Skip to main content

tv   Inside Politics  CNN  January 10, 2017 9:00am-10:01am PST

9:00 am
sessions? >> mr. chairman, i'm at your disposal. >> so this will give my colleagues an opportunity that want to go to the respective political party caucuses to go, and we would take a recess of about 30 to 40 minutes. okay. thank you, senator. then now senator whitehouse. >> senator sessions, hello. >> thank you, senator whitehouse. >> when we met i told you that i was going to ask you a particular question, so i'm going to lead off with that particular question. following the gonzalez scandals at the department of justice, the department adopted procedures governing kmoounts communications between the white house and the department of justice consistent with constraints that were outlined years ago in correspondence between senator hatch and the reno justice department. limiting contact between a small number of officials at the white house and a small number of
9:01 am
officials at the department of justice. would you honor and maintain those procedures at the department of justice? >> i will, senator whitehouse. you are an honorable and effective united states attorney yourself. you know how that works and why it's important. attorney general murkasey issued a firm and -- maybe still pending. i would that's the appropriate way to do it. after you and i talked, i read the reno memorandum and the gorelic memorandum, and i would maintain those rules. >> on the subject of honorable prosecutions, when is it appropriate for a prosecutor.
9:02 am
>> there are grand jury rules that are significant. >> isn't it also true that it is customary practice because of the concern about the improper release of derogatory investigative information that the department customarily limits its factual assertions even after an individual has been charged to the fact that were charged in the information or the indictment? >> i believe that's correct, yes. that's a standard operating policy in most offices. there may be some exceptions, but i think that's standard operating procedure, and the united states attorney's office, like you and i had. >> as a question of law, does waterboarding constitute torture? >> well, there was a dispute about that when we had the
9:03 am
torture definition in our law. the department of justice memorandum concluded that it did not necessarily prohibit that, but congress has taken an action now that makes it absolutely improper and illegal to use waterboarding or any other form of torture in the united states by our military and by all our other departments and agencies. >> consistent with the wishes of the united states military? >> they have been supportive of that, and, in fact, i just take a moment to defend the military? the military -- >> you don't need to defend them from me. i'm all for our military. >> i just -- most -- so many people i truly believe think that the military connected water boarding. they never conducted any waterboarding. that was by intelligence agencies. i used to teach the geneva conventions and the rules of warfare as an army reservist to my personnel, and the military did not do that. >> general petraeus sent a
9:04 am
military-wide letter disavowing the value of torture as we both know. another question as a matter of law. is fraudulent speech protected by the first amendment? >> fraudulent speech if it amounts to an attempt to obtain a thing of value for the person -- the fraudulent speech is directed -- >> which is an element -- >> it's absolutely fraud and can be prosecuted, and i think we see too much of that. we see these phone calls at night to elderly people. we see mailings go out that seem to me to be awfully far from truth and seducing people to make unwise decisions. >> fraudulent corporate speech would also not be protected by the first amendment. >> that is correct. >> speaking of civil complaints,
9:05 am
was the department of justice wrong when it brought and won the civil rico action? >> they took them to court and won those cases. eventually they won a monumental victory. that is correct. it's part of the law and firmly established. >> hard to say they were wrong if they won. >> that's correct. >> as you know, the united states has retaliated against russia for its interference with the 2016 election. they've raised concerns of russia meddling in their elections. i know this has been touched on before. will the department of justice and the fbi under your administration be allowed to continue to investigate the russian connection even if it leads to the trump campaign and trump interests and associates,
9:06 am
and can you assure us that any conflict between the political interest of the president and the interest of justice, you will follow the interests of justice even if your duties require the investigation and even prosecution of the president, his family, and associates. >> well, senator, if there are laws violated and they can be prosecuted, then, of course, you'll have to handle that in an appropriate way. i would say that the problem may turn out to be, as in the chinese hacking by hundreds of thousands of maybe millions of records, it has to be handled at a political level, and i do think it's appropriate for a nation who feels that they've been hacked and that information has been improperly used to retaliate against those actions. it's just -- >> i know we share a common interest in advancing the cyber
9:07 am
security of this nation. i look forward to continuing to work with you on that. let me ask you a factual question. during the course of this boisterous political campaign, did you ever chant "lock her up?" >> no, i did not. i don't think. i heard it in rallies and so forth. sometimes i think humorously done. it was a manner that i have said a few things, a special prosecutor. i favored that. i think that probably is one of the reasons i believe that i should not make any decision about any such case. >> you understand that the good guy, law man, doesn't let the mob in the courthouse. >> i'm from rhode island. we have naacp and aclu who have heard that you called their
9:08 am
organizations unamerican. we have a vibrant dominican community who look at big poppy, david ortiz, swinging his bat for the red sox and wonder why you said "almost no one coming from the dominican republic to the united states is coming here because they have a provable skill that would benefit us." i represent a lot of latinos who worry about modern day palma raids, breaking up parents from their kids and muslims who worry about so-called patrols of muslim homes and neighborhoods, and i have heard from police chiefs who worry that you as attorney general will disrupt law enforcement priorities that they have set out and disrupt the community relations that they have worked hard over years of community engagement to achieve. time is short, but i noticed that in your prepared remarks,
9:09 am
these are not unforeseeable concerns, and your prepared remarks did very little to alay the concerns of those people. is there anything you would like to add now in our closing minute? >> well, thank you. my comment about the naacp arose from a discussion that i had where i expressed concern about their statements that were favoring, as i saw it, efforts in central america. i said they could be perceived as unamerican and weaken their moral authority to achieve the great things they had been accomplishing in integration and moving forward for reconciliation throughout the country. i believe that, clearly. i never said and accused them.
9:10 am
number two -- >> he is the head of the naacp. >> i would say, please, look at what i have said about that and how that came about, and it was not in that context. it was not correct. i said in 1986 that the naacp represents one of the greatest forces for reconciliation and racial advancement of any entity in the country. probably number one. that's what i said then. i believed it. i believe it now. it's an organization that has done tremendous good for us. with regard to the dominican republic, i had gone with senator specter. we came through the dominican republic. we visited public service housing projects that seemed to be working and did other things of that nature, and i went and spent some time with a consular official there to ask him about things, and what i learned was that there's a good bit of fraud in it, and he was somewhat
9:11 am
discouraged in his ability, he felt, to do his job, and we also understood and discussed that immigration flow is not on a basis of skills. immigration flow from almost all of our countries, frankly, is based on family connection and other thesis rather than a skill-based program more like canada has today. that's all i intended to be saying there. tell anybody that heard that statement please don't see that as a diminishment or a criticism of the people of the dominican republic. it was designed to just discuss in my remarks the reality of our immigration system today. i would like to see it more skill-based. i think that would be helpful. >> mr. chairman, my time has expired. thank you for your patience. >> thank you, senator whitehouse. before i go to senator lee, there's an evaluation of the work of senator sessions during
9:12 am
this time as u.s. attorney that i speak -- think speaks to his outstanding record i'm made aware of this because senator feinstein made a request from the department of justice of senator sessions' office. i note a few points from their evaluation back in 1992 a couple short sentences. all members of the judiciary praise the u.s. attorney for his advocacy skills, integrity, leadership of the office, and assessability. the second quote, the usao for the southern district of alabama is an excellent office with outstanding leadership, personnel and morale. the district is representing the united states in a most capable and professional manner. without objection. we'll put that the in the record. senator lee wrrks. >> mr. chairman, while we're putting things into the record, could i join?
9:13 am
>> yes, please do that where. >> december 5th, 2016 letter from leaders of the u.s. environmental movement and a january 5, 2017 letter from the national task force and sexual violence against women be added to the record. >> those will be included without objection. >> senator lee. >> hello, senator sessions. >> i have enjoyed working with you over the last six years and always found you to be someone who treats colleagues regardless of differing viewpoints with dignity and respect. you've taught me a great deal in the six years i have been here, and i have appreciated the opportunity to work with you. >> i think a lot of this has to do with the fact that we're both lawyers, although being a lawyer around here certainly having a law degree is not unusual. one of the things that sets you apart and makes you different, i get the sense from you that you think of yourself not so much as a senator who used to be a lawyer, but as a lawyer who is currently serving as a senator, and i think that's an important
9:14 am
thing, especially for someone who has been named to be the next attorney general of the united states. even though you and i have never had the opportunity to -- i get would eagerly engage in such banter when an occasion arises, so maybe in a subsequent round we'll have the opportunity to do that. this does raise a discussion that i like to have with you about the role of the lawyer. as you know, a lawyer understands who his or her client is. any time you are acting as a lawyer, you have got a client. this is a simple thing. if you are representing an individual. in almost every instance, unless the client is incapacitated, you know who the client is. the client has one mouth piece, one voice, and you know what the interest of that clients are,
9:15 am
and you can evaluate those based on the interests expressed by the client. it gets more complicated when you are representing a corporate entity. typically you'll interact either with a general council or the chief executive officer. the bigger an entity gets, the more complex it gets. there might be some ripples in this relationship between the lawyer and the client. in the case of the u.s. government and the attorney generals representation of that client, this is a particularly big and powerful client, and that client has many interests. in a sense, the client is, of course, the united states of america, but at the same time the attorney general is there put in place by the president of the united states and serves at the pleasure of the president of the united states. in that respect the attorney general has several interests to balance and must at once regard him or herself as a member of the president's cabinet,
9:16 am
remembering how the attorney general got there and can be removed at any moment by the president, and at the same time the attorney general has the obligation to be independent, to provide an independent source of analysis for the president and for the president's team and cabinet. how do you understand these things as a former u.s. attorney, as a former line prosecutor and as a senator who served on the judiciary committee, you have had a lot of opportunities to observe this process. how do you see the proper balancing between all these interests from the standpoint of the attorney general? >> that's a very insightful or probing question, and it touches on a lot of important issues that we, as attorney general, would need to deal with. there are even sometimes these government agencies are like foreign countries. they negotiate memorandums of understanding that are akin to a treaty, actually. they can't seem to work together
9:17 am
often times in an effective way. the attorney general is required to provide opinions on that. the attorney general ultimately owes his loyalty to the integrity of the american people and to the fidelity to the constitution and the legitimate laws of the country. that's what he is ultimately required to do. however, every attorney general that has been appointed by a president or they wouldn't become attorney general, and they've been confirmed by the senate or they wouldn't be made attorney general, and so they do understand, i think, that if a president wants to accomplish a goal that he or she believes in deeply, then you should help them do it in a lawful way and make clear and objective if it's an unlawful action. that helps the president avoid difficulty. it's the ultimate loyalty to him, and you hope that a president and i hope
9:18 am
president-elect trump has confidence in me so if i give him advice that something can be done or can't be done, that he would respect that. that's an important relationship too. ultimately, you are bound by the laws of the country. >> some of that, i assume, could come into play when you are dealing with politically sensitive case and a case that is politically sensitive because it relates to a member of the administration or to the interplay between the executive branch and legislative branch, for example. some of those instances there can be calls for a special prosecutor. on the one hand, this is a way of taking the attorney general out of the equation so that it can be handled in a manner that reflects a degree of separation between the administration and the case. on the other hand, there are constitutional questions that are sometimes raised and
9:19 am
sometimes people argue this places too much of a presumption that the special prosecutor will seek an indictment in order to justify the expense and the time put into appointing a special prosecutor. for reasons that relate to the complexity of these considerations, there are, of course, guidelines in place that can help guide the determination to be made by the attorney general as to when whether how to put in place a special prosecutor. even within these guidelines, there's a lot of flexibility, a lot of discretion at the hands of the attorney general on deciding how to do that. do you have anything that you would follow, any -- what can you tell us about what considerations you would consider in deciding whether or not to appoint a special prosecutor? >> well, it is not a little matter. it is a matter that's created controversy over the years. i don't think it's appropriate for the attorney general just to
9:20 am
willy nilly create special prosecutors. history has shown that has not always been a smart thing to do, but there are times when objectivity is required and the absolute appearance of object t objectivity is required, and the appointing of a special prosecutor is appropriate. attorney general lynch, for example, did not appoint a special prosecutor on the clinton matter. i did criticize that. i was a politician. we had a campaign. i didn't research the law in depth. it was just a reaction as a senator of a concern. there are -- there should be great care should be taken in deciding how to make the appointment or if an appointment of a special prosecutor is required. the department of justice you're not required to be a judge to be
9:21 am
a prosecutor. one judge said there's nothing wrong with a prosecutor who likes his work and doesn't think law should be violated. is that a bias? i don't think so. i think that's a strength. i just would say that's kind of the way -- the best i could give you at this point. >> that's helpful. thank you. another challenging issue that relates to this duty of independence that attorneys general have relates to the office of legal counsel. you know, it's, of course, the job of the office of legal counsel to issue opinions on a wide array of subjects. some are subjects that a lot of people would find interesting. others are subject that is only a lawyer could love. sometimes a lawyer specializing in -- there's one recent olc entitled federal bidding
9:22 am
requirements under the federal highway aid program. there aren't perhaps that many people who would find that interesting, but there are a lot of others that would capture immediately the public's interest. what's significant about all of these, though, no matter how broad or narrow the topic, no matter how politically sexy or dull the topic might be, they in many instances almost conclusively resolve a legal question within the executive branch of government. in many instances they're doing so on the basis of constitutional determinations that may or may not ever be litigated. such that the broaching of a constitutional topic might be opened, studied, and resolved entirely within the executive branch, largely as a result of how the lawyers within the office of legal counsel decide to do their jobs. what can you tell me about what you would do if confirmed to insure that the office of legal counsel maintains a degree of
9:23 am
professionalism and independence recollect quiz it for this task? >> senator lee, that office is important. it does adjudicate or actually opine on important issues related to conflicts, disputes within the great executive branch of the american government. like you said, what kind of competition is required before you get a highway grant? there may be a disagreement about that, and the olc is asked to review and state one position. the government of the united states is one. it's not a multiple government. these departments are not independent agencies. that does -- that office is so exceedingly important, as you indicate, because many times those opinions hold, and they set policy, and they affect things. sometimes it also -- is it
9:24 am
within their power or not within their power? there are some of the things like that that can impact the american people over time in a significant way. >> thank you. >> senator -- >> thank you very much, mr. chairman. good to see you, senator sessions. you and i have worked together on a number of bills, including leading the international adoption simplification act which i believe made a difference to a lot of families in keeping their siblings together when they were adopted. you had some important provisions in the sex trafficking bill that we worked on last year, and we worked together on law enforcement issues, and i appreciate your respect and support you have from that community, and i also thank you for your work on drug courts. something we both share as
9:25 am
former prosecutors and believe in the purpose of those courts. i wanted to lead, first, with another part of the justice department's jobs, and that's protecting civil rights and the right to vote. as county attorney i made -- and that people who were able to vote could vote and that people who shouldn't vote didn't vote. since the voting rights act became law more than 50 years ago, we have made progress, but i have been very concerned about some of the movements by states to restrict access to voting in recent years. we haven't been able to pass the voting rights advancement act forward last congress, and i just think it's an area that is going to be ripe for a lot of work going forward. you and i talked about how at one point you previously called
9:26 am
the voting rights act an intrusive piece of legislation, and i wondered if you could explain that as well as talk about how you will actively enforce the remaining pieces of the act. that would be section two which prohibits voting practices or procedures that discriminate on the basis of race and the section three bail in provision forwhich most states can be subject to preclearance. you don't have to go into great detail on those two sections. can you do it later. if you could just explain your views of the voting rights act moving forward and what would happen in terms of enforcement if you were attorney general. >> the voter rights act was one of the most important acts to deal with racial difficulties that we face. it changed the whole course of history, particularly in the
9:27 am
south. there was a clear finding if there's discriminate other activities in the south that a number of states were systematically denying individuals the right to vote, and you go back into the history. you can see it plainly. actions and rules and procedures were adopted in a number of states with the specific purpose of blocking african-americans from voting, and it was just wrong, and the voting rights act confronted that, and it, in effect, required even the most minor changes in voting procedure like moving a precinct across -- >> how would you approach this going forward? for instance, the fifth circuit's decision that the texas voter id law skrimts against minority voters. that was written by a bush appointee. do you agree with that decision? how would you handle this moving forward? >> i have not studied that. there's going to be a debate
9:28 am
about it. courts are ruling on it now, and that is voter id and whether or not that is an improper restriction on voting that adversely impacts disproportionately minority citizens. that's a matter that's got to be decid decided. on the surface it doesn't appear to be that to me. i publicly said i think voter id laws properly drafted are okay, but as attorney general it will be my duty to study the facts in more depth to analyze the law, but fundamentally that can be decided by congress and the courts as they interpret the existing law. i did vote to extend the voting rights act several years ago. i thought it included section five, but later section five was eliminated by the supreme court. >> how about the commitment -- >> progress had been made, and this -- on the intrusive question, let me answer. it is intrusive. the supreme court on more than one occasion has described it
9:29 am
legally as an intrusive act because the only focus was on a certain number of states and normally when congress passes a law, it's applied to the whole country. it's a very unusual thing for a law to be passed that targets only a few states. but they had a factual basis. they were able to show that it was justified in this fashion. that's the foundation for it. that's why i supported its renewal. >> i think you'll understand you look at this issue that there are many voters. people who are trying to vote that view some of the rules that are put in place as intrusive for them because it makes it harder for them to vote. i think that is the balance that you are going to need. coming from a state that has high voter turnout and has same day registration. very good turnout in iowa. states that have put in place some very expansive voter laws, and it doesn't mean democrats
9:30 am
always get elected. we've had republican governors in minnesota. we have a republican governor in iowa. i just point out that i think the more we can do to encourage people to vote, the better democracy we have. i want to turn to another quick question on a democratic issue that was raised by senator graham and senator whitehouse. i just returned with senators mccain and graham from a trip to ukraine, baltics, georgia, and i learned there about how these intrusive cyber attacks are not just unique to our country, not just unique to one party, not just unique to one election, and they've seen that movie before in those countries, and do you have any reason to doubt the accuracy of the conclusion reached by our 17 intelligence agencies that, in fact, russia used cyber attacks to attempt to influence this last election? i'm not asking if you believe it influenced it. just if you believe the report of our intelligence agencies.
9:31 am
>> there's no ed that would indicate otherwise. >> violence against women act. senator leahy asked some of those questions. you and i discussed it. really important to me. i just have one question there. if confirmed will you continue to support the life saving work being done by the office on violence against women? >> yes. >> thank you. immigration, you and i have some different views on this. i often focus on the economic benefits of immigration. the fact that we have 70 of our fortune 500 companies headed by immigrants at one point 200 of our fortune 500 companies were either formed by immigrants or kids of immigrants, roughly 25% of all u.s. nobel laureates were foreign born.
9:32 am
if you see that economic benefit of immigrants in our society. >> well, immigration has been a high priority for the united states. we've been a leading country in the world in accepting immigration. i don't think american people want to end immigration. i do think that if you bring in a larger flow of labor than we have jobs for, it does impact the wage prospects and the job prospects of american citizens. i think as a nation we should evaluate immigration on whether or not it serves and advances the national interest, not the corporate interests. it has to be the people's interest first, and i do think too often we've -- congress has been complacent in supporting legislation that might make businesses happy, but it also may have had the impact of pulling wages down. dr. borehaus at harvard has written about that.
9:33 am
i think he is the world's perhaps most effective and knowledgeable scholar, and he says that does happen. wages can be diminished. one of the problems we have today is middle class and lower class americans -- lower class economically, are not having the wage increases that we would like to see them have. since 2000 wages are still down from what they were in 2000. >> i just see that we can do a mix of making sure that we have jobs for people here and then understanding that we're a country of immigrants. >> on that subject, you are familiar with canada. >> we are people of america. [ people yelling ] >> you are supported by hate grou groups. >> mr. chairman, if i could just have another 30 seconds. i had one last question. >> maybe 45 seconds. mr. chairman, let me just say
9:34 am
that you come close to the canadian system. i think may be some of those policies ought to be considered by the united states. >> my last question, mr. chairman, is on a reporter's issue. free press is essential to our democracy, and i have always fought to insure that those rights aren't compromised. my dad was a newspaper reporter for years, and i'm especially sensitive to the role of the press as a watchdog. you've raised concerns in the past about protecting journalists from revealing their sources. you did not support the free flow of information act. in 2015 the attorney general revised justice department rules for when federal prosecutors can subpoena journalists for or their records, and he also kmid to releasing an annual report on any subpoenas issues or charges made against journalists and committed not to put reporters in jail for doing their job.
9:35 am
if confirmed, will you commit to following the standards already in place at the justice department, and will you make that commitment not to put reporters in jail for doing their jobs? >> senator, i'm not sure -- i have not studied that -- those regulations. i would note that when i was a united states attorney, we knew, everybody knew that you could not subpoena a witness or push them to be interviewed if they're a member of the media without approval at high levels much the department of justice. that was in the 1980s. i do believe the department of justice does have sensitivity to this issue. there have been a few examples of where the press and the department of justice haven't agreed on these issues, but for the most part there is a broadly recognized and proper deference to the news media, but you could have a situation in which our media is really not the
9:36 am
unbiassed media we see today, and they cook a mechanism through which unlawful intelligence is obtained. there are other dangers that could happen with regard to the federal government that normally doesn't happen to the media covering murder cases in the states. >> well, thank you. i'll follow-up with that in a written question when you have a chance to look. >> if you would, i -- >> thank you. thank you. >> i call for the first time on i anew member of the committee, senator sass from nebraska. >> mr. chairman, thank you. thank you for having me. before i get started, i would like to enter into the record a letter of support from 25 current state attorneys general, including doug peterson, the attorney general from my state, nebraska. he says "no one is more qualified to fill this role than senator sessions." i ask unanimous consent, mr. chairman, to include this in the record. >> without objection, it will be included. proceed, senator sass.
9:37 am
>> senator sessions, when you were introducing your grandkids and each amazed they stayed around as long as they did. mine would have been more disruptive earlier. i was thinking about all the time i spent in schools, and we have a crisis in this country of civic ignorance. our kids don't know basic civics, and we have a crisis of public trust in this country in that many americans presume that people in the city are overwhelmingly motivated by partisan perspectives rather than the public good. tragically our current president multiple times over the last three or four years has exacerbated this political polarization by saying that he didn't have legal authority to do things and then subsequently doing exactly those things. this is a crisis when kids don't understand the dis iksz between the legislative and the executive branches and when american voters don't think that people who serve in these offices take their oaths seriously.
9:38 am
it's not always as simple as schoolhouse rock jingles on saturday morning, but could you at least start by telling us what you think the place for executive orders and executive actions are? >> that's a good question. a good premise. we should think about that. people are taught that schoolhouse rock is not a bad basic lesson in how the government is supposed to work. legislators pass laws. the president executes laws, as does the entire administration. >> i think every day that we get away from that is really dangerous, and it is true that if a president says i do not have this authority and other people say the president does
9:39 am
not have certain authority and then it is done by the president, it confuses people. it's -- i think, colleagues, we too little appreciate something that's corrosive happening out in our country. there is a feeling that judges just vote when think get a big case before them on what their political agenda is and not what the constitution actually requires. that judges can redefine the meaning of words to advance an agenda that they have that may not be the agenda of the american people, and that inevitably is corrosive to respect the law. >> thank you. take it one step further because there are going to be many cases, many instances where the administration in which you're likely going to end up serving will want to do things, and they'll want to know what the limits of their executive discretion is. pieces of legislation that have been passed around here in recent years. sometimes they are well over 1,000 pages with all sorts of
9:40 am
clauses the secretary shall dot, dot, dot, fill in the law. this congress has regularly underreached and invited executive overreach. this congress has regularly failed to finish writing laws and then invited the executive branch to do it. what are some of the markers that you would use to help understand the limits where the executive branch can not go? >> we really need need to re-establish that. jonathan turley has written about this. it's just powerful. certainly an objective voice in american juris prudence, and he says that congress has just fallen down on its job. of course, there are two ways. one of them is that it writes laws that are too broad. i urge all of you to be sure that when we pass a law or you pass a law, if i'm confirmed, that that law is clear and sets limits. when it doesn't set limits, then you can have the secretary of this agency or that agency claiming they have certain authorities and you end up with
9:41 am
a muddled litigation maybe resulting from it. re-establishing the proper separation of powers and fidelity to law and to limits is an important issue, and i think hopefully -- i think that's what you are suggesting. >> could you tell me under what circumstances, if any, you think the department of justice can fail to enforce a law? >> well, it can fail to enforce it by setting prosecutorial policies with regard to declining to prosecute whole chunks of cases and, in fact, eliminate a statute. if a new tax is passed and the department of justice says it can't be collected, then the law is not followed. you also have circumstances in which can redefine the statute or alter if we talk about improper actions you could expand the meaning of the words
9:42 am
of the statute far beyond what congress ever intended. that's an abuse too. >> not to interrupt you too soon, but the improper, but also what is proper? this administration has made the case regularly that they need to exercise prosecutorial discretion because of limited resources, and obviously there aren't infinite resources in the world. what are some proper instances in your view when an administration might not enforce a law? >> well, critics of the immigration enforcement laws said that the prosecutorial discretion argument went too far. it basically just eliminated the laws from the books. secondly, with regard to that, the president -- well, the order came from homeland security, not from the department of justice, but on homeland security's order, it not only said we're not going to enforce the law with regard to certain large class ficks of people, but those
9:43 am
people who had not been given legal status under the laws of the united states were given photo id's, work authorization and social security numbers and the right to participate in these government programs that would appear to be contrary to existing law. that would to me suggest an overreach. >> in parallel, before the courts, what instances would it be legitimate, if any, for the solicitor general to not defend a law in court? >> that is a very good question. sometimes it becomes a real matter. in general the solicitor general as part of the department of justice and the executive branch states the position of the department of justice and it has a duty, the department of justice does, to defend the laws passed by this body.
9:44 am
, by congress. they should be defended vigorously whether or not the solicitor general agreed with them or not. unless it can't be reason bring definitive. sometimes you have a disagreement about whether it's reasonably defensible or not. that's the fundamental question. the department of justice should defend laws that congress passed unless it's -- they're unable to do so in a reasonable way. >> what is the place of independent agencies in a unified executive branch, and do you envision that you will be making any recommendations to the president to reign in independent agencies in an effort to preserve the constitutional distinction between the powers of the congress and the administrative responsibilities of an executive branch? >> kind of a historic question at this point in time because it does appear to me that agencies oftentimes see themselves as independent thiefdoms, and
9:45 am
sometimes you even hear the president complain about things clearly under his control. i remember president clinton complaining about the death penalty processes of the department of federal government when he appointed the attorney general. he had just appointed a committee to make sure the death penalty was properly carried out. something like whose responsibility is this? you are in charge. you can remove the attorney general if you're not happy. those kind of things do continue out there that we need to be careful about, and i thank you for raising it. >> i have less than a minute left, so last question. going back to something that senator lee was asking about. could be just give a top line summary of what you view the responsibilities of the olc to be and what the relationship would be between the olc, the office of the attorney general, and the white house. >> olc has stat other duties to make opinions.
9:46 am
the olc team reports to the attorney general who could reverse, i suppose, or remove the olc head, the deputy attorney general, if he thought the department was not following the law, but essentially they are given the power. i had an opinion section in alabama, and they rendered opinions on a whole host of matters. when called upon from school boards and highway departments and that sort of thing. this olc does represent a key position in the department of justice. they must have extraordinary legal skill. they have to be terrific lawyers. they have to understand the constitutional order of which we are a part, and they should render objective decisions day after day, week after week.
9:47 am
it's ultimately the responsibility of the president and the attorney general to insure that we have that kind of quality at olc. >> thank you, mr. chairman. senator, congratulations on your nomination. >> thank you. >> in 2009 when you became the ranking republican on this committee, you were interviewed about how you would approach the committee's work and nominations specifically. you said democrats should expect you to be fair because you had been through this process yourself back in 1986, and you felt that back then the committee had distorted your record. you said that moving forward, "we're not going to misrepresent any nominee's record, and we're not going to lie about it." we certainly don't want to do
9:48 am
that to our colleague. but i also think it's fair to expect that sitting before us today that you're not going to misrepresent your own record. that's fair to say, right? >> that is fair. >> good. now, in that same interview you said, "i filed 20 or 30 civil rights cases to desegregate schools and political organizations and county commissions when i was united states attorney. so 20 or 30 desegregation cases. did i misread that quote? >> i believe that's what i have been quoted as saying. i suspect i said that. >> okay. now, that was 2009. in november -- your office said when senator sessions was u.s.
9:49 am
attorney he filed a number of desegregation lawsuits in alabama. not 20 or 30 this time, but a number. tell me, did you file 20 or 30 desegregation cases, or is it some other number? >> well, thank you, senator franken. it is important, first, to be accurate. the records don't show that there were 20 or 30 actually filed cases. some of the cases involve multiple defendants and multiple parties like to a school board and a county commission being sued for racial discrimination or things of that nature, but the number would be less than that, as we've looked at. >> what do you think would have caused you to say -- >> i don't know -- >> that you filed 20 or 30 desegregation -- >> we had cases going throughout my district, and some of them were started before i came and continued after i left. some of them were brought and then settled promptly.
9:50 am
it was extraordinarily difficult, actually. i was surprised to get a record by checking the docket sheets to find out exactly how many cases were involved. i heard one lawyer from the department of justice, i believe -- >> let me move on. >> large number. i don't -- the record doesn't justify it. >> the questionnaire you submitted for today asked you to list and describe the "ten most significant litigated matters you personally handled." personally handled. among the cases that you listed that you personally handled are three voting rights cases and a desegregation case. last week i should note three attorneys who worked at doj and who actually brought three of the four cases wrote an op ed
9:51 am
piece in des moines they say "we can state categorically that sessions had no substantive involvement in any of them. you originally said you personally handled three of these cases, but these lawyers say that you had no substantive involvement. chairman grassley, i would ask that that op ed from last tuesday's washington post be entered into the record. >> without objection, it will be entered. are they distorting your record here? >> yes. in fact, one of the writers there, mr. hebert, spent a good bit of time in my office. he said i supported him in all the cases he brought, that i was more supportive than almost any other u.s. attorney, and that i provided office space, i signed the complaints that he brought,
9:52 am
and as you know, may know, senator franken, when a lawyer signs a complaint, he is required to affirm that he believes in that complaint and supports that complaint and supports that legal action, which i did. we sued -- >> so that's your personal involvement was that your name was on it? >> well, look, you can dispute the impact or the import of the questionnaire. another attorney who paul hancock who brought cases in our district said, well, attorney general claims credit for the cases in the department of justice. he saw nothing wrong with my claiming that this was a case that i had handled. >> two of the -- >> you can disagree with that, but -- >> i want to get through this here. on the docket sheet, my name is listed, number one. as attorney for the case.
9:53 am
? i'm not a lawyer. i'm one of the few members of this committee that didn't get to law school, and usually i get by just fine, but it seems to me a lawyer -- if a lawyer has just his name added to a document, e he -- that lawyer would be misrepresenting his record if he said he was personally handled these cases. two of the lawyers who wrote the op ed have also submitted testimony for today's hearing. mr. jerry heberth and mr. joe rich. mr. hebert said he litd gated two of the four cases you listed. he said i can state with absolute certainty that mr. sessions did not participate personally in either. mr. rich worked on one of the four cases you listed. he said, "i never met him at that time nor any other time,
9:54 am
and he had no input to the case." these represent three of the four cases that you claimed that were among the top ten cases that you personally handled. now, in your 1986 questionnaire, you used phrases like "i prepared and tried the case as sole county." "i was a lead prosecutor on this case assisted by so and so." why didn't you use the same level of detail in your 2016 questionnaire? >> in looking at this questionnaire, we decided that was an appropriate response since it was a major historic case in my office. let me just reply, senator franken, in this fashion. mr. hebert, when in 1986 when he testified at my hearing, said,
9:55 am
"we have had difficulty with several u.s. attorneys in cases we have wanted to bring. we have want experienced that difficulty in the cases i have handled with mr. sessions. in fact, quite the contrary." it goes on to say "i've had occasion numerous times to ask for his assistance and guidance. i have been able to go to him, and he has had an open door poli policy, and i have taken advantage of that and found him cooperative." that is an accurate statement. i don't know, mr. rich. perhaps he handled a case that i never worked with. he goes on to say -- >> one of the cases -- >> no, you raised this question. >> one of the cases that you listed was a case that mr. rich handled. if you don't know him, it's hard for me to believe that you personally handled it. >> well, when i found that -- these cases, i had been supportive. >> filed. >> mr. hebert says, "yet i have
9:56 am
needed mr. sessions' help in those cases, and he has provided that help every step of the way. in fact, i would say that my experience with mr. sessions has led me to believe that i have received more cooperation from him, more active involvement from him because i have called upon him." "i have worked side-by-side with him on some cases in the sense that i have had to go to him for some advice." >> in some cases. we're not necessarily the ones you listed. >> well, it was 30 years ago, and my memory was of this nature, and my memory was my support for those cases. >> your memory. okay. look, i am not -- i'm one of the few members of this committee who is not a lawyer. the chairman, the ranking are, but when i hear i filed a case,
9:57 am
i don't know some of the parlance. it might have a special meaning in legal parlance, but to me as a lehman, it sounds to me like filed means i led the case or i supervised the case. it doesn't mean that my name was on it. it seemds to me -- look, i'll close, mr. chairman. setting aside any political or idealogical differences you and i may have, doj is facing real challenges, whether it's protecting civil rights or defending national security, and our country needs an attorney general who doesn't misrepresent or inflate their level of involvement on any given issue. i consider this serious stuff.
9:58 am
as i know you would if you were in my position. >> well, you are correct, senator franken. we need to be accurate in what we say. when this issue was raised, i did do a supplemental that said i provided assistance and guidance to civil rights division of attorneys and had an open door policy with them and cooperated with them on these cases." i signed them. i supported cases, and i attempted to bes as effective as i could be in helping them be successful in these historic cases. dy feel that they were the kind of cases that were national in scope and deserved to be listed on the form. if i'm in error, i apologize to you. i don't think i was. >> well, you couldn't find 20 or 30 desegregation cases that you stated you had participated in, and you don't sound like you personally handled cases that you said you personally -- >> that was on a radio interview
9:59 am
without any records, and that was my memory at the time. >> i think you answered the question. senator flank. it's now 12:59, so at 2:09, we will adjourn for lunch. i'll be back here at 2:39, and whoever is present, we'll start then. whatever -- i got the -- you know what i mean. go ahead. >> well, thank you. wait. you say we're adjourned or i'm going? >> no, you go ahead. >> great. it's nice being the last one standing between lunch with everyone. >> let's have order for senator, please. >> i just want to say at the outset how much i've enjoyed working with you and being your colleague. i appreciate having you as a friend. it's no secret we've had
10:00 am
difference of opinion on immigration legislation that we've put forward. you've had different ideas. i have no doubt that as attorney general, you'll faithfully execute the office. i appreciate the answers that you have given today. unanimous consent to submit a column written by our own attorney general in arizona, mark burnovich for "the hill". >> without objection it will be included. >> supporting your nomination. let me talk to you about an aspect of immigration that's important in arizona. as you know, we have a large border with mexico. we have a program called operation streamline that has over the years been tremendously effective in cutting down recidivism in terms of border crossers. it's intended to reduce border crossing by expeditiously prosecuting those who enter the country


info Stream Only

Uploaded by TV Archive on