Skip to main content

tv   Andrea Mitchell Reports  MSNBC  January 10, 2017 9:00am-10:01am PST

9:00 am
is that okay with you senator sessions? >> mr. chairman i'm at your disposal. >> this will give my colleagues the opportunity that want to go to their political party to go and we will take a recess 30 to 40 minutes. >> that's very fair. >> thank you, senator. so then now senator whitehouse. >> senator sessions el l s hel. when we met i told you i would ask a particular question so i'm going to lead off with inthat particular scandal. following the gonzalez scandal the department adopted procedures governing communications between the white house and the department of justice consistent with constraints outlined years ago in correspondence between senator hatch and the reno justice department limiting contacts between a very small number of officials at the white house and a very small number of officials at the department of
9:01 am
justice. will you honor and maintain those procedures at the department of justice? >> i will, senator whitehouse. you, as honorable and effective united states attorney yourself know how that works, and why it's important. attorney general mukasey issued a firm and very clear k-- >> very clear in supporting that policy. >> maybe still pending and i would say to you, i -- well, that's the appropriate way to do it. after you and i talked i read the reno memorandum, the garelick memorandum and i would maintain those rules. >> on the subject of honorable prosecutions, when is it appropriate for a prosecutor to disclose derogatory investigative information about a subject who was not charged? >> that's a very dangerous
9:02 am
thing, and it's a pretty broad question, as you ask it, but you need to be very careful about that, and there are certain rules i would like, grand jury rules that are very 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 facts that were charged in the information or the indictment? >> i believe that's correct. yes, that's standard operating policy in most offices, and maybe some exceptions, but i think that's standard operating procedure in the united states attorneys' offices 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 torture definition in our law.
9:03 am
the department of justice memorandum concluded 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 supportive of that, and in fact, i'll just take a moment to defend the military. the military -- >> you don't need to defend them for me. i'm all for our military. >> so many people, i truly believe, think that the military conducted waterboarding. they never conducted any waterboarding. that was by intelligence agencies. their rules were maintained, 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, another question as a matter of law. is fraudulent speech protected by the first amendment? >> well, fraudulent speech, if it amounts to an attempt to obtain a thing of value for the person, the fraudulent speech is directed -- >> an element -- >> 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, in seducing people to probably make unwise decisions. >> so fraudulent corporate speech would also not be protected by the first amendment? >> that is correct, and it's subject to civil and/or criminal complaint. >> and speaking of civil complaints, was the department
9:05 am
of justice wrong when it brought and won the civil reco action against the tobacco industry? >> well, senator, they won those cases. they took them to court and eventually won a monumental victory, that is correct. and firmly taebd. >> hard to say they were wrong if they won, right? >> that's correct. >> as you know, the united states has retaliated against russia for its interference with the 2016 elections. in europe, baltic states, germany and italy have raised concerns of russia meddling in their country's elections. i know this has been touched on before but i want to make sure it's clear. 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 in any conflict between the political interests of the president and the interests 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 whitehouse, 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 -- >> and 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, but it was a matter 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. >> and you understand that the good guy law man in the movies is the one who sits on the jailhouse porch and doesn't let the mob in? >> exactly. exactly. >> so i'm from rhode island, as you know, senator. we have neacp and aclu members who have heard that you called
9:08 am
their organizations un-american. we have a vibrant dominican community who look at big papi, 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 work in modern day palmarades, breaking up parents from kids and muslims who worry about so-called patrols of muslim homes and neighborhoods and i've 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 allay the concerns of those people. is there anything you'd 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 and communist guerrilla efforts in central america so i said they could be perceived as un-american, and weaken their moral authority to achieve the great things they had been accomplishing in integration and moving forward for reconciliation throughout the country, and i believe that clearly, and i never said and accused him of that. number two -- >> what would you tell the naacp
9:10 am
in rhode island, the head of the naacp? >> i would say, please, look at what i said about that, and how that came about, and it was not in that context. it was not correct. i said in 1986 that 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, and i believed it and i believe it now, and it's an organization that has done tremendous good for us. with regard to the dominican republic, i had gone with senator spector. 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 the consular official there, just to ask him about things, and what i learned was that there's a good bit of fraud in it and he was somewhat discouraged in his
9:11 am
ability to, he felt, to do his job, and we also understood and discussed that the immigration flow is not on a basis of skills. the immigration flow from almost all of our countries, frankly, is based on family connection and other pieces that are skill based policeman more like canada has today, and that's all i intended to be saying there. tell anybody who heard that statement please don't see that as a diminishment or 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'd like to see it more skill-based and i think that would be helpful. >> mr. chairman, my time's 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
his time as u.s. attorney that i think speaks to his outstanding record. i made aware of, th senator finn requested an evaluation of senator sessions office from the department of justice and 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 accessibility" and 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." i without objection will put that in the record. senator lee? >> mr. chairman, while we're putting things into the record could i join? >> yes, please do that.
9:13 am
>> a december 5th, 2016 letter from leaders of the u.s. environmental movement and a january 5th, 2017 letter from the national task force to end sexual violence and violence against women be added to the record. >> yes, those will be included without objection. senator lee? >> hello, senator sessions. >> hello. >> i've 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've been here and i've appreciated the opportunity to work with you. i think a lot of this has 20 do with the fact that we're both lawye lawyers although being around here it's not unusual. one of the things that sets you apart and makes you different, 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 thing especially
9:14 am
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 discuss the intricacies of the rule againste perpetuities or the difference between the doctrine and title in the case, i get the sense would you eagerly engage in such banter when occasion arises. maybe in a subsequent round we'll have the opportunity to do that but this does raise a discussion that i'd 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've got a client. this is a simple thing, if you are representing an individual, because in almost every instance, unless the client is incapacitated, you know who the client is. the client has one mouthpiece, one voice, and you know what the interests of that client are and
9:15 am
you can evaluate those based on the interests expressed by the client. gets more complicated when you represent an entity. typically you'll interact either with the general counsel or the chief executive officer. the bigger an entity gets the more complex it gets. you might get ripples between the relationship between the lawyers and the client. in the case of the u.s. government and the attorney general's representation of that client this is a big and powerful client and this 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 is there put in place by the united states and serves at the pleasure 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, remembering how the attorney
9:16 am
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 things as a former u.s. attorney, as a former prosecutor and as a senator who served on the judiciary committee. you've 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 the important issues that we, as attorney general, would need to deal with. there are even sometimes these government agencies 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
oftentimes in an effective way so 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's ultimately required to do. however, every attorney general has been appointed by a president or they wouldn't become attorney general. they've been confirmed by the senate or they wouldn't be made attorney general and so i do understand if a president wants to accomplish a goal that he or she believes in, you should do it in a lawful way but make clear and object 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 president-elect trump
9:18 am
has confidence in me, so that if i can give him advice, that something can be done or can't be done, that he would respect that. that's an important relationship, too, but ultimately you are bound by the laws of the country. >> some of that i assume could come into play when you're dealing with a politically sensitive case, because it relates to a member of the administration or to the inner play between the executive branch and the legislative branch for example. in had some of those instances there can be calls for a special prosecutor. on the one hand this is a way of taking the he were attorney gen 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 that 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 prosecuto 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, but even within these guidelines there's flexibility and discretion in the hands of the attorney general in deciding how to do that. do you have anything that you would follow? 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 not shown that has always been a smart thing to do, but there are times when objectivity is required, and the absolute appearance of objectivity is required, and perhaps a special prosecutor is appropriate. the 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 on. i didn't research the law in-depth, just the reaction as a senator of a concern, but there are, should be great care should be taken on 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
9:21 am
judge, to be a prosecutor. one judge said there's nothing wrong with the prosecutor who likes his work. and doesn't think laws should be -- is that a bias? that's the best i can give you at this point. >> thank you, that's helpful. another challenging issue that relates to this duty of independence that attorneys general have relate to the office of legal counsel. you know it's of course the job of the office of legal counsel or olc as it's sometimes known to issue within the executive branch on a wide array of subjects. some are subjects a lot of people would find interesting, others are subjects only a lawyer could love, and sometimes only a lawyer specializing in something esoteric or specific. there's one reason olc agreement competitive bid requirements under the federal highway aid
9:22 am
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 and in many instances 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 what you would do, if confirmed, to ensure the office of legal counsel maintains a degree of professionism and independence
9:23 am
requisite for this task? >> senator lee, that office is important. it does adjudicate or actually opine on the important issues related to conflicts or 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 olc is asked to review it and state one position that the government of the united states is one is not a multiple. these departments are not independent agencies, and so that does, that office is so exceedingly important as you indicate, because many mes thosinionsold, and they set policy and they affect things. sometimes it also has the power and i'm sure you would be
9:24 am
sensitive to, to expand or constrict the bureaucracies in their ability to execute under statutes. in other words, is this within their power or is it not within their power? so there's some of the things like that, that can impact the american people over time in a significant way. >> thank you. >> senator klobuchar? >> 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 big difference to a lot of families in keeping their siblings together when they were adopted. senator cornyn and i led the sex trafficking bill that passed last year, and you had some important provisions in that, and then we've worked together on law enforcement issues, and i appreciate your respect and support that you have from that community and i also thank you for your work on drug courts, something we both share as former prosecutors, and i
9:25 am
believe in the purpose of those courts. but 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. my state has the highest voter turnout in the last election of any state. we're pretty proud of that, and as county attorney for eight years for minnesota's biggest county, i played a major role in making sure that the election laws were enforced 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've made progress but i've 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 bipartisan voting rights advancement act for last congress and i think it's an area that's 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 through which most states can be subject to preclearance. you don't have to go into great detail on those two sections, you could do it later but if you could explain your opinion of the voting rights act and enforcement if you were attorney general. >> the voting rights act passed in 1965 was one of the most important acts to deal with racial difficulties. that we face, and it changed the whole course of history particularly in the south.
9:27 am
there was discriminatory 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 targeted certain states and required any even the most minor changes in voting procedure like moving a precinct across -- >> so how would you approach this going forward? for instance the fifth circuit's decision that the texas voter i.d. law discriminates against minority voter, 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 about. courts are ruling on it now and
9:28 am
that is voter i.d., and whether or not that is an improper restriction on voting that adversely impacts disproportionately minority citizens. so that's a matter that's got to be decided. on the surface of it, it doesn't appear to be that. i have publicly said i think voter i.d. 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 -- and it included section five, but later section five was eliminated by the supreme court on the basis that progress had been made and intrusive question let me answer that. it is intrusive. the supreme court on more than one occasion has described it
9:29 am
legally as an intrusive act, because you're only focused on a certain number of states and normally when congress passes law it applies to the whole country so it's a very unusual thing for a law to be passed that target only a few state but they had a factual basis. they were able to show that it was justified in this fashion, so that's the foundation for it and that's why i supported it, its renewal. >> i think you'll understand as you look at this issue that there are many voters, people who are trying to vote that view some of these rules that are put in place as intrusive for them, because it makes it harder for them to vote, and i think that is the balance that you're going to need. >> i hear what you're saying. >> i hope just coming from a state that has such high voter turnout that has same day registration, very good turnout in iowa as well right below us, states that have put in place some really expansive voter laws and it doesn't mean democrats
9:30 am
always get elected. we've had republican governors in minnesota, we had a republican governor in iowa and i just point out that 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 as in a democracy issue that was raised by senator graham and as senator whitehouse, i just returned with senators mccain and graham from a trip to ukraine, baltics, georgia and 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? >> i have no reason to doubt that, and have no evidence that
9:31 am
would indicate otherwise. >> thank you. violence against women act, senator leahy asked some of those questions, really important to me. you and i discussed it. 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. >> okay, thank you. immigration. you and i have some different views on this. and 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 u.s. nobel laureates were foreign born and just to understand in a state like mine, where we have entry level workers and immigrants, maimor doctors at the mayo clinic, police officers who are somali, if you see that economic benefit of immigrants
9:32 am
in our society? >> well, immigration has been a high priority for the united states. we've been the 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 adversely 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 interests, not the corporate interests. it has to be the people's interests first, and i do think too often 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. borhaas at harvard has
9:33 am
written about that, perhaps the world's most effective and knowledgeable scholar and he says that does happen. wages can be diminished and one of the big cultural problems we have today is middle class and lower class americans have not, lower class economically are not having the wage increases that we'd like to see them have. in fact, 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, for me with canada -- >> we are people of america. [ inaudible ] you are supported by hate groups that are the most racist [ inaudible ] you are not going to be attorney general. >> mr. chairman if i could have another 30 seconds. >> maybe 45 seconds, i would say
9:34 am
the canadian system it may be some of those policies to be considered by the united states. >> my last question, mr. chairman, is on the reporter's issue. free press i believe is essential to our democracy, and i've always fought to ensure that those rights aren't xroe y compromised. my dad was a newspaper reporter for years and i'm especially sensitive to the role of the press as a watch dog. 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 their records and convened an annual report on charges made against journalists and committed not to put reporters in jail for doing their job. if confirmed, will you commit to
9:35 am
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 klobuchar, auto i'll not sure, i have not studied those regulations. i would note that when i was united states attorney, we knew, everybody knew that you could not subpoena a witness or push them to be interviewed if they were a member of the media without approval at high levels of the department of justice. that was in the 1980s, so 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 media is really not the unbiased media
9:36 am
we see today, and they could be 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 state. >> all right, well thank you. i'll follow up with that in a written question when you have a chance to look at it. >> if you would, i would appreciate it. >> thank you. >> i call for the first time on a new member of the committee, senator sass from nebraska. >> mr. chairman, thank you and thank you for having me. before i get started i'd 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 of nebraska. the letter reads in part "no one is more qualified to fill this role than senator sessions. th "this is important testimony from the top law enforcement officers of 25 states. i ask unanimous consent to include this in the record. >> without objection it will be included.
9:37 am
proceed senator sass. >> thank you. senator sessions when you were introducing your grandkids and i'm amazed they stayed around as long as they did, mine would have been more disruptive earlier, i was thinking about all the time i spend 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 rpresume that people in the city are overwh overwhelmingly motivated by partisan. our current president multiple times over the last three or four years exacerbated this political polarization saying he didn't have legal authority to do things and subsequently doing exactly those things. quite apart from people's policy perspectives on these matters this is a crisis when kids don't understand the distinction 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
so 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 and a good premise that we should think about. people are taught schoolhouse rock is not a bad basic lesson in how the government is supposed to work. legislators pass laws. the congress, the president executes laws as does the entire administration, as passed by congress, or it follows the constitution, and the judicial branch decides, disputes as a neutral umpire an unbiased, unparticipant in each side of the controversy and does it objectively. so i think every day that we get away from that is really dangerous, and it is true, if a president says i do not have this authority, and other people say the president does not have
9:39 am
certain authority, and then it is done by the president, it confuses people, and i think colleague colleagues we too little appreciate something that's corrosive happening out in our country. there is a feeling that judges just vote when they get a big case before them on what their political agenda is, and not what the constitution actually requires. the 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 for law. >> thank you. but take it one step further, because there are going to be many cases, many instances where the administration in which you are likely going to end up serving will want to do things and they'll want to know what the limits of of their executive discretion is, pieces of legislation that have been passed around here in recent years, sometimes are well over 1,000 pages with all sorts of clauses the secretary shall, dot
9:40 am
dot dot fill in the law. so 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 cannot go? >> we really need to reestablish that. professor turley, jonathan turley has written about this. it's just powerful. it's certainly an objective royce in american jurisprudence and he says congress has just fallen down on its job and of course there are two ways. one of them, that it writes laws that are too broad and 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 a very muddled litigation maybe
9:41 am
resulting from it. so reestablishing 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're 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 the circumstances in which you can redefine the statute or alter if we are talking about improper actions, you could expand the meaning of
9:42 am
the word 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, because 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 so what are some proper instances, in your view, when an administration might not enforce a law? >> well, critics of the immigration enforcement, the laws say the prosecutorial discretion argument went too far, basically eliminated the laws from the books. secondly, with regard to that the president's, well, the order came from homeland security, not from the department of justice, but homeland security's order, not only said we are not going to force the law with regard to certain large classifications of people, but those people who had
9:43 am
not been given legal status under the laws of the united states were given photo i.d.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. so that would to me suggest an overreach. >> and in parallel before the courts, what instances would it be legitimate if any for the solicitor general to not defend the law in court? >> that's 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, by congress, and they
9:44 am
should be defended vigorously, whether or not the solicitor general agrees with them or not, unless it can't be reasonably defend defended. so sometimes you reach a disagreement whether it's reasonably defensible or not but that's the find mental question and the department of justice should defend laws that congress passed, unless they're unable to do so in a reasonable way. >> what is the place of independent agencies in the unified executive branch, and do you envision that you'll be making any representation reco the president to rein in independent agencies no an effort to preserve distimpgs between the powers of congress and abilities of the executive branch? >> good question, senator, kind of historic question at this point in time because it does appear to me that agencies oftentimes see themselves as independent thiefdoms, and sometimes you even hear the
9:45 am
president complain about things, clearly under his control. iemember president clinton complaining about theeath penalty processes of the department of federal government, when he appointed the attorney general who had just appointed a committee to make sure the death penalty was properly carried out. so i mean, like whose responsibility is this? you're in charge. you can remove the attorney general if you're not happy. so 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, but going back to something that senator lee was asking about. could you 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? >> well, olc has statutory duties to make opinions.
9:46 am
olc team reports to the attorney general, who could reverse i suppose or remove the olc head, the deputy attorney general if he thought those, that the department was not following the law, but essentially they are given the power as attorney general, i had an opinions 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. so 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 ultimately is the responsibility of the president and the attorney general to ensure that we have that kind of quality at olc. >> thank you. >> senator franken? >> 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 that 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've been quoted as saying. and i suspect i said that. >> okay, now that was 2009. but in november of this year, your office said "when senator sessions was u.s. attorney, he
9:49 am
filed a number of desegregation lawsuits in alabama" not 20 or 30 this time, but "a number." so tell me, did you file 20 or 30 desegregation cases or is it some other number? >> well thank you, senator franken. it is important for us to be accurate. the records don't show that there were 20 or 30 actually filed cases. some of the cases involved multiple defendants and multiple parties, like a school board and a county commission being sued for racial discrimination, 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. i thought -- >> -- that you filed 20 or 30? >> 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, and so it
9:50 am
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. >> okay. >> one of the lawyers from the department of justice i believe had a larger number but the record doesn't justify it. >> the questionnaire you submitted for today asks you to list and describe the "ten most significant litigated matters you personally handled." personally handled. and 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 piece in which they say "we can
9:51 am
state categorically that sessions had no substantive involvement in any of them." now you originally said that 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's 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. >> okay, two of the -- >> >> so you can disagree with that. but those cases i speak to here -- >> i want to get through this. >> -- on the docket sheet my name is listed number one as attorney for the case. >> okay, auto i'll i'm not a
9:53 am
lawyer. i'm one of the few members of this committee who didn't go to law school and usually i get by just fine but it seems to me that a lawyer, if a lawyer has just his name added to a document here or a filing there, that lawyer would be misrepresenting his record if he said he was personally handling these cases, two of the lawyers who wrote the op-ed have also submitted testimony for today's hearing, mr. jerry hebert and mr. joe rich. mr. hebert says "he litigated personally 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 and we he had
9:54 am
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 counsel" and "i was the 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 the this question there, we decided that was an appropriate response, since it was a major historic cases in my office. let me just reply, senator franken, in this fashion. mr. hebert, 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 not 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. have been able to go to him and he has had an open door policy. and i have taken advantage of that and found him cooperative" and that is an accurate statement. i don't know mr. rich. perhaps he indicates that i never worked with. he goes on to say quote -- >> i want to -- >> no you raised this question mr. franken. >> one of the cases you listed was a case mr. rich handled so if you don't know him it's hard for me to believe that you personally handled it. >> when i found that these cases, i had been supportive. >> you filed. >> i'm sure mr. hebert says "and
9:56 am
yet i have 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 30 years ago, my memory was of this nature and my memory was my support for these 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, but when i hear "i filed a case,"
9:57 am
you know, i don't know some of the parlance, might have a special meaning in legal parlance, but to me as a layman, 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, and it seems to me -- look, i'll close, mr. chairman. setting aside any political or ideological differences that you or 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 hear you. >> so i consider this serious stuff, as i know that you would, if you were in my position.
9:58 am
>> well, you're correct, senator fra franken. we need to be accurate in what we say. when this issue was raised, i did through a supplemental that said i provided assistance and guidance to civil rights division attorneys, had an open door policy with them, and cooperated with them on these cases, close quote. i signed them. i supported cases, and i attempted to be as effective as i could be in helping them be successful in these historic cases. i did 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 you stated you had participated in, and you don't sound like you personally handled cases that you said you personally handled. >> i was on a radio interview
9:59 am
without any records and that was my memory at the time. >> i thank you. you answered the question. senator flake now it's 12:59, so at 2:09 we will adjourn for lunch. i'll be back here them at 2:39, and whoever is present will start then, but i hope everybody can be back here at least by 2:45. well, whatever. i got -- [ laughter ] you know what i mean. go ahead. >> thank you. are you saying we're adjourned or i'm going? >> you go ahead. >> great. nice being the last one standing between lunch. >> let's have order for senator flake. >> i just want to say at the outside 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 our difference of opinion on
10:00 am
immigration legislation, that we put forward. you've had different ideas, but i have no doubt that as attorney general you'll faithfully execute the office. i appreciate the answers that you've given today. let me ask unanimous consent to submit a column written by our own attorney general in arizona, mark byrdovic for "the hill" newspaper this week. >> without objection it wille included. >> he's 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. what it is basically, it's intended to reduce border crossing by expeditiously prosecuting those who entered the country illegally over


info Stream Only

Uploaded by TV Archive on