Skip to main content

tv   Attorney General Nominee Merrick Garland Testifies at Confirmation Hearing  CSPAN  February 22, 2021 11:35am-4:18pm EST

11:35 am
500,000 americans who have passed away from the covid-19 virus. the speaker: pursuant 5-16789-1-b of house resolution 8, the house standsed journed
11:36 am
announcer: the u.s. house back at 2:00 this afternoon. we returned to the senate confirmation hearing for nominee merrick garland. judge garland: -- to protect the country from foreign agents. on the other hand, it is important that everything we do, with respect to fiza, we do so in accordance of law and respect to the constitutional rights of citizens. i do not know specifically about your two proposals. i know the current rules with respect to amicus and i have had the opportunity to discuss those with those on the surveillance court and everyone seems happy with the way that process is going. i do not know what more may be needed. >> i've got one very brief
11:37 am
follow-up, can i finish that? on this topic of questions related to fisa, do you think the federal government ought to be able to collect american citizen's web browsing or internet search history without a search warrant supported by probable cause? judge garland: i know this is a big issue. my experience with fisa comes from a different era. i have a lot of experience, but it was a very different era. i have had -- i have not had any cases on it myself. i believe in judicial review and i am a strong supporter and am respectful of traditional review of orders, but i do not know what the practicalities of going for a probable cause warrant in those circumstances would be, if
11:38 am
it would be an emergency, etc. i am eager to engage with you and other members of the committee who are concerned about this so that i can understand this problem fully. sen. lee: thank you. sen. durbin: [indiscernible] >> congratulations on your nomination and please convey my thanks to your family for supporting what has been a decades long career at the bench , and someone dedicated to public service, law enforcement and upholding the balance between justice and liberty. i cannot think of a more urgent task before us then restoring people's faith in our institutions and the rule of law. your opening statement which was in part dedicated to clarifying the point of view that the attorney general -- and your enthusiasm for the 100,000 careers at the department of
11:39 am
justice are sheltered from partisan -- after harrowing moments over the last few years. as i am sure you know, there are quite a few admirers of yours that work in this committee. some former clerks who work closely with me and many who have reassured me not just of your professional skill and great insight, but also your personal decency, kindness and thoughtfulness. i was struck in reading through your background that you spent 20 years, quietly, as a tutor in an elementary school here in the district of columbia. something not enough elected or appointed officials do. thank you for your willingness to continue your service. i am from a small town in delaware, which like many other cities, was torn apart by concerns about racial justice and inequality. a city that has also struggled with long-standing challenges
11:40 am
with gun violence, insecurity and instability and our community. our mayor and our governor are doing a great job working hard to address this, striking the right balance between protecting our citizens from gun violence, but also developing an environment where law enforcement is more accountable. it is going to be one of the core challenges, which you and the department will be involved in, in partnership with local law enforcement and other elected officials. in wilmington and dover, delaware, we are rolling out body worn cameras. we have could pit -- we have committed to having that available to all of our officers by 2025, but it is extensive. -- expensive. i am make appropriate or for the department of justice, as well as this committee. is that something you can agree to be an advocate for, the fund again when -- funding and
11:41 am
wearing of body cameras to improve trust? judge garland: i am always happy to accept more resources for the department of justice. i do not know what that might take away from in other areas of the department. i personally think that body cameras are very important tools . but to protect officers -- both to protect officers and citizens. the fact that we were able to see exactly what was happening to the officers and the way in which they were carrying about their duties in the best way they could is only possible to capture because of the body cameras.
11:42 am
sen. coons: if you mind, i think it is important we increase investment. i longed worked for the victims of child abuse act. covid-19 has demonstrated a tragic rise in child abuse and this is a critical tool that allows state and local law enforcement to effectively address child abuse. the bullet-proof vest partnership program which has helped save 3000 officer lives, these are things i look forward to working with you on. there is much needed legislation that will move us forward in terms of committal justice reform. senator cornyn and i hope to produce the next denial notification act that just ensures state and local law enforcement gets notified when a person prohibited tries to buy a gun. that is something that has been discussed in previous congresses. we have not paper haus stash progress on it, i think we
11:43 am
should. we will reintroduce the driving for opportunity act incentivizes states to stop suspending drivers licenses for unpaid fines and fees. it is a counterproductive way to take away people's ability to get to work and ensures people are trapped in modern-day debt prisons. it is something that has strong support from law enforcement and civil rights groups. i am interested if you will work with us in congress to move bipartisan bills like these? judge garland: i am extremely interested, if confirmed, particularly on bipartisan legislation. i do not know specifically about them, but each of them has the ring of something that is quite important and reasonable. sen. coons: i hope we get to work on that. i will be serving on the subcommittee of privacy and technology. i look forward to working with senator sasse who will serve as
11:44 am
a ranking member. one of the things we will be looking at is how online misinformation is contributing to domestic terrorism, division here. he discussed your own experience with domestic terrorism cases and your plan to prioritize this issue is something the fbi director has said is our most pressing threat. do you think the doj has a role to play in examining the role of misinformation and incitement online to violence in the doj has a role in working to help us develop reasonable solutions to this challenge? judge garland: i think every opportunity the justice department has to work -- how to craft legislation is one that we should take. i do not have in mind particular legislation in this area. i think an important part of the
11:45 am
investigation into extremist groups is following their activities online and getting an idea of what kind of misinformation is being put out. i look forward to talking more about this with you. sen. coons: there is increasing regulatory schemes both in europe and california, and other states being considered. i look forward in striking that balance between protecting data privacy and individual liberty, but also protecting the competitiveness of the united states and globally making sure we are pushing back on digital authoritarianism. i am glad to see the department is prosecuting 235 charges brought so far against rioters who invaded the capitol and detect democracy on january 6. i have made calls for a 9/11 style independent investigation into the bigger. her -- the bigger picture of
11:46 am
what caused this. do you think an independent commission of that style can help the american people better understand the root causes of that incident, and better help us both protect the capital, not just for those who sealer -- we serve here, but the underpinnings of democracy? the nine left -- judge garland: the 9/11 commission was useful in understanding what happened. congress has full authority to conduct this kind of oversight investigation or set up an independent commission. the only thing i would ask, if i were confirmed, is that care be taken. and that commission's investigation not interfere with our ability to prosecute individuals. as you know, this is a very sensitive issue about disclosing
11:47 am
operations which are still in progress, disclosing and allowing people to testify in a way that makes it impossible to prosecute them. with those caveats, i could not object to anything that congress would want to do in this regard. sen. coons: thank you. i am encouraged by the bipartisan support you have garnered in this committee and publicly and look forward to supporting your confirmation. judge garland: i appreciated -- i appreciate it. sen. cruz: congratulations on your nomination. in two plus decades on the court, you have built a reputation for integrity and for setting aside partisan interests and following the law. the job to which you have been appointed as a very different job.
11:48 am
as i look back over the eight years of the obama-biden justice department, in my view the most problematic aspect of that tenure was that the department of justice was politicized and weaponized in a way that was directly contrary to over a century of the department of justice being apolitical, and not a partisan tool to target your opponents. it is very much my hope, if you are confirmed as attorney general, that you will bring that integrity to the department of justice and demonstrate a willingness to stand up for what will be inevitable political pressure, to once again politicize the department of justice and use it as a tool to attack the political opponents of the current administration.
11:49 am
eric holder, before he was nominated as attorney general, had likewise built a reputation as being relatively nonpartisan, and a prosecutor with integrity. unfortunately, his tenure did anonymous damage to that reputation. as was discussed, eric holder described his role as attorney general as being the wing man for president obama. am i right in assuming you do not view your role as attorney general as being joe biden's wingmen? judge garland: i said i do not want to comment on any individuals conduct. my predecessors or fbi director's conduct in any way. are you sure you come i do not regard myself as anything other than the lawyer for the people of the united states. i am not the president's lawyer,
11:50 am
i am the united states' lawyer and i will do everything in my power, which i believe is considerable, to fend off any effort by anyone to make prosecutions or investigations partisan or political in any way. i job is to protect the department of justice and its employees, going about their job and doing the right thing. sen. cruz: under obama, the irs targeted pro-israel groups, tea party groups, individuals perceived to be on the opposite political side of the administration. will you commit that you will not allow the department of justice to be used to target those who are perceived as political opponents? judge garland: absolutely i will not.
11:51 am
sen. cruz:, also operation chokepoint was used to pressure lawful organizations and institutions, institutions for example that sell firearms, to constrain their lawful activity and to use regulatory authority to abuse and force them to comply with the administration's stated policies. do you think it is appropriate for the administration to use regulatory pressure to force lawful behavior to stop? judge garland: i am not aware of the specific you are giving. you don't expect i would have been aware of that, but of course i do not believe that regulation should be used to stop people from doing what they are lawfully entitled to do, unless the regulation is per student to a statute, in which congress has given authority to change the rules. sen. cruz: attorney general eric
11:52 am
holder was held in contempt of congress. that was a bipartisan vote. 18 democrats voted to hold attorney general holder in contempt. they did so because he refused to produce documents for congress' investigation of the fast and furious scandal, a major scandal that resulted in the death of two law enforcement officers. you previously committed to senators that under your leadership, the department of justice will comply, to the extent possible, worth -- with requests from this committee. i want to associate myself with senator whitehouse's comments. he and i disagree on many issues, but on this issue we are emphatically in agreement. senators from this committee should get answers, candid answers, substantive answers,
11:53 am
real answers from the department of justice, regardless of the party of the senator asking that question. that is a level of oversight the american people have a right to expect. would you agree? judge garland: this is a level of oversight the american people have the right to ask -- to expect. i want the department to be responsive commit to the extent it is responsible to the justice department's appropriate equities, to be responsive to the requests for information. sen. cruz: previously you said you had read the executive summary of the horwitz report. what was your reaction to the horwitz report? judge garland: i thought, as mr. horwitz explained, and i believe director ray agreed, there were problems with respect to the applications for several fisas,
11:54 am
that those were not consistent with the internal regulations of the department and those problems had to be corrected. i think deeply that we have to be careful about how we use fisa , and that is the reason we have strict regulations internally, and we need to find out why they are not followed and make sure they are followed. sen. cruz: so you describe the report as saying there were problems? that was an anodyne way and characterizing it given the multiple misstatements the horrors report details, including the fabrication of evidence and lying to a court, which he has pleaded guilty to. i think that was another example of the deep politicization of the department of justice,
11:55 am
culminating in a meeting with the acting attorney general, president obama, vice president biden, in the oval office concerning the targeting of their political opponent. will you commit to this committee that under your leadership, the department of justice will not target the political opponents of this administration? what that report outlines, among other things, is weaponizing research from the hillary clinton campaign and launching a criminal investigation based on that. will you commit that that conduct would not be acceptable? judge garland: absolutely, but without trying to comment specifically on that matter, it is inappropriate of a department to target any individual because of their politics.
11:56 am
the only basis for targeting has to be evidence of the risk of foreign intelligence, or a criminal problem. that is a nonpartisan issue. that is a question of objective facts good -- fax. it can never be an effort to help a party. investigations from prosecutions, there is no party. the department is an independent actor. that is my job, to ensure that is the case. sen. durbin: we now understand senator lahey is in zuma range. do you read? sen. leahy: can you hear me? sen. durbin: i can. sen. leahy: i assume there is a picture coming up somewhere.
11:57 am
sen. durbin: we need to turn up the volume. sen. leahy: i will move this camera around a little bit. ok. thank you very much for first off, it is great to see you seated there. i was five years ago we had seen you seated there for your supreme court nomination, but i am glad you are here today. the nomination comes up probably the most vulnerable moment in the 151 year history of the department. you got to restore the integrity and the respect of this department. no small job for anybody more qualified to do that. a number of people stated
11:58 am
support of you. one person i know and respect greatly, former fbi director -- i know senator leonard, and mr. chairman, could we have that -- in the record? sen. durbin: without objection. sen. leahy: thank you. a lot of those things have already been covered. you and i have talked before, your experience in -- anybody who has been a prosecutor knows what a job you did there. i do appreciate that. you have other things you have to deal with. voting rights. the john lewis voting rights act
11:59 am
. we have sin -- we have seen a scored a voter suppression, which would be wrong to matter who is being suppressed. unless the justice department gets its tools back under the voting rights act, i am afraid the right to vote is almost going to be at risk, especially for especially underserved communities. do you agree that legislation like the john lewis voting rights advancement act is urgently needed? judge garland: i don't know the specifics of the act, although i knew john lewis well and was a great admirer. with respect to voting, even in this last election where a larger percentage of americans voted than ever before there was still a huge percentage that did not, at least a third did not
12:00 pm
vote. i think it's important that every american has the opportunity to vote. voting is a central facet and fulcrum of our democracy. any legislation that will encourage more voting i strongly support. specifically, you are referring to the supreme court decision in the shelby county case which said that the coverage formula for preclearance could not be used as unconstitutional because of the then state of the congressional record. the court indicated that a different, stronger record might support preclearance and i would be favor if confirmed in working with the committee in the senate and the house to develop the record that would allow that
12:01 pm
tool to be used. the department still does have other tools. it has section two which remains in force as the supreme court clearly said in shelby county. it prevents interference with the voting practices and procedures. that interfere with a minority possibility to vote. it is something the department has always looked to as an important tool. there are plenty of other tools to increase the ability of americans to vote. >> i know sender lahey has already raised this, but please know that senator lee and i will both be talking to you about privacy matters, this is not only a partisan issue, it's an issue of concern. let me ask you another area that
12:02 pm
is an issue of concern to me. in the bush administration, the last bush administration, they put a moratorium on the death penalty in federal cases. that moratorium lasted from 2003 during the boasted -- during the bush administration and then suddenly in the last six months the justice department under the last president rushed to execute more people in six months then had been executed in the past 60 years. many felt that was nothing short of a killing spree.
12:03 pm
what worries me, we know the death penalty is used disproportionately against minorities and the war. i was a prosecutor and i prosecuted many murder cases. i would much rather have somebody sitting for years in a prison cell thinking about what they did wrong. i'm joining senator durbin and senator booker in introducing federal death penalty act which would and the federal death penalty. i ask you today, would you go back to what president bush did and reinstate the federal moratorium which was lifted in the last few months by the last administration and reinstate
12:04 pm
work on the legislation eliminating the death penalty? judge garland: president biden is an opponent of the death penalty. i have to say that over those almost 20 years in which the federal death penalty had been paused, i have had a great pause about the death penalty. i am very concerned about the large number of exonerations that have occurred through dna evidence and otherwise not only in death penalty convictions but also in other convictions. i think a terrible thing occurs when somebody is convicted of a crime they did not commit and the most terrible thing happens if someone is executed for a crime they did not commit. it is also the case of that
12:05 pm
during this pause we have seen fewer and fewer death penalty applications anywhere in the country, not only in the federal government, but among the states. as a consequence i am concerned about the increasing almost randomness or arbitrariness of its application. when you have such a few number of cases. finally and very importantly is the other matter you raised which is the disparate impact. the data is clear that it has in the norma sleeve disparate impact on black americans and members of communities of color and that something like half of the exonerations had to do with black men. all of this has given me pause. i expect that the president will be given direction in this area
12:06 pm
-- giving direction in this area and i expect that it's not at all unlikely that we will vote on a return to the previous policy. >> i think my time is up. as chairman of the appropriations committee i'm going to be talking to you about the department of justice and the koreans and the violence against women act and other such things. that has had bipartisan support. we have to make sure they are done. i am very happy you are here. i have a feeling we are going to have a lot of conversations in the next few years. judge garland: i hope that's the case. i would be happy to have conversations even if i'm not confirmed. but i would certainly prefer them if i am confirmed. judge garland: you are going to
12:07 pm
be confirmed. i would bet on that. judge garland: i would never ask anybody to bet that. sen. durbin: senator sasse? sen. sasse: congratulations on your nomination and thank you for the time you have spent with those who of us who wanted to grill you and i've it before you were in public. you are in the process of moving from article three to article two, where you confirmed to the bench and 96? judge garland: 97. sen. sasse: in the 24 years since you left an executive role, obviously the article two branch has grown in power and article one seems to be shriveling and lots of ways. the you have a theory of why articles two and three are gaining more power in a miracle -- in american life and article one is weaker? judge garland: that is i would say a cosmic question of our civic life.
12:08 pm
i don't really have an answer to that. obviously, each branch has enormous powers authorized by the constitution and it may be, if this is the case that the congress has not asserted itself as it should with respect to protecting its authorities. so be honest i am not enough of a political scientist to know how this balance has changed. i am sure from the point of view of the congress its role has diminished but i'm sure the other branches feel the same way. sen. sasse: i think it is a mix of overreach by article two and overreach by article one. i'm not asking the question to put you on the defensive as if everything that is wrong is we are probably to blame. you are going to become the most powerful law enforcement officer in the nation. you will have lots of prosecutorial discretion.
12:09 pm
can you understand what the line is between prosecutorial discretion which is understandable in a complex organization and executive unilateralism which we can agree on the definitional level is a massive constitutional problem, what is the line? judge garland: it's not the most easy line to outline, but the supreme court's janie case is the best overall description. for the entire history of the country prosecutors have and government agencies have had discretion to make decisions about how they allocate their resources in terms of enforcement priorities, criminal and civil. this is either generally been none reviewable or deferentially reviewable in the courts. the opposite side of the line is that the executive branch cannot simply decide to not enforce a
12:10 pm
law. no matter where a particular piece of conduct falls between those things is a difficult thing to say except on an individual case. sen. sasse: in our tribal politics it's easy for each party when they are out of power saying the article two branch is overreaching. when you are in power it turns out those mostly look like discretion. how do you think not just the supreme court minded cases, but at the level of you being the boss of the aag, how will you determine what actions are beyond the pale? judge garland: i think when the department makes determinations based on resources and its views about which are the most important matters that it should go forward with when it thinks that state and local governments
12:11 pm
are in a better position to handle those matters, any of those factors are perfectly appropriate for deciding to exercise prosecutorial discretion. but mere disagreement with a law passed by congress or a decision that a department will not roof -- in for regardless of resources would be impermissible. i think no matter how hard i try i cannot put this in perfect words and i am sure maybe we will disagree in the future if i get this position. it will be a good faith effort on my part to be sure that the executive only does what it is supposed to. sen. sasse: i want to move on to another topic. his congressional inaction a legitimate basis for article two to decide it must act the echo because it wishes policy were different and legislation does not move, therefore you if you
12:12 pm
have a pen and a phone can you act to congress did not? judge garland: you are asking really tough questions of basic constitutional structure. doing so simply out of upset that congress has not done what -- what you want is not ok. in the formulation that justice jackson who i quoted in my opening famously gave in the youngstown steelcase, president does have authorities when he acts constant with -- consonant with congress he is at his highest power. when congress has not acted at all he is left with only only his own power which is clearly available under the constitution depending on the circumstance we are talking about.
12:13 pm
when he acts in contravention of congress he has only the authorities the constitution gives them minus the authorities that the congress has. this is what jackson famously referred to as the lowest end of executive authority. inaction is in the middle. you can do this just because congress did not act, but the president can act if it's within his authority and he believes it something in the public interest. sen. sasse: i was encouraged earlier when you said the department's purposes -- purpose is to -- include to be sure that the powerful and the powerless are treated equally. i want to talk about one case where that has not happened, jeffrey epstein and his many victims of domestic and international sex trafficking. he evaded justice for years and when the department did ultimately partner with local
12:14 pm
authorities and allowed charges to be brought that did not befit the seriousness of his crimes. infuriatingly he was allowed to die by apparent suicide in federal custody despite the fact that everyone knew he was a suicide risk and many would benefit from that outcome. his state has failed to pony up to make right on all of their obligations to compensate his victims. what do you think went wrong with the department's handling of the epstein case? judge garland: [sigh] my position and as a judge in my previous position as a prosecutor i've always been careful not to comment about something without knowing the facts. the facts i know about the epstein matter are the ones i read in the media and the ones i have seen on television. sen. sasse: we can agree those are disgustingly embarrassing about how weak the department's pursuit of this evil man -- judge garland: absolutely.
12:15 pm
you ask the why and i cannot answer the why question. on the values question i can answer, it was just horrendous and he obviously should have been vigorously prosecuted substantially earlier but i don't know the why. sen. sasse: and he has co-conspirators that are still being held in pursuit. i hope that we will make sure the department prioritizes resource for this. scores of the women he victimized are in their 30's now but they have had so much of their lives stolen from them and obviously sex trafficking is a scourge of our time and i would hope the department continues to do an after action review on why we have under invested. moran -- more questions on the china initiative so i will follow-up separately because my time is expired. judge garland: senate -- sen. durbin: senator blumenthal? sen. blumenthal: i want to
12:16 pm
welcome you to the committee and welcome your family. a supportive and accomplished family and say that among the qualities that you bring to this job, obviously you are brilliant, you are -- the lesson today is that character counts. restoring the integrity and credibility of the leadership of the department of justice i think that the character that you have demonstrated throughout your career is going to be most important. your resilience and your brilliance. you have been tested and the kind of values you exemplified beginning with both of us served as circulars in the department of justice and first met. i look forward to your inspiring, more young attorneys to join the ranks of law
12:17 pm
enforcement and celebrate the accomplishments of those 115,000 professionals who, every day, help keep us safe. i welcome your commitment to combating violent extremism. i have supported and am introducing a 9/11 mission bill. i want to turn to an area of violence, hate crimes, the growing incidence of hate crimes especially against now certain groups, asian americans think is extraordinary alarming. i've introduced a measure called the no hate act, it would reform the penalties and increase reporting. many of these crimes are underreported. i would like your commitment that you will support such a measure and enforcement of the
12:18 pm
existing penalties against hate crimes? judge garland: couldn't have any opposition from me in that matter, senator. hate crimes tear at the fabric of our society and make our citizens worried about walking on the street and exercising even their most normal rights. the role of the civil-rights division is to prosecute those cases vigorously. i can assure you that it societf i am confirmed. sen. blumenthal: thank you. on gun violence you have been asked a few questions by senator lee, three years ago this month parkland occurred. parkland, sandy hook, other places like las vegas have become shorthand for massacres that are true tragedies and also
12:19 pm
preventable by commonsense steps such as president biden had supported, and i have helped to lead in the congress, universal background checks, ethan's law, closing the charleston loophole, and of course emergency risk protection orders, senator graham and i have worked together on a measure i am hoping we will reintroduce. one of your president -- one of your predecessors, william barr, said about emergency risk protection orders, this is the single most important thing i think we can do in gun control areas to stop these massacres from happening in the first place. william barr and i did not agree on the, but i think i am of the opinion that it is an important step to take. would you support these kinds of
12:20 pm
common sense steps? judge garland: yes, i don't know the specifics of all of them. with respect to emergency risk orders, when somebody is acting out in a way that suggests they are going to use violence against another human being we have to be careful that they don't get a weapon in their hands. i don't know the specifics of how the legislation would do that, but i do think that. sen. blumenthal: i welcome your support to that extent. judge garland: i don't mean to be nonsupportive, but in less i know the specifics it's hard for me. sen. blumenthal:4 i understand and you are doing an excellent job of navigating your way through the request for specific commitments. i understand, sometimes a nonanswer is the right way for you to go in this position. i hope you will consider executive orders. i understand that president biden may have some under
12:21 pm
consideration, for example closing the charleston loophole and redefining the nature of a firearm to prevent ghost gun's from populating the world and other steps. i hope you will consider using the existing authority through atf and other agencies to take such actions. i want to ask you about two areas that are of importance. they may not have reached a lot of public visibility. as you may be aware the survivors of the 9/11 tragedy have filed a lawsuit pursuant to the justice against sponsors of terror act. senator cornyn and i were strong advocates of this.
12:22 pm
they have asked for information from the fbi in connection with that lawsuit. they have been denied that information under the state secrets privilege. in my view there is no justification for failing to provide that information. i hope that you will consider taking prompt action to release it. i know that you cannot necessarily address it now, but i wrote to the department of justice last week and i hope you will take that letter as a matter of priority area -- as a matter of priority. judge garland: if i am confirmed i will get the letter and give it my intention, yes i will. sen. blumenthal: similarly, the department of justice inspector general reportedly opened an investigation in september 2018 of the fbi's essential
12:23 pm
mishandling of the investigation into larry nassar's sexual abuse , i'm sure you recall his prosecution. there was an inspector general for that visit to the fbi's possible delay malfeasance. i hope that will be published promptly in the interest of the transparency value. judge garland: i will consult with the inspector general and i believe in making those reports public to the extent permissible within the law. and finally, you may be aware that a number of my former colleagues have taken action against exxon and other oil companies to hold them accountable for misleading and defrauding the public about climate change for decades.
12:24 pm
nothing could be so important as the united states department of justice similarly taking action against gas and oil companies for lying to the american public about the devastating effects of these products on climate change. i hope you will consider taking action in that regard. judge garland: from the way you began it feels like there is pending litigation on this matter. it's not something i should be commenting on. sen. blumenthal: thank you, judge. >> thank you, chairman. judge garland, thank you for your passion on since june of last year the city of st. louis in my home state of missouri, the homicide rate is at its highest level since 1970. 11 police officers have been shot including former police officer david dorn who was murdered in cold bread during
12:25 pm
fighting in the city this last summer in chicago. homicides are up 50% in new york and 30%. clearly our criminal justice system is under renewed and extreme strain. can you tell me if you are confirmed as attorney general what will you do to confront this growing crisis? judge garland: you asked what i will do? sen. hawley: what you will do. judge garland: i am obviously -- i read the statistics myself and i know that there is an upswing in violent crime. i'm concerned about it. when i was an assistant u.s. attorney the number of merck -- i joined at a time when the number of murders in the district of columbia were more than twice the number of murders they are now. i spent much of my early career on this problem of violent crime searching for the best possible ways to suppress it going after violent repeaters, one of the
12:26 pm
best ways, going after violent gangs that supported violent action -- and when putting resource in places where they are necessary. i was a strong supporter and one of the developers of the violent crime initiative during that time i was in the justice department and it might be time for another one. the administration of attorney general -- you have to look at what is going on in the department right now and what more needs to be done. i share your concern. sen. hawley: in the midst of this mounting crime wave there has been increasing calls by some activists including members
12:27 pm
of the united states congress to defund the police. i think this sends the long message -- the wrong message to law enforcement who feel very much overburdened, underpaid, and it sends their message to folks suffering from this violent crime wave especially in working-class communities. on defunding the police do you support this movement? judge garland: president biden has said he does not support defunding the police and neither do i. we saw how difficult the lives of police officers were and the bodycam videos we saw when they were defending the capital. president biden believes in giving the resources to police departments to help them reform and gain the trust of their communities. i do believe and i believe he does as well that we do need to put resources to alternative ways of confronting some actors,
12:28 pm
particularly those who are mentally ill and those who are suicidal so that police officers don't have to do a job they are not trained for and from what i understand they don't want. those resources need to go to mental health professionals so police can do the job they have trained for, so that confrontations if possible do not lead to deaths and violence. >> let me ask you about assaults on federal property leases in washington, d.c.. you regard assaults on federal court houses or other properties acts of domestic extremism or domestic terrorism? judge garland: my own destination -- my own definition is of the same as the statutory definition, the use of violence or threats of violence and
12:29 pm
attempt to disrupt the democratic processes. an attack on a courthouse while in operation trying to prevent judges from deciding cases, that plainly is domestic extremism. an attack simply on government property at night or any other kind of circumstances is a clear crime and a serious one. this is a core attack on our democratic institutions. sen. hawley: some progressive groups have been saying with regard to you, the progressive change campaign committee, left-wing activist group that does fundraising for democrat party pauses is circulating a petition that quotes trump and
12:30 pm
his criminal network of associates must be investigated and prosecuted for lawbreaking. this is against the backdrop of troops keeping lists of people who worked at the white house including interns who worked at the white house to prevent them from getting jobs, trying to prevent them from working whether it is in politics, government, or anywhere else. senator cruz asked about political targeting. i am very concerned about the specter of political targeting because it's happening before -- it happened in the obama biden administration. it culminated in the pfizer court during the last administration with the fbi and the department of justice signed off on submissions to the fisa court which were falsified, actively falsified leading to an unprecedented and historic rebuke from that court. given this pressure campaign
12:31 pm
being mounted towards you, this petition that is quoted as addressed to you personally, if you are confirmed, will you resist calls and efforts by political groups to politicize the department of justice, to use political targeting, adhere to the statute down the middle and enforce the law equally? judge garland: i have been a judge for almost 24 years. people on one side or the other of every single case, i think i have done the wrong thing in that case because both sides cannot win. i have grown pretty immune to any kind of pressure other than the pressure to do what i think is the right thing given the facts and the law. that's what i intend to do as attorney general. i don't care who pressures me. if i am confirmed the department will be under my protection for the purpose of preventing any kind of partisan or other improper motive in making any
12:32 pm
kind of investigation or prosecution. that is my vow. that's the only reason i'm willing to do this job. sen. hawley: do you agree that what the department of justice and fbi did in misleading a pfizer court and submitting false information to a pfizer court and submitting falsified information and evidence to a pfizer court, drawing the rebuke of that court, do you agree that was an egregious violation of public trust? >> a false statement of the court is a terrible thing. i was going to say obstruction of justice and it may well be, but that's a very specific concern. i can tell you how angry judges get when they learned that somebody who has made an application to them has not told them the complete truth or has spun the truth in any way. you hear those statements by judges all the time and appropriately so. >> i hope if you are confirmed that you will be that guardian and make sure that the rule of
12:33 pm
law is fairly enforced. mr. chairman, my time counter is not working. is my time expired? judge garland: -- sen. durbin: yes. senator hirono? are you within zoom range? sen. hirono: thank you, mr. chairman. starting with two preliminary questions that i ask every nominee that comes before any committee on which i sit. since you became a legal adult have you ever made unwanted requests for sexual favors or committed any verbal or political harassment -- physical harassment or assault of a sexual nature? judge garland: no. sen. hirono: have you ever face to discipline or entered into a settlement related to this kind of contact? sen. hirono: no. -- judge garland: no. sen. hirono: considering that we
12:34 pm
just had a president who did not think the rule of law applied to him i am gratified to hear that so many of my republican colleagues are asking you whether you as attorney general will follow the rule of law, and of course you will. i want to get to the consent decree. i don't think you have been asked about consent decrees about. in the justice department civil rights division -- as described dissent -- consent decree as "most effective at ensuring accountability transparency and flexibility for accomplishing institutional reforms. despite their effectiveness, they trump administration was openly hostile to the consent decrees. attorney general jeff sessions issued a memo that drastically
12:35 pm
curtailed their use and brain -- brock police departments into compliance with the constitution. the reason the trump administration did not enter into a single new consent decree with any law enforcement agency suspected of systemic abuse of constitutional rights. they also actively undermined existing consent decrees. all of this wild police in minneapolis, louisville, kenosha, and other cities lead to one of the biggest social justice movements this country has ever seen. what is your view of the role of these investigations and consent decrees and -- in investigating civil rights abuses by police? judge garland: thank you for this question. i think police accountability is an essential element of the
12:36 pm
ability of a police department to have a credibility with the community and without credibility and trust a police department cannot do its job of ensuring the safety of the community. police officers who violate the constitution must be held accountable, and police officers follow the constitution want to police officers not to be held accountable for that reason because it leads to a taint on all police officers which would be unfair. congress has given the justice department the authority and the responsibility to investigate patterns or practices of law enforcement entities conduct that violate the constitution and laws of the united states. that's the statutory responsibility of the justice department.
12:37 pm
it is an important tool the department has for ensuring accountability. the statute further provides that if the department finds this pattern or practice of unconstitutional conduct that it can seek equitable remedies from the court. one kind of equitable remedy that has proven effective in the past is a consent decree. where they are necessary to assure accountability, it is very important that we use that tool. that is not the only tool available to the justice department. we can use grantmaking to provide funds for police departments to reform themselves, to make themselves more accountable. we can provide technical assistance and incentives. all of these are a set of tools and the justice department has
12:38 pm
been given these tools by the congress and it should use all of them. sen. hirono: you emphasize accountability of police department and the justice department that consent decrees, which by the way are not one-sided, they are entered into after much dialogue and discussion with the respective police department. i hope that you pledge to reengage the justice department in enforcing and abiding by the existing consent decrees. i know that the previous administration has undermined the existing consent decrees. judge garland: if there is an existing consent decree will require adherence. sen. hirono: you have been asked a number of questions about voter suppression laws that are being enacted particularly after the shelby county decision.
12:39 pm
the voting rights act -- it gives the attorney general's office some tools to go after -- -- are you aware of any instance of widespread voter fraud in the 2020 presidential election or any other election? judge garland: no, all i know is what i have been able to gleam from the public reports of government agencies. the department of homeland security in the previous administration publicly describe the last election as the most secure in american history. some 60 or more courts rejected
12:40 pm
claims of fraud in the election. some on legal grounds but many after providing an opportunity for the submission of evidence, the evidence that was submitted was insufficient. attorney general barr authorized the u.s. attorneys to investigate voter fraud after the election and before certification. they have found evidence sufficiently material of widespread voter fraud to have an effect on the election. sen. hirono: i heard you in your earlier response that you would work with congress to determine whether a clearance provision should be reenacted. there is something i wanted to note which is in your acknowledgment that hate crimes
12:41 pm
against the community is definitely rising and that you will do everything you can to make sure that there is enforcement of the laws against these kind of crimes. i know that just a few weeks ago a man died after he was abruptly attacked while out on a morning walk in san francisco. in oakland, in and they chinatown neighborhood a man violently shoved and injured a 91-year-old man, 60-year-old man, and a 55-year-old woman. each of these cases the victims were aapi community members. i do have additional questions that i will rate -- wait for round two. >> senator cotton? sen. cotton: i want to return to questions about the durham investigation. senator grassley asked you if
12:42 pm
you would commit to ensure that john durham had the staff, resources, and the time needed to complete that investigation. you said you did not have the information that you needed to speak with him but you had no reason to think that him staying on was not the correct decision. why can't you commit specifically to saying that he will have the time, staff, and resources he needs to complete his investigation? judge garland: it's because i'm sitting here and i don't have information about what he needs and what his resources -- everything i know sitting here suggests that he should have those resources. sen. cotton: two years ago bill barr made the same commitment about the mueller special counsel. he did not have this information and did not consult with the department. he simply said yes. why can you not say yes the way bill barr did? judge garland: i feel about every investigation and decision i make, i have to know the facts
12:43 pm
before i can make those decisions. i don't know what went into his consideration, but for myself i have to be there and learn what is going on before i can make a decision. i have no reason to doubt that the decision to keep them in place and continue this investigation was in any way wrong. >> was it wrong for bill barr to make that commitment? judge garland: i'm not going to be making judgments about my predecessors. i don't think there is any purpose. i want you to judge me on my own record. sen. cotton: was it wrong for democratic senators demand that bill barr make that commitment two years ago? judge garland: my answer would be the same. sen. cotton: on the death penalty said you have developed a great cause over it and use that joe biden expressed opposition to the death penalty. did joe biden or anyone from his administration transition or campaign -- not to pursue capital punishment in cases
12:44 pm
against murderers or terrorists? judge garland: no. sen. cotton: you spoke at the outset about your outstanding work in the 1995 oklahoma city bombing case in which you were part of a team that helped bring to justice a white mass murderer. he was sentenced to death. that death penalty has been carried out. do you regret that timothy mcveigh received the death penalty and has been executed? judge garland: i supported that as i said in my original senate hearing when i became a judge originally, i supported the death penalty at that time for mr. mcveigh in that individual case. i don't have any regret. i have developed concerns about the death penalty. the sources of my concern are issues of exonerations. people who have been convicted of the arbitrariness and
12:45 pm
randomness of its application. and because of its disparate impact on black americans and members of other communities of color. those are the things that give me pause. those are things that have given me pause over the past 20 years. sen. cotton: you are confirmed as that -- if you are confirmed as attorney general and there was a case like timothy mcveigh were a white supremacist bombed a courthouse and your attorney sought approval for the death penalty would you give that approval? judge garland: it depends on the development of the policy. if the president asks or we develop a policy about moratorium it would apply across the board. no point in having a policy if you make individual discretionary opinions. if that is a policy that's the policy. sen. cotton: you said in your opening statement and in addition to several questions from senators that you would regulate communications between the white house, that there would be no partisan influence.
12:46 pm
in this case there would be influence from the white house? the u.s. attorney was seeking the death penalty against a white supremacist domestic terrorist? judge garland: what i'm trying to say is if there was a policy decision made by the president and announced by the president he certainly has the authority and nothing inappropriate about it within his authority to require an across-the-board moratorium. what i was talking about was not a decision by the president in any particular case or the direction of how any particular case should go forward. the moratorium would apply as a policy across the board. the supreme court has held the death penalty is constitutional, but not required. that is within the discretion of the president. sen. cotton: before we move on from oklahoma city, let me commend you for your work and that i believe that timothy
12:47 pm
mcveigh deserved the death penalty. another case involves still in the roof, i white supremacist from south carolina who went into an african-american church and killed nine african-americans in a racially motivated attack. the obama white house saw the death penalty for him. you believe it was a mistake to see that to seek the death penalty against dillon roof for murdering nine african-americans? judge garland: i'm not supposed to be asking you, but i have the feeling this is still a pending matter, and if it is i cannot talk about a particular case. sen. cotton: let me ask you the hypothetical. judge garland: i apologize for asking you. sen. cotton: let's oppose another white supremacist walks into another african-american church and murders african-americans worshiping christ in cold blood in the u.s. a trinity seeks the death penalty. would you approve it? sen. cotton: i think it does depend on what policy is adopted going forward.
12:48 pm
i would not oppose a policy of the president because it's within his authority to put a moratorium on the death penalty penalty in all cases. instead to seek mandatory life without possibility of parole. without any consideration of the facts in any particular case. sen. cotton: some on the left are calling for president biden to grant a commutation to all federal death row inmates to reduce their sentence to life in prison. would you recommend to president biden they make such an across-the-board commutation? judge garland: this is one i would have to think about and which i have not thought about. i would have to consult across-the-board. sen. cotton: on racial equity, do you believe the core concept of american law is that the government cannot discriminate against a citizen on the basis of their right see?
12:49 pm
judge garland: absolutely. equal justice under the law. written on the steps of the supreme court. sen. cotton: fun only unlawful, but morally wrong? judge garland: yes, i think this termination is morally wrong. sen. cotton: you know president biden said his admin attrition will advance racial equity, not racial equality, but racial equity. judge garland: yes, and i read the opening of that executive order, which defines equity as a fair and impartial treatment of every person without regard to their status. and including individuals in underserved communities where they were not accorded that before. i don't see any distinction in that regard. that is the definition that is included in that executive order --
12:50 pm
sen. cotton: racial equity and racial equality are the same thing? judge garland: this word was defined in the executive order as i just said it. i can't give you any more than the way in which the executive order to find it. sen. cotton: thank you, judge. sen. durbin: senator booker? >> it's good to see you sitting before the judiciary committee of the united states senate. >> thank you, i am grateful. sen. booker: if you don't mind me starting with philosophy there is the micah mandate, i'm not sure about your expression, but you have heard before it is due justice and love mercy. this idea of justice to me is fundamental to the ideas of the nation founded with a lot of injustice at the time. the brilliance of the imperfect geniuses of our founders who
12:51 pm
aspired to create a society that john lewis and others would have called a more beloved community. one thing i have read says what does love look like in public? it looks like justice. you have, to me, one of the most positions on planet earth for trying to create a more just society. the issues raised, and i was grateful in your opening remarks you talked about your agency coming about to deal with issues of justice in our nation. i want to talk to you about white supremacist violence that has been mentioned a lot. before i get there, i am concerned with something i consider pernicious and difficult to root out, which is the realities of implicit racial bias that lead to larger systemic racism. the issue of systemic racism has
12:52 pm
become something argued over. if i can walk you through for a second, does our justice system treat people equally in this country? judge garland: sadly, and as plain to me -- it is plain to me it does not. sen. booker: i'm going to stop you there. we have a common justice system that treats you better if you are rich and guilty than if you are poor and innocent because one's finances make a difference in what kind of justice one gets. judge garland: there is no question there is disparate treatment in our justice system. mass incarceration is a good example of this problem. we are incarcerating 25 -- almost 25% of the worlds population. we have something like 5% of the worlds population. i don't think that it's because americans are worse. what belies that is the
12:53 pm
disparate treatment of blacks and the communities of color. sen. booker: let's drill down on that. one big thing driving arrests in our country is marijuana arrests. we had in 2019 more marijuana arrests for possession then all violent crime arrests combined. when you break out that data and segregate along racial lines it's shocking that an african-american has no difference in usage or selling than someone who is white in america, but their likelihood of being arrested for doing things that two of the last four presidents admitted to doing is three to four times higher than somebody white. is that evidence that within the system there is implicit racial bias, yes or no? judge garland: it is definitely evidence of disparate treatment within the system, which i think does arise out of implicit bias. unconscious bias may be, sometimes conscious bias.
12:54 pm
sen. booker: i think that is a fair point. unconscious or conscious it results in a system -- i've had great conversations with people on both sides of the aisle who think of this as important to american ideals that we have a system that so desperately treats people. the stationhouse adjustment which i have seen happen as a mayor. people get called in for arrest for marijuana and police make a decision like, just leave and your parents, and it's dismissed. we have seen from stationhouse adjustments, to charge and, to sentencing, every objective analysis has shown that race in our country is still playing a specific influence in the justice someone gets. you are aware of this? judge garland: i am and this is a reason why at this moment i think i wanted to be the attorney general. sen. booker: i want to get to that. a point that a lot of folks are
12:55 pm
making, it does not mean that the people who are engaged in this are racist overtly. it means they have an implicit racist bias that leads them to make different decisions about people. judge garland: yes. it also -- the marijuana example is a perfect example. here is a nonviolent crime that does not require us to incarcerate people and we are incarcerating at significantly different rate in different communities. that is wrong and it's the kind of problem that will then follow a person for the rest of their lives. it will make it impossible to get for -- to get a job and will lead to a downward economic spiral. sen. booker: to your point before, hearing you are in an agency that was formed to deal with systemic racism going on at that time, when you have
12:56 pm
disparate views of the law where you see african-americans being turned into the carbonneau justice system, it is concentrated in certain communities and not others, where the american bar association says 40,000 poetical -- collateral consequences on the lives of african-americans where they can't get loans from banks or jobs. they can't get certain business licenses. it's so dramatic that their estimates that the costs to african-americans and the persistence of a wealth gap in our country where black families have 1/10 the wealth of white families. if you look at the impact of the law and the disparate impact on marijuana it's estimated to have caused african-americans in this country billions of dollars more. my question is, assuming this position where you were called upon for that mandate, what are you going to do about this outrageous injustice that persists and infects our society
12:57 pm
with such a toll on black and brown communities? judge garland: there are many things that justice department has to do in this regard. i agree that disparate results with respect to wealth accumulation, discrimination in employment, housing, and health care availability, all of which we all see now in the consequences of the pandemic which affects communities of color enormously more with respect to infection rates and hospitalization. and ultimately to death. one set of things we can do is the mass incarceration example. we can focus our attention on violent crimes and other crimes that put great danger in our society and not allocate our resources to something like marijuana possession. we can look at our charging policies and stop charging the
12:58 pm
highest possible offense with the highest possible sentence. sen. booker: i was told never to interrupt a judge, i hope you'll forgive me. i would like to end with this question then my time is up. you have talked about your thoughts about this and i've been inspired. get back to your conviction on this issue and your determination to go down in a time when our nation needs this, to go down as one of the great leaders when it comes to dealing with the daily, unconscionable injustices faced by some americans and not others at the hands of law enforcement. one thing you said privately particularly motivated me to believe you when you talk about your aspirations. i'm wondering if you could conclude by answering the question about your mode motivation and some of your for family history in confronting hate and discrimination in
12:59 pm
american history. judge garland: yes, senator. i come from a family where my grandparents fled anti-semitism. the country took us in -- and protected us. and i feel an obligation to the country to pay back -- this is the highest, best use of my own set of skills to pay back. i want very much to be the kind of attorney general that you are saying i could become. i will do my best to try to be that kind of attorney general. sen. booker: i believe your heart and i'm grateful that you are living that micah mandate. sen. durbin: thank you, senator
1:00 pm
booker. i'm going to make a motion to introduce into the record letters of support for judge garland's nomination. there are 25 different categories of letters to support. i am struck immediately by the diversity of support that you have, 150 formers attorney general and top department of justice officials, the list goes on. dozens of former federal judges, former state attorneys general, for you to have the national sheriffs association, the fraternal order of police, and the leadership conference on human rights is an amazing political achievement. and the list goes on.
1:01 pm
former f2 b i director louis friede. the leading children and green children, they both have written letters of support for you. i want to take a moment in light of your closing statement from this round to tell you that your work in your life has been recognized across the board. this area of letters of support speaks to fairness and honesty in the way that you have dealt with your legal profession and your public service. without objection come i will introduce these letters of support for your nomination into the record. now we are going to take a lunch break and i will declare, because i power to do that now, that we will return at 1:40 p.m. in the first person up will be from the sovereign state of louisiana, john kennedy. we will all at length -- we will
1:02 pm
all actually await his contributions let's stand in recess. [captions copyright national cable satellite corp. 2021] [captioning performed by the national captioning institute, which is responsible for its caption content and accuracy. visit ncicap.org]
1:03 pm
>> judge merrick garland appearing before the senate judiciary committee as joe biden's nominee for u.s. attorney general. a handful of committee members yet to ask questions as they break for lunch. judge garland 68 years old and raised in chicago and attended harvard and oversaw the oklahoma city bombing case for the justice department. he called it the most important thing he had ever done in his life.
1:04 pm
in 2016, he was nominated to the supreme court by president obama but his mom -- but his nomination was blocked by republicans at this time. waiting to see if the lawmakers here in person speak to the public. >> it's not my first hearing for nominees. so i measured this morning against many others who have come before us both political parties seeking high offices like the office of attorney general. i cannot think of a better presentation than what we saw from judge merrick garland. it confirmed president obama possible belief that this man could aspire and successfully served the highest levels of public office. i thought he was forthright and not evasive. he answered all questions. i felt a good response from both sides of the aisle to statements
1:05 pm
that he made. i am looking forward to continuing this afternoon and completing it, the first round today. >> are you confident his nomination will receive bipartisan support? >> republican senators told me privately that they will support him. i hope that his testimony will add to that number. >> do you think he will pursue investigations into things like governor cuomo? >> of course come he's careful not to make that sort of statement nor should he. situation is he has an awesome responsibility as the highest level of law enforcement in america. we look for judgment from him, we know he has judicial temperament, he has proven it and i just trust this man's character and integrity. >> being chairman, we know that there will be a difficult vote
1:06 pm
potentially later this week. do you think you will any republican support on the covert relief package? >> i don't know the answer to that. senator manchin's public statement makes this a challenge. we need to find support on the republican side of the aisle to make up for the vote the other way. ok? thank you. >> just heard from the chair of
1:07 pm
the judiciary committee were judge merrick garland is testifying today. his confirmation as the nominee of joe biden to be the next attorney general. while they break for lunch, we will look at some of the questioning from earlier, starting with the committee chair. you were sent to okemos city in 1995 -- oklahoma city in 19i-5. what happened there was the deadliest act of homegrown domestic terrorism in modern american history. hundreds were injured. you were supervising the prosecution of timothy mcveigh and terry nichols, who were accused of being complicit and fleeting in that destruction. now, if you are confirmed as attorney general, which i believe you will be, you will face what is known as the biggest and most complex in the -- investigation in justice
1:08 pm
department history. 230 have been arrested so far, some 500 are under investigation. we know the death of at least one police officer is one of the major elements in this investigation. i would like to ask you to reflect on two things. what is going on in america, was oklahoma city a one-off unrelated to what happened here? can you major based on what you have learned so far what kind of forces are out to destroy the american dream? secondly, when it comes to the prosecution, are there elements we should consider in terms of law enforcement to deal with this rising threat to the american democracy? judge garland: thank you, senator. thank you for the opportunity to address the committee today. i am grateful for this opportunity.
1:09 pm
i don't think this is necessarily a one-off. fbi director ray has directed -- communicative the threat of the mystic terrorism and particularly of white supremacist extremists is the number one concern in this area. this is coupled with the in norma's rise in hate crimes over the past few years. -- enormous rise in hate crimes over the past few years. there is a line for okemos city all the way back to the experiences i mentioned in my opening with respect to the battles of the justice department against the ku klux klan. we must do everything in the power of the justice department to prevent this kind of interference with the policies of american democratic institutions. and i plan, if you confirm me for attorney general, to do everything in my power to ensure
1:10 pm
that we are protected. sen. durbin: judge garland, it goes without saying, but we want to make it on the record, we had -- have violence whether it comes from the right or the left, whatever the source, it has no place in the constitutional dialogue of america. currently, we are faced with elements that were not there 25 years ago in oklahoma city. a proliferation of weapons, secondly, social media and the internet, which serves as a gathering place for many of these to mystic terrorists. what are your thoughts about how we should you with those elements from a law enforcement viewpoint? judge garland: well, mr. chairman, i certainly agree that we are facing a more dangerous period than we have faced at that time. from what i have seen, and i know inside information about
1:11 pm
how the department is developing its work, it looks like an extremely aggressive and perfectly appropriate beginning to an investigation. across the country, in the same way our original oklahoma city investigation was. but many times more. i don't know yet what additional resources would be required by the department. i can assure you that this would be my first priority and my first briefing when i returned to the department if i am confirmed. sen. durbin: judge garland, several years ago, i went to an immigration court hearing in downtown chicago. it was in a high-rise old and. i met the -- loop building. i met the judge. she had been on the job almost 20 years. she seemed like a conscientious, fair person. the first clients on the docket were a four-year-old girl named
1:12 pm
marta. when the judge asked all of the people in the courtroom be seated, she had to be helped into a chair that was too tall for her to get into. she was handed a stuffed animal to hold for the hearing and at the same table was a young boy with the unlikely name, hamilton. who was given a matchbox car which he played with on top of the table. he was six years old. they were the victims of the zero-tolerance policy. we remember it well. thousands of children were forcibly removed from their parents, separated and, many times, lost in the bureaucracy. some have incorrectly stated that that policy of the trump administration was a continuation of an obama era policy. that is not true. the obama administration did not have policies that resulted in the mass separation of parents and children.
1:13 pm
on rare occasions, separations -- on the rare occasions separations occurred, it was because of suspect of trafficking. the general conducted an investigation of the zero-tolerance policy and noted the justice department was the driving force in that policy. there is still a lot that we do not know about that policy and the accountability for the officials who were responsible for it. let me ask you this. this committee will hold oversight hearings to get to the bottom of it. when you commit to cooperate with those investigations -- will you commit to cooperate with those investigations? judge garland: the oversight responsibility of this committee is one of its very most important things. it is a duty posed by the constitution and i greatly respect it. i think the policy was shameful. i can't imagine anything worse than separating parents from their children. and we will provide all of the
1:14 pm
cooperation that we possibly can. sen. durbin: i thank you for that. when it comes to congressional oversight, this committee has a role in restoring independence of integrity to the justice department through oversight hearings. it has a standard of holding annual justice department oversight hearings. sadly, it has been three years since the attorney general has been called before this committee. i pledge that as chairman i will hold annual doj oversight hearings where members from both sides of the aisle can ask important questions of you in that capacity. i don't want to go into detail but ask you would you agree to cooperate in that commit to an oversight -- commitment to an oversight hearing? judge garland: of course. i will cooperate. sen. durbin: when requests are made for information, i hope i can have your commitment to cooperation in providing timely
1:15 pm
answers. judge garland: yes, mr. chairman. we will be as responsive as we possibly can. as i said, i have great respect for and belief in the oversight role of this committee. sen. durbin: thank you. senator grassley? senator grassley: since you are currently a sitting judge bound by the code of conduct of u.s. judges i hope we can get frank answers from you on your views. when we talked last on the phone, you told me you would give guidance -- get guidance from the administering office on what you can and can't say. i assume you sought that guidance. if so, what did they advise you? judge garland: yes, senator grassley, i did. they advised me adjust as you and i thought they would, it bars me from commenting on any
1:16 pm
impending case that is in any court or any pending case per but i am free to talk about policy -- pending case. but i am free to talk about policy. sen. grassley: i will go to the durham investigation. at bars hearing, he stated the following to the mueller investigation. it is important the special counsel be allowed to complete its investigation. also of that same hearing, senator feinstein asked will you commit to providing mr. mueller with the resources, funds and time needed to complete his investigation? attorney general barr answered senator feinstein with a one-word "yes." with respect to the special counsel durham's investigation, i expect he will be allowed to complete his investigation. if confirmed, will you commit to providing special counsel durham
1:17 pm
with the staff resources, funds and time needed to complete the investigation? judge garland: senator, i don't have any information about the investigation. as i sit here today, another one of the first things i will have to do is speak with mr. durham to figure out how his investigation is going. i understand he has been permitted to remain in his position. sitting here today, i have no reason to think that that was not the correct decision. sen. grassley: and i suppose that would be an answer that would only be removed for cause. would that be your position? judge garland: i really do have to have an opportunity to talk with him. i have not had that opportunity. as i said, i don't have any reason from what i know now, which is really very little, to make any determination on that ground. i don't have any reason to think
1:18 pm
that he should not remain in place. sen. grassley: if confirmed, would you commit to publicly releasing special counsel durham's report just like the robert mueller report was made public? judge garland: senator, i am a great believer in transparency. i would have to talk with mr. durham and understand the nature of what he has been doing and the nature of the report. but i am very much committed to transparency and to explaining justice department decision-making. sen. grassley: at this point, i will not take exception to the answers you have gave me about durham, because i think you are an honorable person. they are not quite as explicit as i hoped they would be like we got from attorney general barr from the mueller investigation. but i think you have come close to satisfying me. but maybe not entirely.
1:19 pm
we are in the midst of a drug crisis, in addition to opioids, cocaine and fentanyl, fentanyl is plaguing our country. increasingly sophisticated drug trafficking organizations, both domestically and internationally tried to strip the law by changing their molecular structure. the center for disease control has found that drug overdose deaths rose to their highest level ever during the pandemic, with the overall jump in deaths being driven most substantially drug like fentanyl. we must stop this fentanyl substance from entering our neighborhoods and killing thousands of americans. my question is, as you leave the justice department, having oversight over the drug enforcement administration
1:20 pm
within that department and they will be addressing the spread of fentanyl analogs and related substances by pushing for continued probation of fentanyl. i did not make my question clear. would you lead the justice department in pushing for continued classwide prohibition of fentanyl dialogues? judge garland: senator, i am familiar with this problem. one of my roles was to serve on the pretrial services committee for the -- committee for the pretrial services agency for the district. we were constantly advised of the fact that the formula was being slightly changed, constantly. this was a problem both for detection as well as for the problem of enforcement. to be honest, i am no chemist.
1:21 pm
it is one of the reasons i ended up being a lawyer instead of a doctor. but, i would need to look at what would be proposed. but i do understand the scope of this problem and i am in favor of doing something, either by scheduling or by legislation, if i am confirmed, that would address the problem that you are talking about, which is an enormous problem for enforcement. sen. grassley: i want to go to the death penalty because we have some people already prosecuting where the death penalty has been advocated or sought. one of those were the people involved in the boston marathon. so, the question -- the justice department, again, under the obama administration sought and received an appropriate sentence
1:22 pm
of death. that sentence is currently being appealed. will you commit to defend these sentences on appeal? judge garland: senator, now we are rubbing up against the exact problem you asked me about in the beginning. these are pending cases. as a sitting judge, i am barred from making comment on impending cases. sen. grassley: my last question will have to deal with the investigation that is underway by some of us in congress about hunter biden. have you discussed the case with the president or anyone else? and i don't expect you to discuss your private conversation with the president.
1:23 pm
but members of this committee always ask judges or other people did you discuss with the president, for instance, your position on abortion. have you discussed this hunter biden case with the president or anyone else? judge garland: i have not. the president made abundantly clear in every public statement before and after it might nomination that the decisions about investigations and prosecutions will be left to the justice department. that was the reason that i was willing to take on this job. is appropriate. senator feinstein will be recognized. senator feinstein: thank you very much and welcome. throughout your career, you have been praised by people on both sides of the aisle. when you are nominated to the supreme court, president obama said you were someone who would bring a spirit of decency, modesty, integrity,
1:24 pm
evenhandedness, and excellence. similarly, senator orrin hatch called you a fine man who would be a moderate choice for the court. even carrie severino once called you the best scenario we can hope for to bring the attention and the politics in the city down a notch. at the time when america feels more paralyzed -- polarized than ever before, this source of bipartisanship is truly rare. so, i ask this question. can all americans, regardless of their political affiliation, count on you to faithfully and fairly enforce our laws? judge garland: yes, senator. that is my personality. that is everything i have done in my career and that is my vision for the justice
1:25 pm
department, to dispense the law fairly and impartially without respect to persons and without respect to political parties. sen. feinstein: on january 6, a group of white supremacists launched a terrorist attack on our capitol in an attempt to overturn the results of our democratic election. there attempt failed and resulted in at least five fatalities, including a capitol police officer. it led prosecutors to file over 180 charges and initiate over 25 to mystic terrorism cases. this is not the first time the justice department has been forced to investigate and prosecute white supremacists for an act of is a. you received high praise for investigating and supervising the prosecution of the oklahoma city calming perpetrators in
1:26 pm
1995. so, here is the question. what steps will you take to ensure that the perpetrators of the attack on our capitol are brought to justice? judge garland: senator, i think this was a most heinous attack -- the most heinous attack on the democratic process i have seen and one i never expected to see in my lifetime. one of the first things i will do is help get a briefing on the progress of this investigation. i intend to give the career prosecutors who are working on this manner 24/7 all of the resources they could possibly require to do this. at the same time, i intend to make sure that we look more broadly to look at where this is coming from, what other groups there might be that could race the same problems in the future
1:27 pm
and that we protect the american people. and i know that the fbi director made the same commitment. sen. feinstein: thank you for that answer. over the last four years, the independence of the attorney general has been repeatedly attacked. for example, president trump once told the new york times "i have the absolute right to do what i want to do with the justice department." do you believe that, in fact, the president does have the absolute right to do what he wants with the justice department? judge garland: the president is constrained by the constitution, as are all government officials. the issue here for us are the norms and standards to which this president, president biden, has agreed that he will not interfere with the justice department with respect to its prosecutions and investigations. those decisions will be made by the department itself and led by the attorney general.
1:28 pm
they will be without respect to partisanship, without respect to the power of the perpetrator or the lack of power, without respect to the influence of the perpetrator or lack of influence and in all of those respects, the department will be independent. the department is part of the executive branch. for that reason, our policy manners, we follow the president of the administration as long as it is consistent with the law. the role of the department is to advise the president and the administration and other agencies about what is consistent with the law. that is our obligation and we will do so, objectively, based only on our reading of the law. sen. feinstein: thank you for that. i think you have laid it out clearly and directly and it is very much appreciated. if the presidents interest and the public interests are in
1:29 pm
public, -- in conflict, which interest does the attorney general represent? judge garland: the attorney general represents the public interests, as defined by the constitution in the united states. sen. feinstein: do you believe the president has the authority to order the attorney general to open or close an investigation or a prosecution? judge garland: this is a hard question of constitutional law but i do not expect it to be a question for me. the president has promised that those decisions will only be made by the attorney general and that is what i plan to do. i do not plan to be interfered with by anyone. i expect the justice department will make its own decisions in this regard. sen. feinstein: thank you. i will cease at this time. i just want to say that i think you have had a remarkable career. you have been a very -- you have
1:30 pm
done very special things and always in a very reasonable, sober way. i want to say thank you for that. judge garland: i am grateful, senator. thank you for that. >> thank you, senator feinstein. we hope that senator graham, who is next up is ready? senator graham? senator graham: can you hear me? >> we can hear you. senator graham: congratulations to you. judge garland, congratulations on your appointment. i think you are a good candidate for the job. i will try to get through as much information as i can. do you promise to defend the public courthouse against anarchists, the federal court building in portland? judge garland: any attack on a federal building or damage to a federal building violates federal statutes and those who do it will be prosecuted. sen. graham: the people who
1:31 pm
attacked the capitol on january 6, will you let the committee know if you need more resources? judge garland: yes, absolutely, senator. i think one of my first jobs is to consult with the prosecutors and the agents who are investigating that manner and see what resources that need -- matter and see what resources that they need. sen. graham: thank you. i think all of us want to prosecute every single person that deserves to be prosecuted. so, whatever you need, i am sure you will get from this committee. have you read the horwitz report? judge garland: in our conversations, you asked me to read it. it is 400 pages long and i asked you permission to read the executive summary. i have done that. sen. graham: what is your general take? judge garland: my general take
1:32 pm
is there were certainly serious problems with respect to applications, particularly from mr. page. in the subsequent report in which the pfizer applications are document it, the inspector general had a substantial number of recommendations for how this would be fixed and how it must be fixed. i understand that he submitted those to the fbi director and i understand the fbi director agreed, totally and either has made those changes or is in the course of making them. i intend, if i am confirmed, to speak more deeply and directly to mr. horror it's about this -- horwitz to make sure anything that is necessary will be done. i am always concerned and have always been concerned that we be
1:33 pm
very careful about fiza. it is a useful tool that is important for investigations. sen. graham: are you familiar with the fact that a lawyer from the fbi has been prosecuted and pled guilty to altering the information? judge garland: i did read about that, yes. sen. graham: what would happen if somebody under your charge did that? how would you feel about that behavior? judge garland: somebody who makes a false statement to the fbi or inspector general during the investigation has violated 18 usc 1001. sen. graham: do you believe the investigation is a legitimate investigation? judge garland: i don't know anything really about the investigation. sen. graham: do you think somebody should look at what happened? judge garland: i do think
1:34 pm
somebody should look at what happened in respect to that. absolutely. sen. graham: based on what your review of the report, do you think jim comey was a good fbi director? judge garland: senator, i really don't want to get into analyzing any of the previous -- sen. graham: you have been critical and appropriately so at times. i find it stunning that you can't say, in my opinion, that he was a terrible fbi director. have you ever been to the border? have you ever been to the u.s.-mexico border? judge garland: no sir, i haven't. sen. graham: i would like you to go, i just got back. i have learned drug cartels are using our malls against us. they will flag people to rush the border. when they are apprehended, they will claim asylum and most of
1:35 pm
these claims, 90% are rejected. that will take resources away from securing the border and protecting the drugs and protecting the nation against terrorism. this is a behavior by the cartels. will you look into that practice of using drug cartels to weaken border security? judge garland: i have not known about this and i will certainly look into this problem. i think the drug cartels are a major menace to our society. the poison that they put into our streets is damaging communities of every kind. sen. graham: i think you will find patriots at the border. when they make mistakes, they need to be held accountable. that is one of the topics jobs in the country. judge garland: i apologize for speaking over you just now. there is -- >> i apologize for speaking over
1:36 pm
you. there is a little bit of a lag. it is not your fault. it is the technology. sen. graham: i have a southern accent. >> it is not the southern accent. sen. graham: since the 20th anniversary of 9/11, are you concerned that al qaeda and isis types are going to try to hit us again? judge garland: i am concerned that foreign terrorist organizations will try to hit us again, yes. i don't know about the capabilities of those two but it does not matter which foreign terrorists -- the terrible thing is the attack. i said in my opening statement, with all of the other things the justice department has to do, it must always keep its eye on the ball with respect to foreign terrorist attacks. i was sitting in my office -- arriving in my office as the first plane hit the trade center, and i was sitting in my office and could see smoke rising over the pentagon.
1:37 pm
i can assure you that this is top of mind for me. sen. graham: one of the reasons i am very inclined to support you is i believe what you just said is true. i think you have a very deep understanding of the threats america faces. and to my colleagues on the committee, al qaeda has been diminished. isis has been greatly diminished but they are out there and they are trying to -- they will this year, sometime, i hope i am wrong, let us know they are still there. it is great that the potential future attorney general understands our nation is very much still under threat. when it comes to interacting with the committee, we will be talking about section 230 reform. what is your impression of section 230's liability protection for big tech and is it time to revisit that topic?
1:38 pm
judge garland: i have to confess when i have limited information about a subject. i have had one case of section 230. it was a straight application of the law. i know what it is. i know that many members of this committee have ideas for how it should be amended. i would have to have the opportunity, if i am confirmed, to talk with you about that and understand all of the conflicting concerns and the perplexities of how to alter it if it is to be altered. the devil in these sorts of things is always in the details. you on the committee know more about this than i do. isenator whitehouse: welcome, judge garland. judge garland: thank you. senator whitehouse: people have said it is not the legislature's business to metal around in a prosecution. at the same time, we have oversight responsibilities.
1:39 pm
in your opinion, was it appropriate for congress to ask the doj to give an honest look at investigative matters? judge garland: senator, i know of your lung experiences as a prosecutor, including some of it which overlapped mine. i have been respectful and appreciative of it. you ask it that way, it is always possible for anyone to ask about matters like this. the department has to be very careful with respect to the congress and, in the same way, it has to be careful with respect to the white house, that no investigations get started just for partisan -- and i am not suggesting that is what you're asking -- but we have to be careful about this. sen. whitehouse: after the fact, once the investigation has closed or concluded, is it appropriate in the exercise of our oversight to ensure an honest look was taken? judge garland: yes, of course it
1:40 pm
is. there are obviously limitations of the departments ability to speak. that includes everything from grand juries -- sen. whitehouse: understood. with respect to january 6, i would like to make sure that you are willing to look upstream >> the confirmation hearing for judge merrick garland is coming back from a lunch break. he is appearing today before the senate judiciary committee as president joe biden's nominee for u.s. attorney general. if you more senators yet to question him on this first round and a committee vote on his nomination is expected to be given to the full senate next monday.
1:41 pm
senator durbin: the hearing will
1:42 pm
resume, senator kennedy of louisiana. senator kennedy: thank you, mr. chairman and thank you judge. judge garland: nice to see you senator. senator kennedy: i wanted to follow-up on what senator booker talked about. what, to you, is justice? judge garland: everybody treated equally regardless of their position in society, powerful, powerless, rich, poor, democrat republican, black, white, equal treatment, equal justice under the law. senator kennedy: i want to press you a little bit on that. is it justice if you have an unjust law that applied equally?
1:43 pm
judge garland: that's a lack of justice. senator kennedy: let's tero it down to punishment and justice. if i suggested to you that justice and the concept of punishment is when someone gets what he deserves, would you agree or disagree with that? judge garland: i suppose that depends on what it means. yes, i think justice requires individuals -- individualized determination of a crime you did. there are mitigating circumstances. senator kennedy: let me put another way -- is a person who commits a crime a center and the moral sense -- a sinner in the moral sense or a sick person?
1:44 pm
judge garland: this is again probably beyond my competence. with justice comes mercy and so i think we have to take into consideration all different kinds of things. i also think the kind of crime we are talking about is relevant to the question of what kind of person it is it is. i'm not sure exactly what you are asking me. i'm not trying to be evasive but i don't know what you are asking. senator kennedy: let me shift gears. were you chief judge when the coronavirus judge garland:judge garland: -- unfortunately, for my successor, my term ran out just before coronavirus. senator kennedy: if you had been chief judge, would you have
1:45 pm
adopted a rule that said if one of our employees and the court gets coronavirus and goes to the hospital and is treated and is released and wants to come back to work in the court, it would be discriminatory to ask them to take a coronavirus test? senator kennedy: no. judge garland: ok, isn't that what happened with our nursing homes throughout the country? judge garland: i honestly don't know what happened with the nursing homes. i don't know what they were doing with respect to -- i'm sorry, i'm not trying to be evasive, i really don't know the facts here. an example you gave me, there is nothing discriminatory about asking people who might be infected from a public health point of view to be sure they
1:46 pm
don't infect other people. if a determination is made they are not infected, that's the end of it. equal treatment doesn't mean we don't take into consideration the possibilities of different degrees of health in a particular circumstance. i honestly don't know what happened with the nursing homes. it was terrible that many people got the covid in the nursing homes and that was a major vector of the spread of the infection but i don't know why that was except there are people who got it in one place and is easy to spread that way. senator kennedy: ok, i think science tells us that keeping our schools closed has a disproportionate impact on poor people and children from poor families and on families that
1:47 pm
have children of color. at what point do you think our refusal of some of our leadership in our schools to reopen becomes a civil rights violation? judge garland: senator, i completely agree with your description of the consequences of the school closings. i tutor to children in the neighborhood of washington, d.c. were most of the students in the school are people of color. i have been able to tutor them by zoom every week but when they are taking classes by zoom, it's much more difficult obviously for them. they have done terrifically. not because of me but they have. it would be with people with
1:48 pm
other resources. i think public officials have to weigh very serious competing concerns with respect how to deal with covid. there is no doubt about it. on the one hand, we got to be very worried about sending kids back in their schooling and the other hand, we have to be worried about not spreading the disease in a way that kills them or more importantly, not more likely, their parents or grandparents. i don't want to be the person who makes the judgment. senator kennedy: i understand. you have written in one of your opinions -- i will read it and i know you haven't memorized all your opinions. you said the constitution " does not contemplate that the district of columbia may serve as a state for purposes of the
1:49 pm
apportionment of congressional representatives. that textual evidence is supported by historical evidence concerning the general understanding at the time of the district creation." is that still your considered opinion? judge garland: yes, and i would say that is the case, one of my earliest cases which taught me what it means to be a judge which is to do something the opposite of what you would do if you had a public policy concern. citizens of the district of columbia should be allowed to vote but i didn't think the constitution gave them the right. it made me sad but roomed -- but it reaffirmed my role as a judge. senator kennedy: in my last 26, i will ask you if you agree with this statement. i'm not suggesting the answer one way or the other, i want to know what you believe. allowing biological males to
1:50 pm
compete in an all-female sport deprives women of the opportunity to participate fully and fairly in sports and is fundamentally unfair to female athletes. judge garland: this is a very difficult societal question you are asking. senator kennedy: i know but you are going to be attorney general. judge garland: i may not be the one who has to make policy disuse like that but it's not that i am adverse to it. i think every human being should be cheated with dignity and respect. that's an overriding sense of my own character but an overriding sense of what the law requires. the particular question of how title ix applies in schools is in light of the prospect case which are for you -- which you are familiar with the something i would have to look at when i have a chance to do that. i have not had a chance to consider these kinds of issues in my career so far. i agree this is a difficult question. senator kennedy: thank you,
1:51 pm
judge. senator durbin: for his first question is a member of the senate judiciary committee, senator alex padilla. senator padilla: thank you for your many years of public service and should you be fortunate enough to be concerned -- confirm, it's the next chapter. myself i been in different capacities including the prior six years, prior to my appointed to the senate as california secretary of state and chief elections officer. my mission in that role was to increase voter participation and ensure free and fair elections. as the country has become more diverse, not just in california and new york throughout the nation, it is no coincidence that we have seen a resurgence of white supremacy and violent
1:52 pm
extremism. history is clear. voter suppression is rooted in white supremacy. this is true now and it has been true ever since reconstruction and the establishment of the department of justice. this committee has acknowledged that. it should not be lost on any of us that after the 2013 shell bv holder decision by the supreme court, we have seen a wave of legislation in states across the nation which have the effect of making it harder for eligible citizens to register to vote, to stay registered to vote or to simply cast their ballot. i know senator lahey touched on the subject of voting rights earlier today. i want to acknowledge that despite the success of the 2020 election, which has been deemed secure, new voter suppression laws are being introduced right now across the country under the false pretext of preventing
1:53 pm
voter fraud. we also have former trumps years of lies about voter fraud, the big lie, radicalized many of his supporters and lead not just to physical threats against election officials, election offices, polling places and even voters, but they ultimately led to the violent insurrection here in the nation's capital. you touched on this in your opening remarks but can you expand on how you will combat white supremacy that threatens the safety and fairness of our elections specifically? judge garland: well, that's a lot of lessons all in one. it's a complicated problem. i strongly believe in voting and increasing every possible
1:54 pm
opportunity for voting. congress can do that even on its own. the elections clause of the constitution permits the congress to set time, place, and manner and alter state regulations in that respect. the state decides with congress can act on this one thing congress can do as a matter of legislation. as i said, i would like to work with the congress on moving the record with respect to section four so that we can use the tool of section five. we do have the authority of section2 which requires, change the burden of proof and chain doesn't -- and does not change election laws but it gives us the opportunity to bring cases where there was intention to discriminate but also where there is an overall disparate
1:55 pm
impact with respect to discrimination. there are a number of rules available to us. the voting rights section of these was established for the purpose of pursuing these cases and we would do so. senator kennedy: thank you. senator kpadilla: there is a lot that should be done with voter rights, you should be able to vote free of harassment, intimidation, obstacles, etc. and part of what is against that is this big lie. we all sat through the impeachment process -- trial and
1:56 pm
the results notwithstanding, could not help to be moved by the evidence presented by the house managers. it was how president trump's big lie about voter fraud rag allies -- radicalized many of his per forwarders -- supporters. there was an article about the perils between the capital insurrectionist and foreign terrorist organizations. i asked this to be respectfully inserted into the record. they say domestic radicalism has deep parallels to jihadist terrorism. both movements are driven by alienation from the political system and resulting breakdown in social norms. for some groups, and individuals, this break leads to violence they see is justified to achieve political ends.
1:57 pm
as we all know, the definition of terrorism is the unlawful use of violence and intimidation in pursuit of political ends. president trumps political and was clear -- stopping the certification of the 2020 election at the capital on january 6. one could argue that right-wing groups like the proud boys and the oath have acted like terrorist cells, communicating with one another, training together and preparing for the moment they are activated for the mission. indeed, president trump instructed the proud boys on national television to stand back and stand by. then he summoned them to the capital on january 6 as congress was meeting to certify the election. what happened on january 6 was not a property crime, it was not vandalism in reference to a question you asked earlier.
1:58 pm
as we sit here in the united states capitol surrounded by national guard troops and barbed wire, how will you bring the full resources of the justice department to bear on white supremacist organizations that pose an ongoing threat to not just the safety of this capitol building but to our fundamental democracy for which it stands? judge garland: i couldn't agree more that extremist groups and particular white supremacist groups to pose a fundamental threat to our democracy and they have posed that threat throughout our history. as i recounted, that was the reason the justice department was originally established in the first incarnation of the ku klux klan. the best that i can do, as i said, my first priority will be to have a re-think on where we are if i'm confirmed with the
1:59 pm
investigations which, from the outside, pure quite vigorous and nationwide. and to find it what additional resources we need but that is just the focus on what happened in the capital. we also have to have a and on where this could spread where this came from. it does require a lot of resources. i am very pleased to have read that the director of the fbi believes that this kind of extremism is the most dangerous threat to the country and that pi resources. that is where i would put justice department resources and we need very much to make sure that is the case. i do want to be careful that we also always worry about the foreign threat because it is
2:00 pm
always with us and the fact that nothing has happened recently doesn't mean it could not happen from whichever direction, inside, outside, right, left, it doesn't matter, and institute -- an attack on our institutions of democracy and the ability to go forward in our daily lives safely has to be stopped -- is a justice-white obligation. x >> senator blackburn is up. sen. blackburn: i am connected, mr. chairman, thank you so much. judge garland, i want to say thank you for your willingness
2:01 pm
to serve and for your career in public service. i will tell you that as i talk to tennesseans about this, they care a lot about law, order, timeliness at the justice department and after the christmas day bombing, you and i discussed this and the bombing that took place in nashville. they are interested in the principles and conviction of our nation's top law enforcement official. my hope is and i think the expectation is you will assure the american people that you are going to apply the law fairly and equitably because in this country, as we know, no one is above the law. i know you have been asked about the durham investigation and i will tell you this is important to tennesseans in making certain
2:02 pm
that investigation is going to be completed and you are going to work to be certain that it is completed and you are committed to seeing this through to completion. judge garland: thank you, senator and i appreciate the opportunity we had to discuss these matters as well. with respect to the durham investigation, i don't know anything about it other than what has appeared in the media. the investigation has been complete with risk right -- with respect to its status. mr. durham has been able to remain in his position and i know of nothing that would give any doubt that that was the correct decision. sen. blackburn: we had discussed
2:03 pm
the investigation into hunter biden and we want to make certain that we commit to allowing delaware u.s. attorney david white to complete that investigation and ring that evidence forward. judge garland: i don't know anything about that investigation other than what i have read in the media and again, that investigation has been proceeding discreetly, not publicly, as all investigations should. i understand the delaware u.s. attorney was to stay on as u.s. attorney and i have absolutely no reason to doubt that was the correct decision. sen. blackburn: let's talk a little bit about china because we discussed some of that for the record.
2:04 pm
it was stated that china was our greatest threat. do you agree the chinese communist party is an enemy of the american people? judge garland: i don't have the same familiarity with the intelligence information the director of national intelligence has. so in terms of comparing a threat from china and a threat from russia, i'm not competent to make that comparison and i have learned in my professional career not to make judgments which i am not competent. but certainly from what the director said, there is no doubt china is a threat with respect to hacking of our computers, hacking of our infrastructure, theft of our intellectual property, all of these are very
2:05 pm
difficult problems and we have to defend against. sen. blackburn: well, we do, and i know lindsey graham ask you about section 230 and some of the issues that are there. we are all very concerned about the issues that surround china, whether it is the chinese communist party and the way they threaten our democracy and our economic leadership around the globe. we are also concerned about the chinese military links into our american universities through things like the confucius institute. for instance, recently, there was a situation at harvard with a cancer researcher. he was caught trying to smuggle 21 vials of biological material out of the u.s. and get it to china.
2:06 pm
i would hope that you agree that this threat puts american intellectual property and technology at risk and i would hope you would assure the american people that you are going to put the full force of the department of justice forward to investigate and prosecute every one of these spies working on u.s. soil. judge garland: i am not familiar with that circumstance, so i cannot comment on it specifically, but i can assure you the justice department's national security division was created in part for the purpose of ferreting out espionage by foreign agents and that is also the role of the fbi and the two working together. if foreign agents are caught
2:07 pm
stealing american intellectual property, american trade secrets, american materials, that they will be prosecuted, yes, of course. sen. blackburn: thank you. we are about a year into this pandemic and technology has allowed for us to do work like we in the senate are doing with webex. it gives a lot of flexibility, but as we are spending more time online, we hear from people about holding big tech accountable. you discussed section 230 earlier and we are hearing more about antitrust lawsuits. you have the current suit against google and i will hope you are going to allow that lawsuit to continue.
2:08 pm
judge garland: again, i don't want to talk about a particular lawsuit, but i would have to ask for a briefing on it. but much of that lawsuit is public and, again, given what i have read, i don't see any reason -- the decision to institute that investigation would be changed -- but i only know what i have read with respect to the descriptions of the public filings. sen. blackburn: let me ask you one more question and then i'm going to have a series of questions come to you as q f ours -- sq f as qfrs. the biden administration has
2:09 pm
talked about paying to third-party groups like la raza and the urban league. i find it really interesting that they would choose to have that money go to these outside groups instead of victims or to the u.s. treasury. do you plan on reinstating that policy and how would you justify reinstating that policy? judge garland: i don't have any plan one way or the other. i know you raised that policy when we were talking before and i understand your concern about it. obviously, damage recoveries first go to help victims. i don't know very much at all about the policy and it would be something i would have to consider if i am confirmed. i have two hear the arguments on both sides of why the policy
2:10 pm
started and why it was rescinded. sen. blackburn: enke so much. i appreciate your time. chair durbin: senator ossoff, welcome to the committee. your turn to question. sen. hassan: thank you for your time. thank you also for sharing your families immigrant story. it mirrors my own. my great friend parents came fleeing anti-semitism in 1911 in 1913 from eastern europe. i'm sure your ancestors could hardly have imagined you would be sitting before this committee pending confirmation for this position. i want to ask you about equal justice. black americans continue to endure profiling, harassment, brutality, discrimination in policing and prosecution,
2:11 pm
sentencing and incarceration. how can you use the immense power of the also -- of the office of attorney general to make real america's promise of equal justice for all? can you please be specific about the tools you will have at your disposal? judge garland: this is a substantial part of why i wanted to be the attorney general. i'm deeply aware of the moment the country is in. when senator durbin was reading the statement of robert kennedy, it hit me that we are in a similar moment to the moment he was in. so there are a lot of things the department can do and one of those things has to do with the problem of mass incarceration. the over incarceration of american citizens and its disproportionate effect on black
2:12 pm
americans and communities of color and other minorities. there are different ways -- that is disproportion in the sense of both the population but also given the data we have on the fact that crimes are not committed by these communities in any greater number than in others and similar crimes are not charged in the same way. we have to figure out ways to deal with this. one important way i think is to focus on the crimes that really matter, to bring our charging and arresting on violent crime and others that deeply affect our society. and not have such an overemphasis on marijuana possession, for example, which has disproportionately affected communities of color and damaged them far after the original
2:13 pm
arrest because of the inability to get jobs. we have to look at our charging policies again and go back to the policy i helped janet reno draft, eric holder drafted while he was attorney general of not feeling we must charge every offense to the maximum, that we don't have to seek the highest possible offense with the highest possible sentence, that we should give discretion to our prosecutors to make the offense and the charge for the crime and to the damage it does to society. that we should also look closely and be more sympathetic to retrospective reductions in sentences, which the first step act has given us some opportunity, though not enough to reduce sentences to a fair
2:14 pm
amount. legislatively, we should look at equalizing, for example, what is known as the crack-powder ratio which has had an enormously disproportional impact on communities of color but which evidence shows is not related to the dangerousness of the two drugs. and we should do as president biden has suggested, seek the limitation of mandatory minimum so that we, once again, give authority to district judges trial judges to make determinations based on all the sentencing factors judges normally apply and don't take away from them the ability to do justice. all of that will make a big difference in the things you are talking about. sen. hassan: let's discuss accountability for local agencies. the civil rights division has the authority to launch practice
2:15 pm
investigations targeting violations of federal statutes regarding law enforcement. tomorrow will be the first anniversary of the murder of ahmaud arbery and glenn county, georgia, who was shot to death in broad daylight in the street on camera. but local authorities chose to look the other way. were it not for the activism of georgia's naacp, there likely would not have been any prosecution in that case. how can congress equip doj's civil rights division to launch more and more effective practice investigations without asking you to comment on the details of the arbery case and how else can the department of justice use its authority to ensure where local agencies violate constitutional rights or fail to uphold the guarantee of equal protection that there is accountability? judge garland: i appreciate your
2:16 pm
not asking me to talk about a pending case what i will say is that like many, many americans, i was shocked by what i saw on the videos of black americans being killed over this last summer. that, i do think, created a moment in the national life that brought attention from people who had not seen what black americans and other members of communities of color had known for decades. it did bring everything to the fore and created a moment in which we have an opportunity to make dramatic changes and really bring forth equal justice under the law, which is our commitment at the justice department. the civil rights division is the place where we focus these operations. you are exactly right that best
2:17 pm
practice investigations are the core of our ability to bring actions here and easily to all different kinds of remedies. sometimes consent decrees as a potential remedy. we also can criminally prosecute violations of constitutional rights and we can also provide funding for police departments to reform themselves. i do believe officers who follow the law and the constitution want that account ability. they want officers who do not to become accountable because if that doesn't happen, their law enforcement agency is tainted. they lose quite ability in the community. so we have this number of tools, whether we need additional tools
2:18 pm
in this area, i don't know. obviously, the resources are necessary -- i'm going to be like a broken record -- every one of these areas to do our job. sen. barrasso: off will you commit to working with my office and this community -- this committee to determine what resources you may require in order to bring more and more effective pattern of practice investigations were appropriate? judge garland: absolutely. simple ossoff thank you. i yield back. -- sen. hassan: off -- chair durbin: only in the senate would we characterize a five-minute round of questioning as a lightning round. [laughter] that is what we are going to shift to at this moment. those senators who wish to ask a second question will have five minutes to do so and i'm going to kick it off if i can. i want to address an issue that
2:19 pm
doesn't, -- doesn't come up very often and that is the state of america's federal prisons. we talk a lot about justice under law, sentencing enforcement and we know the outcome in many cases is that a person is incarcerated for sometimes a very lengthy time. how long that is and how that person is treated in prison should be our concern as well. it is a reflection on our value as a nation -- our values as a nation, just as many things are. the first thing i would say is i made a serious mistake along with many others, including the president, supporting a bill to any five years ago which established a sentencing for crack cocaine 100 to one compared to powder cocaine. the net result of it was a failure of policy. it did not reduce addiction, it did not raise the price of crack
2:20 pm
cocaine. just the opposite occurred. we ended up arresting thousands of americans and arresting -- and sentencing them to lengthy sentences, primarily african-americans. i introduced a bill several years ago which was signed into law by president obama and then i worked with senator grassley and senator lee, who is here today, as well as senator booker and others to pass the first step act. the idea was to reconcile some of the injustice in our sentencing under that earlier law. president trump, much to our surprise, signed it into law and even spoke positively about it at the state of the union. unfortunately, it has not been implemented. in the provisions there to prepare people for release from prison as well as to reduce sentences have not been effectively enforced. point number one, i hope you will put that on your agenda because i will be back in touch with you to ask.
2:21 pm
second point, the united states has 5% of the population of the world and 20% of the covid infections and deaths. it's a terrible commentary on our failure to deal with this public health crisis. what to make matters even worse, the infection rate in federal prison populations is four times what it is in the surrounding community. more than 230 federal prisoners have died. we need to have a sensible and humane response to compassionate release in this time of pandemic. senator grassley and i have introduced legislation along those lines and i'm going to ask you to look at that carefully as well. the third, the last item i will bring up for your response, was an article written several years ago in the "new yorker" magazine by a surgeon in boston, a prolific writer and a very
2:22 pm
insightful man. he wrote an article about the impact of solitary confinement on the human mind. he went further to talk about how people in a perilous situation can be reduced to an inhuman level just by isolation 23 hours a day, sitting in a cell by yourself. it just has that impact. i looked into it to see what was happening at the federal level. i'm happy to report to you that things are marginally better, but only marginally. i think isolation is cruel and unusual and has to be used in some circumstances for extremely dangerous inmates, but unfortunately, it is used into me circumstances now. many states are way ahead of the federal prison system looking at this issue. i only have a minute left and it's all yours to react. judge garland: these are all easy because i've thought about all of them. in each case, i will be looking
2:23 pm
at each one of these problems stop the first step act, both with respect to -- obviously if i am confirmed -- the first step act with respect to the reentry to education that is required so people don't become recidivists and are able to go into society. the first step act with respect to the coverage of the act for retroactive reduction in sentences, i also, over the years, i have learned more about the crack-powder distinction. and the reports about how there seems to be little if any support for making that. i am now of the view there is no reason, so i'm very interested in reforming that area stop i have read but don't know a lot
2:24 pm
of out the solitary confinement issue. obviously it is required in some circumstances to protect people from other people but it is not any kind of regular measure for incarceration. all three of these areas are ones i was already planning to look at and can assure you i will. chair durbin: thank you for judge. i see senator lee is here and i'm going to recognize him next in the lightning round. sen. lee: consistent with the idea of this being our lightning round, i'm going to start some questions that can be yes or no. they -- if they require more than that, you can say yes with this or that caveat, but i would prefer a yes or no. do you believe individuals who advocate for the rights of unborn human beings are rendered unfit for public office by virtue of having engaged in such advocacy? judge garland: no. sen. lee: you believe efforts to
2:25 pm
purge voter rolls of people who have died or left the state in question or to require voter identification are racially discriminatory and an assault on voting rights? judge garland: this is when i cannot answer yes or no because you are asking about motivations of individuals, some of whom may have discriminatory purpose and some of whom have no disco in a tory purpose. sen. lee: i think that answers my question because what i'm asking is without knowing more than that, is there anything about those comments or support for those additions that in and of themselves would make that person a racist? or an assault on voting rights? judge garland: there is nothing about the comment itself, but there is such a thing as circumstantial evidence, obviously. if there is an enormously's
2:26 pm
proportionate impact of things people continue to propose, it's not unreasonable to draw conclusions of that, but the mere fact of the statement, no. sen. lee: do you believe republicans of the united states as a whole are determined to "leave our communities to the mercy of people and institutions driven by hate, bigotry, and fear of any threat to the status quote?" judge garland: i don't make generalizations about people from political parties. sen. lee: the reason i raise these as these are questions drawn from comments made by a person nominated to be associate attorney general who has advocated for each of these sessions. judge garland: i know her quite well -- i did not know her before but since the nomination, i've gotten to know her and i can tell you i regard her as a
2:27 pm
person of great integrity and a person dedicated to the mission of the department, particularly equal justice under the law. sen. lee: i'm not asking you to weigh in on her as a person, i'm just talking but the comments. let's move on. would an individual's past statements, statements in the past as an adult declaring one racial group is superior to another, with statements like that be relevant to an evaluation of whether such a person should be put in charge of running the department of justice's civil rights division? judge garland: i have read in the last few days these allegations about kristin clark, who i have also gotten to know, who i also trust, who is a person of integrity, whose views about civil rights i have discussed with her and they are in line with my own. i have every reason to want her. she is an experienced former prosecutor of hate crimes and we
2:28 pm
need some of you to be running -- sen. lee: i'm asking about the statement, not her as a person. what, in the abstract, someone who has made that comment, with that comment be relevant to whether that person, having made that statement, should be put in charge of running the civil rights division? judge garland: all i can tell you is i have had many questions -- i have talked to her about her views on that civil rights -- sen. lee: what about anti-semitic -- judge garland: no one needs to question those i -- i want you to know i'm a pretty good judge of what an anti-semite is and i do not believe she is an anti-semite. i do not believe she is discriminatory in any sense. sen. lee: you are a man of integrity and one who honors and respects the laws.
2:29 pm
what assurances can you give us -- what assures sins -- what assurances can you give americans who are pro-life, religious, people members of certain mayor eddie groups -- certain minority groups, more than half the country, telling them the u.s. to part one of justice, if confirmed will protect them -- u.s. department of justice, if confirmed will protect them. leaders have condoned radical positions like those i have described. judge garland: i will say it again. i don't believe either of them condone those positions and i have complete faith in them but we are a leadership team along with lisa monaco that will run the department and the final decision is mine.
2:30 pm
the buck stops with i will assure the people you're talking about, i am a strong believer in religious liberty, and there will not be any discrimination under my watch. sen. lee: thank you. >> i might remind the committee the statements being alleged can all be asked of the actual witness. the committee is going to have a hearing on these individuals, and it would only be fair to take the question to them, as opposed to asking for a reaction from someone who did not make that statement. senator klobuchar? sen. klobuchar: thank you. i appreciate your full throated defense not only of religious liberty, but also of
2:31 pm
your team and the people you want to work with going forward. while the chairman is correct, we can ask questions of those nominees, i think it is important to hear from you, of your beliefs about how they can do the job. i appreciate that. i know both of them and have a lot of respect for them. judge garland: thank you, senator. they have skills and experiences i do not have. experience in the intelligence world i do not have. no human being can have all the skills necessary to run the justice department. i need this team if i am going to be successful, if you confirming. sen. klobuchar: thank you very much. one thing we didn't touch on when i asked my first round of questions is the violence against women act. i will be working with senator feinstein and others on this committee to finally get that done. i don't know if you follow this, but we've had a delay in getting that reauthorized.
2:32 pm
it's been a bipartisan bill in the past. i have several provisions in the bill, including one on -- one to fix a loophole that exists. it is not as positive as it sounds. about getting guns after people have committed serious crimes. the second piece is a bill called the abbey huddled act. which is a rape victim in minnesota who worked with us and senator cornyn, as my cosponsor of the bill, to be able to do a better job with law enforcement to investigate sexual assault crimes. just in general, do you want to talk about your views on the justice department's role in training and the like across the country and the violence against women act? judge garland: the violence against women act was pressed by senator joe biden many years ago. he has a deep commitment to his
2:33 pm
continued reauthorization as to why. i was in the justice department when we set of the first office violence against women for the purpose of coordinating departmental programs in this area. i know this requires resources, both of the examples you give, again, i don't know if specifics come about from the description i can hardly imagine a serious disagreement, we have to provide the resources necessary to help rape victims, obviously. i don't see any reason why somebody who commits a violent crime against a person, but isn't married or has an intimate relationship, should be treated in a -- treated any differently than one who does.
2:34 pm
i am for re-upping the statute authorization. sen. klobuchar: thank you. another thing i've been very focused on, partly because my dad struggled with alcoholism most of his life, and got through that thanks to treatment and recovery, is to give that same kind of opportunity to people in the criminal justice system. drug courts are a big presence in minnesota. as is treatment. as well as many other treatment centers. we worked really hard here and some of the efforts on diversion with federal courts with a drug court, and of course, there's much use of them, and state courts. could you talk about your views on that? judge garland: i think the courts and diversion are an excellent idea for people who have addiction and need to be treated.
2:35 pm
i think now that the opioid crisis has struck large parts of america, many americans now understand that sometimes, it's just not a question of willpower, to turn this stuff down. these kinds of drugs take control of your life. you just can't do anything about it. treating people in those circumstances, and the criminal justice system -- in the criminal justice system, is a terrible misallocation of resources. getting people into addiction programs is a godsend and i am in favor of them. sen. klobuchar: thank you for also mentioning opioids, which has been such as gorge -- such a scourge. we have lost many people that people may not know their names and kids to opioids.
2:36 pm
many have been leading the way for a while, before people were even identifying this as an issue. a commitment to the treatment side of what you have already made just now, but also to the prosecution of synthetic production and distribution, synthetic opioids continues to this day. could you comment briefly, if you could? judge garland: i think that is right. the people putting the poison in the communities are the people we should be focused on. i think that is what the dea is well known for doing. i would love to put as much effort into this as we possibly can. sen. klobuchar: i see the chairman is looking at me in a very polite midwestern way to tell me my time is expired. so, thank you. judge garland: i'm familiar with the polite midwestern way. >> you have five minutes.
2:37 pm
>> thank you, mr. chairman. judge, i'm really curious about your thinking on this. and i don't want my questions to be interpreted as suggestive, or inconsistent with your thinking. but you and i are about the same age, i think. judge garland: i think so, that's right, senator. >> when you refer to systemic racism, what is that? judge garland: i think it is clear to me that there is discrimination and widespread different treatment of committed is of color and other ethnic
2:38 pm
minorities in this country. they have a disproportionately lower employment, disproportionately lower homeownership rates, disproportionately lower ability took emily wealth -- to accumulate wealth. >> so you are basically saying there's a disparate impact. judge garland: there's a disparate impact which in some cases is the consequence of historical patterns, sometimes the consequence of unconscious bias, certain kinds of consciousness. >> when you were at the department of justice, was the department of justice then systemically racist? judge garland: we look for a pattern or practice in each institution. we talk about a specific institution, you look for its pattern and practices. >> but how do you know what you know? in other words, you say in
2:39 pm
institution is systemically racist. judge garland: i didn't say any particular institution. >> i know. i'm not saying you did. i'm saying, if you say an institution is systemically racist, how do you know what you know? do you measure it by disparate impact? other factors? do you just look at the numbers and say the system must be racist? judge garland: now you've asked me a slightly different question, which i think i have a slightly different answer for. the authority of the justice department has to investigate institutions, to look for patterns or practices of unconstitutional conduct. if we find a pattern or practice of oxygen will conduct, i would describe it as as additional racism within that institution -- as institutional racism within that institution. >> so it's just a product of the numbers. judge garland: if there's a pattern, and a practice, this is
2:40 pm
not just a question of individual numbers. what we are looking for here are patterns. why is it that, a series of similar events occurring like that? looking into any individual's heart is not something we can do. >> who bears the burden of proving that, the institution? judge garland: as all matters of law, the burden is on the government investigator to prove first by investigation and a court -- and then by a court. >> is there any way to measure institutional racism other than the disparate impacts? judge garland: yes, you can look at a large number of individual cases in which discriminatory conduct is actually found. intentional discriminatory conduct. then it's not just a question of numbers. but if an institution has a very large number of incidents among us additional conduct, the entity is responsible in the
2:41 pm
same way a corporation is responsible for the behavior of its individuals, the same way -- >> what is the difference, though, between people who are racist and institutions that are racist? judge garland: now we have a cosmic question. but i think institutions are made above -- >> but this is important. judge garland: i know. i'm totally with you. i totally agree with that. corporations are nothing other than the collection of their individuals. and the same is true for a public entity, which in a certain way, is a corporation. >> have got to get one more in. i've got 14 seconds. -- i've got 24 seconds. i'm going to ask you about this concept of implicit bias -- does that mean i am a racist no matter what i do or what i think? i am a racist but i don't know i am a racist? judge garland: the label racist is not one that i would apply
2:42 pm
like that. implicit bias just means every human being has biases. that is part of what it means to be human being. the part of the examining of biases is to bring our conscious mind to our unconscious mind, and to know when we are behaving in a stereotyped way. everybody has stereotypes. it's not possible to go through life without working through stereotypes. implicit biases are the ones we don't recognize our behavior. that doesn't make you a racist. >> who judges that? doesn't the person judging me have his own implicit bias? how do i know his implicit bias is worse than mine? judge garland: i agree, but i'm not judging you, senator. >> i'm not asking you. but somebody, if you say you have implicit bias, that is a pejorative statement. i'm not saying you are being mean. you're not a mean guy. you're a nice guy. if you say somebody has implicit bias, somebody's got to make
2:43 pm
that subjective judgment, and the person making that subjective judgment has implicit bias. if it's part of being a human, then how do you know who wins? judge garland: if we say that all people have implicit bias, then it's not -- you shouldn't take it as pejorative. this is just an element of the human condition. so you shouldn't take that as pejorative. implicit bias is just a descriptor of the way people's minds work -- everyone's mind works. >> how about if you say that america has racism in it, just like everybody else, just like everywhere else, does that make america systemically racist? >> i don't want to waste your time, because i think this is what i said before -- what i mean by systemic racism is the patterns of discrimination and disparate treatment across the country. it doesn't mean that any
2:44 pm
particular individual is a racist. >> judge, i'm in big trouble. i've gone way over. >> i'm developing a bias. [laughter] thank you for the exchange. judge garland: a pleasure talking with you, senator. >> had like to let the committee know that -- i would like to let the committee know that one senator will be next, then we will take a break, then return for five rounds. senator, are you tuned in? >> yes, i am. i would like to ask what i think is a very straight forward question. over the past couple of years, the justice department has initiated a number of efforts related to missing and murdered indigenous people and women, including projects in alaska and oklahoma to implement trouble committee response plans -- tribal community response plans. to what extent do you plan to
2:45 pm
continue to focus on these efforts that could help address the missing and murdered indigenous peoples crisis? judge garland: i certainly do intend to continue those. again, in the office of tribal justice -- again, the office of tribal justice was established, looking at the records, it is still there. this is an important aspect. we have a response ability to indigenous peoples, both statutory and otherwise. to protect. many of our problems in this country are regional. we must focus our resources on problems that are regional. not every problem as a national one. our regional problems have to be addressed directly with respect to the problems caused in those regions.
2:46 pm
>> i think this is a possibly underreported -- i think this is possibly underreported. on missing and indigenous women. i think we have to put a lot more emphasis on what is going on there. the past four years have seen a reawakening of right windex room is -- right wing extremism. last year, it was testified the greatest domestic terror threat to the united states is white extra missed groups -- is white extremist groups. the right at the capital was led by white extremist. the new york times reported that president trump, with the help of his attorney general, barr, diverted law-enforcement resources from combating the serious threat by right wing extremist groups.
2:47 pm
would you used apartment resources to address white supremacist and other right wing extremists? judge garland: yes, senator. if anything was necessary to refocus our attention on what's a premises -- on white supremacists, on the capitol, i expect to put all departmental resources necessary to combat this problem. into this area. to make sure our agents and prosecutors have the numbers and the resources to accomplish that mission. >> thank you. my next question has to do with the immigration courts. we discussed immigration and the courts a few weeks ago. it is worth highlighting under the drum administration, the backlog of cases pending in
2:48 pm
immigration courts has exploded to almost 1.3 million cases. in some jurisdictions, the wait to hear a case is four years. there are cases that have been pending for more than four years. not only affects families trying to reunite -- this not only affects families in the -- this not only affects families trying to reunite. 1.3 million backlog. how would you increase the efficiency of the immigration courts? judge garland: this is an extraordinarily serious problem. looking from my pampered perch as an appellate judge, who has a limited number of cases, and weeks and weeks to study those, then weeks and weeks to write those, i can't imagine how
2:49 pm
judges can operate under the conditions that you described. i have heard even from other judges that they exist. what am confirmed, -- when i am confirmed, i will certainly look at what can be done. i will look at a number of resources and judges. if it means to some ability to give to the judges, to prioritize your cases -- their cases, even in their own appellate courts, we have developed ways in which we handle some cases more swiftly and some cases take longer. some cases are barely resolved. some require full opinions. some weigh the evaluation of requirements. i can't give you an idea with respect to court administration, which i know something about,
2:50 pm
but not a normal amount about, to have a chance to get into the department of confirmed, and if i understand, with this huge backlog, the number of cases. >> i think the really important thing is the acknowledgment that this kind of serious backlog -- the acknowledgment of this kind of serious backlog. thank you. >> we will break now and come back five minutes after 3:00.
2:51 pm
[indistinct conversations]
2:52 pm
announcer: merrick garland has served in the d.c. circuit court of appeals since 1997. he also in 1995 was the lead prosecutor in the oklahoma city bombing case.
2:53 pm
the senate judiciary committee started to hearing this morning at 9:30 eastern, expecting to go all day. this break here, until about 3:05 eastern. we will be back with live coverage when they resume, here on c-span. we have some comments from senator, richard blumenthal, just outside the hearing room a few moments ago. >> is your initial reaction to this -- what is your initial reaction to this confirmation? >> judge garland is about as sure of that is you can have. in the congress these days, that he will be confirmed. he has navigated these questions with extraordinary fairness to mems of the committee. given the potential hostility, he has done these questions with grace and committee. and i think he has shown he is going to be the man to meet this moment.
2:54 pm
when the department of justice clearly needs someone with the integrity, court ability, and backbone -- credibility, and backbone. >> the moment, we know attorney general barr was accused of politicizing the doj. clearly there are a number of ongoing investigations. do you think judge garland would potentially investigate hunter biden, as well as investigating trump? do you have any comments on that? >> is going to follow the facts -- he is going to follow the facts wherever they lead. that is his dna. i have known merrick garland for several decades. he is about fair and effective law enforcement, following the facts and the law, and that is what he is going to do, whether it's durham he's investigating or someone else
2:55 pm
come he's going to let it all hang out and allow -- -- he's investigating or someone else come he's going to let it all hang out and allow the investigation to proceed. >> do you think you are going to be able to get bipartisan support on her nominee? >> i think they're still a good chance of bipartisan support for neera tanden. i think of you would on the merits, she has great qualifications for the job. i think the president is absolutely right to stand by her. >> thank you so much, sir. i appreciate it. >> it gets back to me to your conviction in this issue, your determination to go down, at a time when our nation needs this,
2:56 pm
to go down as one of the great leaders, when it comes to dealing with the daily unconscionable injustices faced by some americans and not others at the hands of law enforcement. and i think one thing you said that motivated me to believe you when you talk about your respirations, i'm wondering if you could conclude by answering the question about your motivation, some of your own family history, and confronting hate and his termination -- in confronting hate and discrimination in american history. judge garland: yes, senator. i come from a family where my grandparents fled anti-semitism and persecution. the country took us in and
2:57 pm
protected us. and i feel an obligation to the country to pay back. this is the highest best use of my set of skills to payback. and so, i want very much to be the kind of attorney general you are saying i could become. i will do my best to try to be that attorney general. >> i believe your heart, and i am grateful that -- i am grateful of that. >> in the bush administration, the last bush administration, they put a moratorium on debt holdings, and federal cases -- in federal cases. that moratorium has lasted, or
2:58 pm
did last, from 2003, during the bush administration, then suddenly, in the last six months, the justice department, under the last president, rushed to execute to people -- this is what is stunning, and six months -- in six months, more than in the past 60 years. that is nothing short of being a killing spree. is proportionate -- disproportionate deaths among the poor.
2:59 pm
i'm joining senator durbin and senator booker and re-introducing the federal death policy, which would end the federal death penalty. so i ask you this, would you go back to what president bush did, and reinstate the federal moratorium, which was listed just in the last few months, have it reinstated while we work on the legislation? >> i will let you know, president biden is an opponent of the death penalty. i have to say that over those almost 20 years in which the federal death penalty had been paused, i have had great claws about the death penalty.
3:00 pm
-- i am concerned about the large number of exonerations that have occurred through and y in death penalty convictions, but also in other convictions. i think a terrible thing occurs when somebody is convicted of a crime they did not commit, and the most terrible thing happens if someone is executed for a crime they did not commit. it's also the case that during this pause, we've seen fewer and fewer death penalty applications anywhere in the country, not only in the federal government, but among the states, and as a consequence i'm concerned about the increasing randomness or arbitrariness of its application when you have so few number of cases. and finally, and very
3:01 pm
importantly is the other matter that you raised which is district impact. the data is clear that it has an enormously disparate impact on black americans and members of communities of color, and exonerations also, something like half the exonerations -- all of this has given me pause, and i expect that the president will be given direction in this area. i expect we will return to the previous policy. >> in the oklahoma city bombing case, you were part of the team that helped bring to justice timothy mcveigh. he was sentenced to death. the death penalty has been carried it out.
3:02 pm
do you regret the fact that timothy mcveigh received the death penalty and has been executed? judge garland: i supported, as i said in my original hearing when i became a judge originally, i supported the death penalty at that time for mr. mcveigh in that individual case. i don't have any regret. but i have developed concerns about the death penalty in the twentysomething years since then. and the sources of my concern are issues of exonerations, people who have been convicted of arbitrariness and randomness because of how seldom it's applied and because of its disparate impact on black americans and members of other communities of color. those are the things that give me pause and have avenue -- as i thought about over the last 20 years. >> if there was another case --
3:03 pm
there was another case of bombing a courthouse which killed 19 children. would you have given that approval? judge garland: i think it depends on the development of the policy. if the president asked or we develop a policy about moratorium, then it would apply across the board. there's no point in having policy if you're making judicial discretionary decisions. >> you said in your opening statement and to several open questions, that there would be no partisan influence. so is this a case in which there would be influence in the white house on an individual basis? judge garland: i understand the question. i'm sorry, maybe i didn't understand before. i'm sorry, what i'm trying to say is there was a policy decision announced by the president, he certainly has the
3:04 pm
authority to direct, and there's nothing inappropriate about it, is within his authority, to require an across-the-board moratorium. this is not what i was talking about, was not a decision by the president in any particular case or allowing any particular case go forward, but for moratorium that would apply as a policy across the board. the supreme court is held that the death penalty is constitutional but it is not required. that is what is within the discretion of the president. >> before we move on from the oklahoma city case, let me just commend you again for your work on it. >> judge merrick garland returning to the earring room. the committee about to resume their questioning, questioning lasting throughout the day. they should gavel back in here momentarily. the first two days of hearings, and we will hear from witnesses tomorrow.
3:05 pm
3:06 pm
>> the committee resumes and i will turn to the ranking member, senator grassley, for five minutes. sen. grassley: i will have my staff give you the binder of letters going back to the last two years of the trump administration that haven't been answered by the department, and also just a few letters of the reason, so i hope you'll do what you can to get those answers so six months from now i don't blame you with the fact that the
3:07 pm
trump people didn't answer. and then i'm going to say something about your answering questions for us, and this goes back, now that i'm ranking member, i want to give you a quote that i sent to senator sessions when he was sitting where you are. and if senator feinstein contacts you, do not use this excuse, as so many people use, that you are not a chairman of a committee, you do not have to answer the questions. i want her questions answered just like you would answer mine. so hope that whether i'm ranking member or chairman of the committee, you will help me get answers to the questions and i hope senator durbin will do the same thing. judge garland: i will not use any excuse to not answer your question, senator. sen. grassley: thank you. and the other thing is, i don't
3:08 pm
want to dwell on durham, but several people have asked and you've given the same answer. and i understand why you get that answer, but would it be impossible for you to have some sort of a briefing on durham between now and the time you get -- get written answers back, so you could give us a more definitive answer? judge garland: i don't think it's appropriate. i assume among other things that the durham investigation -- sen. grassley: i will except your answer. you don't need to go any further. now let's go to the subject of domestic terrorism. obviously in a democracy, we need to be able to disagree with each other without violence. clinical extremism, the willingness to use violence to advocate one's political views on either side is a threat to our democracy. the capital attack shows that very directly -- the capitol
3:09 pm
attack shows that very directly. i think you've answered this question, so just a very short answer. i think you've assured all of us that the justice department has all the necessary resources to investigate and prosecute all cases connected to the attack on the united states capitol. judge garland: i can't yet say we've have -- we have all the resources. what i've said is i would look into the question, i just don't know. we certainly have authorities to look into it. whether we have the money and the personnel i just don't know yet. sen. grassley: likewise, in the previous year there have been numerous attacks, not only on other institutions of the government like the white house, the federal courthouse in portland, but on hundreds if not thousands of police officers who were injured as well as on fellow citizens and their businesses, particularly small businesses. the justice department opened over 300 domestic terrorism
3:10 pm
cases due to that violence and started an antigovernment extremism task force, so i hope you could commit absolutely as you did for the capitol writers that you will see those investigations of the 2020 riots and continuing and people riots in the pacific -- continuing antifa riots in the northwest through to the end. judge garland: i think director ray said it exactly right, which is we investigate violence, we don't care about -- if there are investigations going on like those, then of course, they are going to continue. sen. grassley: taken off a little of what you refer to what the fbi said, former attorney general barr noted that the fbi, while it had robust programs for white supremacists him and
3:11 pm
militia extremism, like the similar infrastructure for anarchist extremist case. former acting department of homeland security secretary wolf stated that this may have contributed to law enforcement being blindsided by the civil unrest that began in 2020, so i hope that i can get you to say that you would be willing to review your anarchist extremism program for weaknesses and fixing those weaknesses based upon what barr said and the fbi said, that they had better programs to go after white supremacy than they did other anarchist extremism. judge garland: i think we need to go after violence whenever -- whatever direction, left, right, up, down, it doesn't make any difference, we have to go after that. i think what director ray had
3:12 pm
said to him what he was most concerned about was the rise of white supremacist extremism as an element of domestic terrorism. but it doesn't matter what direction it comes from, doesn't matter what the theology is, we have to investigate it. sen. grassley: my time is up. i'm going to have a lot of questions for answers. -- in writing. judge garland: fair enough. >> i want to try to give an indication of the sequence. dip lumen will be next and on the republican side, think it will be john gordon. they can arm wrestle until after they make that decision and then senator carton, i believe you were the next -- this has become a little difficult to predict in the sequence but i want to make sure you see it coming.
3:13 pm
senator blumenthal. sen. blumenthal: thank you, mr. chairman. i want to pursue a couple of the questions i was asking when we ran out of time, just to say that on the issue of climate change, president biden as a candidate committed to holding accountable the oil and gas industry for any lines or fraud they committed in denying the effects of climate change, and i hope you will take that into consideration in determining what the department of justice will do in those kinds of cases, pursuing any kind of pollution or climate change or lies in connection with the oil and gas industry. in just to kind of ask a professional question, do you have any doubt that human beings are a cause of climate change? judge garland: no.
3:14 pm
no doubt at all. sen. blumenthal: it wasn't a trick question. i ask it because the last major nominee before this committee back in september was a supreme court nomination, seem to have some trouble with that question, but i'm glad you don't. let me move to the issue of racial discrimination, which has been pursued, and i welcome your very sincere and passionate commitment to ending racism and racial injustice. we are in the midst of a racial justice movement right now. one of the areas that most concerns me is holding accountable public officials when they violate individual rights and liberties, as you know, section 242 makes it a federal crime to willfully deprive a person of their
3:15 pm
constitutionally -- constitutional right of acting under color of law but prosecutors have to show that that public official had a specific intent to deprive constitutional rights, which as you also know is a pretty high bar. i believe, and i have advocated that we, in effect, lowered the state of mind requirement of section 242 from willfully to knowingly or with reckless disregard, because this requirement makes section 242 prosecutions rare or impossible, and so i hope you agree that we need to adopt measures that will enable criminal accountability where all of the elements of the crime are committed and the mens
3:16 pm
rea intent requirement can fit the crime. judge garland: what i can agree is that i will consult with the career lawyers in the civil rights division who are the ones that would be bringing these cases. i honestly just don't know. i know everyone says they are very difficult to make. on the other hand, in the clinton administration, we successfully made quite a number of those cases, so i'd like them to know from talking to them what kinds of changes might be necessary in the statute and what the consequences of changing the mens rea requirement would be. sen. blumenthal: thank you. i would also like to ask about section 230. i propose various measures, one actually adopted and signed by the president that imposed accountability on the big tech
3:17 pm
platforms for certain kinds of really horrific material, human trafficking, and senator graham and i had led an effort to hold accountable the tech companies for spreading child sexual abuse material. i think reform of section 230 is long overdue. i led these kinds of targeted and bipartisan efforts to revise section 230 two hold big tech accountable, and i hope that you will consider joining with the congress in those kinds of targeted, deliberate efforts to reform section 230, which no longer fits the world that currently it applies to. judge garland: i don't know that much about 230, except the case
3:18 pm
i mentioned that i worked on myself, which was a pretty direct application of the condition. i know that a number of members, and you spoke to me about this in our meetings, and i know people have different views about how it should be altered. i really would have to study that, but i'm very eager to study that. there is no doubt the internet has changed from when to 30 was originally adopted. so i would be eager and interested in studying it and speaking with the members about it. sen. blumenthal: thank you very much. sen. cornyn: are you familiar with title 42, which is a public health measure which restricts traffic across the international order is a public health measure to mitigate the spread of covid-19? are you familiar with that? judge garland: i don't know the statute specifically. i know that there must be provisions that do that, but i don't know the statute, no. sen. cornyn: one of the things i
3:19 pm
hear from customs and border patrol is they are fearful that when the current restrictions on cross-border traffic or lifted, there will be no plan in its place and certainly no transition to get back to normal cross-border trade traffic, and this is a huge issue that i've raised with the director and others as well. i just want to make sure that is on your radar screen. i also want to take up about the 1.3 million asylum cases that are backlogged. there is no way the united states government is ever going to clear that backlogged, but i want to suggest to you that that is part of a conscious strategy by the cartels who make a lot of money moving people across the border into the united states, along with drugs, whether it's human trafficking, whether it's
3:20 pm
drugs, whether it's just migrants who are trying to flee poor economic circumstances and dangerous conditions in their home country. but if the biden administration is not going to enforce current laws with regard to immigration, and there are many people suggesting, including the nominee for health and human services that we ought to get free health care to people who are not legally in the country, all of this is going to be a huge incentive for more and more people to immigrate illegally into the united states, and obviously the department of justice hasn't very important role to play there. but i want to suggest this is not an accident, this is not a coincidence. this is part of a conscious strategy by the cartels who are enriched by each and every person, each and every load of drugs that comes across the border. and i hope that you will commit to working with me and all the other members of congress to try to address this humanitarian and
3:21 pm
public health crisis in addition to the other aspects of immigration. will you agree to do that? judge garland: certainly i will commit to working with member's of congress to address the public health crisis. i wasn't aware that the cartels were doing this, but it seems like something the justice department needs to focus on. sen. cornyn: is referred to as transnational criminal organizations, cartels, basically people who are engaged in criminal enterprises for money. they care nothing about the people, they leave some to die in route to the united states. all they care about is money. so i appreciate your willingness to work with me and others about that. china and russia to a lesser extent have perfected cyber espionage on the united states for many reasons, but impart
3:22 pm
part to steal our intellectual property. the billions of dollars that congress appropriates for development of the next generation stealth fighter to nuclear modernization, you name it. if the russians and the chinese can get it without making those investments than a years long delay necessary to roll them out , they have a tremendous advantage in terms of competing with us economically and also militarily. 80% of all economic espionage cases brought by the department of justice involved communist china, and there's some nexus to china in about 60% of all trade have to cases. i've told people that director ray, who is a pretty stoic individual, gets positively animated when he begins to talk about the role of -- that china
3:23 pm
is playing in its rivalry with the united states, both from an economic standpoint, and if you look at the south china sea and some of its aggressive and boisterous actions there with the potential for military conflict in some future, this is our number one challenge, i believe, today as we speak here. do you share my concerns about china's role as a rival in what they are doing in terms of stealing intellectual property, what that means to us economically and from a national and security perspective? judge garland: i don't have any inside information with respect to what the intelligence agencies no, but i have read quite a lot about this and it seems quite clear to me that the chinese are involved in the hacking and stealing of our intellectual property. we are in an age where individual espionage prosecutions don't quite cut it, given the internet and how some
3:24 pm
much can be stolen in just a single act. so this has to be and all of government response to this problem. there has to be a forward look as to what's happening to us. there has to be a defensive look. i know that is the purpose of cyber command. that is certainly something the dni's very concerned about and of course the fbi with respect to enforcement. but this is a dangerous problem, for all the reasons you've said, and it requires the whole of government response. >> based on who is present and apparently interested, senator booker, senator cotton, senator ossoff -- those are the ones i see. sen. booker: thank you very much, mr. chairman. i'd love to just jump in real quick if i may, we've talked
3:25 pm
about your incredible work with the oklahoma city bombing, but i'm also aware that you have a long record of working on domestic terrorism in pretty significant ways. in the mid-1990's in response to a wave of bombing and arson attacks against black churches in the south, the clinton administration formed a national task force for you and your leadership along with others where you helped meet this justice department priority, resulting in several hundred investigations and arrests. i just really appreciate the totality of your record on fighting to mastic terrorism. quickly i just wonder in terms of proportionality, since that time until now, we've seen this rise of terrorist attacks in our country. since 9/11, the majority of domestic terrorist attacks happen right wing extremist groups and the majority of those have been white supremacist groups.
3:26 pm
again, you're not in the position but just the proportionality of the resources we are directing toward trying to stop the scourge of domestic terrorism, is this something you will look at in terms of the resources of the agency? judge garland: the first thing i should do in my briefings on the capital bombing our briefings with director ray asked where he sees the biggest threat and whether the resources of the bureau and the department are allocated toward the biggest bread and the most dangerous and direct threat. we do have to be careful across the board. we can never let somebody sneak around because we are not focusing but we also have to allocate our resources toward the biggest threat. sen. booker: in an earlier conversation we were talking about systemic racism, i've
3:27 pm
watched tons of friends and elite colleges not worried at all about being arrested for marijuana, while the inner-city has a much different set of laws applying to them. but i want to get to the good news, i think in the united states of america, red states, blue states -- the federal government is out of step with that, as of now. i hope to work in a bipartisan way to see if we can advance the federal government may be to delist the legislation, think of some restorative justice elements. new jersey just today signed its first major effort at legalization and restorative justice. one thing that was done by the obama administration was putting forward the call memorandum, as i'm sure you're aware.
3:28 pm
attorney general jeff sessions rescinded the memorandum which gave guidance to u.s. attorneys that the federal marijuana prohibition should not be enforced in states that have legalized marijuana in some form. do you think the guidance in the call memorandum should be reinstated, that the justice department respects states decisions? judge garland: i do remember it and i have read it. this is the question of prioritization about resources and prosecutorial discretion. it does not seem to me a useful use of limited resources that we have to be pursuing prosecutions in states that have legalized and are regulating the use of marijuana either medically or otherwise. i don't think that is a useful use. i do think we need to be sure there are no in runs around the
3:29 pm
state runs that camel enterprises are doing. so that kind of enforcement should be continued, but i don't think it's a good use of our resources where states have already authorized and it only confuses people, obviously, within the state. sen. booker: so violence against lack trans americans is unconscionable, with many murders every single year. the bullying and violence against a lot of trends children, about a third of lgbtq american children report missing school because of fear, fear of violence and intimidation. is this something that you will make a priority to protect all children from violence and discrimination, particularly in the case of transgender children, and would you also commit to taking seriously the targeting of transgender adults
3:30 pm
specifically with the trends we are seeing with alarming numbers of murders of black transgender -- judge garland: these are hate crimes, and it's the job of the justice department to stop this, to find them, to enforce and penalize. that's what the special litigation unit in the civil rights division is intended to do. there is the shepherd bird act which was particularly aimed at this. i'm not sure whether it needs broadening, but it's clear to me that this kind of hateful activity has to stop, and yes, we need to put resources into it. sen. booker: thank you for your time and i'm going to stop here because i do not want to make tom cotton mad at me. >> the remaining senators for five minutes each. senator cotton. sen. cotton: judge, i want to
3:31 pm
return to where we stopped this morning with the question of racial equality. last year the department of justice sued yale university for discriminating on the basis of race. based on yale's known data, if you look at one of its top academic categories, the admission rates by racial category were as follows. asian americans, 6%, white applicants a percent, hispanics, 20 1%, african-americans 49%. do you think that evidence suggests discrimination based on race in the yale discrimination process? judge garland: my best recollection is that between my nomination and now the department has made a decision about that. >> the case was voluntarily dismissed on february 3. judge garland: my recollection is correct. these kind of cases obviously depend on application of the supreme court's opinion and they
3:32 pm
require a lot of factual development and examination of the facts. these cases do not only depend on disparate statistics, but on all the factors the supreme court instructed the lower courts and the government as to what kinds of affirmative action in higher education are permissible and which ones aren't. so i honestly can't draw any conclusions without knowing the facts of the case. >> the supreme court case law about racial discrimination said that race can only be used as a plus factor. it cannot be the predominant factor. when asian american kids are less times -- eight times less likely to be admitted in the same band of academic achievement, you don't think that at least suggest a case of racial discrimination? judge garland: i don't remember
3:33 pm
exactly the supreme court opinion but they seem to much exactly -- what you just said. you can have a rigid clodagh, you can have -- rigid quota. this was a companion case, the university of michigan law school with respect to -- the court said it was a holistic approach that was permissible with respect to grants, it was a fixed number and not permissible. those are things you find out by discovery and examination of what the actual practices of the university were. >> did anyone in the biden administration consult with you about dropping the lawsuit? judge garland: it's not appropriate for me to be examining anything like that
3:34 pm
unless you confirm me. >> will the department of justice under your leadership pursue cases of obvious racial discrimination in higher education? judge garland: of course, yes, obviously. >> i think this presents an obvious case of discrimination against asian americans. i expect some asian americans and their kids are disappointed in those answers, judge. judge garland: i'm only giving an answer of what the supreme court said the law was. i can't do any better than that. i answer was, you have to look at the facts. >> i will turn to another very important topic, which is the rising rates of violent crime in the country. according to statistic, only 45% of violent crimes in the country result in arrest. would it be better or worse if 100% of violent crimes resulted in arrest? judge garland: it would be better if congress gave the department enough money to rest every single person?
3:35 pm
i assume you're talking about both state crimes and federal crimes. a large percentage are talking about local crimes. >> do you think the department today solves too many crimes or prosecutes too many criminals? judge garland: the justice department? i think it may bring charges in areas which are not a good allocation of its resources, but i don't think it has sufficient resources and probably never will to pursue every crime. that seems impossible. >> we spoke about this last week in our telephone call about the importance of state and local law enforcement to work together in a collaborative fashion with the department of justice. i was glad to know that you agree with me those partnerships are vital to reduce crime and keep archimedes safe. i just want to give you the chance to put that on the record
3:36 pm
today. judge garland: yes, absolutely. my experience in oklahoma city was close cooperation with the local da's offers, with the governor and the state police. i think these joint task forces an exceedingly good idea. i'm completely on board with this, yes, sir. sen. barrasso: -- sen. offof: i want to -- sen. ossof. sunday would've been always been john lewis's 81st birthday. he committed his life and nearly lost his life in the struggle for voting rights. but as we speak, george's state legislature is considering legislation that would make it harder for georgians to vote. for example, to end sunday early voting, which is used heavily a
3:37 pm
black and working-class voters to cut the window during which voters can participate via absentee ballot, which would make it harder for seniors to vote. i'm not asking you to comment on the specific bills, but what i'm hoping you can provide is an assurance that the department of justice will diligently and fully enforce constitutional and statutory guarantees of the rights to vote. judge garland: i give you my complete assurance, yes, senator. >> i also like to discuss with you resources available for public defenders office is around the country. a visit to a new civil court in any major american city will reveal that a steady stream of low income defendants, lacking the resources to hire their own attorneys, are often represented by overworked and under resourced public defenders which contributes to class and race
3:38 pm
bias in the justice system, and in my view, is an affront to the constitutional guarantee of due process as well as of equal protection. so will you work with my office and this committee to determine whether grant programs which may already exist at the department to support local public defenders's offices, which may need to be created, can be considered in legislation that this committee and the senate may consider? judge garland: i will, senator. there is no equal justice in the united states unless everybody has equal access to justice. my own experience, the public defenders office needs resources. i tried my best when i was in an administrative position to apply as many resources as possible. the same for loggers who volunteer under the criminal justice act. the difference between having an excellent lawyer or not can make
3:39 pm
all the difference in the world. and i think we should give all the resources that we can, and with respect to local courts and local public defenders, having grant programs, but of course to the extent congress is willing, i'm strongly in favor. >> i appreciate that answer and i look forward to working with you and i hope the chairman and ranking member almost grant programs -- and finally i want to return to the discussion that we had earlier about pattern or practice investigations. i just want to urge you that if you are confirmed and as you take this office, and there will be so many demands on your time and your attention and important missions from the department to fight violent crime and to defend our national security, that you personally exercise leadership within the department to ensure that the civil rights division's mission is elevated and emphasize, and that you come to this committee to seek and
3:40 pm
secure any resources that you need to make that real. and just to illustrate why i believe that is so important, the south fulton jail in my home state of georgia has been known to the public for years to have appalling conditions for incarcerated people. and actually in the last month, the federal court ordered changes to practices within the jail. but it was after years of litigation. the u.s. attorney's office did file a brief in the case but the litigation was brought by independent, nonprofit plaintiffs. years it took for changes to be ordered by a federal court. i will read you a quote from the plaintiff's brief to illustrate the conditions in this jail. and i want to warn the public viewing this on television that the material is graphic. "the cells were covered in
3:41 pm
bodily fluids, rust and mold. in these conditions, the inmates deteriorated. there was incoherent screaming, and intelligently, laying catatonic, banging their heads against walls and repeatedly attempting suicide. in the south fulton jail in georgia, these conditions are not unique to this facility. i want to urge you and ask you one more time, please, ruth -- respectfully, judge garland, your commitment to elevate this nation within the department and to work to secure the human rights of incarcerated people and the american public with all the power you will have in this position. judge garland: you have my commitment. the civil rights division has responsibility and some authorities in these areas and so is quite capable of pursuing these kinds of cases. i took to heart what the
3:42 pm
chairman said with respect to the role that robert kennedy played when he was the attorney general, and i regard my responsibilities with respect to the civil rights division as the top of my major priorities list. so you have my commitment to do everything i can in this area. >> with the chairman's indulgence, judge, will you commit to reviewing any materials that are sent to you by congress or by entities such as the naacp or the southern center for human rights where it pertains to conditions of incarceration? judge garland: so that i have some time to be able to read everything that i need to read, if it's alright with you, i will commit to being sure that the head of the civil rights division and the associate attorney general, who are directly responsible do that,
3:43 pm
and then brief me about it. i will to the extent possible, i've already committed to reading a 400 page document, and there are only so many hours in my day. >> i understand. thank you so much. sen. hawley: i'd like to talk more about the law enforcement challenges at the border. just a fundamental question, do you believe that illegal entry at america's border should remain a crime? judge garland: i haven't thought about that question, i just haven't thought about that question. i think the president has made clear that we are a country with borders and with a concern about national security. i don't know of a proposal to decriminalize but still make it unlawful to enter. i just don't know the answer to that question, i haven't thought about it.
3:44 pm
sen. hawley: will you continue to prosecute unlawful border crossings? judge garland: this is again a question of allocation of resources. the department will prevent unlawful crossing. i have to admit i just don't know exactly what the conditions are and how this is done. i don't know what the current program is with respect to this. so i assume the answer would be yes, but i don't know what the issues surrounding it are. >> let me ask about the guidelines on asylum eligibility. there were previous guidelines about asylum eligibility. senator cornyn talked about the significant back log we have
3:45 pm
currently in asylum cases. will you continue to keep in the current guidelines on asylum eligibility, or do you anticipate changing them? judge garland: again, given my current professional occupation, i've had no experience whatsoever with the guidelines, so i can't give you a direct answer to that question. asylum is part of american law and the justice department and the state department have an obligation to apply that law. i don't know what the guidelines are that you are talking about or revisions to the guidelines you are talking about. >> if confirmed i am sure you will be reviewing this in considering these questions. will you pledge to keep us fully posted as you do so? judge garland: if there's a change in government policy, of course there will be a public angel -- change because you cannot apply those guidelines.
3:46 pm
>> let me turn to the subject of antitrust. i heard your answer about the ongoing google antitrust prosecution. believe your answer was you did not anticipate any changes in that ongoing prosecution. judge garland: i don't want to talk about the case because it is a pending case. as with most of our investigations, when it -- if i'm confirmed, i will examine them. but i don't have any reason to think that i would stop that kind of investigation. >> recently it was reported that susan davies is being considered to lead the antitrust division. she defended facebook from federal antitrust laws. facebook has been another target of antitrust scrutiny. do you think it's appropriate to have someone who is a defender of these massive corporations leading the antitrust division? judge garland: let me say a number of things in response to this. first of all, the department has
3:47 pm
recusal rules which prevent somebody who had a role i'm taking a role in a case like that. susan davies is a fantastic lawyer, a woman of enormous integrity, and i have every confidence that were she in that division, she would proceed as completely appropriate. but it turns out that the press reports are completely incorrect. >> she is not under consideration? judge garland: not that i know of, no. >> and is not going to be, to the best of your knowledge? judge garland: i don't think either she nor i have aspirations for her to be in the antitrust division. so i'm not exactly sure where this came from, but she is a woman of remarkable ability who has helped me in my previous role, and i would be very eager to rely on her good judgment. and a woman of strong, ethical judgment. if she were in a position
3:48 pm
anywhere in the department, she would know when to recuse or not. on this particular issue, as far as i know, she's not going to be in the antitrust division, not because she wanted to be or because i wanted her to be in there and somebody said she couldn't. >> i think that is welcome news, and i just want to register my own point of view here. recusal are not, the message it was sin, and the google case is perhaps the most significant antitrust case undertaken since microsoft. google is significantly more powerful than microsoft was. the message it was sin to have a lawyer defending these companies -- judge garland: i don't know who is sending this message or why the message was being sent. i don't have any intention of this, but i am confident that had this been the case, it would not be a problem.
3:49 pm
unfortunately or fortunately, a lot of the best antitrust lawyers in the country have some involvement, one way or another, in some part of high-tech, and we can exclude every single good lawyer from being able to be in the division. but that is not an issue and nothing to be concerned about. sen. cruz: judge garland, i want to go back to the topic of protecting the department of justice from political influence and being weaponized politically. a number of senate democrats at this hearing have used the opportunity to cast aspersions to the jobs bill -- i think he showed enormous courage and fighting to defend the rule of law. but bill barr, when explicitly asked about whether he would terminate robert mueller at his confirmation hearing, the same
3:50 pm
situation you find yourself, he said he would not terminate him, absent "good cause." are you willing to meet the same standard of integrity that bill barr demonstrated, and will you make that same commitment to this committee that you will not terminate mr. durham absent good cause? judge garland: no, what i've said to the committee is that i need to get information about this investigation, which i do not have here. i understand that a decision has been made to keep him in place and i have absolutely no reason to doubt that that was the right decision and that he should be kept in place. but i can't go any further without learning the facts of the investigation and what the status is. sen. cruz: judge garland, with all due respect, judicial nominees sit in that chair and declined to answer just about
3:51 pm
every question senators pose, saying well, as a judge, i can't commit how i would rule on a given case, and that is appropriate. you are not nominated to be a judge in this position. your nominated to executive position and you understand fully well the difference between attorney general versus an article three judge. bill barr didn't know the details of the mueller investigation at the time, but he knew that bob mueller was investigating president trump, that it was highly politically sensitive. and so to show his integrity and commitment to being nonpartisan, he said he wouldn't terminate mueller absent good cause. you have the opportunity to do the same thing. investigation into durham is highly political and potentially indicates joe biden and barack obama. i just want to be clear, you are refusing to give that same commitment, you want to keep the options open to terminate the investigation. judge garland: i'm not refusing
3:52 pm
to give that commitment because i am a judge. i'm telling you what i think an attorney general ought to do, which is to look at the facts before making a decision. i'm also telling you that i will never make a decision in the department based on politics or partisanship. so whatever decision i would make, it would not be based on that. all i can ask you to do is trust me based on the record of my 24 years as a judge, my entire career before that as a prosecutor, and my life before that. that is my record of integrity, and that's what you have before you. sen. cruz: so of similar line of questions you were asked concerned the google antitrust investigation. big tech as a whole contributed over $15 million to the joe biden campaign. they are enormously important democratic donors. there will be enormous political pressure to abandon that case against google. can you get this committee
3:53 pm
assurances that you can stand up to that political pressure, just because democratic fundraisers want to be lenient on google, that the department of justice will not give into that pressure? judge garland: senator cruz, i'm old enough to remember when there was a political effort to end a case, and antitrust case in the justice department against at&t. -- against itt. the international telephone and telegraph company. if i'm not wrong, this was one of the paragraphs in the indictment, proposed indictment of impeachment of president nixon, i think. it was around the same time. it had to do with a partisan effort to influence a justice department the antitrust division. i grew up knowing this is not something that is permissible for the justice department to do.
3:54 pm
in my whole life has been looking at post-watergate attorneys general who stood up to that kind of stuff. i can assure you, i don't care what kind of donor talks to me, and i don't expect to talk to any donors. i have no conflict. i don't own any google stock, and i will do whatever is in the right thing. sen. cruz: you voted to rehear the heller case or the parker case on -- i argued the parker case and the dcc. as attorney general will the department of justice argue for the supreme court to overturn heller versus district of columbia? judge garland: the department makes all kinds of judgments like that. i can't promise, but i find it hard to believe that the department could think there was any possibility of overturning
3:55 pm
the heller case. sen. cruz: determines indulgence, the senators wrote a letter to durbin asking this committee to investigate governor cuomo's -- sending covid positive individuals into nursing homes. a senior aide of his admitted to a cover-up to hide information from the departed of justice. you've committed to a number of investigations here at this hearing today. will you commit to investigating the extent to which the government of new york wrote laws are covered up their policies concerning covid positive patients in nursing homes? judge garland: with all of these investigations, the justice department is open to evidence of fraud, false statements, violations of the law and will begin an appropriate way in the u.s. attorney's office. without coming on this in particular come because i don't know the facts --
3:56 pm
sen. cruz: when the mother-in-law is the senior official -- would you lease commit to not having the investigation done by person with a conflict of interest? judge garland: of course. i don't know any of the facts, but i guarantee that someone with a conflict of interest will not be the person running investigation of any kind. >> this question about the durham special counsel, for the record, the president of the united states in the white house, when they reported their policy on the future of the u.s. attorneys, they made two exceptions, if i remember correctly. one was for the delaware u.s. attorney in second was for, in this situation with durham, the administration is clearly committed publicly to allowing durham to complete his investigation. i don't know that any additional comments are needed beyond that, though you've been asked many times that question.
3:57 pm
in terms of attorney general barr, we do remember that he wrote an unsolicited memo questioning the legitimacy of the mueller investigation before he was under consideration for the office of attorney general. i don't know why the other side keeps returning to this, but i think your position is consistent with the white house position and is what we would expect of any attorney general and it comes to making the assessment after they learn the facts. senator whitehouse. sen. whitehouse: thank you, chairman. am i the final question or? -- i may be all that stands between you and relief from these proceedings, your honor. i would summarize our earlier conversation as you telling us that when we ask you questions, or the department or the fbi
3:58 pm
questions, we are entitled to an answer, and if the answer is no, we can tell you that, we are entitled to annex the nation as to why you think that. is that correct? judge garland: yes, that's correct, senator. sen. whitehouse: i touched on executive privilege because the department has a role as an arbiter of executive privilege determinations. we've had documents it in here blank that had the phrase constitutional privilege stamped on them. no articulation of what constitutional privilege it was. we have had witnesses claim to assert executive privilege, but the administration never backed them up by actually asserting the privilege so there was never actually a test of the proposition. but our chairman wouldn't force an answer, so we were stuck. and i urge you -- maybe we
3:59 pm
should even have a hearing on it, think through what executive privilege ought to look like, what the process for declaring it ought to look like, and try to get that cleared up so in this committee, we are no longer being treated the way we were in the last administration. you mentioned that false statements were a way that cases traditionally came in, went to the u.s. attorney first. there is one sort of strange anomaly just false statements to the irs. the administration before this one took the view that a false statement to the irs was something they wouldn't look at unless it had been referred by the irs. so i get the policy of not getting into criminal investigations on tax law without the irs saying we would like you to prosecute this. we are the tax law experts and we really have some equities here and to proceed criminal in
4:00 pm
this matter. i get that. when it is a plain-vanilla false statement, i did that as u.s. attorney. you did those cases. anyone who served as a u.s. attorney has done those cases. i would urge you to reconsider a policy of deferring to the irs for proceeding on a civil false statement case. i flagged that for you. -- i flag that for you. it seems to me -- it seems to me failing to proceed, failing to proceed where an investigation or prosecution is warranted and doing so on political grounds is just as bad as proceeding with an investigation or prosecution on political grounds. would you agree that is a correct proposition? judge garland: absolutely.
4:01 pm
sen. whitehouse: last of all, we all need something to believe in, i think. people who worked in the department very much believe in the department of justice. they believe in the merits and norms and values of the traditions of their service and the department. people across this country need to believe. and there was a lot that happened in the last administration to cause doubt about whether the department of justice met that standard, they were worthy of the public's trust and belief. as your closing comments, that me ask you to respond to how you view the importance of your -- of the public's trust and belief in the department of justice and
4:02 pm
your commitment to salvaging if necessary, restoring as needed and upholding those ideals. judge garland: look, i cannot agree with you more. it is not just at the department has to do justice. it has to appear to do justice and the people of the united states have to believe it does justice. otherwise, people lose their faith in the rule of law. they take the law into their own hands. they become cynical about law enforcement, about public servants. i would like for the time i am in the justice department to turn down the volume on the way in which people view the department, that the justice department not be the center of partisan disagreement, that we
4:03 pm
return to the days when the department does its law enforcement and criminal justice policy and that this is viewed in a bipartisan way, which for a long time in the history of the department, that is the way it was. i know these are divisive times. i am not naive, but i would like to do everything i can to have people believe that that is what we are doing. people will disagree. people on the left side, the right side, the democratic side, the republican side will disagree with things that i do. and that has happened as a judge. the only thing i can hope is people will understand i am doing what i do because i believe it is the right thing and not out of some improper motive. that is the best i can ask.
4:04 pm
if you confirm me and if at the end of my time people still believe that, i will consider that a singular accomplishment. chair durbin: i'm going to say a few words about what the committee is going to do tomorrow in pursuit of your nomination and a few closing comments. tomorrow, the second day of the hearing begins at 10:00 a.m. we will hear from a panel of outside witnesses. questions for record from the senators on the committee must be submitted by 5:00 p.m. on wednesday, february 24. i hope people will show good faith and common sense in the number of questions they submit because you have been open for what people have task on their minds. my appreciation of your background is a little different than some. i know one of your earliest inspirations was a man who proceeded to serve with
4:05 pm
distinction in all three levels of government in the federal branch as well as his initial service in the illinois house of representatives. one of his closest friends and allies and colleagues over the years was a man named paul simon who dusted me off a few times when i lost elections and said you will get them next time. i eventually did. it took a while. i knew him personally and through his relationship with my mentor, they represented the very best in public service. integrity, honesty, hard work, all of the above. we are lucky to be heirs of that legacy and i think it has inspired both of us in our different pursuits of public service.
4:06 pm
when president-elect biden told me you were under consideration for this job, i thought instantly this is the right person to put in as attorney general. the department of justice needs to have its morale restored. it needs to have its reputation restored. it needs leadership that is honest and that we can respect from every corner of this country. you are that person. your testimony today is evidence of that. i want to thank your family in particular. you mentioned but it is well worth repeating. lynn, thank you for being here. rebecca and her husband, and jessica, thank you for being here today in support of an extraordinary person who is ready to serve again and has been called by the president to be there at a moment of history when he is needed the most.
4:07 pm
this president has put faith in you, judge garland, and we will do the same. i look forward to your swift confirmation and with that, the hearing stands adjourned until 10:00 tomorrow. [indiscernible conversations]
4:08 pm
4:09 pm
[indiscernible conversations] >> we will take you live now to hear the comments from the dingy harry committee -- from the judiciary committee chair, senator dick durbin. chair durbin: i am gratified that he did. today's questioning from both sides of the aisle is evidence of his intelligence. he was not stumped perhaps by one question in the course of one day.
4:10 pm
and also, the fact that he operates by ethical standards, which we are desperate to see in washington again. i cannot predict how the vote will go, but i can tell you i sensed from the questions that the other side was in a positive frame of mind. they may not vote for him, but i know they respect him and they should. >> do you see this as a vindication for merrick garland? chair durbin: he did not need it. he went through and experienced five years ago which was said. it was one of the saddest chapters in my service in the senate the way he was treated, but he kept his head up. today, made no reference to that whatsoever. he has so much more in his background than that sad experience and i'm proud of the job he has done. >> there is focus as to whether or not the durham investigation will continue and whether or not
4:11 pm
there will be any sort of information being brought back to the senate under merrick garland. what is your response to that and you think it should continue? chair durbin: when the biden white house decided to come down with a policy on u.s.'s and special counsel's, they announced everybody was out as of the end of february but two. durham was one of them. the other was the u.s. attorney and a the state of delaware. i think the biden administration has sent a clear signal that durham will be allowed to finish his work. there are some who think his conclusions will not be any different than the ones we already have, but there is a clear indication from the biden administration he will have his opportunity. >> you were concerned about u.s. attorney's in your home state. do you want to talk about that a
4:12 pm
bit and what has been happening as far as the biden administration? chair durbin: i can say senator duckworth and i continue to present our case to the white house that the u.s. attorney for the northern district of illinois should be allowed to continue until a successor is chosen. i am hopeful that will end positively. when will know, i hope soon. >> can you preview tomorrow for us? chair durbin: yes. >> thank you. chair durbin: among the witnesses tomorrow, i know there is a parent of one of his mentees, and i think that is a very appropriate thing. we also have a witness that will testify to his role in the oklahoma city bombing investigation. and wade henderson. there are only three? >> ken starr. chair durbin: ken starr who is
4:13 pm
supporting his nomination. >> do you have a moment for an off-topic question? i wanted to ask you because the houses working on budget reconciliation. we know the minimum wage question, we don't know if that has been accepted or will be taken up by the senate parliamentarian. moving forward, is that something senate democrats would be interested in? i know senators romney and platt are working on a proposal that would bring down not $15 but maybe propose 11 or $12 to raise the minimum-wage. you think that is something your peers would have an appetite for or do you want to go all in on 15? chair durbin: this was 15 phased in one year 2025, which is the same as the illinois state plant . $15, i think, is a reasonable standard for people to be able to get by.
4:14 pm
with a 40 an hour a week job. when you start lowering it, that compromises their opportunities. we cannot keep giving speeches about the inequality in america and ignore the obvious. so many people get up and go to work not just for one job a day but two jobs a day to get by. i hope we can prevail on those who have some misgivings to find a way to improve the minimum-wage. we have not touched it for years. it is long overdue. >> we appreciate it.
4:15 pm
[indiscernible conversations] >> senator dick durbin, the chair of the dishy harry committee wrapping up -- of the judiciary committee wrapping up his comments. the senator mentioning day number two tomorrow with witnesses. we will have that at 10:00 a.m. eastern tomorrow. we'll be over on c-span.org. we want to let you know in case you missed today's testimony, with the nominee merrick garland, it will re-air in its entirety beginning at 8:00 p.m. eastern on c-span. >> you're watching c-span, your unfiltered view of government. c-span was created by america's cable television companies in 1979. today, we are brought to you by these television companies who provide c-span to viewers as a public service.
4:16 pm
>> javier becerra has been chosen by president biden to lead the department of health and human services. he testifies tuesday morning in his confirmation hearing. watch live beginning at 10:00 a.m. eastern on c-span, online at c-span.org or listen on the free c-span radio app. the house returns to debate on tuesday. on their schedule this week, the covid relief bill, lgbtq antidiscrimination protection and designated one and a half million acres of federal land in california, colorado and washington state as protected wilderness. watch live coverage on c-span starting tuesday afternoon on 2 -- at 2:00 eastern. >> listen to c-span's podcast, the weekly. this wiki, an expert on infectious diseases and one of
4:17 pm
america's leading epidemiologists talks about the road ahead in dealing with the coronavirus. >> we have a very long road ahead. i can say without any doubt at this point expect more curveballs to get thrown at us. if we had this interview 10 weeks ago, we would not have been talking about variants the way we are now. look at where we are at now talking about the severe challenges they present. i would expect the unexpected. there is much we can do. at this point, this is not going to be over with anytime soon. >> find c-span's the weekly where you get your podcast. >> judge merrick garland has served on the u.s. court of appeals for the deceased since 1997. he has been made by president biden to be attorney general. next up, we will show you today's

8 Views

info Stream Only

Uploaded by TV Archive on