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tv   Key Capitol Hill Hearings  CSPAN  January 29, 2015 4:00pm-6:01pm EST

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and scholars signed a letter just this past november expressing that same view in strong terms. this is the mainstream view among those of us who have spent our careers teaching and researching immigration law. the president has not just one but multiple sources of legality or these actions. i have submitted detailed statement that documents these uses and identifies all legal objections that the president's critics offers. none of them can withstand scrutiny. i will hit a few key points and refer you to the written statement for all of the other points. i think all now, in a world of limited resources, a discretion is unavoidable. you cannot go after everyone in the case of -- everyone.
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establishing national immigration enforcement policies and priorities. that alone would seem to suffice but in addition, congress knowingly gives the administration only enough money to pursue less than 4% of dan documented population. that is the clearest evidence possible that congress intends for dhs to decide how those limited resources can be most effectively the boy. they have required you to just do require three things -- not full security, border security and the removal of criminal offenders. those are three priorities that these memos incorporate. we have the 2012 supreme court decision in arizona where the court struck down most statues because it wouldn't appear with the federal government.
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some critics claim that if the recent executive actions are legal, that would mean there are no limits at all and some future president could extend enforcement of another lot. it does not approach the hypothetical, nonenforcement that that argument conjures. if the president were to refuse to substantially spend the resources congress has appropriated, i believe we would have a serious legal issue but that is not close to the reality because the president still would have only enough resources to go after a small percentage. as long as he continues to use those resources, it is hard for me to see how that could be called an application. not only has congress never acted to prohibit or restrict, it is reform it doubly recognizing in several positions
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-- provisions. a long line of courts, including the supreme court have recognized it by name. not one of these local authorities intimates -- legal authorities intimates. the same is true for work permits. the regulation specifically makes deferred action recipients eligible. some of that is ok on an individual basis. nothing actually says that. almost every modern president has rented reprise from removal and work on this -- premise. the secretary of novembers memo is filled with repeated instructions to officers that even if the general criteria is satisfied, they still have to make individualized i'm a
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case-by-case discretionary judgment. the very form that officers are required to use when they deny deferred action, contains a list of the reasons and one of those reasons is discretion. i think this is a way and agency should work. it articulates and expects judgment to be used. think you very much for your time. -- thank you very much for your time. >> i thank you for the honor of appearing before you at a historic moment looking for the confirmation of the 83rd attorney general of the united states. loretta lynch's extraordinary career as a prosecutor pays great credit to her and her nomination. if confirmed, i believe she
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could be a truly great attorney general. the great leaders are shaped at great moments in history. this could be such a moment for loretta lynch. the justice center is at a crisis that consumed her predecessor and his department. my focus of my testimony today is less on what lynch then on the department she wishes to lead. i have been concerned about the erosion of the lines of separation of powers or many years, particularly the erosion of legislative authority in this body and the house representative. that concern has grown to alarm under president obama, someone i voted for, someone with who i happen to agree on many issues. we are watching a fundamental change in our constitutional system. it is changing in the very way that the framers warned as to
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avoid. the justice department is playing a troubling role in those changes. attorney general holder has moved his department outside of the navigational beacons of the first and second articles of our constitution. ms. lynch could be inheriting a department that is floundering. the question is whether she can or will go back to calm her constitutional -- calmer constitutional waters. they seek to deny every branch the power to govern alone. our system requires consent and compromise. it goes without saying that when we are politically divided as a nation as we are today, less things get done.
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that division is no license to go it alone as the president has suggested. you have only two choices. you can seek the can venture adversaries or you can seek to replace them . there is nothing noble about circumventing the united states congress because it means you are doing that to the constitution. any person who claims they can get the job done alone is giving the very sirens call that the framers warned us against. i have laid out examples of how this change is occurring. i have divided it between obstruction of legislative authority and the use of legislative authority. it includes the blocking of the contempt citation, the nondefense federal statutes.
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also, the legislative changes we are talking about today. the american people have been poorly served in recent years by the justice department. the balance that has been thought -- sought in recent years has been lost. the rise of a dominant executive within our system. it is certainly true that the framers expected much from us. no more than they demanded from themselves. they expected this institution to fight over its own authority. they gave you that authority not to protect your power . the separation of powers is designed to protect liberty from the concentration of power. it does not matter what party we are from and if we agree with what the president has done. he has chosen on where the means under the constitution. the justice department has been
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a catalyst. in exercising the power of confirmation, this body has an undeniable interest in government the nominee will address these relational breaches. i can only imagine the bride that loretta lynch's family will have when she raises her hand to take the old of office. when that moment comes there -- oath of office. it should be made clear what she is pledging allegiance to. the department she leads should be the embodiment, not the enemy of the separation of hours. it is a covenant of faith and we hope she regains that faith as he takes over as she made the department of justice -- she
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may, the department of justice. >> good morning. i've honored to address you about a frequent news topic -- american policing at the local level. this is focusing on the confirmation of possibly the next attorney general of the united states, writer lynch. i wish her well. i want to spend time critiquing eric holder's tenure and use it as the framework as a way forward. the mission statement oft is to defend the interest of united states according to the law. according to the law to ensure public safety, provide federal leadership, to seek just punishment for those guilty, and do ensure impartial administration -- to ensure.
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i have the the united states department of justice as an ally in the pursuit of justice. local law enforcement has always been on the frontlines in seeking just punishment as the mission statement implies. what i have witnessed from the department of justice under the leadership of eric holder has been almost hostility toward local law enforcement. i have seen this both in public staples in policy decisions that three police officers as advocate areas -- adversaries instead of allies. what we all witnessed in ferguson was a tragedy. an unfortunate incident. what followed compounded that tragic situation as people across united states converged on ferguson to exploit the situation for self-serving
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purposes. suffice it to say that was not america's finest hour. in the days and weeks that followed in ferguson, the police related use of force was a forefront in national news. when the doj inserted itself into the process, it was an appeal to reasonableness, responsible rhetoric and cautioning against a rush to judgment. instead, powerful people made statements that heightened rising tensions. race is, has been coming and will always be an explosive issue in america. rhetoric is by eric holder created a pathway for false narrative that then became the rallying cry for people across america. it sparked a justified hatred toward america's law enforcement agency and its officers. not a shred of evidence has been used to align the arbitration of
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the profession of policing in the united states. the activision has been made that our community systematically engages in the back is a targeting black men because of the color of their skin. that claim is false. if i am wrong, someone needs to show me the evidence. officers at the local level put on their uniforms and though out every day to make their communities better and safer with which to live. without them come argument it is would collapse into chaos. the roll bars officers -- the world are officers manage is chaotic. after a transparent investigation, the evidence of a particular case will be applied to the rule of law standard for decisions about their actions. after putting their lives on the line, they do not deserve a standard of false narratives,
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frequent concessions misconceptions, emotional rhetoric. thomas soul said in thought-provoking bees, it police are told if they are under arrest and refuse to come to the police, they cannot be forcibly taken into custody, we do not have the rule of law when the law itself is downgraded to suggestions that no one has the power to enforce. where do we go from here? how do we get beyond this damage relationship between local policing and the u.s. doj? my suggestion is for the next attorney general to articulate clearly a renewed commitment to rebuilding trust with local law enforcement. that involves open communication with aan emphasis on listening to law-enforcement executives. please stop undermining the character and integrity of the american law-enforcement officers. next, resist at the federal level to interfere with local
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police training standards. are cvoops perfect? far from it. we already have state standards for training. i want to speak on two emerging issues. sentencing and prison reform. any discussion about reform that does not include a counter view about the consequences of this short-term technical fix and its impact on crime victims will have a catastrophic consequence. the black community does not have the support structures in place or in an bloodsucker real
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criminals sent back into the community or to deal with the criminals who currently rained terror in neighborhoods. adding more crime and violence do that mix will only bring more misery to the overwhelming number of decent, black law-abiding citizens just trying to get through life against already great odds. before not simply lowers the bar is nothing more than normalizing criminal behavior. thank you very much. >> thank you. i thank you for the opportunity to testify. the committee is rightly focused, decided to exploit not just the qualifications of the nominee but also the proper role of the office. i take no position on the ultimate question of whether the nominee should be confirmed rather i offer some observation about the proper role of the attorney general and some
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comments on the ways in the current administration has fallen short. you have explored at length the attorney general's responsibility to supervise the berries component of the department of justice. the most important response ability -- response ability is not be --responsibility. her most important job is giving sound legal advice to the president of the united states. perhaps the most important dimension of this function is to advise the president on the scope of his executive powers. the attorney general should rightly explore all legal options for the president to achieve his goal. at the end of the day, if no legal options are available, the attorney general must be prepared to say no, mr. president, you have no constitutional hour to do that.
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in in power -- power to do that. it is the single most important job criteria for attorney general of the united states. it is particularly important now in an administration that is decline -- inclined to trust the balance and skirt the obligation. the committee will explore the faithful execution of the laws and resolve to advise the president. the constitution provides that the president should take care that the law he faithfully executed. note that this is not power, it is the imposition of a duty. the president shall take care. it is personal. execution of the law is delegated by the duty to take care of the law is the
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president's alone. note the president is not required to take care of the law to be completely executed. that would be impossible. he does have the power to make enforcement choices but must make them faithfully. it is important to remember the historical context of the clause , english kings claimed the power to suspend laws unilaterally. these principles in mind, we can turn to three recent examples. first, the obamacare suspension. on july 2, two thousand 13, the obama administration announced the president will unilaterally suspend the employer mandate of obamacare. notwithstanding the unambiguous command of the law. the statute is perfectly clear. it provides that these
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provisions become effective on january 1, 2014. this log post -- blog post makes no mention of this deadline. what ever it may need to take care of the law being faithfully executed, it cannot mean declining to execute a law at all. second immigration is almost an exact mere of the first. rather than declining to comply with the duly enacted statute, the president has decided to compliment a carelessly but with a bill that never became -- with a bill meticulously. congress declined to pass it. on june 15, 2012, the president announced he would simply not enforce the ina against the category of aliens.
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he would act as though the dream act had been enacted into law even though it had not. this is clearly not an effort to conserve resources. more than 1.7 6 million people were exempted from the immigration law. professor cited an unsurprising consensus. lawmakers approving the most legal action. the president of the united states a few years ago "america is a nation of laws. i am obligated to enforce the law with respect that i can suspend deportations through executive orders. there are laws on the books that
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congress has passed. there are enough laws on the books by congress that are very clear in terms of how we must enforce our immigration system then for me to ignore these congressional mandates. it would not conform with my appropriate role of president. " i hope the nominee would agree with this statement. i would be happy to answer constitutional questions on that topic as well. >> good morning, mr. chairman. members of the committee. i am a founder of the vote, a nonprofit initiative to protect voters rights and promote election integrity. i am your today because i was targeted by this government for daring to speak out. i have become a living example of this kind of trickle-down tyranny that is actively
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endorsed the current administration and rigorously enforced by the department of justice. over the past few years, the department of justice has made their role known. since filing for tax exemption with the irs and 201 my private businesses, and in 2010, i have been subjected to instances of audit, . all of these inquisitions began only after filing applications for tax exemption. there is no other remarkable event or rationale to explain how i find myself on the receiving end of interagency coordination against all facets of my life. i share that time one has a part of testimony given in february 2014 before a hearing.
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time did not permit then nor does it now to get a full account of the cast of characters and events that fill my binder with over 800 pages of government subterfuge. the department of justice has found its way into almost every aspect of my story. in attorney's testimony last year, she spelled out for the committee widely believed the department of justice investigation into the irs targeting scandal was a sham. within hours of her filing, she received a phone call from the department of justice now suddenly wanting to interview me. it was the first time we had been contacted after the investigation had commenced. an arrangement was made with the department of justice but we were told that the civil rights division would also be participating in my interview. this is significant because at the time, that same civil rights
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division was fighting against my nonprofit. the doj told my attorney that unless i was willing to wave my rights to the involvement of the civil rights division that they would not interview me at all. to date, they still have not. a handful of months later, we met the doj again this time as they represented the internal revenue service in a lawsuit through a vote filed against the rrs in 2013. they assured the judge there was no more evidence that could be recovered from any of the hard drive trashes --crashes. all of the contents from all of the hard drives was lost. this dead end went on to become a factor in the judge's decision to dismiss our case.
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just one month later, the treasury inspector general investigation turned up an additional 2.5 million e-mails of which 30,000 -- is there a will to get through the truth behind this nightmare citizen targeting? the department of justice has operated as a rogue agency work reservation of personal liberties runs a distant second to reservation of political power. will this new leadership the any different? as the leader of a voter rights organization i was externally disappointed to hear what alleges comment in a speech she made last february when she said that voter id laws were passed in the deep south so that minority voters would be different franchise. further, that she applauded doj's lawsuit filed against
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those states and promised those lawsuits would continue. 70% of americans believe that showing photo identification in order to vote is a commonsense safeguard. should we count on contain continued resistance? the most significant voter disenfranchisement currently facing our country was made possible by the president's recent order of executive amnesty. states are not prepared to deal with the incoming influx of illegal aliens wanting social service programs. federal law requires that these programs offer voter registration opportunities which is a wonderful thing for american citizens. these programs were not designed to verify citizenship leaving many states about the necessary firewall to ensure that noncitizens do not end up as registered voters. every vote cast by a noncitizen
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disenfranchises the vote of a citizen. we know mr. holder is a proponent of amnesty. where will already lynch stand on the issue? in a 2000 nine speech, general holder called america a nation of cowards. if you remember nothing else remember this. i and not a coward. i am not a victim. i am a messenger for all of those americans who love our country, love our fellow countrymen and pray for a better tomorrow. i am here to say our country right now is that a tipping point. we have replaced rule of law. in all of the doublespeak, we have become increasingly unsteady about how we factor into a future left in the hands of our current leaders. please be bold, please choose wisely. america is watching. thank you.
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>> i am going to call in just a minute. i am going to call on chairman leahy to ask the first questions because he cannot come back this afternoon. you said you wanted to say something. >> i just wanted to mention that the only reason we are not issued a report so far is that as you mentioned, there were more e-mails discovered. the irs has not released those to us and we have to go through those before we issue a report. you have my total sympathy for what you have gone through. >> thank you. >> he is speaking to chairman of the finance committee. >> thank you chairman. i appreciate your courtesy.
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>> a number of justice department officials with the bush administration, and various democratic administrations, the fbi agents association i will list all of them. >> they will be listed, senator leahy. >> we have nine witnesses here today for those who oppose loretta lynch as fbi director. will they please raise their hands? attorney general, i am sorry.
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those who oppose her as attorney general please raise their hands. let the record showed no hands were raised. it is amazing, your record. you started off as a beat cop in nevada, joined the at the eye, and 23 years later you are heading off the largest bureau office. some of the investigations you had underway, especially in the terrorist area were remarkable in their complexities. you also dealt, as you said, with loretta lynch during that
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time. do you believe she has the temperament and demeanor to be attorney general? >> senator, might two years exposure working alongside, i say alongside because it was a truly seamless partnership, i think gives me a little bit of background and experience to say that i firmly believe that loretta lynch possesses all of the necessary attributes that the nation should demand of a independent attorney general. i wholeheartedly support her nomination and confirmation. >> i don't want to put words in your mouth, but do you find she would make independent judgments? >> yes, sir. that was part of my opening statements. one of the three attributes i wanted to touch on is that she operated independently, did not bow to outside influences, look at the facts and issues. when she was confronted with an
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issue, she gathered input from stakeholders solicited their input. she took a look at the law. she made sure that her decisions were wholly based on the law. >> your career in law enforcement is longer than mine, but during my years, what we wanted was independence. i appreciate that. it is nice to have you back here. you were in the other committee room. do you believe that loretta lynch has the independence to stand up to others in the executive branch, including the president? she feels that she is in the right, and has to stand up to do her job as attorney general. >> yes, senator, i do.
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in my experience working with her on it different issues, seeing her in a variety of circumstances, i have always known her to be thoughtful, well prepared, and somebody interested in the facts and the law. i don't believe the president or anyone on this earth could get her to make a decision that she did not believe was right and had a firm basis in what her duty was. >> in a letter, she talks about being a part of a group in italy at a funeral. she said that she was there with him on that because of her attitude about organized crime. i have known her preferably over the years -- peripherially, but
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you haven't known her longer than all of the rest of us. do you believe she would stand up for what is right, no matter who she is pressured from? me, the president, senator grassley, or you? >> user microphone, please. >> absolutely senator leahy. she would demonstrate independence in a most constructive of ways. one of her greatest attributes is her ability to hold forth with the strength of her own convictions, having prepared herself thoroughly, thinking through matters very come principally, having identified the issues in a way where she could indicate her position that would garner nothing but the highest respect. >> young austin being accrued by
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the young attorney general of the united states, i had asked him whether he would stand up to the president of the united states if need be. he assured me he would. later he did when he prosecuted a man who was essential to the election of the president as president. and i asked later about that, i said attorney general robert kennedy, what was the reaction? >>he said, i stayed away from family gatherings. [laughter] i have seen him many, many times. the house republicans have hired you to suit the administration in another area. -- sue the administration.
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taxpayers will pay your fee. they are not paying huge million dollars, are they? >> no, no one has offered me $3 million. >> what is the hourly rate you charge? >> it is set by contract, but i believe it is 500. but i want to correct, i am not working for the house republicans, but the house of representatives. >> do you get paid for your testimony here today? >> no, of course not. >> the question i have first was
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the one i appreciate the answer the most. i hope we can move on. many of you have questions about past operations of the department of justice. i have some disagreements with that, but i think we are talking about the remaining time of this administration. frankly, as one american, and is a former prosecutor, and as the longest-serving member of the senate one who is voted on a lot of attorney generals, i feel very confident in voting for lynch as attorney general. thank you mr. chairman for your courtesy. >> i want to start out with met adkinson. in your testimony, you say --
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can someone fix this microphone? in your testimony, you say you have a long career. [mic feedback] i am sure you have dealt with pushback from people before, but what makes your view different? >> i do different to some of my colleagues, who say that this was the most difficult administration they have dealt with. another correspondent said this was the most closed president she has dealt with in seven presidents she has covered. i see this as a high point on a trajectory of the continuum,
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meaning every administration it seems to be worse in the last. although they come in promising openness and transparency, they seem to pick off where the last one left off. there hasn't been much pushback from congress and the media in some cases to keep that balance. of course the government tends to covet information, separate itself from the public, and treat itself as one and a part. we are supposed to create a balance so it doesn't get out of whack. we have not done a good job in the last couple of years. the administration has employed a very aggressive techniques not available years ago such as using social media and surrogate loggers to put out balls false information to controversial eyes reporting we have done on other administration. that has been somewhat successful. >> you say in your testimony that you attended a testimony at
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a justice department. >> the press officer called back immediately and said don't bother to come, she would not clear me in the building. although i have a press pass, i have been cleared in the past, but she was not going to clear me through building security. she did not give a reason other than they wanted the normal reporters to attend. i can't tell you how improper that is in my view. that government officials that control public assets misuse their authority to handpick reporters that cover their stories. they keep out, in some cases, more knowledgeable reporters that have been covering that particular issue. that had never happened to me before. i never try to go there afterwards. it was a very important thing that was done, and i think it
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was improper. >> do you think any of your colleagues and fellow journalists pull punches as they thought they might be bar red? >> i do not personally know. i think the reporters on the ground to a great job, but there are managers and editors. i have spoken to executives from three networks that have given instances where they have been specifically threatened with the loss of some access is the news organization takes a certain course. that threat is certainly felt. >> my next question is we are not here to talk about her qualifications, nobody questions that but whether she can make changes in the department of justice. what do you think needs to be done to have a effect on the press? >> i think it is more than just the physical steps.
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it is an action that is seen and the message that is perceived. regardless of steps that have been taken to mitigate damage, there is still a large distrust of the justice department, and in some cases government in general. there are members of congress and staff and journalists who constantly talk about, whether it is true or not, that they believe they are monitored on their phones and computers. how you get past that suspicion created by the actions we have seen is going to be difficult. one very tangible thing that could be done, and i won't belabor it, but it has to do with the freedom of information. it is pretty much senseless now in its application of the federal level. it has been used as a tool to obstruct and delay the release of public information. even if you go to court to get your public documents, that is a
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taxpayer expense. it still serves the delay that the bureaucracy wishes to serve and even if they had to play the painting plaintiff's fees, they get rewarded for a job well done because they have obscured the public documents. >> you just described my last question, so you don't have to answer it. just to make clear, you felt your computer was hacked, you filed or information on it, and you still don't have an answer, is that right? >> yes. i filed a request for general information 540 days ago. this is very typical of responses. i got a very partial, incomplete response last night to make for your request i made with the inspector general that did not
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include the forensics that came along with conclusions and summaries. that will be able process who knows if i will get those documents. this is very typical that reporters tell you. >> in may 2013, general holder announced he ordered the department of justice detective criminal investigation for targeting conservatives. he called the irs practices " outrageous and unacceptable." when did the department of justice are's reach out to you about your ordeal? >> we heard nothing from the department of justice right until the day we were to testify before the house subcommittee. my attorney and diet were prepared to testify. she filed her testimony, in
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which we were very critical of what happened. it was not hours later that the department of justice called for the first time to speak to us. so nine months approximately. >> sewed nine months general holder reached out to you. what prompted him to do so, do you have any idea? >> i think it was that testimony that was filed. it left no stone unturned about what we experienced. >> let me get this straight, attorney general holder announces an investigation that the irs is attacking groups like yours, and nine months later it takes a congressional meeting to get you contacted? you just said yes to that, that is disgraceful. to your knowledge, who did they talk to before they reached out to you? >> we saw all over the news that
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they were talking to lois lerner and others inside the department. i was in a very regular contact with lots of other leaders of other organizations that have been targeted. to the best of my knowledge, no one has been contacted still. >> mr. chairman, i will note that the alabama tea party leader that was victimized has still not been investigated. --interviewed, even though i asked the fbi director to do so a long time ago. >> to date, you have not been interviewed by the fbi? >> note sir, they did ask about nine months ago. it was on the contention that they would have the civil rights division in, i was not willing to do that is they have been on record opposing my organization. >> i don't like you for declining to speak to the department of justice if i had
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been suggested to 15 audits and inquiries from four different federal agencies in less than three years, i would only want to meet with neutral and fair investigators, certainly not a person appointed to do this investigation who also had an outstanding record as a resident obama campaign donor. has the department of justice or anyone else advised you while the full power of federal agencies descended on your doorstep? >> no sir, but i would like to know. >> i am at a loss here. let me: i staff call on my staff. >> i appreciate what you have gone through. i cannot say much about it, but we are getting to the bottom of the. we have party gotten already gotten
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to the bottom of it. i'm going to be a strong supporter of her nomination. i believe she is not only qualified, but exceptionally well-qualified, and they great person to boot. president obama was here today to serve as -- on this committee the chief attorney, my companion here in the senate, senator lee. yesterday i asked mr. lynch whether the attorney general has the constitutionality to in laws that there are reasonable arguments to do so.
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i like your comment on one specific issue that i raised. general holder did not decide ever to decide to defend the constitutionality of the act but to stop defending its constitutionality. mr. holder decided to stop making them. that is what made me say that he has abandoned his duty. do you agree? >> i do agree, i think the decision was wrong. i was a critic of doma. i thought the abandonment of the defense of doma was an amicable to the rule of law. i thought it violated the body. you know there has always been this tension between the congress and the justice department as to who can be in court defending these things.
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the justice department has always said they are the exclusive resentments. >>what is troubling is that there is no definition in the attorney general's position as to when they will abandon a federal law. i agree with the criticism of the law. but there were plenty of people with good faith arguments including people on the supreme court. if this is the standard for abandoning a federal statute, i can see a president doing this in a host of other statutes. >> you are right about that, i appreciate your comments. it discusses the controversy over recessed appointments. the idea that the president has the authority to tell the senate when it is in or out of recess is astounding. i am glad the supreme court unanimously rejected the supreme court's position on that matter.
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the administration's defenders repeatedly said that this is really only about wisely using limited resources. you referring your statement to the " ill-conceived strategy of the justice department." defending this position on recess appointments. i wonder how many resources department uses pursuing these extreme positions in court that as i said yesterday, got shot down so many times? >> absolutely. i testified after the appointments were made. i said in my view, even though i thought highly of the nominee, they were frequently unconstitutional. >> that is one other reason i admire you. you are so wrong on so many things, but you stand up for this. [laughter]
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you're prepared statement refers to november 2014 letter from immigration law scholars. it states that the president action for accountability program is within the legal authority of the executive branch. but didn't the department own executive council concludes that " the proposed deferred action parents would not be permissible exercise and enforcement discretion." it seems to be rather into efficacy rather than analysis, disagrees with scholars on this issue. >> senator the llc memo granting deferred action to those children who had arrived at an early age and in addition granting it to the parents of you with citizens and lawful
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permanent residents. while at the same time suggesting it may not be legal to extend the bird action to be parents -- deferred action. i personally disagree with the latter decision. otherwise that was well articulate it. >> i thank you for your advocacy and leadership for the people of this country. and for coming here today and getting your testimony. as i observe the reactions to the incidents like that in ferguson missouri, i to become concerned about this rhetoric and the broad brush pictures that seemed to be developing about law enforcement. we heard elected officials claimed that police officers were indiscriminately shooting black men, simply out of fear. those incidents happened at the local level and involved local law enforcement.
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how much do you think the attorney general can affect the situation negatively or positively? >> thank you senator, a lot. the attorney general of the united states is a big stage. when he or she talks, people listen all across the country. it gives the impression that that is the policy of the united states department of justice. they had to choose their words carefully. >> thank you. miss atkinson, i don't know what your politics are, but i admire you greatly. you are what an investigation reporter ought to be. frankly, your testimony today has been found, very strong. it ought to wake everybody up at the justice department and in the administration, and in all administrations. this one, and any in the future. you are doing a great public
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service year in having the guts to take the positions that you have. i have a lot of admiration for you. mr. rosencrantz, during the history hearing, prosecutorial discretion involves resources in social decisions. i said applying that category to individuals is the same effect of changing the law itself. do you agree with that? >> yes, i do. it is not a clear line one can draw, but when you talk about exempting millions of people from an act of congress, this looks more like legislation then enforcement discretion. >> the professor justifies discretion in a categorical fashion.
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the courts use the word individual more than a dozen times. for example, it discusses " the power to bring criminal charges against individuals." and whether " an officer has probable cause to decide whether an individual is removable." in fact, one of the quotes from the court's opinion that the professor includes in his statement says " the inequities of it in the ritual case may turn on many factors." does that support discretion for enforcement factors in a categorical way, which is the fact of change the underlying statute itself? >> i quite agree with you senator. the traditional conception of prosecutorial discretion has been case-by-case. >> the attorney general's
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fortune is to advise the president on the scope of his executive powers and duties. does that function happen on a blank slate, or to the essential principles of our government actually council attention to presidential power? >> i think the core of that responsibility is that the attorney general thinks hard about the meaning of faithful execution of the law. and to counsel the president when he is close to the line of on people execution. >> in other words, is the attorney general there to find some plausible, theoretical justification for what the president wants to do, or is she there to enforce the real power for all of our liberty? >> the attorney general should help the president find eagle ways to do what he wants to do, but it is a central at the end of the day to say " no mr.
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president, that is something you cannot do." >> thanks very much mr. chairman,. i'm going to be very brief. this is a hearing to discuss the qualifications of the nominee. in this case, a very distinguished, very exceptionally well-qualified nominee. on a virtually any area one can state. i don't want to see that the managed by a critique by various people of the administration. to me, loretta lynch is an outstanding role model, not only for women, but for all of us in this arena. because as you can see, this arena has become so partisan. so partisan that the use of a hearing for the qualifications of a nominee to be used to
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criticize the administration in areas that loretta lynch had nothing to do with. i guess that's the coin of our realm here, but i mean, i remember other nominations where if the issue was independence, where nominees fully admitted and the ranking member mentioned this that they were a wing of the staff to the president. so i think we have a very special nominee in front of us. very skilled, very determined, but most importantly, i think she's used her life so well to be that combination of what was said by one newspaper "combination of velvet and
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steel." and to see the impact of that on the strong support that she has for all of us in this arena i think is a kind of role model as how you -- there are a lot of people that know how to separate everybody. there are very few people that know how to bring people together again and really develop a kind of consensus that can lead us forward. and because this institution is so split, the role of loretta lynch in this day and age i don't think can be underestimated. so the fact that when senator leahy asked the question -- i forget how he put it -- which of you is in opposition to loretta lynch? no one raised their hand. and i think it's that way throughout the nation. i think we should get on with the business. we should see this woman confirmed as quick as possible. thank you very much. that's my statement. senator whitehouse.
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>> before i start claiming my time, let me say where we stand in terms of what's going on here because the chairman has just had to leave for a vote and he has left me instructed that if senator lee arrives or if another republican arrives at the conclusion of my time, then they will be recognized, but if no one else is here, then we'll recess at that point until 1:00 p.m. is that correct? ok. good. let me take my time to sort of review the bidding, where we are. no witness present today opposes ms. lynch as the nominee for attorney general. ms. attkisson is here as a litigant against the united states with her lawyer sitting beside her. her testimony never mentions the nominee. and i would ask, actually,
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unanimous consent that the redacted version of the i.g. report related to her claims which she now has, be made a matter of record, which, without objection, it will be. mr. barlow supports the nominee enthusiastically. reverend newsome supports the nominee enthusiastically. ms. fedarcyk, to use her words wholeheartedly endorses the nominee. mr. legomosky's testimony does not make clear whether he or does not support the nominee. may i ask you if do you? >> i certainly do. thank you for asking, senator. >> that's made clear. mr. turley says that his interest today is not to discuss ms. lynch as much as the department she wishes to lead.
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but he goes on to say he has no reason to doubt the integrity and intentions of ms. lynch, who displays obvious leadership and strength of character. sheriff clarke is here and wishes the nominee well. but he goes on in his testimony to say, i want to spend some time critiquing eric holder's tenure. professor rosenkranz takes no position on the nominee, but comments on the tenure of eric holder. is that correct, professor? and ms. engelbrecht -- did i say that right? ms. engelbrecht is an advocate for voter identification laws who would like ms. lynch to agree that voter identification laws are not efforts to suppress voting, but took no specific
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position on the nominee. is that correct? >> most specific positions, i have all the hope in the world it will work out. >> so let me say two things. one, some many years ago george washington set for himself what he called his rules of civility and decent behavior. he wrote 110 rules of civility and decent behavior to help him guide his own conduct in upright and honorable ways. i think it was rule 89 of those rules of civility and decent behavior that george washington
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kept that said the following -- speak not evil of the absent for it is unjust. there are plenty of forums where the attorney general would have an opportunity to defend himself. this is not one. there is no forum here. there is no opportunity here for attorney general holder to answer these various charges that have been made. i think that is fundamentally unjust, and i think it is frankly beneath the dignity of this committee at a time when we have a very significant and solemn charge before us to determine the fitness of a specific individual to be attorney general of the united states, to launch a series of
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unanswerable attacks. i have no problem with the attacks. my problem is the choosing this forum for them where the other -- the individual in question has no chance to answer i think fails president washington's test that one speak not evil of the absent, for it is unjust. with respect to the other issues, i think we will have plenty of time to ventilate those in other forums. i'm sure we'll have plenty of time to address immigration, address voter i.d. and voter suppression, address surveillance, address all of those things, but once again in this forum, there's no opportunity for another side to be presented. time to address immigration, and i regret that this hearing and this solemn occasion has been coopted to that extent and turned into what appears for a sound bite factory for fox news and conspiracy theorists everywhere.
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we actually have a nominee in front of us. she appears, by all measures, to be a terrific person. i think we should get about the business of confirming her and get about the business of voting on her. and if people have this strength of view that attorney general holder is not a good leader of the department of justice, the very best way to act on that would be to confirm ms. lynch as quickly as possible. i happen to disagree with that view. i am proud of what attorney general holder has done. and i would once again reference that he did not inherit a department of justice that was in good order. the office of legal counsel had written opinions that were so bad and so discreditable that even that administration was forced to withdraw them once they saw the light of day and received peer criticism.
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u.s. attorneys of republican and democratic persuasions and appointments alike rose in irritation and anger about the effort to manipulate the united states attorneys that exploded into a scandal. there was that rather creepy midnight assault on a sick attorney general in the hospital, when white house lawyers came over to try to get his signature on a document, and thankfully now f.b.i. comey director put a stop to that norn sense and ultimately the attorney general of the united states was forced to resign from that office. so stepping into that mess, and there were plenty of other features i could add, i think that attorney general holder is entitled to great credit for having put that department back on its feet.
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i understand that he made decisions that people disagree with. i for one believe that those decisions are within the bounds of legitimate debate. i'm not suggesting that my colleagues need to agree with them, but i think to personalize them so much as to say that it shows a moral or personal defect on his part reflects really more the narrowness of a specific ideology than a true judgment about the merit of a man who has served his country as a united states attorney, as the deputy attorney general, as a judge and as attorney general with what i consider to be great distinction. so with that i'll conclude my remarks. i see my friend and former attorney general colleague senator cornyn here as well so under the chairman's direction as i yield my time it will go, as i understand it, to senator cornyn. ok. i yield my time. >> thank you.
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i would thank my colleague and -- who i work with on a number of important matters. we're working on some important prison reform legislation, demonstrating that dysfunction hasn't taken over everything here in washington, that we can actually work on things even though we have other differences. but i just have to -- i just have to disagree with him. and i guess he disagrees with himself because while he criticized the criticism of attorney general holder, he seemed to recall with great clarity the problems with the bush justice department -- or at least things he disagreed with. but that's the great thing about the united states senate, and about our great country, where all of us ought to be free to express our views without fear, certainly of government intimidation and, ms. engelbrecht, i'm glad to see you
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personally, but i find your testimony once again chilling, and i admire your courage. and it can't be easy for a citizen to fight their government with all the vast resources arrayed against you. and i just want to assure you are not alone. and senator hatch, who's chairman of the finance committee, which has jurisdiction over the internal revenue service, he's an honorable man, and i know you can count on his commitment as well to get to the bottom of some of the matters that you referred to, with particular regard with the internal revenue service. so thank you for your courage and your willingness to stand up to and i would say, also inspire a lot of americans who feel like government's gotten too big and too intrusive and is crushing the spirit and the voice of a lot of individual citizens. so thank you for being here.
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and, ms. attkisson, i have to tell you how much -- i'm chilled by what you have to say. when i was in college, i was a journalism student before i lapsed into the law and became a lawyer. but the idea that you would be targeted and surveiled intimidated, or attempt to intimidate you from doing your job -- and i know you are a skewer of power on an equal opportunity basis. i could tell from your testimony you are not picking sides, but you are trying to do your job, and it's repugnant to me that government should try to array its power against the freedom of the press to intimidate people like you. and i appreciate the fact you are not intimidated. and i told senator leahy, who i partnered with on a number of
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freedom of information reforms -- he and i are the odd couples, who are book ends, but who agree in the public's right to know and certainly we want to work with anybody who's got a good idea how we can make the system better. i welcome that opportunity. ms. lynch appears to be an outstanding example of the american dream and somebody who's got a distinguished career as a united states attorney. the challenge is for her and for everybody who takes on a job as a member of the president's cabinet is you are no longer just a prosecutor. you are somebody who is responsible for implementing policies, implementing policies of this president. and that has been the subject of
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a lot of discussion here today. and as i told ms. lynch privately, you got two choices. you can take the job and implement the policies, or you can say, mr. president, i think what you're trying to do is improper, even illegal unconstitutional, and quit or not take the job in the first place. i don't see any middle ground on any of that. and while i have the same reaction to ms. lynch's testimony that i had to sara saldana's testimony, who was a united states attorney from dallas, texas, who senator kay hutchison and i recommended for appointment who is now the director of immigration and customs enforcement, i told her the same thing. you were a prosecutor.
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you have done an outstanding job, but now you're going to be in policy position where you're going to be asked to implement policies that i disagree with and you may in fact disagree with. so you'll be left with that hobson's choice. so while i hear some of my colleagues talk about the independence of the attorney general, well, it's perhaps some independence, but it really is the independence of one's personal conviction not to cross that line and to be able to tell even some of these powerful -- someone that's powerful even as president to say he's gone too far. professor rosenkranz, i would be interested in your views of whether the attorney general can be truly independent. >> i don't think "independence" is quite the right word. the executive power is all vested in the president, which it should be. but the president is delegated to the attorney general to
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advise him on legal issues. that's delegated, again to the office of legal counsel. and it's crucial for that function to be performed with as much integrity and independence as possible. at the end of the day, the president can disagree with the attorney general, can overrule the attorney general, can even fire the attorney general. it's essential for the attorney general to say no if necessary. to say, mr. president, i have explored every legal option, this is something you cannot do, this violates the constitution. >> professor turley, i know that senator grassley asked you questions about your representation of the united states house of representatives in a lawsuit. as you probably know, there's also a lawsuit pending in brownsville, texas, brought by 26 different states challenging the president's executive action relative to what we've been discussing here this morning.
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obviously, any lawsuit that's brought, the plaintiff has to establish standing to sue a claim of harm to them and not to the public generally. i remember that much of my law school. but my point is the policies of the federal government have a direct and very negative impact on state and local governments and on citizens who live particularly in border states like mine, where just not that long ago we had what the president himself called a humanitarian crisis. tens of thousands of unaccompanied children coming from central america, drawn by the magnet of a promise that if you can make it here you're going to be able to stay here, something that a lot of people would like to do. so i'm not going to ask you to opine about the merits of that particular lawsuit. the judge there will probably make a decision here in the coming weeks. but do you see anything inappropriate about people who
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are aggrieved or suffering harm as a result of the actions by the president of the united states going to court and asking the court to make a decision? >> no, i don't. but i've long been a critic of the current standing doctrines that have been developing over the years. i think walter dallinger put it best. we testified recently in the house together. he spent his career as a standing hawk. i spent my career as a standing dove, in that sense. i believe it's important to give access to courts, particularly for states. i think it's rather absurd to say states have effectively no skin in the game, that they have no injury when you have these federal pronouncements essentially coming down and imposing considerable costs upon them. i think that you really see it in sharp relief when these states have trouble even being heard on the merits. so when we look at all of these
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cases in terms of the effort to keep the merits from being heard, i think that has a really dysfunctional effect. i think that's one of the reasons we're seeing so much chaos, is the lack of definition in the separation of powers and these constitutional rules. that can be rectified if we give greater access in the courts. >> well, of course, from my perspective, coming from texas i see the policies of the federal government, particularly with regard to immigration, as having a very direct and real impact on taxpayers and citizens who are forced to pay the price in terms of health care, education, law enforcement, the like, and they really have no recourse because they don't have the ability to do that for ourselves, something that is committed in the constitution to the federal government's responsibility. and when the federal government doesn't do its job, the federal government doesn't necessarily feel the negative impacts. it's people who live in those places like texas, where it's very real.
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i want to just maybe ask one last question, not to get too far town in the legalese, but, ms. attkisson, as a result of the investigations that have been done here in congress on the fast and furious gunwalking debacle, we were met with a claim of executive privilege by the attorney general that was then embraced by the president of the united states, even though there was no indication whatsoever that the president or high-level people at the white house were actually involved in this, but could you just describe the sort of obstacles that you ran into in the course of your investigation of the fast and furious scandal? >> well, some of this, which is already sort of in the public record, when i began covering this story, the justice department employees put out internal emails that said the
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story was false and the whistleblowers weren't telling the truth, which we now know have proven they were, and the justice department has admitted it. but they put out a series of false implications and information along the way. they launched a campaign in my view of calling superiors, bosses, colleagues, social media, using the bloggers to cooperate with them and work with them in some cases directly, saying it was not true, repeating false talking points. it was an all-out effort to chill the reporting and stop other reporters who might be pursuing it. you can see from internet e-mails the extent of the lengths to which public affairs officials went to try to stop this line of reporting on a story they clearly saw was proving to be damaging to them.
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>> thank you. i'm advised that another roll call vote has been called on a series of votes we're having on the floor of the senate. so at the request of the chairman, the committee will stand in recess until 1:30. thank you. you. [captioning performed by national captioning institute] [captions copyright national cable satellite corp. 2015]
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>> senator sessions takes his turn i want to thank everybody for understanding the chaotic way the senate's run when we have all these votes and we have this important issue before us of who should be the next attorney general. so thank you all for your flexibility, as well as all my members. before we turn back to questions, i want to take a moment to comment on the criticism we heard this morning from one democratic member on democratic side. i won't speak for any other member of the committee, but i for one find it absolutely disgraceful how our government has treated some of our fellow citizens, and the department of justice, under its current leadership, has failed, really
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failed, to meet some of its most basic responsibilities. every single one of these witnesses, every one of them speaks directly to ms. lynch's nomination. because the question in my mind is, as i stated yesterday, will she take these flaws seriously will she fix them? and i note that it wasn't too long ago that democrats agreed that it was perfectly appropriate to call witnesses to address what they viewed as problems at the department. so i would note to the naysayer on the other side of the aisle it wasn't beneath the dignity of the committee when they were in charge, so why would it be now? and i would make reference to judge mckasey's hearing before he was approved to be attorney general. the other side called witness
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after witness who testified regarding issues that occurred at the department while he was serving as a federal judge in the southern district of new york. so, for instance, maybe it doesn't bother you that the i.r.s. targeted conservatives and the department doesn't seem to have taken the issues seriously, but it bothers me a great deal. and i want to know if ms. lynch is committed to tackling this problem and a range of others. senator sessions? >> thank you, mr. chairman. and the office of attorney general is a big deal, and we need people who are able to take questions. the department's entitled to be criticized and they're not perfect. i love the department of justice. i served in it 15 years. i was an assistant united states attorney for over two and united states attorney for 12. and i loved that job, and i loved the people in it, and i so
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admired this department. and as i told ms. lynch in private conversation, you have to understand the reputation of this great department is being eroded. the situation is not good in this country. it's got to be re-established. we're not going to allow this to become a political body that just conducts its work in haphazard political reactive ways. and i think senator hatch raised one of the questions that still galls me, and that is the failure to defend doma, the defensive of marriage act. that was a defensible act, and everybody that's ever been an attorney general or in such an office knows you have a duty to defend the laws passed by congress. that's the attorney general's duty. eric holder and president obama failed to do so, and it was shameful and disgraceful and an abandonment of the rule of law and more and more people understand that. so i'm not happy about what's happened to my department of
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justice, and i think they should be investigating these matters. they haven't yet contacted people in alabama, and i specifically requested it. is this politics? why not? don't you go to the victims first? that's my experience. and get their story. well, professor turley, i thank you for your comments on what's happening with regard to executive overreach and congressional weakness. i think -- i know we all, you know, i don't deny that i'm a republican conservative. but i believe this is not just a partisan matter. i mean, this is a huge erosion of constitutional powers of the united states congress, when the
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president of the united states in contradiction to law gives lawful status to people who are here unlawfully under the law, and not only that, creates a social security number for them, a photo i.d., and an authorization to work and a right to participate in social security and medicare. this is a stunning event, and we are in denial here, a lot of people, about the seriousness of it. i want to ask you about your testimony in the house. you say that, "the center of gravity is shifting, and that makes it unstable." you're talking about the separation of powers. "and within that system you have the rise of an uber presidency. there could be no greater danger for individual liberty, and i really think that the framers would be horrified by that
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shift, because everything they've dedicated themselves to was creating this orbital balance, and we've lost it. it's not prosecutorial discretion to go into a law and say an entire category of people will no longer be subject to the law. that's a legislative decision." and you go on in great -- that's just a portion of your, i think, correct dissection of the fundamental issues at stake. would you -- i guess you stand by that? are there any further comments you'd like to make on that subject? >> i certainly do stand by it. the interesting thing about the madisonian system that we have is that the three branches are effectively locked in an orbit like three bodies. in fact, the interesting thing about madison is he was fascinated by newton and the types of ways that bodies would interact. our system reflects that.
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and what happens is if you have a tripartite system that's based on a principle of balance, and then you introduce a dominant branch, it doesn't just fall out of kilter. it creates a very dangerous circumstance. there are many legitimate questions that come out of the constitutional convention. but the one thing that returns over and over again is the collective view of the framers federalists and anti-federalists, that the thing we have to fear most in this system is the rise of a concentration of power in one individual. and they knew a lot about it. because they had just gotten rid of a person who had that type of concentrated power. >> king george. >> exactly. >> and i had the congressional research service look at that. and they concluded that king george iii, at the time of the american revolution, was unable to enact or repeal any laws without the approval of parliament. and this was the heritage we had
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from the british, and that's what part of the revolution was about. it's a fundamental principle in the formation of our government. that the executive does not get to make laws. i appreciate that. professor rosenkranz, briefly, if you don't mind, do you agree with that, that we are at, i think professor turley once said, a tipping point and it's a matter of grave importance to the republic? >> i think it's certainly a matter of grave importance, and i think we have seen dramatic examples of executive overreach in the last several years. things that are unprecedented. things we've never seen before. >> well -- and do you agree with professor turley that one of the most significant overreaches is the president's executive actions with regard to amnesty? >> yes, i absolutely do. i think it's inconsistent with
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his obligation to take care that the laws be faithfully executed, in particular the immigration and nationality act. >> well, it seems to me that they're arguing that take care that the laws be executed means you have to do the best you can to enforce the laws. under the circumstances, which have some legal basis. but in truth, don't they go well beyond that and create whole new laws that are not even on the books and they're not authorized to do that, are they? >> you're quite right. this action looks a lot more like a legislative action than like executive discretion. >> senator, may i jump in and comment on that, please? >> yes. >> thank you. we've heard a lot of very broad general statements to the effect that separation of powers is important, which of course it is. that the president is not above the law, and of course he is not. but i have yet to hear any specific rebuttals to the points that i was making earlier about the specific sources of authority that congress has provided. we do have this legislation
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which specifically says it is the responsibility of the secretary of homeland security to establish, quote, national immigration enforcement policies and priorities, and not only that, but congress has specifically directed the administration to prioritize three things -- border security, national security, and the removal of criminal offenders, and those are precisely the priorities reflected in the recent executive actions. >> well, i appreciate that. but i don't agree. congress laid out 500 pages of detailed law involving immigration. many of them are mandatory. and they're not being followed. and then we had the -- yesterday i asked ms. lynch, who has more right to a job in this country a lawful immigrant who's here, a citizen, or someone who entered
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the country unlawfully. and her answer, i believe that the right and obligation to work is one that is shared by everyone in the country, regardsless of how they came here. and certainly if someone is here regardless of status, i would prefer they would be participating in the workplace. do you think that contradicts immigration law of the united states? >> i do think this work authorization aspect of the president's action is perhaps the most troubling aspect of it. you know, the traditional view of prosecutorial discretion is inaction. it's the president deciding not to do something to someone. but this affirmative action of giving folks permits, that's something that's unheard of to traditional prosecutorial discretion. >> i agree with that as a prosecutor. i know what prosecutorial discretion is. everybody that has to deal in the real world uses that on a
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case-by-case basis. i further asked her, i want to have a clear answer to this question, ms. lynch -- do you believe the executive action announced by the president on november 20 is legal and constitutional, yes or no? and ms. lynch said, as i've read the opinion, i believe it is senator. so, we're being asked here to consider her nomination. when we decide who to vote for in the united states senate, to confirm somebody to the united states congress, do you think it would be improper for the voting body, the united states senate to consider whether or not we believe that person will be an advocate for and a supporter of laws we think are
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unconstitutional and offend the policies the congress has established? should we consider that when we decide who to vote for? >> i think it absolutely should be the kind of thing you should be considering, yes. >> i do, too. i believe congress has a duty to defend its legitimal constitutional powers. it has several powers of its own. one of them is the power of the purse, and one of them is the power of confirmations. i don't see any need for this congress to confirm somebody to be the chief law enforcement officer of this nation who is at that table insisting that she intends to execute a policy that's contrary to law and to what congress desires and what the american people desire. and says that someone here unlawfully is as much entitled to a job in this country as somebody here who is here lawfully. it's just beyond my comprehension. are we through the looking glass? can't we see plain fact? so everybody wants to talk about
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the politics. well, the president can do this, he's shutting down homeland security, all these complaints. but the real question is fundamental. what are we going to do to defend our constitutional heritage, and what will this congress be able to say to subsequent congresses if we acquiesce in these kind of activities? i think it has permanent ramifications for the relationships of the branches of government. mr. chairman, you've got a meteoric rise there. i'm impressed. but i got to say, no one could handle it better. i'm proud of you. i'm over my time. thank you very much. >> thank you much, senator sessions. thanks to all of you for joining us today. i deeply enjoyed your testimonies this morning before we had to go and vote. so thank you for being here, thank you for sharing with us
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your opinions, which are helpful and informative. i want to begin my remarks just by commenting on some concerns that i've heard expressed from my colleagues on the other side of the aisle. some have suggested that what we really ought to be doing here should be focused almost exclusively on ms. lynch's impeccable public service record and on the fact that she has served her country well, has served her clients well. that her resume is not just amazing, but that it's extraordinary. and it absolutely is. that we ought to be focused on those kinds of qualifications and that we ought not be focused on the department of justice and on some of the things that are going wrong with it. i have a somewhat different view of that in that i think both are relevant. for example, if we were running a company, if we were running a business, and we were looking
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for a new c.e.o., or if we were looking perhaps for a general counsel, we would probably want to know what someone's view of the organization as it existed might be. we would probably want to know whether that person acknowledges problems within the company. whether they were legal problems or other types of problems that the company faced. so i think we're kidding ourselves if we suggest that we shouldn't ask a nominee, someone who has been nominated to be the attorney general of the united states, about problems existing within the u.s. department of justice. i think that's absolutely essential, and previous hearings in this committee have borne that out. previous hearings in this committee, where, for example, this committee reviewed the attorney general of the united states in the last presidential administration, i think those hearings bore that out.
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now, yesterday, we heard from ms. lynch. i'm very impressed with her legal abilities, with her analytical abilities very impressed with her resume and her strong record of public service. i was, however, very disappointed yesterday in the fact that in response to many hypothetical questions that were asked of her we didn't get a straightforward response particularly when it comes to excesses of executive power, particularly when it came to questions about prosecutorial discretion, and so forth. for those of you who may be watching this hearing, who weren't burdened with a law degree, hypothetical questions are the bread and butter of the american legal education system. to a very significant degree especially in appellate litigation, they are the bread and butter of the practice of law. one thing that i think all of us were taught in law school is that even when you don't want to answer a hypothetical question even when it doesn't have an
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easy answer, you needs to try to answer the question. if you don't, the judge will be very unhappy. i was disappointed yesterday that when i asked some questions of ms. lynch she refused to give me a direct answer. in an attempt to try to elicit an answer from her, i made the hypothetical increasingly simpler, increasingly clearer, asking questions like the following -- imagine a hypothetical state in which there's a 55-mile-an-hour speed limit. imagine that the public is crying out for relief from that law. there's pretty widespread agreement that the speed limit ought to go up to 65, maybe to 75, and that within the legislature there is also widespread support for that. that but the legislature can't agree on the exact speed limit to which it ought to be increased. so the governor, seeing an opportunity, then says, well i'm just going to come out with a new policy. my policy's going to say, if you want to exceed the 55-mile-an-hour speed limit, all you need to do is write to the governor's office and i will
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send you back a permit, a permit that says, for the next three years, while i'm the governor, i will not give you a ticket if you drive faster than 55 miles faster than 55 miles an hour, as long as you don't go faster than 75. and i asked ms. lynch, would that be appropriate? would that be consistent with the rule of law? would that be an appropriate exercise in prosecutorial discretion? i did not get what i perceived to be a direct one-word answer out of that. i did not get an answer that i thought was satisfactory. i got a response that said i need to know more about that. more facts i added to that, the more assumptions i added to it it did nothing to make a difference. let me start by asking two of our professors we have here, is that in your opinion a difficult hypothetical question, such that if a student in either of your classes refused to answer the
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hypothetical or said it was too hard, would that be an answer you would accept in your class? >> no, i would not accept it. i think it is a straightforward question. i think the question of what the rule would be for the defense of federal statute yesterday was also a question that someone should be able to answer. i also commend you, senator, on your view of confirmation hearings. too often people talk about these hearings as job interviews. these hearings have a very significant role for separation of powers, as agencies become more independent. this is the moment that congress tends to get answers to questions, is when you're looking at someone who will head the agency. as i said in my academic writings, it is not often enough that senators use these hearings to try to rebalance or at least get answers from agencies, particularly one like the department of justice, that has been so difficult to get material answers from. >> i appreciate your thoughtful response to that, and i went to
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get back to that in a moment. i just been informed of and error. no sooner had i taken the contemporary gavel in this hearing can i discovered senator blumenthal was supposed to be next at bat. we are going to push pause on my questioning, and as soon as senator blumenthal is ready, we will turn the floor over to him and then resume with me in a moment. senator blumenthal? >> i appreciate that, mr. chairman. i approve your meteoric ride. thank you for your courtesy and deference. i would like to ask professor laganski to explain why the examples involving enforcement of the speed limit may not be an exact or valid comparison to
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what we have here. >> thank you, senator. i think it is a fair hypothetical to throw out, but i definitely feel there is no simple answer. mainly because there are two pieces of information we would certainly need trade every statutory structure is different. the first thing i would want to know is what does the state statute say? how much discretion does it give the executive branch to set highway safety priorities? in the case of the executive actions, where we are comparing the two -- congress was very specific, it gave the secretary the explicit authority to establish national priorities and policies, and in addition, even indicated what those policies and priorities are. the other point i would make is it matters what the particular priorities are. they have to be rational in one way or another. i think most americans, if
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asked, would say the president's priorities look like common sense to me. he's prioritizing national security, border security, and removal of criminal offenders over the destruction of american families, the destruction of long-term community ties by people who have otherwise lived useful and productive lives in the united states, and since he can't do everything, those strike me as reasonable priorities. >> maybe the comparison would be more like the governor of utah deciding that on a flat straightaway in the middle of the state that going over the 65 mile an hour speed limits would not be enforced unless a person was doing something in addition dangerously, like weaving back and forth, but in more congested areas, that the 65 speed limit would be enforced rigorously.
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in other words, defining other characteristics, not just saying we are not enforcing that law. >> that is an excellent point. that is very analogous to what the president has done with his recent executive actions. because both the prosecutorial discretion memo and the recent top memo find gradations. >> just to clarify, there is has any suggestion that the exercise of discretion does not permit case-by-case decision-making, in other words, that it is a broad, across the board exception for all cases, but in fact, what the president is doing is really an exercise of delegation of discretion, prosecutorial discretion, for case-by-case decision-making. >> that's a fair characterization. i'm thrilled to have the
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opportunity to answer that question because that has concerned me a great deal about the criticisms that have been offered. trade the secretary's memo says not once, not twice, but over and over again that officers on the ground are instructed to look at the facts of each individual case, to evaluate them on an individualized basis, and to exercise their discretion. not only that, but the form that the uscis adjudicators are required to use when they deny a daca case lists the possible reasons for denial. it lists exercises of discretion. there was one other thing i was going to mention. if anybody doubts that these instructions are being obeyed, more than 32,000 denials have already occurred on the merits. this does not count things that were rejected.
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these were actual denials on the merits. i hope this doesn't sound snarky. i worked at uscis. i can assure the uscis adjudicators are not a core of open borders advocates who are looking for ways to disobey the secretary's explicit instructions. they take their job seriously, and they do exercise the discretion the secretary has told them to. >> i appreciate that clarification. i would invite any of the other panel members to disagree if they wish to do so, but i would just like to clarify a point that was made earlier by my colleague and friend, senator sessions. loretta lynch i think yesterday clarified that she does not believe there is a federal right to work for immigrants who are
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not in a lawful status. i believe the record will show that she did clarify that point. with that, if any of the other panelists want to comment on the question i raised earlier, i would invite you to do so. thank you for your explanation professor. >> the proof will be in the pudding. people who have looked at the structure of the proposed policy, it appears that the case-by-case discretion as built into this policy may well prove to be largely illusory. >> and i think you have just really hit it on the head. you have just really hit it on the head that the proof will be in the pudding as to what actually is done, as it is for every prosecutor. if i had decided i was not going
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to enforce any law, rightly, i would have been criticized, and the proof will be in the pudding in the same way as i had to make prosecutorial decisions as every former prosecutor is a member of this panel, and at least one is here now it will be in what the record shows. we don't disagree if the result is to make an across-the-board wholesale, unexceptional rule, that would be wrong. if the president decides as a matter of his discretion that these laws are not going to be enforced, i agree with you. when you say illusory, it will be the proof will be in the pudding. >> i think we can try to evaluate the proposed policy just on the terms of the proposal. i think there's reason for skepticism even as the policy has been proposed.
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but you're right, the facts will develop on the ground. >> thank you. >> thank you very much, senator blumenthal. ok, let's pick up where we left off. i want to respond to a couple of those points that i think are relevant. with respect to the straightaway in utah, this is somewhat familiar to us. we have salt flats in utah where we take cars out that can go hundreds of miles an hour. i assume he means a straightaway on an actual state road, but there is a difference between deciding not to post a police officer there in issuing a permit saying you may exceed the speed limit and if you are caught going up to 75 miles an hour, you will not get a ticket. there is a distinction there. there is, moreover, the fact that another hypothetical
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question i brought up that i was disappointed that she did not agree to address head-on was one involving a hypothetical future president, somebody who decides, i don't like our top marginal tax rates and i think it's morally wrong to enforce a marginal tax rate above 25% at the top marginal rate. so i'm going to issue a series of letters to people, saying you can pay at the 25% rate and no higher and nothing will happen to you. i agree, professor, that something more like the answer you provided would have been helpful. i did not have even that, and had she provided the answer, we could have gotten into a deeper discussion about whether or not congress has in fact or did in
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fact, based on an analysis of the text, create something that could create an exception to allow many, many millions out of the 11 million or 12 million people estimated to be inside the united states illegally. did congress really create something that could create an exception to potentially swallow the rule? let's turn to professor rosencrantz. what would you do if someone in your class refused to answer it? >> i think your tax hypothetical is exactly right and indistinguishable from the current situation. i do not understand a principled way on which to distinguish those two cases. i would think a republican president would be within his rights to cite this precedent. >> they were more demanding at g.w. than georgetown in terms of how they answered questions.
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>> i hope you put that in your application for law school. another point that deserves to be mentioned here is within this framework, there has been discussion of the fact that there remain some discretion on the part of our immigration enforcement authorities in this country, even after the november memorandum, even after daca and so forth. it is different from the way prosecutorial discretion normally works. normally you say, we have finite resources. we will sometimes not do it because perhaps we think the circumstances of the case don't trigger any kind of moral outrage. there's also the practical reality that you will not be able to get everybody. that operates as an exception to the normal rule that says you break the law, you can expect
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that prosecution is at least some possibility. here, even to the extent you can say there might be some discretion to decide not to enforce the law, they still make clear these presidential, these executive decisions, still make relatively clear that they intend, as long as these criteria are satisfied, to not enforce the law, that they're not going to enforce the law and they do issue documents saying they may work. i refuse to accept this as an act of ordinary, garden-variety prosecutorial discretion, and i refuse to accept as an article of faith the fact that congress would have ever, would ever, or did in this circumstance give so much discretion to the president of the united states, attorney general, secretary of homeland
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security so as to create a loophole that could swallow a very substantial chunk of the entire rule. this is not consistent with the way the constitution of the united states has historically functioned. i do think these are relevant questions. yes, they are different in kind than the kinds of questions that deal with someone's resume or someone's professional golf -- qualifications, but we are looking at a very specific kind of job, someone taking the role of attorney general of the united states. we have heard testimony from several of you today that this is a department that has some real, serious problems right now, problems that really make the hair stand up on the back of my neck sometimes. and that was reiterated today with some of the testimony that i heard. so i walked into that hearing yesterday wanting, hoping,
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frankly expecting to really like ms. lynch, and i do like her. i expected i might be able to go either way on this, that i might end up supporting her. i did not feel comfortable at the end of the day yesterday with the idea that i could vote for her because of the fact that i did not get answers to questions that i find very troubling. i found it somewhat cavalier to suggest that she needed more facts, when some of these were very basic questions. i see my time has expired. do we have any democrats -- just making sure we don't have
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anybody in the anteroom. senator cruz is next at bat. >> i want to thank each of the members of this panel, a very distinguished panel to come together and address some very important issues facing this country. i want to at the outset extend my apology that earlier in the hearing the senator from rhode island characterized the testimony that we have heard from witnesses on this panel as, "conspiracy theories and soundbites for fox news." i do not think that is an accurate characterization of the learned testimony that this panel of witnesses has given to this panel, and i apologize that you are subjected to having your character impugned in that


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