Sep 24, 2020
House Judiciary Committee Hearing on DOJ Civil Rights Division Transcript September 24
The House Oversight Committee held a hearing over the Civil Rights Division of the Department of Justice on September 24. Rep. Steve Cohen said: “It pains me to say that despite its righteous history and traditional role, the Civil Rights Division appears, under the Trump administration, to have abandoned its historical mandate to protect voting rights.” Read the transcript of the full hearing below.
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Mr. Cohen: (00:00)
… Distribute them to members and staff as quickly as we can. I will now recognize myself for an opening statement. With the authority to enforce this nation’s Civil Rights laws, the Department of Justice’s Civil Rights division is supposed to be the guardian of our most cherished and fundamental rights, the rights to be treated equally, the right to cast a vote in a free and fair election regardless of race, the right to obtain a job, a home, or an education free from discrimination, and the right to exist in a society where the police respect your constitutional rights and your rights as a human being. So that’s a pretty good group of rights to protect. Treated equally regardless of race, free from discrimination, and exist in a society where the police respect your rights.
Mr. Cohen: (00:58)
Over 60 years ago, Congress passed the Civil Rights Act of 1957 when Dwight Eisenhower was president. And as some people we know would say, “Dwight Eisenhower was Republican just like Abraham Lincoln.” To protect the voting rights of Black Americans and other minorities. It was the first Civil Rights law Congress had passed since Reconstruction, that would later be overshadowed in importance by the Voting Rights Act of 1965, and of course the Civil Rights Act of 1964. It represented a start of a reinvigorated effort by the federal government to ensure that all Americans could exercise their right to vote.
Mr. Cohen: (01:32)
The Civil Rights Act of 1957 established the Civil Rights Division in justice. It’s important to highlight that the very genesis of the Civil Rights Division was rooted in a renewed federal effort to protect voting rights. The right to vote is the foundation right upon which all other rights I previously described ultimately rest. Voting rights in the ’50s were, of course, most in jeopardy in the south. It is why I am especially concerned about efforts around the country since the Supreme Court’s decision in Shelby County versus Holder to prevent Americans from exercising the right to vote. Since Shelby County, we’ve seen the enactment of various voter ID laws with the purpose and effect of preventing people from voting under the pretext of protecting the integrity of elections. Many of you may remember Shelby County versus Holder and a wonderful dissent written by the late Justice Ruth Bader Ginsburg.
Mr. Cohen: (02:27)
These efforts are not without precedent in our country. In the past, literacy tests, grandfather clauses, and poll taxes have been used to silence the voices of Black Americans and other minorities that those in power did not want to hear from. The literacy tests would have failed Albert Einstein. They were impossible to pass for the most brilliant of human beings because they were designed by some of the less brilliant to make them the predominant voice. Today, we see different methods intended to achieve that same end, such as voter roll purges which include removal of voters we know for a fact are qualified, or the requirement of particular forms of voter identification that we know some segments of the population are less likely to possess.
Mr. Cohen: (03:14)
Yet, where is the Civil Rights Division? Where is the guardian of our civil rights? It pains me to say that despite its righteous history and traditional role, the Civil Rights Division appears, under the Trump administration, to have abandoned its historical mandate to protect voting rights. More interested in protecting other newfound important rights that sometimes trample on other people’s rights. Since the start of this administration, the Civil Rights Division has filed zero new Voting Rights Act cases until this past May. And none that imports the rights of Black and Latino voters. It has also abruptly changed positions in several existing voting rights cases, including a case against a racially discriminatory voter ID law in Texas, and a challenge to a purge of Ohio’s voter rolls.
Mr. Cohen: (04:07)
As bad as this is, it is not the only change or the worst we’ve seen in the Civil Rights Division since the start of the current administration. Under the former Attorney General, Jeff Sessions, the division sought to curtail the use of consent decrees as a tool to reform police departments that engaged in a pattern and practice of unconstitutional conduct, asserting that such decrees reduced the morale among officers and had the effect of increasing violent crime. Reduce the morale among officers. Despite the new wave of protest against racial injustice and police violence that began after the murder of George Floyd, these policies have continued under Attorney General Bill Barr. One of the purposes of justice is to bring peace to communities. Yet Attorney General Barr has only intensified the divisions and refused to allow the Civil Rights Division to perform what its function is supposed to be.
Mr. Cohen: (05:06)
Indeed, despite a request from leading civil rights groups and calls from the community, Attorney General Barr has so far refused to allow DOJ to open a pattern or practice investigation into systemic racial discrimination by the Minneapolis Police Department following the killing of George Floyd. Perhaps thinking that the institution of law and order on the streets from Washington was a better way to achieve that and to boost the morale of the police. The Civil Rights Division has become a twisted shadow of its former self in Bill Barr’s dystopian justice department and under this administration. The division must answer for its inaction or, in some cases, its active opposition to civil rights enforcement. With the guidance of our witnesses today, it must chart a new course going forward. Today, we have a special guest or the absence of a special guest. Normally at a hearing like this, the assistant attorney general for civil rights would appear before us to testify about the work of the Civil Rights Division, custom and norms. The assistant attorney general for civil rights have typically appeared before this subcommittee for these hearings. In July, when Attorney General Bill Barr acquiesced to appear before this committee after refusing to do so over a year earlier, when he chickened out because he didn’t want to have two attorneys, Mr. Eisen and his cohort, question him, I asked, at the insistence of my counsel on the committee, I asked Mr. Barr to send Assistant Attorney General Eric Dreiband and ask him to commit to sending him to testify before this hearing. He replied in a condescending tone, “I’ll talk to him about it,” and turned his head aside. And I asked him again, I said, “Will you get him to appear before this committee?” And once again, in that same condescending tone, he turned away and said, “I’ll talk to him about it.”
Mr. Cohen: (07:29)
Well, I don’t know what he said to him, but Mr. Dreiband’s not here. There’s a seat for him, just as there was a seat for Mr. Barr in 2019, an unoccupied seat showing the disdain they have for this committee, for the legislative process, for the House of Representatives. And apparently they think it’s the unitary president is not just the president who’s controls the entire executive, but controls the entire government. On August 28th, the committee sent a formal invitation to Assistant Attorney General Dreiband to testify today. And on Monday, the latest pattern of a longstanding pattern of complete obstruction, the Justice Department informed us that Mr. Dreiband would not be appearing for this hearing. Worse yet, the excuse that the department provided was about as immature and unsophisticated as saying the dog ate my homework. Evidently, the department feels we were too rough on Attorney General Barr. We hurt his feelings. We didn’t treat him with the respect that previous attorney generals deserved when he appeared before us and is therefore refusing to send other officials to testify before this committee. That dog won’t hunt.
Mr. Cohen: (08:44)
Under our system of checks and balances, the Congress has the right and the obligation to conduct vigorous oversight of the executive branch. And the executive branch has the obligation to be responsive to Congress’s legitimate oversight inquiries. Even those inquiries which may be pointed in tone. That’s why Congress is article one. The founding fathers intended Congress as article one to be the top branch, the people’s representatives. The department’s broad refusal to cooperate with the committee’s legitimate request not only undermines our nation’s constitutional system, a system in which no branch is above scrutiny, but also does a disservice to the public. The American people who pay for the Justice Department and who the department is supposed to serve have a right to know what the Civil Rights Division has been doing and to assess the quality of its performance, particularly as we approach an election in which the people have a chance to render their judgment about such a performance.
Mr. Cohen: (09:42)
By keeping this subcommittee in the dark, the department keeps the public in the dark. We know why they keep us in the dark, because they don’t want to tell us what they’ve not done. This is totally unacceptable and I call upon the department once again. And I know calling upon the vacant seat, calling upon the department, asking Bill Barr to do anything is fruitless. But I will call once again as my able and learned and wise counsel suggested asking Mr. Barr if he would ask Mr. Dreiband to come before this committee, knowing that he would not do it. And I wasted 30 seconds of my time, but we got him on the record to say he would discuss it. And when I saw his condescending tone after I watched the film of that, I realized it was wise that I didn’t ask him questions and I attacked him for destroying the first amendment at Lafayette Square and sending the troops in. Because he wasn’t going to answer any questions appropriately.
Mr. Cohen: (10:37)
His not sending his representative here, the people’s representative, is unacceptable. And I will call upon the department to make Assistant Attorney General Dreiband available promptly to testify about the civil rights work of his committee. It’s now my pleasure to recognize the ranking member of the subcommittee, gentleman from Louisiana, Mr. Johnson, for his opening statement.
Mr. Johnson: (10:59)
Thank you, Mr. Chairman. Good morning. Thanks everybody to being a part of this hearing today. I’m really just stunned at the opening statement by the chairman. I respect you, my friend, but what you’ve said here is just clearly in contradiction to the facts. I mean, you say that the Civil Rights Division and the attorney general are running a dystopian operation. What’s dystopian here is the way this committee has been run for the last two years. Everybody can see this for themselves. The American people have watched what’s going on here. The lack of decorum, the danger it’s done to the legitimacy of this institution. To say that the attorney general chickened out is just outrageous. It’s not only counterproductive rhetoric, it’s in direct defiance to the history that is recorded on video that every American can see for themselves. It’s theatrics. It’s what all the judiciary committee has become. For two years, we’ve been doing theatrics. It’s, of course, in direct contradiction to what everybody can see for themselves.
Mr. Johnson: (11:57)
I just want to read, take a minute to read from this letter that has just been criticized here. It’s dated September 21 from the office of the assistant attorney general in response to the request to show up. Point out, first of all, there was no subpoena issued for Mr. Dreiband. Of course, this committee uses subpoenas all the time and certainly could have done that, but instead they sent a snarky letter. And this was the very respectful response that they got back. I’ll just read you a couple of excerpts. “Dear Mr. Chairman, I write in response to your August 28, 2020 letter to Assistant Attorney General Eric Dreiband.”
Mr. Johnson: (12:32)
He goes on, “The Department of Justice recognizes that the committee has a legitimate interest in oversight of the department, including the matters identified in your letters. That is why the attorney general himself recently appeared in person to testify about these subjects and others at the committee’s oversight hearing on July 28th, 2020. Prior to the attorney general’s testimony, the committee advised that the members would seek to ask him about the policies of the Civil Rights Division with respect to police conduct, the election, and voting rights,” that we just heard about. ” Unfortunately,” skipping down, “when given the opportunity to obtain information from the head of the Department of Justice himself about precisely these matters, many committee members chose instead to use their allotted time to air grievance rather than attempt to obtain information from the department that would assist the committee in recommending legislation to the house. Many members of the majority devoted their time entirely towards scolding and insulting the attorney general of the United States. These members refused to allow the attorney general to respond to their accusations or to answer questions asked for rhetorical effect.”
Mr. Johnson: (13:32)
It goes down, just reading a couple excerpts, “We very much regret that the committee did not elect to engage in a meaningful, good faith effort to obtain information and views from the attorney general while he was present and prepared fully to testify. Having squandered its opportunity to conduct a meaningful oversight hearing with the AG, it remains unclear how further public spectacles with other department officials would now, a mere 14 legislative days since the attorney general’s hearing, advance the committee’s legitimate oversight efforts. In short, the attorney general recently appeared before the committee, was available to address the topics that are to be covered at today’s hearing, and although the department is not in a position to provide witnesses for these hearings at this time, should the committee nonetheless continue to have particular interest in obtaining information from the department and should the committee commit to doing so in an appropriate and productive manner, the department would be happy to work with you regarding the scheduling of additional oversight hearings in the future. Sincerely,” signed, “Stephen Boyd, Assistant Attorney General.”
Mr. Johnson: (14:29)
The point is very clear. Everyone saw the spectacle. It’s become a point of comedy in the country. That hearing was just absolutely outrageous. I think it’s going to backfire on our friends that tried to use it for political purposes, and I do not begrudge in any way Mr. Dreiband’s not being here this morning because why would he? It’s another spectacle. I’m going to just say this in response to what was said here in the beginning. The Civil Rights Division of the Department of Justice obviously plays a very important role in enforcing our nation’s civil rights. But rather than becoming, I just wrote the quote down, it’s rather incredible, a twisted shadow of its former self, as the chairman said, instead of that, the division has been very active and innovative. They’ve done some exceptional work over the last three and a half years. The division prosecutes cases involving hate crimes, discrimination in education, and housing, employment, immigration, and many other areas.
Mr. Johnson: (15:22)
I spent most of my 20 year legal career prior to Congress as a religious liberty defense attorney. And I watch those areas very closely because it’s of personal interest to me. I’ve been particularly grateful to the Trump administration for the emphasis it’s given to the protection of our first freedom. Under his leadership, we have a couple of examples just in this subcategory. Under his leadership, the Assistant Attorney General Eric Dreiband, the Civil Rights Division has taken affirmative steps to protect the religious liberty of everyone. In June of 2018, the DOJ launched its Place to Worship Initiative that focuses on ensuring that religious institutions are not discriminated against in land use cases in violation of RLUIPA, the Religious Land Use and Institutionalized Persons Act. To date, under this initiative, the Civil Rights Division has intervened in cases to protect the rights of churches, synagogues, a Buddhist retreat center, a Hindu temple, and an Islamic association. In July of 2018, a month later, the DOJ created the Religious Liberty Task Force to coordinate the efforts of DOJ components on litigation and policy relating to religious liberty.
Mr. Johnson: (16:20)
And just as COVID-19 has come to define the lives of Americans in recent months, the Civil Rights Division’s most recent work has also addressed novel issues relating to the pandemic. We know that state and local governments implemented restrictions on travel and public gatherings in response to the pandemic, and the ability of many religious institutions to conduct in-person worship services was eliminated or curtailed. While churches and other houses of worship must comply with generally applicable requirements the same as any other entity, the Supreme Court’s held very specifically the government can’t use religion as a basis of classification for the imposition of duties or penalties, privileges or benefits. Some jurisdictions have nonetheless targeted houses of worship for discriminatory treatment during the COVID-19 pandemic. And the DOJ has sought to address this conduct.
Mr. Johnson: (17:04)
On April of this year, Attorney General Barr issued a memo directing Assistant Attorney General Dreiband and Matthew Schneider, the US Attorney for the Eastern District of Michigan, to lead an effort to monitor and if necessary intervene to stop discrimination against religious institutions and religious believers. Consistent with this directive, the Civil Rights Division has taken action to intervene where state or local governments treated religious institutions less favorably than secular institutions and restrictions relating to the pandemic. The mantle has also been taken up by public interest legal organizations who provided critical pro bono legal services to houses of worship seeking to be treated the same as comparable secular entities.
Mr. Johnson: (17:43)
In addition to religious institutions, private individuals who have sought to express conservative or religious viewpoints through peaceful protest have been subjected to discriminatory treatment by state and local officials. This happened in New York, New Jersey, North Carolina, here in the District of Columbia. Local authorities arrested individuals merely for engaging in constitutionally protected conservative and religious speech. These same state and local authorities have often encouraged similar activity by individuals who support causes they favor such as police reform. Of course, those protests, encouraged by state and local authorities, have at times devolved into violent riots. And after so many of those riots have resulted in the destruction of public and private property, residents and businesses in those communities have been left to pick up the pieces. We’re going to hear a little bit about that today.
Mr. Johnson: (18:29)
Under our constitutional system, there is never an excuse, even during a pandemic, to discriminate on the basis of religion or the viewpoints that people express. Respecting the civil liberties of citizens and protecting public health are not mutually exclusive pursuits. In America, we have to do both. The attorney general summarized this very well when he said, “The Constitution is not suspended in times of crisis.” Mr. Chairman, I’d just ask unanimous consent to enter into the record of the hearing this letter that I read from that we received from the attorney general.
Mr. Cohen: (18:58)
Without objection, it will be done.
Mr. Johnson: (18:59)
And I thank you for that. And I look forward to hearing from all our witnesses today. I hope we can have productive conversation. And I yield back.
Mr. Cohen: (19:07)
Thank you. Mr. Nadler, the ranking member’s arriving, and he’ll be recognized in a second for his opening statement. But I do appreciate the fact that the ranking member brought up what the division has done for the protection of religion because it’s going to be important for us to have religion and a place to pray for the return of democracy if things don’t turn around soon. I yield to Mr. Nadler for his opening statement.
Mr. Nadler: (19:40)
Thank you, Chairman Cohen. And thanks to all our witnesses for joining us today. When Attorney General William Barr came before the full committee earlier this year, many of our questions focused on the Trump administration’s abysmal record on civil rights. We pressed Mr. Barr to answer questions about federal officials tear gassing protestors at his direction, about voting rights, about police violence, and about other pressing matters where it appears the Civil Rights Division has been either absent or actively counterproductive. Today, Assistant Attorney General Eric Dreiband, I hope I pronounced that right, the man who is in charge of the Civil Rights Division, simply refuses to appear to defend his record such as it is.
Mr. Nadler: (20:23)
And although I would like to focus on the substance of this hearing, I must take a minute to acknowledge the department’s truly astonishing explanation for his absence. Late Monday night, DOJ sent a letter stating that Mr. Dreiband would not be attending today’s hearing and that the heads of the Bureau of Prisons and the US Marshall Service also plan on boycotting an upcoming hearing before the subcommittee on crime terrorism and homeland security. Now, this administration has come up with a lot of reasons for ignoring Congress. We’ve heard them assert absolute immunity. We’ve heard them complain about the terms in which government lawyers are allowed to accompany the witnesses. We’ve heard them say the hearing date is too soon. But this one takes the cake. The United States Department of Justice now says in complete seriousness that it is not sending any more witnesses to this committee because we were mean to Attorney General Barr when he was here in July. Or as the department put it, that we “used our allotted time to air grievances.” Apparently, it is too … Excuse me. Apparently, it is too much for DOJ to stomach the thought that when the attorney general orders the tear gassing of peaceful protestors, repeatedly interferes in criminal investigations to protect the president, and actively foments distrust in an upcoming election, he might get some pressing questions when he comes before the Congress. But in a way, Mr. Dreiband’s absence from today’s hearing is fitting because this hearing is really about the complete absence of the Civil Rights Division when it comes to enforcing civil rights. Mr. Dreiband’s not being here perfectly encapsulates what we have been seeing from his office for the past four years, an empty chair.
Mr. Nadler: (22:19)
The Civil Rights Division is a large office with a proud tradition of enforcing some of our most sacred laws from voting rights to housing and disability rights, and from employment and education rights to the right to be free from police violence. The Civil Rights Division is supposed to stand up for the values that protect all people in our nation. But during this administration, time and time again, the division has fallen short. As far as justice and policing goes, it has abandoned the idea of pursuing structural reform through consent decrees, a critical tool that courts and DOJ have used in the past to reform unconstitutional policing in our cities. As for voting rights, what we have seen as a near total abdication of responsibility. The division has filed precious few cases protecting American’s voting rights. And it has filed no new cases protecting the rights of Black or Latino voters among others.
Mr. Nadler: (23:16)
After reviewing a list of activities published by the division, one former official commented, “Frankly, it’s hard to see what the voting rights section is doing all day.” Worse still, in many instances, the Civil Rights Division has switched its earlier positions to fight actively against the interests of minority voters. In cases involving LGBTQ rights as well, we have seen the Justice Department actively litigate against gay, lesbian, and transgender Americans, including by arguing in the Supreme Court that federal law permits employers to fire their employees for being gay or transgender. Fortunately, they lost. And now the Civil Rights Division is urging the courts to eliminate what remains of affirmative action and diversity in college admissions.
Mr. Nadler: (24:01)
Fortunately, and in the absence of actual participation from Mr. Dreiband, we have excellent witnesses before this committee today who can help inform us about where the division has fallen short, and most importantly, where it can improve. I thank Chairman Cohen for holding this hearing, and I look forward to hearing from the panel. I yield back the balance of my time.
Mr. Cohen: (24:23)
Thank you, Chairman Nadler. I’d now like to recognize the ranking member, my classmate, Mr. Jordan.
Mr. Jordan: (24:28)
I think the chairman, and I would just point out the chairman’s subcommittee said the attorney general’s immature. What? This from the guy who brought a bucket of chicken to a hearing?
Mr. Cohen: (24:39)
I did not say he was immature. I said a lot of things about him.
Mr. Jordan: (24:44)
You did too.
Mr. Cohen: (24:45)
I did not.
Mr. Jordan: (24:47)
The chairman said the attorney general was condescending during the hearing two months ago. He was interrupted 70 times by the Democrats. Over 30 times, they used the phrase reclaiming my time. Everyone saw the spectacle that the ranking member of the subcommittee talked about. And you want to say he was condescending? You got to be kidding me. No wonder the guy doesn’t want to come. Jeepers. I’ve never seen anything like … Well, I tell you one thing I do remember from that hearing too. I remember when the attorney general of the United States asked the Democrats, “Why won’t you speak out against the mob? Why won’t you speak out against the violence?” And guess what he got in response? Silence from the Democrats. We’ve got a witness here today, Sam Mabrouk from Columbus, Ohio, who knows what the mob can do to his store. Looted his store, destroyed, stole his property. And you guys refuse to speak out against it, but you can bring a bucket of chicken to a hearing. This is ridiculous.
Mr. Jordan: (25:47)
I want to thank our witness. I want to thank Mr. Sasser for coming, I want to thank Mr. Mabrouk for testifying. We feel for what you’ve had to go through as a business owner. The mob that they won’t speak out against destroying your property, looting your store. And all they want to do is lecture the attorney general, get mad at the Justice Department because they won’t send a witness after the way the attorney general was treated. The American people saw that hearing. They know how you guys treated him. Five hours of it, five hours of it. And the guy who brings a bucket of chicken wants to condemn and critique the attorney general. You got to be kidding me. You’ve got to be kidding me.
Mr. Cohen: (26:27)
Mr. Jordan: (26:27)
Oh, that’s great. That’s great. I look forward to our witnesses. I appreciate what the ranking member of the subcommittee had to say. I yield back the balance my time.
Mr. Cohen: (26:48)
Thank you, Mr. Jordan, for your prescient remarks. We welcome our witnesses and thank them for participation in today’s hearing in person or virtually. I will now recognize each of the witnesses. And after each introduction, we’ll recognize that witness for his or her testimony. Your written statement will be entered into the record in its entirety. Accordingly, I ask you to summarize your oral testimony in no more than five minutes. Before proceeding with the testimony, I’d like to remind all of our witnesses that you have a legal obligation to provide truthful testimony and answers to the subcommittee, and that any false statement you may make today may subject you to prosecution under Section 1001 of Title 18 of the United States code.
Mr. Cohen: (27:31)
Our first witness is Catherine Lhamon. Ms. Lhamon is chair of the United States Commission on Civil Rights, a position she has held since 2016. Ms. Lhamon previously served as the assistant secretary for Civil Rights at the US Department of Education from June 2013 until January of 2017. She clerked for the honorable William A. Norris on the US Court of Appeals for the Ninth Circuit. Ms. Lhamon received her JD from Yale Law School, where she was the Outstanding Woman Law Graduate. And she graduated summa cum laude from Amherst. Ms. Lhamon, you are recognized for five minutes.
Ms. Catherine Lhamon: (28:06)
Thank you to the chair, and thank you to each of the members for inviting me to testify. I am Catherine Lhamon and I chair the United States Commission on Civil Rights, which Congress has charged to evaluate the effectiveness of civil rights enforcement, including at the United States Department of Justice. The Department of Justice’s Civil Rights Division is tasked, as we heard this morning, with enforcement of all federal civil rights laws, and among other duties, files civil rights litigation to fulfill its mission. As 17 state attorneys general testified to the commission I chair, Congress has reserved exclusively to the federal government and specifically to DOJ powerful remedies to redress civil rights wrongs. But if DOJ does not enforce these laws, the states are not positioned to pick up the slack. Not withstanding these very high stakes to the American people, the Civil Rights Division is not currently fulfilling this mandate, dangerously leaving Americans vulnerable to violation of their civil rights.
Ms. Catherine Lhamon: (29:10)
The Civil Rights Division’s case resolutions dropped nearly 25% between fiscal year 2016 and fiscal year 2018. In addition to the actual drop in case resolutions in recent years, the Trump administration has repeatedly requested funding reductions to DOJ civil rights work, signaling its dollar commitment to doing less work, and has in fact reduced the number of staff at the Civil Rights Division. I am pained to report to you today that in this administration, the Department of Justice Civil Rights Division fails to make statutory promises and constitutional convictions real in the lives of all Americans. Concern over that failure should not be partisan. The commission received powerful testimony from former Republican administration DOJ civil rights officials about what should occur in conservative administrations, including, and this is a quote, “that one thing a Republican administration should be able to do is to enforce mightily the kind of core statutory functions DOJ has.”
Ms. Catherine Lhamon: (30:15)
To concretize the civil rights harm that can follow from Justice Department inaction, I offer a handful of examples. In 2018, the commission unanimously found that pernicious race discrimination in voting endures today, and that barriers to voter access and discrimination continue today for voters with disabilities and voters requiring language assistance. Despite this ongoing discrimination in voting, we at the commission found the DOJ enforcement is lacking, with actual enforcement work lagging well behind nonprofit litigation in the area notwithstanding a statutory charge and associated appropriated taxpayer funding to do the work.
Ms. Catherine Lhamon: (30:57)
Our 2018 assessment of course predated the pandemic that we now live. There are specific additional civil rights risks associated with the rise of COVID-19. The commission received testimony about the increased health risks associated with people casting in-person ballots with insufficient measures to guard against the transmission of COVID-19 against the backdrop of what we know about pronounced racial disparities in deaths due to coronavirus. The commission received bi-partisan calls for increased access for mail-in ballots, as well as substantial testimony about the need for safe in-person voting options to preserve access for voters with disabilities and voters who require language assistance. But in the face of these dire concerns about American citizens ability to practice that most essential core function of our democracy in casting a ballot, the commission received testimony the DOJ has been still largely absent from enforcement that protects and ensures voter access. Turning to oversight of-
Ms. Catherine Lhamon: (32:03)
… and ensures voter access. Turning to oversight of law enforcement, several uses of deadly force against Black civilians earlier this year underscore an ongoing need for federal leadership in enforcement against unconstitutional policing practices to protect civil rights. Congress specifically authorized DOJ to conduct pattern of practice investigations to determine if law enforcement had violated constitutional or federal rights. But in the Trump administration, the DOJ has abandoned pattern or practice investigations criticized them as a tool and refused to initiate new investigations, and curtailed the use of consent decrees.
Ms. Catherine Lhamon: (32:41)
As police leaders generally recognize, fostering community trust, positive community relations, and cooperation are essential for law enforcement to effectively discharge their public safety duty. Yet the department now fails to use the full measure of its authority to conduct investigations into these cases and to bring enforcement actions, if appropriate, to prevent these events and other systemic deprivations of constitutional rights from occurring.
Ms. Catherine Lhamon: (33:10)
Finally, DOJ has taken affirmative steps to promote an interpretation of sex discrimination laws that the United States Supreme Court roundly rejected, yet DOJ has not altered course to accommodate even that ruling from the highest court in the land. DOJ persists in ignoring the law as it is, in Justice Gorsuch’s words, violating DOJ’s own civil rights [crosstalk 00:33:34].
Chairman Steve Cohen: (33:33)
We’re going a little bit over. You can wrap up in about 10 seconds. You’re over about 30 already.
Ms. Catherine Lhamon: (33:38)
I will. Thank you. Just to say the DOJ is harming not only the LGBT community most directly impacted, but also all people whose rights are limited by incorrect federal understanding of and commitment to protection against sex discrimination. We need the Department of Justice to live up to the justice in its name. Thank you.
Chairman Steve Cohen: (34:00)
Our next witness is Sherrilyn Ifill. Ms. Ifill is the President and Director-Counsel of the NAACP Legal Defense and Education Fund, a position she’s held since 2013, and I think a position Mr. Ogletree might have held at some time. One of the most … No? He didn’t hold it? Well, he was a star litigator there. She first joined the staff of the Legal Defense Fund in 1988 as an assistant counsel that litigated voting rights cases at that time. For 20 years, she taught on constitutional law and civil procedure at the University of Maryland School of Law. She has her JD from New York University School of Law, which is in Mr. Nadler’s district, and her BA from Vassar. Ms. Hill, you’re recognized for five minutes. Ms. Ifill?
Sherrilyn Ifill: (34:49)
Good morning, Chairman Cohen and Ranking Member Johnson, members of the subcommittee. My name is Sherrilyn Ifill and I’m President and Director-Counsel of the NAACP Legal Defense Fund, and I thank you for the opportunity to testify this morning regarding the ongoing need for oversight of the Civil Rights Division of the Department of Justice. LDF was founded in 1940 by Thurgood Marshall, the trailblazing civil rights lawyer whose groundbreaking litigation created the field of civil rights law. Marshall later became the first Black justice to sit on the United States Supreme Court. LDF has been an entirely separate entity from the NAACP since 1957. We were launched at a time when the nation’s aspirations for equality and due process of law were stifled by widespread state-sponsored racial inequality. The Civil Rights Division of the Department of Justice was created by the Civil Rights Act of 1957, the first civil rights statute enacted since reconstruction. The division’s formation in the early days of the Civil Rights Movement proved critical to ensuring protection for civil rights demands for equal citizenship in southern states by Black citizens. I feel compelled to say that the core purpose of the creation of the division was to protect against racial discrimination. And because of the presentation I heard earlier from Representative Johnson about the department’s role in religious discrimination, I feel compelled to call the names of the civil rights martyrs who were killed in the years, leading up to the passage of the Civil Rights Act of 1957, to ensure we remember the context in which the division was created. Harry Moore, who was assassinated in his bed in Florida in 1951. Reverend George Lee in Mississippi in 1955. And of course, young Emmett Till in 1955, in Money, Mississippi. It was in that context that the Civil Rights Division was created as part of the Civil Rights Act of 1957.
Sherrilyn Ifill: (36:55)
LDF is particularly well-suited to speak about the work of the Civil Rights Division because four former LDF staff attorneys served as Assistant United States Attorney Generals for Civil Rights, the position that Mr. Dreiband holds today, leading the Civil Rights Division in its work during critical times in the division’s history. They include Drew Days, 1977 to 1980, Deval Patrick, 1994 to 1997, Bill Lann Lee, 1997 to 2001, and most recently, Vanita Gupta, from 2014 to 2017. And she appeared most recently before this committee in 2016.
Sherrilyn Ifill: (37:34)
The work of the division is advanced through 11 sections, but I really want to touch on just a few. We’ve already heard about the department’s traditional role in voting. In fact, the Civil Rights Act of 1957 empowered the division to issue injunctions to protect voting rights. This is years before the passage of the Voting Rights Act. The division was empowered to engage in voter protection work. In the 30 years that I’ve been a civil rights litigator, the department, through Republican and Democratic administrations, has often partnered with civil rights organizations in bringing voting litigation. Of course, the principal role of the division in protecting voting rights was largely advanced through section five of the Voting Rights Act. But after the Supreme Court struck down the core provision of section five, the pre-clearance formula, we were left only with the other provisions of the act, including section two, which is a vital tool for advancing voter protection. And yet today, the division only has one case on its docket under section two of the Voting Rights Act protecting minority voting rights, and that case was already on the docket before 2017.
Sherrilyn Ifill: (38:50)
Even worse, the division has reversed itself in cases in which it formerly was advancing voting rights cases under section two, including a case in which the division was co-counsel with the legal defense fund, challenging Texas’ voter ID law. The division switched its position and later withdrew from the case.
Sherrilyn Ifill: (39:11)
The result has been that civil rights organizations have had to essentially function as private civil rights divisions themselves, because we have no longer had the partnership of the Civil Rights Division of the Department of Justice. The same is true in the area of policing, which we have already heard about. Not only has the department withdrawn from vigorous enforcement of the Law Enforcement Misconduct Statute passed in 1994, in the wake of the unrest following the beating of Rodney King in Los Angeles, and the acquittal of the officers who assaulted him. Under prior administrations, pattern and practice investigations provided opportunities to transform unconstitutional policing in police departments around the country. Under first Attorney General Sessions, and now Attorney General Barr, the department has abandoned that work.
Chairman Steve Cohen: (40:03)
We’re starting to run over. Ms. Ifill, I’d appreciate it, we’re starting to run over a little bit, if you could close within the next 10 seconds.
Sherrilyn Ifill: (40:10)
There is no private civil rights organizations that can replace the resources of the Civil Rights Division of the Department of Justice. The Department of Justice has the investigators, the lawyers, the team, the research, and the history to do the best civil rights work, but they are absent from this work. We need a Civil Rights Division to return to its core mission, protecting against racial discrimination, protecting voting rights, protecting against criminal justice discrimination, and I hope that this hearing will be the opening for us to begin to talk about how to right the ship.
Chairman Steve Cohen: (40:46)
Thank you. Thank you very much. We appreciate your testimony. Thank you very much. Our next witness is Mr. Thomas Saenz. Mr. Saenz is the President and General Counsel of the Mexican American Legal Defense and Education Fund, or MALDEF, positions he’s held since August, 2009. Mr. Saenz previously was a litigator for MALDEF for 12 years, leading numerous civil rights cases in the areas of immigrant rights, education, employment, voting rights, served as law clerk for the honorable Harry L. Hupp of the US District Court for the Central District of California, and the honorable Stephen Reinhardt of the US Court of Appeals for the Ninth District. Mr. Saenz received his JD with honors from Yale Law School, his undergraduate degree summa cum laude from Yale. Mr. Saenz, you’re recognized for five minutes. I know you could talk to us, like our previous folks, at more length, and it’d be good to have it, but we’re limited to five minutes. Thank you, sir.
Thomas Saenz: (41:39)
I understand. Thank you, Mr. Chair. Good morning, Congress members. My name is Thomas Saenz. I am President and General Counsel of MALDEF, the Mexican American Legal Defense and Educational Fund, which has, for over 52 years now, worked to promote the civil rights of all Latinos living in the United States. I appeared before you remotely today from the city of Los Angeles, California. MALDEF focuses its work in four subject matter areas: Education, employment, immigrant rights, and voting rights. With the possible exception of immigrant rights, our areas of expertise and litigation overlap with areas within the responsibility of the Civil Rights Division. Unfortunately, at MALDEF we have seen the division alter its formal alignment and legal position in pending cases, decrease its role and interest in cases where it has previously performed an important part, and turn its attention to issues that do not fall within the broad realm of protecting the rights of communities, including Latinos, that have faced ongoing problems of discrimination, inequity, and exclusion.
Thomas Saenz: (42:38)
I’d start with voting rights. As we approach a new decade, and the decennial necessity of redrawing electoral districts for Congress, state legislatures, and local governing bodies, the division’s activities do not suggest that it will participate actively in ensuring that redistricting in 2021 will protect the voting rights of communities of color. I give you one experience. MALDEF was a leader in the litigation that began in 2011 and continued until 2019, against the initial and subsequent redistricting plans enacted by the Texas State Legislature. The section two litigation in Texas, as I mentioned, continued until 2019 through several trials, and included damning evidence of both vote dilution and of intentional discrimination by the Texas Legislature. The United States, represented by the Civil Rights Division, participated in the case on the side of plaintiffs. The division helped plaintiff’s counsel to marshal and present evidence of intent to discriminate.
Thomas Saenz: (43:35)
It was clear to all that one significant purpose of proving intent to discriminate, which is otherwise not required to prove a violation of the Voting Rights Act section two, was to build the necessary prerequisite for a request to the three-judge panel to order the state be subject to a judicially ordered preclearance requirement, in particular, for its upcoming 2021 redistricting plan. Unfortunately, in January of 2019, the Civil Rights Division filed a motion indicating that the United States had changed positions, and seeking to file a brief opposing the order to require the state of Texas to subject its electoral changes to pre-clearance. Even after collecting and presenting evidence of intentional discrimination, the division sought to prevent the consequence of such evidence in the form of a court-ordered bail in order. The three-judge court ultimately declined to enter a bail in order, so Texas will, in 2021, be free to adopt new district lines without having to seek pre-clearance. This is despite several decades of court judgements against the state of Texas, where it’s unlawful, this annual redistricting.
Thomas Saenz: (44:43)
In our education work, MALDEF has had a different, but also disturbing experience with the Civil Rights Division. We continue to represent, represent a class of Latino students in longstanding litigation regarding desegregation of the Tucson Unified School District. After the development of a new unitary status plan, following an appeal in 2011, the United States Civil Rights Division had been an important participant in ongoing discussions about compliance in several areas of the USP, in particular with respect to disparate discipline, the matter of concern to both Latino and African American plaintiff classes. Despite continued concerns regarding compliance, in recent years, the Civil Rights Division has been decidedly less active and engaged on these issues, including the issues related to discipline. Moreover, the division has now taken a position in support of granting unitary status to the Tucson Unified School District, even though both plaintiff classes continue to raise significant concerns about compliance, and the district court itself has indicated that future obligations are necessary and appropriate for the school district.
Thomas Saenz: (45:49)
We can readily observe a significant shift in the priorities of Civil Rights Division. This shift has been away from addressing traditional civil rights concerns faced by communities of color. Yet the current pandemic and associated economic downturn have only accentuated, brought to more prominent public attention, the disparities confronted by people of color, including Latinos. Recent demonstrations nationwide have also brought renewed attention and greater discussion and awareness around issues of police conscious and subconscious bias, and the systematic disparities in law enforcement violence faced by both Blacks and Latinos in the United States. In such times, the Civil Rights Division, and in particular, its special litigation section, should be an acknowledged leader in identifying and pursuing legal and litigated solutions to these ongoing disparities. Instead, we have seen a division that subscribed to a different worldview than many of its predecessors. It is time for us to return the Civil Rights Division to a place of creativity, and innovation, and aggressive attention, to the disparities throughout society that we continue to see faced by numerous communities of color, including Latinos. Thank you.
Chairman Steve Cohen: (46:59)
Thank you, sir. Our next witness is present here in the chamber, Mr. Hiram Sasser. He’s the Executive General Counsel of First Liberty Institute, a public interest law firm that focuses on religious liberty issues for people of all faiths. Mr. Sasser also serves as an adjunct professor of law at the University of Texas Austin School of Law, as well as an adjunct professor of law at Oklahoma City University School of Law. He received his JD from Oklahoma City University, the Chieftains, and his BA from Oklahoma State University, the Cowboys. Mr. Sasser, you’re recognized for five minutes.
Hiram Sasser: (47:35)
Thank you Chairman Nadler, and Chairman Cohen, and Ranking Member Johnson, and members of the committee. Throughout my almost two decades of litigation experience, the Department of Justice Civil Rights Division has proven itself a consistent and stalwart ally in fighting against religious discrimination, by enforcing the strong civil rights protections in the Constitution and federal law.
Hiram Sasser: (47:57)
I’ll tell you a story to start it off with. Nashala Hearn, in Muskogee, Oklahoma, it’s a small town. It’s just on the border of the Cherokee Nation in Oklahoma. It’s actually where my wife was born, and we were visiting there, and saw on the news that there was a small young lady, young child wearing her hijab to school, and she was being discriminated against. Told that she couldn’t wear a hijab. Everyone else was allowed to wear hats for various reasons, but she couldn’t wear her hijab. I, and I suppose others, contacted the Department of Justice Civil Rights Division and asked them to do something about this, and they took it on. They sued the school district, and they were able to solve that problem for Nashala.
Hiram Sasser: (48:45)
And then another issue came along, and this was just a short time thereafter, I saw a case in which the Falun Gong, you may not be familiar with their religious practice, it’s an ancient eastern religious practice. It’s practiced mostly in China. The Falun Gong were trying to protest the visiting president of China, and they had obtained hotel rooms at a hotel chain that subsequently kicked them out of their hotel, allegedly because the Chinese government asked them to, and paid them substantially more for their rooms. At least that was the allegation. We thought it was wrong, how this took place. And it was a very difficult case for them to try to prove, but the Civil Rights Division opened an investigation, and soon thereafter, we were able to reach a resolution with the hotel chain in order to make sure that this kind of discrimination did not happen again.
Hiram Sasser: (49:50)
And then we had a case that I haven’t mentioned here in my written testimony, but I think it’s important to note another case we did. Those cases were during the Bush administration. During the Obama administration, we did a case with the Civil Rights Division together representing an African-American church that was told that it couldn’t be on the Old Town Square of Holly Springs, Mississippi. And so we ended up having to sue Holly Springs, Mississippi, and we were able to win at the Fifth Circuit after losing at the district court, and we were ultimately able to get a preliminary injunction to allow the church to be able to continue on there.
Hiram Sasser: (50:33)
And all this tradition of fighting for religious liberty for minority faiths continued with the Trump Administration unabated. When we were contacted by the Islamic Association of Collin County, it was a very disturbing story. There was a town, I won’t name the town in Texas, that was prohibiting the Islamic Association from having a cemetery in their town. You’ve got to imagine the kind of cultural and religious affront that this must be, that you can’t even find a place to bury your loved ones. And so there was this property that the Islamic Association owned, and for whatever reason, the city wouldn’t allow them to be able to use that property for a cemetery. And I won’t go into the reasons that they raised. They were mostly illegitimate, and somewhat ridiculous. Well, we represented the Islamic Association of Collin County and we asked the Department of Justice to also get involved in that, and they were very enthusiastic about coming to the aid of the Islamic Association, and a matter of fact, through their participation, we were able to resolve that issue. And now they have their cemetery today.
Hiram Sasser: (51:46)
I’d like to share this story, this started during the George Herbert Walker Bush administration. Then Attorney General Barr led the fight to stop discrimination against the Orthodox Jewish community in Airmont, New York. Airmont was founded for the purpose of excluding the Orthodox Jewish community. It was a city, and it’s just north of New York City. And the Department of Justice had to sue them in order to provide civil rights protections for the Orthodox Jewish community there. But then again, the Bush administration also had to sue, and now, almost like General MacArthur returning as he would have promised to have done, General Barr has once again come to the aid of the Orthodox Jewish community in Airmont who have now suffered for almost three decades of continuous discrimination and continuous needs for lawsuits in order to understand that equal protection also applies to the Orthodox Jewish community.
Hiram Sasser: (52:49)
And it is through Attorney General Barr’s leadership that we’ve been able to achieve lots of advances for people of minority faiths, because I think it’s very important that we recognize that when we protect minority faiths, we’re protecting the religious liberty of everybody, because religious liberty rises and falls on the rights that we acknowledge for our neighbors. Thank you.
Chairman Steve Cohen: (53:13)
Thank you, sir. Our next witness is Ms. Sharon McGowan, Chief Strategy Officer and Legal Director of Lambda Legal. As Legal Director, she oversees Lambda Legal’s efforts to resist any attempt by opponents of LGBTQ equality to thwart or roll back the community’s progress towards full equality. Previously, she served as the Principal Deputy Chief of the Appellate Section of the Civil Rights Division of the Department of Justice. Ms. McGowan is a graduate of Harvard Law School, the University of Virginia. She was a law clerk for the honorable Norman Stall of the US Court of Appeals for the First Circuit, and also for the honorable Helen Barragan of the US District Court for the Eastern District of Louisiana. Ms. McGowan, you are recognized for five minutes.
Sharon McGowan: (53:59)
Good morning. Let me begin by thanking Chairman Cohen, Ranking Member Johnson, Chairman Nadler, my Congressman, Vice Chairman Raskin, and the distinguished members of the committee. My name is Sharon McGowan, and I currently serve as the Chief Strategy Officer and Legal Director of Lambda Legal Defense and Education Fund, the oldest and largest national legal organization dedicated to securing full equality for LGBTQ people, and everyone living with HIV. Prior to joining Lambda Legal, I was proud to serve for many years as a career attorney in the Civil Rights Division of the United States Department of Justice, starting first as an appellate line lawyer and eventually becoming the Principal Deputy Chief of the Appellate Section.
Sharon McGowan: (54:43)
My years with the Civil Rights Division are among the proudest of my career. I felt tremendous responsibility of my role whenever I stood at a lectern and introduced myself with the words, “Sharon McGowan, on behalf of the United States.” Unfortunately, upon learning that President Trump intended to nominate Jeff Sessions to lead the Justice Department, I made the difficult decision that in order to continue advancing civil rights, I would need to leave what had been, for me, a dream job. Perhaps even more unfortunately, the past three plus years have confirmed that my fears were not overblown.
Sharon McGowan: (55:19)
As an American, I have found it exasperating to see how the Civil Rights Division’s scarce resources have been deployed to undermine rather than advance civil rights, but as someone who once proudly served in the division, I have found it heartbreaking. It has been so painful to witness the damage that has been done to the reputation and the stature of the Civil Rights Division, which I still hold so dear to my heart. I say this knowing that we are all still grieving over the recent loss of two civil rights champions, Justice Ruth Bader Ginsburg, and the honorable John Lewis. And yet I find comfort in the knowledge that we are honoring their legacy and their commitment to equal justice under law through the work that we are doing here today, as well as through the incredible work of some of my fellow witnesses.
Sharon McGowan: (56:06)
I always felt incredibly proud whenever I heard the Civil Rights Division referred to as the conscience of the federal government. And I had the privilege of witnessing firsthand the many ways in which this was true. First and foremost, and perhaps most obviously to the public, the Civil Rights Division enforces the landmark federal statutes enacted to promote equal opportunity in critical spheres of public life, including employment, housing, credit, policing, education, voting, and access to public spaces. The impact and influence of the Civil Rights Division, however, extends beyond its affirmative litigation docket.
Sharon McGowan: (56:45)
During my tenure, the Civil Rights Division would have a seat at the table whenever significant questions were under consideration within DOJ. We would play an important role in identifying civil rights implications of actions that the federal government might take or not take, whether in the context of litigation, regulatory work, or broader policy discussions. And we would back up our advice with legal analysis proving that our recommended position was not only defensible, but in fact, the best reading of the law.
Sharon McGowan: (57:17)
Perhaps the most recent public example of what I’m describing occurred this past June, when the US Supreme Court, in a six-three decision, written by Justice Gorsuch and joined by Chief Justice Roberts, ruled that the federal prohibition on sex discrimination contained within Title VII of the Civil Rights Act of 1964 encompasses discrimination on the basis of sexual orientation and gender identity. This view of the law was one that the Civil Rights Division had championed within the department for many years, and which, with respect to gender identity, at least, had become the litigation position of the United States. That is, until Attorney General Sessions summarily reversed it during the first year of the Trump administration.
Sharon McGowan: (57:58)
These reversals impositioned by the Justice Department over the past three plus years have damaged the credibility of the institution as a whole, but have been particularly devastating with respect to the Civil Rights Division. And we must never forget that these policy changes affect real people’s lives, denying them physical safety, legal security, and a chance to succeed. A chance that we all deserve. The ways in which the legal and moral authority of the Civil Rights Division has been commandeered to advanced positions that are antithetical to civil rights is as mortifying as it is infuriating.
Sharon McGowan: (58:33)
In the realm of employment, I am referring to the fact that Civil Rights Division attorneys participated in the unsuccessful effort to carve LGBT people out of the workplace protections of Title VII. In education, I am referring to the Civil Rights Division’s withdrawal of guidance designed to protect the health, safety and educational opportunity of transgender students, to their joining forces with organizations committed to denigrating and ostracizing transgender people from public life and filing briefs on behalf of the United States using language negating the identity of transgender girls. With respect to public accommodations, I am referring to Civil Rights Division lawyers filing briefs in the Supreme Court and in lower courts seeking to gut non-discrimination laws that prevent businesses from turning people away simply because of their sexual orientation, gender identity, or the fact that they are in a same-sex marriage.
Sharon McGowan: (59:28)
These are just a few of the examples of how the Civil Rights Division has turned its mission on its head and has abandoned its noble legacy of defending the civil rights of those who have been historically shut out, turned away, or treated as less than others in our community. And I look forward to the day when the Civil Rights Division can once again be viewed as a credible partner in the important work of advancing civil rights in our country. Thank you.
Chairman Steve Cohen: (59:52)
Thank you, Ms. McGowan. And I know Greg Devins looks forward to that day as well. Sam Mabrouk is the owner of 89 & Pine, a small business in Columbus, Ohio. First opening his doors in 2011, he sells upscale modern and original men’s and women’s apparel. And before you are recognized, I just want to say that many, if not all of us, but I know the chair of this subcommittee is against looting and unlawful behavior, and the previous statement made, nobody responded to Mr. Barr. It was not our appropriate time to respond, but that is a fact. And if you were injured, I regret it, and it shouldn’t have happened. Mr. Mabrouk, you’re recognized.
Sam Mabrouk: (01:00:43)
Good morning, ladies and gentlemen. My name is Sami Mabrouk, and I’m here today to testify as the owner of 89 & Pine, Columbus, Ohio. My story started in January of 2010. When I first moved to the United States as a legal immigrant, that is the same year I started laying the groundwork for my small business, which has been growing ever since. By the beginning of 2020, I owned two brick and mortar retail stores, and had a team of six people working under me, most of whom are minorities. My stores carry three brands that I’m proud to say that I designed them here in the United States of America.
Sam Mabrouk: (01:01:40)
When COVID-19 hit, we were forced to close our stores, which resulted in the loss of all of our business. In May, 2020, we were thankfully able to reopen for business. I was very excited to reopen for business, and was ready to work even harder to make up for what was lost during the closure. Then May 29 and 30 happened. That is when the protesting started in Downtown Columbus, exactly where my stores are located. On the night of May 30, the protests turned into riots, violence, and a wave of destruction that hit the city that I had been calling home for over a decade.
Sam Mabrouk: (01:02:42)
I never thought that a protest in support of minority rights would flip and do harm to a local minority-owned business. Unfortunately, that is exactly what happened to me, as well as many other businesses in the Downtown Columbus area. My store was completely looted, and I lost 10 years of hard work and savings in two hours. Yeah, it was two hours of looting that made me lose 10 years of hard work and savings. If that isn’t enough, I was also threatened to be shot twice that same night. I’ve been living in the American dreams. I’ve been living in the American dream, along with all the blood, sweat, and tears that it requires. Then one day I woke up to a nightmare of loss and destruction, but I’m not a quitter, and I’m ready to work harder than before to get my small businesses back to where they were before that.
Mr. Mabrouk: (01:04:03)
Work to get my small businesses back to where they were before that horrible night of May 30, 2020. The last thing that I wanted to say is I actually had to spend the night here at this store that I’m talking to you from to keep an eye on the situation downtown Columbus again. Due to the current unrest in Louisville, Kentucky, I spent the night monitoring local media and social media to make sure there wouldn’t be as a repeat of that fateful day this past summer. It is said that I had to do that instead of spending time with my two little kids after a long day of work.
Mr. Mabrouk: (01:04:53)
But I’m willing to do it because it’s not just material. It is my family’s livelihood. Thank you for giving me the time to speak out my heart and my mind.
Chairman Steve Cohen: (01:05:08)
Thank you for your testimony. And contrary to canards that have been passed, we do regret your damages and think they were wrong and it’s unfortunate. Our final witnesses, Jonathan Smith. Mr. Smith is, excuse me. Oh, Mr. Waldman. I’m sorry. Well, we’ll go to Mr. Waldman, Michael Waldman. Michael Waldman is president of the Brennan Center for Justice at the NYU School of Law, constitutional lawyer, expert in the presidency and American democracy. He has led the Brennan Center since 2005. He previously was director of speech writing for President Clinton from 1995 to ’99 and a special assistant to the president for policy coordination from ’93 to ’95.
Chairman Steve Cohen: (01:05:48)
Among other works, he’s the author of The Fight to Vote, history of the struggle to secure voting rights for all Americans, a graduate of NYU and Columbia. Mr. Waldman, you’re recognized for five minutes.
Michael Waldman: (01:06:00)
Thank you, Mr. Chairman, ranking member, members of the subcommittee, as we’ve heard the Civil Right Division that has a storied past, and it should play a vital role in the fight for democracy and equality in our country today. But in this administration in recent years, it has retreated from that vital role strikingly at a moment of pain and solemnity in this country when we are reckoning with years and indeed centuries of systemic racism and its consequences for our country. In my testimony, I’ll focus in particular on voting and the duty of this part of the justice department to stand up for the play its role in the fight for voting rights.
Michael Waldman: (01:06:49)
It has retreated from that. Much of that retreat of course comes from the Supreme Court’s decision in Shelby County, which took away from the division, the pre-clearance tool that had proven so effective, and that had made the Voting Rights Act the most effective civil rights law in the country. But that’s not only the blame to be assigned to the Supreme Court. We cannot solely blame the court. This division simply brings no cases. This is the first time since the passage of the voting rights act. The first administration that has brought no cases under its terms.
Michael Waldman: (01:07:27)
As you’ve heard, the division has actually switched sides. And two key cases in Texas and Ohio, and that’s pretty remarkable. We should pause on that. Something that was deemed to be discriminatory, deemed to be illegal for years suddenly overnight became acceptable and okay. Was that because the practice changed? Was that because the political overseers changed? Unfortunately, the latter interpretation is far more likely. The most noteworthy thing in many ways that this Civil Right Division has done is to play its role in the concocting of a pretext on the census as called out by the Supreme Court when it blocked the citizenship question.
Michael Waldman: (01:08:11)
This division can do better. It’s striking as well that it acts within the context of a highly politicized Department of Justice, grossly so. The president has been reported to be saying he wished he had a Roy Cohn. Well, it is unfortunately the case that it seems he has one in the current attorney general. The attorney general has said when it comes to voting, that elections that have been held with mail have found substantial fraud and coercion. That is a lie. Last month, the president threatened to use law enforcement, to send law enforcement in case there are riots on election day.
Michael Waldman: (01:08:53)
That is not lawful and the attorney general proclaimed it to be lawful. This is worrisome as the election approaches. What can be done to renew the division? What can be done so the Civil Right Division again plays the role that it has played under administrations of both political parties in the past? Well, first this Congress can restore the strength of the Voting Rights Act to enact the John Lewis Voting Rights Advancement Act in his name, in his honor and carrying forward that legacy. The second thing is this division even with its current tools can focus on the actual real threats to the vote that exist right now of abusive voter purges, long lines, especially in communities of color, deceptive practices and others.
Michael Waldman: (01:09:41)
The third thing that this division could do is to use the tools that it has that sit unused to protect election security. We all know that in 2016 our election system was attacked by Russia, and we have every reason to think that malevolent foreign actors, including Russia, are add it again according to the intelligence community. There are things that the Civil Right Division can do to help in that fight. It can enforce provisions of HAVA, the Help America Vote Act, such as those giving voters the right to a provisional ballot, which is a fail safe in case there is a cybersecurity problem at a polling place.
Michael Waldman: (01:10:23)
The final thing that this Congress can do to help this division do its job is to take steps to restore the independence of the Justice Department, which has been so undermined. In the last day, legislation has been introduced to protect our democracy act by Chairman Nadler and others that would require among other things, disclosure of contacts between the White House and the Justice Department on things of the very kind that could undermine impartial enforcement of civil rights laws in this division. Again, I’ll restate what my written testimony says, what other witnesses have said, this division can and should play an extraordinarily important role in our country in the great and never ending quest for equality and democracy.
Michael Waldman: (01:11:12)
It has before and we hope it does so again in the future. Thank you.
Chairman Steve Cohen: (01:11:17)
Thank you, Mr. Walden. Now, Mr. Jonathan Smith. Mr. Smith is executive director of the Washington Lawyers’ Committee for Civil Rights and Urban Affairs. He previously was the chief of the special litigation section of the Civil Right Division of the Department of Justice from 2000 to 2015. Under his leadership, the section conducted the civil investigation of the Ferguson Missouri Police Department following the death of Michael Brown. Mr. Smith received his JD from Antioch School of Law and his BA from the University of Maine. Mr. Smith, you’re recognized for five minutes.
Jonathan Smith: (01:11:53)
Thank you, Mr. Chairman. Thank you, committee members. It’s an honor to be able to testify about the Civil Right Division. I had the honor to serve as the chief of the special education section from 2010 through 2015. The section as a responsibility among others to undertake police accountability cases. [inaudible 01:12:11] longer testimony for the record. In the few minutes that I have to speak with you, I want to touch on two critical issues. First, for the last three and a half years, the division has in critical ways [inaudible 01:12:21] laws as they apply to law enforcement and in some cases asserted positions that have set back the cause of civil rights.
Jonathan Smith: (01:12:31)
As the nation struggles with its history of racial injustice, the division has been missing and the department has taken actions adverse to the cost of race equity. Second, the politicization of certain enforcement decisions has undermine the credibility division and then serious damage to the reputation of the department and the morale of the career staff. The work for the division is done largely by career lawyers, investigators, and paralegals who joined the department with dedication and idealism. The cynical abuse of the enforcement actions for electoral political gain demeans and diminishes their hard work.
Jonathan Smith: (01:13:07)
In the wake of the deaths of George Floyd, Breonna Taylor, Ahmaud Arbery and others, people have flooded the streets, demanding change and policing of communities of color, and that the criminalization of black and Brown people cease. At this historic inflection point, the Civil Right Division has been conspicuously absent or worse. The department has retreated from the sections of policing reform work. The attack on the section’s police reform work start at the beginning of the administration. Attorney General Sessions criticized the section’s investigations and use of consent decrees, admitting that he had not even read the findings issued by the section.
Jonathan Smith: (01:13:41)
He called them anecdotal. He walked away from the Chicago investigation and attempted to withdraw from the Baltimore consent decree. Attorney General Sessions last act was to issue a directive that severely limited the use of consent decrees, one of the very few remedies that has proven effective in police reform cases. But at the same time, the president in a speech to police officials urged that they bang heads of arrestees on squad car doors, and stated that the “handcuffs” on law enforcement had been removed. Attorney General Barr frequently criticizes those who suggest police brutality, acts to suppress protest and threatened the communities that do not show adequate support for police will not be provided police protection.
Jonathan Smith: (01:14:23)
During the last administration, 25 police investigations were open resulting a comprehensive consent decrees in major cities across the country. During this administration, the section has entered into no police reform consent decrees. A simple contrast between the last administration’s response to the death of Michael Brown and this administration’s response to the death of George Florida shows why this matters. Michael Brown’s death and the resulting uprisings in the streets of Ferguson and elsewhere caused the department to spring into action.
Jonathan Smith: (01:14:54)
The attorney general authorized a civil investigation of the Ferguson Police Department, a criminal investigation into Michael Brown’s death in ordered community oriented policing office to review the law enforcement response to the demonstrations. The community relations service was dispatched in the attorney general personally traveled to Ferguson to meet with a broad swath of team members and public officials. By contrast, the repeated in custody deaths of black and brown people at a circumstance that suggests widespread systemic deficiencies and racial bias.
Jonathan Smith: (01:15:24)
This administration has opened no investigations and entered into no consent decrees, not in Minneapolis, not in Louisville, not in Fort Worth, not in Rochester, not in Kenosha, not in any other city. [inaudible 01:15:37] effective the sections work must be free of partisan politics. I am proud that the division I worked for undertook investigations regardless of the political party for the mayor, sheriff or governor. We investigated the police departments in democratic cities like Newark, New Jersey when Cory Booker was mayor and Republican strongholds like Maricopa County, Arizona and Sheriff Joe Arpaio.
Jonathan Smith: (01:15:59)
Abuse of power for political purposes does not end with policing. In August, the department targeted the states of New York, New Jersey, Pennsylvania, and Michigan with threatening enforcement actions for their response to COVID-19 in nursing homes. The targeted states and the tactics used belied the serious the department to engage in an actual inquiry, as opposed to an effort to influence the upcoming elections. Typically, information requests are made by career attorneys, not by the political leadership through a press release. Moreover, while nursing home deaths have declined nationwide and dramatically declined in Northeast, Sunbelt States have seen a dramatic spike. The states targeted did not pose the most serious concerns nor the most potent use of section resources. The division has a long and proud history. It’s difficult to watch the harm being done to it by this administration. Thank you.
Chairman Steve Cohen: (01:16:53)
Thank you, Mr. Smith. I’ve been advised that maybe my statement after Mr. Mabrouk’s testimony that I think everybody on this committee regrets the damages done to your store and the inconvenience to your life and that is not something that any of us approve of didn’t go out. So I wanted to make that point clear. We now go to a question period where we each have a chance to ask questions with the five minute rule imposed upon us. And I will begin by recognizing myself for five minutes. I’ll start with Ms. Katherine Layman.
Chairman Steve Cohen: (01:17:28)
Until May of this year, the Civil Right Division under the Trump Administration did not file, as I understand it, a single case enforcing section two of the Voting Rights Act. Can you explain this this shortcoming, if you believe it is one? And if it is such that, do you believe this as some might claim that there simply isn’t much voter discrimination going on?
Katherine Layman: (01:17:49)
I think there’s no question that there’s substantial voter discrimination still taking place. That was a unanimous finding of the US Commission on Civil Rights and the failure to file litigation using a tool that Congress funds the department to use is astonishing to me and inexcusable. I want to really concretize that by recognizing that the ACLU alone has filed more cases than the Department of Justice has to protect voting rights in this country. Likewise, the Lawyers’ Committee for Civil Rights has filed more cases itself than the United States Department of Justice has.
Katherine Layman: (01:18:29)
But non-profits are bringing more litigation on behalf of American voters, than the nation’s litigator charged by Congress funded by Congress, funded by taxpayers to do that job is jaw-dropping and inexcusable and leaves voters profoundly unprotected. Separate and apart from the number of cases brought, voting rights cases are among the most challenging cases to litigate, among the most expensive cases to litigate. They take a long time. They require experts. They are enormously challenging to prosecute to completion and to see the Department of Justice absent in this area when we know and we’ve documented it all across the country that there are ongoing voting rights challenges for voters with disabilities, voters with language access issues, and for voters of color in this country.
Katherine Layman: (01:19:17)
That we don’t see the department active and litigating in that area is a crisis in the country.
Chairman Steve Cohen: (01:19:25)
Thank you very much. Ms. Ifill communities of color have experienced years of police misconduct and they’re distrustful of their police departments. We see it Louisville and Minneapolis, etc. How can an outside investigation by the Civil Right Division remedy this systemic misconduct and start to alleviate the distrust? And how would you rate the division’s performance under the Trump Administration in this regard?
Ms. Ifill: (01:19:52)
Well, the performance has been frankly abysmal. In the years of the Obama Administration, the department was taking a [inaudible 01:20:07] role in addressing police misconduct. Communities responded to the presence of attorney general, to the presence of lawyers of the Civil Rights Division in Baltimore, in Ferguson, and in other cities. Members of the community regarded it as important that the federal government, that the Civil Right Division of the Department of Justice was being attentive to these long standing systemic issues that local communities have had with police departments.
Ms. Ifill: (01:20:31)
The current Civil Right Division not only has pulled out of a pattern and practice investigations, which really is the most important tool to get at systemic discrimination in law enforcement. They have tried to frustrate the efforts to do those kinds of investigations in other form. You already heard that they really attempted to reverse themselves in the Baltimore case, but stopped from doing by the federal judge. They also filed a statement of interest in Chicago. When the state of Illinois filed its own pattern and practice investigation against the Chicago Police Department, the Department of Justice submitted a statement of interest, essentially suggesting that they should not enter into a consent decree.
Ms. Ifill: (01:21:19)
This is a case the department was not even part of, but they wanted to frustrate the efforts of the state of Illinois to do what the department had failed to do. So this is actually quite serious indeed, not only the absence of the Civil Right Division in aggressively entering this space, but also the effort to frustrate the attempts by others to try and address systemic unconstitutional policing. The law enforcement misconduct statute was passed after the unrest following Rodney King’s beating in Los Angeles. And that statute empowers the attorney general to do these investigations and it essentially sits dormant.
Ms. Ifill: (01:21:57)
So the attorney general essentially has made the decision and the Civil Right Division has essentially abdicated its role, it’s under an authorized statute to do this work. It sits, it lies dormant unused by the department because they’ve chosen not to do so …
Chairman Steve Cohen: (01:22:14)
Ms. Ifill: (01:22:14)
And much of what we see today …
Chairman Steve Cohen: (01:22:15)
Thank you, Ms. Ifill.
Ms. Ifill: (01:22:16)
… The frustration we see around the country is a reflection of that.
Chairman Steve Cohen: (01:22:19)
Thank you, Ms. Eiffel. Mr. Sessions had said that bringing these types of pattern and practice investigations, reduced officer morale and suggest they had the effect of increasing crime. That seems analogous to they’re not appearing before our committee because we hurt their feelings once. Do any of you all believe, Mr. Smith, I guess, or Ms. Ifill, that we should not have pattern and practice investigations for concern that we might be reducing the officer’s morale?
Ms. Ifill: (01:22:46)
Representative Cohen, I met with Attorney General Sessions early in his term, and I shared with him the existing scholarship that actually demonstrated the contrary. And I shared with him the way in which we increase the morale of the police department by increasing trust with the community and community trust is increased by ensuring that there is not unconstitutional policing. I shared this with him directly. His view is unsubstantiated and simply untrue. And as we can see, I think things have deteriorated in this country around policing largely because of that decision by this department.
Chairman Steve Cohen: (01:23:26)
Thank you very much, and I now yield to Mr. Johnson for questions.
Representative Johnson: (01:23:30)
Thank you, Mr. Chairman, and thank you for being here, Mr. Sasser. I just want to just make a comment at the outset that you and First Liberty Institute have just an extraordinary work over the years defending what we often refer to is our first freedom, religious Liberty. And I’ve often heard Kelly Shackelford, our good friend, who’s the CEO and president of First Liberty Institute. He says when religious freedom is taken from a people, their political freedom soon follows. Explaining the urgency and the importance of protecting that first freedom and your organization has called religious freedom the foundational right that all others are built upon.
Representative Johnson: (01:24:05)
Elaborate on that sentiment for us. Why is this so important for not only public interest law firms, but also the Department of Justice Civil Right Division to be engaged in this battle?
Hiram Sasser: (01:24:15)
Well, I think Thomas Jefferson said it best that religious institutions guard against state absolutism and that whenever, anytime a totalitarian regime takes over a people group, the first thing it has to do is it has to crush the ability of the people group to have an allegiance that’s higher than the state. Any competition with the state has to be crushed. And so it’s very, very important. A lot of the people who support our work are actually immigrants from Eastern Europe who are not of any particular faith, but they support our work because they saw in their experience that the very first freedom that is deprived of any people whenever a totalitarian regime takes over is religious liberty and that that is the guardian of all the other liberties.
Hiram Sasser: (01:25:06)
And that’s what we really believe and we feel very strongly about.
Representative Johnson: (01:25:11)
I really appreciate you highlighting today the protection of religious liberty being a point of emphasis for the Civil Right Division under the Trump Administration and importantly that the division’s devoted its energy and resources to assisting all Americans equally. I mean, your examples of the recent cases of [inaudible 01:25:28] and the [inaudible 01:25:29] and along with the Islamic Association of Collin County Texas are helpful, compelling examples of how minority faiths have been protected with the help of the DOJ as well. I know First Liberty does work in a lot of these areas.
Representative Johnson: (01:25:41)
One of them I just wanted to highlight in the limited time we have. The work you guys have done recently representing religious institutions in lawsuits against state and local governments that have infringed upon their rights under the cover of the COVID-19 pandemic. One of those cases involved a church in Greenville, Mississippi, the drive-in services. Could you elaborate a little bit more on that one just as an example?
Hiram Sasser: (01:26:02)
Sure. In Greenville, Mississippi, the mayor, there was concerned that the church was having a drive in church service where the cars would all come and park six feet apart from each other. And the mayor, I assume, was concerned that the virus could penetrate the steel and the glass of the vehicles. And so we brought a lawsuit and the Department of Justice also got involved in a sister lawsuit against the same mayor in order to bring an end to that discrimination that was going on because you were allowed to drive your car to go pick up food or whatever else it may be, but you weren’t allowed to congregate in your vehicles for purposes of going to church.
Representative Johnson: (01:26:45)
And the DOJ’s involvement involves sometimes statements of interest, other tools. How do they help in a typical case like that?
Hiram Sasser: (01:26:52)
Well, usually the Department of Justice starts off with the statement of interest. They usually do a very thorough investigation, and then sometimes they intervene, sometimes they file an Amicus brief. When the Obama Administration helped us, it was filing an Amicus brief. We’ve seen a lot more intervention under the Trump Administration.
Representative Johnson: (01:27:14)
And you had done previous work under the Obama DOJ. And as you mentioned, you were around during the Bush DOJ. In your estimation, how has this Civil Right Division doing on these issues and others that you’ve heard about today?
Hiram Sasser: (01:27:27)
Well, I think the best measure is really what’s going on in Airmont, New York with the Orthodox Jewish community suffering discrimination there. It was the first Bush Administration that fought. It was then second Bush Administration that fought. And now it’s the Trump Administration fighting again. We appreciate the Department of Justice and their fight for the Jewish people.
Representative Johnson: (01:27:53)
Very good. Mr. Mabrouk, I had a quick question for you. I just have limited time, but we really appreciate you sharing your story today with us and we’re really sorry about what happened to you. I do believe everybody is. Do you think city officials failed to adequately ensure your safety and prevent the looting of your store?
Mr. Mabrouk: (01:28:13)
Absolutely. And that’s why I spent the night at my store last night [inaudible 01:28:18].
Representative Johnson: (01:28:20)
Has the city responded to the looting of your store and the other damage in downtown Columbus area? I mean, do you know if there have been prosecutions yet?
Mr. Mabrouk: (01:28:29)
Representative Johnson: (01:28:31)
I know that you mentioned, I just have a second left. I know you mentioned that you’d been a part of protests in Egypt back in the late 1990s, but that was a different kind of protest, right? You guys didn’t loot and destroy property. Why is that so important? What message do you have about that?
Mr. Mabrouk: (01:28:47)
I hope I don’t get in trouble. I think we had a message, tried to go on that like day one, but we had a message. We were determined. We actually created chains to protect personal properties because it’s, again, I really, it’s not material. It’s not. It’s people’s livelihood. I mean, I am minority myself. I always say, I am a minority within the minority. You guys all hear the accent. So if this is happening to protect me, then why is it distracting me? It is really frustrating.
Representative Johnson: (01:29:35)
Thank you for being here and pursuing your American dream. I yield back. I’m out of time.
Chairman Steve Cohen: (01:29:39)
Thank you, sir. I now recognize the chairman of the committee, Mr. Nadler, for five minutes.
Representative Nadler: (01:29:45)
Thank you, Mr. Chairman. Mr. Waldman, you note in your testimony that Attorney General Barr is actively fomenting distrust in our upcoming election and spreading false information about voter fraud. What are some of the ways in which the attorney general may actively seek to help President Trump gain improper advantages and what can we do to stop them?
Michael Waldman: (01:30:07)
Well, so far, Mr. Chairman, that active involvement has in particular been the public statements that he has made, which are documented in some length in our testimony. We are trying as a nation to do something important but hard, which is to vote in a critical election in the middle of a pandemic. And as we know, the president has responded to this by loudly spreading falsehoods about vote by mail and about the election system being rigged and repeatedly the attorney general has when asked even when not asked, validated those misrepresentations.
Michael Waldman: (01:30:47)
So first and foremost, his voice rather than being a voice for the vote is a voice to undermine the vote. It’s also the case that there is reason to worry as the election day itself approaches that this administration could try to engage in misconduct to stir the pot, to undermine faith in the election, or to bring law enforcement or other uniform personnel in play in a way that is not allowed, is not appropriate. The attorney general’s willingness to step forward in Lafayette Square to organize a sort of motley assortment of law enforcement personnel to clear the square suggests that that is something we ought to worry about.
Michael Waldman: (01:31:36)
The most important thing I would say is that the Justice Department, rather than undermining confidence in the vote, should be out there helping to bolster confidence in the vote. Even if it were not repeating lies, it should be out there advancing those very core values.
Representative Nadler: (01:31:57)
And what can we do to stop them?
Michael Waldman: (01:32:00)
Well, a hearing like this can play a significant role. It’s also worth noting that states have power here and sovereignty. And that if, for example, federal and uniformed law enforcement is sent in to a city president has threatened to send them to “Democrat-run cities” under the pretext of protecting federal property, but in fact to deter people from voting or to do so in a discriminatory way, that is illegal. The courts can be evolved and also states and cities and counties have considerable role. We certainly hope that is never the reality we need to deal with.
Michael Waldman: (01:32:42)
And hopefully people will understand that for all the scare talk from the White House, the worries that people have, this system can work, has many checks and balances, and we all hope that voters will be able to understand they can vote with confidence this year.
Representative Nadler: (01:33:00)
Thank you very much. Ms. Layman, according to recent press reports, the Commission on Civil Rights spent months working on a detailed report about threats to minority voting rights due to the COVID-19 pandemic, but Republican appointees to the commission voted to shelve the report and prevent it from ever seeing the light of day. Can you describe some of the enormous challenges facing black, Latino and other minority voters right now, and the commission’s recommendations for how to respond?
Katherine Layman: (01:33:27)
Well, unfortunately, Chairman Adler, I am unable to offer recommendations from the commission because the commission voted them down, so those are not available. But we took in incredibly compelling bipartisan testimony about the challenges that voters of color, voters with disabilities, voters with language access needs face in this time to exercise their right to vote, the very long lines, the need, and we received bipartisan interest in increasing access to mail-in votes so that people would be able to vote safely either at home or in person as needed.
Katherine Layman: (01:34:02)
And a need for ensuring that poll workers are trained and available to assist voters who were present and have safety measures in place. There was incredibly compelling testimony about the specific kinds of protections that should be in place in this time because of [inaudible 01:34:19].
Representative Nadler: (01:34:19)
Thank you. Before my time expires, I want to ask Ms. McGowan, your testimony describes in detail the Trump Administration’s efforts to undermine the rights of gay, lesbian, bisexual, and transgender Americans. In your view, what are some of the most indefensible positions the administration has taken and how has the Civil Right Division played a role?
Ms. McGowan: (01:34:36)
Thank you, Mr. Chairman. Obviously, the fact that the Civil Right Division played a role in trying to convince courts and ultimately the Supreme Court unsuccessfully, I may add, to basically write LGBT people out of the protections of our foundational workplace discrimination law title seven was really one of the low watermarks of the division. And I would note that even still to this day, the employment litigation section of Civil Right Division does not have an updated website reflecting the fact that its mandate to root out sex discrimination includes sexual orientation and gender identity.
Ms. McGowan: (01:35:11)
From the minute of the decision, we have worked with allies here in Congress, both in the Senate and the House, urging Attorney General Barr and the entire federal government to demonstrate that it would follow the rule of law, follow the ruling of this decision and the fact that they have not causes us deep, deep concern. And in fact, we have actually seen different agencies within the federal government act as though Bostock never happened. As you may know, the Department of Health and Human Services just days after the Bostock decision rolled out a regulation rolling back protections within the Affordable Care Act, specifically sex discrimination protections advancing the view of sex discrimination advanced by the Department of Justice that had been resoundingly rejected by the Supreme Court.
Ms. McGowan: (01:35:55)
Lambda legal has been in court, unfortunately you’ve been able to enjoin enforcement of that regulation, but that is an example of the lawlessness of this administration as a whole and the way-
Speaker 1: (01:36:03)
That is an example of the lawlessness of this administration as a whole, and the ways in which it has undermined not only the credibility of the Civil Rights Division, but civil rights offices throughout the administration.
Speaker 2: (01:36:10)
Thank you very much.
Thank you, Mr. Chairman. Now recognize Judge Gohmert for five minutes of questioning.
Thank you. I appreciate the witnesses being here. With regard to the Attorney General’s response to the demand to be here, for those of us who were here, it was a bit shocking to have the Attorney General of the United States ask questions, and then being refused the opportunity to answer those questions. It’s one thing when an answer is non-responsive, but we had occasions when the Attorney General was trying to provide responsive answers and he was cut off, treated rudely, abused in completely inappropriate ways. The Attorney General also noticed that those who showed real hatred, adversary positions to the Attorney General were provided extra time, as opposed to those who were interested in getting his answers. So it’s not surprising to me to see the response. And I don’t think in this case it was inappropriate.
We also had the classification of the DOJ not coming because their feelings were hurt, hurt their feelings. Actually, that is unfair and inaccurate. And I hope we will, at some point, arrive at being more fair and accurate to witnesses that the current majority wishes to bring in here, and make whipping people out of.
With regard to things deteriorating at the Department of Justice, I couldn’t agree more. We saw that illustrated when the Department of Justice participated in Fast and Furious, and was complicit in an operation that got guns to some of the worst criminals in this hemisphere, and yet totally denied any opportunity for information that would have gotten to the bottom of how the DOJ helped play such an integral role in killing people, hundreds in Mexico, at least one of our own federal agents here. So I totally agree. Hopefully the Department of Justice will continue to come back from the damage that was done through those days.
With regard to Russian interference in the US election, I’m glad we agree on that. But to have Russia provide so-called witnesses, and those witnesses provide information to people hired by the DNC, by the Hillary Clinton campaign, and have them totally fabricate stories about the candidate for president, and then president, and put this country through three years of hell to get down to the bottom of it, that actually it was all fabricated and it likely did come from Russians, is just abysmal as well.
With regard to Mr. [Mobruk 00:04:12], did the state and local government protect your property and your liberty?
I did not see that.
Okay. And when the state and local government do not protect a citizen’s property or liberty, then the federal government does need to step in. And we have the Insurrection Act that allows the federal government to do that, even without a governor’s invitation.
Mr. Sasse, if a commission here in the United States is supposed to be devoted to protecting civil rights, actually puts in writing that evangelical Christians in its opinion are the biggest hate group threat in America, is that commission really serving civil rights interests?
I sure hope that nobody has written that. Somebody has written that?
Yes. That’s why the question. Take it by your response, you don’t believe that does. I yield back.
Thank you, Mr. Gohmert. Now recognize Mr. Raskin, who was here in his office, but he is virtual in terms of his appearance today. Mr. Raskin, you’re recognized for five minutes.
Mr. Cohen, thank you very much. Thanks for calling this hearing. A week ago, FBI director Wray warned the Homeland Security Committee that Vladimir Putin and Russian agents are again interfering in the US presidential election in order to skew and influence the outcome of the election. Mr. Waldman, what is it that the state should be doing to secure the election against cyber attack? And what is it Congress can do if anything, at this point, other than make funds available as the House is trying to do through the HEROES Act?
Michael Waldman: (01:42:25)
Well, Congressman Raskin, you’re right that States have a key role, and counties. And election officials, in our experience of both parties, are working hard to try to, in effect, harden their systems against the types of cyber attacks that began in 2016, and that could be well underway now. One of the most important things they can do is to make sure there’s resiliency so that if there is an attack on poll books or something else, or other problems at a polling place, that voters can vote and the votes can be counted, there can be a recount. There can be audits after the fact to see if there’s been something inappropriate. States can only do this with resources. And that’s something where the federal government and Congress have a critical, irreplaceable role to play in providing resources.
Michael Waldman: (01:43:19)
Over the past few years, the federal government has provided resources. They’ve been used by States earlier this year. As you know, $400 million was appropriated to help states run safe elections and including for security, but that’s only one tenth of the amount of funds needed to run this election this year. The House did pass $3.6 billion, but it hasn’t been voted on in the Senate. And it is tied up, as you know, in stimulus negotiations. My one point here, we talk to election officials every day. It is not too late. Funds appropriated now will be used and usable, but it’s critically important. I would suggest that Congress and the president do so.
Let me follow up on this. Yesterday, President Trump refused to commit himself to the peaceful transfer of power when he was asked by a reporter. He said, “We’re going to have to see what happens. You know that I’ve been complaining very strongly about the ballots and the ballots are a disaster. Get rid of the ballots and you’ll have a very peaceful, there won’t be a transfer, frankly, there will be a continuation.” Now, in the face of that blatant violation of his oath of office to swear to uphold and defend the Constitution, what would a real Attorney General be doing in terms of consulting with the president who takes this attitude about a democratic election in the United States of America?
Michael Waldman: (01:44:50)
It would be encouraging to hear law enforcement leaders from the federal government, as well as other parts of our federal system, make very clear that the peaceful transfer of power is one of the key aspects of having a Republic. I do think that an independent Attorney General would also point out to any president who says the kinds of things about voting that this president says, that when you hear this president make unsubstantiated claims that voting by mail is rigged and is fraudulent, that is not really a [chart 00:01:45:31]. That is a lie. Already one in four people in the United States vote by mail, before this year. It has happened in states with minimal problem, and with no, no, no evidence of widespread fraud or misconduct, and we need it this year to help so everybody can vote safely.
Thank you. Ms. [Ifill 00:09:55], the NAACP tried to get Texas placed under court supervision based on its continuing violations of the voting rights of African-American and Latino-American citizens. The Civil Rights Division initially supported that effort, but then changed course, did a U-turn under President Trump. What explains that switch from supporting your lawsuit to opposing it?
Ms. Ifill: (01:46:24)
Well, it’s an excellent question, Representative Raskin. We learned as we were en route, oral argument in the Court of Appeals that they would hold [inaudible 01:46:35] our shared argument, our successful argument, and the [inaudible 01:46:40] law deliberately discriminated against African American and Latino voters. It’s hard to say. It very much relates to the question that you just asked. So LDF has an active litigation on behalf of black voters seeking to relax onerous absentee voter requirements because of the COVID-19 pandemic. When the president said what he said yesterday about the ballots, he’s talking to the people that I represent. He’s talking to the African-American voters who are disproportionately vulnerable to COVID, who we have encouraged to vote absentee because they need to be able to vote safely. And we are in that kind of active litigation that we would have thought the Civil Rights Division would have brought.
Ms. Ifill: (01:47:18)
So what would an Attorney General do? First of all, an Attorney General would be bringing the litigation that LDF has been compelled to bring, but an Attorney General would also be saying every vote should be counted. The entire voting rights movement of the 1960s that was designed to ensure that black people could finally at long last participate equally in the political process was premised on the idea that we would be able to cast votes, but that our votes would also count. So it’s shocking to hear the silence from the Attorney General after the president’s comments.
Thank you [crosstalk 01:47:50].
Thank you, Mr. Raskin. Your five minutes are up. Hope you’ll be around for a second round. And I hope you’ll bring up the fact that African-Americans are the most disproportionately hurt by the coronavirus, therefore, the most likely to want to use mail-in voting to protect their health, and therefore likely to be the most discriminated against once again. So I hope you’ll do that.
Mr. Klein, you’re recognized for five minutes.
Thank you, Mr. Chairman. The Constitution is clear that Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof. And yet, during this pandemic, some jurisdictions have discriminated against houses of worship. In my home state of Virginia, this unequal treatment has been seen, and I brought this issue to the attention of the Attorney General when he testified before the full committee back in July. I’m also pleased to see that Civil Rights Division at DOJ has taken this issue seriously.
Attorney General Barr’s memorandum directing Assistant Attorney Eric Dreiband, and Matthew Snyder, the US Attorney for the Eastern District of Michigan to monitor, and if necessary, intervene in discrimination against religious institutions and believers is a welcome step toward ensuring that our rights are preserved. Particularly thankful for the department’s intervention in a case in Chincoteague, Virginia. And similarly, I’m glad to see that for now, the governor of Virginia has agreed that for churches with fewer than 250 attendees, the only remaining restriction is the executive order related to face coverings.
However, we should not have gotten to this point. And our rights should have always been protected. And that’s why I’ve co-sponsored legislation to prohibit states and units of local government that issue orders limiting gatherings to a certain number of people, pursuant to an emergency declaration from discriminating in the enforcement of such order, in the case of persons who are exercising a right protected under the First Amendment, and authorizes a private right of action in US district court by a person who’s harmed by a violation of this provision.
I want to ask Mr. Sasse, thank you for being here. Thank all our witnesses for participating. The Department of Justice Civil Rights Division has been active in responding to discrimination against houses of worship during COVID-19. Are you aware of efforts undertaken by the Civil Rights Division to combat discrimination against religious institutions during the pandemic?
Yes. I mean, they’ve been pretty active. They’ve sent several letters out, they’ve filed some statements of interest. We actually just filed a case this week against the District of Columbia for their ban on church services. And that’s going to get litigated, and perhaps we might have a decision on emergency relief coming in a week or so. And that would obviously, we welcome the Department of Justice’s participation if they so choose to participate in that.
Has the Department of Justice supported any cases that your organization has taken on through statements of interest or other tools?
Yes, I’ve highlighted some of them with the Islamic Association of Collin County, the issue in Airmont, New York with the Orthodox Jewish community, and a small rural church in Nebraska that ministers to a very large native American population.
Your organization, I believe that the church in Chincoteague is represented by Liberty Council, but that case was decided at the district court level, but it is on appeal, to my understanding. That sounds to me like there are several cases in other states that are moving forward. Would you say that?
Well, sure, there’s another wave of these types of cases that are challenging the restrictions on religious liberty during the COVID-19 situation that are going to make their way through the court system. And there will be another opportunity for the Supreme Court to provide some robust protection to the first freedom that’s mentioned in the Bill of Rights.
Thank you. Well, I appreciate your work and appreciate you being here today. Mr. Chairman, I yield back.
Thank you, Mr. Klein. Ms. Scanlon, you’re recognized for four minutes and 60 seconds.
I appreciate your generosity, Mr. Chairman. Thank you. Thank you to our witnesses being here. Listening to your testimonies, I’ve certainly been reminded of the Civil Rights Division’s critical and honorable role in our country’s fight against discrimination. And it’s sad, and maybe even pathetic, how far from that legacy the current division has fallen, not because of the dedication and knowledge and commitment of the career civil servants, but because of the administration’s politicization of the Department of Justice.
Civil Rights Division is tasked with protecting individuals from discrimination on the basis of race, sex, disability, religion, and national origin. But the department and DOJ at large during the Trump administration have largely failed to accomplish this task, even going back to undo the progress of previous administrations. And this was decades of bipartisan progress. It’s really quite astonishing to see where we are with this.
Mr. Smith, your testimony touched on this politicization, and you talk about how important it was during your tenure at the Civil Rights Division that decisions be made without any political consideration. Why is it important that the Civil Rights Division enforce anti-discrimination laws without political bias, and how has this administration changed that equation?
Certainly, thank you for the question. I was proud when I was in the Civil Rights Division that we went to where the problems were. We were able to go into communities where there was an identified issue, whether it be in policing, with regard to what was happening inside a correction facility, psychiatric hospitals to enforce the Americans with Disabilities Act and the integration mandate. We went all across this country. And as I said earlier, we were often in cities where there was Democratic leadership, and we were in places where there was Republic leadership. And that never played a role. And that added to the credibility of our enforcement decisions. And it was critical that when we went in and we conducted an investigation, we reached conclusions about the facts, we applied those facts to the law, and we recommended a remedy. Those recommendations, those findings have credibility in that there were independent from the political process.
The project of overcoming the history of racial injustice in this country is a difficult one. It’s one that takes a tremendous amount of effort, and it requires an independent Department of Justice that comes with credibility, that communities can trust, that the jurisdictions trust, that the members of the very diverse communities who make up any [inaudible 01:55:13] can rely on. That independence is critical. What we’ve seen with this administration is the targeting of the use of the enforcement to gain a political advantage in the upcoming election. And that has been just very, very disturbing to see. And as you’ve pointed out, the career staff in the Department of Justice does extraordinary work. And to have that work undermined by a political consideration is just very damaging both to their morale, but also to the credibility of the work that they do.
Yeah. And it’s just been so disturbing ,as someone who worked in this field as a pro bono ally with the Department of Justice and many of the groups on this call to see not only has there been no enforcement, no new cases brought, but to see the reversal of positions that were principled positions has just been so, so destructive. And to have, I think we had acting Attorney General Whitaker before us here. He had no idea whether any cases had been brought. So it just clearly has not been a priority, which is so antithetical to the whole point of the Office of Civil Rights.
I wanted to take a minute with Mr. Waldman. The census is a huge issue in our area. We have a lot of undercounted communities, both because of socioeconomic factors, and fully 10% or more of my district is foreign born. We saw reports just today indicating that there are probably a million people in the Philadelphia region who have not yet been counted. And surprisingly, that’s equal to at least one or maybe more Congressional seats. So it’s clear why this administration has interest in suppressing the census, but how has the Civil Rights Division helped the Trump administration push xenophobic census policies to exclude people like my constituents?
Michael Waldman: (01:57:15)
Well, in a number of ways. As you may recall, the administration tried to add a question unprecedented, to ask everybody, are you a citizen? And the rationale that was concocted by this was from the Civil Rights Division. And it was supposedly so that it could enforce the Voting Rights Act. Except, as this hearing has heard, it doesn’t enforce the Voting Rights Act. This was a pretext. And the case went to the Supreme Court. In fact, the question was removed, precisely because this purported rationale was evaporated as soon as it came in contact with someone.
Michael Waldman: (01:58:03)
There are other things as well where the Justice Department, institutionally, is defending conduct and policies that would make it harder to count in the census. In particular, the Brennan Center and others are involved in litigating the abrupt early end of the census that was deemed necessary, that was ordered by the administration. And the courts have said, no, you need to take as much time as possible. Again, there’s a pandemic. We haven’t lived through this in the early [inaudible 01:58:38]. We have to make sure that everybody is counted so they can have their votes counted and be heard by [inaudible 00:22:44].
Thank you. I see my time has expired, but I’ll be out this weekend in a census caravan trying to do some of the work the administration is unwilling to do. I yield back.
Ms. Dean is recognized for five minutes.
Did you skip Ms. Garcia?
I don’t go in order of who comes at times, I go in order of seniority. So I think you’re next.
I thank you. And I thank you, Ms. Garcia.
Mr. Waldman, in your testimony, you discuss areas where the Department of Justice has abdicated its responsibility in protecting voting rights from oppressive restrictions in areas in which it acts in opposition to its duty.
I’m from Pennsylvania, so I’d like you to think about Pennsylvania. We’re well in the news, in terms of the legal fight surrounding our elections and our ballots. The state Supreme Court ruled last week that there will be a three-day extension for mail in ballots to be counted as long as they are postmarked by 8:00 PM on November the third, election night. Previously, ballots were due when the polls close on election day, but the state’s Democratic party filed a lawsuit to push back that deadline. Republicans have challenged this, arguing that in effect, expanding mail in voting would give Democrats an unfair edge in the election.
We now have 203,000 Americans dead of COVID. Of course mail-in ballots are essential. We have a president saying, “Get rid of these ballots,” an extraordinarily transparent attempt to grab political power. Ordinarily, could we expect the Department of Justice to act in cases like this one in Pennsylvania, maybe by submitting an amicus brief or intervening? Could you describe what processes we should expect, or should have expected?
Michael Waldman: (02:00:51)
Well, Congresswoman, of course if the president were a local official and were saying these things and taking these steps to make it harder for people to vote, that would be precisely the kind of thing a strong Civil Rights Division would take a look at. You’re absolutely right that all across the country, including especially in Pennsylvania, there are so many issues relating to how ballots are counted, whether people will have their votes counted if they send them by election day, whether there are drop boxes that people can safely use to drop off ballots, and many other things all related in new ways to the pandemic.
Michael Waldman: (02:01:31)
And there are litigants that are private litigants, that are political campaigns, who are pushing, in the case of the Pennsylvania matters, you’ve described the Trump campaign actually is pushing to make it harder for these ballots to be counted. And in other cases, voting rights groups are trying to make sure that states and counties give their citizens full ability to be heard.
Michael Waldman: (02:01:55)
The Justice Department and the Civil Rights Division has a long practice of filing amicus briefs, friend of the court briefs, to state in effect the interest of voting rights, and the interest, therefore, of the federal government in protecting those voting rights, even if it’s not bringing a case itself. We know that this Civil Rights Division has pulled back dramatically from filing amicus briefs of that kind at a pace far less than either the Obama administration or the George W. Bush administration. One would hope that this Division would speak out in that way to make clear that the right to vote needs to be protected, and in new circumstances, with new technologies, with new issues, that it’s a core right for Americans.
I want to ask you, and this is really just from constituents who text me, call me. They are fearful for their vote. They’re in a panic now. Maybe I shouldn’t have gone with a mail-in ballot. Maybe I’ll walk in on election day. We know that if they do that, they’ve got to bring their ballot so it can be spoiled, or they’re going to have to vote provisionally, further muddying and delaying the count. What can you say to my constituents? My sister-in-law who texted me at midnight last night, “I’m in a panic over the security of my vote.” Even though I try to tell them with confidence that your mail in ballot is secure, what should we say, particularly in light of Pennsylvania being the keystone state yet again?
Michael Waldman: (02:03:25)
It’s an excellent question. And all who care about this election being free and fair and secure need to be careful in how we speak to the public. What I would say to your constituents first and foremost is, we all have an extra responsibility this year. Make sure you’re registered. Make sure that if you can, you can vote early. Whatever you do, make it easier for election officials to handle the new wave of ballots coming in, or the new wave of voters. I would say also that we who care a great deal about the challenges that are being erected, or the challenges that exist, need to be careful not to alarm voters unduly, and [inaudible 02:04:10].
Exactly right. And just in the remaining seconds, I want to give a shout out to my counties, Montgomery and Berks counties, who have done just that. They’ve invested in the security of our elections. We’re trying to get the word out that your ballot is secure up against a president who says, “Get rid of these ballots.” Incredibly transparently corrupt. Thank you.
Michael Waldman: (02:04:30)
And I would say we can all speak out and have the backs of the local election officials of both parties, who all across the country are doing their best to try to make this situation work well.
Thank you, Mr. Waldman. I yield back. Thank you, Mr. Chairman.
Thank you. Representative Garcia is recognized for five minutes.
Thank you, Mr. Chairman, and thank you so much for this opportunity, for this committee to shed light on the work and yes, the failures of the Department of Justice Civil Rights Division. And thank you to all the witnesses who have come to visit with us today.
This hearing on this topic comes at a critical point in our country’s history as we near the 2020 elections. Following reports of the Civil Rights Division has virtually abdicated its responsibility to protect the rights of minority voters makes it even more critical. Essentially, the Civil Rights Division has responsibility to uphold civil and constitutional rights of all Americans, particularly some of the most vulnerable members of our society. Specifically, the Division carries a responsibility of exercising its enforcement of voting rights and consent decrees with local police departments found to have engaged in a pattern or practice of violation of constitutional rights.
Months ago, I proudly joined my colleagues of this full committee in consideration of the George Floyd Justice and Policing Act. To this day, this Attorney General has so far refused to allow DOJ to open a pattern or practice investigation into systematic racial discrimination by the Minneapolis police department, following the killing of George Floyd. We need a real Attorney General, someone who can really talk about the reality of what is going on on the streets, and someone who can speak truth to law and order. Unless we build a Civil Rights Division of the Department of Justice and help it reclaim its purpose of enforcing federal statutes prohibiting discrimination.
I wanted to start with Sherrilyn Ifill and Thomas [Siennes 00:30:44], representing the NAACP in [inaudible 00:30:48]. I think Ms. Ifill, and again, thank you for being here, I know we’ve visited with you before. You talked a little bit about the Texas case in response to my colleague, representative Raskin. And there’s more cases in Texas where this Attorney General has reversed course, reversed position. Could you, for the record, and I know you’ve mentioned some, and mr. Thomas Signs, you too. You’ve mentioned some, but I think it’s important for the public to hear what a difference having an Attorney General, whether it’s like Mr. Raskin said, we don’t have a real Attorney General, but this Attorney General has done so much damage. Could you give us just some quick examples, not only in Texas, but across the country of where reversing course has hurt minority rights, voting rights, civil rights, et cetera? And I’ll start with Ms. Ifill.
Ms. Ifill: (02:07:45)
Thank you. I’ll leave the Texas cases to my colleague, Mr. Siennes. One area that we haven’t talked about is education, and in particular, affirmative action. Every time that affirmative action cases have gone to the Supreme Court over the last 40 years, the Supreme Court-
Ms. Ifill: (02:08:03)
Cases have gone to the Supreme Court over the last 40 years. The Supreme Court has upheld the constitutionality of the practice, in the Bakke case, in the Grotz and Grutter cases, and in the Fisher cases. And in the Fisher cases, the Department of Justice actually argued in support of affirmative action. And yet this year, this year and beginning last year, the Department of Justice has essentially switched sides on affirmative action, filing a statement of interest in the case challenging affirmative action against Harvard last year, and the brief in the court of appeals. Just recently, Mr. Dreiband himself sending a letter to Yale University, threatening to sue Yale University for its affirmative action program. And now, recently sending a threatening missive to Princeton University after Princeton University voluntarily chose to acknowledge its own history of discrimination. This is yet another area, affirmative action, where the department has essentially switched its position and now actively works against affirmative action.
Ms. Ifill: (02:09:09)
Once again, a core civil rights measure. We combine that with voting. We combine that with the policing cases. And we see a Civil Rights Division that essentially has abandoned its core mission. I’m listening today to the conversations about religious discrimination, which is certainly part of the portfolio and docket. But it is one part of the portfolio and docket. On race discrimination cases, this department has essentially stood on the opposite side of core civil rights positions. And as I suggested earlier, in some cases, actually not just withdrawing, but actually seeking actively to undermine civil rights protections in the area of race discrimination. And reminder, again, that the division was created at a moment when this country was fracturing around race discrimination. And here we are again. All over this country, racism from the highest levels of government, explicit white supremacy, the DHS telling us that white supremacist violence is the number one domestic terrorism threat, and yet, silence from the Civil Rights Division as we see this violence unfold around the country. Really alarming and shocking, and time for a reversal.
Speaker 3: (02:10:21)
Thank you. Mr. Chairman, could we allow Mr. Sainz to respond to my question?
Mr. Cohen: (02:10:26)
Mr. Sainz: (02:10:28)
Thank you, Congress member. As I mentioned in my testimony, the Department of Justice changed its position on pre-clearance for the State of Texas following the lengthy redistricting litigation. It changed its position, as Ms. Eiffel testified, in the voter ID litigation in Texas. I want to emphasize with respect to redistricting that that change of position and not subjecting the State of Texas to pre-clearance, it has its greatest cost for the state itself. The fact is that pre-clearance is a much more efficient and effective means of quickly addressing flaws in redistricting.
Mr. Sainz: (02:11:04)
Without pre-clearance in 2021, I expect we may end up in lengthy litigation, lasted eight years plus in this decade, lengthy litigation against the State of Texas. It is frankly very costly for the state. I would simply add in the State of Texas, as you know, Congress member, a year ago, the Secretary of State attempted to remove 100,000 voters from the roles based on faulty data, data that the Secretary of State knew was faulty from the Motor Vehicles Department. And this would have resulted in removing up to 100,000 naturalized voters from our voter rolls, and that would’ve had an impact in this election. That’s the kind of case that ordinarily one would expect the Civil Rights Division to step up and arrive at a very quick resolution with the State of Texas.
Speaker 3: (02:11:53)
Thank you. I yield back.
Mr. Cohen: (02:11:56)
And now I’d like to recognize the honorable lady from Houston, Texas. Oh, I’m sorry. I’m sorry. Off-camera. El Paso, Texas, Representative Escobar for five minutes.
Veronica Escobar: (02:12:11)
Thank you so much, Mr. Chairman, and many thanks to all of our panelists. I’d like to use my five minutes to focus on two areas of great concern to me. The first is the increase in hate crimes. And the second is police brutality. And as you all know, August 3rd of 2019, El Paso suffered one of the deadliest targeted attacks against Latinos in modern American history, where a gunmen drove over six hours, I’m sorry, over 10 hours and 600 miles in order to kill people that he believed were immigrants, in order to kill Mexicans, but essentially to kill people with brown skin. And I believe that that hate in his heart has been fueled and was fueled by the racism coming from the White House and racism that has been amplified by other leaders across our country. And the fact of the matter is we’re seeing hate crimes increasing tremendously, and they have increased since 2016, since the president was installed in office.
Veronica Escobar: (02:13:27)
Chair layman, it’s so wonderful to see you again. And I want to thank you once again for joining me at a town hall where we marked that terrible anniversary about the shooting and where we came together to talk about what more needs to be done to fight hate crimes in our country. And we discussed the Commission’s report entitled, In the Name of Hate: Examining the Federal Government’s Role in Responding to Hate Crimes. And the report obviously affirmed what we all know, which is that there’s been this increase in hate crimes since the election. If we had an Attorney General interested in keeping our communities safe from hate crimes, what more could and should the Department of Justice be doing?
Speaker 4: (02:14:16)
Thank you so much for that question. And thank you again for lifting up the critical importance of addressing hate in this time. I just want to recognize that the Department of Justice in fiscal year 2018 prosecuted 27 hate crimes allegations. That’s a tiny fraction of the level of hate that we know to exist in the country. So, we first need more than rhetoric and more than baby steps, but actual action from the Department of Justice. In addition, the Department of Justice knows and has recognized that the data that it has is not sufficient, and it does not require that the local departments around the country actually submit data to the Department of Justice and then make sure that it is accurate and transparent. And so we need better transparency. We need better data, and we need more fulsome commitment from the department actually to prosecute hate crimes.
Veronica Escobar: (02:15:05)
Thank you so much, chair layman. Ms. Eiffel, we obviously have been just shocked and I had hoped that we had reached a tipping point in our country on police brutality and confronting what we need to do as a country to finally overcome institutionalized racism. But we continue to see injustice and we continue to see civil unrest because of the desperation that exists in this country around racism and around injustice and lack of accountability. We just saw it in the Breonna Taylor case and in what was revealed yesterday. And it feels as though it’s hard for our country to come to grips with what we need to do. But Congress passed the George Floyd Justice and Policing Act. I continue to urge our Senate colleagues to pass it. But along the same lines of what I asked chair layman, if we had an Attorney General interested in addressing police abuses, what could the DOJ do? What tools do they have to help our country right now?
Ms. Ifill: (02:16:23)
Well, the Attorney General has soft tools and hard tools. The hard tools are the actual statutory provisions that empower the Attorney General to take action. One of the most important is the Law Enforcement Misconduct Act, which authorizes the Attorney General to conduct patterns and practice investigations of unconstitutional policing. This is how you get at systemic discrimination in police departments. But we have heard this Attorney General say he does not believe that there are systemic issues in police departments. He only believes that there are individual police officers who have engaged in misconduct. So he has essentially set to the side a statute passed by this Congress, by the United States Congress, to authorize the Attorney General to probe into this important area. And then he has soft tools, which is what he says. And this Attorney General and this Head of the Civil Rights Division have not used those soft tools to address the issue of racism in policing, and to stand with communities around seeking to ensure that those who carry weapons and have the license of the state to take life are doing so in a manner that is consistent with the constitution.
Veronica Escobar: (02:17:40)
Thank you very much, both of you. I yield back, Mr. Chairman.
Mr. Cohen: (02:17:44)
Thank you, Ms. Escobar. I now recognize the lady from Houston, Texas, where they not only sing, but they dance.
Sheila Jackson Lee: (02:17:53)
Thank you very much, Mr. Chairman. And I can’t thank you enough and the ranking member for the list of stellar witnesses. I don’t think we’ve had a gathering of this amount of compassion, talent and genius on the question of civil rights in this committee for a very long time. I want to very quickly indicate that this committee’s responsibility is oversight. And to my friends on the other side of the aisle, I remember distinctly General Holder coming and not being able to even give a comment, a comma or a period in his answers because there was this intense oversight. Oversight is the duty of the United States Congress in the equal branches of government. So let me emphasize pointedly my concern. Black lives matter, black women’s lives matter.
Sheila Jackson Lee: (02:18:52)
And in the last two days, we have seen in particular a narrative given to a grand jury in Kentucky that brought about an altered position. Questions of facts remain on the table. And the nation, mothers with strollers and grandmothers and young non-violent protestors, are in the streets asking for justice. So I am interested in a memo dated November 17, 2018 issued by the Attorney General, a directive which among other things limits the limited circumstances in which such a consent decree may be appropriate and the terms for consent decrees and settlements agreements. So let me ask a first question to Mr. Smith, I think it is. I’m going to ask you, Mr. Smith. Yeah, I see you moving.
Sheila Jackson Lee: (02:19:47)
I want to ask you the question of this seemingly skewed presentation to the grand jury. Defective warrant, no clarification of whether they had a uniform. But the point is, what could be the immediate response that the Justice Department with a functioning Civil Rights Division could give relief to Breonna Taylor’s mother about an additional investigation working with the FBI?
Certainly. So, there are a couple of things that could happen immediately. First, we in the last administration opened up a pattern and practice civil investigation to determine whether there’s a pattern or practice in violation of the Constitution or a federal law with regard to the law enforcement in Louisville. We’ve seen just in this incident significant indications that there are serious problems in that department that go much deeper than just what happened to Ms. Taylor. And it’s a city that is right for a patterns and practice investigation. The United States can also open up investigation under its criminal laws that permit the prosecution for the willful violation of someone’s civil rights. I must note that there are very few tools in the criminal toolkit for civil rights to be-
Sheila Jackson Lee: (02:21:02)
And I have two other questions to two other panelists.
And the third… I’m so sorry. And the third thing that it can do is through its grant-making authority, it can make a tremendous difference in terms of enforcing the non-discrimination [inaudible 00:02:21:16] of this grant.
Sheila Jackson Lee: (02:21:16)
So there should be relief if we had a functioning Civil Rights Division of the DOJ.
Sheila Jackson Lee: (02:21:23)
Let me ask you, Mr. Sainz. As you well know in Texas, we had a voter ID law on the district court level that was found unconstitutional. Again, my time is very short. What is the impact of a Civil Rights Division that is not supporting voting rights?
Mr. Sainz: (02:21:37)
It’s tremendous cost to the State of Texas. It’s tremendous cost to those who have to litigate the cases in the absence of the Civil Rights Division. And it misses an opportunity to send an important message to others around the country about not pursuing similar measures.
Sheila Jackson Lee: (02:21:53)
And as we go into a very tumultuous voting period, November 3rd, we need the protectors of the American people in the DOJ. Ms. Eiffel, I want to go back to that document dated 11/7/18, where it looks as if there are directions to not have consent decrees. Can you provide me with the overall chaotic response or the chaotic actions that come about when you don’t have a tool to correct policing misconduct? And what I’ve known is that when you give them a roadmap, they feel better, the community feels better and they save lives. But here is a direct directive not to do that. Could you respond to that, please? Unmute.
Ms. Ifill: (02:22:43)
That is correct, and that is consistent with then Attorney General Sessions’ stated opposition to consent decrees at the confirmation hearing. [inaudible 02:22:55] increase in policing actually improve policing, not only for the community, but for police officers themselves, because it provides a framework in which police officers receive training. They tend to receive greater funding to implement the provisions and the requirements of the consent decree. And as you point out, they receive a roadmap for constitutional policing. So yes, this undermines actually improving policing itself and undermines the protection of the community.
Sheila Jackson Lee: (02:23:20)
Thank you very much. Mr. Chairman, I yield back my time.
Mr. Cohen: (02:23:24)
Thank you, Ms. Jackson Lee. We now have a second round. And first I’d like to ask Ms. McGowan, you noted in your testimony that when you submitted your resignation to the Civil Rights Division, it was the same day that acting Attorney General Yates was fired for refusing to defend President Trump’s Muslim ban. Did you consider that an attack on religion by singling out Muslims for discrimination?
Ms. McGowan: (02:23:53)
Mr. Chairman, the attacks of this president against the Muslim community are among the most horrifying legacies of this administration. And I will tell you, it was a very, very difficult day for me to submit my resignation from what I was describing as a dream job. And I will say when I first learned that Attorney General or acting Attorney General Yates had stood up to the president and said that the Department of Justice has a duty to do justice and enforce the constitution and would not defend that ban, I had a moment of thinking that maybe I had jumped ship too soon. I thought maybe the good folks on the inside would be there to serve as that firewall against what we feared might come from this administration. And then as many of you all know, we all came back from commercial break, watching whatever program we might’ve been watching, and then we learned that she had been summarily fired.
Ms. McGowan: (02:24:44)
And so to the extent that this again is a sign from day one of the lawlessness of this administration, and the fact that anyone who would be standing up for civil rights was inevitably going to have an extraordinarily hard time, and in fact actually would be forced to choose between whether or not they could continue to serve in their role or actually live up to the constitution, is why I left, why so many amazing people have left. And I just want to make clear that the ramifications of what has been happening over these past three years will have a legacy for many, many years to come.
Ms. McGowan: (02:25:18)
Civil rights lawyers at the Justice Department, even if we turn the corner and have new leadership, will be now handicapped trying to go into communities with any level of credibility. It’s not just the FBI that’s been damaged. It’s Civil Rights Division lawyers going into communities. And why should they be trusted? The amount of energy that will need to be spent rehabilitating that credibility is effort that will be wasted when in fact it can and should be spent on reinforcing and rebuilding civil rights in this country.
Mr. Cohen: (02:25:46)
Thank you, Ms. McGowan. Mr. Sasser, did your firm or public interest group get involved with opposing the Muslim ban?
Hiram Sasser: (02:25:57)
No, we did not. We did not file any briefs or have any clients in that matter.
Mr. Cohen: (02:26:02)
You didn’t see that as a religious issue when every Muslim was not permitted to come to this country?
Hiram Sasser: (02:26:08)
We just didn’t analyze it. And so I don’t have any comment to share with you.
Mr. Cohen: (02:26:13)
Thank you, sir. Ms. Eiffel, do you see any reason why the Civil Rights Division should be involved with the unfortunate incident that happened to Mr. Mabrouk and others when they had their businesses damaged during riots in this country? Is that a Civil Rights Division claim, or should that be the Criminal Division?
Ms. Ifill: (02:26:43)
Well, I think it’s the Criminal Division, except in this way, which is that the question today in Louisville is, what are people supposed to think? What is the action that’s going to be taken that’s going to make changes in a department that has had problems over many, many years? In a situation in which their officers on the force, including the officer who was indicted yesterday, who when he left the Lexington Police Department, his supervisor said he should never be hired again. And yet he was hired by Louisville. He’s been accused of multiple incidents of sexual assault. This department has been having problems for many, many years. And if business leaders want their businesses to be protected and they want to ensure that the community is at peace, then they too should want the Department of Justice to bring their resources in to conduct a patterns and practice investigation to find out what has been happening in the Louisville Metro Police Department. And to if necessary, bring suit and enter into a consent decree to create a roadmap so that there can be peace and a path forward for public safety in Louisville. [crosstalk 00:19:55].
Mr. Cohen: (02:27:56)
Ms. Eiffel, what you’re saying… One of the colleagues on the other side said that when the city, like in Columbus, Ohio, can’t come in and protect Mr. Mabrouk property, that the federal government should. And of course, the Republican Governor of the state didn’t ask for the federal government. But what you’re saying is when the rights of African Americans can’t be protected by the locals, then the Civil Rights Division should come in with patterns and practices. Is that correct?
Ms. Ifill: (02:28:24)
That is correct. And that will help protect businesses as well because it will bring some order, some vision and some roadmap for public safety to the community.
Mr. Cohen: (02:28:34)
I appreciate your responding. And I’d just like to comment that we saw it at the Republican Convention when Mr. Pence recognized the lady whose brother had been killed in Oakland, California. He I think was a Homeland Security Officer. And he was killed during the riots that occurred afterwards. They were unable to say as the members of this committee, during the hearings, when we had Mr. Barr before us and others, they can’t say the word Boogaloo. They could be waterboarded. And they would not say the word Boogaloo. And FBI Director Ray made clear in his testimony that most of the violence that the FBI sees as terrorism comes from the right wing, the right side, from groups like Boogaloo. Boogaloo, waterboard, won’t talk, won’t talk. I yield back. Mr. Johnson.
Mr. Johnson: (02:29:28)
Sometimes I’m not sure how to take the baton after this. It’s interesting how we see this from very different lenses. I was just listening to you, Ms. McGowan, and you said the attacks of this administration against the Muslim community have been outrageous or something like that. But yet, we just heard this morning in the course of this hearing, Mr. Sasser himself gave us specific examples here today, just that his organization has been involved with, with the Department of Justice’s Civil Rights Division, where they’ve aggressively intervened to protect Muslims across the country, and many other minority faces as well. The facts just don’t line up with so much of the rhetoric we’re hearing. And the fact that the volume’s been turned up on this partisan bickering is I think it’s destructive to our institutions. And the Department of Justice and the Civil Rights Division is one of the most important institutions we have.
Mr. Johnson: (02:30:15)
I mean, the American people have to believe in the integrity of the system. And all of us have complaints. I mean, our side had complaints during the Obama Administration. It’s never perfect. But we’re on our way to making a more perfect union. And I just want to say this in the defense of our Attorney General, because he’s been maligned so maliciously here today, as he has been since he took the office. When he was at his confirmation hearing, he said very clearly… This is his quote. I wrote it down. “The Attorney General has a unique obligation. He holds in trust the fair and impartial administration of justice.” Many of us believe that he’s done exactly that. He’s a serious law enforcement officer with a sterling reputation. He didn’t have to do this job he had done before in the past, but he came to it because he believes in his country and he believes in the pursuit of justice.
Mr. Johnson: (02:31:02)
And I think from many people’s perspective, he’s done a fair job at that. He has administered justice impartially, and I believe they’re doing their best. He had to clean up some messes of the previous administration. I mean, we all know about the Comey FBI and the Special Counsel Investigation, all the flaws. I won’t go down that rabbit trail. But there was a lot to do when he came in. And as we know, since the pandemic, we’ve had some of these mayors and governors who have failed pretty miserably. The Attorney General’s had to protect federal property. He’s had to restore order to cities by using federal resources to quell left-wing extremist violence so that peaceful protesters may safely exercise their first amendment rights. That’s his job. It’s his duty. It’s a hard one. It’s controversial.
Mr. Johnson: (02:31:46)
But if he had not done it, we’d have more of this massive property destruction of personal and private property all across the country. And I think that he ought to be applauded for taking a strong stand on that. Because if he didn’t, the safety of every single American is in jeopardy. Let me ask you a question, Mr. Sasser. You’ve been in this arena, litigating constitutional law cases for a long time, particularly in the realm of civil liberties and defending our first freedoms and all that. What can Congress actually do to assist the protection of civil liberties instead of just merely pontificating and engaging in personal attacks on various DOJ officials?
Hiram Sasser: (02:32:22)
Well, I’ll tell you what I tell my law school students, which is that if you have a problem with civil rights enforcement, it’s Congress’s fault. Congress has abandoned its post. You have 42 USC 1983. All you have to do is amend it to establish responding superior liability, great vicarious liability for the government entities, for the actions of the government employees. You want to reform the police, then all you have to do is amend 1983. In order to make that reformation take place, you won’t need custom and practice investigations because you won’t need to establish custom and practice as an alternative route to liability. Because you’ll have responding superior liability, just like private companies have to do.
Hiram Sasser: (02:33:06)
But for whatever reason, we’ve decided to take this position as a country that we’re going to treat the government officials as if they are so incompetent and buffoons, that the government entity can’t possibly be held responsible for their actions and thus accountable to train them properly and to properly make sure that they’re doing the right thing. So, what can Congress do instead of talking about why won’t the executive branch do their job? Congress could do its job and amend 1983 and establish responding superior liability. And that will bring an end to a lot of problems.
Mr. Johnson: (02:33:41)
That’s a great idea. And if we had the political will to do some of that around here, if we could get a majority of members together to make actual change, we probably could prevent a lot of the things that everyone’s complaining about. But I appreciate your expertise and what you brought to the table today. Again, I want to say to Mr. Mabrouk, thank you for your compelling testimony. And you brought a lot to the hearing today, and we’re grateful for that. I’m out of time. I yield back.
Mr. Cohen: (02:34:08)
Thank you, Mr. Johnson. Mr. Raskin, you’re recognized.
Jamie Raskin: (02:34:13)
Thank you very much, Mr. Chairman. I’m coming to Ms. McGowan, and I want to thank her for her excellent testimony. Let me start with a yes or no question, Ms. McGowan. Is there a general religious free exercise exemption from public health orders that are handed down by estate or accounting?
Ms. McGowan: (02:34:32)
I’m sorry, Congressmen. Is there a general exemption for religious…?
Jamie Raskin: (02:34:37)
Yeah. Does the religious Free Exercise Clause exempt churches and synagogues and so on from public health orders that are handed down by states or counties?
Ms. McGowan: (02:34:50)
No. To the extent that they are places where the public health is at issue, these are generally applicable laws.
Jamie Raskin: (02:34:58)
Right. And didn’t the Supreme Court on May 29th of this year, in a case called South Bay Pentecostal Church Versus Newsom, reject precisely the argument that my dear colleague, Mr. Johnson, has been spending most of his time on today? Which is that somehow churches have a special exemption from public health orders that are handed down because of COVID-19. In that case, the court said that churches were being treated just like other institutions having public gatherings, like lectures, concerts, movie showing, spectator sports, theatrical performances. There are a lot of people who are participating in first amendment activity, like a political party gathering indoors, or a political organization gathering indoors. And if there’s a ban on assembling in say more than 50 people, it applies to everybody, whether it is secular or religious. Isn’t that right?
Ms. McGowan: (02:35:52)
Jamie Raskin: (02:35:53)
Well, why are we getting this continual barrage of complaints that somehow religious groups are being unfairly targeted in COVID-19 when in fact the Supreme Court has already rejected the argument that they’re making?
Ms. McGowan: (02:36:11)
Well, Congressmen, it is I think, unfortunately, part of a larger pattern where we see the use of religious liberty arguments as a sword as a way to carve out coverage from generally applicable laws. And that has been a clearly established principle in this country for quite some time, that when you have generally applicable laws, even if there is some incidental burden, those laws can and should be enforced. Now in this context, we see attempts being made to suggest that somehow religious groups are being targeted when I don’t think that in most cases there is anything to factually back that up. But as we know, this has actually been a pattern that we’ve seen with respect to other laws as well, where the government has been trying to advance compelling government interests, whether it’s protecting public health or whether it is about rooting out discrimination in places of public business. And anytime that law is applied against religious entities, unfortunately there is a pattern of suggesting that they have been targeted for unfavorable treatment. When in fact, what we are seeing is an attempt to create a different set of rules.
Jamie Raskin: (02:37:13)
Yeah. And in fact, didn’t the Supreme Court in the 1960s, in cases like Ollie’s BBQ and the Heart of Atlanta Motel, precisely reject the argument that there’s somehow a first amendment free association or religious free exercise right, or free speech right, to discriminate? And that seems to be really the only civil rights agenda that seems to animate my friends, which is to take the religious Free Exercise Clause and claim that it provides an exemption from generally applicable universal laws, especially in the civil rights field.
Ms. McGowan: (02:37:52)
You’re absolutely right. And the Civil Rights Division has a long history of using laws like the Religious Land Use Act to ensure that religions are not being discriminated against. But when I talk about sort of the misdirection of the resources of the Civil Rights Division, I’m talking about this in particular. The way in which, and as Ms. Eiffel and others have indicated, the overwhelming redirection of resources to this one particular issue, in many cases which often have the effect of gutting civil rights protections by suggesting that somehow the application of laws designed to advance this compelling government interest are somehow the most important work of the Civil Rights Division, is certainly not consistent with the long history to the extent that it actually has very negative effects for civil rights. It is a troubling way to see the Civil Rights Division dedicating the majority of its time.
Jamie Raskin: (02:38:40)
Thank you. Mr. Smith, let me turn to you because several of the witnesses have, including Ms. McGowan, have referred to the Civil Rights Division as the crowned jewel of the Department of Justice. And one, I wonder what you think of what has happened to the crowned jewel under Donald Trump and Bill Barr. And two, will there be any way to recover the muscle memory, the focus and the effectiveness of the Civil Rights Division in the future?
So thank you. The crowned jewel has experienced a tremendous amount of tarnish during this administration. It is, as I think every one of the witnesses has said, it is heartbreaking to watch this organization that plays such an important role, not only in our government and our Department of Justice, but in the nation’s history of promoting equity and equality and equal opportunity, it is heartbreaking. The answer is yes. It’s going to take, as Ms. McGowan said, it’s going to take some real work to rebuild the department. But there have been a large number of incredibly talented, dedicated, committed career staff who have stayed. Under new leadership, they can rebuild the docket of the department, but it’ll take a lot of work to-
… the department, but it’ll take a lot of work to rebuild that department by getting back into the communities that are most impacted by the policy decisions, the great inequity and injustice, rebuild that trust that the department is real about the work that it is doing, and get back with the long, complicated project of addressing the racial injustice that has been the hallmark of history of this country.
When you think about policing… And just to be very brief, when you think about policing, when we entered in consent decrees, those were roadmaps for change in a police department that was to address a history of unaccountability and problems in the department that developed over decades. And these are not… [Inaudible 02:40:48] are not the kind of thing you’re going to turn the corner in a minute. It takes years of hard work implementing that roadmap to reform, to bring about the kind of change that is necessary to address racial bias, excessive use of force, and the broad range of other accountability issues. And it’s going to take that same kind of time to rebuild the department’s credibility in communities and get back to that really important work.
Speaker 5: (02:41:13)
Thank you, Mr. [crosstalk 02:41:14] Grant.
… in a minute.
Speaker 5: (02:41:15)
Thank you, sir. I appreciate it.
Speaker 5: (02:41:17)
Miss Garcia, do you have any questions?
Miss Garcia: (02:41:20)
I do, thank you.
Miss Garcia: (02:41:22)
I want to start with Miss [Lammon 00:01:24], and I just wanted to clarify a point that Representative [Delmer 02:41:30] made earlier in his first round of questions. I’m not sure if he’s coming back.
Miss Garcia: (02:41:36)
He seemed to implicitly criticize the Civil Rights Commission with his question, and probably false assertion, that the Civil Rights Commission has designated Evangelical Christians as a hate group.
Miss Garcia: (02:41:50)
Could you respond to that and correct the record because I don’t recall that you all did that, but we thought I’d give you the opportunity to clear that up.
Miss Lammon: (02:42:00)
Thank you very much for the opportunity. It’s absolutely not the position of the US Commission on Civil Rights. And I want to be very clear that the Commission is made up of eight independent commissioners, each of whom is given an opportunity to make a statement at the end of reports of issue. And in a report issued before my tenure on the Commission, the chair I replaced made a comment that is not quite the comment that Mr. Delmer suggested, but that has been inflammatory and has raised many people’s hackles. It was not then the position of the US Commission on Civil Rights, and it is not now the position of the US Commission on Civil Rights, which is wildly protective of religious freedom and wildly protective of religion among all other civil rights.
Miss Garcia: (02:42:38)
So you’ve not designated them a hate group. Is there any other religious group that you may have done, and there may be some confusion?
Miss Lammon: (02:42:52)
The US Commission on Civil Rights is not in the position of designating any group as a hate group. So we have not designated Evangelical Christians or anyone else as a hate group. And it is not the position of the US Commission on Civil Rights that any religion or any faith is a hate group.
Miss Garcia: (02:43:06)
Right. Thank you. I just wanted to clarify the record.
Miss Garcia: (02:43:08)
Now I have a question for Mr. Lammon. Mr. Lammon, you were… Your testimony earlier in a response to a question was talking about the enforcement of, or potential scenario where law enforcement may be sent to polling places. And I know that in some of the States where some law enforcement was sent, it was because… or in the pretense, if you Will… that it was to protect federal property. So if there is no polling place that’s on federal property, doeS it follow logically that the president cannot send forces to polling places? Not ICE, not any local law enforcement or any of these groups that he’s putting together?
Miss Garcia: (02:44:11)
Michael Waldman: (02:44:14)
Well, Miss, I didn’t realize that was for me. Yes. federal forces can be used in limited circumstances to protect federal property. But when they stray beyond that… In fact, when they go to polling places, that raises other legal issues. It raises-
Miss Garcia: (02:44:32)
Right. My question was [crosstalk 02:44:34] if the polling places are not on federal property because, frankly, I’ve been voting since I could, and I don’t recall ever seeing a polling place at a federal property.
Miss Garcia: (02:44:45)
So the question is-
Michael Waldman: (02:44:46)
Miss Garcia: (02:44:46)
… Would they have any right to send any law enforcement or any of these… ICE officers are being put on a plane and come here to DC to join in the fight against the protesters. Would they have any authority to do that?
Michael Waldman: (02:45:03)
No, their authority is very limited, and must be guarded, especially in the context of an election where there’s a long history of law enforcement being used to intimidate voters, especially voters of color.
Miss Garcia: (02:45:17)
Right. So, what is the best way that we can work with local officials to ensure that the rights of all voters coming to a polling place… Because under COVID, there will be long lines, if they’re in person. There will, at least in our county, there’s major voting centers to ensure that local officials get the support that they need to ensure the voting rights of all the people that come on election day.
Michael Waldman: (02:45:53)
Well, first of all, you’re right that the principal responsibility here is a responsibility for local officials. The Brennan Center for Justice, and our website, and numerous other voting rights and democracy organizations, have ample material making clear that it is currently illegal… flatly illegal… to intimidate voters. It is flatly illegal to keep other people from exercising their right to vote. Local officials have authority to enforce those laws.
Michael Waldman: (02:46:22)
In addition, the courts have a role. We know that there are both private groups and political entities that, in the guise of ballot security, are basically aiming to be vigilantes. Voters… Again, this goes back to an earlier point. There’s every reason to expect that voters will be able to vote without this kind of interference,
Miss Garcia: (02:46:49)
Michael Waldman: (02:46:50)
The law is quite clear.
Miss Garcia: (02:46:51)
If I can interrupt-
Michael Waldman: (02:46:52)
The people cannot-
Miss Garcia: (02:46:52)
… you, because my time is my time is up. I think the problem we have locally is that in… Before this administration, when we had issues like that, we would call the Justice Department. Now we’re afraid to call the Justice Department. So really, my question was, what can we do more locally to ensure that we can take care of things locally? Because frankly, we fear calling the Justice Department. We’re not sure what they will or will not do.
Michael Waldman: (02:47:19)
Well, and we wouldn’t really want to have uniformed federal personnel in any case but this is, under an ideal world, the kind of misconduct that monitors would be able to look at from the Justice Department. This year, a lot of us are all going to have to step up in different and new ways to make sure the election is run right.
Miss Garcia: (02:47:40)
All right. Thank you. I yield back, Mr. Chairman.
Thank you, Miss Garcia.
Miss Jackson, [inaudible 02:47:44] last questioner for five minutes. Thank you.
Miss Jackson: (02:47:47)
Mr. Chairman, thank you very much.
Miss Jackson: (02:47:48)
Miss Walderman, I hope by your statement that we can make this public knowledge and demand the Justice Department to do its job, which is, as my colleague has said, we have always… From Texas, we are always in the midst of, unfortunately, voter suppression every election, intimidation at the polls by poll watchers.
Miss Jackson: (02:48:11)
In Latin X and African-American polling, I remember clearly, in the year 2000, the intimidation using a database from Texas of turning away people who had done their time, but they were ex-felons when they were able to vote or they… I’m sorry. They were claimed to be ex-felons and they were not. They were African-American men. So I hope that we’re making that statement.
Miss Jackson: (02:48:36)
Let me go to Mr. Seins. And I’m so sorry, Mr. Seins, I always say this, but I know you will be pointed. What should the voting rights section top priorities be right now, as we move into an election where the President of the United States said, “Throw away the ballots.”
Miss Jackson: (02:48:51)
Mr. Seins: (02:48:53)
They should be bolstering our confidence in the use of vote by mail and making sure that it’s widely available because of the special circumstances we face with the pandemic. You know, in the State of Texas, the absence of no excuse remote voting is a barrier, particularly for black and Latino communities. And that is somewhere where the division could be a real leader in bolstering understanding that that is a legitimate means of voting. It is a non-fraudulent, genuine means of voting, and it should be widely available.
Miss Jackson: (02:49:26)
So what you’re saying is, contrary to the person holding the presidency, they should boldly adhere to their dicta or their… Excuse me… their directions or their mission, and tell the American people through outreach, that that is a secure way of voting, that it will be protected, and that they can vote that way along with early vote.
Mr. Seins: (02:49:49)
Absolutely. That is the role of the division is to make it clear that access to ballot is the right of every eligible citizen.
Miss Jackson: (02:49:57)
Not to be dominated by words spoken from a podium about throwing out the balance.
Mr. Seins: (02:50:03)
Exactly. Particularly when that person has himself remote voted on numerous occasions in the past. That is Exhibit 1 for what the division could be using to create competence in giving access to remote voting to all voters.
Miss Jackson: (02:50:17)
Miss Jackson: (02:50:17)
I don’t want to create chaos, but Mr. Walderman… And I want to ask Miss Eiffel a question. So let me… I don’t want to create chaos. I want to create security and safety, but we have been pummeled by chaotic messages from the White House regarding the transfer of power, the safe transfer of power. I always think of civil rights because I’ve always, during local elections, get empowered by being able to say, “I’m going to call the DLJ in terms of the Civil Rights Division.”
Miss Jackson: (02:50:53)
Just give me… I know that Brendan, the Center for Justice, has an array of perspectives on this threat not to commit to the democratic constitutional protocols of transfer of power.
Mr. Seins: (02:51:10)
Well, Congresswoman, as you know, it is extraordinary in American history for a candidate for president, let alone the President of the United States, to say something like that, to so openly and flagrantly scorn our democratic norms. It’s vital for both the leaders of both parties to speak up and make clear that we believe in the rule of law and this election will be run accordingly.
Mr. Seins: (02:51:40)
I will note, and I think this is again important in us all keeping our eye on the ball, it’s really not up to President Trump or any candidate, whether he accepts the results or not. That’s up to our system. Lots of candidates lose and they don’t like it, but it’s really not up to them whether they accept the results. We need to make sure that the law is followed, that States follow their laws, that Congress, should it need to become involved, follows the rules. And whether President Trump feels right or not is not a first order.
Miss Jackson: (02:52:20)
Miss Jackson: (02:52:21)
Let me quickly, to Miss Eiffel, and I do want to get Miss McGowan. Very quickly, the lack of the respectful comment about nonviolent protests and dealing with bringing down the temperature, and not acknowledging that white provocateurs, white nationals, and others are involved in promoting violence in these peaceful protests, how damaging is that? And how much schism does that create in the efforts that all of us are making to re-imagine policing and to work on police community relations in the civil rights perspective?
Miss Jackson: (02:52:58)
Miss Eiffel: (02:52:59)
It’s damaging and it’s dangerous. We, the LDF, has appealed first to Attorney General Sessions and then to Attorney General Bar to really investigate white supremacist violence. We most recently asked for an investigation of what appeared to be a kind of concerted decision by white supremacists to drive cars through protesters. And we just saw this happen again last night. And yet, the rhetoric we hear from the Attorney General is always about Antifa and never about what DHS says is the number one threat. It makes it very difficult for us to move forward with re-imagining public safety and moving forward with the kinds of reforms that many of us have advocated, and which the department previously advocated, but have abandoned under this administration.
Miss Jackson: (02:53:45)
And the FBI said it.
Miss Jackson: (02:53:46)
Miss McGowan, let me thank you for your courage for stepping down. I know what it’s like to have a job… not a job… a profession. So can you… I think you’ll be the last voice before the chairman. Can you characterize what you have seen, is now what I see, as a total disarray and the skewing of the duties of the various divisions in the Department of Justice? And we’re focused on civil rights. We focused on the LGBTQ community, but the complete flipping of what comfort Americans are supposed to have by calling their DOJ or getting their local official to call the Civil Rights Division, to bring order to their life when they have been deprived of their civil rights.
Miss McGowan: (02:54:27)
Thank you so much for that question. And I said to my colleagues, as I was leaving the Justice Department, that they should stand strong because there were people in the country counting on them. And when we talk about sort of low watermarks for the Civil Rights Division, sort of these dark moments, I think about the rescission of the guidance from the Department of Justice, Civil Right Division, and the Department of Education to protect transgender children and the fear that their parents now experience, because they used to know that the Department of Justice was on their side. And now, not only is it not on their side, but it’s attacking their children in schools.
Miss McGowan: (02:55:02)
And so, the fact that we have now found ourselves in a situation where people have to question whether or not the Department of Justice is a place that will vindicate civil rights, that will be a place of justice, is going to be the most important work that we need to do when we finally turn this page in our history.
Miss Jackson: (02:55:18)
I thank you so very much for that closing remark.
Miss Jackson: (02:55:20)
Mr. Chairman, I yield back. Thank you for your courtesy.
You’re very welcome.
We’re about to close. I do want to clear up a matter of incorrection. We’d like to make the record clear, even though the truth is at trial this last while.
What I said in my introduction was that we’re still the excuse that the department provided was about as mature and sophisticated as saying, “The dog ate my homework.” So Mr. Jordan was incorrect, and I was correct in saying I did not say Bill Barr was immature. If I would have, it would have been one of the nicer things I would have said about him.
Miss Jackson: (02:55:53)
Mr. Chairman, I [crosstalk 02:55:53].
But I didn’t say that.
Miss Jackson: (02:55:54)
Sorry. Mr. Chairman, I have a submission before you close the hearing. Thank you.
Miss Jackson: (02:56:00)
Mr. Chairman, I’d like to submit into the record, the Attorney General memorandum heads of civil litigation components, United States Attorneys’ principles and procedures for civil consent decrees and settlement agreements with state and local governments. That’s where he diminished that authority. And it’s dated November 7, 2018, as unanimous consent.
Without objection. So done.
Miss Jackson: (02:56:20)
Thank you. I yield back.
Miss Jackson: (02:56:21)
The hearing is adjourned.