the D.C. Circuit reached the conclusion that executive branch officials do not enjoy the same common law attorney client privilege as ordinary lawyers -- lawyers who are not executive branch officials.
And -- and Justice Scalia, while he was serving as the assistant of attorney general over the office of legal council, authored a legal opinion stating that the -- that executive branch officials do no enjoy the privilege, unless they're dispensing with personal legal advice. Instead, in that view, executive branch officials need to exert the executive privilege rather than the traditional common law attorney client privilege.
And yet executive branch agencies routinely can be observed asserting the attorney client privilege instead of the -- in much the same way they would in the traditional context, rather than just invoking the executive privilege. Would -- would you agree with that, that -- that might raise some questions?
SESSIONS:
Senator Lee, I have not studied that opinion of Justice Scalia. I would be reluctant to comment. Except I would say that it's probably good for the American republic that department and agency officials seek legal advice before they act. In the long run, that's probably better. And I think having some expectation that they can have a candid comment with their attorney is of value.
I hadn't thought about and never given study to the question of whether it should be on the executive privilege or attorney client. Although I can understand the -- imagine the difficulties.
LEE:
Yes. No, I -- I -- I appreciate your candor on that point and it gives me some comfort knowing that you're aware of the -- of the situation, you'll look at those.
I'd like to talk about some anti-trust issues in the -- the moments I have remaining. And then perhaps we'll get back to these during a subsequent round.
Anti-trust regulators, when they're reviewing potentially anti-competitive harms that might arise as a result of a merger will sometimes impose conditions, conditions on the merger moving forward, saying unless you do A, B and C, this merger can't go forward. But if you do A, B and C in order to address whatever concerns we, the anti-trust regulators have, then -- then the merger can be consummated.
It is my view that there is a temptation for anti-trust regulators sometimes to impose conditions that don't involve anti-competitive concerns. And that that raises some red flags that because the role of the anti-trust regulator is to look out for anti-competitive concerns arising out of the merger. That's where their inquiry ought to be focused and that's where their conditions ought to be focused.
Do you disagree with that?
SESSIONS:
I would agree with that, as I -- as you formulate it, I believe. And it would be wrong on to further some other separate discreet agenda that's not reasonably connected to the merger itself. So I think we should ensure that we have the highest integrity in anti-trust adjudications, because they can have great impact.
The law is not crystal clear about what's lawful and what's not lawful, and what the anti-trust division is required to do. And it leaves dangers, if not politicalization of it, it remains dangers -- dangers of policy agendas getting involved in it. So it's a important division that requires great integrity and ability I believe, in the leadership at the anti-trust division.
GRASSLEY:
Thank you. Just a moment.
Senator Leahy.
LEAHY:
Thank you, thank you, Mr. Chairman.
The -- as I listened to Senator Lee asking you these questions, it occurred to me that you were one of a very, very, very small minority of members who opposed the USA Freedom Act that I drafted with Senator Lee, it passed with a super majority in both the House and the Senate.
Even though you voted against it and this of course topped the bulk collection by NSA, that both Senator Lee and I opposed. Do you agree the executive branch has to uphold the law that they cannot reinstate the bulk collection of America's phone records without amending federal statutes?
SESSIONS:
Senator Leahy, that appears to be so and I can't swear that that's absolutely, totally, always true, but it appears to be so.
LEAHY:
Wait -- wait -- wait a minute. We either passed the law or we didn't pass the law. A super majority voted for the Lee-Leahy law, the president signed it into law. You voted against it. Will you uphold the law?
SESSIONS:
I will follow the law, yes, sir.
LEAHY:
And will you commit that you're not going to allow the NSA to engage in the bulk collection of Americans' records in violation of the USA Freedom Act based on a theory that somehow whoever is president has the power to disregard the statute?
SESSIONS:
I do not believe that the statute can be disregarded and it should be followed.
LEAHY:
Thank you, I appreciate that.
We had a dust-up in the press, as you recall, when Mr. Trump bragged about how he had grabbed women and so on. You, shortly after the tape came out, and I realize that an explanation here, you said I don't characterize that as sexual assault.
But then you said later, the Weekly Standard's characterization of comments they made following Sunday's presidential debate, is completely inaccurate. My hesitation is based solely on the confusion of the content of the 2005 tape, a hypothetical posed by the reporter which was asked in a chaotic post environment -- post debate environment. And of course it's crystal clear that assault is unacceptable. I would never intentionally suggest otherwise. That's basically what you said after the confusion on your first comment. Is that correct?
SESSIONS:
I believe that's correct.
LEAHY:
Thank you. Is grabbing a woman by her genitals without consent, is that sexual assault?
SESSIONS:
Clearly it would be.
LEAHY:
If a sitting president or any other high federal official was accused of committing what the president-elect described in a context which it could be federally prosecuted, would you be able to prosecute and investigate?
SESSIONS:
The president is subject to certain lawful restrictions, and they would be required to be applied by the appropriate law enforcement official if -- if -- if appropriate, yes.
LEAHY:
And the conduct described, based on the description, would be sexual assault?
SESSIONS:
Well, the confusion about the question, it was a hypothetical question and it -- and it related to what was said on the tape. I did not remember at the time whether this was suggested to be an unaccepted, unwanted kind of...
LEAHY:
OK, well let's...
SESSIONS:
... would certainly meet the definition. If that's what the tape said, then that would be...
LEAHY:
My -- my question is very simple. Is grabbing a woman by her genitals without consent, is that sexual assault?
SESSIONS:
Yes.
LEAHY:
Thank you.
Now you were asked earlier about having called the NAACP and the ACLU un-American. You said that was before you were a senator. But as a senator you've committed to be -- you have continued to be hostile to them. You criticize nominees for having what you call ACLU DNA.
Now I remember when Republicans led the Justice Department, his inspector general found the Bush administration engaged in unlawful, politicized hiring practices. That's the Republican administration's own inspector general.
They said the Ashcroft Justice Department used litmus tests whether applicants would be sufficiently conservative. If they were ever in the ACLU, they couldn't have a job. You said in a radio interview, justice has to be safe and secular, progressive, liberals.
OK. Let me ask you a couple simple questions. Are an individual's religious beliefs relevant to the employment at the Justice Department?
SESSIONS:
Not unless it's such that they can't perform their duties in an honorable way consistent with the law.
LEAHY:
What would be an example of that?
SESSIONS:
Well, if an individual so strongly believed that abortion should be unlawful that they use their position to block constitutionally approved abortions, I think that would make them not subject to being employed in the Department of Justice.
LEAHY:
Are you going to have a litmus test at the Department of Justice for people who have worked at civil rights organizations?
SESSIONS:
No.
LEAHY:
Senator Graham mentioned you've long been a champion of states' rights and certainly you and I have had enough discussions on that and I realize those are deeply-held beliefs. But states have also voted on an issue of marijuana and regulation. I believe your own state of Alabama permits the use of a derivative of marijuana known as CBD oil, legal in Alabama, illegal under federal law.
If you are confirmed as the nation's chief law enforcement official and you know that we have very limited federal resources, in fact we're spending about a third of our budget now just to keep the prisons open because of mandatory minimums and what not.
Would you use our federal resources to investigate and prosecute sick people who are using marijuana in accordance with their state laws, even though it might violate federal law?
SESSIONS:
Well, I won't commit to never enforcing federal law, Senator Leahy, but absolutely it's a problem of resources for the federal government. The Department of Justice under Lynch and Holder, set forth some policies that they thought were appropriate to define what cases should be prosecuted in states that have legalized at least in some fashion some parts of marijuana.
LEAHY:
Do you agree with those guidelines?
SESSIONS:
I think some of them are truly valuable in evaluating cases, but fundamentally the criticism I think that was legitimate is that they may not have been falling. Only using good judgment about how to handle these cases will be a responsibility of mine. I know it won't be an easy decision, but I will try to do my duty in a fair and just way.
LEAHY:
The only reason I mention is you've been some very strong views, you even mandated the death penalty for anyone convicted of a second drug trafficking offense, including marijuana, even though mandatory death penalties are of course unconstitutional.
SESSIONS:
Well, I'm not sure under what circumstances I said that, but I don't think that sounds like something I would normally say. We're glad to look at it, but...
LEAHY:
Would you say that's not your view today?
SESSIONS:
It is not my view today.
LEAHY:
Thank you very much.
LEE:
I perked up when he started talking about federalism. And, of course, everything Senator Leahy said was interesting. But the federalism stuff is particularly interesting.
(UNKNOWN)
Praising -- he was praising your legislation.
LEE:
Yes, exactly. I appreciated that too. That was -- that was great.
Federalism is an issue that's near and dear to many of us, and I know it's important to you. The notion that our federal government possesses powers that James Madison described as few and defined. Those reserved to the states are numerous and indefinite.
We were supposed to be a different legislative body. Our federal government was always intended as a limited purpose national government, not a general purpose national government, one possessing complete police powers. We've seen a slow, but steady drift over the last 80 years away from this principle of federalism, such that powers exercised at the federal level today could no longer be described as few and defined, but more appropriately described as numerous an indefinite.
And in light of the supremacy clause in the Constitution, any powers we do exercise through the federal government are by definition replaced from the states. In other words, when our action conflicts with state action, it's our action that prevails in light of the supremacy clause. It's one of the reasons why federalism needs to be looked out for so carefully.
And one of the reasons why a view that I think you and I both share is that U.S. government officials, in all three branches of government, whether they wear a black robe or not, are expected when they swear an oath to uphold the Constitution, to look out for basic structural protections in the Constitution like federalism so that we don't have an excessive accumulation of power in the hands of the few.
So, the Founding Fathers set up this system in which we have these structural protections. We have the vertical protection we call federalism, which we've just described and the horizontal protection we call separation of powers, that says within the federal government, in order to protect us against the risks associated with the excessive accumulation of power in the hands of a few, we're going to have one branch that makes the laws, another branch that enforces the laws and a third branch that interprets the laws.
As long as we keep each branch within the same lane, the people are protected from what happens when one person or a group of people gets too powerful. But over the last 80 years, just as we've seen a deterioration of federalism, we've also seen a deterioration of separation of powers.
You have an interesting set of circumstances with our laws, our controlled substances laws concerning marijuana, in that for the first time in a very long time you've seen some attention paid to federalism, but in the limited area associated with marijuana. In other words, there are federal laws prohibiting the use of marijuana, the sale of marijuana, the production of marijuana, that apply regardless of whether a state has independently criminalized that drug, as every state until recently had.
Then you had some states coming along and decriminalizing it, sometimes in the medical context, other times in a broader context. The response by the Department of Justice during the Obama administration has been interesting and it's been different than it has in other areas. They've been slow to recognize principles of federalism elsewhere. They chose to recognize it here.
My question to you is, did the way they respond to that federalism concern, run afoul of separation of powers? Did what they -- did the department's approach to this issue, that they identified as a federalism issue, contravene the understanding that we are the law-making body and the executive branch is the law-enforcing body?
SESSIONS:
Well, I'm not sure I fully understand the point of your question. But you're talking about separation of powers within the federal government?
LEE:
Yes.
SESSIONS:
The three branches of federal government.
LEE:
Yes.
SESSIONS:
And how do they -- how does that implicate the marijuana laws?
LEE:
Yes. Are there separation of powers concerns arising out of the Department of Justice's current approach to state marijuana laws?
SESSIONS:
Well, I think one obvious concern is that the United States Congress has made the possession of marijuana in every state and distribution of it, an illegal act.
So, if you -- we need to -- if that's something that's not desired any longer, Congress should pass a law to change -- change the rule. It -- it's not so much the attorney general's job to decide what laws to enforce. We should do our job and enforce laws effectively as we're able.
LEE:
Thank you.
I'd like to get back to anti-trust issues for a moment. In 2010 you co-sponsored some legislation that extended the Anti-Trust Division's leniency program, extended it all the way out to 2020. So, it was a 10-year extension at the time you helped to move that through.
The legislation provided that members of a cartel could receive reduced penalties if they reported cartel activity to the Department and cooperated with in the investigation the Department had in connection with theft anti-trust cartel.
Now the Anti-Trust Division within the Department of Justice considers this tool, quote, "It's most important investigative tool for detecting cartel activity." close quote. Because it creates an incentive for cartel members to self-report, to come forward, and to identify things that the Anti-Trust Division needs to be aware of. So, I applaud your leadership in this area because it's been very helpful to the enforcement of our anti-trust laws in the department.
So, I have two questions related to this program, looking forward. First, given its importance, do you think the program should be made permanent and second, are you open to any other ideas that might strengthen the program?
SESSIONS:
Senator Lee, I would not commit to -- commit to you that I have formed an opinion on that. These are very complex areas of the law. I'm not a member of the Anti-Trust subcommittee, as a number of members of our committee are and have achieved levels of expertise like Senator Klobuchar and you and others.
So, I would just have to commit to you that I'm open to hearing the views of this Congress and that subcommittee and would try to work with you, but I do understand that anti-trust policy is an important issue for America and we need to get it right and that would be my goal.
LEE:
Thank you.
One important question that sometimes arises in the anti-trust context relates to what role the Department of Justice should play in communicating with foreign authorities, authorities in other countries that deal with competition laws, deal with things analogous to our anti-trust laws in this country.
The Department of Justice has typically played a leading role, but in recent years it has also allowed the Federal Trade Commission, the FTC, to become heavily involved. To my mind, this raises some potential concerns because the FTC is an independent agency, as compared to the Department of Justice, of course, which is headed by a presidential appointee who, with Senate confirmation, serves at the pleasure of the president.
Do you have any opinion on this as to -- at this point, that the Department of Justice, which is more accountable to the president and therefore has some connection to the people, should be more actively involved in communicating with foreign anti-trust or -- or competition authorities?
SESSIONS:
I really wouldn't attempt to comment today on that. I would be glad to hear your thoughts on it. I think it can be problematic if U.S. officials encourage foreign officials to join with them to -- against an action of a private company. They put -- it could put so much excessive pressure on them that they're not able to resist, and when they may have a lawful basis to resist.
But -- so these are big issues and you have to be sensitive to the power that the Department of Justice has, that the Anti-Trust Division has and make sure that there's a principled policy and lawful basis for what is done.
LEE:
Thank you, Senator Sessions. I see our Chairman's back. Oh, he's not back.
(CROSSTALK)
LEE:
Senator Feinstein.
FEINSTEIN:
It's my understanding that Senator Durbin has not yet had his second round and so I would like to defer to him.
(CROSSTALK)
FEINSTEIN:
I'm going to defer to Durbin because he somehow got missed.
DURBIN:
Thank you very much.
I want to thank the chairman and my friend, Senator Feinstein.
This morning, before the Senate Intelligence Committee, Director Comey of the FBI was testifying on the question of investigating the Russian involvement in this last election. And he was asked if there was any ongoing investigation about contacts between Moscow and the Russians and any presidential campaigns. And he refused to answer, said he wasn't going to discuss any ongoing investigations publicly.
I would like to ask you a question related to recusal. You stated earlier today that you had made the decision, and you haven't given us real background on it, but made the decision that you would recuse yourself from any prosecutions involving Hillary Clinton or the Clinton campaign and e-mails. And then I understand -- I wasn't present but Senator Blumenthal asked you for some other hypotheticals as to whether you'd recuse yourself on an emolument question or some other things, and you said you'd take it on a case-by-case basis.
What if, hypothetical, same as Hillary Clinton, we are dealing with an investigation that involves the Trump campaign or anyone in the Trump campaign, would you recuse yourself as attorney general from that prosecution?
SESSIONS:
My response to the -- my recusal issue was because I'd made public comments about it that could be construed as having an opinion on the final judgment that would have to be rendered. I don't think I made any comments on this issue that go to that, but I would review it and try to do the right thing as to whether or not it should stay within the jurisdiction of the attorney general or not.
DURBIN:
It would strike me that this is an obvious case for a special prosecutor if it involves a campaign leading to a candidate who selected you as the attorney general. Wouldn't an abundance of caution suggest that you wouldn't want any questions raised about your integrity in that type of prosecution?
SESSIONS:
Senator Durbin, I think it would be incumbent upon anybody who's holding the office of attorney general at that time to carefully think his way through that, to seek the advice and to follow the normal or appropriate special prosecutor standards. And so I would intend to do that. But I have not expressed an opinion on the merits of those issues, to my knowledge.
DURBIN:
Senator Sessions, there's been a lot of controversy about refugees. The United States had a dubious record on refugees during World War II, refusing to accept Jewish refugees who were, in some cases, returned to Europe and the Holocaust and perished.
After World War II, a new policy emerged in the United States, bipartisan policy, and the United States became more open, in some cases generous, to accepting refugees. The numbers, I've heard various numbers, but 650,000 Cuban refugees who came to the United States during the ascendancy of the Castro regime, 125,000 or more Soviet Jews accepted in the United States, spared from persecution in the Soviet Union. Four hundred thousand from Eastern Europe after World War II, 400,000 from Vietnam, 150,000 from the former Yugoslavia.
In the audience today is Omar al-Muktad (ph). I don't know you could please stand here. Mr. Muktad (ph) is a Syrian refugee. His story is a story of a journalist who for more than a decade publicized human rights abuses by the Assad regime, arrested seven times, imprisoned for two years. When he refused to stop writing after that, the prison guards broke his hands.
After his release from prison, he continued to write about the abuses of the Syrian security forces. When he was again pursued by the regime, he fled to Turkey. He was resettled in the United States by Catholic Charities after receiving refugee status.
There have been some strong words spoken about Syrian refugees. In fact, during the course of the campaign there were some who said we should accept none, and many have questioned whether we should accept any refugees from anywhere. Despite the lengthy vetting process and background checks, some have said, no refugees; we're finished with that business.
One of your responsibilities as attorney general will be the involvement of prosecutorial discretion, decisions that have to be made about the fate of men like Alton Mills I had introduced earlier, who had served 22 years of a life sentence for the possession of crack cocaine. Cases of Oscar Vasquez, a man who was a DREAMer and wanted to serve the United States in uniform. And this case involving Omar al-Muktad (ph).
The American Bar Association standards say the duty of a prosecutor is to seek justice, not merely to convict. It is an important function of the prosecutor to seek to reform and improve the administration of criminal justice.
When it comes to cases like these, in your role as the leading prosecutor in the United States of America, what is your feeling about your discretion to make the decision as to whether or not to spare individuals like those I've described?
SESSIONS:
I've been made aware in the last several years how this process works. It's really the secretary of state, usually through consultation with the president, that decides how many refugees should be admitted to the country. And there's little Congress can do other than getting into a funding argument with the president about that.
So Secretary Kerry met with members of the Judiciary Committee to announce what he planned to do on refugees. That will be how it would be decided, and legally the president appears to have that power. But it would be my responsibility, I think, to make sure that it was exercised within the bounds of law.
DURBIN:
But you have a responsibility too. You oversee the office of the pardon attorney, which recommends that sentences like those of Alton Mills be commuted. You oversee the immigration courts, which are responsible for interpreting how our nation's immigration laws apply to DREAMers and refugees like Mr. Muktad (ph).
So this isn't another agency. It is the Department of Justice, and you will be the leader of that department. You will have the authority and prosecutorial discretion. You can't point to Congress and you can't point to the State Department. There's a responsibility within your own department.
SESSIONS:
Well, a refugee is admitted or not admitted to the United States on the approval or disapproval by the secretary of state and his consular officials. It's not a trial or not a litigation. So that's how that would be determined.
The gentleman from Syria that you mentioned should have -- be able to make a strong case for his acceptance as a refugee because he's been damaged and injured and attacked and at risk for his writings, so that would give him -- proving that should give him -- put him at a higher level of potential acceptance.
DURBIN:
Well, you and I can disagree on this one point on your authority over immigration courts as attorney general. But I hope that we both agree that there are compelling cases of people who are victims around the world of terrorism and war, discrimination and maltreatment, men and women. And many of them look to the United States as the last possible place for them to find safety and security.
I hope after the heated language of this last election campaign that we can come back to some of the standards that have guided this nation since World War II.
SESSIONS:
Well, we will not end the refugee program. I would not favor that. But we do have a responsibility to be careful and make sure those who are admitted have been properly vetted and are not a danger.
DURBIN:
Thank you.
GRASSLEY:
This is what I'd like to do. The votes kind of made this a convoluted rounds that we're in here. One person's had third round, we've got one person with no round. So this -- or without a first round. And then Senator Sessions would like to take a break.
So here's what I'd like to do, Senator Sessions, if it's OK with you. I want to go with Senator Hatch, Senator Feinstein for their second rounds, and then Senator Kennedy for his first round and give you a short break at that point. Is that OK?
SESSIONS:
That would be good, thank you.
GRASSLEY:
And for the benefit of the rest of you, I kind of got lost out of this, but I've got to be here for the rest of the meeting, where maybe some of you don't have to be. So I'll wait and do my second, third and fourth round when everybody else is gone.
FEINSTEIN:
Was that nice!
(UNKNOWN)
Now me?
(LAUGHTER)
GRASSLEY:
Now it's...
FEINSTEIN:
Senator Hatch?
GRASSLEY:
Senator Hatch, yes.
HATCH:
Senator Sessions, I think you've done a terrific job. I've known you all of your 20 years. I've watched you work diligently on the Judiciary Committee and on your other committees as well. You're an honest, decent man, and you have tremendous abilities in law enforcement