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S. HRG. 113–871 

OVERSIGHT OF THE 

U.S. DEPARTMENT OF JUSTICE 

HEARING 

BEFORE THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE 

ONE HUNDRED THIRTEENTH CONGRESS 

FIRST SESSION 

MARCH 6, 2013 

Serial No. J–113–6 

Printed for the use of the Committee on the Judiciary 

( 

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COMMITTEE ON THE JUDICIARY 

PATRICK J. LEAHY, Vermont, Chairman 

DIANNE FEINSTEIN, California 

CHUCK SCHUMER, New York 

DICK DURBIN, Illinois 

SHELDON WHITEHOUSE, Rhode Island 

AMY KLOBUCHAR, Minnesota 

AL FRANKEN, Minnesota 

CHRISTOPHER A. COONS, Delaware 

RICHARD BLUMENTHAL, Connecticut 

MAZIE HIRONO, Hawaii 

CHUCK GRASSLEY, Iowa, Ranking Member 

ORRIN G. HATCH, Utah 

JEFF SESSIONS, Alabama 

LINDSEY GRAHAM, South Carolina 

JOHN CORNYN, Texas 

MICHAEL S. LEE, Utah 

TED CRUZ, Texas 

JEFF FLAKE, Arizona 

BRUCE A. COHEN, Chief Counsel and Staff Director 

KOLAN DAVIS, Republican Chief Counsel and Staff Director 

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C O N T E N T S 

WEDNESDAY, MARCH 6, 2013 9:40 A.M. 

STATEMENTS OF COMMITTEE MEMBERS 

Page 

Grassley, Hon. Chuck, a U.S. Senator from the State of Iowa ............................ 3 

Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont .................... 1 

prepared statement .......................................................................................... 52 

WITNESS 

Witness List ............................................................................................................. 45 

Holder, Hon. Eric H., Jr., Attorney General, U.S. Department of Justice ......... 47 

prepared statement .......................................................................................... 47 

QUESTIONS 

Questions submitted to Hon. Eric H. Holder, Jr., by Senator Franken .............. 54 

Questions submitted to Hon. Eric H. Holder, Jr., by Senator Grassley ............. 56 

ANSWERS 

Responses of Hon. Eric H. Holder, Jr., to questions submitted by Senator 

Franken ................................................................................................................. 157 

Responses of Hon. Eric H. Holder, Jr., to questions submitted by Senator 

Grassley ................................................................................................................ 90 

MISCELLANEOUS SUBMISSIONS FOR THE RECORD 

Reporters Committee for Freedom of the Press (RCFP), March 1, 2013, letter............................................................................................................................... 159 

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OVERSIGHT OF THE 

U.S. DEPARTMENT OF JUSTICE 

WEDNESDAY, MARCH 6, 2013 

UNITED STATES SENATE, COMMITTEE ON THE JUDICIARY, Washington, D.C. 

The Committee met, pursuant to notice, at 9:40 a.m., in Room 

SD–226, Dirksen Senate Office Building, Hon. Patrick J. Leahy, 

Chairman of the Committee, presiding. 

Present: Senators Leahy, Feinstein, Schumer, Durbin, 

Whitehouse, Klobuchar, Franken, Coons, Blumenthal, Hirono, 

Grassley, Hatch, Sessions, Graham, Cornyn, Lee, Cruz, and Flake. 

OPENING STATEMENT OF HON. PATRICK J. LEAHY, 

A U.S. SENATOR FROM THE STATE OF VERMONT 

Chairman LEAHY. The Attorney General is here, and the session 

will be in order. Mr. Attorney General, if you would join us, please. 

Because the session has begun, nobody will stand and block people behind them, with placards or otherwise. This is a meeting of 

the United States Senate Judiciary Committee. Everybody here is 

a guest of the Senate, and we expect you to be aware of all your 

fellow guests. And I realize some have differing views, but everybody has an opportunity to be here. And I would hope that nobody 

would be so arrogant that they would feel that they should have 

an ability to view and block the view of others. 

This week is the anniversary of ‘‘Bloody Sunday,’’ when voting 

rights marchers, including now-Congressman John Lewis, were 

beaten by State troopers as they attempted to cross the Edmund 

Pettus Bridge in Selma. Attorney General Holder spoke this weekend about living up to our founding ideals and the power of our 

legal system. The law, as we know, protects the rights of all Americans. That is what this Attorney General and the Justice Department he leads are dedicated to doing. 

In 2009, the Attorney General worked with us in Congress to 

pass landmark hate crimes legislation to address crimes committed 

against Americans because of race, ethnicity, religion, sexual orientation, or gender identity. And, Mr. Attorney General, I am glad 

to see that the Justice Department is enforcing that law. This 

week, the President will sign historic legislation building upon the 

Violence Against Women Act and the Trafficking Victims Protection Act to protect all victims of abuse. And I know the Justice Department will implement those laws. 

And the Justice Department is defending the protections provided by Section 5 of the Voting Rights Act to ensure that all 

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Americans have the right to vote and to have their votes matter. 

And this Committee played a key role in reauthorizing the Voting 

Rights Act 6 years ago. After nearly 20 hearings, thousands of 

pages of testimony, before the House and Senate Judiciary Committees, we found that modern-day barriers to voting persist in our 

country. We passed the bill, and President Bush signed the current 

extension of the Voting Rights Act in order to safeguard the fundamental rights of all Americans. I remember talking to President 

Bush the day of the signing and how proud he was to be signing 

it and that Republicans and Democrats had come together to craft 

that legislation because of this need. 

Now, I commend the Attorney General, FBI Director Mueller, 

and all those who work every day to keep Americans safe. The followup attack to 9/11 that so many predicted has not occurred—not 

on this President’s watch. Constant vigilance is part of the reason. 

And I think Senator Grassley will understand why I will not go 

into this in specific, but I also thank the Attorney General for 

reaching out not only to me but to Senator Grassley on issues of 

national security. 

While the Department’s success in disrupting threats to national 

security has been remarkable and its efforts to hold terrorists accountable commendable, I remain deeply troubled that the Committee has not yet received the materials I have requested regarding the legal rationale for the targeted killing of United States citizens overseas. I am not alone in my frustration or in my waning 

patience. The relevant Office of Legal Counsel memoranda should 

have been provided to members of this Committee, and I am glad 

at least to see it was provided to Senator Feinstein’s Intelligence 

Committee. But I think that some of the votes that will perhaps 

be cast against a nominee that has just come out of her Committee 

will be because of the inability to get that memo here. It is our responsibility to make sure that the tools used by our Government 

are consistent with our Constitution. 

We have worked together effectively to help keep Americans safe 

from crime and to help crime victims rebuild their lives. We have 

worked to strengthen Federal law enforcement and to support 

State and local law enforcement, and crime rates have experienced 

a historic decline despite the struggling economy. 

I remember the hearing that Senator Coons had in Delaware 

where we saw police, parole officers, members of the community, 

and everybody else coming together and bringing out the fact that 

we have to all work together to lower crime. 

We have worked hard to fight fraud and corporate wrongdoing. 

Congress passed the Fraud Enforcement and Recovery Act, which 

Senator Grassley and I drafted together, and important new antifraud provisions as part of the Affordable Care Act and the DoddFrank Wall Street Reform Act. Armed with these new tools, the 

Justice Department has broken records over the last several years 

for civil and criminal fraud recoveries and has increased the number of fraud prosecutions. 

This Committee has also worked with the Department to try to 

ensure that the criminal justice system works as it should. This 

month marks the 50th anniversary of the Supreme Court decision 

in Gideon v. Wainwright, which affirmed that no person should 

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face prosecution without the assistance of a lawyer. And I remember as a young lawyer reading the book on that—I believe it was 

‘‘Gideon’s Trumpet’’—and how much that impressed me. I am encouraged by the Justice Department’s Access to Justice Office, but 

we need to do more to ensure justice for all. I was glad to see the 

announcement of a joint initiative to help standardize and improve 

forensic science across the country, incorporating many of the ideas 

from my Criminal Justice and Forensic Science Reform Act. 

I appreciate the Attorney General joining me in recognizing the 

mounting problem of our growing prison population. This is having 

devastating consequences at a time of shrinking budgets at all levels of Government. But also there is a human cost, and we have 

to find constructive ways to solve it. Turning away from excessive 

sentences and mandatory minimums for nonviolent offenders would 

be a good start. 

When the Senate confirmed Attorney General Holder 4 years 

ago, the Department of Justice was still reeling from scandal, mismanagement, and findings of impermissible politicization. Since 

that time, the credibility of the Justice Department among the 

American people but also very importantly in courtrooms throughout the country has increased dramatically, and I am glad to see 

that the morale of its hard-working agents, prosecutors, and professionals, many of whom have been there from both Republican and 

Democratic administrations, has improved considerably. 

Again, I apologize for the allergies and the voice, but—— 

Senator GRASSLEY. Before I speak, could you inform us how you 

will handle it when we vote? 

Chairman LEAHY. Oh, Senator Grassley raises a very good point. 

Apparently we have a vote scheduled for, what, 10:30? 

Senator GRASSLEY. 10:30. 

Chairman LEAHY. I would encourage us, obviously, if someone is 

asking questions, to continue it. I think for the sake of time we will 

keep the Committee meeting going and try to get out and vote as 

quickly as possible and come back as quickly as possible. 

Senator GRASSLEY. And I will have to go over at some time for 

short remarks on that issue before we vote on it. 

Chairman LEAHY. You and me both. 

Senator GRASSLEY. Okay. 

Chairman LEAHY. So go ahead. 

STATEMENT OF HON. CHUCK GRASSLEY, 

A U.S. SENATOR FROM THE STATE OF IOWA 

Senator GRASSLEY. Welcome, General Holder. This hearing affords us the opportunity to clear the deck on many outstanding letters and questions that we have yet to receive from the Department. 

Example: We have not received questions for the record from the 

last oversight hearing held 9 months ago. We also have questions 

for the record from Department officials that testified at various 

hearings that remain outstanding. 

In addition, there are a number of inquiries that have not received a response on important issues. I cannot go through all of 

them, but an example, I have not received a response to a letter 

I sent last week on the impact of the budget sequester. Another letJR45368 with DISTILLER

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ter is outstanding on the failure to prosecute individuals at HSBC 

for money laundering. That one was sent in December. Finally, I 

have an outstanding request related to the investigation Fast and 

Furious, including one that will be outstanding for a year March 

9th. 

It is unfortunate that we always have to start hearings with the 

same request of the Attorney General to respond to unanswered 

questions. That said, I have a number of topics that I want to discuss with the Attorney General, including the latest letter to Senator Paul arguing in favor of the President’s ability to use military 

force to kill American citizens on U.S. soil without due process of 

law. This letter is extremely concerning, not just in its content but 

coupled with the classified memoranda that have been shared with 

just a few Members of Congress. It leaves many questions for 

Americans about we the Government can kill them. 

This oversight hearing also comes on the heels of an extremely 

important hearing before the House Judiciary on the topic of targeted killing of Americans using unmanned drones. This is an issue 

which Chairman Leahy already referred to and I have asked repeatedly the Attorney General about. Unfortunately, our letters on 

this matter have also gone unanswered, including our most recent 

letter to President Obama seeking access to classified memoranda 

authorizing the targeted killings of Americans abroad that were 

produced to members of the Select Committee on Intelligence but 

not members of the Judiciary Committee. And the Chairman also 

just made reference to that. 

A couple of weeks ago, at the Committee Executive Business session held in the U.S. Capitol Building, I joined Chairman Leahy, 

Senator Feinstein, and Senator Durbin in discussing the importance of the Judiciary Committee obtaining these documents as 

part of our legitimate oversight function. Despite opinions of this 

administration and the previous one to the contrary, Congress has 

a significant role to play in conducting oversight of national security matters. We have the right to ask for and receive classified information through appropriate channels and subject to protections 

to determine if the activities of the executive branch are appropriate. 

This Committee has precedent of obtaining the most highly classified information within the Government. Example: In reauthorizing and overseeing the FISA Amendments Act, we obtained and 

continue to obtain highly classified information regarding the operation of this important function. Similarly, we obtained classified 

information during the reauthorization of the USA PATRIOT Act 

and as part of the oversight conducted by the Committee reviewing 

the enhanced interrogation techniques and the role OLC played in 

issuing those memoranda. 

In light of the March 4, 2013, letter to Senator Rand Paul where 

the Attorney General argued that the President could authorize the 

military to use lethal force on a U.S. citizen on U.S. soil in an effort 

to protect the U.S. from a catastrophic attack, it is imperative that 

we understand the operational boundaries for use of such force. 

While the letter deals with what is labeled ‘‘extraordinary circumstances,’’ American citizens have a right to understand when 

their life can be taken by their Government absent due process. 

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Providing these memoranda for review would go a long way toward 

complying with the President’s original election promise to have 

the most transparent administration ever. 

I will move on to another issue: gun violence. Tomorrow, the 

Committee begins a markup. We have held three hearings on the 

topic over the past 2 months and twice heard from the Justice Department witnesses. Both times the Department testified, we heard 

a reiteration of the Department’s support of a ban on semiautomatic rifles with certain cosmetic features deemed ‘‘assault rifles.’’ 

However, both times, when I asked whether the Department had 

issued an official opinion determining whether such a ban is constitutional under the Second Amendment in light of the Heller 

case, I heard that no opinion has been issued. Given that we are 

marking up the bills tomorrow, it would be good to hear from the 

Attorney General that he will be releasing such an opinion today 

so members would have time to read it in advance of tomorrow’s 

markup. 

On another subject, to discuss the Department’s continued failure to criminally prosecute those who commit fraud and wrongdoing at large financial firms. As a result, these companies settle 

for pennies on the dollar, and the costs of these fines simply become the cost of doing business for these institutions. It has led 

many to believe that financial institutions too big to fail by the 

Treasury Department are also too big to jail. What is even more 

disturbing is that while this distinction was mostly reserved for financial crimes, a position I find flawed in its own regard, this policy appears to have seeped into other misconduct enforced by the 

Department. 

Example: December 2012, the Department entered into a Deferred Protection Agreement, a DPA, with the bank HSBC, and 

that is a global bank, as you know, violating Federal laws designed 

to prevent drug lords and terrorists from laundering money in the 

United States. 

Let me repeat: a Deferred Prosecution Agreement for a company 

involved in money laundering for drug lords and terrorists. 

I sent a letter to the Attorney General expressing my outrage at 

the DPA on December 13th. I asked why no employees, not even 

the ones who turned off the anti-money-laundering filters, were 

prosecuted. Further, Senator Brown of Ohio and I sent a letter in 

January seeking the rationale for why no individuals at these large 

financial institutions were prosecuted. The response was woeful 

and failed to actually answer our questions, leading us to question 

whether the Department has something to hide. 

Simply put, this is a leadership problem and one that needs to 

be fixed, and fixed quickly. This will be a big part of any effort to 

confirm a new Assistant Attorney General for the Criminal Division. 

I also want to hear from the Attorney General about a concerning new study issued by the Government Accountability Office. 

I requested GAO conduct this report to detail the use of Department-owned luxury jets by Department executives for non-mission 

travel, some of which included personal travel. The Department executives reimbursed the Government for part of the trip, but only 

the costs at regular coach fare. This is significantly less than the 

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tens of thousands of dollars an hour that these planes cost. That 

report found that between Fiscal Year 2007, which was obviously 

in the Bush years, to Fiscal Year 2011, the Department’s executive 

non-mission travel for these luxury jets totaled 60 percent of the 

flight time. These flights accounted for $11.4 million of taxpayers’ 

expenditures for non-mission travel. 

Now, nobody has any argument with the use of these planes or 

the necessity of these planes for mission travel. In light of sequester and the general dire fiscal situation the Federal Government 

faces, this travel was concerning. Yet it was especially concerning 

given that the justification provided to Congress in 2010 was for 

counterterrorism missions. While the Attorney General and the 

FBI Director are now both required-use travelers, meaning they 

are required by executive branch policy to take Government aircraft for even personal travel, GAO found that until recently the 

FBI Director has the discretion to use commercial air service for 

personal travel, which he elected to do most of the time to save the 

use of Government funds. 

This GAO report raises a number of troubling questions, especially in light of the proposed spending reductions because of the 

sequester. Most pressing is should the executives at the Department be using these planes for non-mission travel on a jet purchased for counterterrorism missions. 

I yield the floor. I have more to say, but I have said enough. 

Chairman LEAHY. Thank you. 

What we will do is we will—and again I would add that I realize 

some in the audience feel very committed to their positions and apparently feel that whatever their position is is far more important 

than anybody else who might be sitting here. But I would ask them 

not to block other people. This is an important open hearing. We 

welcome everybody whether you agree with us or not, but I think 

you have a responsibility to the people who are also trying to do 

it and that they also may feel that they have an important reason 

for being here. 

Mr. Attorney General, earlier this week I worked with Senator 

Collins in a bipartisan group of Senators to introduce a bill to address the problems of firearms trafficking and straw purchasing. I 

think we all agree the current law needs to be strengthened and 

fixed to close the gaps that make it too easy for violent criminals, 

gangs, and drug-trafficking organizations to obtain guns. 

Do you agree that there is a need for specific statutes criminalizing gun trafficking and straw purchasing? 

Attorney General HOLDER. Yes, Mr. Chairman. There is no question that there is the need for a stand-alone trafficking bill. What 

we now have is a hodgepodge where people, straw purchasers, buy 

guys for other people, and we only are able to prosecute them for 

what we call ‘‘paper violations’’ that are both inadequate and not 

likely to induce cooperation from people who we are charging. So 

the stand-alone trafficking bill is something that we really support. 

Chairman LEAHY. And, Mr. Attorney General, I realize—and I 

cannot claim it is because I am new to the Committee—I forgot to 

give you a chance to give your opening statement. Please give your 

opening statement. 

[Laughter.] 

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STATEMENT OF HON. ERIC H. HOLDER, JR., 

ATTORNEY GENERAL, U.S. DEPARTMENT OF JUSTICE, WASHINGTON, DC 

Attorney General HOLDER. Chairman Leahy, Ranking Member 

Grassley, and distinguished members of the Committee, I really appreciate this opportunity to provide an overview of the Justice Department’s recent achievements and the accomplishments that my 

colleagues—the 116,000 dedicated men and women who serve in offices around the world—have made possible. I look forward to 

working with you all to take our critical efforts to a new level. 

But before we begin this discussion, I must acknowledge the debt 

our Nation owes to three correctional workers employed by the 

Federal Bureau of Prisons who over the last week and a half have 

made the ultimate sacrifice: Officer Eric Williams, Officer Gregory 

Vineski, and Lieutenant Osvaldo Albarati. As Attorney General 

and also as the brother of a retired police officer, I am determined 

to ensure that those responsible for the acts that led to the deaths 

of these three brave individuals are brought to justice. And my colleagues and I are committed to honoring the service of these and 

other fallen officers by doing everything in our power to keep the 

women and men in law enforcement safe and to continue the work 

that became the cause of their lives. 

In this regard, I am proud to report that the Department has 

made tremendous progress in combating violent crime, battling financial fraud, upholding the civil rights of all, safeguarding the 

most vulnerable members of our society, and protecting the American people from terrorism and other national security threats. 

Particularly since the horrific tragedy in December in Newtown, 

Connecticut, the urgency of our public safety efforts has really 

come into sharp focus. Earlier this year, I joined Vice President 

Biden and a number of my fellow Cabinet members to develop common-sense recommendations to reduce gun violence, to keep deadly 

weapons out of the hands of those prohibited from having them, 

and to make our neighborhoods and our schools more secure. In 

January, President Obama announced a comprehensive plan that 

includes a series of 23 executive actions that the Justice Department and other agencies are working to implement and a range of 

common-sense legislative proposals. 

This morning, I am pleased to join the President, the Vice President, and countless Americans in calling on Congress to enact legislation addressing gun violence, including measures to require universal background checks, to impose tough penalties on gun traffickers, as I just indicated, to protect law enforcement officers by 

addressing armor-piercing ammunition, to ban high-capacity magazines and to ban military-style assault weapons, and to eliminate 

misguided restrictions that require Federal agents to allow the importation of dangerous weapons simply because of their age. 

I am also pleased to echo the President’s call for the Senate to 

confirm Todd Jones as Director of the Bureau of Alcohol, Tobacco, 

Firearms, and Explosives—a critical Justice Department component that has been without a Senate-confirmed head for 6 years. 

Now, of course, in addition to the administration’s efforts to reduce gun violence, we remain focused on preventing gun-, gang-, 

and drug-fueled violence in all of its forms; and we are determined 

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to combat domestic violence as well. Now, in strengthening this 

work, I applaud Congress for passing a bipartisan reauthorization 

of the Violence Against Women Act, a landmark law that has 

transformed the way that we respond to domestic violence. And I 

am pleased that this bill will finally close a loophole that left many 

Native American women without adequate protection. The Justice 

Department looks forward to implementing this historic legislation, 

and we are committed to moving in a range of ways to become both 

smarter and tougher on crime and to remain aggressive and fair 

in our enforcement of Federal laws. 

Now, thanks to countless Department employees and partners, 

we have achieved, I think, extraordinary results. And nowhere is 

this clearer than in our work to protect America’s national security. 

Since 2009, the Department has brought cases—and secured convictions—against numerous terrorists. We have identified and disrupted multiple plots by foreign terrorist groups as well as homegrown extremists. Article III works, the Article III courts work. 

And we have worked to combat emerging national security threats, 

such as cyber intrusions and cyber attacks directed against our systems and infrastructure by nation states and non-state actors, including terrorist groups. Last summer, the Department created the 

National Security Cyber Specialists network to spearhead these efforts. The network is comprised of prosecutors and other cyber specialists across the country who will work closely with the FBI and 

other partners to investigate malicious cyber activity, seek any necessary cooperation, and then, where appropriate, to bring criminal 

prosecutions as part of our governmentwide effort to deter and disrupt cyber threats to our national security. 

Beyond this work, the Department has taken significant steps to 

ensure robust enforcement of antitrust laws, to protect the environment, to crack down on tax fraud schemes, and to address financial 

and health care fraud crimes. In cooperation with the Department 

of Health and Human Services and others, over the last Fiscal 

Year alone, we secured a record $4.2 billion in recoveries related 

to health care fraud and abuse. As a result of our commitment to 

achieve justice on behalf of the victims of the 2010 Deepwater Horizon oil spill, in January we secured a guilty plea and a record $4 

billion fine, criminal fine, and penalties from BP; and in February, 

the court approved a settlement requiring Transocean to pay $1.4 

billion in fines and penalties. And on February 25th, we commenced trial of our civil claims against BP and others. And 

through the President’s Financial Fraud Enforcement Task Force, 

we are working closely with Federal, State, and local authorities to 

take our fight against fraud targeting consumers, investors, and 

homeowners to new heights. 

Over the last 3 years—thanks to Task Force leaders and our 

partners—we have filed nearly 10,000 financial fraud cases against 

nearly 15,000 defendants, including more than 2,900 mortgage 

fraud defendants. Last month, the Department filed a civil suit 

against the credit rating agency Standard & Poor’s, seeking at 

least $5 billion in damages for alleged conduct that really goes to 

the heart of the recent economic crisis. 

We are also striving to boost the capacity of our law enforcement 

allies and to provide access to the tools, training, and equipment 

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that they need in order to do their jobs as safely and as effectively 

as possible. And we are working with them to promote the highest 

standards of integrity across every agency, department, and sheriff’s office. 

This commitment—to integrity and to equal justice under law— 

has also driven the Department’s Civil Rights Division in its efforts 

to address intimidation, bias, and discrimination from America’s 

housing and lending markets, to our schools, workplaces, border 

areas, but also to our voting booths. Since 2009, the Division has 

filed more criminal civil rights cases than ever before, including 

record numbers of human trafficking and police misconduct cases. 

We have also led efforts to implement the Matthew Shepard and 

James Byrd Hate Crimes Prevention Act, which improved our ability to achieve justice on behalf of Americans who are targeted because of their gender, sexual orientation, gender identity, or disability. And we are fighting to preserve the principles of equality, 

opportunity, and justice that have always shaped our Nation’s 

past—and must continue to determine our future. 

Now, in the days ahead, as Congress considers ways to make fair 

and effective changes to America’s immigration system, these same 

principles I believe must guide our efforts to strengthen our borders. These principles must continue to inform our actions as we 

fairly adjudicate immigration cases, enforce existing laws, and hold 

accountable employers who knowingly hire undocumented workers 

or engage in illegal and discriminatory business practices. 

So this morning, my colleagues and I stand ready to work with 

leaders from both parties to help achieve lasting reform; to 

strengthen our ability to keep everyone in this country—and especially our young people—safe; and to move forward in protecting 

the American people and achieving the priorities that we share. 

But I must note that our ability to complete this work and to continue building upon the progress that I have just outlined will be 

severely hampered unless Congress adopts a balanced deficit reduction plan and ends the untenable reductions that last week set in 

motion a move to cut over $1.6 billion—that is, 9 percent—from the 

Department’s budget in just 7 months’ time. 

As we speak, these cuts are already having a significant negative 

impact not just on Department employees, but on programs that 

could directly impact the safety of Americans across the country. 

Our capacity to respond to crimes, investigate wrongdoing, and to 

hold criminals accountable has been reduced. And despite our best 

efforts to limit the impact of sequestration, unless Congress quickly 

passes a balanced deficit reduction plan, the effects of these cuts— 

on our entire justice system and on the American people—may be 

profound. 

So I urge congressional leaders to act swiftly to restore the funding that the Department needs to fulfill its critical mission and to 

keep our citizens safe. 

Thank you, Mr. Chairman, and I look forward to answering any 

of your questions. 

[The prepared statement of Attorney General Holder appears as 

a submission for the record.] 

Chairman LEAHY. Thank you, and I apologize again for jumping 

to that first question. I have been watching the clock because both 

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Senator Grassley and I have to go over to speak on the Halligan 

nomination. As I said, when I leave for that, Senator Feinstein will 

take the gavel. 

You mentioned the cuts, the $1.6 billion across the board. Obviously, I worry what that is going to do to critical grant programs 

that small rural States like Vermont depend upon. I do not mean 

that to be parochial, but in smaller areas, in rural areas in every 

State, all 50 of our States, it has a disproportionate effect. I would 

hope you would be able to continue to work on programs like the 

COPS program, the Bulletproof Vest Partnership program, the Victim Assistance program. 

Attorney General HOLDER. Yes, we will try to do the best that 

we can. This is a $1.6 billion cut. It is 9 percent out of our budget 

over the course of 7 months. It will take $100 million out of our 

grantmaking capacity. We will try to minimize the harm and try 

to make sure that the mission that we have is not compromised. 

But I have to say, you cannot take $1.6 billion, 9 percent, out of 

our budget and expect us to be as effective as we once were. 

Chairman LEAHY. I am not trying to put words in your mouth, 

but is it safe to say this is going to affect national security? 

Attorney General HOLDER. I fear that it could. We will try to 

jury-rig things so that we have agents where they ought to be. The 

reality is—and people should understand this—that if these budget 

cuts stay in effect, FBI agents, DEA agents, ATF agents, people at 

BOP, at the Bureau of Prisons, are going to have to undergo furloughs. They are not going to be on the job. 

Chairman LEAHY. Thank you. And we have talked about the Office of Legal Counsel memos on targeted killings. I have been asking for that for some time, and you and I have had discussions 

about this. I realize the decision is not entirely in your hands, but 

it may be brought to a head with a subpoena from this Committee. 

In your letter to Senator Paul sent earlier this week, you left 

open the possibility of using lethal force against American citizens 

in extraordinary circumstances on U.S. soil. You mentioned 9/11 

and Pearl Harbor, but you did not specifically mention armed 

drones. 

Can you agree there is no scenario where it would be appropriate 

to use an armed drone on U.S. soil to strike an American citizen? 

Attorney General HOLDER. Well, what I said in the letter was 

that the Government has no intention to carry out any drone 

strikes in the United States. It is hard for me to imagine a situation in which that would occur. We have within the United States 

the ability to use our law enforcement capacity, and as I laid out 

in a speech that I gave at Northwestern University with regard to 

the use of these kinds of lethal forces, one of the critical things was 

that the possibility, the feasibility of capture was difficult in foreign 

lands—Afghanistan, Pakistan, other parts of the Middle East. 

That is not the same thing here in the United States where the 

possibility of capture is obviously enhanced, and as a result, the 

use of drones is, from my perspective, something that is entirely 

hypothetical. And what I tried to say in the letter to Senator Paul 

was exactly that. 

Chairman LEAHY. Once we have seen the memo, I suspect Senator Grassley and I may want to meet with you and discuss parJR45368 with DISTILLER

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ticular points. I will leave it at that for the moment rather than 

going into—otherwise, you have to go into some classified hearings. 

Last year, the Committee favorably reported my cyber crime bill. 

It had a provision authored by Senators Franken and Grassley that 

would amend the act to prohibit prosecutions based solely upon violations of the Terms of Use Agreement. We are concerned, some of 

us, that the Department may inappropriately apply the Computer 

Fraud and Abuse Act to criminally prosecute relatively innocuous 

conduct, such as violating a Terms of Use Agreement. And I supported the Franken-Grassley amendment. 

Can the Department of Justice review its prosecution guidelines 

for computer fraud and abuse cases and consider revising those 

guidelines to prohibit prosecutions based solely upon conduct involving a violation of a Terms of Use Agreement? 

Attorney General HOLDER. Well, I think we are always in the 

process of trying to look at how we are using the tools that Congress has given us, and to the extent that there are issues in enforcement, inappropriate uses of statutes, we always want to correct that. And so as I said, we constantly monitor that, and we 

want to make sure that we use those tools in appropriate ways and 

only ask for jail time, for instance, where that is absolutely needed. 

So that is something that we can look at. 

Chairman LEAHY. Thank you. 

Now, last November, voters in Colorado and Washington chose to 

legalize personal use of up to 1 ounce of marijuana and to enact 

licensing plans for cultivation and distribution of the drug. Last 

year, I asked Director Gil Kerlikowske of the Office of National 

Drug Control Policy how the administration would prioritize resources to determine policy. 

In light of the choices made by the voters in Colorado and Washington, knowing that there are going to be other States that do the 

same thing, are you prepared to announce the Federal Government’s policy in response to the voters in Colorado and Washington? 

Attorney General HOLDER. Well, I have had the opportunity to 

meet with the leadership from Colorado and from Washington, the 

Governors. We had a good, I think, communication. We are in the 

administration at this point considering what the Federal Government’s response to those new statutes will be. I expect that we will 

have an ability to announce what our policy is going to be relatively soon. 

Chairman LEAHY. I would think that—this is simply an editorial 

comment, but if you are going to be, because of budget cuts, 

prioritizing matters, I would suggest there are more serious things 

than minor possession of marijuana. But that is a personal view. 

Now, it has been brought up here—I know Senator Grassley 

raised the fact that you, like several other Cabinet Secretaries, are 

prohibited from flying commercially for security reasons. A recent 

GAO report confirmed that counterterrorism and other mission 

travel always takes precedent over other official travel by you, Director Mueller, and previous Attorneys General. And you and Director Mueller have complied with reimbursement requirements in 

all cases. Just so I understand, we are talking about—and the 

JR45368 with DISTILLER

12 

number of uses. Is it true that your predecessor used the aircraft 

for personal travel twice as often as you have? 

Attorney General HOLDER. Yes, that is true. As we looked at the 

numbers, I took a total of 27 trips that were categorized as personal. My predecessor took a total of 54. But one of the things that 

I want to emphasize is that these planes are always used first and 

foremost for mission purposes, and if you combine mission purposes, as the GAO has defined it, as well as official travel, the 

planes are used 93 percent of the time for those two purposes. And 

when I say ‘‘official travel,’’ that would include trips that I made 

on these planes to Afghanistan, to Guantanamo, to Haiti to talk to 

Caribbean heads of state, to Ottawa in order to talk about border 

issues with our Canadian counterparts. 

So this notion that these planes are somehow being misused is 

totally belied by the facts if they are fairly viewed. 

Chairman LEAHY. You mentioned Haiti. I was in Haiti right after 

your trip on a Government plane with a number of both Republican 

and Democratic Members of Congress, and I understand the reasons why they used it there, too. 

I am giving the gavel to Senator Feinstein, and I will recognize 

Senator Grassley. 

Senator GRASSLEY. I think we will go with one of these. I am 

going over to the floor. 

Chairman LEAHY. Okay. Who is next? 

Senator GRASSLEY. Senator Cornyn. 

Chairman LEAHY. Senator Cornyn. 

Senator CORNYN. Good morning, General Holder. 

Attorney General HOLDER . Good morning. 

Senator CORNYN. I wrote you a letter on January 18, 2013, about 

the prosecution of Aaron Swartz, who was prosecuted by the U.S. 

Attorney’s Office in Massachusetts for allegedly breaking into the 

computer networks at MIT and downloading without authorization 

thousands of academic articles from a subscription service. He was 

charged with crimes that would have carried a penalty of up to 35 

years in prison and a $1 million fine. A superseding indictment, 

which was actually filed, would have upped both the prison time 

and the fines. 

As I said, I wrote a letter asking about that prosecution and raising questions of prosecutorial zeal and I would say even misconduct. Have you looked into that particular matter and reached 

any conclusions? 

Attorney GeneralHOLDER . Yes, let me first say that Mr. Swartz’s 

death was a tragedy. My sympathy goes out to his family and to 

his friends, those who were close to him. It is a terrible loss. He 

was obviously a very bright young man and had, I think, a good 

future in front of him. 

As I have talked to the people who have looked into this matter, 

these news reports about what he was actually facing is not consistent with what the interaction was between the Government and 

Mr. Swartz. An offer, a plea offer, was made to him of 3 months 

before the indictment. This case could have been resolved with a 

plea of 3 months. After the indictment, an offer was made that he 

could plead and serve 4 months. Even after that, a plea offer was 

made of a range of from 0 to 6 months, that he would be able to 

JR45368 with DISTILLER

13 

argue for a probationay sentence, the Government would be able to 

argue for up to a period of 6 months. There was never an intention 

for him to go to jail for longer than a 3-, 4-, potentially 5-month 

range. That was what the Government said specifically to Mr. 

Swartz. Those offers were rejected. 

Senator CORNYN. And he committed suicide, correct? 

Attorney General HOLDER . He did. 

Senator CORNYN. The subscription service did not support the 

prosecution. Does it strike you as odd that the Government would 

indict someone for crimes that would carry penalties of up to 35 

years in prison and $1 million fines and then offer him a 3- or 4- 

month prison sentence? 

Attorney General HOLDER . Well, I think that is a good use of 

prosecutorial discretion, to look at the conduct, regardless of what 

the statutory maximums were, and to fashion a sentence that was 

consistent with what the nature of the conduct was. And I think 

that what those prosecutors did in offering 3, 4, 0 to 6, was consistent with that conduct. 

Senator CORNYN. So you do not consider this a case of prosecutorial overreach or misconduct? 

Attorney General HOLDER. No, I do not look at what necessarily 

was charged as much as what was offered in terms of how the case 

might have been resolved. 

Senator CORNYN. Well, I would suggest to you, if you are an individual American citizen and you are looking at criminal charges 

being brought by the U.S. Government with all of the vast resources available to the Government, it strikes me as disproportionate and one that is basically being used inappropriately to try 

to bully someone into pleading guilty to something that strikes me 

as rather minor. But I would appreciate it if you would respond to 

my letter in writing dated January the 18th. I know Senator 

Grassley listed a number of other letters that your Department has 

not responded to, but would you commit to responding to that letter and answering the questions in writing? 

Attorney General HOLDER. We will get responses to that letter. 

I think the letter will probably encapsulate what I have just said 

in terms of how we viewed the case and how we thought it could 

be appropriately resolved. 

Senator CORNYN. Well, I want to make sure you have done a 

thorough investigation into the matter and you are not just speaking off the cuff. 

Attorney General HOLDER. It is not off the cuff. It is not off the 

cuff. 

Senator CORNYN. So you have done a thorough investigation of 

this matter? 

Attorney General HOLDER. I think a good examination has been 

done. The prosecutors were talked to, the U.S. Attorney was talked 

to, and people in the Department were responsible for those inquiries. 

Senator CORNYN. Well, one of the reasons I am skeptical is because, of course, you are well aware of the prosecution of Senator 

Ted Stevens, and you yourself decided that the prosecutors in that 

case overreached, withheld information that would have been exculpatory that should have been divulged under the rules of ethics, 

JR45368 with DISTILLER

14 

and I am concerned that average citizens, if you can call them that, 

like Aaron Swartz, people who do not have status or power perhaps 

in dealing with the Federal Government, could be bullied. And obviously we have seen even Members of the United States Senate 

like Ted Stevens who have been on the receiving end of prosecutorial misconduct. And that was a conclusion you yourself reached 

in that case, correct? 

Attorney General HOLDER. Well, yes, I think that the level— 

what we did in that case, in the Stevens case, was not consistent 

with the high standards that I expect of people who work in the 

Justice Department. But I think that is also an example, as well 

as the numbers that I have shared with you with regard to Mr. 

Swartz’s case, of how this Department conducts itself and, where 

we make mistakes, what we do to try to correct them. As long as 

I am Attorney General and as long as this information is brought 

to my attention, I will not hesitate to do what I did, for instance, 

in the Stevens matter. 

Senator CORNYN. I respect that. Unfortunately, in both cases 

both of these men are dead, and it is hard to make recompense to 

someone after they are dead. 

I know that we are going to be taking up some various gun legislation, and you have spoken to that some, and I just want to ask 

you, first of all, I have a copy of a speech that you gave to the 

Women’s National Democratic Club January 30, 1995, and I want 

to quote it and ask you if this is a correct quote. 

You said: ‘‘It is not enough to simply have a catchy ad on Monday and then only do it every Monday. We need to do this every 

day of the week and just really brainwash people into thinking 

about guns in a vastly different way.’’ 

Is that a correct quote? 

Attorney General HOLDER. That part is, but it is taken out of 

context. What I was talking about was young black men who have 

all kinds of images thrown at them—at that time, Washington, DC, 

was the murder capital of the country, and I was talking about 

young black guys who see movies, television stuff that glorifies the 

use of guns, the possession of guns. And what I said is that we 

need to counter those images, and I used the term ‘‘brainwash’’ to 

get these young black guys to think differently about the possession and use of guns. 

Senator CORNYN. Well, do we not think that aggressive prosecution of gun crimes is part of the answer as well to serve as a deterrence to using firearms and committing other crimes? 

Attorney General HOLDER. Sure, absolutely. But I also think that 

preventing people from acquiring guns, using them in inappropriate ways—I was a superior court judge here in Washington, DC, 

during that time. I saw an ocean of young black men who should 

have been the future of this community go to jail because they had 

guns, they used them inappropriately, they killed people. And I 

thought that in that speech and what I tried to do as U.S. Attorney 

and as a judge when I was here in the local courts was to come 

up with ways in which we talk to these young guys and try to convince them that, you know, acquiring guns and using them to sell 

drugs, rob people, was just wrong, inappropriate—a prevention 

thing, in addition to—I think you are right, in addition to strongly 

JR45368 with DISTILLER

15 

prosecuting them. When I was a judge, I sent people away for possession and use of guns for extended periods of time. I did not hesitate to do that as a judge. 

Senator CORNYN. Let me just ask in conclusion, FBI figures reveal from 2010 that more than 76,000 people attempting to buy 

guns failed background checks. We do not know how many of these 

people actually have committed crimes. We do know that the Bureau of Alcohol, Tobacco, and Firearms referred just 62 of these 

cases to Federal prosecutors, and prosecutors declined nearly a 

third of those, reaching a plea of guilty or a guilty verdict in just 

13 cases. So out of 76,000 failed background checks, your Department pursued a guilty plea or a guilty verdict in just 13 cases. 

How is that consistent with making violation of the crime a deterrence if the likelihood of prosecution is so slight? 

Attorney General HOLDER. Well, the primary purpose of the 

background check system is to make sure that people who should 

not have guns do not get them. Since 1998, 1.5 million people have 

been turned away in that regard. 

Of all the Federal gun prosecutions that we bring—of all the 

prosecutions we bring, one-seventh of them are, in fact, gun prosecutions. All of those cases where people are denied the opportunity 

to get a gun are, in fact, reviewed for prosecution purposes and determinations made as to whether or not they should, in fact, be 

prosecuted. 

One of the things I want to look at—and I will be talking to the 

U.S. Attorneys about—is whether or not we need to bring more of 

those cases. If we are going to be really cracking down on gun 

crime, there are reasonable explanations as to why we have those 

numbers, but I want to make absolutely certain that we are prosecuting all the people who should have been denied a gun—failing 

one of the instant background check system. 

Senator CORNYN. A crime not prosecuted does not produce deterrence. Would you agree with that? 

Attorney General HOLDER. Well, we have limited resources, and 

we have to try to figure out where we are going to use those limited resources, and one has to look at why the gun was denied, and 

then make a determination whether or not we should use those 

limited resources to bring a prosecution against that person. 

Senator CORNYN. You did not answer my question. A crime not 

prosecuted does not produce the kind of deterrence that we would 

want to prevent other people from committing those similar crimes. 

Do you agree with that? 

Attorney General HOLDER. Well—— 

Senator FEINSTEIN [presiding]. Senator, I have been very—you 

are 3 minutes and 23 seconds over. 

Senator CORNYN. You have been very indulgent, Madam Chair. 

Senator FEINSTEIN. I try. 

Senator CORNYN. But with all respect to Attorney General Holder, he did not answer my question, and I would just like a simple 

answer to the question. 

Attorney General HOLDER. Well, yes, deterrence comes in a number of forms. Some people are deterred by the prospect of jail. 

Other people are deterred by the prospect of having filled out a 

form and then having been turned down. It depends on the indiJR45368 with DISTILLER

16 

vidual, and those are the kinds of factors that we take into account 

when making determinations as to whether or not a prosecution 

should appropriately be brought. 

Senator FEINSTEIN. Thank you very much, Senator. 

I just want to say welcome, Attorney General Holder, and thank 

you for your service. I think it is very apparent that you have a 

very hard job in a hard time. 

I just wanted to say something to you as Chairman of the Intelligence Committee on the Office of Legal Counsel opinions. Our job 

is vigorous oversight of the intelligence community. We cannot do 

that unless we see the legal underpinnings for certain kinds of activities, particularly clandestine activities. I believe the Committee 

is fully united on that point on both sides. So I believe that the administration is really going to have to come to terms with this, and 

I would like to ask you to spend some time and take a good look 

at it. 

I have just been sitting here reading the white paper that you 

sent to this Committee on the subject of lawfulness of a lethal operation directed against a U.S. citizen who is a senior operational 

leader of al Qaeda or an associated force. This is Committee confidential, but it is not classified. And the fact of the matter is it 

is a 16-page, very thoughtful, very impressive opinion, and yet it 

cannot go into the public domain. I cannot ask you, even here, 

about some of the factors of this opinion. And I think that is a mistake. And I think that the world that we are now living in is so 

different and so imprecise that the legal underpinnings for action 

really are important. 

Second, it is one thing for a President to ask for a legal opinion 

prior to something that is ongoing, maybe even ongoing. It seems 

to me that afterwards we should have the opportunity to assess the 

legality of that and, if necessary, if it is not legal, be able to clarify 

law, change law, do whatever a constitutional legislative body does. 

So I would just ask you to take a look at this. We have now— 

well, I just got a note. It has been released now because it was 

leaked first, so—— 

Attorney General HOLDER. That is one way of getting it out. 

Senator FEINSTEIN. Yes. I think that gives you an idea of the situation that we are in. From an intelligence point of view, it is absolutely vital. 

And then I understand you get down to different committees. Let 

us say the Predator is taken out of the jurisdiction of Intelligence 

and put in the Military. That transfers the jurisdiction to Armed 

Forces. Let us say it is used in some way that brings the jurisdiction to this Committee. 

So I think we now have to look at that arena and make some 

decisions as to the administration being more forthcoming with the 

legal advice that underpins law making. 

[Applause.] 

Senator FEINSTEIN. Please do not. Please do not. 

Would you agree? 

Attorney General HOLDER. Yes, and I have to say that I have 

heard you, the President has heard you, and others who have 

raised this concern on both sides of the aisle, and I think that what 

you will hear from the President in a relatively short period of time 

JR45368 with DISTILLER

17 

is—I do not want to preempt this, but, we have talked about a need 

for greater transparency in what we share, what we talk about, because I am really confident that if the American people had access 

to, for instance—some of this stuff cannot be shared. I understand 

that. But if at least the representatives of the American people 

have the ability as members of the Intelligence Committee have 

had to see some of those OLC opinions, there would be a greater 

degree of comfort that people would have to understand that this 

Government does these things reluctantly but also we do it in conformity with international law, with domestic law, and with our 

values as the American people. 

And so I think there is going to be a greater effort at transparency. A number of steps are going to be taken. I expect you will 

hear the President speaking about this. 

Senator FEINSTEIN. Yes, I think so. I mean, right now we have 

someone exercising a hold on John Brennan, who said, you know, 

what we are talking about is you are eating dinner in your house, 

you are eating at a cafe, and you are walking down the road in this 

country, and can be targeted for elimination. 

I do not believe that is true. 

Attorney General HOLDER. No. 

Senator FEINSTEIN. I do not believe it is correct. I think it really—you know, it is one thing after a major attack like 9/11 where 

we saw brave people take down a plane because they had heard 

that these planes were being crashed into buildings and there was 

a likelihood that this one was going to crash into the United States 

Capitol. And so people on the plane took it down. And then there 

was discussion as to whether a President should order a plane 

taken down with American citizens if it was going to jeopardize a 

greater number of American citizens. 

I think this to some extent is something that we have to grapple 

with in a legal way as well. But in reading the opinions that I have 

just read, I believe they are very sound opinions. I have also read 

the opinions from the Bush administration, one of which was withdrawn by the Bush administration, and two of which were withdrawn by the Obama administration. They are not, in my view, 

good opinions. They were opinions designed to provide whatever 

the President or the administration was asking for. 

I think this is where transparency is important, that years after, 

we have an opportunity to look and make judgments as to whether 

our democracy and our values are being operated by the executive 

in a proper manner. 

Attorney General HOLDER. As I said, I think there is a greater 

need for transparency, a greater need for appropriately sharing information, and we are struggling with how to do that. But it is 

something that the President feels strongly about, and as I said, 

over the next few months, I think you will see an effort on the part 

of the administration to be more transparent. 

Senator FEINSTEIN. Thank you. 

Senator Cruz is next on my list and then Senator Whitehouse. 

Senator CRUZ. Thank you, Senator Feinstein. 

General Holder, thank you for being here this morning. 

Attorney General HOLDER. Good morning. 

JR45368 with DISTILLER

18 

Senator CRUZ. I would like to address three areas, and I would 

like to start with the topic you were just discussing, the topic of 

drones. In your response to Senator Paul yesterday, you suggested 

there may well be circumstances in which it is permissible to use 

drones to target a U.S. citizen on U.S. soil. I would like to explore 

those circumstances, and in particular, you point at two. You pointed to Pearl Harbor and 9/11, both of which were extreme military 

attacks on the homeland. 

I want to ask a more specific question. If an individual is sitting 

quietly at a cafe in the United States, in your legal judgment does 

the Constitution allow a U.S. citizen on U.S. soil to be killed by a 

drone? 

Attorney General HOLDER. For sitting in a cafe and having a couple of coffee? 

Senator CRUZ. If that individual is not posing an imminent and 

immediate threat of death or bodily harm, does the Constitution 

allow a drone to kill that individual? 

Attorney General HOLDER. On the basis of what you said, I do 

not think you can arrest that person. 

Senator CRUZ. The person is suspected to be a terrorist, you have 

abundant evidence he is a terrorist, he is involved in terrorist plots, 

but at the moment—— 

Attorney General HOLDER. Okay, I see—— 

Senator CRUZ [continuing]. he is not pointing a bazooka at the 

Pentagon. He is sitting in a cafe. Overseas, the U.S. Government 

uses drones to take out individuals when they are walking down 

a path or when they are sitting at a cafe. If a U.S. citizen on U.S. 

soil is not posing an immediate threat to life or bodily harm, does 

the Constitution allow a drone to kill that citizen? 

Attorney General HOLDER. I would not think that that would be 

an appropriate use of any kind of lethal force. We would deal with 

that in the way that we typically deal with a situation like that. 

We would expect—— 

Senator CRUZ. With respect, General Holder, my question was 

not about appropriateness or prosecutorial discretion. It was a simple legal question. Does the Constitution allow a U.S. citizen on 

U.S. soil who does not pose an imminent threat to be killed by the 

U.S. Government? 

Attorney General HOLDER. I do not believe that—again, you have 

to look at all of the facts. But on the facts that you have given 

me—and this is a hypothetical—I would not think that in that situation the use of a drone or lethal force would be appropriate because the possibility—— 

Senator CRUZ. General Holder, I have to tell you, I find it remarkable that in that hypothetical, which is deliberately very simple, you are unable to give a simple one-word, one-syllable answer—‘‘No.’’ I think it is unequivocal that if the U.S. Government 

were to use a drone to take the life of a U.S. citizen on U.S. soil 

and that individual did not pose an imminent threat, that that 

would be a deprivation of life without due process—— 

Attorney General HOLDER. Well, let me—maybe I have not been 

clear. I said that the use of lethal force—and I am saying drones, 

guns, or whatever else—would not be appropriate in that circumstance. 

JR45368 with DISTILLER

19 

Senator CRUZ. You keep saying ‘‘appropriate.’’ My question is not 

about propriety. My question is about whether something is constitutional or not. As Attorney General, you are the chief legal officer of the United States. Do you have a legal judgment on whether 

it would be constitutional to kill a U.S. citizen on U.S. soil in those 

circumstances? 

Attorney General HOLDER. A person who was not engaged, as 

you have described—this is the problem with hypotheticals. But 

the way in which you have described it, this person sitting at the 

cafe, not doing anything imminently, the use of lethal force would 

not be appropriate, would not be something—— 

Senator CRUZ. I find it remarkable that you still will not give an 

opinion on the constitutionality. Let me move on to the next topic 

because we have gone around and around. 

Attorney General HOLDER. Let me be clear. Translate my ‘‘appropriate’’ to ‘‘no.’’ I thought I was saying no. All right. No. 

Senator CRUZ. Well, then, I am glad. After much gymnastic, I am 

very glad to hear that it is the opinion of the Department of Justice 

that it would be unconstitutional to kill a U.S. citizen on U.S. soil 

if that individual did not pose an imminent threat. That statement 

has not been easily forthcoming. I wish you had given that statement in response to Senator Paul’s letter asking you it. And I will 

point out that this week I will be introducing legislation in the Senate to make clear that the U.S. Government cannot kill a U.S. citizen on U.S. soil absent an imminent threat. And I hope based on 

that representation that the Department will support that legislation. 

Attorney General HOLDER. Well, that is totally consistent with 

the letter that I sent to Senator Paul. I talked about 9/11 and Pearl 

Harbor. Those are the instances where I said it might possibly be 

considered, but that other than that we would use our normal law 

enforcement authorities in order to resolve situations along those 

lines and then use the normal things that you do when you try to 

decide if cops can shoot somebody. 

Senator CRUZ. General Holder, I would like to move on to a second topic, which is what many perceive is the politicized enforcement of the law at the Department of Justice. 

In 2010, Congress heard evidence that the Department of Justice 

declined to enforce voter intimidation laws against members of the 

New Black Panther Party. 

In 2011, the Department of Justice released a statement announcing that the Department would no longer defend the constitutionality of the Defense of Marriage Act, which passed with overwhelming bipartisan majorities both Houses of Congress and was 

signed into law by President Bill Clinton. 

Last year, in 2012, the Department of Homeland Security announced that it would no longer enforce our Nation’s immigration 

laws against individuals designated by the President. 

My question to you is: Are there any other laws passed by this 

Congress that the Department of Justice does not intend to enforce? 

Attorney General HOLDER. It is the tradition of the Department 

to always enforce laws where there is a reasonable basis to argue 

for the enforcement of those laws. I have sent memos or letters to 

JR45368 with DISTILLER

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the Speaker of the House—I think that is where the letters go to— 

where we have declined to support laws, enforce laws that Congress has passed for a variety of reasons. 

I will note, however, with regard to DOMA, for instance, where 

we declined to defend that statute, courts subsequently have 

agreed with us applying that standard of heightened scrutiny that, 

in fact, DOMA was unconstitutional. So it is not something that 

the Justice Department—— 

Senator CRUZ. Well, wait. There was a bit of a sleight of hand 

there. You said courts have agreed on the merits on the issue. That 

is very different from saying there is no reasonable basis to defend 

the statute, which is what you suggested was the standard. Surely 

it is not the Department’s position that every case in which the Department might lose a case it will not defend the statute. 

Attorney General HOLDER. No, no. I am saying—— 

Senator CRUZ. What process does the Department engage in to 

determine which Federal laws it will follow and which it will not? 

Attorney General HOLDER. Well, there is a presumption that we 

will apply and support any law that Congress passes. It is the rare 

instance where we make the determination that we will not. 

DOMA was one of those. We thought there was not a reasonable 

basis to defend the statute applying that heightened scrutiny 

standard. And as I said, courts have, in fact, agreed with that determination. 

Senator CRUZ. Let me very, very briefly address one other area. 

Much attention has focused on the Fast and Furious program and 

the tragic consequences of that. Was the White House involved in 

any way whatsoever in decisionmaking concerning Fast and Furious? 

Attorney General HOLDER. No. 

Senator CRUZ. Given that, last year my understanding is you asserted Executive privilege against handing over documents concerning Fast and Furious. Now, Executive privilege, the Supreme 

Court has made clear, protects communications and advice with 

the President. If the White House was not involved, Executive 

privilege does not apply to those documents. If Executive privilege 

applies to those documents, it necessarily implies that the White 

House and the President personally was involved. So which of the 

two is it, General Holder? 

Attorney General HOLDER. No, you are cutting too fine a line. 

The President, the White House, was not involved in the operational component of Fast and Furious. There were certainly interactions, conversations between the Justice Department and the 

White House about the operation after all of the operative facts 

had occurred, after all of the controversial actions had been taken. 

Then we got into the situation where we were talking about the 

congressional investigation of Fast and Furious. There were communications between the White House and the Justice Department. But nothing—— 

Senator CRUZ. Do I understand you correctly—my time has expired, so I want to just understand your response correctly. Is it 

your position that Executive privilege only applies after the details 

of Fast and Furious became public and it was with subsequent 

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21 

ble before it becoming public because, as you just said a minute 

ago, the White House was not involved in any way, shape, or form 

with Fast and Furious? 

Attorney General HOLDER. Executive privilege protects communications between the White House and the executive branch agency, and to my knowledge, there are no communications that deal 

with the operational components of Fast and Furious between the 

White House and the Justice Department. 

Senator CRUZ. So Executive privilege does not apply to them? 

Attorney General HOLDER. There is nothing there for Executive 

privilege to apply to, as best I know. 

Senator CRUZ. Thank you, General Holder. 

Senator FEINSTEIN. Thank you very much, Senator. 

Senator Whitehouse. 

Senator WHITEHOUSE. Thank you, Chairman. 

Welcome, General HOLDER. First off, thank you for the initial 

statements that the administration has made about putting the 

drone program under a more regular and ongoing separation of 

powers framework. I know that there is going to be a lot of work 

ahead of us to work out the details of that, but I think it is an important step for the administration. And thank you also for your 

work on the cyber Executive order, which I think was a vital step. 

I remain disappointed that we did not pass legislation to address 

this pressing issue before. I see Senator Graham here. He and I are 

continuing to work on supplementing the Executive order with bipartisan legislation that I think is vital for our country. 

Let me chime in on one other very brief thing. On the question 

of letters, we would love to get the response to the request for the 

record that was made last June, when you were last here, and 

which we still have no response to. I understand that it is tied up 

at OMB, but presumably your people could build the delay that 

OMB puts into these things into their calculation of when they 

need to have letters prepared for you. I know it is not a problem—— 

Attorney General HOLDER. Just to be fair, it is not only OMB. 

I mean, there is certainly probably something within the Department where we need to activate or be more responsive, but it is 

also other executive branch agencies that have equity sometimes in 

these responses. So it is not strictly OMB. Just to be fair. 

Senator WHITEHOUSE. But June of 1 year to March of another is 

a pretty long run for getting an answer. 

Attorney General HOLDER. I would agree with that. 

Senator WHITEHOUSE. We are looking forward to having a hearing on the resources of the Department and the strategy of the Department on cyber prosecutions and on the actions against botnets. 

I think the Coreflood case was particularly good. I understand that 

there have been awards given to the participants, which I commend you for. But I would have thought that Coreflood would have 

been a model for a great number of other similar sort of hygienic 

type legal efforts to clean up the botnets out of the Web, and it 

does not seem to have been pursued as a model, as a strategy. And 

to my knowledge, there has not yet been a single cyber prosecution 

brought against a hacker, like we know China is doing, that comes 

in purely through the Web, raids an American company for its inJR45368 with DISTILLER

22 

tellectual property, expropriates the intellectual property out, and 

uses it essentially as industrial espionage. 

I know there have been cases made for espionage, and they have 

sometimes involved cyber, but there has always been a tangible 

link of some kind, somebody with a CD in their pocket leaving the 

factory. 

So I think anybody who has been in the trenches understands 

how immensely complicated and resource intensive these cases are, 

and I think at a time of diminishing budgets and budget pressures, 

it is important that we focus a real light on what the resources are 

that are required to make these cases and how important they are. 

And I would like to ask you now if you would be willing to work 

with us and send appropriate DOJ officials to such a hearing. 

Attorney General HOLDER. Yes, we certainly will. I actually think 

that that interaction could be particularly useful as we try to explain the issues that we confront in bringing these cases, the resource issues that we have; but, frankly, also to hear suggestions 

that experienced prosecutors like yourself might have with regard 

to how we might better do these cases. So I think a hearing with 

that kind of interaction would be something that we will certainly 

send witnesses to. 

Senator WHITEHOUSE. I appreciate it. Similarly, we are looking 

at the enforcement of campaign finance laws. There appears to be 

a considerable discrepancy between many of the applications that 

are made to the IRS for status and then the behavior of the entity 

once it is out acting in the political world. And we would like to 

look a little bit further into that, and, again, we would like to ask 

the cooperation of the Department with a witness at a hearing to 

look into that question. 

Attorney General HOLDER. Yes, and we again would be glad to 

participate in that. We have as one of our enforcement responsibilities the campaign finance laws. There is an election crime division 

within the Public Integrity Section. This is something that we do. 

And we would be more than glad to interact with you and have a 

hearing in that regard. 

Senator WHITEHOUSE. Good. And the last thing that I will raise 

is my perennial concern that the Margolis memorandum needs to 

be retracted by the Department. It is a continuing burr under my 

saddle that we could expect of the members of the Department of 

Justice, particularly those at the Office of Legal Counsel—who are 

often the best and the brightest that the legal profession has, they 

are off a Supreme Court clerkship or they are on to a Supreme 

Court seat, and they are immensely talented people. And the notion that they do not have to meet the same standards of diligence 

and candor that a workaday lawyer does hustling into the Garrahy 

courthouse in Providence with five files under his arm is to me 

something that I am just going to continue to press on until that 

gets resolved. So I will mention that to you once again now, and 

we can continue to followup. I think I bring it up every time a person from the Department of Justice comes to see me and whenever 

candidates for confirmation come to see me, and so I wanted to 

bring it up again now. I know that it brought a resolution to a very 

unhappy period in the Department’s past, but I think it did so by 

cutting a corner that should not have been cut. And I think that 

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the standards of the Department should be higher than those for 

workaday lawyers, not lower. 

Attorney General HOLDER. Okay. 

Senator WHITEHOUSE. So thank you very much. I appreciate very 

much your service to our country. As a former member of the Department of Justice, I looked with real dismay at what was happening to it prior to your tenure, and my sources within the Department continue to express pride and enthusiasm and increasing 

morale as a result of the leadership that you have provided. So we 

are grateful to you, sir. 

Attorney General HOLDER. Well, thank you. You are very kind. 

And perhaps you and I in a different setting can have a conversation about the Margolis theory, memo, whatever, and you and I can 

have a more detailed conversation about that. To the extent that 

you have those issues, I would like to hear what they are. 

Senator WHITEHOUSE. Absolutely. 

Senator FEINSTEIN. Thank you. Thank you very much, Senator 

Whitehouse. 

Senator Flake is not here. Senator Klobuchar is not here. Senator Graham is here. 

Senator GRAHAM. Thank you, Mr. Attorney General. We have 

been talking about the war on terror ever since you have had this 

job, right? 

Attorney General HOLDER. During confirmation, yes. 

Senator GRAHAM. Absolutely. And I want to congratulate you and 

the President. I think you have thought long and hard about how 

to defend the homeland in very difficult circumstances. I want to 

applaud your efforts with the drone program. I think it has really 

helped us in Afghanistan and Pakistan. And I just believe it is a 

tactical tool that this President should be using, and I think he is 

using it responsibly. 

Now, as to the homeland, is al Qaeda actively involved in recruiting American citizens to their cause? 

Attorney General HOLDER. American citizens? I certainly know of 

efforts that al Qaeda has made to recruit American citizens. 

Senator GRAHAM. I can assure the public—and we will not disclose—that the al Qaeda organization is actively involved in seeking American citizens’ support. In every war we have had, unfortunately, American citizens have sided with the enemy. They have 

been few in number, but that does happen. Is that correct? 

Attorney General HOLDER. It does happen occasionally. 

Senator GRAHAM. As a matter of fact, we had American citizens 

helping German saboteurs who tried to blow up infrastructure in 

the United States in World War II. You are familiar with that? 

Attorney General HOLDER. Those cases were tried right down the 

hall from my office. 

Senator GRAHAM. They were tried right down the hall. So it is 

a longstanding proposition in American law that an American citizen who joins the forces of our enemies can be considered an 

enemy combatant. Do you agree with that? 

Attorney General HOLDER. Yes. 

Senator GRAHAM. So the point I am trying to make is that, hypothetically, if there are patriot missile batteries around this Capitol 

and other key Government infrastructures to protect the Capitol 

JR45368 with DISTILLER

24 

from an attack, it would be lawful for those batteries to launch. Is 

that correct? 

Attorney General HOLDER. To launch—— 

Senator GRAHAM. Against the threat. If there was intelligence 

that an airplane was coming toward the Capitol or the White 

House, it had been hijacked—— 

Attorney General HOLDER. I see. Okay. Yes. 

Senator GRAHAM. It would be okay for our military to act, would 

it not? 

Attorney General HOLDER. Yes. 

Senator GRAHAM. That would be an imminent threat. The military has legal authority under the Constitution and the Authorization to Use Military Force to strike back against al Qaeda. Is that 

correct? 

Attorney General HOLDER. Yes. 

Senator GRAHAM. Now, when we say Congress gave every administration the Authorization to Use Military Force against al Qaeda, 

we did not exempt the homeland, did we? 

Attorney General HOLDER. No, I do not think we did. 

Senator GRAHAM. Would that not be kind of crazy to exempt the 

homeland, the biggest prize for the terrorist to say for some reason 

the military cannot defend America here in an appropriate circumstance? 

Attorney General HOLDER. No, I think that is right. The question 

obviously is what forces do we use, but I think we have that authority. 

Senator GRAHAM. And I totally agree with you that the likelihood 

of capture is very high in America and that we have a lot of law 

enforcement agencies available and that we would put them out 

front. But certainly most law enforcement agencies I know of do 

not have patriot missile batteries, so that is a good example of 

where the military can provide capacity to protect the homeland 

against a terrorist act that law enforcement cannot. 

Attorney General HOLDER. Yes, and that would be the rare case, 

but in the letter that I sent to Senator Paul, that is one of the reasons why I referenced September the 11th. 

Senator GRAHAM. Let us go back in time. What would we all give 

to have those patriot missile batteries available on September 10, 

2001, in New York and Washington? It would have meant that we 

would have lost a planeload of American citizens, but we would 

have saved thousands more. That is the world in which we live. 

And I want to stand by you and the President to make sure that 

we do not criminalize the war and that the commander-in-chief 

continues to have the authority to protect us all. And I have got 

a lot of my colleagues who are well meaning, but there is only one 

commander-in-chief in our Constitution. Do you agree with that? 

Attorney General HOLDER Well, that is true, and the situation 

that you describe on September the 11th would have been—was 

among the most difficult decisions that President Bush and Vice 

President Cheney had to make to give that order. But I think it 

was appropriate. 

Senator GRAHAM. And I hope you are never put in that position, 

but I want you to know from Senator Graham’s point of view that 

you have the authority and my view from the Constitution, the AuJR45368 with DISTILLER

25 

thorization to Use Military Force to take such actions. And I know 

you will if put in that position. 

Now, about where this war is going, we are winding down Afghanistan. Do you think the al Qaeda threat is over? 

Attorney General HOLDER. No. The al Qaeda threat, as we knew 

it, I would say, traditionally, focused in Pakistan, core al Qaeda, 

has been greatly weakened, but there are nodes now of al Qaeda 

in different places—on the Arabian Peninsula, in North Africa— 

that we have to be concerned with. 

Senator GRAHAM. What would your message be to any American 

citizen thinking about collaborating with al Qaeda to attack the 

United States at home or abroad? What would you want to say to 

them? 

Attorney General HOLDER. That you do so at your risk. If you 

align yourself with al Qaeda, you are, in fact, taking arms against 

your Nation, and you then will be subject to the full weight of the 

American military. 

Senator GRAHAM. And law enforcement community as well. 

Attorney General HOLDER. And law enforcement. Whatever tools 

we have. 

Senator GRAHAM. And I want to say that I believe Article III 

courts have a robust role in the war on terror, and I also want to 

say that military commissions have their place also. Do you agree 

with that statement? 

Attorney General HOLDEr. True. 

Senator GRAHAM. All right. Now, let us turn to another topic 

where we probably will not agree. This Committee will be taking 

up legislation about banning assault weapons. Are you familiar 

with the AR–15? 

Attorney General HOLDER. I am familiar with it, yes. 

Senator GRAHAM. Just generally speaking. 

Attorney General HOLDER. Yes, I think I might have shot one at 

the FBI Academy. 

Senator GRAHAM. Right. Are you aware that over 4 million have 

been purchased by American citizens? 

Attorney General HOLDER. I know it is a very popular weapon. 

Senator GRAHAM. Okay. Any weapon can be dangerous. I will be 

the first to admit that. Can you imagine a circumstance where an 

AR–15 would be a better defense tool than, say, a double-barreled 

shotgun? 

Attorney General HOLDER. You mean in defense of the home? 

Senator GRAHAM. Let me give you an example. You have a lawless environment where you have a natural disaster or some catastrophic event, and those things, unfortunately, do happen, and law 

and order breaks down because the police cannot travel, there is 

no communication, and there are armed gangs roaming around 

neighborhoods. Can you envision a situation where, if your home 

happens to be in the crosshairs of this group, a better self-defense 

weapon may be a semiautomatic AR–15 versus a double-barreled 

shotgun? 

Attorney General HOLDER. Well, I think we are dealing there 

with a hypothetical in a world—— 

Senator GRAHAM. You do not have to agree with me. Am I unreasonable to say that I would prefer an AR–15? 

JR45368 with DISTILLER

26 

Attorney General HOLDER. Well, as I said, you are dealing with 

a hypothetical in a world that I think does not exist. That is—— 

Senator GRAHAM. Well, I am afraid that world does exist. I think 

it existed in New Orleans, to some extent up in Long Island. It 

could exist tomorrow if there is a cyber attack against the country 

and the power grid goes down and the dams are released and 

chemical plants are discharges—— 

Attorney General HOLDER. Well, I do not think New Orleans 

would have been better served by having people with AR–15s in 

the post-Katrina environment. 

Senator GRAHAM. Well, what I am saying, if my family was in 

the crosshairs of gangs that were roaming around neighborhoods in 

New Orleans or any other location, the deterrent effect of an AR– 

15 to protect my family I think is greater than a double-barreled 

shotgun. But the Vice President and I have a disagreement on 

that. 

Now, let us talk about, very quickly—— 

Chairman LEAHY [presiding]. Senator? 

Senator GRAHAM. Yes, sir? 

Chairman LEAHY. Your time—— 

Senator GRAHAM. Can I ask just one more question, sir? 

Chairman LEAHY. If we can keep it brief. 

Senator GRAHAM. I promise. 

Chairman LEAHY. We have people leaving for the vote. 

Senator GRAHAM. I know other people have got to go. There were 

76,142 people who failed a background check in 2010; 19.1 percent, 

13,862, were denied—failed the background check because they 

were a fugitive from justice. I mean literally on the run from the 

law. What happened to those cases? How many of those fugitives 

were apprehended as a result of failing a background check to buy 

a gun? 

Attorney General HOLDER. I do not know what the numbers are, 

but I can tell you that each of the cases are individually examined 

and determinations made as to whether or not prosecutions should 

be brought or whether prosecutions are possible. If you are talking 

about somebody who was a fugitive, I would agree with you, that 

is something that should perhaps be a priority prosecution. But 

that person may not be there to prosecute. 

Senator GRAHAM. I would suggest that the 76,000 people who 

failed a background check, 13,862 were fugitives from justice, only 

62 were prosecuted, and less than that number were convicted. So 

obviously we have got some work to do when it comes to the current background system. 

Thank you for your service. 

Attorney General HOLDER. Thank you. 

Chairman LEAHY. Thank you, and we will—interestingly enough, 

there have been a lot of questions about drones in the U.S. This 

Committee will be holding a hearing on domestic drones on March 

20th. 

Senator Franken. 

Senator FRANKEN. Thank you, Mr. Chairman. And I want to 

thank you, General Holder, for the Department of Justice’s action 

in the Proposition 8 case in the Supreme Court. I think it was a 

brave decision on your part and a powerful statement of the DeJR45368 with DISTILLER

27 

partment’s commitment to seek equality under the law for all people. 

In your testimony you talk about the Department’s civil suit 

against S&P, and you say—the quote is you are ‘‘seeking at least 

$5 billion in damages for alleged conduct that goes to the heart of 

the recent economic crisis.’’ And I totally agree with that. I think 

the credit rating agencies, because of the basic conflict of interest 

that is inherent in the issuer pays model, where the issuer of the 

security chooses and pays one of the Big Three, it was—Moody’s, 

S&P, and to some degree Fitch—and that the rating agencies basically gave out AAA ratings to junk because they wanted to keep 

the business. And in the DOJ case, are there not as part of the evidence emails between people at S&P saying, look, we know this is 

not deserving of AAA but we have got to give it that, stuff to that 

effect, right? 

Attorney General HOLDER. Yes, I do not want to go beyond—it 

is a pending case. I do not want to go beyond the indictment. But 

that information or those kinds of emails are contained in the indictment. 

Senator FRANKEN. Well, this is what DOJ, what the statement 

is from DOJ about the lawsuit. It says, ‘‘S&P falsely represented 

that its ratings were objective, independent, and uninfluenced by 

S&P’s relationship with investment banks, when in actuality S&P’s 

desire for increased revenue and market share led it to favor the 

interests of these banks over investors.’’ 

Attorney General HOLDER. We believe our evidence will show 

that. 

Senator FRANKEN. Okay. Now, you say that this ‘‘goes to the 

heart of the recent economic crisis.’’ Is that not because once they 

ran out of mortgages to securitize and subprime mortgages, packages of subprime mortgages to securitize, they started doing bets 

on the bets, and they gave those AAA ratings, right? 

Attorney General HOLDER. Yes, now you are getting into an area 

where I am not an expert, but when you start talking about bets 

on bets, as I understand it, that is, in fact, correct. But I am not 

an economist or a financial guy. 

Senator FRANKEN. Right, I understand that, but when you say it 

‘‘goes to the heart of the recent economic crisis,’’ what I am saying 

is that this house of cards that collapsed would have been one card 

high if they had not started giving AAA’s to derivatives. 

Attorney General HOLDER. Right. 

Senator FRANKEN. And derivatives on derivatives. 

Attorney General HOLDER. Getting away from the S&P case, because it is a pending matter, I think the assertions that you are 

making are, in fact, correct that the financial system made bets on 

bets, giving ratings to derivatives that were not necessarily deserved. And I am not talking about S&P now. 

Senator FRANKEN. Yes, I am not asking you to testify as an expert on finance. But this prosecution, it goes to the heart of why 

our economy collapsed, and what it was, was that the credit rating 

agencies had—there was a conflict of interest they had because 

they knew if they gave a AAA rating they would get more business. 

That is essentially what the case is about. 

JR45368 with DISTILLER

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Attorney General HOLDER. That is in essence the Government’s 

theory. 

Senator FRANKEN. And Senator Wicker and I, Senator Wicker of 

Mississippi and I wrote an amendment to Dodd-Frank which basically said we have to—gave the SEC the ability to address that, to 

eliminate the conflict of interest. And that passed in the Senate in 

a bipartisan way with 64 votes. It got to conference and became a 

study that said that if the SEC finds that this conflict of interest 

still exists, they will address that conflict of interest and get rid of 

it. That has happened, and I think that is absolutely crucial that 

the SEC act on that. So I wanted to just use your testimony to get 

on my little soapbox—my big soapbox there, but I think it is absolutely crucial. 

I want to ask you about an entirely different matter. Last fiscal 

year, almost 14,000 children arrived at our borders alone and subsequently entered our immigration court system. Since 2008, the 

Department of Health and Human Services has been in charge of 

making sure that these children have access to legal representation. Unfortunately, experts report that only half of these children 

are actually getting lawyers. 

My office has started to hear harrowing stories of 8-year-old kids, 

7-year-old kids, 6-year-old children going before immigration judges 

by themselves, without representation. 

Attorney General Holder, experts have suggested that the job of 

getting these kids lawyers should be transferred out of HHS and 

into the Department of Justice. I am considering this proposal 

closely. Do you support doing this? 

Attorney General HOLDER. I certainly think that we want to 

work with you in coming up with ways in which we can ensure 

that children do, in fact, have legal representation. If this is something that is better housed in the Justice Department, that is certainly something we are willing to consider. 

But I would also say that this is going to be a resource issue. We 

should not simply give this responsibility to the Justice Department without giving us additional resources. As part of the immigration reform package that we are considering, I would hope that 

this would be something that would be considered. It is inexcusable 

that young kids—and you are right, 6-, 7-year-olds, 14-year-olds— 

have immigration decisions made on their behalf, against them, 

whatever, and they are not represented by counsel. That is simply 

not who we are as a Nation. It is not the way in which we do 

things. 

Senator FRANKEN. Well, I hope our offices can work together on 

this, because you are absolutely right, it is unconscionable. Thank 

you. 

Thank you, Mr. Chairman. 

Chairman LEAHY. Thank you very much, Senator Franken. 

Senator Grassley. 

Senator GRASSLEY. Once again, thank you for coming up here. I 

want to follow up on your response to Senator Cruz, and I think 

he talked about introducing a bill. 

Do you believe that Congress has the constitutional authority to 

pass a law prohibiting the President’s ability to use drone aircraft 

JR45368 with DISTILLER

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to use lethal force against American citizens on U.S. soil? And if 

not, why not? 

Attorney General HOLDER. Do I think that Congress has the ability to pass such a bill? 

Senator GRASSLEY. No. Whether the legislation—well, yes, Congress has the constitutional authority to pass a law prohibiting the 

President’s ability to use drone aircraft to use lethal force against 

American citizens on U.S. soil? 

Attorney General HOLDER. I am not sure that such a bill would 

be constitutional. I think that might run contrary to the Article II 

powers that the President has. I would have to look, obviously, at 

the legislation, but I would have that concern. 

Senator GRASSLEY. Okay. But your basis is the why not would 

be because of Article II? 

Attorney General HOLDER. I believe so, yes. 

Senator GRASSLEY. Okay. One last question in that area. Given 

the belief that it would be constitutional to use lethal force against 

American citizens on U.S. soil in some instances, as you said, 

would that theory extend to permitting the executive branch to use 

enhanced interrogation techniques against American citizens on 

U.S. soil to avoid a catastrophic event? 

Attorney GeneralHOLDER. I do not think enhanced interrogation 

techniques, as those have been defined, should ever be used against 

anybody for any purpose. They are ineffective. They are inconsistent with how we think of ourselves as a Nation, and some of 

them are outright torture. And they do not work. 

Senator GRASSLEY. On another issue, in regard to a letter you 

wrote to Chairwoman Mikulski on the Budget Control Act and 

‘‘cutting $1.6 billion from the Department’s current funding level, 

which would have serious consequences for the communities across 

the Nation,’’ specifically the letter detailed cuts to the FBI suggesting furlough of 775 special agents, the most important asset to 

the agency’s national security and law enforcement mission. But 

the reality is, as of yesterday, the Department of Justice was advertising for over 100 job openings on USAJobs website. These jobs 

include positions such as cook supervisor, dental hygienist, law librarian. Further, the Department’s own website has over 50 attorney positions listed since January 14th. A memorandum was being 

issued by OMB instructing agencies. So I am skeptical about your 

description of ‘‘severe negative impacts on the Department, including the estimated loss of Federal agents fighting national security.’’ 

Further, your letter to the Chairwoman failed to discuss cuts to 

conference expenditures, which more than doubled between 2008 

and 2010. It also failed to discuss reductions in travel or other nonmission expenditures. 

I am leading up to what has a high priority when it comes to sequester. How do you reconcile for the American people then the 

fact that the Department is actively recruiting for hundreds of positions, including cooks and dental hygienists, but yet you threaten 

to furlough 775 FBI agents working on violent crime and national 

security? 

Attorney General HOLDER. That is a good question. We are going 

to certainly have to, if the sequestration stays in effect, we are 

going to have to furlough FBI agents. What I have told the people 

JR45368 with DISTILLER

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in the Department is that hiring has to stop. It does not mean, 

however, that we should stop the process of going through the 

interviews and all of that so that when the sequestration is over, 

when funds are returned to us, we have an ability to fill gaps that 

we will necessarily have just through attrition. So we want to be 

in a position on the other end of sequestration to have people in 

line to take positions that might be available, but there will not be 

anybody brought into the Department of Justice while sequestration is in effect. I made that clear to all the heads of the components. So you can do the interviews and all of that stuff and maybe 

have a person that you want to put in place once we are on the 

other side of sequestration. 

Senator GRASSLEY. Well, how does your direction to the Chairwoman comply with OMB’s memo tasking agencies to minimize 

cuts to agency mission, life, safety, and health concerns? 

Attorney General HOLDER. All we are talking about is just interviewing people and making sure that these are potentially people 

who we might want to hire. The costs for that are minimal. 

Senator GRASSLEY. Well, how about cutting the 700 or so FBI 

agents? How does that comport with the memo of OMB on minimizing cuts to agency mission, life, safety, and health concerns? 

Attorney General HOLDER. Well, we have only a certain amount 

of flexibility in the way in which the sequester is structured. You 

look at the various components within the Department, and there 

is little or nothing that I can do with regard to, for instance, what 

the FBI has got to take in terms of a cut, what the DEA has to 

take in terms of a cut. And the resources that we have, the money 

in the Department of Justice is in our people. We do not have airplanes. We do not fly—or huge amounts of planes. We do not have 

planes like the Defense Department. So when it comes to reducing 

costs, all I can do is basically furlough people and then do things 

on the other side with regard to, as you mentioned, conferences and 

things of that nature. But the main way that we have to reduce 

cost is with regard to furloughing our people, which will have a 

negative impact on our ability to do the job the American people 

expect us to do. 

Senator GRASSLEY. In my letter last week, I noted that the January OMB memo requested sequester proposals from the Department, and I asked you for a copy of these passbacks. Would you 

provide these draft proposals to the Committee so that we can review what cuts the Department requested and what OMB recognized? And if you cannot give it to us, why would you not give it 

to us? 

Attorney General HOLDER. I am not sure I understand what your 

question is. The—— 

Senator GRASSLEY. Well, you know, OMB sends you recommendations and then you send back what you are going to do. 

I want those documents so I can compare what you recommended 

to what OMB said should have a higher priority. 

Attorney General HOLDER. I am not sure what position the—— 

Senator GRASSLEY. They are called ‘‘passbacks.’’ 

Attorney General HOLDER. Yes, I am not sure what the administration position has been on that, but I would think that draft 

OMB correspondence between an agency and OMB about decisional 

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matters would be the kinds of material that we would seek to protect. 

Senator GRASSLEY. Let me end, because my time is up, with just 

a statement, that I heard in an interview that you said for the people that voted for the contempt effort against you that you did not 

have respect for people like that. I want you to know that I am extremely disappointed. I voted for you based on the fact that—giving 

you the benefit of the doubt and disregarding previous controversies. It seems to me that your recent comments suggest a level of 

partisanship and disregard for those with whom you disagree that 

is quick shocking. And I do not think you should have said it, and 

I think you owe the people an apology. 

Thank you. 

Attorney General HOLDER. Well, let me just say that what I do 

not respect was the process. It was an effort that had a predetermined result. Whatever we did in good faith was met by, I think, 

political determinations, and that is a process that I do not respect, 

to be honest with you. And the people who pushed it are people 

who, as I said before—I will stand by that. The people who pushed 

that I do not respect because I do not think it was consistent with 

the way in which other Cabinet members who had similar kinds 

of issues with Congress were treated. When the gun lobby decided 

to score that vote, then it was clear how the vote was going to turn 

out. And it became something other than what it was portrayed to 

be, and that is a process that I simply do not respect. 

Senator GRASSLEY. The House probably would not have even 

taken it up if you had answered the questions and given me the 

documents I wanted. 

Attorney General HOLDER. Well, history has shown us that in 

the past there had been a much greater period of time for those 

kinds of negotiations to occur. If you look at what happened with 

Harriet Miers and other people, Josh Bolten, as opposed to what 

happened to Eric Holder, you will see the period with which we 

were given to try to respond to and negotiate was much, much 

shorter. There was a desire to get to a certain point, and they got 

there. 

Chairman LEAHY. Well, as Chairman, I might say I agree with 

your answer. 

Senator Klobuchar. 

Senator KLOBUCHAR. Thank you very much, Mr. Chairman. 

Thank you, Attorney General Holder, for being here once again. 

I think I told you the other day that Senator Lee and I are heading 

up the Antitrust Subcommittee, and we are holding a hearing on 

the American Airlines-USAir merger. I know you cannot talk about 

the details of that as it is in the Justice Department right now. But 

I am just wondering your views on—we have talked about some of 

the areas where we will see more potential action in antitrust, 

whether it is transportation, whether it is in the health care industry, whether it is with communications, where there has always 

been a lot of action in that area, and just what direction do you 

see the Department taking with antitrust. 

Attorney General HOLDER. Well, I think you have actually hit 

many of the areas that I think are going to be a focus for us: communications, without talking about anything specific, we have cerJR45368 with DISTILLER

32 

tainly spent time and I think we will have to continue spending 

time with regard to airline mergers; health care—all things that 

impact the American consumers. 

What we have tried to do in the Antitrust Division is to focus our 

efforts in such a way that we benefit the American people with regard to lower prices, more competition, and wherever we find—in 

the agricultural field, for instance, wherever we find instances that 

there is collusion or inappropriate activity being taken that will 

have a negative impact on the American consumer, we will be 

there. 

Senator KLOBUCHAR. Very good. Well, I look forward to that 

hearing. 

The second thing I was going to talk to you about, which we also 

discussed, was the issue of metal theft, and this is something that 

not everyone—it is not on the tip of their tongue, but I have seen 

increases in this all over my State. Senator Hoeven and I just met 

at an electric company in Moorhead, Minnesota, about this. Senator Graham and I have a bill, along with Senators Schumer and 

Hoeven, to up some of the penalties when copper and other metals 

are stolen from critical infrastructure. We are seeing nearly $1 billion in damage a year in costs for our country. 

The most striking example was just this past year, 200 Bronze 

Stars were stolen from a grave in Isanti County, Minnesota, from 

the graves of veterans. And people are getting very desperate to 

steal this metal. Electric companies have been broken into ten 

times in Icerick and St. Paul that experienced hundreds of thousands of dollars of damage simply by having one pipe stolen, and 

one of the fears is that it is actually dangerous because homes have 

blown up, people have died, because taking one pipe that may be 

only worth a couple thousand dollars can do millions of dollars in 

damage. And I just wanted you to comment on that. 

Attorney General HOLDER. Yes, as I said to you in the call that 

we had, this is something that had not really entered my consciousness. I have actually had a chance to talk to at least a couple of 

people in the Department who indicated that what you said was, 

in fact, true, that this is a growing problem, and it is one that I 

think we need to devote resources to, attention to. 

Again, this was not something that I was, frankly, aware of, but 

given the nature of what people have told me within the Department, which is the potential harm not only in the theft of material 

but, as you were saying, the problems that the theft actually precipitates—houses blowing up, gas lines being ruptured. It is a new 

problem that we are going to have to focus on. 

Senator KLOBUCHAR. Just briefly on this, I just wanted you to 

know that I am continuing to work on drug courts. Fellow Minnesotan, former Congressman Jim Ramstad talked about this in 

the last Congress, about how drug courts have transformed the 

way we handle criminal cases. They are incredibly important. As 

a prosecutor, I know you cared about this. We had a really groundbreaking court and have one in Hennepin. And I was pleased to see 

that Federal courts are beginning to embrace drug courts for lowlevel, nonviolent offenders. The New York Times had a story last 

weekend about Federal judges instituting drug court programs in 

JR45368 with DISTILLER

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California, Connecticut, Illinois, New Hampshire, Virginia, and 

Washington. If you want to just comment briefly on that. 

Attorney General HOLDER. I think that we have to try to use 

drug courts to a greater extent than we do. I think that they have 

generally proven to be successful. What we want to try to do is to 

use the criminal justice system in an appropriate way. Sometimes 

people have to go to jail. A great number of people, though, simply 

need to kick their habit. And if we can use the criminal justice— 

the penalties of the criminal justice system as a hammer to keep 

that over people’s heads to force them into and keep them in treatment, we have seen really amazing success rates and a much lower 

recidivism rate, and that I think is the key. So it ultimately saves 

us money over the long haul, reduces the crime rate, and is something that I think is worthy of greater support. 

Senator KLOBUCHAR. In our State, we have one of the lower incarceration rates in the country, and we use a lot of drug courts, 

and we also have for our metro area one of the lower crime rates. 

And so I think it is really important, and I hope that you will support and the administration will support continued funding. We are 

always having the issues in Congress, but we do have bipartisan 

for it. 

The last thing—— 

Attorney General HOLDER. That is really one of those areas 

where we have to understand that whatever we invest up front we 

are going to reap more money in savings down the road. It is clear, 

the scientific evidence is clear. 

Senator KLOBUCHAR. Exactly. And the last thing I wanted to 

mention is you and I were both in Selma, Alabama, last weekend 

for that incredible weekend, and part of the weekend, of course, 

was the white police chief in Montgomery handing over his badge 

to Congressman Lewis, saying that he apologized for what had 

happened 48 years ago, that the police department had not adequately protected Congressman Lewis or those marchers. You gave 

a beautiful speech on Sunday, and I wanted to just follow up with 

some questions about that. 

We know the Supreme Court recently heard the Voting Rights 

Act case. Can you talk about the implication of a Court decision for 

voting rights? 

Attorney General HOLDER. Yes, I mean, I cannot comment too 

much. It is a pending case. But I will say that, you know, the 

United States is—we are in a different place. The South is a different place. And yet the need for Section 5 is still evident. 

If you look at the cases that we brought in the last 18 months 

or 2 years or so, in Texas, South Carolina, Florida, the ability to 

preclear things that those States wanted to do, the findings made 

by the three-judge panels that supported the Justice Department’s 

position is all an indication that, given all the progress that we 

have made, problems persist and that Section 5, which is a critical, 

critical part of the Voting Rights Act, should remain a tool that we 

have the ability to use. 

Senator KLOBUCHAR. Also, just to note, I am reintroducing the 

same-day registration bill. You know, we have that in Minnesota, 

and we have been able to have elections with the highest, if not 

one of the highest voter turnouts in the country repeatedly. And I 

JR45368 with DISTILLER

34 

do not know if you have looked at that as a long-term solution to 

some of these issues with voting rights. 

Attorney General HOLDER. I do think that is right. We need to 

try to expand the number of people who participate in voting, make 

it as easy as we can, being mindful of the potential for fraud, but 

to come up with ways in which—is it same-day, registration, portable registration, expanding the number of days on which people 

can cast ballots? That is the thing that defines this Nation, our 

ability to vote, our ability to shape the Congress that represents us, 

on the State level as well. That is how people decide the future of 

our Nation and efforts to restrict the vote have to be fought, efforts 

to expand the vote, the ability of people to vote have to be supported. 

Senator KLOBUCHAR. Thank you very much, Attorney General. 

Thank you for your good work. 

Attorney General HOLDER. Thank you. 

Chairman LEAHY. Thank you. 

Senator Lee. 

Senator LEE. Thank you, Mr. Chairman, and thanks, General 

Holder, for joining us. 

Last month, I joined a bipartisan group of Senators in sending 

a letter to your Department asking for any and all memoranda that 

you might have that seek to provide legal justification or a legal 

framework for making decisions regarding the targeted killing of 

American citizens using drones. 

The letter noted that senior intelligence officials have indicated 

that your Department’s Office of Legal Counsel had prepared some 

written but non-public legal opinions that articulate the basis for 

that authority. And notwithstanding that request, neither I nor 

other members of this Committee have received the OLC memoranda. 

Now, somebody indicated earlier during this meeting that they 

thought that that memo, that the OLC memo, might have been 

leaked. It is not my understanding that that has been. What has 

been leaked is something that has been released by NBC News— 

I know that only because it carries a heavy NBC News watermark 

on it—as a Department of Justice white paper on the issue, which 

appears to provide a narrower, perhaps more condensed legal analysis than what is available in the DOJ Office of Legal Counsel 

memoranda. 

So I want to turn back to the white paper in a minute, but first 

on the OLC memoranda, do we not you think that this Committee 

has an important oversight role over the Department of Justice’s 

role in this analysis? 

Attorney General HOLDER. Yes, I do, and I heard the Committee 

express the desire to see these memoranda, and I want to be careful here, but I will be bringing that to the attention of the appropriate people within the administration. I am not unsympathetic to 

what you are saying. 

Senator LEE. Okay. You are the Attorney General, and I assume 

that they will respect what their boss has to say. Are you saying 

that you will make that available to us as Members of the Judiciary Committee? 

JR45368 with DISTILLER

35 

Attorney General HOLDER. What I am saying is I will bring that 

desire and my view to those who are in a position to make those 

kinds of determinations. I am only one of those people. 

Senator LEE. Right. I understand. I understand you do have clients within the Government and you have to consult with them. 

Attorney General HOLDER. Right. 

Senator LEE. I would strongly urge you to make that pitch quickly and as forcefully as you can. I think that is important for us to 

review that as Members of the Judiciary Committee, which has 

oversight over your Department. 

One of the reasons why I think that is so important is that, as 

I have reviewed this Department of Justice Office of Legal Counsel—actually, we are not sure where exactly within the Department this memorandum came from, but the white paper, as I review that, it actually raises more questions in my mind than it answers. 

The gist of this white paper, as I see it, says that the U.S. Government may, in fact, target and kill American citizens using 

drones where there is an imminent threat, an imminent threat of 

a national security sort to the United States, its citizens, its installations and so forth. 

Now, that is a fairly familiar standard. It is a somewhat familiar 

standard in the law, and yet as you read on in this white paper, 

it becomes apparent to me that the definition of ‘‘imminence’’ used 

in this paper is different than almost any other definition I have 

seen. 

In fact, on page 7 of the white paper, the white paper goes so 

far as to suggest that imminence does not really need to involve 

anything imminent. Specifically, it says that this condition, that of 

imminence, that an operational leader present an imminent threat 

of violent attack against the United States does not require the 

United States to have clear evidence that a specific attack on U.S. 

persons and interests will take place in the immediate future. 

So I have to ask, Mr. Attorney General, what does ‘‘imminence’’ 

mean if it does not have to involve something immediate? 

Attorney General HOLDER. Yes, I think part of the problem is 

what you talked about in the previous question. I think that white 

paper becomes more clear if it can be read in conjunction with the 

underlying OLC advice. In the speech that I gave at Northwestern, 

I talked about imminent threat, and I said that it incorporated 

three factors: a relative window of opportunity to attack, the possible harm that missing the window would cause to civilians, and, 

third, the likelihood of heading off all future disastrous attacks 

against the United States. So that is a part of it. 

But I do think, and without taking a position one way or the 

other, it is one of the strongest reasons why the sharing of the 

opinions, the advice, the OLC advice with this Committee makes 

sense. 

Senator LEE. Because you can understand my concern here. As 

a lawyer who really knows a lot about these things, you understand how that standard, if that were the standard, could be manipulated, would give Americans a lot of pause. So another reason 

for me to strongly encourage you to make that available to us. 

JR45368 with DISTILLER

36 

There are other aspects of the white paper that also trigger this 

concern, and I would like to ask you about those as well to find out 

whether your response to that is the same. The white paper notes 

that the President must find—in order for a drone attack on a U.S. 

citizen to occur, that the President must make a finding that capture of the individual is not feasible. But then the white paper goes 

on to state that capture is by operation of the memo’s analysis not 

feasible if it could not be physical effectuated during the relevant 

window of opportunity. 

Now, the paper makes no definition, makes no attempt to define 

what the ‘‘relevant window of opportunity’’ is, meaning, I suppose, 

that it is whatever the President decides that it is. And you understand how that could be cause for concern? And is that not fraught 

with opportunities for manipulation? 

Attorney General HOLDER. Well, I think there is a certain degree 

of objectivity there in the sense that people become potentially 

capturable in overseas venues at certain times, and they become— 

that window of opportunity ceases to exist when perhaps they move 

or we lose track of them. So that I tend to understand. 

Senator LEE. Okay. So do I understand you saying that the Office of Legal Counsel memorandum, which we have not had the opportunity to review, would also provide further clarification on this 

point and would answer some of the questions we have about the 

vagueness or the overbreadth of that standard? 

Attorney General HOLDER. That one I am not sure. I am just not 

sure. 

Senator LEE. Okay. Let me just ask one other question, another 

unrelated point. In the last few months, Members of your Department, including Assistant Attorney General Perez and yourself, 

have stated that the Department of Justice is considering certain 

reforms to the voter registration system. For example, Assistant 

Attorney General Perez stated that it should be the Government’s 

responsibility to automatically register citizens to vote by compiling 

from data bases that already exist a list of all eligible residents in 

each jurisdiction. 

These statements and others like them can be read to suggest 

that there might be an increased role for the Federal Government 

to play in voter registration. Now, voter registration, as you know, 

is something that has historically been carried out exclusively by 

the States, and so that raises some federalism-related concerns 

with regard to the States’ traditional role in running elections and 

in managing voter registration. 

So is it the Department’s view that it has current statutory authority to promulgate regulations that would centralize voter registration in the Federal Government or otherwise increase the Federal Government’s role in voter registration? 

Attorney General HOLDER. I would not say centralize. You might 

think of the Department of Justice or the Federal Government trying to incentivize States to come up with mechanisms so that they 

would themselves come up with the thing that Tom had described. 

This is something that is a primary responsibility of the States, but 

I think the Federal Government can help the States in the carrying 

out of that responsibility. 

JR45368 with DISTILLER

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Senator LEE. And you would agree that the Federal Government 

lacks existing statutory authority to centralize voter registration? 

Attorney General HOLDER. To centralize it, yes. On the other 

hand, there are statutes that allow the Federal Government to become involved in the election processes that are normally carried 

out by the States. 

Senator LEE. Thank you, Attorney General, and thank you, Mr. 

Chairman. 

Chairman LEAHY. Thank you. 

Senator Coons. 

Senator COONS. Thank you, Chairman Leahy, and thank you, 

Mr. Attorney General. Great to be with you again. 

Let me just start with one question that has been fairly uniform 

across this entire Committee today, from Chairman Leahy to Senator Lee, who was just asking about it, just about the targeted killing question. I share the frustration and concern expressed by 

many other Senators about transparency on targeted killings, and 

I have just one specific question on that, if I might, before we turn 

to other topics. 

Would you, as we go forward, support any form of judicial review 

in this context, including the limited sort that we have in FISA? 

Do you think that would move this forward? 

Attorney General HOLDER. I think that is something that is worthy of conversation, consideration. I would want to make sure that 

the inclusion of a court did not, for instance, have some kind of an 

inhibiting impact in the operations. But I think as John Brennan 

testified during his confirmation hearing that that is something 

worthy of consideration, something that we ought to think about 

potentially making a part of the decisionmaking process. 

Senator COONS. Thank you. I look forward to working with you 

on that. You can hear almost unanimous concern about transparency and wrestling with how to move forward here in a way 

that protects both our constitutional liberties and our security as 

a Nation. 

We just spent a great weekend together, in part in Selma. It was 

wonderful to meet your wife, Dr. Sharon Malone, and to hear in 

Tuscaloosa her family’s role in an important piece of American history. And as we sit wondering what will happen to Section 5 of the 

Voting Rights Act, I am also concerned about Section 5 of the National Voter Registration Act, the so-called motor-voter act, something that is not currently under review. 

I am hoping that the Department is going to take up its enforcement obligation here more actively. My sense is that there has 

been very few enforcement actions on motor-voter, and it is something that could, I think, make a positive contribution to registration and to voter participation. 

Is the reason that there really has not been an active DOJ enforcement trajectory on motor-voter a resource issue? We have 

heard from you about sequester and other constraints. Or are there 

things that we need to be doing to ensure that this critical piece 

of the architecture of voting rights in this country is used more actively? 

Attorney General HOLDER. Well, we have taken certain actions. 

We have filed statewide lawsuits against Rhode Island, as well as 

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Louisiana. There is something going on in Florida. These are matters that I am not sure that we are underenforcing it. I am sure 

you hear this from all of the agencies that appear before you—we 

could use more when it comes to resources. It is a vital tool to increase the number of eligible citizens who can vote, to make sure 

that registration rolls are accurate in Federal elections. This is 

something that we want to be more involved in, and I think one 

of the things, if I talk to Tom Perez in the Civil Rights Division, 

my guess would be he is going to tell me, ‘‘We would like to do 

more, Eric, but I need more people.’’ I think that is probably what 

he would say. 

Senator COONS. Well, we would certainly be happy to have that 

conversation given the critical importance of voting. And as you 

have discussed with other Members of this panel today, should 

there be a change in the status of the Voting Rights Act, Section 

5 in particular, I would love to work with you on whether there is 

room going forward for expedited proceedings or for special ways 

to make sure that voting cases still get heard and some either reauthorization or strengthening or replacement for the Voting 

Rights Act. 

Let us talk, if we can, about another area where I think resources is a critical issue, and there may be a solution. In intellectual property—I come out of manufacturing—manufacturing relies 

on trade secret protection as much as on patenting for critical steps 

in manufacturing, and there has been just a barrage of assaults 

and theft of American intellectual property. A firm called Mandiant 

recently released a report documenting just widespread—and you 

have spoken to this—theft of American intellectual property. But 

the number of prosecutions by DOJ around trade secrets has been 

very light, and I understand the limitations of resources. 

Would a private right of action, a Federal private right of action 

help accelerate perhaps some of the assertion of rights and the 

ability to pursue justice on behalf of American manufacturers and 

inventors? 

Attorney General HOLDER. I think that is certainly something we 

should talk about, we should discuss. My instincts take me in a direction I think where you are, that perhaps that is something that 

we should do. What I would like to do is maybe work with you, 

have the appropriate people from the Department sit down and 

meet, perhaps with your staff, and talk about that possibility. But 

I do think that the theft of intellectual property, trade secrets has 

a devastating impact on our economy, threatens our national security, and is worthy of our attention. 

This is a problem that is large but is getting larger and is something—as you look over the horizon, this is an area where we are 

going to have to devote more attention as a Nation. 

Senator COONS. I am glad to hear you say that because I think 

all of us are on notice that there is probably the single greatest 

widespread theft in human history going on at the moment, and it 

really does have a negative and cumulative impact. 

Let me point to a few programs that I think have significant 

positive impact and with a modest investment of Federal resources 

have a very positive impact on public safety. We were supposed to 

be having a session of the Senate Law Enforcement Caucus today 

JR45368 with DISTILLER

39 

to hear testimony from Kentucky and Delaware about the Justice 

Reinvestment Initiative. We flew some people in. Unfortunately, 

the inclement weather has led to its cancellation. I look forward to 

another session. But it is a place where bipartisan bills at the State 

level have led with Federal partnership to sort of critical catalytic 

investments in improving criminal justice systems. 

The Bulletproof Vest Partnership is something I value highly. I 

had a police officer from Dover, Delaware, here a number of 

months ago who was shot twice at close range in the chest and survived. Two officers in the New Castle County courthouse in the 

county where I used to serve, their lives were saved very recently 

by bulletproof vests. We should be reauthorizing this program, and 

I look forward to working with you on that. 

The last question, if I could, in the same vein. The Victims of 

Child Abuse Act and the Child Advocacy Centers that it funds that 

you are familiar with I think are an enormous resource for law enforcement and to prevent the revictimization by children who have 

been traumatized by allowing them to be interviewed once in a way 

that is admissible as evidence, in a way that is appropriate, and 

that has all the relevant folks there and present. And the one I visited at A.I. Children’s Hospital in New Castle County, while the 

circumstances that lead to these interviews are tragic, the resource 

for our community and our law enforcement community is terrific. 

I was surprised that it was zeroed out last year, and I am hoping 

that I could rely on your support for restoring funding to this small 

but cumulatively powerful program in the Fiscal Year 2012 budget. 

Any thoughts on the future of Child Advocacy Centers? 

Attorney General HOLDER. Well, I was one of the people who 

started the Children’s Advocacy Center here in Washington, DC. I 

know the positive impact it has on child victims of crime. The decision to eliminate this funding was a difficult one. Deficit issues, restoring fiscal sustainability were all a consideration. 

The Office of Justice Programs, as I have talked to them after 

I spoke to you, has come up with ways in which they think they 

can prioritize some grantmaking and training to help in that regard. But I think that as we look at the budget for the next year, 

given what we get from the Advocacy Centers and the relatively 

small amount that is involved, this has to be a part of the next 

budget. I am not satisfied with where we are now with regard to 

the present budget. I think that was a mistake. 

Senator COONS. Well, thank you, Mr. Attorney General. I certainly look forward to working with you. As a member of the Budget Committee, I think all of us here recognize that we have forced 

far too many of the cuts we have made in the last 2 years just in 

the narrow area of domestic discretionary, and it is having significant negative impact on things like criminal justice, strengthening 

our communities, investment in infrastructure, R&D, and education, and I look forward to finding a broader solution, and I am 

really grateful for your service. 

Thank you. 

Attorney General HOLDER. Thank you. 

Senator COONS [presiding]. Senator Grassley. 

Senator GRASSLEY. I have had my round. I would like to ask one 

more question on a second round. 

JR45368 with DISTILLER

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Senator COONS. Senator Blumenthal. 

Senator BLUMENTHAL. Thank you. 

Good morning, Attorney General Holder. Thank you for being 

here. Thank you for your leadership of the Department of Justice 

in areas that are so important—voting rights, DOMA, and other 

areas that are critical to the future of justice in this country. And 

I want to thank both you and the President for your leadership on 

gun violence prevention and particularly his and your personal 

commitment to the people of Newtown, who are still grieving and 

hurting, and your personal involvement in trying to ease those continuing traumas that still affect them as recently as yesterday in 

our telephone conversation. And I want to focus for the moment on 

gun violence prevention. 

As a law enforcement professional, not just as Attorney General 

but one who has been a judge and a prosecutor, this whole idea of 

better enforcement of existing laws is one that we both agree ought 

to be the goal, and it always is for any prosecutor. And yet enforcement of some of these laws is impeded by gaps in those laws, such 

as the absence of background checks on firearms, which now enable 

about 40 percent of all firearms purchases to go without any check 

whatsoever. You would agree with that, wouldn’t you? 

Attorney General HOLDER. Yes. There are loopholes, as we have 

come to describe them, that make the enforcement of existing laws 

extremely difficult and render those existing laws not nearly as effective as they might otherwise be. 

Senator BLUMENTHAL. And those laws now prohibit purchases of 

firearms by categories of people—convicted felons, fugitives, drug 

addicts and abusers, and domestic violence abusers—purchases of 

firearms and ammunition. Both firearms and ammunition. Right 

now there are no background checks as to purchases of ammunition, none whatsoever. And as a matter of common sense as well 

as law enforcement professionalism, I think you would agree that 

those laws are better enforced with background checks as to ammunition purchases. Would you agree? 

Attorney General HOLDER. Yes, I think that I would like to discuss this with you some more. One of the concerns I have is a resource concern. I think that theoretically what you are talking 

about makes a lot of sense—not even theoretically. I do not mean 

to diminish it because it is more than theoretical. I think that 

would have a very real positive impact. My only concern is the 

NICS system, I worry about it potentially being overburdened and 

making sure that we would have the resources to do that. 

Senator BLUMENTHAL. And just by way of background, you know, 

I have asked two of the U.S. Attorneys who have been active and 

aggressive enforcers of these laws—U.S. Attorney Heaphy, for example—whether these laws can be enforced effectively without 

background checks on ammunition, and to quote both of us, ‘‘Without a background check now, do you have any effective way of enforcing that law, the prohibition on ammunition purchases? ’’ His 

answer: ‘‘No.’’ 

So when you are asked by my colleagues, ‘‘Why are you not you 

more aggressively enforcing these laws? Why do we not we have 

more prosecutions? ’’ the very simple answer is that there is no real 

JR45368 with DISTILLER

41 

way to enforce these bans on ammunition purchases or firearms 

purchases unless there are background checks. 

And I understand and recognize and sympathize with your point 

about resources, but if we are serious about these gun violence prevention laws that keep ammunition and firearms out of the hands 

of criminals, we need to strengthen and bolster that NICS system 

so that we make these laws something more than just a charade 

and a feel-good set of words on a statute. 

Attorney General HOLDER. You are absolutely right, Senator, and 

that is actually part of the comprehensive plan that the President, 

the administration has proposed to devote more resources to make 

greater use of the NICS system and to expand—to make more resources available so that it can be used in a way to support existing laws, because those people who constantly say you have got to 

enforce the laws do not necessarily always give us the tools to enforce those very laws. 

Senator BLUMENTHAL. Exactly. And I want to again thank you 

and the President for that commitment on resources, and also say 

that as the major proponent of the background check provision for 

ammunition, I am looking for ways to modify this proposal so as 

to perhaps make it voluntary and give licensed dealers the access 

that they need to the system. As you know, right now they are 

barred from checking. They see somebody come in, a potential 

Adam Lanza, who is buying hundreds of rounds of .233-caliber ammunition, they have no way of checking whether he is a drug 

abuser, a domestic abuser, a convicted felon, a fugitive, anyone in 

those prohibited categories. They simply are at a loss for basic information to try to protect the public. The best intentions cannot 

help them help you enforce the law. 

So I am hoping that we can work together on this provision. I 

repeat, I am sympathetic to the resource issue. If it were my say 

alone, those resources would be available right now. And if you—— 

Attorney General HOLDER. Let us see if we can work something 

out then, so that you have that ability. 

Senator BLUMENTHAL. Thank you. Let me move to another subject, and I really appreciate your answers on that one. 

On wrongful foreclosures, among particularly military mortgage 

holders, there have been recent reports, most recently just a few 

days ago in The New York Times, 700 members of the military had 

homes seized, and other borrowers who were current on their mortgage payments, also homes seized—those improper evictions dwarfing the numbers that were previously known. A sign of a larger 

problem, a sign that the recent settlement may have been based on 

incorrect, perhaps untruthful information, in my view more than 

ample basis for an investigation by the Department of Justice 

under either the RICO statute or wrongful, improper statements 

under Federal law punishable criminally. 

I would like your commitment, again, to work with me and others here on the possibility of an investigation based on those disclosures that undermine the good faith and fairness of that settlement 

and the Government’s involvement in it. 

Attorney General HOLDER. I will make that commitment. When 

we look at what I saw there with regard to servicemembers, I did 

a tape, I think last week, for something that is for veterans to 

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make them aware of fraud, more basic fraud that they face that too 

often goes unreported by them for a whole variety of reasons, to try 

to encourage them to share information up the chain of command 

and also to make sure that there is a mechanism so that from the 

Defense Department to the Justice Department we are made aware 

of trends that might exist along the lines of the ones that you are 

describing, and then we will become involved. So I will work with 

you on that. 

Senator BLUMENTHAL. Thank you. 

And one final area that I think is and should be of interest to 

you. Sexual assault in the military is prosecuted and punished 

under its own system, and yet it is a predatory, criminal act that, 

in my view, should be punished with a severity and aggressiveness 

that is lacking right now. And as a member of the Armed Services 

Committee, I am seeking to help increase the completeness and 

fairness of this system to protect men and women from sexual assault, sometimes the most severe sexual assault imaginable. And 

you have resources, a perspective personally as a prosecutor, obviously the best prosecutors and investigative agency in the whole 

country, and I would again respectfully ask for your commitment 

that you will help us on the Armed Services Committee with your 

expertise and your commitment to fairness and aggressive prosecution of these laws. 

Attorney General HOLDER. Yes, but those are primarily the responsibility of the Defense Department. 

Senator BLUMENTHAL. Right. 

Attorney General HOLDER. Secretary Panetta certainly focused 

attention on that. I expect that Secretary Hagel will as well. But 

to the extent that we at the Justice Department can help in that 

effort, we want to do all that we can. 

You know, I think about the young people who put their lives on 

the line in service to our Nation, young women in particular, and 

look at the numbers that you see repeatedly year after year, and 

that is an extremely disturbing thing to think that you volunteer 

for your Nation, and as a result of that, you become the victim of 

a sexual assault, and that is simply not acceptable. 

Senator BLUMENTHAL. And I want to make clear that my asking 

for your assistance is not to in any way disparage or denigrate the 

good faith and efforts of Secretary Hagel and the Joint Chiefs and 

all of the military leadership to making this system work better. 

They are, in my view, thoroughly committed to that goal. 

Thank you. 

Attorney General HOLDER. Thank you. 

Chairman LEAHY [presiding]. Thank you. I would note, too, it has 

been my experience since he has been Attorney General, that anytime I have called Attorney General Holder on any issue, we have 

been able to contact him almost immediately, and I do appreciate 

that. I appreciate the Senators who have come here today. I realize 

we are under a horrendous snow condition. I think it is up to half 

an inch now. 

[Laughter.] 

Chairman LEAHY. I commented to somebody that, of course, Senator Klobuchar, coming from Minnesota, and Senator Blumenthal 

and Senator Grassley know what real snow is. I heard a weather 

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report at home where they said we had—and some will remember 

this—the weather report was we expected a dusting of snow, no 

more than 5 or 6 inches, and then, ‘‘In other news today. . .’’ Of 

course, 5 or 6 inches down here, they would be interrupting a Presidential press conference. 

Senator Grassley said he had one more question, and then we 

will wrap up. 

Senator GRASSLEY. This will not take 7 minutes. And I did not 

run over 7 minutes like we have had several people here run over 

3 minutes. 

On the issue of bank prosecution, I am concerned that we have 

a mentality of ‘‘too big to jail’’ in the financial sector of spreading 

from fraud case to terrorist financing and money-laundering cases, 

and I cite HSBC. So I think we are on a slippery slope. So then 

that is background for this question. 

I do not have a recollection of DOJ prosecuting any high-profile 

financial criminal convictions in either companies or individuals. 

Assistant Attorney General Breuer said that one reason why DOJ 

has not brought these prosecutions is that it reaches out to ‘‘experts’’ to see what effect the prosecutions would have on the financial markets. 

So then on January 29th, Senator Brown and I requested details 

on who these so-called experts are. So far we have not received any 

information. Maybe you are going to, but why have we not yet been 

provided the names of the experts that DOJ consults as we requested on January 29th? Because we need to find out why we are 

not having these high-profile cases. And I have got one follow-up. 

Maybe you can answer that quickly. 

Attorney General HOLDER. We will endeavor to answer your letter, Senator. We did not, as I understand it, retain experts outside 

of the Government in making determinations with regard to HSBC. 

If we could just put that aside for a minute, though, the concern 

that you have raised is one that I, frankly, share. And I am not 

talking about HSBC now because maybe that might not be appropriate. But I am concerned that the size of some of these institutions becomes so large that it does become difficult for us to prosecute them when we are hit with indications that if you do prosecute, if you do bring a criminal charge, it will have a negative impact on the national economy, perhaps even the world economy, 

and I think that is a function of the fact that some of these institutions have become too large. Again, I am not talking about HSBC. 

This is just a more general comment. I think it has an inhibiting 

influence, impact on our ability to bring resolutions that I think 

would be more appropriate. And I think that is something that we 

all need to consider. So the concern that you raised is actually one 

that I share. 

Senator GRASSLEY. Well, then, do you believe that the investment bankers who were repackaging and selling bad mortgages as 

AAA-rated were not committing a criminal fraud? Or is it a case 

of just not being aggressive and effective enough to actually have 

the information to prove that they did something fraudulent and 

criminal? 

Attorney General HOLDER. We have looked at those kinds of 

cases, and I think that we have been appropriately aggressive. 

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These are not easy cases necessarily to make. You sometimes look 

at these cases, and you see that things were done wrong. And then 

the question is whether or not they were illegal. And I think the 

people in our Criminal Division, the people in our U.S. Attorney’s 

Office in the Southern District of New York, for instance, have 

been, as aggressive as they could be, brought cases where we think 

we could have brought them. 

I know that in some instances that has not been a satisfying answer to people, but we have, as I said, been as aggressive as I 

think we could have been. 

Senator GRASSLEY. If you constitutionally can jail a CEO of a 

major corporation, you are going to send a pretty wide signal to 

stop a lot of activity that people think they can get away with. 

Thank you very much. 

Attorney General HOLDER. You are absolutely right, Senator. 

You know, the greatest deterrent effect is not by the prosecution 

of a corporation, although that is important. The greatest deterrent 

effect is to prosecute the individuals in the corporation who are responsible for those decisions. We have done that in the UBS matter 

that we brought, and we try to do that whenever we can. But the 

point that you make is a good one. 

Chairman LEAHY. Thank you. 

Again, I appreciate you being here. I will probably see you at the 

signing of the Leahy-Crapo Violence Against Women Act. 

Attorney General HOLDER. Tomorrow. 

Chairman LEAHY. And we had to leave out for procedural reasons the U-visas that are important to law enforcement. And I hope 

you will work with us as we do immigration reform, because that 

would complete the whole legislation. It would protect victims, but 

it also would help law enforcement have a better chance of prosecuting people who have shown violence against women. 

Attorney General HOLDER. Yes. 

Senator KLOBUCHAR. Mr. Chairman, thank you for your leadership on that. I just want to reiterate how important that is. 

Chairman LEAHY. You were there every step of the way, and the 

fact that we were able to get such strong bipartisan help—and I 

know that the Senator from Minnesota talked to a lot of people on 

the other side of the aisle. And it was nice to actually have Senators do things together on both sides of the aisle, and the country 

is better off for it. 

We stand in recess. 

[Whereupon, at 12 p.m., the Committee was adjourned.] 

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