Oct 27, 2021
AG Merrick Garland Testifies on Justice Department Oversight: Full Senate Hearing Transcript
Attorney General Merrick Garland testified on oversight of the Justice Department on October 27, 2021. Read the transcript of the full Senate hearing.
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Senator Durbin: (00:00)
… of justice oversight hearing since October 18th, 2017. That was the only time during the four year Trump administration this committee held an agency-wide Department of Justice oversight hearing. Annual oversight hearings were the norm under the Obama administration, I’m pleased to restore this tradition.
Senator Durbin: (00:19)
I thank Attorney General Garland for appearing today.You were confirmed by the Senate in March on a bipartisan basis, and took the helm of the Justice Department at a precarious moment. Under Attorney General Barr and his predecessors, the department often played the role of President Trump’s personal law firm. Time and again, Trump appointees overrode the professional judgment of the department’s nonpartisan career attorneys to advance the President’s agenda. Their efforts took a dark and dangerous turn in the waning months of the Trump term, when DOJ political appointees aided President Trump’s Big Lie efforts to challenge the integrity of our election.
Senator Durbin: (01:01)
First, Attorney General Barr cast aside decades-old policy designed to prevent the department from impacting elections. He directed us attorneys and the FBI to investigate the election fraud claims of nonetheless Rudy Giuliani, after these claims had been summarily discredited and disproven by countless state election officials. And Barr repeatedly, publicly, and baselessly claimed that mail voting would be rampant to fraud, a charge. He himself rejected when the votes were actually counted.
Senator Durbin: (01:36)
After he lost the 2020 election, President Trump found another Justice Department ally in Jeffrey Clark, a mid-level political appointee who became the President’s Big Lie lawyer. Clark pushed the Department of Justice leaders to overturn the election, and when they refused, he plotted with President Trump to replace them. Trump and Clark brought the department to the brink, and were thwarted only after threat of mass resignations across the Department of Justice. I commend those Department of Justice attorneys, many of whom were Trump appointees, who at that critical moment in history resisted President Trump and his plot to attack our democracy.
Senator Durbin: (02:19)
The events this committee described in our recent subverting justice report were among of the most brazen examples of President Trump attempting to bend the Department of Justice to his will and his agenda. But they were the natural culmination of four years of attacks on the Department of Justice. There is straight line from these events to the violent insurrection in the capital building on January 6th. When Trump and his allies could not prevail in court and lost case after case after case claiming voter fraud, they took their Big Lie to the Justice Department. And when they didn’t prevail there, they dispatched an angry mob to storm the capital to stop us from counting the electoral votes. I commend the many agents and prosecutors who were working day in and day out to bring these violent insurrectionists to justice. I hope the department will be just as steadfast in pursuit of those who encouraged and incited the attack, and those who would prevent the American people and their representatives from uncovering the truth.
Senator Durbin: (03:23)
I am sorry that the Republican Senate leader refused to join the bipartisan commission that was proposed to investigate the January 6th insurrection attack. I look forward to hearing from the Attorney General this morning about the work that is underway to combat the growing threat of domestic violent extremism. The department cooperated with our committee’s investigation into the Jeffrey Clark scheme, and it deserves credit for doing so. Over the course of several months, the department provided documents, authorized testimony, and resolved executive privilege issues, enabling us to uncover, on a bipartisan basis, I might add, just how close we came to a full blown constitutional crisis.
Senator Durbin: (04:08)
Attorney General Garland, when you appeared before us in February, you acknowledged, and I quote, great respect for belief in the oversight role of the committee. And you committed your department to quote, be as responsible as, pardon me, as responsive as we possibly can to comply with information requests. I commend you for the steps you’ve taken, but I believe I speak for all of my colleagues in saying there is still room for improvement when it comes to department responses. And the department must deliver on its mission to ensure fair and impartial justice.
Senator Durbin: (04:41)
Let me give you an example. In the closing days of the Trump administration, the department’s Office of Legal Counsel issued a memo wrongly declaring, in my estimation, that federal inmates released a home confinement under the bipartisan CARES Act must return to the Federal Bureau of Prison’s custody following the COVID 19 emergency. In fact, the CARES Act includes no such requirement. These nonviolent inmates are already home, and are overwhelmingly reintegrating into community with success. On April 23rd, I sent you a letter, joined by Senator Booker, urging you to rescind this memo. Six months later, six months later, we still have not received a response.
Senator Durbin: (05:28)
Another example. In November of 2020, the Trump administration published a rule discouraging inmates from completing programs under the First Step Act to reduce their chances of re offending. This was a measure that was undertaken, the First Step Act, by combining a prison reform measure that was co-sponsored by Senator Cornyn and Senator Whitehouse, with a sentencing measure co-sponsored by Senator Grassley and myself, and signed into law by the President. Now, Senator Grassley and I sent you a letter on May 5th urging the department to reject the proposed rule and instead enact a rule consistent with the goal of the First Step Act of reducing recidivism. It’s been five months, in fact, more than five bullets. We still haven’t received a response. The First Step Act allowed the Bureau of Prisons to grant compassionate release in extraordinary and compelling circumstances, such as a once in a century global pandemic. Under the Trump administration, listen to these numbers, the Bureau of Prisons denied all but 36, 36 of 31,000 31,000 compassionate release petitions filed during the pandemic.
Senator Durbin: (06:42)
In the first six months of the Biden administration, the Bureau of Prisons approved just nine compassionate release requests. This is extraordinary. When the infection rate in the Bureau of Prisons was six to seven times the national infection rate and the death rate equally appalling. When compassionate release requests were received, 31,000 of them, only 36 were allowed. Meanwhile, the pandemic has been devastating in our Bureau of Prisons facilities. 265 inmates have died, including six within the last few weeks. The death of a 42 year old man August came after the Department of Justice denied his compassionate release request. Republicans and Democrats worked together to pass the First Step Act to make our justice system fairer and our community safer. These reforms are only as good as their implementation.
Senator Durbin: (07:34)
Attorney General Garland, as you come before this committee, the right to vote and to have the votes of every American counted is under attack like no time in decades. This year alone, state legislators have introduced more than 425 bills making it more difficult for Americans to vote, particularly people of color. 19 states have enacted 33 of these laws. Some of these laws set new limits on voting by mail. Others cut hours for polling locations. All of them, all of them are designed to achieve the same outcome, make it more difficult to vote. At the same time, Big Lie proponents are pushing new laws to give partisan state legislators the ability to overturn election results they don’t agree with. They are ousting local election officials who faithfully apply the law and oversaw an election that Trump’s own Department of Homeland Security called the most secure in American history. And their efforts coincide with an unprecedented increase in violent threats toward state and local election officials.
Senator Durbin: (08:35)
I’d like to add at this point about these violent threats. It is rife across America. Those of us who are airline passengers know what the flight attendants are facing, with thousands of confrontations, even violent confrontations over wearing masks on aircraft. I’ve sent a letter to you joined by others saying this has to be taken seriously. These assaults in the so-called name of liberty are unacceptable. And your October 4th memo relative to schools and school board officials and their own peril at this point, I think should be mentioned. I have heard statements from members of this committee, which I think are really inconsistent with reality. Those who think the insurrectionist mob of January 6th was merely a group of tourists visiting the capital ignore the pillaging, the deaths, and the serious injuries to over a hundred law enforcement officials. And those who argue that school board meetings across America are not more dangerous and more violent than in the past are ignoring reality.
Senator Durbin: (09:39)
I went on and just typed in this morning, “School board violence,” on one of the search engines. Page after page is coming up. In my state of Illinois, Mendon, Illinois is a small rural town in Adams County, the western part of our state that I have represented for almost 40 years. It is a quiet, solid community, and yet they had their own instance at a school board meeting where an individual had to be arrested because he had threatened violence against the school board members over masks in schools, for example. That story is repeated over and over again. The state of Minnesota, Senator Klobuchar knows this story well. The state of Idaho, we are seeing violence at these school board meetings at an unprecedented number. I don’t believe, I think you made it clear that you don’t believe, that we should infringe on free speech. But free speech does not involve threats and violence, period. And we ought to join with local law enforcement officials to protect the school board members who are being intimidated in this way.
Senator Durbin: (10:40)
I want to close by mentioning an issue I said to you personally. I’m honored to represent the city which you grew up in, and which I now visit with great frequency obviously, and that’s the city of Chicago. The gun violence situation there is intolerable. Intolerable. And we’re not the only city in America by any means that’s facing this. We need to have your assurance that there is a concerted, determined effort to deal with gun violence at the federal level, coordinating our effort with the state and local officials. With that in mind, I hope we can reach some agreement to do so very quickly. And let me hand it off now to the ranking member, Senator Grassley.
Senator Grassley: (11:20)
Thank you, Chairman Durbin. This committee has a constitutional obligation to ensure that the department complies with the laws that we write, and execute those laws according to our intent. In the performance of our cons institutional duty, we write letters seeking answers and records from the department and its component agencies to better understand what they’re doing. Likewise, the entire executive branch, not just DOJ, has an obligation to respond to congressional oversight requests. Today I can say with confidence that under General Garland’s leadership, the department has failed across the board to comply with this committee’s Republican oversight requests. And I appreciate very much Chairman Durbin pointing out a letter that he and I wrote five months, haven’t received an answer. If my name being on that letter has any reason it hasn’t been responded to, I’ll take my name off of that letter.
Senator Grassley: (12:32)
In contrast, General Garland, you’ve provided Democrat colleagues with thousands of pages of materials. Moreover, President Biden has politicized and inserted himself into the department policy making, notably directing the end of compulsory process for reporter records in criminal leak investigations. And most recently, inserting himself when he said the department should prosecute anyone who defies compulsory process from the January 6th committee.
Senator Grassley: (13:14)
At your confirmation hearing, I read to you what I told Senator Sessions at his confirmation hearing for being Attorney General, this quote. “If Senator Feinstein, who then was ranking member, if Senator Feinstein contacts you, do not use this excuse, as so many people use, that if you are not a chair of a committee, you do not have to answer the questions. I want her questions answered just like you would answer my questions.” End of quote that I gave to Senator sessions. So you said to me at your hearing, quote, “I will not use any excuse to not answer your questions, Senator.” End of quote. You have failed to satisfy that statement.
Senator Grassley: (14:07)
Example. I’ve asked the department for records relating to Hunter Biden’s October, 2018 firearm incident, where his gun ended up in a trash can near a school. Now that’s a firearm incident. Your ATF used the federal Freedom of Information Act to refuse producing those records, when that law doesn’t even apply to the Congress.
Senator Grassley: (14:35)
I’ve also asked for information relating to Chinese nationals linked to the communist Chinese regime that are connected to the Biden family. One individual, Patrick Ho, was not just linked to Chinese regime, he was apparently connected to that country’s intelligence service. Hunter Biden reportedly represented him for $1 million. Now, even though the department already made public in court filings that DOJ possesses FISA information relating to Patrick Ho, in response, you stated, quote, “Unfortunately, under the circumstances described in your letter, we are not in a position to confirm the existence of the information that is sought, if it exists in the department’s possession.” Well, let me emphasize, what you already made it public in a court filing. So you’re telling me you can’t even confirm its existence.
Senator Grassley: (15:44)
Now, with respect to the criminal investigation of Hunter Biden, Senator Johnson and I wrote to you twice this year regarding a person named Nicholas McQuaid. Mr. McQuaid was employed at a law firm until January 20th, 2021. When he was hired to be Then Acting Assistant Attorney General for the department’s criminal division. Before he was hired, he worked with Christopher Clark, who Hunter Biden reportedly hired to work on his federal criminal case a month before President Biden’s inauguration.
Senator Grassley: (16:25)
Now, the department hasn’t disputed any of these facts. However, you refuse to confirm whether Mr. McQuaid recused from the Hunter Biden case. That seems to be a pretty simple thing to say, one way or the other. The son of the President of the United States is under criminal investigation for financial matters. A senior attorney under your command has apparent conflicts with that matter. Your refusal to answer just threshold questions, casts a very public cloud over the entire investigation, a cloud that you should easily do away with if you were just a little bit transparent.
Senator Grassley: (17:15)
When I placed holds on your nominees for the department’s failure to comply with Republican oversight requests, I said, either you run the Department of Justice, or the department runs you. Right now it looks like the Department of Justice is running you. Since your confirmation, in less than a year, the department has moved as far left as it can go. You’ve politicized the department in ways it shouldn’t be.
Senator Grassley: (17:46)
Case in point, your infamous school board memo. You publicly issued this memo merely five days after the National School Board Association wrote a letter to President Biden. Now incredibly, they asked the department to use the anti-terrorist Patriot Act against parents speaking their minds to local school officials. The school board association has since apologized for that letter, but not before the department relied on their letter to mobilize federal law enforcement in state and local matters. Meanwhile, actual violent crime is on the rise in the country. Your memo treats parents speaking freely to be worthy of the department’s heavy investigative and prosecutorial hand.
Senator Grassley: (18:42)
You’ve created a task force. Now a task force that includes the department’s criminal division and national security division to potentially weaponize against parents. Your memo also creates a special training and guidance for local school boards and school administrators to recognize threats against them. According to your memo, these threats include and undefined category of, quote unquote, “Other forms of intimidation and harassment.” So now the last thing the Justice Department and FBI need is a very vague memo to unleash their power, especially when they’ve shown zero interest in holding their own accountable.
Senator Grassley: (19:35)
I don’t… When you don’t hold your own accountable. Let’s not forget about Obama Biden administration FISA abuse during Crossfire Hurricane, abuses that the department and the FBI for years denied even to be possible. And then you allowed a disgraced former FBI official off the hook, paying him hundreds of thousands of dollars in taxpayers’ money. When the Inspector General determined that he lied to investigators seven times, yes, seven times over the course of three different in occasions. Or the FBI’s and the department’s total failure to protect hundreds of kids from abuse by Larry Nasser, and then covered up. When we had a bipartisan hearing to learn about those courageous survivors, your Deputy Attorney General didn’t even show up.
Senator Grassley: (20:46)
So getting back to the National School Board Association matter, these parents are trying to protect their children. They’re worried about divisive and harmful curricula based upon critical race theory. They’re speaking their minds about mask mandates. This is the very core of constitutionally protected free speech, and free speech is deadly to the tyranny of government, and is the lifeblood of our constitutional Republic. To say your policies are outside of the mainstream would be an understatement. Mothers and fathers have a vested interest in how schools educate their children. They are not, as the Biden Justice Department apparently believes them to be, national security threats. What is a national security threat is things like MS13. What is a national security threat is like our open southern borders. What is a national security threat is the federal government’s failing to adequately vet individuals from Afghanistan. I suggest that you quickly change your course, because you’re losing credibility with the American people, and with this Senator in particular. Thank you.
Senator Durbin: (22:08)
Thanks, Senator Grassley. We now turn to the Attorney General for his testimony. First, welcome honorable Merrick Garland to testify before the Senate Judiciary Committee. For the information of the members, the mechanics are such, after I swear in Attorney General Garland, he will make his opening statement. Then we’ll go to a round of questions. Each Senator will have seven minutes. I’m going to try to hold folks close to that number so everybody can be accommodated. If there is a request, we may have a second round of questions of three minutes per Senator. Attorney General Garland, would you please stand to be sworn in? Do you swear or affirm the testimony you’re about to give before the committee will be the truth, the whole truth, and nothing but the truth, so help you God?
Merrick Garland: (22:49)
Senator Durbin: (22:50)
Thank you. Let the record reflect that the Attorney General answered in the affirmative. Now please proceed with your opening statement.
Merrick Garland: (22:59)
Good morning, Chairman Durban, ranking member Grassley, and distinguished members of this committee. Thank you for the opportunity to appear before you today. In my address to all Justice Department employees on my first day in office, I spoke about three coequal priorities that should guide the department’s work. Upholding the rule of law, keeping our country safe, and protecting civil rights.
Merrick Garland: (23:25)
The first core priority, upholding the rule of law, is rooted in the recognition at to succeed and retain the trust of the American people the Justice Department must adhere to the norms that have been part of its DNA since Edward Levi’s tenure as the first post Watergate Attorney General. Those norms of independence from improper influence of the principled exercise of discretion and of treating like cases alike are what define who we are as public servants. Over the last seven months that I have served as Attorney General, the department has reaffirmed, and where appropriate, updated, and strengthened its policies that are foundational for these norms.
Merrick Garland: (24:11)
For example, we strengthened our policy governing communications between the Justice Department and the White House. That policy is designed to protect the department’s criminal and civil law enforcement decisions and its legal judgements from partisan or other inappropriate influences. We also issued a new policy to better protect the freedom and independence of the press by restricting the use of compulsory process to obtain information from or records of members of the news media.
Merrick Garland: (24:44)
The second core priority is keeping our country safe from all threats, foreign and domestic, while also protecting our civil liberties. We are strengthening our 200 joint terrorism task forces, the essential hubs for international and domestic counter terrorism cooperation across all levels of government nationwide. For FY 22, we are seeking more than $1.5 billion, a 12% increase for our counter terrorism work.
Merrick Garland: (25:16)
We are also taking aggressive steps to counter cyber threats, whether from nation-states, terrorists, or common criminals. In April, we launched both a cyber review and a ransomware in digital extortion task force. In June, we seized a 2.3 million ransom payment made in Bitcoin to the group that targeted Colonial Pipeline. Keeping our country safe also requires reducing violent crime and gun violence. In May, we announced a comprehensive of violent crime strategy, which deploys all of our relevant departmental components to those ends. We also launched five cross-jurisdictional strike forces to disrupt illegal gun trafficking in key corridors across the country. And to support local police departments and help them build trust with the community they serve, our FY 22 budget requests over $1 billion for grants.
Merrick Garland: (26:17)
We are likewise committed to keeping our country safe from violent drug trafficking networks that are, among other things, fueling the opioid overdose epidemic. Opioids, including illicit fentanyl, caused nearly 70,000 fatal overdoses in 2020. We will continue to use all of our resources to save lives.
Merrick Garland: (26:41)
Finally, keeping our country safe requires protecting its democratic institutions, including the one we sit in today, from violent attack. As this committee is well aware, the department is currently engaged in one of the most sweeping investigations in its history in connection with the January 6th attack on the capital. The department’s third priority is protecting civil rights. This was a founding purpose when the department was established in 1870. Today, the civil rights division’s work remains vital to safeguarding voting rights, prosecuting hate crimes, ensuring constitutional policing, and stopping unlawful discrimination. This year we doubled the size of the civil rights division’s voting section and our FY 22 budget seeks the largest ever increase for the division, totalling more than 15%. We have appointed department-wide coordinators for our hate crimes work. We have stepped up our support for the community relations service. We are also revitalizing and expanding our work to ensure equal access to justice.
Merrick Garland: (27:44)
In addition to these core priorities, another important area of department focus is ensuring economic opportunity and fairness by reinvigorating anti-trust enforcement, combating fraud, and protecting consumers. We are aggressively enforcing the anti-trust laws by challenging anti-competitive mergers and exclusionary practices. In FY 22, we are seeking a substantial increase in funds for the division. We likewise stood up a COVID 19 fraud enforcement task force to bring to justice those who defraud the government of federal dollars meant for the most vulnerable among us.
Merrick Garland: (28:22)
In sum, in seven months the Justice Department has accomplished a lot of important work for the American people, and there is much more to be done. Thank you for the opportunity to testify this morning. I look forward to your questions.
Senator Durbin: (28:36)
Thank you, Mr. Attorney General. Hardly a day goes by in the city of Chicago that someone isn’t killed with a firearm. The cases are heartbreaking. Little boys and girls coming, standing on their porches and going to school. And on August 7th, the Chicago police officer, Ella French and her partner, officer Carlos Yanez, were conducting a routine traffic stop in the city. The person in the car opened fire. Officer French, age 29, was murdered, and officer Yanez was severely wounded. I never saw such an outpouring of emotions in the city. I went down to Rita High School on the south side, near Beverly, where they had the memorial service. There were hundreds, if not thousands of women and men in uniform, and just ordinary citizens, standing, waiting for their turn to pay tribute to Ella French for what she had done for our city.
Senator Durbin: (29:35)
Two days later, we found out from the us attorney’s office that the gun used to murder her was obtained from Indiana through a straw purchase. That’s when a person who can clear a background check, buys a gun from a federal licensed gun dealer and gives it to someone who cannot clear it. What are we going to do about this? What is going to be done at the federal level to show that we’re taking this seriously? Ours isn’t the only city that is facing this challenge, and we’ve got to act and act soon.
Merrick Garland: (30:06)
Mr. Chairman, I am as concerned as you are, and as I’m sure all members of this committee are about the rise of violent crime all across the country. I was in Chicago, as you know, at almost the exact time that the officer that you speak of was killed. I have gone to meet with the families of an ATF agent who was killed on duty. And I have stood on the mall with a candlelight vigil for many other police officers who were killed in the line of duty. The Justice Department is doing everything possible with respect to violent crime. In May of this year, I launched a violent crime initiative, which brings together all of our law enforcement on the federal level to meet with, coordinate with, cooperate with, state, local, tribal, territorial law enforcement to fight this issue. Our federal agencies, DEA, ATF, Marshalls, and the FBI are all deeply involved in this. Our programs, Project Safe Neighborhoods continue in all these ways. And we’re looking for large amounts of money to provide in grants to police departments.
Merrick Garland: (31:21)
Specifically with respect to the gun trafficking that you’re speaking about. As you know, Chicago is one of the task force cities that we’ve announced for purposes of tracing this gun trafficking problem, and we are doing so and finding the straw purchasers and arresting them as well. I could not agree more that this is a serious, serious problem that needs the attention of the entire country’s law enforcement, and the Justice Department is very much involved in the fight.
Senator Durbin: (31:51)
I’m going to be meeting with those federal law enforcement agencies to talk about the strike force and what they’re doing, how they’re cooperating with state and local law enforcement. I hope to do it maybe even this week on a private basis, and then see what more I can do. I think we all have a responsibility when it comes to this issue.
Senator Durbin: (32:11)
Let me ask you about the home confinement issue. We all know under the CARES Act there was an allowance for that possibility, and we know that since March of last year, more than 33,000 inmates of been released to home confinement, including those released under the CARES Act expanded authority. Less than 1% of those inmates have been returned to BOP facilities for any rule violation. Do you agree that recalling the thousands of individuals who’ve successfully transitioned back into society would be contrary to the purpose of home confinement, which is to allow an individual, quote, “A reasonable opportunity to adjust to and prepare for reentry of that prisoner in the community?”
Merrick Garland: (32:54)
Senator, I very much agree that the home confinement program has proven successful, that it both relieved the pressure on the prisons with respect to COVID 19 pandemic, but also gave people an opportunity to adjust themselves to their communities. And you are right that we have seen very few violations of the conditions. So I’m very strongly in favor of being able to continue this program.
Senator Durbin: (33:20)
Well, I’m hoping that we can get a definitive reversal of the OLC opinion that was dropped on the desk as President Trump left office, and make it very clear what will happen if and when, and I pray that’s soon, the COVID 19 emergency is lifted. I’d like move to another topic which has already been addressed by myself and Senator Grassley. I really invite the members of this committee, if you don’t believe me, type, “School board violence” into your computer, and take a look at what’s happening. It’s happening all across the country.
Senator Durbin: (33:55)
In my state, as I mentioned, a 30 year old man arrested and charged with battery, disorderly conduct, after striking a school board member at a meeting. California, father…
Dick Durbin: (34:03)
… after striking a school board member at a meeting. California, father yelling profanities at an elementary school principal, his daughter calmed him down. He later returned to confront the principal and struck a teacher in the face who attempted to intervene. Ohio School Board members sent a threatening letter saying, “We’re coming after you” and after the board member posted letter on Facebook, the president of the Board of Education for a nearby district reported his board had received similar threats. Pennsylvania, a person posted threats on social media, which required the police to station outside each of that district school. Local law enforcement is investigating the person who made the threats and will maintain a police presence at schools and school board meetings for the foreseeable future.
Dick Durbin: (34:43)
In Texas, a parent physically assaulting a teacher ripping off her mask. And it goes on and on and on. These are not routine people incensed or angry. These are people who are acting out their feelings in a violent manner over and over again. The same people we see on airplanes and other places. Same people, some of whom we saw her on January 6th. So when you responded as quickly as you did to that school board request, did you have second thoughts after they sent a follow-up letter saying they didn’t agree with their original premise in their first letter?
Merrick Garland: (35:17)
Senator, I think all of us have seen these reports of violence and threats of violence. That is what the Justice Department is concerned about. It’s not only in the context of violence and threats of violence against school board members, school personnel, teachers, staff. It’s an arising tide of threats of violence against judges, against prosecutors, against secretaries of state, against election administrators, against doctors, against protestors, against news reporters. That’s the reason that we responded as quickly as we did when we got a letter indicating that there were threats of violence and violence with respect to school officials and school staff.
Merrick Garland: (36:03)
That’s the reason. That’s what we are concerned about. That’s part of our core responsibility. The letter that was subsequently sent does not change the association’s concern about violence or threats of violence. It alters some of the language in the letter, language in the letter that we did not rely on and is not contained in my own memorandum. The only thing the Justice Department is concerned about the violence and threats of violence.
Dick Durbin: (36:34)
Chuck Grassley: (36:35)
Yeah. Before I asked my question, I’d like permission to introduce in the hearing record a letter from the Iowa Association of School Boards disagreeing with the National School Boards Association request for intervention from federal agencies and law enforcement and other concerns that they have.
Dick Durbin: (36:55)
Chuck Grassley: (36:55)
Yeah. General Garland, regarding your October 4th school board memo, last week you said the memo was for law enforcement audience despite it being on your public website as a press release. As a result of your memo, local school officials and parents may not speak up in these meetings out of fear that the federal government will do something to them. So that’s a poisonous chilling effect.
Chuck Grassley: (37:27)
Apparently, that letter wasn’t actually supported by an organization, but was sent by two unauthorized staff. So last week, the organization disavowed it, sent you on the White House based your memo on this delegitimized letter. I assume you’re going to revoke your extremely divisive memo that you said was instigated because of that letter. That’s a question.
Merrick Garland: (37:55)
Senator, the memo, which you referred to is one page. The response to concerns about violence, threats of violence, other criminal conduct, that’s all it’s about. And all it asks is for federal law enforcement to consult with, meet with local law enforcement to assess the circumstances, to strategize about what may or may not be necessary, to provide federal assistance if it is necessary.
Chuck Grassley: (38:22)
Presumably you wrote the memo because of the letter. The letter is disavowed now. So you’re going to keep your memo going anyway, right? Is that what you’re telling me?
Merrick Garland: (38:33)
Senator, I have the letter from NSPA that you’re referring to. It apologizes for language in the letter, but it continues its concern about the safety of school officials and school staff. The language in the letter that they disavow is language was never included in my memo and never would have been. I did not adopt every concern that they had in their letter. I adopted only the concern about violence and threats of violence and that hasn’t changed.
Chuck Grassley: (39:02)
Who in the Justice Department was responsible for drafting your polarizing October 4th memo?
Merrick Garland: (39:08)
I signed the memo and I worked on the memo.
Chuck Grassley: (39:12)
In the press release the company your memo mentions that the National Security Division will get involved in school. Board investigations. Is the Justice Department National Security Division really necessary for keeping local school boards safe if parents aren’t domestic terrorists? And if the Patriot Act isn’t being used, why is the National Security Division involved at all? This kind of looks like something that would come out of some communist country expansive definition of national security.
Merrick Garland: (39:47)
The memo is only about violence and threats of violence. It makes absolutely clear in the first paragraph, a spirited debate about policy matters is protected under our constitution. That includes debate by parents criticizing school boards. That is welcome. The Justice Department protects that kind of debate.
Merrick Garland: (40:09)
The only thing we’re concerned about, Senator, is violence and threats of violence against school officials, school teachers, school staff. Just like we’re concerned about those kinds of threats against senators, members of Congress, election officials. In all of those circumstances, we are trying to prevent the violence that sometimes occurs after threats.
Chuck Grassley: (40:32)
Your memo stated that the Justice Department is opening dedicated lines of communication for threat reporting assessment and response. What is the department doing with tips it receives on this dedicated line and what are you doing with those parents who have been reported?
Merrick Garland: (40:56)
The FBI gets complaints, concerns from people around the country for all different kinds of threats and violence. That’s what this is about. A place where people who feel that they’ve been threatened with violence can report that. These are then assessed and they are only pursued if consistent with the First Amendment. We have a true threat that violates federal statutes or that needs to be referred to a state or local government federal agents, local law enforcement agency for their assistance.
Chuck Grassley: (41:31)
On the other hand, are there criminal investigations being open for instances where school officials are trying to assess private data of parents with opposing views on critical race theory?
Merrick Garland: (41:46)
I don’t know about that, but the Justice Department certainly does not believe that anybody’s personal information should be accessed in that way. If there’s a federal offense involved or a state or local offense involved, then of course, those should be reported.
Chuck Grassley: (42:03)
The nonpartisan Justice Department inspector general established that Andrew McCabe lied under oath to FBI investigators. He lied under oath to the Justice Department inspector general. It should also be noted that McCabe leaked government information to the media and then called the New York and Washington FBI field offices and blamed them for the very leaks that he caused.
Chuck Grassley: (42:29)
Under your leadership instead of punishing him, the department reinstated his retirement, expunged his records as part of his settlement. He will reportedly receive $200,000 in retirement pay and his attorney will reportedly receive 500,000 in legal fees. So it seems to me that that’s beyond incredible. So General Garland, did you authorize the McCabe settlement and if not, who did?
Merrick Garland: (42:58)
Senator, the McCabe settlement was the recommendation of the career lawyers litigating that case based on their prospects of success in the case. The case did not involve the issues about lying. It involved a claim that he was not given amount of time necessary to respond to allegations. And the litigators concluded that they needed to settle the case because of the likelihood of loss on the merits of that claim.
Merrick Garland: (43:31)
The inspector general’s report still stands. We have not questioned in any way the inspector general’s findings. The reference with respect to false statements was made to the Justice Department in the previous administration and declined in the previous administration. The only issue here was an assessment of litigation merits.
Chuck Grassley: (43:54)
Short follow-up. Do you agree with the taxpayer, since you didn’t somebody else authorized it, do you agree with the taxpayer picking up a multi-million dollar bill for someone that lied under oath to government officials?
Merrick Garland: (44:07)
I think the assessment made by the litigators was that the bill to the taxpayers would be higher if we didn’t resolve the matter as it was resolved.
Chuck Grassley: (44:15)
Thank you, Mr. Chairman.
Dick Durbin: (44:17)
Patrick Leahy: (44:19)
Thank you, Mr. Chairman. Attorney General Garland, good to see you and thank you for being here. I’m sure the members of the committee are eager to discuss with you what the Justice Department is doing, what could be done better. I’ll just say this. After four tumultuous years in which the former president viewed the Justice Department as his personal law firm, I’m pleased the department is again living up to the most fundamental principle in our American justice system that no one, nobody is above the law. That’s sort of what I learned about the Justice Department when I was in law school that the experience I’d had with it for years as a prosecutor and as a litigator.
Patrick Leahy: (45:12)
So I was dismayed seeing what was happening in the past four years and I thank you, Attorney General, for bringing the department back from the brink. There’s still a lot to be done, but I think that America should take comfort that the rule of law is again being enforced. Now, it’s hard to overstate how urgently we must act to protect Americans constitutional right to vote. And there is reason for alarm. Many states are rapidly moving to restrict access to the ballot for tens of thousands of Americans from all walks of life in the wake of the Shelby County and this year Brnovich decision.
Patrick Leahy: (45:56)
The department’s tools to stem this tide of voter suppression have been greatly diminished. I know you’re doing whatever you can to defend the right to vote. How does congressional inaction in response to these Supreme Court decisions limit the ability of the department to protect Americans constitutional right to vote?
Merrick Garland: (46:23)
Thank you for that question, Senator. The right to vote is central pillar of our democracy. And as I’ve said many times, it’s the central pillar that allows all other rights to proceed from it. The Justice Department was established in part to protect the rights of a guarantee under the 13th, 14th, and 15th Amendment to vote. The Voting Rights Act gave us further authorities in that respect. We are doing, as you say, everything we can. We have doubled the size of the voting rights section, we brought a Section 2 case.
Merrick Garland: (47:02)
But there are limitations on our authority that the Supreme Court has imposed. One of which is the elimination of Section 5 of the Voting Rights Act, which provided an opportunity to do pre-clearance reviews so that we did not have to review each matter on a one by one basis. And then the recent and that was Shelby County as you pointed out and recently in the Brnovich case, a narrowing of what we regarded as the meaning of Section 2 and our authorities under Section 2. Both of those could be fixed by this Congress. And if they were, it would give us considerably greater opportunity and ability to ensure the sacred right to vote.
Patrick Leahy: (47:42)
And then the Supreme Court make it very clear that we could fix that if the Congress wanted to.
Merrick Garland: (47:48)
That’s correct and the opinions indicated these were matters could be fixed by the Congress.
Patrick Leahy: (47:56)
And I hope they will, because I think it’s very important that all Americans be protected of their right to vote. I know my own state of Vermont, we take that very seriously. Now we have the bipartisan VOCA Fix to Sustain the Crime Victims Fund. Act of 2021 has been signed into law. A major piece of this legislation requires funds clocked in and deferred in non-prosecution agreements be deposited into the Crime Victims Fund, which had been projected to reach a 10-year low. Since this bill has become law, have any funds from deferred or non-prosecution agreement been deposited into the Crime Victims Fund? And if not, why not?
Merrick Garland: (48:50)
Senator, the VOCA Fix was something we sought and we’re grateful for your support for and for your introduction of. We acted immediately after it was passed and something like north of $200 million has already been deposited in the fund thanks to that act. We now project that the funds should be liquid all the way through the end of 2022.
Patrick Leahy: (49:19)
Thank you and we can review it after that because I think you and I would both agree, we want to have long-term sustainability in this fund.
Merrick Garland: (49:31)
Patrick Leahy: (49:32)
So let’s work together on that. Now, there’s been some discussion here and elsewhere about the Larry Nassar investigation and chairman had a very impressive gymnast who testified before us. It was heart-wrenching listening to them and when they talked about how they were seeking accountability. And I could not help but think how brave they were to testify. The Justice Department initially declined to bring charges against the disgraced FBI agents involved in their investigation.
Patrick Leahy: (50:17)
I was concerned and as I said at the time that I’ve seen many people prosecuted for lying to FBI agents. Here you had two FBI agents who lied to FBI agents. One was fired, the other resigned. No prosecutions. Is the department now reviewing that decision not to prosecute and do you have any update with regard to that review?
Merrick Garland: (50:47)
Senator, I think heart-wrenching is not even strong enough as a description of what happened to those gymnasts and to the testimony they gave. I believe Deputy Attorney General Monaco said at her hearing that we are reviewing this matter. New evidence has come to light and that has caused review of the matters that you’re discussing.
Patrick Leahy: (51:15)
Well, I hope you will because as I said, I’ve seen so many prosecutions of somebody for lying to an FBI agent and I understand that. When an FBI agent lies to an FBI agent, they should also face the same that anybody else does. Thank you very much, Mr. Chairman.
Dick Durbin: (51:34)
Thank you, Senator Leahy.
Chuck Grassley: (51:35)
Mr. Chairman, could I put something in the record from 17 state attorney generals expressing their disagreement with the department’s October 4th memorandum and ask that that memorandum be withdrawn?
Dick Durbin: (51:48)
Without Objection. Senator Graham.
Lindsey Graham: (51:52)
Thank you, Mr. Chairman, Mr. Attorney General, are you aware of the caravan of about 3000 people approaching the state of Texas?
Merrick Garland: (52:01)
I have I read about it in the news media yesterday. I don’t know. I think it’s south of Mexico City is what I read.
Lindsey Graham: (52:08)
Yeah, apparently headed toward Texas. So what would you tell these people?
Merrick Garland: (52:17)
I would tell them not to come, but it’s the job of the Justice Department has to do with prosecution in the way in which the asylum and removal claims are adjudicated.
Lindsey Graham: (52:37)
So you would tell them not to come?
Merrick Garland: (52:40)
It depends on why they are coming.
Lindsey Graham: (52:42)
If they’re coming to make an asylum claims, what would you tell them?
Merrick Garland: (52:45)
Well, the Department of Homeland Security is an agency that’s responsible for border control.
Lindsey Graham: (52:52)
Right, I get that, but you’re the attorney general of the United States. Do you think our asylum laws are being abused?
Merrick Garland: (52:58)
The asylum laws are statutes passed by the Congress.
Lindsey Graham: (53:01)
Yeah. Do you think they’re being abused?
Merrick Garland: (53:04)
I think that question is one that has to be evaluated on a one by one basis in each-
Lindsey Graham: (53:12)
When’s the last time you’d been to the border?
Merrick Garland: (53:15)
I think a week ago, maybe 10 days ago.
Lindsey Graham: (53:17)
Did they tell you anything about the asylum claims being made, by people that are mostly economic claims, not asylum claims? Did they mention that to you?
Merrick Garland: (53:28)
I think it’s fair. I don’t recall exactly. I think it’s fair.
Lindsey Graham: (53:31)
You don’t recall being told by the border patrol that they’re overwhelmed they can’t hold the line much anymore, that we’ve had 1.7 million people apprehended? And the big magnet, the pull factor is the way the catch and release program around asylum. That didn’t stick out to you?
Merrick Garland: (53:52)
That was not a discussion that I had when I was-
Lindsey Graham: (53:55)
Who did you talk to?
Merrick Garland: (53:56)
I was at the border at Nogales and spoke to the border patrol.
Lindsey Graham: (53:59)
Yeah, I was there about six months ago. They never mentioned to you the pull factors of illegal immigration?
Merrick Garland: (54:06)
This was a review of what they were doing at the border with respect to-
Lindsey Graham: (54:10)
It’s a simple question. They never mentioned to you that they’ve got a problem with being overrun by asylum seekers?
Merrick Garland: (54:18)
I know from reading the news media that border patrol agents feel that way.
Lindsey Graham: (54:24)
I mean, it’s not about reading the paper. You were there talking to them.
Merrick Garland: (54:27)
Well, I don’t recall that. I don’t want to tell you about a conversation that I’m not sure happened.
Lindsey Graham: (54:32)
I’m just stunned that you can’t recall that. So let’s talk about Afghanistan. The Secretary Under Secretary for Defense Policy, Mr. Kale said, “While ISIS-K poses more of a short-term, external threat, Al-Qaeda could regain the ability to launch attacks outside of Afghanistan within a year or two.” Do you agree with that?
Merrick Garland: (55:02)
I agree that Al-Qaeda has always presented and continues to present a persistent threat to the United States homeland.
Lindsey Graham: (55:11)
Well, no. The question is what’s changed? You say always. Has any recent event changed the likelihood of an attack?
Merrick Garland: (55:21)
I don’t know.
Lindsey Graham: (55:22)
You don’t know that we withdrew from Afghanistan?
Merrick Garland: (55:25)
I know we withdrew. I don’t know whether the withdrawal will increase the risk from Al- Qaeda or not.
Lindsey Graham: (55:30)
So you’re the Attorney General of the United States, Secretary Wray testified openly twice that, “Due the lack of ability to have eyes and ears on the ground and the unreliability of The Taliban, that an attack on the United States within six months, a year is far more likely after a withdrawal.” You’re not aware that he said that?
Merrick Garland: (55:56)
The job of the Justice Department and the job of the FBI is to protect against those kinds of attacks in the homeland.
Lindsey Graham: (56:01)
Does it make sense that that would be a dynamic of our withdrawal? Do you trust The Taliban to police Al-Qaeda and ISIS on our behalf?
Merrick Garland: (56:11)
I do not trust the Taliban.
Lindsey Graham: (56:12)
Matter of fact, they’ve openly told us they will not work with us regarding containing the Al-Qaeda ISIS threat. Are you aware of that?
Merrick Garland: (56:23)
I think there has been inconsistent statements, but-
Lindsey Graham: (56:25)
No, they literally said that.
Merrick Garland: (56:27)
I think there have been inconsistent statements, but they’re statements are not anything that we can rely on.
Lindsey Graham: (56:32)
Well, when they tell you to your face, “We’re not going to help you.” Do you think they’re kidding? You think they really will help us, but they’re just telling us to our face?
Merrick Garland: (56:42)
I think ISIS-K, Al-Qaeda associated forces are and continue to be-
Lindsey Graham: (56:49)
We’re talking about The Taliban. The Taliban who’s told the United States they will not work with our counterterrorism forces when it comes to Al-Qaeda or ISIS. What response should we have regarding The Taliban when they say that?
Merrick Garland: (57:05)
Well, I think we have a number of different tools available.
Lindsey Graham: (57:08)
Merrick Garland: (57:09)
We have economic sanctions when they need money from the United States for humanitarian and other reasons, but this is a-
Lindsey Graham: (57:17)
So the leverage over The Taliban is whether or not we’ll give them money?
Merrick Garland: (57:21)
Senator, the job of the Justice Department is protecting, using the FBI and the National Security-
Lindsey Graham: (57:28)
The National Security Division is part of our counterterrorism operation, right?
Merrick Garland: (57:35)
It is one-
Lindsey Graham: (57:36)
Is anybody from the National Security Division briefed you about the increased likelihood of attack emanating from Afghanistan after our withdrawal?
Merrick Garland: (57:45)
Every day I’m briefed by the FBI.
Lindsey Graham: (57:47)
No, my question is specific. Has anybody briefed you about the increased likelihood of an attack emanating from Afghanistan by ISIS or Al-Qaeda because of our complete withdrawal?
Merrick Garland: (58:01)
We are worried about the risk of attack by ISIS-K-
Lindsey Graham: (58:06)
There’s one thing to be worried. Has anybody told you the likelihood of an attack is greater because of our withdrawal or not?
Merrick Garland: (58:13)
There are different views about the degrees of likelihood. That doesn’t change our posture [crosstalk 00:58:20].
Lindsey Graham: (58:21)
It doesn’t change your posture if you go from a possibility of being attacked to a six months to a year time window of being attacked.
Merrick Garland: (58:29)
We have asked for substantial additional funds for our counterterrorism operations in light-
Lindsey Graham: (58:35)
Is that in light of the withdrawal from Afghanistan?
Merrick Garland: (58:38)
It’s in light of a lot of changing circumstances in the world with respect to-
Lindsey Graham: (58:42)
Let me just put a fine point on this. Secretary Wray has told the world that, “ISIS and Al-Qaeda in Afghanistan present a threat to our homeland.” The Taliban has told us they’re not going to help us when it comes to policing these groups. The Department of Defense has said, “We’re a six months to a year away from a possible attack by ISIS and Al-Qaeda.” And just seems to me there’s not a sense of urgency about this.
Merrick Garland: (59:17)
There is a sense of urgency.
Lindsey Graham: (59:19)
What have you done specifically [crosstalk 00:59:22] I’ll end with this. Specifically, what have you done since our withdrawal in Afghanistan to deal with this new threat?
Merrick Garland: (59:29)
We have strengthened and increased the efforts of our joint terrorism task forces. I have met with them-
Lindsey Graham: (59:36)
Literally what have you done?
Merrick Garland: (59:37)
I’m telling you-
Lindsey Graham: (59:38)
Just put it in writing. Just write down what you’ve done.
Merrick Garland: (59:40)
I’ll be happy to have our staff assess [crosstalk 00:59:44].
Dick Durbin: (59:43)
Thank you, Senator Graham. Senator Whitehouse.
Sheldon Whitehouse: (59:48)
Thank you, Chairman. Welcome Attorney General Garland. Two topics. The first is executive privilege. We’ve been through a rather bleak period with regard to executive privilege. I think you could call it the anything goes period in which any assertion of executive privilege, no matter how fanciful or preposterous was essentially allowed to stand in very significant departure from the law that has been out there for years regarding executive privilege. And at the same time, that the substance of executive privilege was being expanded beyond recognition.
Sheldon Whitehouse: (01:00:39)
The procedure for evaluating executive procedure determinations was completely ignored. And this is a procedure that was established by President Reagan’s White House. So we now have a situation in which there is very substantial destruction and disarray in the area of executive privilege determinations. And as you know under the Reagan memo, the Department of Justice had a role kind of as an arbiter to be the honest broker between whatever executive agency was objecting and whatever congressional committee was pursuing information. That role completely fell apart in the last administration and it needs to be rebuilt in some predictable fashion.
Sheldon Whitehouse: (01:01:35)
The role of the courts has become highly problematic because delay is very often dispositive in these matters. And the courts are now a haven for delay with respect to executive privilege determinations. So I think we need to look at that as well. Senator Kennedy and I had a hearing on this executive privilege problem in our court subcommittee. And the Department of Justice was not represented at that hearing, but I would like to ask you to detail somebody from the Department of Justice to talk to Senator Kennedy and me about this executive privilege problem and work with us on trying to figure out a solution. Making the role of the Department of Justice more clear and transparent and perhaps embodying it in rule or regulation or law, and try to figure out how to accelerate the courts a way to get quicker decisions.
Sheldon Whitehouse: (01:02:35)
Because otherwise, as I said, delay is just dispositive and we lose not because we’re wrong, but because we’re delayed. Would you have somebody be our point of contact on that please? When I say detail, I don’t mean onto our payroll. You know I just mean as a point of contact.
Dick Durbin: (01:02:51)
Yes, absolutely. Of course.
Sheldon Whitehouse: (01:02:53)
Great. Thank you. Next, I’ve been pursuing the question of the department’s investigation on January 6 since pretty early days starting with a letter on January 8th that asked about the resources that were being deployed into this investigation and whether a task force, a prosecution task force was being set up and so forth. And then another letter, February 24th, with regard to domestic extremist violence groups’ potential role. We’ve learned a little bit more now, and we’ve learned that there was a lot of money sloshing around in the background behind the January 6 rally and behind the raid, the riot in the Capitol.
Sheldon Whitehouse: (01:03:40)
For instance, we know that the Bradley Foundation, which is a big funder gave money to Turning Point USA and to Public Interest Legal Foundation. And it gets even more interesting because Turning Point USA has a twin called Turning Point Action, 501( c)(3) 501(c)(4) combo, which also got money from the Judicial Crisis Network to support the so-called Italygate, the debunked Italygate theory. At the same time, the Public Interest Legal Foundation had as its director, Mr. Eastman, who was cranking out his fanciful memo for President Trump how to overturn the election. The Judical Crisis Network is the same thing from a corporate standpoint, as something called the Honest Elections Project, which is bringing a fanciful case in Pennsylvania regarding election fraud and the Judical Crisis Network was also funding RAGA, the Republican Attorney Generals Association, which was making robocalls to get people to come to the riot.
Sheldon Whitehouse: (01:04:48)
Now, I don’t know what’s going on behind all of that, but I am hoping that the due diligence of the FBI is being deployed not just to the characters who trespassed in the Capitol that day and who engaged in violent acts. But that you’re taking the look you would properly take at any case involving players behind the scenes, funders of the enterprise and so forth in this matter as well. And there has been no decision to say, “We’re limiting this case just to the people in the building that day. We’re not going to take a serious look at anybody behind it.”
Merrick Garland: (01:05:25)
Senator, I’m very limited as to what I can say.
Sheldon Whitehouse: (01:05:30)
I understand that.
Merrick Garland: (01:05:31)
I have a criminal investigation going forward.
Sheldon Whitehouse: (01:05:33)
Please tell me it has not been constrained only to people in the Capitol?
Merrick Garland: (01:05:36)
The investigation is being conducted by the prosecutors in the U.S. Attorney’s Office and by the FBI Field Office. We have not constrained them in any way.
Sheldon Whitehouse: (01:05:46)
Great. And the old doctrine of follow the money, which is a well-established principle of prosecution is alive and well.
Merrick Garland: (01:05:55)
It’s fair to say that all investigative techniques of which you’re familiar and some maybe that you’re not familiar with because they post-date your time. They’re all being pursued in this matter. Thank you. Thank you, Chairman.
Dick Durbin: (01:06:10)
Thank you very much. Senator Cornyn.
John Cornyn: (01:06:13)
Thank you. Good morning, Mr. Attorney General. On September the 29th, 2021 as you know, the National School Board Association wrote a letter to the president asking him to address the disruptions, the confrontations that we’ve seen that local school boards across the country. Parents expressing their concerns about not only the curriculum, but also just generally the education of their children in public schools. Would you agree that parents have a fundamental right to be involved in their children’s education?
Merrick Garland: (01:06:58)
Absolutely. This is the job of parents to be involved and this is a role of the First Amendment to protect their ability to be involved. And that’s why my memo begins by saying that we respect the right to a spirited debate about curriculum, about school policies, about anything like that.
John Cornyn: (01:07:17)
So it’s not just a good idea. It’s actually protected by the constitution of the United States. Would you agree?
Merrick Garland: (01:07:24)
John Cornyn: (01:07:27)
On October the 4th, a few days later, less than a week later after the National School board Association wrote this letter, the Justice Department issued the memo that’s already been discussed. Why did this rise to the level of a federal concern as opposed to being addressed at the local and state level?
Merrick Garland: (01:07:50)
So this arises out of repeated reports of violence and threats of violence not only with respect to school boards and school officials and teachers, but as I mentioned earlier-
Mr. Attorney General Merrick Garland: (01:08:03)
… and school officials and teachers. But as I mentioned earlier also with respect to Secretaries of State and election administrators, judges, prosecutors, senators, members of Congress. The justice department has two roles here; we assist state and local law enforcement in all ways. And we enforce federal laws, which prohibit threats of violence, by telephone, by email.
Senator John Cornyn: (01:08:36)
Well, you, as a long time federal judge with a distinguished legal career, you understand that not every crime, assuming it is a crime, is a federal crime, correct?
Mr. Attorney General Merrick Garland: (01:08:47)
Senator John Cornyn: (01:08:48)
And some of these things, unless there’s some nexus to inter-state commerce or to the federal government, they’re largely within the purview of the state and local law enforcement authorities. Correct?
Mr. Attorney General Merrick Garland: (01:09:00)
I think you’ve put that correctly. We have authority with respect to the mail, with respect to the internet, with respect to the telephone.
Senator John Cornyn: (01:09:06)
Right. Well, let me give you an example of, somebody says to the school board member, “If you do that, I’m going to meet you outside and punch you in the nose.” Is that a federal offense?
Mr. Attorney General Merrick Garland: (01:09:19)
That’s not a federal offense.
Senator John Cornyn: (01:09:20)
I agree. I agree.
Mr. Attorney General Merrick Garland: (01:09:22)
There’s nothing to agree is suggesting that it is.
Senator John Cornyn: (01:09:24)
And why in the world would you cite the National Security Division in this memo as being one of the appropriate entities of the Department of Justice to investigate and perhaps prosecute these offenses?
Mr. Attorney General Merrick Garland: (01:09:37)
So my memo itself doesn’t mention the National Security Division. It is mentioned in another memo that was released by the department. The National Security Division, like all the other law enforcement components, cooperates with and is involved in discussions about how to go forward on different kinds of matters. They were involved, for example, in the election threats. They were involved in the threats against judges and prosecutors. They were involved in the hate crimes threats cases. It’s just a natural part of our internal analysis.
Senator John Cornyn: (01:10:11)
Let me ask you: did you see the national School Board Association letter to President Biden before you issued your memorandum on October the fourth?
Mr. Attorney General Merrick Garland: (01:10:22)
Yes, I did. And now that was part of the reason, their expression at the beginning of that memorandum of-
Senator John Cornyn: (01:10:28)
And they raised some of the concerns that you voiced here today, correct?
Mr. Attorney General Merrick Garland: (01:10:35)
They raise some of them. They raised others that I don’t agree with and were not included in my memo.
Senator John Cornyn: (01:10:42)
Well, you’re aware that on October the 22nd, the National School Board Association apologized for its letter. You’re aware of that, aren’t you, sir?
Mr. Attorney General Merrick Garland: (01:10:54)
I am. But-
Senator John Cornyn: (01:10:55)
And it went on to say, “We regret and apologize for the letter. There was no justification for some of the language in the letter.” They acknowledged that the voices of parents should be and must continue to be heard and when it comes to decisions about their children’s education, health, and safety. You did not apologize for your memorandum of October the fourth, even though the National School Board Association did. Why didn’t you rescind that memorandum and apologize for the memorandum?
Mr. Attorney General Merrick Garland: (01:11:30)
Core responsibility of the Justice Department, as I said in my opening, is protecting Americans from violence and threats of violence.
Senator John Cornyn: (01:11:38)
But you just said, not every act of violence is a federal crime, correct?
Mr. Attorney General Merrick Garland: (01:11:44)
Right. And not every bit of street crime and the kind of violence that we’ve been talking about earlier today is also a federal crime. But we assist state and locals to help them in their investigations of these kinds of matters. Every single day, in non-federal matters, we are partners with our state and local partners.
Senator John Cornyn: (01:12:06)
Well, Mr. Attorney General, you’ve acknowledged that parents have a right, a constitutional right, to be heard on the education of their children in public schools. Can you imagine the sort of intimidation, the sort of bullying impact, that a memorandum from the Department of Justice would have and how that would chill the willingness of parents to exercise their rights under threat of federal prosecution? Did you consider the chilling impact your memorandum would have on parents exercising their constitutional rights?
Mr. Attorney General Merrick Garland: (01:12:46)
The only thing this memorandum is about is violence and threats of violence. And it opens with a statement-
Senator John Cornyn: (01:12:53)
But my question is, did you consider the chilling effect this would have on parents’ constitutional rights?
Mr. Attorney General Merrick Garland: (01:13:02)
To say that the Justice Department is against violence and threats of violence-
Senator John Cornyn: (01:13:06)
Did you consider the chilling effect your memorandum might have on parents exercising their constitutional rights? I think you can answer that yes or no.
Mr. Attorney General Merrick Garland: (01:13:15)
What I considered, what I wanted the memorandum to assure people, that we recognize the rights of spirited debate and-
Senator John Cornyn: (01:13:23)
And Mr. Attorney General, you’re a very intelligent and accomplished lawyer and judge. You can answer the question. Did you consider-
Mr. Attorney General Merrick Garland: (01:13:32)
I do not. I do not-
Senator John Cornyn: (01:13:32)
… the chilling effect that this sort of threat of federal prosecution would have on parents’ exercise of their constitutional rights to be involved in their children’s education?
Mr. Attorney General Merrick Garland: (01:13:42)
I don’t believe it’s reasonable to read this memorandum as chilling anyone’s rights. It’s about threats of violence and it expressly recognized the constitutional right to come make arguments about your children’s education.
Speaker 1: (01:13:57)
As senators are going back and forth for votes during this time, we’re going to have to try to keep it-
Senator John Cornyn: (01:14:02)
Let the record reflect the attorney general refused to answer the question.
Speaker 1: (01:14:06)
Let the record reflect that the Senator from Texas was allowed to go over his allotted time. Senator Klobuchar.
Senator Amy Klobuchar: (01:14:13)
Thank you very much. Just to confirm something, Mr. Attorney General, can you confirm to this committee, as you did earlier before the House Judiciary Committee, that the purpose of the memo that you were just discussing with Senator Cornyn is to have meetings to discuss whether there is a problem, to discuss strategies, to discuss whether local law enforcement needs assistance or doesn’t need assistance? Was that the purpose of it?
Mr. Attorney General Merrick Garland: (01:14:42)
Yes. I thank you for making that point, Senator. I say that in the memo, that the purpose of the the memo is to convene meetings with federal state and local tribal leaders and to facilitate discussions of strategies or addressing threats, to assess the question and to open lines of communication about those threats.
Senator Amy Klobuchar: (01:15:04)
Thank you. I want to move to some other threats. And that is a hearing that actually Senator Blunt and I had yesterday, it was a bipartisan hearing. We both called witnesses. It was before the Rules Committee. And it was with both Republican and Democratic election officials, the Attorney General of Arizona, a Republican local official in Philadelphia. And they told stories that horrified Senators on both sides of the aisle. The Philadelphia election official commissioner, local election official, had been sent letters basically saying that they were going to kill him and his three kids, naming the kids, as well as putting his house and his address out there. Katie Hobbs, the Attorney General of Arizona received a voicemail saying, “I am a hunter. And I think you should be hunted. You will never be safe in Arizona again.”
Senator Amy Klobuchar: (01:16:06)
Could you talk about what’s going on with threats against election workers? And by the way, we had the Republican Secretary of State from Kentucky talked about the fact that it has been difficult. They are losing in many jurisdictions across the country. They don’t have enough election workers because people are afraid. And we don’t have to discuss at length where these threats are coming from. I just want to have election officials. I want to have a functioning democracy. Can you provide an update on the Election Threats Taskforce and talk about the kind of threats we’re seeing to election officials?
Mr. Attorney General Merrick Garland: (01:16:48)
Yes, Senator. Very much like the circumstances with respect to the school boards, when the National School Board Association wrote us a letter advising of threats of violence and violence. Earlier this year, we received communications from the National Association of Secretaries of State and the National Association of Election Administrators raising concerns about threats of violence and violence in that area. Soon thereafter, I met, virtually unfortunately because of the pandemic, with a large number of election administrators and Secretary of States where they recounted the kind of threats that you’re talking about.
Mr. Attorney General Merrick Garland: (01:17:35)
And that led us to establish a task force, which again, coordinated efforts between the federal law enforcement agencies, US Attorney’s offices and state and local law enforcement across the country. It is the case that many of those kinds of threats can be handled by state and local law enforcement, and should be, where they’re capable of doing that. But the federal government has an important role, as you say, in protecting our democracy and protecting against threats against public officials. And so that is an ongoing task force evaluating threats in that particular area.
Senator Amy Klobuchar: (01:18:15)
Thank you. Thank you. To another area, as Chair of the Competition Policy and Antitrust Subcommittee, I’ve urged the Justice Department to make antitrust enforcement a top priority. We recently had a nominations hearing for Jonathan Kanter. That seems to be moving ahead and I support the division’s enforcement efforts, including I know they’re preparing for 18 trials, which is the most in decades. And could you talk about the antitrust budget? Senator Grassley and I have passed a bill with the support of the members of this committee to add some additional resources to the antitrust division. Senator Lee and I have held numerous, very informative hearings about various issues related to antitrust. Could you talk about what’s happening there?
Mr. Attorney General Merrick Garland: (01:19:02)
Well, the Justice Department is very much committed. As I said, it’s a key focus of our attention. And I trust enforcement because it’s essential for the consumer wellbeing and for the wellbeing of our citizens. We have aggressively moved in this area. We’ve already stopped a merger of two of the top three largest international insurance brokers. We have, as you say, continued… We are in the middle of trials, criminal trials, with respect to price fixing and market allocation. We have the ongoing matter involving exclusionary conduct in the Google case. We have investigations and attention in many areas from healthcare to agriculture, to allocations within labor markets.
Senator Amy Klobuchar: (01:19:55)
Could I just ask you, you were talking about the criminal cases, could giving the antitrust agencies authorities to seek substantial civil fines for Sherman Act violations help enforcers deter anti-competitive conduct?
Mr. Attorney General Merrick Garland: (01:20:09)
Senator Amy Klobuchar: (01:20:10)
Would civil fines, would that be helpful?
Mr. Attorney General Merrick Garland: (01:20:15)
Yes. Having the ability to seek civil fines as well would be helpful, of course. If we succeed in a criminal case, the follow on civil cases become quite easy, as I know from my own antitrust practice. But we are down in the number of attorneys in the antitrust division considerably, and we need an expansion. That’s why we’ve asked for a 9% increase, a total increase of 201 million in our FY22 budget. The number of mergers has skyrocketed and the number of people we have in the division evaluating those mergers has decreased and we need help in that regard.
Senator Amy Klobuchar: (01:20:58)
Thank you. And I really appreciate that bipartisan work we’ve done in this committee on that front. Last question. In July, the Department announced that it was adopting a new policy that restricts the use of compulsory process to obtain information from members of the news media acting within the scope of news gathering activities, an issue we discussed, you and I discussed, at your confirmation hearing. As a part of that announcement, you asked the Deputy Attorney General to undertake a review process to further explain, develop, and codify the policy. Can you provide an update on the steps the Deputy Attorney General has taken to ensure that the new policy is implemented?
Mr. Attorney General Merrick Garland: (01:21:37)
Yeah. So issuing a memo is good and it controls the Justice Department now. The next step, though, is to have a regulation which will give us some greater permanence. And the next step after that would be legislation, which Justice Department supports. On what the Deputy Attorney General is doing now is trying to formulate the general outlines of my memorandum into a regulation, which can replace the current pretty detailed regulations that we have. That’s what she’s involved in right now.
Senator Amy Klobuchar: (01:22:10)
Excellent. Thank you very much.
Mr. Chairman: (01:22:13)
Mr. Attorney General, we had promised you a five minute break at 11:30. We can either take it right now or I can have Senator Lee and Coons ask. Up to you.
Mr. Attorney General Merrick Garland: (01:22:22)
I’m happy to go ahead with Senator Lee and Coons.
Mr. Chairman: (01:22:24)
Let’s proceed. Senator Lee.
Senator Lee: (01:22:27)
Thank you, Mr. Chairman. Thank you, Attorney General Garland for being here. Mr. Attorney General, I have been concerned in recent weeks by some steps that have been taken by the Biden administration, steps that I fear represent a significant amount of overreach. Seven weeks ago, you had President Biden giving a speech in which he promised to enlist the assistance of corporate America, all of corporate America, with more than 99 employees in firing people who don’t get vaccinated. I’m vaccinated; I’ve encouraged everyone close to me to get vaccinated. I don’t think it’s the role of the federal government to do that. He’s threatening to cripple employers by imposing absolutely punishing fines on them. And they’re now doing his dirty work. Even before, this act of overreach has been reduced to an order that could be litigated, litigation that I believe would end the say the same way Youngstown Sheet & Tube v. Sawyer ended.
Senator Lee: (01:23:29)
And now, about a month after that, we had your October 4th memorandum in which you direct the Department of Justice and the FBI to intervene in what, as far as I can tell, is a state and local issue; that is, a series of issues involving how parents advocate for their children with their local school boards. And I also believe that doing that, and doing that through the Department of Justice, doing it in the way that you did it, directing the assistance, enlisting the help of all 94 US Attorneys, therefore every satellite office of the Department of Justice nationwide, you do it in a way that I think has a natural tendency to chill free speech in this area.
Senator Lee: (01:24:19)
I question seriously the role of the federal government in protecting people at local school board meetings from their neighbors. It is, after all, most of the time, state law, not federal, that’s at play when there is criminal activity. Federal crimes are a subset of crimes generally. So you’ve referenced several times today that your letter covered only violence and threats of violence. And yet the very opening line of your memo says, “In recent months, there’s been a disturbing spike in harassment, intimidation, and threats of violence against school administrators, school board members, teachers, and staff who participate in the vital work of running our nation’s public schools.” You refer to this over and over again, and that’s a pretty broad statement. I believe this has a tendency to chill free speech, free speech that is exercised at the state and local level, typically by neighbors, by parents, to local school boards. In hindsight, would you agree that a natural consequence of your memo could be chilling free speech, protected speech, by parents protesting local school board policies?
Mr. Attorney General Merrick Garland: (01:25:41)
Senator, the memo is aimed only at violence and threats of violence. It states, on its face, that vigorous debate is protected. That is what this is about, and that is all this is about.
Senator Lee: (01:25:55)
What about harassment and intimidation? Are those federal crimes?
Mr. Attorney General Merrick Garland: (01:25:59)
They are federal crimes.
Senator Lee: (01:26:02)
Are you referring to witness tampering, intimidation under 18 USC 1512 or-
Mr. Attorney General Merrick Garland: (01:26:07)
The 18 USC 2261A which makes it a crime with intent to injure, harass, or intimidate, placing a person in reasonable fear of serious bodily injury through communications over the internet. Likewise, 47 USC 223A, making telephones calls with intention to harass.
Mr. Attorney General Merrick Garland: (01:26:29)
Now, I want to be clear though, that those only are within… I take your point. Those are only within what is permitted by the 1st Amendment. And the Supreme Court has been clear about that too. In the Virginia v. Black case, the court explained when intimidation is not protected by the constitution. And that is when it is made with the intent of placing the victim in fear of bodily harm or death. So that’s what we’re concerned about here.
Senator Lee: (01:26:58)
Well, and one of the things that concerns me is we’ve got 17 Attorneys General, led by Attorney General Todd Rokita in Nevada and joined by a total of 17 Attorneys General, including Sean Reyes, the fantastic Attorney General of the State of Utah. And they’ve weighed in and they’ve said there is not a barrage of accusations. There’s no unusual flood of accusations of threats of violence against school board members. Nothing unusual, nothing that they can’t handle at the state and local level. Normally things like this against state and local officials involving state and local government entities like school boards are not federal.
Senator Lee: (01:27:41)
Now, in response to a series of questions before the House Judiciary Committee, including some questions asked by Congressman Jim Jordan from Ohio, you were asked your factual predicate for your October 4th memorandum and for your conclusions in this regard. You answered before that committee that your factual predicate for that was the October 22nd memorandum from the National School Board Association. The National School Board Association has been mentioned, has since withdrawn that memo. Yet you said that was the factual predicate. Given that that was the factual predicate and that it’s rescinded its memo, saying that there was no justification for some of the language that they used in that letter, will you rescind your memo?
Mr. Attorney General Merrick Garland: (01:28:29)
Senator, best of my recollection, I said that the impetus for the letter for my memorandum was that letter and also reports of this kind of activity.
Senator Lee: (01:28:41)
Mr. Attorney General Merrick Garland: (01:28:42)
I said, again, that at the time that they were news reports that had been published. And I think that some of the other Senators here have described some of those news reports and we’ve certainly seen subsequently more news reports and more statements by board members of threats to kill them.
Senator Lee: (01:29:00)
Congressman Chip Roy of Texas said, raised in that same hearing, the issue of a 14 year old girl in a school bathroom being sexually assaulted in Loudoun County. And you indicated in response to that, that you weren’t aware of that. And in the six days before you testified before the House Judiciary Committee, have you become familiar with the publicly reported details of that case?
Mr. Attorney General Merrick Garland: (01:29:32)
Yes, I have read about the case. Yes.
Senator Lee: (01:29:35)
If you were unfamiliar with the supposed instances of threats of violence and intimidation that the National School Board Association cited in the letter, then how did you determine that intervention by the FBI and the DOJ was necessary, that that was the right approach?
Mr. Attorney General Merrick Garland: (01:29:49)
So the approach in the letter is to meet with local law enforcement. That’s what we’ve asked for, is to meet, to assess the situation, to see what their needs are, to strategize, and to open lines of communication. Now I’m hopeful that many areas of local law enforcement will be well able to handle this on their own. But this is what the Justice Department does every day. We consult with our local and state partners and see whether assistance is necessary. And of course, we continue to have our own federal responsibilities with respect to communications by the internet and social media, on telephone, through through the mail. But I’m hopeful that we will not be needed in this area; that our state and local partners will be able to handle these threats.
Senator Lee: (01:30:42)
My time’s expired. I just want to state for the record, as I closed, that my staff and I went through every news source raised by the National School Board Association. There was no explicit death threat. And I choose here to reiterate my concern that not every outburst or expression of concern by neighbors, among neighbors, at a local school board meeting warrants a federal investigation. Certainly doesn’t warrant the involvement of 94 US Attorneys in a way that threatens, intimidates, intents inevitably, to chill first amendment activity. Thank you, Mr. Chairman.
Mr. Chairman: (01:31:23)
Thank you, Senator Lee. Senator Coons.
Speaker 2: (01:31:25)
Mr. Chairman, one more request-
Mr. Chairman: (01:31:26)
Just one second.
Speaker 2: (01:31:28)
… for introduction of a letter from another Attorney General on rescinding the memorandum. This one from Ohio Attorney General Yost.
Mr. Chairman: (01:31:37)
Without objection. Senator Coons.
Senator Coons: (01:31:39)
Thank you. Chairman Durbin, Ranking Member Grassley. Thank you, Attorney General Garland. As you well know, oversight of the executive branch is an important part of the duties of this body. And so I just want to commend the chair and ranking for prioritizing this and you for your time here. While at times challenging, this process is key to fulfilling our constitutional responsibilities. And we know that we have substantial work to do to restore confidence in our democratic institutions. And I think your engagement here today is a key part of that. So thank you for your diligent and thorough answers to the questions that are being presented today.
Senator Coons: (01:32:15)
Let me just start with a question about some characterizations that are being made here and in other settings about the trajectory of the Biden administration, in terms of responding to violent crime. Some are asserting that the Department of Justice is focused on defunding the police or hamstringing or undermining law enforcement.
Senator Coons: (01:32:39)
As an appropriator, my impression, instead, is that the President requested an additional 388 million for the cops hiring program, an increase of 200 million over the previous year. The CJS probes that was just posted includes a hundred million dollars for new community violence intervention programs. And the Biden ministration ensured that over 350 billion previously available grants under the CARES Act could be used to hire more law enforcement personnel at the state and local level, even beyond pre-pandemic levels.
Senator Coons: (01:33:13)
Could you just speak briefly to how these different programs and initiatives are in fact designed to prevent violent crime, designed to support our state and local partners, and how these investments could work to assist support and protect law enforcement in conducting their obligations and duties in our communities in an appropriate way?
Mr. Attorney General Merrick Garland: (01:33:34)
Yes, Senator. I thought that I would just add one more pile of requests there, which was for over 500 million for the [inaudible 01:33:42] grants, which also go directly to state and local law enforcement. So, yes, look, we are very concerned about violent crime. This is an area which is primarily, again, the responsibility of state and local law enforcement, but nonetheless has bi-partisan support and has had this since the 1990s, or federal government involvement to help prevent. As a consequence, we have historically since then, and accelerating now, latched up with our state and local partners and taskforces and joint organizations in every city and every community in the United States to help our local law enforcement protect their communities against violence. We also have federal, obviously, laws which help us in this regard. And these include money that we’ve requested for DEA, for ATF, for the FBI, for the Marshals Service, all increases to allow us to support these circumstances.
Senator Coons: (01:34:54)
And as we’ve discussed before, my hometown is one where I was responsible for local law enforcement when I was an elected county official. We appreciate these additional investments and the partnership with federal law enforcement and think it’s an important part of our work to combat violent crime all over this country.
Senator Coons: (01:35:11)
I want to turn to immigration. You’ve been asked by a number of my colleagues about it. There seem to be some who think that anything we do to help migrants will necessarily make the border less secure, more chaotic. But I disagree. I think it is possible for us to reduce multi-year court backlogs, improve access to counsel, improve the humanitarian aspects of handling migrants and build a system that is orderly, consistent with rule of law, more humane, and more fair.
Senator Coons: (01:35:41)
I’d love to understand how we in Congress can help you through legislation as well as through funding to reduce immigration court backlogs, improve access to counsel, improve the process, and also contribute to securing our Southern border. Do you have thoughts you care to share briefly, or would you be willing to share those with us in writing?
Mr. Attorney General Merrick Garland: (01:36:02)
I’ll be happy to have the Department get back to you in writing. But I will say we have requested additional funds so that we can put an additional 600 personnel, including 100 immigration judges, into our Executive Office of Immigration Review so that we can do the kind of acceleration that you’re talking about. We’ve made a number of internal changes with respect to the way cases are handled in order to accelerate that. But we do need more money in that respect, and I’ve made that plea already to the Appropriations Committee, but be happy to get back to you in more detail [crosstalk 01:36:36].
Senator Coons: (01:36:35)
And just superficially, is it your understanding that when applicants for asylum have access to counsel or to legal counseling, the odds that they return for their final disposition and the odds that they will have a fair and appropriate process go up?
Mr. Attorney General Merrick Garland: (01:36:52)
Well, I certainly think the odds that they have a fair and appropriate process would go up. It seems quite logical that the odds of them returning or their proceedings would go up because they would know they would have that opportunity. I don’t know any of the statistics about that.
Senator Coons: (01:37:07)
Understood. Intellectual property is long a concern of mine. I just briefly wanted to mention. Back in December of 2019, DOJ Antitrust issued a statement jointly with NIST and the Department of Commerce and the US Patent and Trademark Office, recognizing that when a patent involved in voluntary standard setting efforts, these are typically global efforts around critical communications technologies and others, that all legal remedies should be available when a patent is infringed. And that policy ensures competition, incentivizes participation in standard setting activities, and plays a vital role in bringing the benefits of innovation to Americans. And it’s also critical for our global competition with China and other countries.
Senator Coons: (01:37:49)
I’m hearing DOJ has imminent plans to abandon that position, or reverse it, and replace it with one that does not embrace the availability of all remedies. Given that there are nominees in process likely now for both AAG for Antitrust and now for Patent and Trademark Office, would you commit to waiting until there are Senate confirmed leaders in these positions before a change in policy?
Mr. Attorney General Merrick Garland: (01:38:16)
I would love to have Senate confirmed leadership in the antitrust division and everything you can do to make that go swifter would be greatly appreciated. I have to say this is a bit outside the area of my own expertise, but I assume any such thing would have to come through me before it would be announced. Nothing like that has come to my office yet.
Senator Coons: (01:38:38)
Well, I’d welcome the opportunity to stay in communication with it. My last quick question relates to the Office for Access to Justice, which has in the past, under a previous administration, been a leader in debtors’ prisons and the criminalization of poverty. Tomorrow, this committee will hold a vote on the Driving for Opportunity Act, a bi-partisan bill I’m leading with Senator Wicker and a number of members of this committee. And it will make progress in terms of ways in which a decades old practice of stripping people of their driver’s licenses for unpaid court-related fees or fines, which advances the criminalization of poverty, will be reversed.
Senator Coons: (01:39:21)
Could you say just a moment about the plans for the Office of Access to Justice and your view about the importance of continued progress in criminal justice?
Mr. Attorney General Merrick Garland: (01:39:30)
Yes, Senator. Equal justice under law is inscribed in the pediment above the Supreme Court. And it’s a core principle of American democracy. But you can’t have equal justice under law if you don’t have access to justice. And for much of my career as a judge, and even before that, even before being in the Justice Department, and in addition, even as a lawyer in private practice, I’ve been concerned about getting access to attorneys so that people who need help with their individual circumstances can have assistance.
Mr. Attorney General Merrick Garland: (01:40:09)
The President issued an executive order on this. And there is a report. I’m not positive whether it’s public, but I believe it is, with respect to re-invigorating the Round Table, whose job it is to address this question, of which I believe I’m a Co-Chair. I asked for a review within the Department and we have determined that we should stand up once again an independent within the office of Access to Justice. We have enough money to do that in the very short term, not to talk too much about requests for money, but our FY22 budget request does ask for a significant appropriation so that we can stand up a staff and get that office going.
Senator Coons: (01:40:56)
Great. Thank you, Mr. Attorney General. Thank you, Mr. Chairman.
Mr. Chairman: (01:40:58)
Thank you, Senator Coons. The committee is going to stand in recess for five minutes. When we return, Senator Cotton is up, if he is here. If not, Senator Kennedy.
Chairman Durbin: (01:53:47)
Chairman Durbin: (01:53:47)
Senate Judiciary Committee will resume. Senator Cotton is recognized.
Senator Cotton: (01:53:52)
Judge Garland, on May 11th, Tony Fauci testified that his agency, “Has not ever and does not now fund gain of function research in the Wuhan Institute of Virology.” Last week, his agency admitted that they had in fact funded Gain of Research in the Wuhan Institute of Virology. Are you investigating Tony Fauci for lying to Congress?
Attorney General Garland: (01:54:14)
So, the long time rule in the Justice Department, not to discuss pending investigations, potential investigations.
Senator Cotton: (01:54:22)
Okay, that’s fine. That’s fine. Do you believe Tony Fauci was truthful, when he said his agency had never funded gain of function research?
Attorney General Garland: (01:54:31)
This is outside of my scope of knowledge.
Senator Cotton: (01:54:32)
Okay. Let’s turn to your outrageous directive, siccing the feds on parents at school boards across America. When you crafted that October 4th memo, did you consult with senior leadership at the FBI?
Attorney General Garland: (01:54:47)
My understanding was that the memo or the idea of the memo had been discussed with the FBI before it [crosstalk 01:54:53]
Senator Cotton: (01:54:53)
Did anyone at the FBI express any doubt or disagreement or hesitation with your decision to issue that memo?
Attorney General Garland: (01:55:01)
No one expressed that to me.
Senator Cotton: (01:55:03)
Attorney General Garland: (01:55:03)
To me, no one expressed that to me, no.
Senator Cotton: (01:55:07)
Because a lot of them have contacted us and they said they did Judge.
Attorney General Garland: (01:55:10)
Senator Cotton: (01:55:11)
A lot of FBI officials have contacted my office and said that they opposed this decision.
Attorney General Garland: (01:55:15)
Well, I doubt any of them spoke to me about it because I didn’t speak to no one made that comment to me.
Senator Cotton: (01:55:20)
All right. All right. Judge, you’ve repeatedly dissembled this morning about that directive. For instance, about the national security deficient, Chuck Grassley asked you a very simple question, why you would sic the National Security Division of the Department of Justice on parents. John [Cornyn 01:55:39] asked you the same thing. You said, it wasn’t in your October 4th memorandum, it was in another office’s memorandum. It wasn’t another officer’s memorandum Judge, it was in a press release from your office, right here in front of me, October 4th, 2021 for immediate release. You’re going to create a task force that includes the National Security Division. What on earth does the National Security Division, have to do with parents who are expressing disagreements at school boards?
Attorney General Garland: (01:56:04)
Nothing in this memorandum or any memorandum, is about parents expressing disagreements with their school boards. The memorandum makes clear, that parents are entitled and protected by the First Amendment to have vigorous debates. The Justice Department is not interested in that question at all. [crosstalk 01:56:24]
Senator Cotton: (01:56:24)
Okay. So, even in that case, what is the National Security Division, Judge? These are the people that are supposed to be chasing jihadists and Chinese spies. What does the National Security Division have to do with parents at school boards?
Attorney General Garland: (01:56:36)
This is not, again, about parents at school boards, this is about threats of violence.
Senator Cotton: (01:56:42)
Okay. Let me turn to that because you’ve said that phrase repeatedly throughout the morning. Violence and threats of violence, violence and threats of violence, we’ve heard it a dozen times this morning. As Senator Lee pointed out, the very first line in your October 4th memorandum refers to harassment and intimidation. Why do you continue to dissemble in front of this committee that you are only talking about violence and threats of violence, when your a memo says harassment and intimidation?
Attorney General Garland: (01:57:08)
Senator, I said in my testimony that it involved other kinds of criminal conduct and I explained to Senator Lee that the statutory definitions of those terms and the constitutional definitions of those terms, involve threats of violence.
Senator Cotton: (01:57:24)
Okay, let’s look at one of those statutes you cited. Section 223, that statute covers the use of not just telephones, but telecommunications devices to annoy someone. So, are you going to sic your US attorneys and the FBI on a parents group, if they post on Facebook, something that annoys a school board member, Judge?
Attorney General Garland: (01:57:47)
The answer to that is, no. And the provision that I was particularly drawing to his attention was 2261-A, which was to engage [crosstalk 01:57:55]
Senator Cotton: (01:57:54)
I wasn’t talking about 2261-A. I know you mentioned that, you also mentioned 223, that’s what I mentioned.
Attorney General Garland: (01:57:58)
Yeah, but the only [crosstalk 01:58:00].
Senator Cotton: (01:58:00)
Judge, you also told Senator Klobuchar that this memorandum was about meetings and coordination. Meetings and coordination.
Attorney General Garland: (01:58:06)
Senator Cotton: (01:58:07)
Well, I have in my hand right here, that I’ll submit to the record, a letter from one of your US attorneys to all of the county attorneys, to the attorney general, to all sheriffs, to the school board association of his state, in which he talks about federal investigation and prosecution. It’s not about meetings, not about coordination, it’s about federal investigation and prosecution. Did you direct your US attorneys to issue such a letter?
Attorney General Garland: (01:58:33)
I did not. I have not seen that letter. [crosstalk 01:58:36]
Senator Cotton: (01:58:36)
It’s got three pages. It’s got three pages, [crosstalk 01:58:39] a spreadsheet, about all the federal crimes that a parent could be charged with, to include the ones you cited. [crosstalk 01:58:46] Did main Justice make this spreadsheet, Judge?
Attorney General Garland: (01:58:48)
I don’t have any idea. My memorandum speaks specifically about setting up meetings and I’ll just read it again. Convene meetings-
Senator Cotton: (01:58:56)
Judge, we’ve all read your memorandum.
Attorney General Garland: (01:58:58)
Then you know what-
Senator Cotton: (01:58:58)
We’ve also heard you dissemble about your memorandum. I have, in the record now shows, one of your US attorneys sending out a letter about federal prosecution investigation enlist in detail, the federal statutes for which you could be prosecuted. Judge, you’ve talked a lot about intimidation and harassment. Have you issued a memorandum like your October 4th memorandum, about the Black Lives Matters rights from last summer?
Attorney General Garland: (01:59:24)
You’re talking about the summer of 2020? In the summer of 2020, there were [crosstalk 01:59:28].
Senator Cotton: (01:59:27)
A lot of crimes committed, people haven’t been [crosstalk 01:59:29].
Attorney General Garland: (01:59:29)
Prosecutions, and they were under the previous administration. They had a lot of prosecutions.
Senator Cotton: (01:59:32)
Okay, Judge, what about this? It is no doubt, even though parents at school boards, aren’t within federal jurisdiction, there’s no doubt that federal officials are. You keep saying senators, have you started an investigation into the harassment of Senator Kyrsten Sinema in a bathroom, because she won’t go along with the democratic party’s big tax and spend agenda. That is a sitting United States senator being harassed in a bathroom.
Attorney General Garland: (01:59:57)
I don’t know whether the Senator has referred the matter to the Justice Department or not.
Senator Cotton: (02:00:07)
You’ve cited as the basis for that directive, the National School Board Association’s letter of September 29th. Was that directive being prepared before September 29th, before the School Board Association letter was issued?
Attorney General Garland: (02:00:20)
I don’t believe so. Certainly, I didn’t have any idea.
Senator Cotton: (02:00:23)
So, it was only prepared to at … Okay, I think that answers the question.
Attorney General Garland: (02:00:25)
I already answered that question before.
Senator Cotton: (02:00:26)
So, you keep citing the school board letter and news reports.
Attorney General Garland: (02:00:29)
Senator Cotton: (02:00:30)
One of the news reports cited in that letter, which you presumably mean is from Loudon County, Virginia.
Attorney General Garland: (02:00:35)
No, that is not what I was talking about.
Senator Cotton: (02:00:39)
You keep citing news reports and that’s the most prominent news report that anyone in America has seen. That refers to Scott Smith, whose 15 year old daughter was raped, she was raped in a bathroom by a boy wearing girl’s clothes. And the Loudon County School Board covered it up, because it would have interfered with their transgender policy during Pride Month. And that man, Scott Smith, because he went to a school board and tried to defend his daughter’s rights, was condemned internationally. Do you apologize to Scott Smith and his 15 year old daughter, Judge?
Attorney General Garland: (02:01:13)
Senator, anyone whose child was raped is a most horrific crime I can imagine and is certainly entitled and protected by the First Amendment, to protest to their school board about that.
Senator Cotton: (02:01:26)
But he was cited by the School Board Association-
Attorney General Garland: (02:01:28)
That’s fine, but that’s not-
Senator Cotton: (02:01:30)
As a domestic terrorist, which we now know, that letter and those reports were the basis for your …
Attorney General Garland: (02:01:33)
No, Senator. That’s wrong.
Senator Cotton: (02:01:35)
This is shameful. Judge, this is shameful. This testimony, your directive, your performance is shameful.
Attorney General Garland: (02:01:40)
Senator Cotton: (02:01:41)
Thank God, you are not on the Supreme Court. You should resign in disgrace, Judge.
Chairman Durbin: (02:01:49)
General Garland, do you want to complete your answer on?
Attorney General Garland: (02:01:52)
I wasn’t sure there was a question there. But let me be clear, that the news reports I’m talking about were not the news reports in that letter. They were other news reports that everybody here has heard about, subsequent reports that everybody has heard about. There is nothing in this memorandum, and I wish if senators were concerned about this, they would quote my words. This memorandum is not about parents being able to object in their school boards. They are protected by the First Amendment, as long as there are no threats of violence, they are completely protected. So, parents can object to their school boards about curriculum, about the treatment of their children, about school policies, all of that is 100% protected by the First Amendment. And there is nothing in this memorandum contrary to that. We are only trying to prevent violence against school officials. Thank you.
Chairman Durbin: (02:02:53)
Senator Hirono: (02:02:53)
Thank you, Mr. Chairman. I’d like to insert into the record, the Washington Post article by Salvador Rizzo, that is entitled The False GOP Claim That the Justice Department is Spying on Parents at School Board Meetings. I would like to insert this article into the records.
Chairman Durbin: (02:03:10)
Senator Hirono: (02:03:15)
It’s good to see you, Mr. Attorney General.
Attorney General Garland: (02:03:17)
Thank you, Senator.
Senator Hirono: (02:03:17)
I will quote from the first sentence of your memo. In recent months, there has been a disturbing spike in harassment, intimidation and threat of violence against school administrators, board members, teachers, and staff, who participate in the vital work of running our nation’s public schools. This is a fact, we have all seen the news coverage of people actually threatening to hurt school board members for going about their jobs. That is a fact. So, when I listen to my Republican colleagues going on about the intent of this memo, I’m again reminded of the … I’ll take the position to not believe, that we should all not believe what we see with our own eyes. It’s like characterizing the January 6th insurrection, as just a bunch of tourists visiting the Capitol. Give me a break.
Senator Hirono: (02:04:15)
We now see a Supreme court weaponized to support the position of the most conservative causes. We see a rush to the Supreme Court on cases involving abortion rights, gun rights, LGBTQ rights, voting rights, union rights. Thank you Mr. Attorney General, for making the protection of our civil rights, one of the department’s core priorities.
Senator Hirono: (02:04:40)
I want to turn to the need to combat hate crimes. It’s been about five months since president Biden signed the COVID-19 Hate Crimes Act into law. And I sent a letter to you last month, requesting an update on the department’s implementation of the act and its efforts to reduce hate crimes and hate incidents. Yet, another thing that we have all seen with our own eyes, the rise in hate crimes during this period of the pandemic. Mr. Attorney General, would you briefly describe the actions that you and the department have taken thus far to implement the COVID-19 Hate Crimes Act?
Attorney General Garland: (02:05:14)
Thank you Senator. Even before the act, I had issued a memorandum within the department to assess how we were dealing with hate crimes and to better organize the manner in which we were doing that. And then, we’re grateful that the Congress passed the COVID-19 Hate Crimes Act. Since then, I issued a subsequent memorandum based on what the associate attorney general and the deputy attorney general had provided, in terms of the department’s progress under that act. And I believe we have now everything that was required of us in the act, but that of course, doesn’t mean we’ve solved hate in America, but we have done the things that the statute has asked us to do. I’ve appointed a coordinator for all hate crimes matters. I’ve appointed a expediter in the Civil Rights Divisions criminal section, to expedite our investigations. We’ve established a task force, federal law enforcement and US attorney’s offices meeting with state and local law enforcement, to coordinate, to explain, to develop strategies with respect to hate crimes.
Attorney General Garland: (02:06:25)
We’ve had trainings for state and local territorial and tribal law enforcement, to help them recognize these circumstances. We’ve established a language coordinator, a facilitator, so that our memorandum and press releases in these regards can be translated appropriately. And we’ve asked for a considerable additional funds in our appropriations, so that we may give more money to state and locals, tribal and territorial law enforcement to assist in these matters.
Senator Hirono: (02:07:01)
I appreciate the efforts you have taken. And I think that this will result in, of course, some factual information about the extent of hate crimes and incidents in our country, so that we can better prevent and prosecute as appropriate. You’ve been asked before, I think in the House hearing, about the China Initiative. If we end the China Initiative, will we no longer go after economic espionage and IP threat by China?
Attorney General Garland: (02:07:37)
There are two issues here that we always have to keep uppermost in our mind. One is that, the People’s Republic of China is a serious threat to our intellectual property. They represent a serious threat with respect to espionage. They represent a serious respect with respect to cyber incursions and ransomware in the United States. And we need to protect the country against this and we will, and we are bringing cases in that regard. The other thing that always has to be remembered, is that we never investigate or prosecute based on ethnic identity, on what country a person is from or came from or their family [inaudible 02:08:36]
Senator Hirono: (02:08:35)
Thank you. I’m sorry-
Attorney General Garland: (02:08:37)
That’s all right.
Senator Hirono: (02:08:38)
Were you done?
Attorney General Garland: (02:08:38)
Senator Hirono: (02:08:40)
The reason I ask about the China Initiative, is under the previous administration, which instituted the so-called initiative, that there appears to have been racial profiling, which basically ruined the lives of a number of Chinese people. I want to give an example. The Justice Department, previous administration, dragged Dr. [foreign language 02:09:01] Ming Hu, a professor at the University of Tennessee through a two-year espionage investigation, causing him to lose his job. At the end of the investigation, DOJ lacked any evidence of espionage and instead charged Dr. Hu with wire fraud and false statements, for apparently failing to disclose his association with a Chinese university on a NASA grant application. His trial ended in a mistrial, after which a juror said she was, “Pretty horrified by the lack of evidence.” When DOJ sought a new trial, the district court granted Dr. Hu’s motion for an acquittal, finding no harm to NASA and no evidence that Dr. Hu knew NASA’s funding restriction applied to Chinese universities.
Senator Hirono: (02:09:46)
So I would say, from your answer, that regardless of whether we have something called the Chinese Initiative, you have no intention of not paying attention to espionage and other bad acts by China. So, I’d say we should get rid of this, this what? This initiative, that results in racial profiling. Thank you, Mr. Chairman.
Chairman Durbin: (02:10:07)
Senator Kennedy: (02:10:13)
Good morning, General.
Attorney General Garland: (02:10:14)
Senator Hirono: (02:10:17)
There’s a lot that I couldn’t get to.
Senator Kennedy: (02:10:19)
General, I’m looking at this letter.
Speaker 3: (02:10:21)
They’re almost certainly going to ask [crosstalk 02:10:23].
Senator Kennedy: (02:10:23)
From one of your-
Speaker 3: (02:10:25)
If you want [crosstalk 02:10:25].
Senator Kennedy: (02:10:25)
Speaker 3: (02:10:26)
Will come back and ask questions.
Senator Kennedy: (02:10:27)
From October this year, where he wrote to the Montana Attorney General, all the county attorneys and all the sheriffs in his jurisdiction, suggesting ways that parents could be prosecuted for appearing at school board meetings in accordance with your directive. And one of the suggestions made by your US attorney is, parents can be prosecuted for repeated telephone calls. Not threatening anyone, just on the theory that repeated telephone calls could be harassment. Really?
Attorney General Garland: (02:11:30)
Senator, I haven’t seen that memorandum. I’ve tried to express as clearly as I can here.
Senator Kennedy: (02:11:36)
I heard you General, but this was one of your US attorneys.
Attorney General Garland: (02:11:41)
Again, I haven’t seen-
Senator Kennedy: (02:11:43)
Isn’t that special? General, you’re just a vessel. Well, let me tell you what I’m talking about. With respect to the National School Boards Association letter, you’re just a vessel, aren’t you?
Attorney General Garland: (02:12:03)
I’m not sure what you mean by that. But I signed this memorandum, I worked on this memorandum and this memorandum is my memorandum. [crosstalk 02:12:10]
Senator Kennedy: (02:12:10)
Well, let me tell you what I mean. We know that the National School Board Association was upset because parents were coming to school board meetings to object to the teaching of critical race theory. We know, that in drafting the letter, the National School Board Association collaborated with the White House for several weeks, they worked on it together. And we know that the National School Board Association, once the White House and the association were happy with the letter, the National School Board Association sent the letter to the White House. And the white house promptly called you and said, “Sic the FBI on parents at school board hearings.” And that’s what I mean, the White House is the prophet here, yours is the vessel, isn’t that correct?
Attorney General Garland: (02:13:10)
Senator, I did not speak with anyone from the White House, while I worked on this memorandum. This memorandum reflects my views, that we need to protect public officials from violence and threats of violence, while at the same time, protecting parents’ ability to object to policies [crosstalk 02:13:29].
Senator Kennedy: (02:13:28)
I get that, I’ve heard your testimony. Were you worried that you would be fired if you didn’t issue the memorandum?
Attorney General Garland: (02:13:37)
Senator, I’m not … I decided on this memorandum on my own. I don’t care, I said from the very beginning, I’ve taken this job to protect the Department of Justice, to make independent determinations, with respect to prosecutions and investigations and I will do that. I’m not concerned about [crosstalk 02:13:59]
Senator Kennedy: (02:13:59)
Okay, sorry to interrupt General, but I don’t have much time. Now, when you got the letter from the White House, that prompted your memorandum to give the FBI new duties and making sure our parents aren’t dangerous, domestic terrorists. You didn’t investigate before you issued your memorandum, the incidences cited in the letter, did you?
Attorney General Garland: (02:14:29)
Look, I took a statement by the National Association, which represents thousands of school board members, when they said that they were facing and threats of violence. And when I saw on the news media reports [crosstalk 02:14:43].
Senator Kennedy: (02:14:43)
Yeah, but you didn’t investigate the incidents in the letter, did you?
Attorney General Garland: (02:14:47)
No, this is the first step. This is an assessment step that comes before investigations. [crosstalk 02:14:53].
Senator Kennedy: (02:14:53)
Right. Before you issued your memo, you didn’t investigate the incidents.
Attorney General Garland: (02:14:57)
The memo is intended to begin assessments. It is intended [crosstalk 02:15:02].
Senator Kennedy: (02:15:01)
And in fact, most of the incidents in the letter did not involve threats of violence, did they?
Attorney General Garland: (02:15:08)
I think that’s correct, most of them did not. And they would not be covered by either federal or state law. I agree with that. And they would be protected by the First Amendment. But threats of violence are not covered by the First Amendment.
Senator Kennedy: (02:15:19)
Can we agree that we have thousands, tens of thousands, maybe hundreds of thousands of kids, growing up today who are more likely to commit a crime and go to jail, then own a home and get married?
Attorney General Garland: (02:15:44)
I don’t know about the comparative statistics. I do know there are too many people who are committing crimes. [crosstalk 02:15:49].
Senator Kennedy: (02:15:48)
And one of the reasons for that is lack of parental involvement, isn’t it?
Attorney General Garland: (02:15:52)
I think parental involvement is essential. I think it’s the key, both to bringing up good kids.
Senator Kennedy: (02:15:58)
So, why do you want to issue a memorandum-
Sen. Kennedy: (02:16:00)
… a memorandum listing incidents that you didn’t investigate, that anybody who has any fair-minded knowledge of the world knows is going to have a chilling effect on parental involvement with respect to what their kids are learning at school.
Merrick Garland: (02:16:28)
I just want to be clear again, Senator: My memorandum did not list any of those incidents.
Sen. Kennedy: (02:16:32)
Come on, General. We both know this had a chilling effect. You don’t think there are parents out there in the real world that said, “Oh my God, maybe we shouldn’t go to the school board meeting. There’ll be FBI agents there?” This isn’t la-la land.
Merrick Garland: (02:16:46)
I tried to make as clear as I could, and now I have subsequently made clear in every public statement on the matter-
Sen. Kennedy: (02:16:53)
Your actions made it clear, General. Let me ask you one last question. When men follow a United States Senator, who happens to be a female, into a women’s room to harass her about her beliefs, why is that just “part of the process” as President Biden says, but when a parent goes to a school board meeting to protest that her child is being taught that babies can be White supremacists, is subject to FBI prosecution?
Merrick Garland: (02:17:39)
The description that you just gave that parent is not subject to FBI investigation, and there’s nothing in this memorandum that suggests this. We protect United States Senators against threats of violence.
Sen. Kennedy: (02:17:51)
You did a good job with Senator Sinema.
Merrick Garland: (02:17:53)
Within the last month, we have indicted somebody who made threats of violence against both Alaska US senators. Recently we just indicted somebody else who made threats-
Sen. Kennedy: (02:18:04)
Can I ask one more, Mr. Chair?
Speaker 4: (02:18:06)
Can you wrap up please, Senator Kennedy?
Sen. Kennedy: (02:18:08)
Speaker 4: (02:18:09)
Could you wrap up? I am chairing this.
Sen. Kennedy: (02:18:11)
Oh, yes ma’am. I will. I’m just going to ask one last one. What led you to conclude before you issued your memorandum sicking the FBI on parents that law enforcement at the state and local level couldn’t handle it?
Merrick Garland: (02:18:36)
Let me be clear, Senator: We did not sick the FBI on parents. That’s not what this memorandum is about. Nor did we conclude that local law enforcement is unable to deal with the problem. The purpose of this memorandum is for our federal law enforcement to engage with state and local, and determine whether they need assistance.
Sen. Kennedy: (02:18:54)
And you don’t think this had any chilling effect whatsoever on parents out there?
Merrick Garland: (02:19:01)
The memorandum expressly says at the beginning that it is aimed at violence and threats of violence, and expressly says that robust public debate about school policies are protected.
Sen. Kennedy: (02:19:12)
Right. Well, I like you, General, a lot, but-
Speaker 4: (02:19:15)
Sen. Kennedy: (02:19:16)
… on this issue, you’ve turned into someone you said you wouldn’t be.
Speaker 4: (02:19:19)
Senator Kennedy. I recognize Senator Booker. Please proceed.
Sen. Booker: (02:19:25)
General, I want to start with an area of bipartisan accord that seems to be what we’re getting towards. Today’s the 35th anniversary of the Anti-Drug Abuse Act, which established vastly different sentences for crack and powder cocaine. We are seeing a wonderful convergence in Congress, most recently in the House of Representatives, where you had this wide bipartisan vote, I’m not sure if there’s been a bigger bipartisan vote this year, where 149 Republicans voted along with almost all the Democratic Caucus to address this disparity. The effect of that law was 100 to 1, the work of…
Sen. Booker: (02:20:08)
Again, bipartisan senators here led by Senator Durbin negotiated the Fair Sentencing Act, which was a change of that disparity from 100 to 1, to 18 to 1. Senator Durbin and I now have introduced something called the EQUAL Act, which has already been passed by the House. We’ve got Republicans and Democrats on board: Tillis, Leahy, Paul, Graham, as well as my colleague Senator Ossoff on my side of the aisle. The president, Biden, publicly supported the bill. And again, I just think this should be an area that’s an obvious accord, but I really want to know your opinion. Do you agree that it’s time to end the sentencing disparity between crack and powder cocaine, especially given the disparate impact it has on people of color? And if you believe that, why do you believe that?
Merrick Garland: (02:21:04)
Yes, I do believe that, and the Justice Department supports that bill that supports equal treatment of crack and powder cocaine. The Sentencing Commission has over the last decade, maybe more than that, produced a series of reports which undercut, but was supposed to be the scientific basis for, the distinction between the two, and it’s made quite clear that there is no warrant basis for distinguishing between the two. So once that is undercut, there’s going to be no grounds for that. On the other side, not only are there no grounds for it, it clearly does have a disparate impact on communities of color, also clearly recognized by the Sentencing Commission statistics. You have that kind of circumstances. There’s no justification for this, and we should end this.
Sen. Booker: (02:21:56)
I appreciate that. One last just clarification. While there is a lot of support for it on both sides of the aisle, there are some people that worry about it somehow affecting crime or crime rates. Could you discuss your opinion of that perspective?
Merrick Garland: (02:22:14)
Well, I think powder cocaine is as dangerous with respect to crime rates as crack cocaine, both of which have now been unfortunately overtaken by fentanyl and the opioids. But both of those are bad problems from the [inaudible 02:22:36] of crime, but equalizing penalties for crack and powder should have no difference with respect to our ability to fight violent crime or-
Sen. Booker: (02:22:45)
Thank you, sir. I appreciate that, you saying that for the record. Can I revisit what Senator Durbin brought up at the top? And this is a letter that he and I sent you regarding the people that are currently on home confinement. In the last days of the Trump administration, on January 15th, 2021, the Justice Department’s Office of Legal Counsel issued a memo arguing that the BOP must re-incarcerate everyone on the CARES Act home confinement at the end of the covered emergency period if they do not otherwise qualify for home confinement. Now, these are folks that were pretty extremely scrutinized beforehand.
Sen. Booker: (02:23:24)
They’ve been returned to their communities. They have been reengaging with family, with children. They are folks that are not showing any criminal activity or any problems. Senator Durbin and I really believe, and we are urging the Department of Justice to rescind this Trump-era memo, which incorrectly concludes that people who have been released to home confinement and who have abided by the conditions of their relief must be torn away from those families and go back to BOP custody. And so I just really would love to know where you stand on this issue. To me, it’s an issue of justice. It’s an issue of restorative justice. It’s an issue of compassion, and understanding the collateral consequences of ripping people back and putting them in prisons unnecessarily, not to mention the cost to taxpayers. Clearly, I have my opinion, but I’d like to hear yours.
Merrick Garland: (02:24:22)
I agree with you. It would be a terrible policy to return these people to prison after they have shown that they are able to live in home confinement without violations. And as a consequence, we are reviewing the OLC memorandum that you spoke about. We are also reviewing all of the other authorities that Congress may have given us to permit us to keep people on home confinement. And as you know, we are also… And the president is reviewing the extent of his clemency authority in that respect.
Sen. Booker: (02:24:55)
How long should we expect that review before you make a determination?
Merrick Garland: (02:25:00)
Well, I can’t say exactly, but-
Sen. Booker: (02:25:03)
Are we talking six months, or less than six months?
Merrick Garland: (02:25:05)
I’m not exactly sure how long that will take. It may require rule-making, and so that may take more time, but we can be sure that it will be accomplished before the end of the CARES Act provision, which extends till the end of the pandemic. And so we are not in a circumstance where anybody will be returned before we have completed that review and implemented any changes we need to make.
Sen. Booker: (02:25:29)
Okay. And then in regards to just compassionate release in general, will the Department of Justice consider filing motions for individuals on home confinement who reside in judicial districts like the Eleventh Circuit, where courts have interpreted compassionate release statutes to cover only medical age and family circumstance as grounds? Obviously, there’s still a pandemic, and we know that putting people into environments greatly increases their chances. I’m concerned about restrictions on compassionate release in places like the Eleventh Circuit.
Merrick Garland: (02:26:02)
This is something I haven’t thought about, Senator. I guess the Bureau of Prisons, which is the agency that decides those questions, has to have a uniform policy across the country. I hadn’t thought of the possibility of making distinctions based on which circuit, because you’re quite correct, the different circuits have different views about the scope of compassionate release. I’ll take that back for consideration, if it’s all right with you.
Sen. Booker: (02:26:30)
All right. I have some concerns about First Step Act implementation, which I’ll ask in writing to you. I want to be respectful of my colleague, my friend, the Senator from the great state of Oklahoma.
Sen. Sasse: (02:26:42)
Sen. Booker: (02:26:43)
I’m sorry, sir. Forgive me, Omaha.
Sen. Sasse: (02:26:46)
Omaha’s not a state, brother.
Sen. Booker: (02:26:48)
I’m sorry. Where are you from, sir?
Sen. Sasse: (02:26:51)
We used to be able to beat Stanford in football, and we will return. Chairwoman, may I? Thank you. Sorry, Cory’s not as funny as I thought he would be there. Attorney General, I know you’re tired of talking about the memo.
Merrick Garland: (02:27:07)
Sen. Sasse: (02:27:08)
Did you say you’re not?
Merrick Garland: (02:27:10)
I’m happy to answer any questions you have, Senator.
Sen. Sasse: (02:27:12)
I think most of us and most of the American people are just sort of flabbergasted if your answer is you have no regrets about this memo. Is that what you’re telling us? You think this was wise.
Merrick Garland: (02:27:24)
Senator, the obligation of the Justice Department is to protect the American people against violence, including threats of violence, and that particularly includes public officials. I think that is still a concern for the department. This memo doesn’t do anything more than ask our law enforcement to consult with state and local law enforcement to determine whether they need assistance in this regard, and whether there are any federal jurisdictional issues involved. The memo recognized-
Sen. Sasse: (02:27:54)
General, you and I both know that it is political hackery that brought that topic to your desk, not reality. I am strongly against all violence against everyone in public life, and all threats of violence. You’ve not at any point here given us any data that show why this would in any way be a federal priority at this time. The chairman… Not here right now, but Chairman Durbin has repeatedly talked about how this morning he Googled it, and is pretty convinced there must be lots of threats. Can you help us understand why so many states are disconnecting their organizations from the National Association of School Boards? You are aware that the National Association of School Boards has recanted of the memo, correct? You know they’ve rejected their own letter to you. Are you aware of that?
Merrick Garland: (02:28:46)
I read their letter. Their letter doesn’t recant their concerns about safety. It recants some of the language in their letter-
Sen. Sasse: (02:28:52)
We’re all for safety.
Merrick Garland: (02:28:53)
… which I did not adopt. The language that they have recanted, I never adopted and never would adopt.
Sen. Sasse: (02:28:59)
Why did the Ohio School Boards Association sever their relationship with the National School Boards Association?
Merrick Garland: (02:29:05)
I don’t know, and-
Sen. Sasse: (02:29:06)
Why did the Missouri School Boards Association sever their relationship with the National School Boards Association? Why did the Pennsylvania School Boards Association sever their relationship with the National School Boards Association? Because this was political hackery, the kind of stuff you told us when you were seeking confirmation that you would be against. And you had the audacity to begin your opening statement today by telling us one of your big three priorities was to make sure communications between the White House and the Justice Department were not politicized. The last three administrations in a row have politicized the Department of Justice, the three including you now. You told us one of your priorities in running DOJ was to reject the kinds of politicization we saw in the Trump DOJ and in the Obama DOJ. You told us that was one of your priorities.
Sen. Sasse: (02:29:53)
You wrote a memo that came from political staffers who’ve been rejected by their organization, coordinating with the White House to try to exaggerate a threat so that they could make sure parents felt intimidated. You’ve told us… I wouldn’t use the exact language Senator Kennedy used, that you were a vessel, but one of two things is true here. Either you were just a vessel of political comm staffers at the White House, or you yourself are in favor of politicizing the DOJ. You told one of my colleagues a minute ago that you’ve not read the memo from the US attorney from Montana. I’ll read it to you if you want, or I’ll bring it to you, and you can read it. This is one of your direct reports. It’s an insane letter. The US attorney for Montana takes as predicate for why he’s doing what he’s doing your memo.
Sen. Sasse: (02:30:44)
And on October 14th, he sends a list of all the counterterrorism statutes that should be considered to be used against parents who are upset about things that might be happening at their school boards. Maybe there’s lots of specific evidence of violence being threatened against school board members in Montana, but his memo, or his response to your memo, includes a letter where he says that “anonymous telecommunications harassment, repeated telephone calls, or repeated harassing communications” should be things that are potentially brought up as the basis for federal charges against parents. Do you agree with this letter of October 14th?
Merrick Garland: (02:31:23)
Senator, I’m going to say again: This is aimed at violence and threats of violence, and I don’t care whether they come from the left or from the right or from up or from down. I don’t care if they’re in favor of curriculum or against particular kinds of curriculum. We can imagine all these arguments against school boards coming from either the left or the right. It doesn’t matter. Arguments against school boards are protected by the First Amendment. Threats are not protected by the First Amendment. And we received a letter from the National Association of School Boards. No reason to believe-
Sen. Sasse: (02:32:00)
You didn’t receive an anonymous letter. White House political staff-
Merrick Garland: (02:32:04)
I didn’t say-
Sen. Sasse: (02:32:04)
… co-wrote it with this organization, which is why the organization has rejected it. You know these facts now to be true, and yet you still won’t disavow your memo. Why? You didn’t receive some objective neutral letter because all these people were being threatened. You are responding to a political campaign to politicize the Department of Justice. How big is the threat that American parents pose right now? You lead a big organization. You have 100,000 plus employees. You have a lot of violence to go after. Are parents at school boards one of the top three concerns you face right now?
Merrick Garland: (02:32:40)
This memorandum is not about parents at school boards. It doesn’t matter whether they’re parents or anyone else. It has to do with threats against public school teachers, public school officials. It is not-
Sen. Sasse: (02:32:53)
I’m against all those threats. I want to know what the data is.
Merrick Garland: (02:32:56)
Well, I don’t need data in order to assess-
Sen. Sasse: (02:32:59)
To respond to a political staffer’s campaign out of the White House.
Merrick Garland: (02:33:02)
The purpose of this memorandum is to get our law enforcement to assess the extent of the problem. And if there is no problem, if states and local law enforcement are capable of handling the problem, then there is no need for our involvement. This memo does not say to begin prosecuting anybody. It says to make assessments. That’s what we do in the Justice Department. Has nothing to do with politics.
Sen. Sasse: (02:33:26)
Will you report back to this committee with what you find about these threats? Because what you just said, I completely agree with. We are against violence against public officials, you and I agree. We are against threats of violence against public officials, you and I agree. We are for local police powers investigating local crimes. And there are definitely yokels and idiots that make threats against lots of people in public life. I don’t minimize it. You shouldn’t minimize it. You’re not minimizing it. But we both believe, and in your heart of hearts I’m pretty sure you believe, that local law enforcement is more than able to handle some one idiot, or 12 idiots, at school board meetings. But you made it a federal issue, and I don’t have any idea why. And at no point today have you offered us a shred of data. So my question is: Will you pledge you will report back to this committee with the results of your investigation, about how big a threat the American parent class is to school boards in the country?
Merrick Garland: (02:34:24)
I will be happy to get a report back to you, but this is not about the American parent class.
Sen. Sasse: (02:34:30)
I know. It’s about the politicization of DOJ, and you decided to submit as a vessel. And you know better.
Merrick Garland: (02:34:35)
I’m sorry, but I don’t agree with that, Senator.
Sen. Blumenthal: (02:34:40)
Thank you, Senator Hirono. Welcome to our committee, Mr. Attorney General, and let me just begin by thanking you and your team for the sense of integrity and transparency that you brought to the Department of Justice after a time when the rule of law in the greatest law enforcement agency in the history of the world was gravely threatened by a lack of that dedication and commitment. I think it’s very important what you have done, even though we may have differences of opinion. We may disagree, but nobody can doubt your commitment to the rule of law. I want to ask you about a matter I know you’re familiar with. Last month, the committee held a hearing on the FBI’s mishandling of the Nassar investigation, Larry Nassar, who was convicted of the most heinous kind of abuse with respect to young athletes and gymnasts, particularly. Four brave women shared their stories with us.
Sen. Blumenthal: (02:35:49)
They showed up to tell those stories in spite of the very grave obstacles. The inspector general concluded that two FBI agents made false statements during their investigation into Nassar, and to the IG himself, the inspector general. During an investigation, the FBI agents lied. He referred those cases to the Department of Justice. What I’d like to ask is that the Department of Justice now in effect show up by providing an explanation of whatever its decision is with respect to the prosecution of those agents. The deputy attorney general announced that the Criminal Division was conducting a new review, as you know, and that new information has come to light while we wait for that review to be completed.
Sen. Blumenthal: (02:36:44)
What I’m seeking from you is a commitment that you will explain the decision when it’s made. I recognize as a former prosecutor that declinations typically are not explained, but the Justice Manual itself says that in criminal civil rights cases, quote, “It is often the practice to send case-closing notification letters in cases closed with indictment or prosecution,” because cases quote “often spark intense public interest, even when they’re not prosecuted,” and that such letters are quote “particularly encouraged in cases of police misconduct and other cases involving law enforcement officer subjects,” end quote. In this case, we have exactly that situation, and I’m asking for a commitment that you will provide an explanation for your decision.
Merrick Garland: (02:37:42)
Well, Senator, this is a hard problem for us. That part of the manual that you’re talking about is about violations of the Civil Rights Act, and what we’re talking about here are false statements. Needless to say, if the results of this review is a prosecution, that will become public. On the question of whether and how much we can say if all we do is decline, I’m just going to have to take that back for consideration. I take your point, and I will think about it very carefully as well, the Criminal Division.
Sen. Blumenthal: (02:38:15)
I understand you’re not ruling it out, but I’m going to continue to press for an explanation. I think the gymnasts deserve it. So does the American public. And I hope that you will make a decision to provide a full and complete explanation, because I think the credibility of the decision will largely depend on it. And let me just say, in my view, we need to do more than focus on the FBI agents that the inspector general referred for prosecution, because this failure was an institutional failure. Institutional to the FBI, to USA Gymnastics, and the entire Olympic system. It was an institutional breakdown. And to date, there’s been no accountability for anyone in power. To that end, I am announcing that in the Commerce Subcommittee that I chair, the Subcommittee on Consumer Protection, we’re going to continue the work that Senator Moran and I began years ago. We literally began years ago with the investigation and Olympics reform legislation.
Sen. Blumenthal: (02:39:33)
We’re going to engage in further oversight of the United States Olympic and Paralympics Committee, the National Governing Bodies, and SafeSport to ensure their purported commitment to safety is not an empty promise. The gymnasts have asked us. They deserve it, and we’re going to fulfill that obligation. But in my view, the Department of Justice has to do more as well. Given the FBI’s gross mishandling of the Nassar investigation, I believe a new review of all of the information related to Nassar, and the USOPC more broadly, is warranted here, because there are other examples of potential misconduct that deserve a fresh look.
Sen. Blumenthal: (02:40:26)
For instance, Senator Moran and I referred the former CEO of the USOPC to the Department of Justice for potentially perjuring himself before our subcommittee in 2018. We don’t know what, if anything, the department did with that referral. We’ve heard virtually nothing. In addition, the former US attorney for the Southern District of Indiana, whose office was involved in the Nassar investigation, is now representing one of the disgraced FBI agents. He’s representing one of the FBI agents referred for prosecution. I don’t know whether that’s a violation of ethical rules or some other kinds of Department of Justice policies, but it raises significant questions, and the department should have an interest in them. So I hope that we can expect more from you by way of explanation, and I hope that we can count on you for a new review of the information related to the Nassar investigation, USA Gymnastics, and USOPC to determine whether there are additional cases where prosecution is necessary to hold wrongdoers accountable.
Merrick Garland: (02:41:55)
The institutional failure that you speak of is quite apparent. I thought that the testimony by the gymnasts was, as I said, heart-wrenching, and they were courageous. The FBI director has adopted all of the recommendations of the inspector general, and is putting them into effect. And in addition, we have adopted new regulations, new authorities in the department to be clear that if the FBI is investigating a case of assault on a child and determines that it doesn’t have jurisdiction, it immediately inform the relevant state or local prosecutors and law enforcement. This is what didn’t happen in the Nassar circumstance. And ensure that that is done so that the state and local will be able to continue. Likewise, with respect to transfers from one FBI office to another, another failure in that case, that those be monitored to ensure that those transfers occurred. We take this extremely seriously. What happened is just awful. And you have the commitment of the Justice Department and of the FBI director and of the FBI to make these kinds of institutional changes to ensure that this doesn’t happen again.
Sen. Blumenthal: (02:43:25)
I appreciate those points, but as you well know because of your own long and impressive record as a prosecutor, there’s nothing like accountability, individuals being held accountable to send a message, particularly a deterrent message, to an institution. Thank you, Madam Chair.
Sen. Durbin: (02:43:45)
Thank you, Senator Blumenthal. And I have a list from the Republican side, and this is the order they’ve given me. Correct me if I’m wrong. Tillis, Blackburn, Hawley, and Cruz. We have two democratic senators who have not asked at this point. We’ll wait to see if they arrive. Senator Tillis? Senator Tillis, I don’t know if your mic’s on.
Sen. Tillis: (02:44:08)
Sen. Durbin: (02:44:18)
Sen. Tillis: (02:44:21)
You may regret it. But Mr. Attorney General, thank you for being here. In response to the memo, I know you’ve repeatedly said this is not about parents. 15 years ago, I was PTA president at my daughter’s high school, participated in a lot of school board meetings, and I still watch it on public access back in Mecklenburg County when I’m home. The basis for your memo was substantially the letter that you all received. Is that correct?
Merrick Garland: (02:44:51)
That was an important part of it, yes, Senator.
Sen. Tillis: (02:44:54)
Do you think there was an empirical… I’ve seen some of the widely-reported situations and some school board meetings, but is there really any empirical basis for… I’ve seen a lot of raucous school board meetings. I’ve participated in them. Is there really any empirical basis… Did the DOJ do any real work outside of the public reporting to say that there’s a disturbing trend that required the kind of, what we consider to be overreach, on behalf of the DOJ?
Merrick Garland: (02:45:20)
So as I’ve explained, what we looked at was the letter from an organization that represents thousands of school board members and school boards, and public reports of threats of violence. And even since then, I have further read quite expressed threats of violence being reported-
Sen. Tillis: (02:45:41)
Mr. Attorney General, I want to try and keep in time in deference to my-
Merrick Garland: (02:45:44)
Yeah, I’m sorry.
Sen. Tillis: (02:45:44)
… colleagues behind me. I know that you’ve said it’s not about the parents, but when the DOJ releases the memo, and I think even more importantly the press statement, I think that it does have a chilling effect on parents being willing to go and express their concerns with the direction the school board’s going. When all of a sudden you think that your words and this list of crimes that the department has sent, I guess to at least the state of Montana, others, it could have a chilling effect on people who legitimately have a concern and they want to express it. But now they may think that they come crosswise with the FBI. So I do believe that it will have a chilling effect on people’s whose right they have to go in, express their concerns, like a Loudoun County. A ridiculous overreach.
Sen. Tillis: (02:46:36)
I think that it will have that effect, because the full force of the FBI is now something a parent has to think about before they go before a school board meeting to express their concerns and they get frustrated. Like I said, they’ve been raucous for decades, and they will be raucous for decades to come. So I really do believe that you should seriously consider rescinding revising a statement out there that concerns me for the parents that I want to show up to school board meetings, and have the school boards held accountable. The other thing that we should talk about are the numerous examples of school board members getting caught saying audacious things. As one thing you’ve seen over the past year, think about some of the provocative statements that they said.
Sen. Tillis: (02:47:19)
They thought they were behind closed doors, but they were on the internet, basically ridiculing parents and pretending like they had ball control over their children’s education and their future. We’ve got to get more parents engaged, and I think that the effect of the DOJ action is the exact opposite of that. But most of my colleagues have covered my concerns, and I agree with those that are expressed on my side of the aisle. In response to Senator Graham on immigration, you said that you did go visit the border. It sounds like you were down there mainly from the perspective of your role in the DOJ.
Sen. Tillis: (02:47:54)
I understand that Homeland Security is primarily responsible, but I would encourage you to go back down there. And maybe we could share with you our itinerary to talk about why I do believe it should be a great concern to the DOJ. We’ve got almost one and a half million asylum cases on the docket now, and it takes years to complete them. And about 80% of them are adjudicated as not having a valid claim. So doesn’t that data lead you to suggest the asylum system is being abused? I mean, that’s data from the DOJ.
Merrick Garland: (02:48:31)
So Senator, I don’t know for sure about the data, but the purpose of asylum adjudication is to adjudicate asylum.
Sen. Tillis: (02:48:41)
Well, I understand that, but-
Merrick Garland: (02:48:42)
The statute allows them to make these… This is a statutory question-
Sen. Tillis: (02:48:46)
I’m not an attorney.
Merrick Garland: (02:48:47)
… not the Justice Department.
Sen. Tillis: (02:48:47)
I’m not an attorney. You’re an accomplished judge, so I’m looking at this just from a practical standpoint. When the data says that almost 2 million people have crossed the border illegally since January, and it is 80% likely that they’re not going to have a valid asylum claim, how any reasonable person couldn’t look at that and say something is being abused here… It’s a gateway to get into this country, drift into the shadows, and virtually never leave the country. But here’s the one that I’m most concerned with, and why I think a briefing with the same people that we met with at the border… Many of the people on this committee were there when I was.
Sen. Tillis: (02:49:25)
Hundreds of got-aways a day getting across the border. And got-aways are not ones that want to be processed through asylum. They want to evade detection. They want to drift in… How on earth can we assume that there’s anything but a malign purpose for them trying to evade detection? Otherwise, you just get into the system. You’re going to be here for years. You’re going to abuse the asylum system. They’re skirting it to the tune of a couple of hundred a night. And this has been going on for months, so now we have thousands of people who came into this country-
Mr. Kennedy: (02:50:03)
And now we have thousands of people who came into this country when the cartels set a pick. They’ll send about 50 people over to engage the border patrol so that they can send another couple of hundred into our society. They’re drug traffickers, they’re human traffickers, they’re gun smugglers, they’re gang members, and they’re coming in by the thousands every month. That is a DoJ problem. That is a crime in our communities problem, and it’s actually making the Hispanic communities, the majority of which are coming over are Hispanic, those communities less safe. I would really encourage you to go back to the border and look at it from the perspective of your role as attorney general and the hundreds and the thousands of illegals who are coming across our border every day, many of them drifting in, and evading detection and making our communities less safe. I do have a number.
Mr. Kennedy: (02:50:55)
I’ve got intellectual property, a number of implementation issues that I’m going to submit for the record, but Mr. Garland, we have a problem at the border and the DoJ has to engage and recognize that part of that problem, you’re going to have to fix. We got to stop the $13 million a day that the cartels are getting for human trafficking. That’s a documented number. We’ve got to stop the tons of fentanyl and drugs that are poisoning Americans because we have an out control border situation. This is a law enforcement issue. I understand it’s an immigration issue, but we have to get you, I think, read up the same way that we were the last time we were at the border. I’d really encourage you to go back down there again, talk with the people on the ground and understand why this is going to make your job more difficult and it’s already making America much less safe. Thank you, Mr. Chair.
Mr. Durbin: (02:51:49)
Senator Padilla: (02:51:52)
Thank you, Mr. Chair. Let me begin with a comment before I get to a few issues and a few questions, particularly in light of recent comments from some of my colleagues about immigration, migration, what is, what isn’t happening? And I want to start by recognizing Senator Coons’ remarks earlier, who asked you about what you’re doing to address the backlog in immigration courts, right? One of the best, most smart approaches to tackling unlawful migration is to improve the effectiveness, the efficiency of lawful migration. It’s not just investing in immigration courts, but access to counsel, and I just want to add that these are issues that my office hears about on a very regular basis. So I was heartened that you’ll be asking for additional resources to address those issues. This is certainly an area where money is needed to improve the processing of immigration cases while ensuring due process.
Senator Padilla: (02:52:55)
Now, to my questions, first, a response that I and several of my colleagues have been waiting on since April 15th, when I and seven other members of Congress sent you a letter concerning the department’s funding and oversight of predictive policing tools which are deployed by law enforcement throughout the country. As we highlighted in that letter, and I’m happy to provide an additional copy to you, we’re concerned that the Department of Justice may be devoting precious taxpayer resources to ineffective tools and encouraging local law enforcement to also devote resources to unproven strategies. Worse still, those tools may be perpetuating a vicious cycle of discriminatory policing against historically marginalized groups.
Senator Padilla: (02:53:45)
Because we have not yet received a response, we do not know for example, what, if any, conditions there are by the Department of Justice on the agencies and departments who deploy predict the policing tools with the aid of federal funds. I find this unacceptable. So Attorney General Garland, it’s been over six months since our letter was sent to the Department of Justice and we have yet to receive an official response. Can you explain the delay and when we can expect a response?
Attorney General Garland: (02:54:18)
I can’t explain the delay. I do don’t know what the reason is, but I will immediately take this back and be sure that the Office of Legislative Affairs responds to your letter.
Senator Padilla: (02:54:27)
Okay, we’ll get you another copy of that letter before we leave here today. Next issue, as most, I believe we should all agree, we need an open and competitive economy that also works for workers. We talk a lot about entrepreneurism, capitalism, consumer protection, but we need an economy that also works for workers and this demands the Department of Justice’s attention to combat artificially suppressed compensation, employer collusion, and increasing inequality. For example, non-compete clauses or no poach agreements limit the ability of many workers throughout our economy to switch to better paying opportunities or start their own businesses in a number of sectors.
Senator Padilla: (02:55:15)
Antitrust protection for labor organizing does not yet explicitly extend to gig economy workers who are classified as independent contractors by their employers. And corporate consolidation can limit the pool of companies in a labor market competing to attract and retain workers. Attorney General Garland, what is the Department of Justice doing to ensure that there’s competition in our labor markets? And is this yet another area where the department needs additional resources to fulfill the mission laid out by President Biden?
Attorney General Garland: (02:55:53)
Thank you for the question. The Justice Department’s Antitrust Division agrees, I don’t know if you can hear either, agrees that competition in labor markets is as much a part of the antitrust laws as competition and product markets or consumer markets. We have a number of investigations involved in those areas that you’re talking about. We have a criminal case, all public, on the no poaching issue. We have brought cases and investigations regarding allocations of labor markets. So I think I can fairly say we agree with you. This is an area of concern and it’s an area of Antitrust Division focus. The Antitrust Division does need more money and more lawyers and economists and investigators. It was down substantially, one of the lowest headcounts in quite a number of years, and we very much need to build that back, and that’s why our FY ’22 appropriations requests asked for a substantial increase in money for the Antitrust Division.
Senator Padilla: (02:57:03)
Okay. Wonderful. Well, I look forward to supporting those requests for additional resources. And finally, in the time remaining, yet another topic. Earlier this month, this committee released a report detailing former President Trump’s scheme to pressure the Department of Justice and overturn the will of the people who voted for now, President Joe Biden, so that he could serve again as president. The report outlined behavior that follows a pattern and practice of intimidation, coercion, and outright bullying by the former president’s administration. If we don’t hold these bad actors accountable, we face the possibility of eroding public trust in our institutions. Americans are looking for accountability and they’re looking to you, Attorney General, as the leader of your agency to administer justice. My question is this, are you willing to recommit yourself to pursuing every possible avenue and every possible lead for holding those accountable who have used public office to undermine and demean our democracy?
Attorney General Garland: (02:58:24)
So as a general matter, the answer of course is yes. I don’t want to talk about specific investigations, except to point out what’s already been stated publicly on the record, which is a component of the Justice Department, although an independent one. The inspector general is examining the matters about which you’re speaking, and I have full confidence that he will advise me and the department of what he finds, and then we will then take appropriate action.
Senator Padilla: (02:58:54)
Okay. Thank you. And just in closing, I would hope that that would include a review and consideration of allegations documented in a recent Rolling Stone article where participation in the lead up to January 6th and on January 6th was not limited to just White House officials, but actual members of Congress as well. Thank you. Thank you, Mr. Chair.
Speaker 6: (02:59:17)
Blackburn who’s next and then we’ll break.
Mr. Durbin: (02:59:19)
Thank you. We’re going to recognize Senator Blackburn, then take a five-minute break, return, and we have Senator Ossoff, Senator Hawley, Senator Cruz. And I just say to the two or three members who have said they might be interested in a three-minute round, please be here. You have to be physically present because this has been a long day for all of us who’ve stayed here most of the time, particularly for the attorney general. So Senator Blackburn, and then a five-minute break.
Senator Blackburn: (02:59:49)
Thank you, Mr. Chairman and General Garland, thank you for being with us today. I have to tell you that it is with much disappointment that I have watched the DoJ be so politicized and the way things have been carried out. When you look at the memo to parents, you’ve heard a lot about that today and it’s because we are hearing a lot about that and I just have to ask you, knowing that you really helped to bring to justice those that caused the Oklahoma City bombing. Would you really honestly put parents in the same category as a Terry Nichols or a Timothy McVeigh?
Attorney General Garland: (03:00:47)
My God, absolutely not.
Senator Blackburn: (03:00:51)
Then why would you ever release a memo? I mean, did you write that memo? Did staff write that memo? What would’ve led you to do this? It is so over the top.
Attorney General Garland: (03:01:06)
Senator, there’s nothing in the memo that in any way, draws any comparison, anything like that. This memo is about violence and threats of violence. It’s not [crosstalk 03:01:17].
Senator Blackburn: (03:01:17)
Sir, I have to tell you that that may be your opinion. And many times, perception is reality and reading that memo myself, Tennesseans reading that memo, what they found in that memo, what they heard you say was, “If you show up and you question these school boards, you will be deemed a domestic terrorist. You could be investigated by the FBI.” I mean, the FBI has a lot of other things that they should be focusing on and the FBI should be there looking at issues like China. Now, the Knoxville FBI has been very concerned about China. So give me a little update? What’s the status of the China initiative at DoJ?
Attorney General Garland: (03:02:17)
So Senator, we are… We regard People’s Republic of China as an extraordinarily serious and aggressive threat to our intellectual property, to our universities, to our-
Senator Blackburn: (03:02:30)
Okay. You’re stonewalling me on that. We all know they’re an aggressive threat.
Attorney General Garland: (03:02:36)
We continue to investigate the PRC efforts to-
Senator Blackburn: (03:02:43)
Do you see them as an adversary?
Attorney General Garland: (03:02:47)
I see them as adversarial with respect to our ransomware, with respect to hacking our… With respect to counterintelligence, with respect to counterespionage, and all of those ways.
Senator Blackburn: (03:03:00)
Over the last several months, the last nine months, several espionage prosecutions of researchers have been dropped or charges have been dismissed, including those of a UT professor at UT Knoxville, and of course, the [Wawe 03:03:16] case is there. So this is in spite of the fact that Director Ray recently testified that the FBI opens a new Chinese espionage investigation every 12 hours. So are there apparent failures of the initiative? Is it a lack of leadership, or is it a compromise position with the administration? Is it incompetence?
Attorney General Garland: (03:03:44)
Every case is evaluated on its own with respect to the law and the facts. We continue to open cases involving the People’s Republic of China daily, as the director said. We will not in any way, let up our concerns about Chinese.
Senator Blackburn: (03:04:02)
All right. I want to move on. I’m glad to know you’re not going to go soft on China because this administration is going soft on China. On your directive, going back to the School Board Association in the directive that you sent as the NSBA has apologized. Are you planning to apologize to the parents of this country, moms and dads?
Attorney General Garland: (03:04:25)
There is nothing in this memorandum that any parent should be concerned about.
Senator Blackburn: (03:04:30)
There’s a lot that parents should be concerned about it. Let me ask you about the Durham investigation because 44 senators joined me in a letter that we sent to you in August and we still have not received a written response from you on the status of the Durham advance investigation. So will you provide for me a written status report of the Durham investigation?
Attorney General Garland: (03:05:00)
So the particular aim, I think of the letter asked about the budget. And as I said at the house committee, Mr. Durham is continuing and the only way he could-
Senator Blackburn: (03:05:09)
We ask for a status update. And we also ask that the report be made public, available to the public on the completion of his work. Will that be made public?
Attorney General Garland: (03:05:19)
So on both of those questions, his budget has been approved, as I already announced, and with respect to the report, I would like as much as possible to be made public. I have to be concerned about Privacy Act concerns and classification, but other than that, the commitment is to provide a public report. Yes.
Senator Blackburn: (03:05:38)
Can you guarantee this committee that Special Counsel Durham has free rein to proceed wherever his investigation takes him without any political or otherwise, undue influence or interference?
Attorney General Garland: (03:05:53)
Yeah, there’ll be no political or otherwise, undue interference with [crosstalk 03:05:57] investigation.
Senator Blackburn: (03:05:57)
Okay. Susan Hennessey was recently hired to work in your National Security Division. This is a troubling hire because of her political bias. She has made several comments that shows she is incapable of working impartially on sensitive matters within the National Security Division, particularly on the Durham investigation. For example, December 1st, 2020, Ms. Hennessey stated, and I am quoting, “Durham has made abundantly clear that in a year and a half, he hasn’t come up with anything. I guess this kind of partisan silliness has become characteristic of Barr’s legacy, but unclear to me why Durham would want to go along with it.” So how can the American people be certain that she going to be fair and impartial when she is on the record making those statements? So has she retracted that statement? Do you intend to ask her to retract that statement?
Attorney General Garland: (03:07:09)
I have to confess, I don’t think I’ve even ever met Ms. Hennessey and she has nothing whatsoever to do with our investigation.
Senator Blackburn: (03:07:13)
Well, you may want to look at her. She is there in your National Security Division and she is very much opposed to this. I want to thank you for your time. I am going to send a couple of questions to you for more complete answers, but I associate my myself with the comments by my colleagues that the border issues have turned every town into a border town and every state into a border state. The amount of drugs, the amount of trafficking that is flowing in here, talking to local law enforcement, the way they’re looking at the cartels, Mr. Attorney General, there is a lot that needs to be done to secure this country and the parents of the kiddos in our school, they are not the problem. There are other problems that need your attention.
Mr. Durbin: (03:08:09)
Thank you, Senator Blackburn. The committee will stand and recess for five minutes. (silence). [inaudible 03:18:36], Senator Hawley.
Senator Hawley: (03:18:43)
Mr. Chairman, did you call on me or Senator Ossoff?
Mr. Durbin: (03:18:45)
Oh, I’m sorry.
Senator Hawley: (03:18:46)
I’m happy to go, but…
Mr. Durbin: (03:18:47)
I didn’t see Senator Ossoff. I apologize. Senator Ossoff, then Senator Hawley.
Senator Ossoff: (03:18:51)
Thank you, Senator Hawley. Thank you, Mr. Chairman. Attorney General, nice to see you. Thanks for joining us. Last week, the Senate passed legislation that I introduced alongside Chair Durbin and Ranking Member Grassley, the Prison Camera Reform Act to reduce violence and civil rights abuses in BOP facilities by overhauling a security camera system that IG Horowitz found is outdated, unreliable, as well as the means of preserving and recording the footage from those systems. Do you agree that these reforms are necessary and should this bill become law? Will you commit to prioritizing the implementation of the requirements that imposes upon the BOP?
Attorney General Garland: (03:19:34)
Yes, and yes.
Senator Ossoff: (03:19:36)
Thank you, Attorney General. I’d like to discuss with you staffing issues at the Bureau of Prisons. Earlier this year, the GAO, which as you know is a nonpartisan independent watchdog, concluded that BOP lacks a reliable method for assessing the scope of staffing issues or the impact on incarcerated populations and staff of staffing issues at BOP facilities. Do you agree the inability to reliably measure this problem impedes BOP’s ability to address gaps? For example, shortages of medical staff, shortages of personnel who will help implement the first step act in anti-recidivism programs, as well as makes it more difficult for Congress to respond? And will you commit to working with my office to help identify where there’s gaps in planning or budgeting or personnel management or the authorities that BOP has?
Attorney General Garland: (03:20:32)
Yes, Senator. I met with the Controller General about the various of his reports and this one in particular, and I agree, this is a serious problem at the Bureau of Prisons. The Deputy Attorney General has been working on this problem for quite some time now. She has repeat meetings with the Bureau of Prisons to go over this issue with respect to staffing and assessment, and I’d be happy to have somebody on our staff meet with your staff.
Senator Ossoff: (03:21:04)
Thank you, Attorney General. The Inspector General has determined that BOP lacks a clear and consistent policy for the use of solitary confinement in BOP facilities. Has BOP, to your knowledge, issued such a policy?
Attorney General Garland: (03:21:19)
I don’t know the answer to that.
Senator Ossoff: (03:21:21)
Okay. Will you work with my office to determine whether they have and what may need to be done to ensure that they do?
Attorney General Garland: (03:21:25)
Senator Ossoff: (03:21:27)
Thank you, Attorney General. Question about commercial data and its use in DoJ investigations. In 2018, the Supreme Court issued its Carpenter v. United States decision that government agents must obtain a warrant before collecting cell phone data that show the location of a device over a seven day period. Of course, this data is widely available for many U.S. persons on commercial markets through data brokers and other technology companies. To your knowledge, do any federal agencies currently purchase data or any DoJ components currently purchase data or contract for services that provide device location data from commercial vendors? Is this data used in investigations or prosecutions?
Attorney General Garland: (03:22:08)
I don’t believe that we purchase location data, but I’ll be happy to look into that and get back to you on that as well.
Senator Ossoff: (03:22:17)
I’d be grateful because I think there are serious Fourth Amendment concerns there. Would like to discuss the FISA process with you. In its report last month, the Office of the Inspector General noted that DoJ and FBI still had work to do to implement the IG’s recommendations to strengthen the review process for FISA applications to ensure they contain accurate information. And while this has unfortunately become a partisan issue over the last few years, it’s fundamentally an issue of privacy, due process, and the integrity of the Foreign Intelligence Surveillance Court and the applications it receives.
Senator Ossoff: (03:22:50)
The IG’s report notes that the FBI has not significantly changed the process by which a supervisor, such as the assistant attorney general for National Security Division reviews and documents the factual assertions made in FISA applications. And I discussed this issue with Matt Olson when he was before the committee for his confirmation. So what steps is the DoJ taking to make substantive changes to the FISA review process and comport with the IG’s recommendations?
Attorney General Garland: (03:23:18)
So I completely agree that this should not be a partisan issue. FISA, on the one hand, is extraordinarily important tool for our ability to protect the country against foreign enemies, and on the other hand, it’s a tool that has to be dealt with with the most extreme care, because we have to protect American citizens from unwarranted surveillance, nonjudicial surveillance. I take the Inspector General’s report extraordinarily seriously. I believe the one you’re talking about though refers back to events from 2020 and 2019, but regardless, we take this very seriously and the FBI director does as well.
AG Garland: (03:24:03)
And the FBI director does as well. The National Security Division of the Department reviews what the FBI is doing with respect to FISAs, routinely audits and analyzes them to be sure that they are following the correct rules. And we intend to continue that kind of intensive review to ensure that internal regulations and requirements to the FISC are maintained. Thank you.
Senator Ossoff: (03:24:32)
Thank you, Attorney General. And I believe there is within the last couple of months some additional recommendations or concerns expressed by the IG about the implementation of changes pursuant to his prior conclusions. So…
AG Garland: (03:24:44)
Oh, I think this is the Woods files that you’re talking about, and again…
Senator Ossoff: (03:24:49)
AG Garland: (03:24:50)
I quite agree that this has to be done better. As I think he said, it’s a work in progress and there is certainly considerable more room for improvement and we are focused on making those improvements.
Senator Ossoff: (03:25:04)
Okay. Well, please know that there’s bipartisan concern about seeing those improvements implemented.
AG Garland: (03:25:08)
As there should be.
Senator Ossoff: (03:25:10)
Final question for you about press freedom, Mr. Attorney General. You issued a memo in July prohibiting the department from using subpoenas, court orders or warrants to obtain information on the confidential sources of reporters. And this new policy, as you defined, it offers broad protections for members of the news media, but does not qualify or define with specificity who qualifies as members of the news media. Is there a specific interpretation of that phrase that’s been issued in internal department guidance?
AG Garland: (03:25:40)
So the answer to that is no. We have discussed this with representatives of the news media continuously, and as part of our review for purposes of turning this memorandum into a regulation, we are continuing to discuss this. As you can imagine, it’s very difficult to make that kind of a definition.
Senator Ossoff: (03:25:59)
But very important to get it right.
AG Garland: (03:26:01)
I’d completely agree.
Senator Ossoff: (03:26:02)
And I think my staff will likely ask yours for a briefing on the progress of your deliberations and perhaps we’ll weigh in. Thank you for your service, Attorney General, and for your responses. And I yield back.
Mr Durbin: (03:26:12)
Thanks, Senator Ossoff. Senator Hawley.
Senator Hawley: (03:26:14)
Thank you very much, Mr. Chairman. Attorneys General Garland, on October 4th, you issued an unprecedented memo that involves the Department of Justice and the FBI and local school districts, local school boards, nothing like it in our country’s history. It was based, you’ve testified, on this letter from the National School Board Association that we now know the White House was involved in writing. They’ve retracted the letter. They’ve apologized for the letter. They say they regret the letter, but you won’t retract the memo and said earlier that you have no regrets. And you’ve defended yourself repeatedly today before this committee by saying you’re focused on violence.
Senator Hawley: (03:26:48)
But now of course, we’ve seen the memo from your own Justice Department, advising state and local and other prosecutors about all of the different federal causes of action that they can bring against parents that are not about violence. They’re about harassment and intimidation. I’m looking here at this memo. It identifies no fewer than 13 possible federal crimes involving harassment and intimidation, including making annoying phone calls. Do you think a parent who makes a phone call to a school board member that she has elected that that school board member deems annoying should be prosecuted, General Garland?
AG Garland: (03:27:31)
No, I don’t. And the Supreme Court has made quite clear that the word “intimidation” with respect to the constitutional protection is one that “directs a threat to a person with the intent of placing the victim in fear of bodily harm or death.” Prosecutors who investigate these cases know the Supreme Courts… This is a very famous [crosstalk 03:27:52]
Senator Hawley: (03:27:52)
Prosecutors do, but parents don’t, General Garland. Do you think that a parent who looks at the 13 different federal crimes that your justice department has identified they might be subject to and prosecuted for, like making annoying phone calls, do you think that they’re going to feel that they’re welcome to speak up at a school board meeting? How about this one? They could be prosecuted for using the internet, I guess that would be Facebook, in a way that might cause emotional distress to a victim. Is that a crime of violence?
AG Garland: (03:28:21)
Senator, I haven’t seen the memo that you’re talking about-
Senator Hawley: (03:28:23)
Why haven’t you?
AG Garland: (03:28:25)
And even from the description, it doesn’t sound like it was addressed to parents. But if [crosstalk 03:28:30]
Senator Hawley: (03:28:30)
No, it wasn’t addressed to parents. It was addressed to prosecutors. That’s the problem. Why haven’t you seen the memo?
AG Garland: (03:28:36)
I don’t know why I haven’t. I do not get every memo that every US Attorney sends out. But if you’re going to [crosstalk 03:28:43]
Senator Hawley: (03:28:43)
Wait a minute. I just want to be sure I understand this. This is a memorandum that collects 13 different federal crimes parents could be charged with. It has United States Department of Justice on the top of it. And you’re telling me you haven’t seen it?
AG Garland: (03:28:59)
Who’s the memo from, Senator?
Senator Hawley: (03:29:00)
The United States Department of Justice, United States Attorney for the District of Montana.
AG Garland: (03:29:04)
I have not seen a memo from the District of Montana.
Senator Hawley: (03:29:07)
Not high enough priority for you?
AG Garland: (03:29:09)
That’s not the question. I don’t [crosstalk 03:29:11]
Senator Hawley: (03:29:11)
It is the question. Answer my question. Is it not a high enough priority for you when you’re threatening parents with 13 different federal crimes? These aren’t crimes of violence. You’ve testified today you’re focused on violence. That’s not what your US Attorneys… They work for you, that’s not what they’re saying. You haven’t seen it because it’s not a high enough priority or what?
AG Garland: (03:29:30)
It’s not a question of priority. No one has sent me that memo so I haven’t seen it.
Senator Hawley: (03:29:34)
What do you mean no one has sent you the memo? You run the United States Department of Justice, do you not?
AG Garland: (03:29:37)
There are 115,000 employees of the Department of Justice.
Senator Hawley: (03:29:42)
Indeed. And you are in charge of every one of them. And this was a sufficiently important case that you issued a memo. You, over your signature, issued a memo involving the FBI and the Department of Justice in local school boards, local school districts. Your US Attorneys are now threatening prosecution with 13 different crimes, but it’s not a high enough priority for you? It got lost in the mix?
AG Garland: (03:30:06)
I’ll say it again. I’ve never seen that memo. It wasn’t [crosstalk 03:30:09]
Senator Hawley: (03:30:09)
That’s what concerns me, General Garland.
AG Garland: (03:30:12)
Well, it wasn’t sent to me. I hope you will assure your constituents that what we are concerned about here is violence and threats of violence.
Senator Hawley: (03:30:19)
That only leads me to conclude, General Garland… All I can conclude from this is either that you’re not in control of your own department or that, more likely what I think to be the case, is that you knew full well that this is exactly the kind of thing that would happen when you issued your memo. When you involve the Department of Justice and all of its resources and the FBI and all of its resources in local school boards and local school districts, you knew that federal prosecutors would start collecting crimes that they could use against parents. You knew they would advise state and local officials that these are all of the ways parents might be prosecuted. You knew that that was the likely outcome. And that’s exactly what’s happened. And we’re talking about parents like Scott Smith who’s behind me over my shoulder. This is a father from Loudoun County, Virginia.
Senator Hawley: (03:31:12)
Here he is at a school board meeting. He was forcibly restrained. He was assaulted. He was arrested. Why? Because he went to an elected school board meeting. He’s a voter, by the way. He went to an elected school board meeting to raise the fact that his daughter was sexually assaulted in a girls’ restroom by a boy. This is what happened to him. Now you testified last week before the house that you didn’t know anything about this case. I find that extraordinary because the letter that you put so much weight on, the letter that’s now been retracted, it cites this case. It cites Mr. Scott’s case directly. There’s a news article cited in the letter. It’s discussed in the letter. But you testified you just couldn’t remember it. Maybe this will refresh your memory. Do you think people like Scott Smith, you think parents who show up to complain about their children being assaulted, ought to be treated like this man right here?
AG Garland: (03:32:02)
Parents who show up to complain about school boards are protected by the First Amendment.
Senator Hawley: (03:32:07)
Do you think that they ought to be prosecuted in the different ways that your US Attorneys are identifying?
AG Garland: (03:32:12)
If what they’re doing is complaining about what the school board is doing, policies, curriculum, anything else that they want to, as long as they’re not committing threats of violence, then they should not be prosecuted. And they can’t be.
Senator Hawley: (03:32:24)
Let me ask you about this. Several of my Democrat colleagues just today in this hearing multiple times have compared parents who show up at school board meetings, like Mr. Smith here, have compared them to criminal rioters. You think that’s right? You think that a parent who shows up at a school board meeting who has a complaint, who wants to voice that complaint, and maybe she doesn’t use exactly the right grammar, you think they’re akin to criminal rioters? Do you agree with that?
AG Garland: (03:32:45)
I do not. And I do not remember any Senator here making that comparison.
Senator Hawley: (03:32:50)
Oh, really? “These people are just like the folks who came here on January 6th and the riot at the Capitol.”
AG Garland: (03:32:56)
I don’t think they were referring to the picture that you’re showing there.
Senator Hawley: (03:32:59)
Well, I certainly would hope not, but they were referring to parents who go to school board meetings. Mr. Smith is a parent who went to a school board meeting. I’ll leave it at this, General Garland. You have weaponized the FBI and the Department of Justice. Your US Attorneys are now collecting and cataloging all the ways that they might prosecute parents like Mr. Smith, because they want to be involved in their children’s education and they want to have a say in their elected officials. It’s wrong. It is unprecedented to my knowledge in the history of this country. And I call on you to resign. Thank you, Mr. Chairman.
Mr Durbin: (03:33:32)
Senator Cruz: (03:33:36)
Thank you, Mr. Chairman. For eight years under Barack Obama, the Department of Justice was politicized and weaponized. When you came before this committee in your confirmation hearing, you promised things would be different. I asked you specifically, quote, “Will you commit to this committee that under your leadership the Department of Justice will not target the political opponents of this administration?” Here was your answer. Quote, “Absolutely. It’s totally inappropriate for the Department to target any individual because of their politics or their position in a campaign.” That was your promise just a few months ago. I’m sorry to say you have broken that promise. There is a difference between law and politics. And General Garland, you know the difference between law and politics. Law is based on facts. It is impartial. It is not used as a tool of political retribution. This memo was not law. This memo was politics.
Senator Cruz: (03:34:42)
On Wednesday, September 29th, the National School Board Association wrote a letter to the President asking the President to use the Department of Justice to target parents that were upset at critical race theory, that were upset at mass mandates in schools, to target them as domestic terrorists. On the face of the letter, the letter was in repeated consultation with the White House, in explicit political consultation with the White House. That was on Wednesday, September 29th. Five days later on Monday, so right after the weekend, boom, you pop out a memo, giving them exactly what they want. Now, by the way, I understand that. In politics that happens all the time. An important special interest wants something? Sir, yes, sir. We’re going to listen to them. Let me ask you something General Garland. In the letter, which you told the House of Representatives was the basis for this abusive memo targeting parents, how many incidents are cited in that memo?
AG Garland: (03:35:47)
I have to look back through the memo.
Senator Cruz: (03:35:49)
Okay. You don’t know. How many of them were violent?
AG Garland: (03:35:52)
Again, the general [crosstalk 03:35:55]
Senator Cruz: (03:35:54)
How many of them were violent? Do you know?
AG Garland: (03:35:56)
I don’t know.
Senator Cruz: (03:35:58)
You don’t know. And there’s a reason you don’t know. Because you didn’t care and nobody in your office cared to find out. I did a quick count just sitting here during this hearing. I counted 20 incidents cited. Of the 20, 15 on their face are non-violent. They involve things like insults. They involve a Nazi salute. That’s one of the examples. My God, a parent did a Nazi salute at a school board because they thought the policies were oppressive. General Garland, is doing a Nazi salute at an elected official, is that protected by the First Amendment?
AG Garland: (03:36:31)
Yes, it is.
Senator Cruz: (03:36:32)
Okay. 15 of the 20, on the face of it, are not violent. They’re not threats of violence. They’re parents who are unhappy. Yet miraculously, when you write a memo, the opening line of your memo: “In recent months, there has been a disturbing spike in harassment, intimidation, and threats of violence.” You know what? You didn’t look at nobody on your staff. Did you even look up the 20 instances?
AG Garland: (03:37:00)
As I testified, the decision to send a memo is for an assessment [crosstalk 03:37:06]
Senator Cruz: (03:37:05)
Did you look up the 20 instances?
AG Garland: (03:37:07)
I did not.
Senator Cruz: (03:37:08)
Did anyone on your staff look them up?
AG Garland: (03:37:10)
I don’t know the answer, but it’s not [crosstalk 03:37:12]
Senator Cruz: (03:37:11)
But of course you don’t and General, there’s a reason. You started your career as a law clerk to Justice Brennan. You’ve had many law clerks during the year, during your time as a judge. I was a clerk to Chief Justice Rehnquist. I’ll tell you what, if I drafted an opinion for the Chief Justice and walked in and it said, “There’s a disturbing pattern of violence.” “Well, Ted, how do you know that?” “Well, I got an Abacus brief here who claims it.” You would fire a law clerk who did that. You’re the Attorney General of the United States. This was not a tweet you sent. This is a memo to the Federal Bureau of Investigations saying, “Go investigate parents as domestic terrorists.”
AG Garland: (03:37:56)
That is not what the memo says at all. It does not [crosstalk 03:37:58]
Senator Cruz: (03:37:58)
It is what the letter says?
AG Garland: (03:38:00)
That is not [crosstalk 03:38:01].
Senator Cruz: (03:38:01)
Is it what the letter says?
AG Garland: (03:38:02)
I don’t care what the letter says.
Senator Cruz: (03:38:04)
You don’t care. You said it was the basis of your memo. You testified under oath before the House of Representatives the letter was the basis of your memo. Now you don’t care about the letter?
AG Garland: (03:38:12)
The letter and public reports of violence and threats of violence. My memo says nothing about domestic terrorism. It says nothing about parents committing any such things. My memo is an attempt to get an assessment of whether there is a problem out there that the federal government needs to [crosstalk 03:38:28]
Senator Cruz: (03:38:28)
The letter, on its face. It says the actions of the parents could be the equivalent to a form of domestic terrorism.
AG Garland: (03:38:35)
And that is wrong.
Senator Cruz: (03:38:35)
And asks the President to use the Patriot Act in regards to domestic terrorism directed at parents. This was the basis of your memo. The Department of Justice… When you’re directing the FBI to engage in law enforcement, you’re not behaving as a political operative because a political ally, the President says, “Hey, go attack these parents cause we don’t like what they’re saying, Department of Justice.” You did no independent research on what was happening, did you?
AG Garland: (03:39:09)
The memo has nothing to do with partisan [crosstalk 03:39:11]
Senator Cruz: (03:39:11)
Did you do independent research? Did you do independent research
AG Garland: (03:39:12)
The memo has nothing to do [crosstalk 03:39:16].
Senator Cruz: (03:39:15)
But you’re not answering that question. You’ve testified you know nothing about the violent sexual assault that happened in Loudoun County, even though it’s one of the bases in this letter.
AG Garland: (03:39:27)
I read about it since then.
Senator Cruz: (03:39:28)
Okay. You told the House last week you knew nothing about it.
AG Garland: (03:39:32)
I did not know at the time, no.
Senator Cruz: (03:39:32)
Okay. This week, the court concluded that a 14 year old girl was violently raped by a boy wearing a skirt in the girls’ restroom. The school district covered it up, released the boy, sent him to another school where he violently raped another girl. The father who Mr. Holly just showed you was the father of the first girl. He was understandably… Do you understand why a parent would be upset when your daughter is raped at school? The school board covers it up and then lies to you and claims there have been no assaults. We have no instances of assaults in our bathroom. And that was a flat out lie as the court concluded this week. Do you understand why the parent would be upset?
AG Garland: (03:40:18)
Absolutely. And any expressions of upset are completely protected by the first Amendment.
Senator Cruz: (03:40:23)
Except you just called him a domestic terrorist.
AG Garland: (03:40:25)
I never called him that. That’s not correct.
Senator Cruz: (03:40:27)
This letter calls him a domestic terrorist. You based a direction to the FBI, an official direction from the Attorney General, on this letter. And I’ll tell you what. The NSPA is so embarrassed to this letter, they’ve apologized for it and retracted it, but you don’t apparently have the same willingness to apologize and retract what you did. Let me ask you something else. A big part of this letter is that they’re upset about parents not wanting critical race theory talk. Your son-in-law makes a very substantial sum of money from a company involved in the teaching of critical race theory. Did you seek and receive a decision from an ethics advisor at the Department of Justice before you carried out an action that would have a predictable financial benefit to your son-in-law?
AG Garland: (03:41:17)
This memorandum is aimed at violence and threats of violence.
Senator Cruz: (03:41:20)
I just asked a question. Did you seek an ethics [crosstalk 03:41:22]
AG Garland: (03:41:22)
It has no predictable effect on…
Senator Cruz: (03:41:23)
Did you seek an ethics opinion?
AG Garland: (03:41:24)
It has no…
Senator Cruz: (03:41:26)
Did you seek an ethics opinion? Judge, you know how to ask questions and answer them? Did you seek an ethics opinion?
AG Garland: (03:41:30)
You asked me whether I sought an ethics opinion about something that would have a predictable effect on something. This has no predictable effect in the way that you’re talking about.
Senator Cruz: (03:41:38)
So if critical race theory is taught in more schools, does your son-in-law make more money?
AG Garland: (03:41:42)
This memo has not…
Senator Cruz: (03:41:43)
If critical race theory is taught in more schools, does your son-in-law make more money? Yes or no.
AG Garland: (03:41:47)
This memorandum has nothing to with critical race theory or any other kind of curriculum…
Senator Cruz: (03:41:51)
Will you answer if you sought an ethics opinion? Will you answer if you sought an ethics opinion?
AG Garland: (03:41:54)
I am answering the best I can.
Senator Cruz: (03:41:55)
Yes or no? Did you seek an ethics opinion?
AG Garland: (03:41:57)
This memorandum has nothing…
Senator Cruz: (03:41:59)
Did you seek an ethics opinion?
AG Garland: (03:42:01)
This memorandum has nothing to do with [crosstalk 03:42:03]
Senator Cruz: (03:42:03)
General, are you refusing to answer if you sought an ethics opinion?
AG Garland: (03:42:06)
I am telling you that there is no possible [crosstalk 03:42:08]
Senator Cruz: (03:42:07)
So you’re saying no. Just answer it directly. You know how to answer a question directly. Did you seek an ethics opinion?
AG Garland: (03:42:15)
I’m telling you that if I thought there was any reason to believe there was a conflict of interest, I would do that, but I cannot [crosstalk 03:42:22]
Senator Cruz: (03:42:22)
Why do you refuse to answer the question? Why won’t you just say no?
AG Garland: (03:42:25)
Senator Cruz: (03:42:26)
You’re not going to answer the question?
AG Garland: (03:42:28)
I’m sorry. Ask the question again.
Senator Cruz: (03:42:29)
Did you seek an ethics opinion?
AG Garland: (03:42:31)
I’m saying again, I would seek an ethics opinion [crosstalk 03:42:35]
Senator Cruz: (03:42:34)
So “no” is the answer, correct?
AG Garland: (03:42:37)
Mr Durbin: (03:42:37)
Senator, your time is up.
Senator Cruz: (03:42:38)
Let the record reflect, the Attorney General refuses to answer whether he sought an ethics opinion and apparently ethics are not a terribly high priority in the Biden Justice Department.
AG Garland: (03:42:48)
I don’t think that’s a fair reflection of what I said.
Senator Cruz: (03:42:51)
Then answer the question.
Mr Durbin: (03:42:53)
Senator, you’ve gone way beyond any other senator’s time. I think you ought to be at least respectful of other senators at this point.
Senator Cruz: (03:43:01)
Mr. Chairman, do you know the answer whether he sought an ethics opinion?
Mr Durbin: (03:43:04)
I think you have exchanged that so many times, we know where we stand. Now we have a request for three minute rounds and I have one from Senator Hirono and Senator Lee and Senator Booker. I’m sorry. And first of course, Ranking Member Grassley. We’re going to stick to three minutes. It’s been four hours since the Attorney General’s been in that chair with a couple breaks and I think we should try to wrap up if we can.
Mr. Grassley: (03:43:36)
Request to put something in the record. A Wall Street Journal editorial titled about the domestic terrorists parents, the article notes that the October 4th DOJ memo should be formally rescinded.
Mr Durbin: (03:43:51)
Mr. Grassley: (03:43:52)
Mr Durbin: (03:43:53)
General, after a great deal of pressure from victims and Congress, I know that you’re taking another look at the Department’s disgusting decision not to prosecute employees for lying to government officials in the Nassar investigation. Do you anticipate that the Department will similarly expunge the records of these employees just like McCabe or continue to give them get-out-of-jail-free cards as you’ve done so far?
AG Garland: (03:44:26)
As I said, Senator, we are reviewing the decisions with respect to the alleged false statements. That review is being done by the Criminal Division.
Mr. Grassley: (03:44:39)
Okay. Beginning in the summer of 2020, American cities began to see appalling and unprecedented spike and violent crime, murders and gang violence as liberal politicians operated under the rallying cry of Defund the Police. This movement translated into over 1200 deaths in 2020 alone. In the summer of 2020, then Attorney General Barr instituted Operation Legend as a way to combat the rising spike in violent crime. By any major, this surge in federal agents was a resounding success. By December of 2020, over 6,000 arrests had been made, over 2,600 firearms have been taken off our streets and approximately 467 people have been arrested for homicides. Given the clear success of Operation Legend, why is the Department seemingly directing its efforts towards school board meetings, but not towards real threats or real acts of violence that happen every day in American cities? So a simple question: Does Operation Legend still exist?
AG Garland: (03:45:47)
My understanding was Operation Legend was directed at violence over the summer of 2020. We have addressed another surge of federal prosecutorial and law enforcement efforts. This last summer, we have stepped up the amount of money we’re giving to state and locals, and we’ve increased our joint task forces together. I’ve visited federal and state law enforcement in New York and in Chicago and in Los Angeles and in San Francisco, all aimed at violent crime in those areas. And we’ve asked for considerable additional money, about $1 billion in grants, to fund the state and local police in FY22. I hope that answers your question.
Mr. Grassley: (03:46:39)
Okay. Only four packers, JBS, Tyson, Cargill and National Beef control more than 80% of the cattle market. These companies hold a tremendous amount of market power. The Justice Department issued civil investigative demands in May 2020, but we’ve yet to learn anything from this investigation. Could you provide an update and can you commit to expediting this investigation so that our cattle producers know whether there are any antitrust violations?
AG Garland: (03:47:10)
So I can’t discuss specific investigations. We have long standing policies against that. But I can tell you that the Antitrust Division is aggressively concerned with competition in the market that you described. We are also in frequent consultation with the Agriculture Department with regard to the Packers and Stockyards Act. We regard this as an area where we have to be very much concerned about exclusionary behavior and anti-competitive behavior.
Mr. Grassley: (03:47:42)
Mr Durbin: (03:47:44)
Thanks Senator Grassley. Senator Hirono. Senator, I think your mic’s not turned on.
Senator Hirono: (03:47:54)
One thing I have to say as we listen to, I don’t know, going on hour three is that the Republicans, once they focus on something, they just stick with it. It is amazing to me that there’s all this mixed mis-characterizing of the Attorney General’s memo, as well as a letter from the acting US Attorney of Montana and his letter is also totally mis-characterized as to what the focus of the Attorney General’s letter is. So I would like to submit for the record the acting US Attorney of Montana’s letter.
Mr Durbin: (03:48:34)
Senator Hirono: (03:48:35)
So, as I said, it’s amazing but not unusual that my Republican colleagues will continue to focus on something that the Attorney General has to continue to testify for the last three hours or whatever it is that his letter has been mis-characterized. And they will focus on that until the Nth degree. At the same time, what is a real problem is the fact that we have 530 voter suppression bills that have been introduced in 47 states. The vast majority by Republican legislatures. And people’s votes are literally being stolen through these voter suppression actions. And do we hear word one about the fact that this is happening all across our country, that voter suppression, stealing of votes is happening? Does a single Republican even care about that? No. So let’s let that sink in. That they talk about all of these, the memos they’re totally mis-characterizing and yet what is actually happening in voter suppression, not a peep.
Senator Hirono: (03:49:44)
So I want to ask you Mr. Attorney General. Shelby County pretty much gutted the Voting Rights Act and then followed by Brnovich wherein the majority opinion suddenly comes up with all these guideposts that the Justice Department now has to prove in order to protect our right to vote. So can you just tell us what the impact of the Supreme Court’s Shelby County and Brnovich decisions have been on the Justice Department’s ability to protect our right to vote? And is there something we can do? Are there tools that we can provide through a congressional action that will enable you to protect our right to vote?
AG Garland: (03:50:36)
Yes, Senator. The right to vote is a fundamental pillar of American democracy. The Voting Rights Act is one of the greatest statutes that was ever passed. It enabled the Justice Department to protect people’s right to vote and to prevent against discrimination based on race and ethnicity with respect to patterns or practices with respect to voting. In Shelby County, the Supreme Court took out the most important tool we have, which was Section Five which allowed pre-clearance by the Justice Department or alternatively allowed the state to go to Federal Court to get a clearance. And that left us with a circumstance of having to examine each case one by one with the burden on the Justice Department. So one thing that the Congress could do is put Section Five back in place as the Supreme Court indicated could be done with the appropriate legislative record. Second, Brnovich interpreted Section Two, statutory section, in a way that the Justice Department disagrees with, as we made clear in our papers. I’m not saying anything we didn’t say in our Supreme Court argument. They narrowed it in a way that we think was not consistent with congressional intent.
AG Garland: (03:51:56)
And which makes our ability to challenge discriminatory changes in voting much more difficult. Congress could again fix that by bringing back Section Two to what Congress originally intended and making that clear in statutory language. Both of those changes would be enormously important from the point of the Justice Department’s success in protecting the right to vote.
Mr Durbin: (03:52:24)
Thank you, Senator.
Senator Hirono: (03:52:24)
Well, I’m sorry. Mr. Chairman, it’s clearer that we will have to do those things that their Attorney General recommends to protect people’s right to vote without a single Republican going in that direction. That’s how pathetic it all is. Thank you.
Mr Durbin: (03:52:35)
Thank you, Senator. Senator Lee.
Mr. Lee: (03:52:38)
Thank you, Mr. Chairman. Attorney General Garland, I find it deeply concerning that you still haven’t cited a single example of a true threat of violence. And if I’m understanding this correctly and I’ve been here for most of this hearing, I’ve had to step up to vote a couple of times, but I think you seem to admit you didn’t do any independent research outside of receiving the September 29th National School Board Association letter. Now, one of the things, I find that perplexing and quite troubling. This came in, it was sent on September 29th. I believe that was a Wednesday. The following Monday, just days later, just barely over a weekend, you responded with your memo relying on the NSPA memo. Now as a member of the Judiciary Committee with oversight responsibility over your Department, I submit requests for information all the time.
Mr. Lee: (03:53:40)
It takes time. I understand that. Sometimes it takes months to get a response back. I’m always grateful when I do get a response back, especially when it’s a response that contains meaningful information. I understand people are busy and they’ve got a loss to comply with. But if one association can send one letter without any independent research on your part and within days, barely over a weekend, get not just a response, but an action memo signed by the Attorney General of the United States, I think that’s weird. I think that makes me really uncomfortable, especially when the National School Board Association, as I understand it, or those associated with it, had publicly stated that they’d been coordinating with officials at the White House on this for weeks. It doesn’t feel right. It doesn’t seem right to me. Now last week, two of our counterparts on our House counterpart Judiciary Committee asked you a little bit about the number of people entering the United States illegally. About 1.3 million have entered the United States illegally this year. That’s a lot of people. Of those 1.3 million, based on my own past experience as a federal prosecutor, I’m quite confident that some non-insignificant portion of those will have previously been deported. And as you know, under eight USC section 1326, that is a felony federal offense, illegal re-entry after previous deportation. Since they’ve asked you about that, have you had a chance to identify how many prosecutions have been brought for illegal re-entry this year? And I’d be curious about that. And I’d also be curious as to whether there’s anything analogous to your October 4th memo. Is there anything calling out concerns that you’ve got over illegal re-entry?
AG Garland: (03:55:39)
So, on that question, the 1.3 million are arrests I think made by CBP. They are referred. The Customs and Border Patrol makes a decision about whether put those people into removal proceedings, or to refer them to the Justice Department for prosecution. We have this year charged thousands of criminal cases with respect to violations of the immigration laws, with respect to crossing of borders. I don’t have the exact number. We can get you that exact number. But the number is in the thousands.
Mr. Lee: (03:56:19)
My time has expired. I expressed the concern because when the Department becomes focused on things that are not part of its business, namely harassing, threatening, intimidating moms and dads in America on chilling their ability to express their concerns to their neighbors, their friends, and those who represent them on a school board, they sometimes lose focus on the things that only the federal government can do, like controlling our border from the dangerous effects of illegal immigration generally and illegal reentry in particular. Thank you.
Mr Durbin: (03:56:49)
So I’d take it Senator Cruz and Cotton are seeking three minute rounds, is that correct? All right. And Senator Booker as well. Senator Booker.
Senator Booker: (03:56:58)
The October 4th memo reads, ” In recent months, there’s been a disturbing spike in harassment, intimidation, and threats of violence against school administrators, board members, teachers, and staff who participate in the vital work of running our nation’s public schools.” Is that true?
AG Garland: (03:57:13)
Senator Booker: (03:57:15)
It is true.
AG Garland: (03:57:16)
It is true.
Senator Booker: (03:57:16)
I have a list of very disturbing incidents. In Texas, a parent physically assaulted a teacher. August 18th, 2021, in Pennsylvania, a person posted threats on social media which required police to station outside of a school district, law enforcement investigating the person. I can keep going. Ohio, a school board member was threatening letter that began with “We are coming for you.” Domestic terrorism in the United States, sir, has it been more from overseas radical terrorists since 9/11 or more from homegrown terrorists, most of them being right wing extremists? Which has been greater since 9/11?
AG Garland: (03:57:55)
Oh, I want to be careful about that. The threats that we face with respect to terrorism, and none of those descriptions have to do…
Attorney General Merrick Garland: (03:58:03)
With respect to terrorism and none of those descriptions have to do with terrorism but the threats that we face in the United States come both from foreign terrorists-
Senator Booker: (03:58:09)
A church in South Carolina, a synagogue in Pennsylvania, a school, Parkland, a school, New Town. Has there been threats and violence against schools in the United States of America?
Attorney General Merrick Garland: (03:58:24)
There have been, yes.
Senator Booker: (03:58:25)
Coming from what types of groups?
Attorney General Merrick Garland: (03:58:27)
Well they come from domestic groups.
Senator Booker: (03:58:28)
From domestic groups.
Attorney General Merrick Garland: (03:58:30)
Senator Booker: (03:58:30)
Has there been a long, pages long lists of what my staff could grab, been threats and violence against school officials in the United States of America in the last year?
Attorney General Merrick Garland: (03:58:41)
I haven’t obviously haven’t seen the list, but it accords with my recollections.
Senator Booker: (03:58:45)
Well, let me accord your recollection with the letter that I’ve heard so much about that I pulled it to read it. You say literally, “Threats,” excuse me. “Spirited debate about policy matters is protected under the constitution.” I’m quoting one of my colleagues today. Does that sound like harassing and intimidating moms and dads? You affirm at the top of your letter, that spirited debate is allowed. “While spirited debate about policy matters is protected under the constitution,” that that protection does not extend to threats and to violence that we have been watching on our TV screens, intimidating people, threatening to hurt them, taking physical action, but you know what?
Senator Booker: (03:59:36)
You did not call for the DOJ and the FBI to monitor school board meetings, did you?
Attorney General Merrick Garland: (03:59:45)
No, I did not.
Senator Booker: (03:59:46)
You did not call for anyone to evoke the Patriot Act, did you?
Attorney General Merrick Garland: (03:59:50)
No, I did not.
Senator Booker: (03:59:52)
Sir. What you called is for the DOJ to convene meetings, to discuss strategies for addressing those threats.
Attorney General Merrick Garland: (04:00:01)
Senator Booker: (04:00:03)
Is that intimidating, mom’s and dad’s going to school board meetings?
Attorney General Merrick Garland: (04:00:07)
I can’t see how that could be interpreted as a threat-
Senator Booker: (04:00:10)
Sir, I know something about law enforcement intimidation, it stems from growing up as a black man in America. I know what it feels like to be pulled over, to be accused of stealing things, to every time I drive over the George Washington Bridge as a child, as a teenager to know I had to put extra time, because I was being pulled over by law enforcement. If someone was to read the actual letter, you are literally saying as the leader of the highest law enforcement office in the land that you protect spirited debate, that you think though, given the climate of school violence in America… I’ve met with victims from Parkland.
Senator Booker: (04:01:06)
Mr. President, I’m sorry. I have watched Republican after Republican go over time and I know you’re gently banging that gavel, but I’ve watched all today. My colleagues violate what you said at the beginning was a strict time limit and I would ask you to afford me two more minutes.
Mr Chairman: (04:01:25)
Is there objection? No objection.
Senator Booker: (04:01:30)
Have you met with Parkland survivors?
Attorney General Merrick Garland: (04:01:33)
I met with survivors at the White House.
Senator Booker: (04:01:37)
Yes or no, you’ve met with survivors of school violence? Have you-
Attorney General Merrick Garland: (04:01:42)
I met with the Parkland families, yes.
Senator Booker: (04:01:46)
Do you have a responsibility in a climate of threats and violence taking place at schools, do you have a responsibility to convene strategy meetings to try to make sure we do not have eruptions of violence in the country? Is that a responsibility of the federal government?
Attorney General Merrick Garland: (04:02:05)
Yes. Our job is to protect Americans.
Senator Booker: (04:02:09)
Did you specifically say anything in this election, in this letter that can be seen as harassing moms and dads and parents or did you explicitly say that the constitution protects spirited debate?
Attorney General Merrick Garland: (04:02:25)
I specifically said the constitution protects spirited debate, and I don’t believe there’s anything in this letter that could be read to intimidate mothers and fathers.
Senator Booker: (04:02:35)
And I’m not talking about the outrage machines that seemed to fuel our politics on both sides. I’m talking about the actual letter here, sir, that you wrote. You’re a good hearted person. Is there anything in this letter that could specifically lead a good hearted parent who is against mask mandates, who somehow believes that the teaching of racial discrimination is repugnant to them, is there anything in this letter that would prevent them from going and speaking to it and yelling and being upset and letting their elected officials know what they really believe? Is her anything in the actual print of this letter that could be seen to lead to that type of intimidation?
Attorney General Merrick Garland: (04:03:18)
No, Senator all of those things over tempted by the constitution.
Senator Booker: (04:03:22)
Will you say that one more time?
Attorney General Merrick Garland: (04:03:24)
All of those things are protected by the constitution.
Senator Booker: (04:03:27)
I hope that you will do your law enforcement work. There’s too much violence in this country. There’s been too many domestic terrorist attacks. I don’t want to have the next hearing hear be about some incident. I hope that you continue to convene your strategy sessions to protect parents and children and school officials from any kind of the heinous violence that we have seen way too much of in this country and that we all bear responsibility for stopping. Thank you, Mr. Chairman, for the allowance of the extra time.
Mr Chairman: (04:04:00)
Thank you Senator. Senator Cruz.
Senator Cruz: (04:04:02)
We talked just a minute ago about the difference between law and politics. We heard some impassioned political speeches, but also a question that just was asked by my friend from New Jersey. Is there anything in this memo to tell a parent that they’re being targeted for harassment and intimidation? I would note that the letter from the school boards cited 20 instances, 15 of which were non-violent. The letter from the school board described them as domestic terrorism.
Senator Cruz: (04:04:29)
Within days, the Department of Justice snapped to the commands of the special interest and issued a memo, a directive to the Department of Justice and a directive to the FBI. This is again where law matters. The opening sentence describes a disturbing spike in harassment, intimidation and threats of violence. Now you spent a long time as a judge when you have three things listed, am I correct, that anyone interpreting that, reading it would conclude that harassment and intimidation are something different than threats of violence given that you listed each of the three out separately, is that consistent with the cannons of construction?
Attorney General Merrick Garland: (04:05:09)
The Memorandum is addressed to professional prosecutor-
Senator Cruz: (04:05:13)
I asked you a question, not who it was addressed to.
Mr Chairman: (04:05:15)
Senator, at least let him respond.
Senator Cruz: (04:05:17)
No, not when he answers a non-sequitur. If he wants to answer-
Mr Chairman: (04:05:19)
He will respond-
Senator Cruz: (04:05:20)
You’re taking my time now. This is not coming out of my time.
Mr Chairman: (04:05:22)
Senator Cruz: (04:05:23)
When I ask a question, he can answer me.
Mr Chairman: (04:05:24)
We’ve given you more time than any other senator. Now listen-
Senator Cruz: (04:05:26)
Mr Chairman, when I ask a question-
Mr Chairman: (04:05:28)
All I’m asking is allow him to respond.
Senator Cruz: (04:05:29)
Mr Chairman, when I ask a question, he can answer the question but he’s proceeding to ask a total non-sequitur. I asked about the cannons of construction on the board-
Mr Chairman: (04:05:37)
Please let him respond.
Senator Cruz: (04:05:38)
I’ll ask the question again. The opening line of the memo, specifies harassment, intimidation and threats of violence. Is it correct, under the ordinary canons of construction, that a legal reader would understand that harassment and intimidation means something different from threats of violence? Is that correct?
Attorney General Merrick Garland: (04:06:00)
A legal reader would know Virginia versus Black, the Supreme Court definition of intimidation, and a legal reader would know 18 USC 2261A the definition of harassment.
Senator Cruz: (04:06:12)
And would a parent?
Attorney General Merrick Garland: (04:06:13)
This was not addressed to parents-
Senator Cruz: (04:06:15)
But you know, parents read it. You’re the attorney general of the United States. You said you can’t think of anything harassing. You directed the G man, the FBI to go after parents. All right, let’s move on to a different topic. We’ve sadly seen that you are willing to use the enforcement power, the Department of Justice to target those who have political views different than you, even if it’s a mom at a PTA meeting. Let’s let’s try the other side. Are you willing to enforce the law fairly against people who are political allies of the president.
Senator Cruz: (04:06:47)
At a senate hearing in May Dr. Fauci said, quote, “The NIH has not ever and does not now fund gain a function research in the Wuhan Institute of Virology.” That was under oath under testimony. On October 20th, the NIH principal, deputy director, in writing, directly contradicted it. Those two statements cannot be true. As you know, section 1001 of title 18 makes it a federal crime to knowingly make false statements to Congress. Is the Department of Justice investigating Dr. Fauci for lying to Congress and will you appoint a special prosecutor to do so?
Attorney General Merrick Garland: (04:07:23)
I’m going to say again, the memorandum that I issued is not partisan in any way. It has nothing to do with what I agree with or I don’t agree with, I don’t care whether the threats of violence come from the left or the right-
Senator Cruz: (04:07:35)
Could you answer the question I asked?
Attorney General Merrick Garland: (04:07:36)
The second question, we don’t comment on criminal investigations or other investigations.
Senator Cruz: (04:07:43)
Well, amazingly, when it’s the political enemies of the administration, you comment loudly in a memo. Let me ask one other question. [crosstalk 04:07:50] President Biden recently said in a National Town Hall that police officers who declined to get vaccinated should be fired. Do you agree with President Biden on that?
Attorney General Merrick Garland: (04:08:02)
I think all police saw… Look, I stood on the stage at the mall where the 700 and some police officer died this year, were commemorated-
Senator Cruz: (04:08:14)
Let me try again. Do you agree with the president? It’s a yes or no. You’ve asked questions as a judge. You know how to get a yes or no. Do you agree with the president? Yes or no?
Attorney General Merrick Garland: (04:08:21)
A large percentage of the law officers who died this year died from COVID-19.
Senator Cruz: (04:08:26)
Do you agree with President Biden, that police officers who decline to get vaccinated should be fired, yes or no?
Attorney General Merrick Garland: (04:08:32)
And if they had been vaccinated, they wouldn’t have died.
Senator Cruz: (04:08:34)
So is that a yes, you do agree with the president?
Attorney General Merrick Garland: (04:08:36)
[Inaudible 04:08:36] Police officer-
Senator Cruz: (04:08:37)
In Chicago, a third of the police officers did not file their vaccination status. Do you think Chicago should fire a third of its police officers when murder rates and crime rates are skyrocketing?
Attorney General Merrick Garland: (04:08:50)
This is a determination that the City of Chicago will have to make.
Senator Cruz: (04:08:53)
So do you agree with the president? The president said yes. Do you agree with him? You are the chief law enforcement officer of the United States. Do you agree with Joe Biden saying fire police officers despite skyrocketing crime rates?
Attorney General Merrick Garland: (04:09:04)
That is question, that is a one of state law there and will have to be decided by the state. You
Senator Cruz: (04:09:10)
You have no view on whether we should-
Mr Chairman: (04:09:11)
Senator, you time has expired.
Senator Cruz: (04:09:13)
Well, you use two minutes up.
Mr Chairman: (04:09:15)
No, I certainly did not. Senator Blumenthal.
Senator Blumenthal: (04:09:19)
Thanks Mr. Chairman and thank you again for being here. Mr. Attorney General. I’m going to shift topics to an issue that I know you’re familiar with, the 9/11 families and the state’s secrets privilege and I want to just say that I was encouraged and pleased when President Biden issued an executive order requiring the Department of Justice to complete a review of documents sought by those 9/11 survivors.
Senator Blumenthal: (04:09:50)
As you well know, they are in court now taking advantage of JASTA, the overwhelmingly approved measure that gives our federal courts jurisdiction over their claims for the harm they suffered when their loved ones were killed during the 9/11 attack and I was glad to see that the FBI has released at least one document on the 20th anniversary of the 9/11 deaths. I still am focused on the State Secret’s Privilege, the invocation of in past years before this administration, the overuse of it. In fact, the Trump justice department failed to provide any meaningful justification for withholding these documents from the 9/11 families and I think we see now that there was no justification.
Senator Blumenthal: (04:10:49)
So I know the department’s review is ongoing and that you will continue to disclose, I hope as much information as possible as swiftly as possible. Just to address the department’s use of the privilege more broadly, the memo requires the Department of Justice to provide periodic reports to Congress identifying the cases where the privilege is involved and explaining the basis for invoking it. I sent a letter earlier this month to you about this reporting requirement because this committee has received only two reports in 2011 and 2015 and in the six years since, the Department of Justice has failed to provide such reports.
Senator Blumenthal: (04:11:39)
Just to come to the point, I am respectfully asking for a commitment that you will provide these periodic reports to Congress and review the department’s policies with respect to it’s invoking the State Secrets Privilege, so as to comply with the 2009 memo, I may have gone too quickly over the various actions of the department, but I’m referring to the 2009 memo, which requires those periodic reports. So in the eight seconds that I have left and
Attorney General Merrick Garland: (04:12:16)
Yes, the answer to both questions is yes. We are currently reviewing that memo and if anything, we will strengthen it and we do intend to make periodic reports and it is not a periodic report to have not made a response since 2015, I assure you. So we intend to do that, yes.
Senator Blumenthal: (04:12:35)
Thank you very much.
Mr Chairman: (04:12:36)
Thanks Senator Blumenthal. Senator Cotton.
Senator Cotton: (04:12:38)
Judge, I want to return to our exchange of this morning, as I have reflected on it, you made a shocking admission. You issued this memo direct or sicking the feds on parents at school boards on Monday, October 4th, you acknowledge that there was no effort in the Department of Justice, no initiative to draft this memo or create these task forces before Wednesday, September 29th, when the National Scoreboard Association issued that letter, is that correct?
Attorney General Merrick Garland: (04:13:04)
I don’t know. All I know is that the first time I started working on this was after receiving the letter. That’s all I-
Senator Cotton: (04:13:11)
So from your standpoint, there was… You were not aware of any effort in the Department of Justice before that letter was sent on September 29th?
Attorney General Merrick Garland: (04:13:18)
I think it’s fair to say, as you’re suggesting, that this letter and what the other public notices of violence against school board members and teachers are what formed the basis for this-
Senator Cotton: (04:13:32)
This memo is dated October 4th, with your signature on it. Did you sign it on October 4th?
Attorney General Merrick Garland: (04:13:36)
Senator Cotton: (04:13:37)
So four intervening days, two of which were weekend days.
Attorney General Merrick Garland: (04:13:41)
Senator Cotton: (04:13:41)
I’d say that sets a land speed record for the federal government.
Attorney General Merrick Garland: (04:13:44)
Senator Cotton: (04:13:44)
Chuck Grassley pointed out that you have not responded to letters of his that had been outstanding for months. How is it the Department of Justice was able to move so rapidly on a single letter from a special interest group that has now repudiated that letter, said it regrets sending the letter and apologized to its members for sending the letter. How did your apartment move so fast on this matter?
Attorney General Merrick Garland: (04:14:04)
When an organization that represents thousands of school board members-
Senator Cotton: (04:14:09)
I would say they purport to represent thousands because state school boards across the country had been repudiating them and trying to withdraw their membership. That’s why the National School Board Association withdrew its own letter. Who brought this to your attention?
Attorney General Merrick Garland: (04:14:25)
May I answer the question?
Senator Cotton: (04:14:26)
I’m asking you a question now, who brought you this to your attention?
Attorney General Merrick Garland: (04:14:28)
You asked me a question, may I answer the question? The question is why speed? The answer is when we get reports of violence and threats of violence, we need to act very swiftly. I would have hated it to have gotten this letter and then acts of violence occurred in the interim before we were able to act. The only act here is assessing the circumstances. That’s all there is here and we can’t wait until somebody dies. That’s why we did this.
Senator Cotton: (04:14:53)
Okay, well you keep citing media reports. There were 24 incidents in that letter. As you’ve heard today, almost all of them were non-violent. They [inaudible 04:15:01] threats of violence-
Attorney General Merrick Garland: (04:15:00)
Those are not media reports I was referring to.
Senator Cotton: (04:15:03)
You said earlier it was news reports. Okay. What other reports that you saw about potential violence at school boards were you basing this memo on?
Attorney General Merrick Garland: (04:15:11)
I don’t recall them specifically, but I have now again seen since that time, people saying that they are repeating what they have said before, that they were threatened with-
Senator Cotton: (04:15:17)
But that’s all post-talk. That’s all after the fact. It doesn’t… It doesn’t go into your frame of mind on October 4th. Who brought this to you? Who brought this memo to you and asked you to sign it?
Attorney General Merrick Garland: (04:15:27)
I got… Nobody brought the memo to me and asked me to sign it.
Senator Cotton: (04:15:29)
Someone had to bring it to your attention, “Hey judge, we’re about to stick the feds on parents.”
Attorney General Merrick Garland: (04:15:33)
I’m sorry. No one said, “We’re about to sick the feds on parents.” That’s not an accurate description.
Senator Cotton: (04:15:37)
Someone brought this… Was this an initiative of Lisa Monaco?
Attorney General Merrick Garland: (04:15:40)
This memorandum went through the normal processes within the department and I worked on it myself and I signed it.
Senator Cotton: (04:15:49)
Someone was a proponent. I bet you didn’t write the first draft of this. Where did it come from? Did it come from Lisa Monaco’s office?
Attorney General Merrick Garland: (04:15:52)
I didn’t write the first draft but I did work on this memorandum and it represents my views and it represents my reading of the materials [crosstalk 04:16:00].
Senator Cotton: (04:15:59)
Did it come from Vanita Gupta’s office?
Attorney General Merrick Garland: (04:16:01)
I’m not going to discuss this-
Senator Cotton: (04:16:02)
Is this Matt Klapper’s initiative?
Attorney General Merrick Garland: (04:16:04)
I’m not going to discuss the internal workings of the justice department here. This memorandum respects… reflects my view, and I stand behind it. I continue to stand behind it.
Senator Cotton: (04:16:13)
Are you aware of conversations between members of your Department of Justice and the White House leading up to that letter from the School Board Association?
Attorney General Merrick Garland: (04:16:22)
I am sure there were conver… There were no conversations with me. I am sure there were conversations. It’s perfectly appropriate when the White House receives a letter calling for law enforcement response across the board, not with respect to a specific case for the White House to have conversations with the Justice Department.
Senator Cotton: (04:16:39)
Are you aware of conversations between your Department of Justice officials and White House officials and the members of the School Board Association all cooperating together, which is why you were able to move in four days judge, four days, two of which were weekends.
Attorney General Merrick Garland: (04:16:53)
As I said, I am sure there were conversations with the White House. I have no idea whether there were conversations with the School Board Association.
Senator Cotton: (04:17:00)
Well, I bet we’re going to find out if there were, and if it doesn’t happen now it’ll happen in 15 months when Republicans are in charge of [crosstalk 04:17:06].
Attorney General Merrick Garland: (04:17:05)
Well there’s nothing wrong with there being such conversations. Let me be clear again, this is not a request to investigate any particular prompt person or prosecute any particular person. In the same way you ask me to worry about violence in the streets, it’s perfectly appropriate for the White House to urge me to worry about violence in the streets, same way. They’re perfectly appropriate for the White House or any other organization to urge me to worry about election threats. There’s nothing that I knew about this organization to suggest that it is any way partisan. It’s a National School Board Association. I certainly never in my mind viewed that as a partisan organization.
Senator Cotton: (04:17:44)
And now that they’ve repudiated their letter, why don’t you just say you made a mistake?
Attorney General Merrick Garland: (04:17:46)
Senator Cotton: (04:17:47)
Why won’t you say you made a mistake and you relied on bad information?
Attorney General Merrick Garland: (04:17:50)
Because they didn’t repudiate their letter. They repudiated language in the letter, which I did not adopt and don’t agree with, but their concerns are about safety in the schools and about violence and this is a core concern of the Justice Department, that’s why.
Mr Chairman: (04:18:06)
Thank you. Senator Blackburn has asked for three minutes and I will conclude with my own three minutes after. Senator BlackBurn.
Senator Blackburn: (04:18:13)
Thank you, Mr. Chairman. Attorney General Garland, you just told me that you don’t think you ever met Susan Hennessey. Did you hire Susan Hennessey?
Attorney General Merrick Garland: (04:18:25)
I have sign-off authority for everybody and I suppose in the Justice Department [crosstalk 04:18:31], but that’s the best I can answer with respect to that but the question you were worried about Senator, and I understand had to do with Durham and as I explained, she has nothing to do with the Durham investigation.
Senator Blackburn: (04:18:44)
Okay. Were you unaware of her comments before you hired her?
Attorney General Merrick Garland: (04:18:49)
Senator Blackburn: (04:18:50)
You don’t know.
Attorney General Merrick Garland: (04:18:51)
I hire 115,000 people in the Justice Department.
Senator Blackburn: (04:18:55)
I am fully aware of that and it’s amazing to us that those 115, 000 people can’t investigate things like crime on the border, can’t investigate crime on the street and I’m going to return to this memo of October 4th, the memorandum cites harassment, intimidation and threats of violence and what I’d like to know is who chose that language, harassment, intimidation and threats and violence. You’ve said this reflected your views, but it’s become apparent that you did not write this memo yourself? So I would like to know who came up with that language, was that yours or was that submitted language?
Attorney General Merrick Garland: (04:19:48)
So I don’t know whether… Let me put it this way. This is language that law enforcement officers are very well understand. It is contained in the federal statute and in the Supreme Court opinion.
Senator Blackburn: (04:20:01)
[Crosstalk 04:20:01]Okay. Well, in the The House Judiciary Committee last week, you said you were concerned only about true threats. So are you going to revise your memorandum to make it clear that this applies only to true threats of violence instead of classifying parents in this country with domestic terrorists, such as Timothy McVeigh and Terry Nichols? The other thing I would like to know, you said to me earlier that your memo was based on the NSBA letter and the news reports. So you’ve said there was not a lot of independent research done by you and your staff. So if you would please submit to us for the record, the news reports that you’re referencing, so that we will be able to have that as a frame of reference and also, we would love to know who actually did write that memo and how they came up with the idea of calling parents, a domestic terrorist. One other thing I’ve got for you, do you agree with the Supreme Court that the second amendment is a civil, right and if so, what is your civil rights division doing to ensure it is being protected?
Attorney General Merrick Garland: (04:21:23)
So just to back up on some of the questions, the memo, doesn’t say anything about domestic terrorism or calling parents domestic terrorists. I do agree the second amendment is part of the Bill of Rights and is therefore a Civil Right, that the Civil Rights division has some generalized authorities, but it also has specific statutory authorities. I don’t know whether there is a specific statutory authority with respect to the second amendment that has been given by Congress to the Civil Rights division. I’m not aware of one. There may be, but I’m not aware of it.
Senator Blackburn: (04:21:56)
Okay. So we can depend on you and your Department of Justice to stand in support of the Second Amendment, is that what you’re saying to defend it?
Attorney General Merrick Garland: (04:22:07)
Yes, of course. The Second Amendment is part of the Bill of Rights.
Senator Blackburn: (04:22:08)
Okay. Thank you. It’s what we would like to know and I look forward to the other submissions in writing. Thank you, Mr. Chairman.
Mr Chairman: (04:22:15)
Thank you, Senator Mr. Attorney General, thank you for your patience. You have been sitting in that chair with a couple of breaks for four and a half hours. Many of these colleagues of mine have had ample opportunity to ask questions and then come back and ask some more, sometimes the same questions. I would just like to make this observation. I understand completely why you issued that memo and I wish my colleagues would reflect for a single moment as to why that memo is important, not just for school board members, but to send a message across America that there’s a line we’re going to draw when it comes to political expression. When you say words, when you wave your arms, that’s all protected, but when you threaten someone with violence or engage in acts of violence, that is never going to be protected and shouldn’t be.
Mr Chairman: (04:23:04)
It isn’t that long ago that Gabby Giffords, one of our colleagues in the house was gunned down in Arizona. Her husband is now serving as our colleague in the United States Senate. I don’t know the political bent of the person who shot her. It’s basically irrelevant, but we should never countenance that as adequate or proper political expression. Steve Scalise, the Republican Congressman from Louisiana was gunned down on a baseball practice field by someone from my state, who I believe was identified with the left in politics. It doesn’t make any difference. It was an outrage that, that good man has suffered as much as he has because of it and now we have the story in great Britain, David Amis, who goes to a town meeting and is stabbed to death in his constituency in England.
Mr Chairman: (04:23:55)
For goodness sakes, can’t we, even if we disagree on issues to a great degree, I agree with the premise that anyone who engages in violence or threats of violence has stepped over the line, whether they come from the right or the left.
Mr Chairman: (04:24:09)
I think that’s what you were trying to say in your memo about the school boards and like you, I have never heard the School Board Association identified as great, strong, special interest group. I haven’t seen it in the years I’ve been in Congress and then there are many great, strong, special interest groups. I would just say to you, thank you for doing that. It was the right thing to do. It has been mis-characterized and distorted not only today, but since then, but I think we can prove by our actions that we are not trying to stifle free speech, but only saying to people we’re going to draw a line.
Mr Chairman: (04:24:44)
I found it fascinating that at least one of the people who was criticizing you today and talking about the situation on January 6th was actually cheering the demonstrators on, on January 6th and there’s ample evidence of that. I would think we’ve got to draw a line that accepts in this civilized society, we are going to be respectful of one another, even if we disagree politically.
Mr Chairman: (04:25:08)
I thank you for your testimony. Would you like to have a closing comment?
Attorney General Merrick Garland: (04:25:12)
No. Thank you, Senator. I appreciate your remarks though. Thank you.
Mr Chairman: (04:25:15)
Thank you very much. The committee stands adjourned.