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UNITED STATES DEPARTMENT OF JUSTICE 

HEARING 

BEFORE THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED THIRTEENTH CONGRESS 

SECOND SESSION 

APRIL 8, 2014 

Serial No. 113–76 

Printed for the use of the Committee on the Judiciary 

( 

Available via the World Wide Web: http://judiciary.house.gov 
(II) 

COMMITTEE ON THE JUDICIARY 

BOB GOODLATTE, Virginia, Chairman 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

HOWARD COBLE, North Carolina 

LAMAR SMITH, Texas 

STEVE CHABOT, Ohio 

SPENCER BACHUS, Alabama 

DARRELL E. ISSA, California 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JIM JORDAN, Ohio 

TED POE, Texas 

JASON CHAFFETZ, Utah 

TOM MARINO, Pennsylvania 

TREY GOWDY, South Carolina 

RAU ́ L LABRADOR, Idaho 

BLAKE FARENTHOLD, Texas 

GEORGE HOLDING, North Carolina 

DOUG COLLINS, Georgia 

RON DeSANTIS, Florida 

JASON T. SMITH, Missouri 

[Vacant] 

JOHN CONYERS, JR., Michigan 

JERROLD NADLER, New York 

ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

STEVE COHEN, Tennessee 

HENRY C. ‘‘HANK’’ JOHNSON, JR., 

Georgia 

PEDRO R. PIERLUISI, Puerto Rico 

JUDY CHU, California 

TED DEUTCH, Florida 

LUIS V. GUTIERREZ, Illinois 

KAREN BASS, California 

CEDRIC RICHMOND, Louisiana 

SUZAN DelBENE, Washington 

JOE GARCIA, Florida 

HAKEEM JEFFRIES, New York 

DAVID N. CICILLINE, Rhode Island 

SHELLEY HUSBAND, Chief of Staff & General Counsel 

PERRY APELBAUM, Minority Staff Director & Chief Counsel 
(III) 

C O N T E N T S 

APRIL 8, 2014 

Page 

OPENING STATEMENTS 

The Honorable Bob Goodlatte, a Representative in Congress from the State 

of Virginia, and Chairman, Committee on the Judiciary ................................. 1 

The Honorable John Conyers, Jr., a Representative in Congress from the 

State of Michigan, and Ranking Member, Committee on the Judiciary ......... 3 

WITNESS 

The Honorable Eric H. Holder, Jr., Attorney General, United States Department of Justice, Washington, DC 

Oral Testimony ..................................................................................................... 5 

Prepared Statement ............................................................................................. 8 

LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING 

Material submitted by the Honorable Sheila Jackson Lee, a Representative 

in Congress from the State of Texas, and Member, Committee on the 

Judiciary 

Letter dated January 23, 2014, to the Honorable Eric H. Holder, Attorney 

General of the United States, U.S. Department of Justice ....................... 24 

Letter dated October 15, 2013, to the Honorable Eric H. Holder, Attorney 

General of the United States, U.S. Department of Justice, and the 

Honorable Jocelyn Samuels, Acting Assistant Attorney General, Civil 

Rights Division, U.S. Department of Justice .............................................. 28 

APPENDIX 

MATERIAL SUBMITTED FOR THE HEARING RECORD

Questions for the Record submitted to the Honorable Eric H. Holder, Jr., 

Attorney General, United States Department of Justice, Washington, DC .... 82 

(1) 

UNITED STATES DEPARTMENT OF JUSTICE 

TUESDAY, APRIL 8, 2014 

HOUSE OF REPRESENTATIVES

COMMITTEE ON THE JUDICIARY

Washington, DC. 

The Committee met, pursuant to call, at 10:04 a.m., in room 

2141, Rayburn Office Building, the Honorable Bob Goodlatte 

(Chairman of the Committee) presiding. 

Present: Representatives Goodlatte, Sensenbrenner, Coble, Smith 

of Texas, Chabot, Bachus, Issa, Forbes, King, Franks, Gohmert, 

Jordan, Poe, Chaffetz, Marino, Gowdy, Labrador, Farenthold, Holding, Collins, DeSantis, Smith of Missouri, Conyers, Nadler, Scott, 

Lofgren, Jackson Lee, Cohen, Johnson, Pierluisi, Chu, Deutch, 

Richmond, DelBene, Garcia, Jeffries, and Cicilline. 

Staff present: (Majority) Shelley Husband, Chief of Staff & General Counsel; Branden Ritchie, Deputy Chief of Staff & Chief Counsel; Allison Halataei, Parliamentarian & General Counsel; Robert 

Parmiter, Counsel; Caroline Lynch, Counsel; Kelsey Deterding, 

Clerk; (Minority) Perry Apelbaum, Staff Director & Chief Counsel; 

Danielle Brown, Parliamentarian; and Aaron Hiller, Counsel. 

Mr. GOODLATTE. Good morning. The Judiciary Committee will 

come to order, and without objection the Chair is authorized to declare recesses of the Committee at any time. 

We welcome everyone to this morning’s oversight hearing of the 

U.S. Department of Justice, and I will begin by recognizing myself 

for an opening statement. Welcome, Attorney General, to your seventh appearance before the House Judiciary Committee since your 

confirmation in 2009. We are happy to have you here with us 

today. 

Over the last year, we have all witnessed an extraordinary level 

of executive overreach by the Obama Administration. Time after 

time, this President has pushed the limits on executive power beyond their constitutional boundaries. He has repeatedly declared 

that rather than faithfully executing the laws passed by the legislative branch, he will ‘‘refuse to take no for an answer,’’ and that 

‘‘Where Congress won’t act, I will.’’ 

Under my leadership, the House Judiciary Committee has 

worked diligently to oppose these broad assertions of executive 

power and remind the Administration and the American people 

that our Constitution gives Congress the power to make the law 

and charges the President with its faithful execution. 
2 

Our work continues today because the Department of Justice has 

undertaken its own form of overreach in several instances. This is 

so despite the fact that legal opinions from the Justice Department 

under Presidents Carter, Reagan, George H.W. Bush, Clinton, and 

George W. Bush all agree that while the President does not have 

a duty to execute laws that he in good faith determines are unconstitutional, the President may not refuse to enforce an act of Congress for policy reasons. 

Unfortunately, the Department of Justice under Attorney General Holder has done just that. For example, on October 19, 2009, 

Attorney General Holder announced that the Justice Department 

would stop enforcing the Federal marijuana ban against persons 

who comply with State medical marijuana laws. The Justice Department’s decision not to enforce the Controlled Substances Act in 

States whose laws violate Federal law is not a valid exercise of 

prosecutorial discretion, but a formal Department-wide policy of selective non-enforcement of an act of Congress. 

On August 12 of this year, the Attorney General directed all Federal prosecutors to decline to charge the drug quantity necessary 

to trigger a mandatory minimum sentence if a defendant meets 

certain criteria. The Attorney General’s directive, along with contradicting an act of Congress, puts his own frontline drug prosecutors in the unenviable position of either defying their boss or violating their oath of candor to the court. 

Additionally, this Justice Department has continued to play fast 

and loose with Federal taxpayer dollars. Every year since 1998, the 

Justice Department’s Inspector General has compiled a list of the 

top management and performance challenges facing the Department, and every year since 1999, including this year, the issue of 

grant management has been included. 

Rather than learn from its mistakes over that 15-year period and 

act to effectively administer its more than 200 grants, the Department has made a number of concerning changes to some of these 

programs over the last year. This includes limiting the universe of 

grant applicants only to prior grant recipients under a number of 

its Violence Against Women programs. This type of change smacks 

of cronyism, and it opens these programs up to potential corruption 

and malfeasance. It is also in direct conflict with Congress’ intent 

when it created competitive grants, not to mention the Department’s stated commitment to promoting new and innovative programs. 

Secondly, I am concerned that this Administration has begun a 

profound change in how forensic science is studied and how standards are promulgated without congressional approval or oversight. 

The Justice Department has permitted the National Institute of 

Standards and Technology, or NIST, to establish brand new scientific area committees which will replace the longstanding scientific working groups in forensic science that have operated for 

years under the Department of Justice and are the backbone of forensic science. We have learned that these new NIST committees 

are rewriting forensic standards without input from established 

SWIG forensics experts contrary to congressional intent. 

Third, last summer, the Department of Justice announced that 

it would break from its tradition of having all public safety officers 
3 

benefits program claims reviewed by the OJP General Counsel’s 

Office before an official approval or denial was made. Instead, the 

Department has delegated this important task to a PSOB counsel, 

who reports to a political appointee. The PSOB counsel’s determination regarding the legality of a claim can also be overridden 

by the political head of OJP, and the Department of Justice has reduced the evidence needed to establish a claim. These changes will 

allow payments to be paid that are not supported by the law, and 

they highlight the Department’s continued recklessness regarding 

taxpayer dollars as well as the continued disregard for the limitations Congress places on how grant money should be spent. 

All of this demonstrates a pattern on the part of the Obama Administration to ignore or rewrite the very legislation that places 

limits on executive branch authority for purely political purposes. 

The Justice Department has the responsibility to provide legal advice, including constitutional analysis, to the executive branch. I 

find it ironic that the Department has chosen on multiple occasions 

to act in contravention of the Constitution and congressionally enacted Federal law. I would be interested in hearing what, if any, 

legal guidance the Department, including its Office of Legal Counsel, has provided to the Administration on these executive overreaches. 

Attorney General Holder, I look forward to hearing your answers 

on all of these important topics today as well as on other significant issues to the Justice Department and the country. 

And it is now my pleasure to recognize the Ranking Member of 

the full Committee, the gentleman from Michigan, Mr. Conyers, for 

his opening statement. 

Mr. CONYERS. Thank you, Chairman Goodlatte. Welcome, Attorney General Holder. In the vast jurisdiction of the Department of 

Justice, there are many topics worthy of discussion today. And I 

hope that you will get a chance to accommodate Chairman Goodlatte and the numerous criticisms and flaws and other things that 

he raised in his opening statement because we do want an honest 

appraisal of this. And I am sure that you are up to giving us one. 

First topics worthy of discussion for me today is your commitment to enforcing voting rights for all Americans in the wake of the 

Shelby County decision. Voter discrimination of all kinds is alive 

and well in this country, and it ought to be our Committee’s overwhelming priority to take up House Resolution 3899, the Voting 

Rights Amendment Act without delay. 

Your work in sentencing reform is remarkable. In a country 

where nearly half of all Federal inmates are serving time for drug 

offenses, the harshest crimes should be reserved for violent offenders. As you stated before the Sentencing Commission last month, 

‘‘Our focused reliance on incarceration is not financially sustainable. It comes with human and moral costs that are impossible to 

calculate.’’ 

We should note the Department’s efforts to engage State and 

local agencies, juvenile justice systems, and community leaders to 

end the school to prison pipeline and ensure that every young person has the opportunity to reach his full potential regardless of the 

color of his or her skin. And we should celebrate the Department’s 

commitment to marriage equality as more and more of this country 
4 

makes progress in which you have called one of the defining civil 

rights challenges of our time. 

Mr. Attorney General, your leadership on these and other issues 

has been invaluable. Of course throughout your tenure you have 

been asked to do all this and more with fewer and fewer resources. 

If you can give us any guidance as to the effect of the draconian 

Ryan budget proposal on the Department of Justice, we would like 

to engage with you on that topic as well. 

I would like to focus the balance of my time on the one overriding issue of our collective effort to roll back government surveillance of United States citizens. Much of our recent debate has focused on how to end the National Security Agency’s bulk collection 

of telephone records under Section 215 of the USA Patriot Act. 

Ending that program and correcting the deeply troubling legal argument at its foundation are of paramount importance. But the 

President’s proposal and the proposal advanced by some on the 

House Intelligence Committee deals only with Section 215. In other 

words, they focus on one program used to access one database collected under one legal authority. 

To me, the problem is far more complicated than that narrow 

lens implies, and in his January 17 speech, President Obama committed to much more. First, the President instructed you, Mr. Attorney General, to institute reforms that placed additional restrictions on the government’s ability to retain, search, and use in 

criminal cases the content of communications intercepted under 

Section 702 of the Foreign Intelligence Surveillance Act. 

On March 28 in a letter sent to Senator Wyden, the Director of 

National Intelligence, James Clapper, confirmed that the government mines this data for information about United States persons. 

Section 702 implicates content, not metadata, under any other circumstance. The government would require individualized suspicion 

and probable cause to seize these communications. The FISA 

amendments were never intended to authorize back door surveillance of United States persons, and the Department of Justice 

should work with this Committee to correct any impression to the 

contrary. 

The President asked the Attorney General to amend how we use 

national security letters so that gag orders will not be indefinite 

and will terminate within a fixed time. I view this modest amendment as a bare minimum change necessary to the NSA regime in 

light of what the public now knows about government surveillance. 

And yet, this Committee has received no indication that this reform 

is under way at the Department of Justice, and I hope, sir, that 

we will hear news of this development in your testimony or soon. 

And finally, the President recognized that there is an inevitable 

bias within the intelligence community to collect more information 

about the world, not less. That bias is consistent with their mission 

to maintain national security, but national security, of course, is 

not the only value we hold dear. We must also be vigilant against 

government overreach and protect our constitutional rights to privacy and free association. 

In the Congress, this Committee has always been the proper 

forum for a discussion about civil rights, especially in the national 

security context. In the executive branch, that role falls to the De-
5 

partment of Justice, and specifically, Mr. Attorney General, to you. 

This country would be well served by your continued leadership on 

this issue. 

In years past, the Department of Justice and the House Judiciary Committee have worked together to draft, pass, and implement 

the Foreign Intelligence Surveillance Act, the USA Patriot Act, and 

the FISA Amendments Act. We should renew that partnership 

without delay and move the USA Freedom Act through this Committee with all necessary speed. 

I thank you, and I look forward to your testimony, Attorney General. And I yield back. 

Mr. GOODLATTE. The Chair thanks the gentleman, and without 

objection all other Members’ opening statements will be made a 

part of the record. 

We thank our only witness, the Attorney General, for joining us 

today. And, Attorney General, if you would please rise, we will 

begin by swearing you in. 

[Witness sworn.] 

Mr. GOODLATTE. Let the record reflect that the Attorney General 

responded in the affirmative. Thank you. And we will begin with 

our introduction. 

On February 3, 2009, General Holder was sworn in as the 82nd 

Attorney General of the United States. General Holder has enjoyed 

a long career in both the public and private sectors. First joining 

the Department of Justice through the Attorney General’s Honors 

Program in 1976, he became one of the Department’s first attorneys to serve in the newly-formed Public Integrity Section. He went 

on to serve as a judge of the Superior Court of the District of Columbia and the U.S. Attorney for the District of Columbia. 

In 1997, General Holder was named by President Clinton to be 

the Deputy Attorney General. Prior to becoming Attorney General, 

he was a litigation partner at Covington & Burling LLP here in 

Washington, D.C. General Holder, a native of New York City, is a 

graduate of Columbia University and Columbia Law School. 

Attorney General Holder, we appreciate your presence today and 

look forward to your testimony. 

TESTIMONY OF THE HONORABLE ERIC H. HOLDER, JR., ATTORNEY GENERAL, UNITED STATES DEPARTMENT OF JUSTICE, WASHINGTON, DC 

Attorney General HOLDER. Thank you, Mr. Chairman, Ranking 

Member Conyers, and also Members of the Committee. I am here 

today to speak on behalf of my hardworking colleagues in the Department offices around the world about our continued commitment to the cause of justice and the missions that we share, securing our Nation and protecting the American people. Now, this is 

and always will be our top priority, and over the past year the Department has done important work in this regard, strengthening 

our ability to safeguard America’s national security, to disrupt potential terrorist plots, and to ensure that those who attempt to 

harm our Nation, its vital interests, or its people can be held accountable to the fullest extent of the law. 

Last month, the Department achieved a major milestone when 

we secured the conviction of Sulaiman Abu Ghaith, the son-in-law 
6 

of Osama bin Laden and a senior member of Al-Qaeda, on terrorism-related charges. This verdict has proven that proceedings 

such as these can safely occur in the city I am proud to call my 

hometown as in other locations across our great Nation. 

Now, we never doubted the ability of our Article 3 court system 

to administer justice swiftly in this case as it has in hundreds of 

other cases involving terrorist defendants. And it would be a good 

thing for this country finally to put to rest this political debate that 

has otherwise questioned the experience that we have had. 

Last week, the Senate Intelligence Committee voted to declassify 

key portions of its report into past interrogations practices. Now, 

I agree that as much of the report as possible should be made public, of course allowing for redactions that are necessary to protect 

national security. So I was pleased that the Committee voted to 

send portions of the report forward for declassification. Having prohibited these practices upon taking office, the President believes 

that bringing this program into the light will help the American 

people understand what happened in the past and help guide us 

as we move forward so that no Administration contemplates such 

a program in the future. 

Beyond our national security work, the Department will continue 

to build on the progress we have made in confronting a range of 

threats and challenges. The full resources of the Department and 

the FBI have been made available to help conduct a thorough investigation into last week’s horrific mass shooting at Fort Hood. 

And going forward, my colleagues and I will do everything possible 

to achieve justice for our brave men and women in uniform, and 

prevent these far too common tragedies from happening again. 

More than ever before, the Department’s law enforcement work 

today must connect with new and emerging technology, including 

currencies such as bitcoin. Virtual currencies can pose challenges 

for law enforcement given the appeal that they have among those 

seeking to conceal illegal activity, and this potential must be closely considered. We are working with our financial regulatory partners to account for this emerging technology. Those who favor virtual currencies solely for their ability to help mask drug trafficking 

or other elicit conduct should think twice. The Department is committed to innovating alongside this new technology in order to ensure investigations are not impeded by any improvements in criminals’ ability to move funds anonymously. 

Now, as virtual currency systems develop, it will be imperative 

to law enforcement interests that those systems comply with applicable anti-money laundering statutes and Know Your Consumer 

controls. 

Across the board, the Department’s comprehensive efforts reflect 

our commitment to integrity and equal justice in every case and in 

every circumstance, and nowhere is this commitment stronger than 

in our work to strengthen America’s Federal criminal justice system. Through the Smart on Crime initiative that I announced last 

August, my colleagues and I are taking action on a number of evidence-based reforms, including modifications to the Department’s 

charging policies with regard to mandatory minimum sentences for 

certain non-violent, low level drug crimes. 
7 

Now, this common sense change will ensure that the toughest 

penalties are reserved for the most dangerous or violent drug traffickers, and I am pleased to note that Members of this Committee 

have shown tremendous leadership in the effort to codify this approach into law. I have been proud to join many of you in supporting the bipartisan Smarter Sentencing Act introduced by Representatives Scott and Labrador and co-sponsored by Ranking 

Member Conyers, which would give judges more discretion in determining appropriate sentences for people convicted of certain 

Federal drug crimes. And I pledge to keep working with leaders 

like you and like Senator Rand Paul and others to address the collateral consequences of certain convictions, including felony disenfranchisement policies that permanently deny formerly incarcerated people their right to vote. 

Now, we will never be able to arrest and incarcerate our way to 

becoming a safer Nation. That is why we need to be both tough and 

smart in our fight against crime and the conditions and behaviors 

that breed crime. And this struggle must extend beyond our fight 

to combat gun, gang, and drug-fueled violence to include civil 

rights violations, and financial, and healthcare fraud crimes that 

harm people and endanger the livelihoods of hardworking Americans from coast to coast. 

Last November, the Justice Department secured a major victory 

in this struggle when we obtained a $13 billion settlement with 

JPMorgan Chase & Company, the largest settlement with a single 

entity in American history, to resolve Federal and State civil claims 

related to the company’s mortgage securitization process. As part 

of our ongoing efforts to hold accountable those whose conduct contributed to the mortgage crisis, the Department also filed a lawsuit 

against the ratings firm S&P. And with the $1.2 billion agreement 

we reached with Toyota last month, the largest criminal penalty 

ever imposed on an automotive company, we are making good on 

our determination to protect consumers and address fraud in all of 

its forms. 

So moving forward, my colleagues and I will continue build upon 

these and other important efforts, and we will keep working alongside Members of Congress, including Ranking Member Conyers, 

Representative Sensenbrenner, and Representative Lewis, to address the void that has been left by last year’s Supreme Court decision invalidating one of the Voting Rights Act’s core provisions so 

that we can help protect that most basic right of American citizenship. 

So I want to thank you once again for the chance to discuss these 

and other priorities with you today and for your continued support 

of the Justice Department’s other critical efforts. I look forward to 

working closely with you to build upon these public safety and law 

enforcement accomplishments that my colleagues have made possible in recent years. Thank you very much. 

[The prepared statement of Attorney General Holder follows:] 
8 
9 
10 
11 

Mr. GOODLATTE. Thank you, General Holder. We will begin the 

questioning, and I will start with this. The Department of Justice 

is charged with providing legal advice to make sure the President 

and executive agencies operate within the bounds of the law and 

the Constitution. And, of course, it is not just the Justice Department. It involves advice regarding our Nation’s healthcare laws, 

education laws, immigration laws, welfare laws. Doesn’t the take 

care clause not require the President to enforce the law even if he 

does not like the law in question? 

Attorney General HOLDER. Well, the President has a constitutional responsibility to enforce the laws. That is clear. The Justice 

Department has an equal responsibility to defend statutes that 

Congress passes unless the determination is made, and it happens 

very infrequently, within the Justice Department that there is no 

basis to defend a statute. 

Such an event happened with regard to the Defense of Marriage 

Act and the ability that we had in a unique circumstance in the 

2nd Circuit to make a determination that a heightened scrutiny 

standard should apply to the constitutional determination of that 

statute. And on that basis, we made the decision not to defend the 

statute. The decision was ultimately upheld by the Supreme Court. 

Mr. GOODLATTE. I am concerned about some of the decisions and 

some of the directives that have been issued by you and others in 

the Department of Justice. Is it your view that there is any limit 

to the President’s prosecutorial discretion? 

Attorney General HOLDER. Well, I mean, the discretion must always be exercised in a responsible and constitutional way. There 

is a vast amount of discretion I think that a President has, and, 

more specifically, that an attorney general has, but that discretion 

has to be used in appropriate way so that you are acting consistent 

with the aims of the statute, but at the same time, making sure 

that you are acting in a way that is consistent with our values, consistent with the Constitution, and protecting the American people. 

Mr. GOODLATTE. Could the President conceivably decide that 

with regard to a particular law that the discretion is to not enforce 

that law at all, even though the law is on the books? 

Attorney General HOLDER. Well, I mean, ‘‘to not enforce at all,’’ 

that is a categorical statement, and in a hypothetical circumstance, 

it is a difficult question to answer. The determination, as I was referring to before, not to defend the constitutionality of the Defense 

of Marriage Act might fall into the category that you have described, but it is one, as I said, that was very controversial at the 

time. We announced it, but ultimately it was upheld by the Supreme Court. 

Mr. GOODLATTE. Currently under the modified Section 215 order 

with regard to foreign intelligence surveillance, the government is 

no longer determining whether there is reasonable articulable suspicion, or what is called RAS. That target pertains to foreign terrorism. Those determinations are now being made by the FISC, the 

Foreign Intelligence Surveillance Court. How is that structure 

being implemented under the modified order, and how is the FISA 

Court approving the queries of the data under the modified under? 

Attorney General HOLDER. Well, I think that we are doing so 

pursuant to the orders of the President, which I think are entirely 
12 

reasonable. It does not have an impact on our ability to make very 

good use of that tool to go to the Court, present the case to be made 

using the reasonable articulable suspicion standard, the Court then 

authorizes the action that we seek. We now limit the action that 

we take to two hops as opposed to three hops, and I think that the 

way in which we are now proceeding is, again, consistent with the 

President’s direction, but also is consistent with our obligation to 

keep the American people safe. It does not have a negative impact 

on our ability to make use of that tool. 

Mr. GOODLATTE. And how is the Court, the FISA Court, approving those queries of the data under this modified order? 

Attorney General HOLDER. Well, the Court is presented with a 

request, a statement by the Department that we feel that reasonable articulable suspicion has been met, and make a determination 

about whether they agree or disagree, and the order is then signed. 

Mr. GOODLATTE. Moving to another subject, and that is this 

question about the application for grants. The Office on Violence 

Against Women, which is within the Department of Justice’s purview, recently announced changes to its grant solicitation process 

for Fiscal Year 2014, which limits the universe of grant applicants 

prior to grant recipients for a number of the office’s discretionary 

and competitive grant programs. Specifically, it is limiting six of 

those programs to only applicants who have been prior recipients. 

This concerns me greatly, both from the standpoint of the appearance of favoritism and from the standpoint of not looking for 

new and innovative ways to combat violence against women. And 

I wonder if you would comment on why this policy has been permitted to take hold. 

Attorney General HOLDER. I am sorry? 

Mr. GOODLATTE. I was just giving you an opportunity to respond 

to that. 

Attorney General HOLDER. Our grant making is really headed by 

our Office of Justice Programs, a woman whose name is Karol 

Mason, in whom I have total faith. What we have tried to do under 

her and her predecessor, Laurie Robinson, is to seek out from a variety of places grant proposals, support those proposals that we 

think are of potential benefit, and then actually do something that 

we do not think has necessarily been done before, use evidencebased means to determine the effectiveness of those programs, and 

on that basis make further determinations about funding. 

I am not aware of any determinations that are made to exclude 

from grant making or grant seeking institutions that on any basis. 

We take into account those grant applications that are made, use 

neutral criteria to determine whether or not they should be supported, but then, as I said, look after what happens after the grant 

is made to see the actions that are taken, again, on an evidencebased basis decide whether or not the program should be supported 

or attempted to be replicated in other parts of the country. 

Mr. GOODLATTE. Well, the information that I have is to the contrary. My time has expired, so if you will, I would like to pursue 

that matter with you after this hearing, and we will get you some 

specific questions and concerns we have. But I am concerned that 

new applicants are being excluded, and that current applicants are 
13 

being renewed not in a competitive environment, and that concerns 

me. 

Attorney General HOLDER. Mr. Chairman, I will say that I do not 

think that is the practice. But to the extent that your concern is 

a legitimate one, that is something that I will look into and I will 

get back to you. That is not the way I understand that we are proceeding. But if I am wrong, we will get back to you and that practice will be corrected. 

Mr. GOODLATTE. Thank you. The gentleman from Michigan, Mr. 

Conyers, is recognized for his questions. 

Mr. CONYERS. Thank you very much. Thank you for your statement, Mr. Holder. It is important that we come together in the Judiciary Committee and work out some of these differences or misunderstandings as the case may be. 

I would like to turn your attention to Section 215, the Foreign 

Intelligence Surveillance Act, FISA. And we are going to try to 

reach consensus on Section 215, and we will amend that statute to 

correct the mistaken argument that relevance means everything. 

Some have suggested that Section 215 could be reformed without 

requiring an individualized judicial determination of relevance or 

reasonable articulable suspicion before the government may demand certain business records. Consensus on our Committee is 

that prior judicial review is necessary. How do you stand on that? 

Attorney General HOLDER. Well, I think that the proposal that 

the President has made and in the interim steps that we have 

taken all are an indication of a basic fact that I think we have to 

understand. Section 215, as we know it, is proposed to be ended by 

this Administration. That is a simple fact. And what we would like 

to put in its place is a system where the information is stored in 

a different place. The information is acquired in a different way. 

The amount of information that is actually held by the government 

is substantially reduced. 

I think the debate that we have had as a Nation has been a good 

one, and I think that the President’s proposal that is supported 

unanimously by his national security team is a good step forward. 

We want to work with Congress to try to perfect the proposal. It 

is, as I said, only a proposal and can obviously be made better. So 

we want to work with Congress to ultimately come up with a statutory change so that we can get to this new Section 215. 

Mr. CONYERS. Thank you. But let me see if you feel that we have 

to have this relevance before the government may demand certain 

business records under 215. On this Committee, there is a consensus that prior judicial review is necessary. Do you share that 

view? 

Attorney General HOLDER. Well, by going to the FISC and specifying the reasonable articulable suspicion for acquiring the information, I think we are making a particularized request. It is something that is more predicate based than existed in the past, and I 

think that is a step. I think that, in fact, really deals with many 

of the concerns that have been expressed. 

Mr. CONYERS. Thank you. On January 17, you and I were both 

present at the Department of Justice when President Obama made 

a series of commitments to reforming even more than 215, and 

asked that the Department of Justice institute reforms that place 
14 

additional restrictions on the government’s ability to retain, search, 

and use criminal cases, communications between Americans and 

foreign citizens incidentally collected under Section 702. Have you 

or anyone in DoJ considered some of these reforms and if they are 

necessary? 

Attorney General HOLDER. Yes. I mean, one of the things that I 

am charged with a responsibility of doing along with Director of 

National Intelligence Clapper is to look not only at 215, but the 

other tools that we have. Section 702 is one of them. We have 

begun the process that the President gave us in that regard. We 

are not finished with the work that we are doing. Our hope would 

be to come to Congress with a proposal and to work with Congress 

to make sure that 702, which is already subject to, extensive oversight by the FISC, the executive branch, Congress, but just to 

make sure that we have the necessary procedures in place so that 

we are ensuring that only non-U.S. persons outside the United 

States are targeted, to minimize the acquisition, retention, and dissemination of incidentally acquired information about U.S. persons. 

But this a process that we are still engaged in, and I do not 

think we are yet in a position where we can come to Congress with 

a concrete proposal. Once we are at that point, as we are with Section 215, we will be coming back to Congress with that proposal. 

Mr. CONYERS. Thank you. I have three other questions. I will 

send them to you, and we will keep in communication. 

I yield back. 

Mr. GOODLATTE. The Chair thanks the gentleman and recognizes 

the gentleman from Wisconsin, Mr. Sensenbrenner, for 5 minutes. 

Mr. SENSENBRENNER. Thank you very much. Mr. Attorney General, thank you for coming here. I would like to ask you a series 

of questions about the perjury which I believe that the Director of 

National Intelligence, James Clapper, gave to the Senate. 

The U.S. Attorneys Manual specifically permits exposure of information concerning ongoing investigations ‘‘in matters that have already received substantial publicity.’’ Now, Director Clapper’s perjury, in my opinion, has been covered extensively, and I have articles from The New Yorker, the Washington Post, Guardian, Salon, 

the Washington Times, and the Huffington Post. 

In light of this, are you willing to discuss whether or not the Justice Department is investigating Director Clapper for his statements before the Senate? 

Attorney General HOLDER. I think that we received a letter from 

you, Mr. Sensenbrenner. And I think, as we explained in our response to your letter, I am really not in a position to confirm 

whether the Department is investigating any particular matter. 

But we are reviewing the material that you and other Members of 

the Committee have provided to us, and I can assure you that we 

will take any action that is appropriate. 

Mr. SENSENBRENNER. Well, the first letter I sent you was several 

months ago, and, yes, we have received a response to that. I sent 

you another letter last week clarifying this. So let me refresh your 

memory. Senator Wyden asked Director Clapper whether the NSA 

was collecting data about millions of Americans. Mr. Clapper said, 

‘‘No, sir, not wittingly.’’ 
15 

Now, Senator Wyden advised the Director the day before the 

hearing that he was going to ask this question. And after Director 

Clapper responded in the manner that he did, Senator Wyden gave 

him a chance to correct his testimony, which he refused to do. And 

then Mr. Clapper told the media that he gave the ‘‘least untruthful 

answer.’’ I think that we all know that lying to Congress is a Federal offense, and the only way Congress and, for that matter, the 

courts can be able to do their job is to get truthful testimony and 

then apply the facts and apply the law. 

Now, my understanding of the offense of perjury is that it was 

made under oath, which it was. It was knowingly false, which Director Clapper admitted, even after he was given a chance to 

change the testimony. And it is also material to a government investigation, which I would assume includes an investigation that is 

being made by Congress. Do you personally believe that Mr. Clapper’s testimony fits this description? 

Attorney General HOLDER. Well, as I indicated, we are not in a 

position to confirm whether the Department is investigating any 

particular matter. But as I said also, we will take into account in 

making any determinations that we make the material that you 

have submitted to us. 

Mr. SENSENBRENNER. Is there any circumstance that you would 

prosecute a member of the Administration for lying under oath to 

Congress? 

Attorney General HOLDER. Sure. 

Mr. SENSENBRENNER. What would that be? 

Attorney General HOLDER. If the person lied and the determination was made that all of the other legal requirements of the perjury statute were met. 

Mr. SENSENBRENNER. Well, Director Clapper has admitted that 

he has lied, and I outlined the elements to convict someone of perjury. And I will remind you it is being made under oath, it was 

knowingly false, and it is material to a government investigation. 

Now, if you want to delay this or sweep this under the carpet, 

would it not be pointless for Congress to pass new laws limiting 

data collection if the Justice Department is at liberty and other officials are at liberty to lie about enforcing them? 

Attorney General HOLDER. I am not sure I totally understand the 

question, but I can tell you this. We take our responsibility seriously to investigate allegations of perjury. There have been prosecutions brought by this Department over the years in that regard. 

With regard to this specific matter, it is something, as I said, that 

we are looking at the materials that have been presented to us, 

and action will be taken that is appropriate. 

Mr. SENSENBRENNER. I seem to recall back 25 years ago during 

Iran-Contra there were prosecutions, and the only way Colonel 

North and the person who is superior ended up getting off is because Congress was a little too eager to provide them immunity. 

And there was immunized testimony that was used in the prosecution. Here there is no immunity that has been given at all, and I 

am interested in making sure that everybody knows that they have 

to tell the truth when they appear before Congress. And what more 

do you need besides an admission from General Clapper that he 

lied? ‘‘I gave the least untruthful answer.’’ My time is up. 
16 

Mr. GOODLATTE. The Chair thanks the gentleman, and recognizes the gentleman from New York, Mr. Nadler, for 5 minutes. 

Mr. NADLER. Thank you, Mr. Chairman. First, let me state to the 

Attorney General that I share your commitment to trying suspected terrorists in our Article 3 courts, and I applaud and congratulate you and the Department for the successful prosecution of 

Osama bin Laden’s son-in-law, Sulaiman Abu Ghaith, I think the 

pronunciation is. That conviction came 13 months after his arrest, 

and he now faces potential life in prison. 

By contrast, Khalid Sheikh Muhammad and his four co-defendants have been in custody for more than a decade, and it remains 

uncertain when, if ever, the Military Commission System will finally be able to get around to a trial. I hope with the conviction 

of Abu Ghaith that we can stop wasting time and money on the so 

far unsuccessful Military Tribunal System and secure the convictions of the guilty terrorists in our Article 3 courts. And I want to 

thank you again for restating today your commitment to that system. 

Now, following the failure of many savings and loan institutions 

in the late 1980’s, special government task forces referred 1,100 

cases to prosecutors resulting in more than 800 bank officials going 

to jail. By stark contrast, no senior executive at any large financial 

institution at the heart of the 2008 financial crisis has been 

charged or prosecuted. 

Just last month, the DoJ Inspector General concluded that the 

FBI ranked financial crime as the lowest criminal threat in the 

aftermath of the 2008 financial crisis, did not use some of the additional funding that Congress provided to pursue mortgage fraud for 

this purpose, and that DoJ mistakenly inflated its results in mortgage fraud prosecutions by some 90 percent. That report is very 

troubling. 

My question is, why did the DoJ or the FBI not devote the same 

kind of resources that were devoted to the savings and loan crisis 

in the 80’s? What steps are you now taking to investigate whether 

money allocated by Congress to pursue mortgage fraud was 

misspent? And what other steps are you now taking in response to 

the IG’s report? And finally, in light of this experience of the total 

failure to prosecute or even investigate high-ranking bank officials 

for the fraud that led to the 2008 crash, what steps are you taking 

to ensure that the full range of possible criminal charges would be 

investigated with regard to General Motors and its faulty ignition 

switches that reportedly have resulted in at least 13 deaths years 

after they knew about them? 

Attorney General HOLDER. Well, with regard to the OIG report, 

I just take exception to a lot of the conclusions that are contained 

therein. If you look at the report itself, the number of mortgage 

fraud convictions nearly doubled from Fiscal Year 2009 to 2010, 

from 555 to 1,087, and then increased further in Fiscal Year 2011 

to 1,118. And this, I think, reflects a really rapid mobilization on 

the part of the Department to combat mortgage fraud during this 

critical period. 

If you look at, as I said, some of the results that we have had over the past year and a half or so, including that $13 billion resolution with JPMorgan, that makes clear, I think, our determination 
17 

to hold people accountable. The national mortgage settlement resulted in $20 billion in relief and assistance going to more than 

600,000 families. And if you look at more generally our history of 

holding accountable institutions and individuals who were connected to this financial fraud, beginning in 2013 we have gotten 

guilty pleas from the following financial industry institutions: UBS, 

RBS, SAC Capital, Weigand. With respect to prosecutions of individuals, we have charged individuals from the following companies: 

JPMorgan, Goldman Sachs, Morgan Stanley, Credit Suites, UBS, 

RBL Bank, ICAP, Galleon, SAC Capital, Stanford Financial Group. 

So the notion that somehow or other we have not been doing 

what we should have been doing with regard to the mortgage fraud 

problem, the financial industry in general, is a nice talking point. 

And I do not mean to say that is what you are saying, but it used 

by some as a talking point. It seems to be inconsistent with the 

facts. 

Mr. NADLER. Well, thank you, but it is essentially what I am saying. I think going after a company which can pay a fine paid by 

the shareholders is not the same as prosecuting someone other 

than small fries, prosecuting the higher ups in these companies 

who okayed this. But let me get onto my next question. 

The review group appointed by the President to review the Section 215 bulk collection of telephone metadata concluded, among 

other things, that a single legal standard should apply to NSLs and 

Section 215 because otherwise you simply switch from one to the 

other. Do you agree, and I hope you can brief us on this because 

I have one more question. Do you agree that we should follow this 

recommendation, that we should make these standards for NSLs as 

for 215? 

Attorney General HOLDER. Well, I think that, you know, we have 

to understand the different nature of these. NSLs were a tool to obtain really narrowly defined types of records from a narrow set of 

institutions. By contrast, 215 will ask the government to obtain 

many tangible things. And because 215 has a much wider breadth 

of materials that can be obtained, the need for judicial supervision, 

I think, is more obvious. 

NSLs, you get information that is used to build cases in the same 

way that you use grand jury subpoenas that frankly do not involve 

judicial supervision. 

Mr. NADLER. So you do not agree? So you do not agree with the 

recommendation of the President’s Review Commission? 

Attorney General HOLDER. I have stated my position, yes. 

Mr. NADLER. Okay. My last question is, the President when he 

campaigned back in 2008 said he was going to rein the use of the 

State secrets doctrine. And he has mildly done that by saying only 

higher ups in the Department can approve it, and they will use it 

more sparingly. But you still use the State secrets doctrine to object to a case as an answer to a complaint and completely stop a 

case from being heard. And this means that people cannot get their 

cases into court, that rights cannot be vindicated, that the judicial 

system cannot even consider many allegations. 

A 9th Circuit panel said that the problem with this was that the 

executive cannot be its own judge, and under this system, the executive is its own judge. I would observe that this insulates the exec-
18 

utive from any accountability for its actions because it classifies 

some of its own actions, and then blocks any judicial review by incantation of the magic word ‘‘State secret.’’ 

Do you think that it is proper or wise in a democracy to trust 

the executive branch with such absolutely unreviewable power over 

our liberties in such a way that rights can be violated and no one 

can get into court to challenge those rights. 

Mr. GOODLATTE. The time of the gentleman has expired. The Attorney General will be permitted to answer the question. 

Attorney General HOLDER. Well, we have really fundamentally 

changed the whole invocation of the State’s secret privilege. I put 

in place a series of measures so that a determination can only be 

made after review by a high-level committee and ultimately by sign 

off by the Deputy Attorney General and by myself, understanding 

that we were never to use the State secrets privilege to hide things 

that were embarrassing or to hide government misconduct. There 

is a reality we have to also face, though, that there are certain 

cases that bring into or potentially bring into the public realm 

things that would harm the national security. 

I would also note that I am not sure what opinion you are referring to, but in another opinion, a 9th Circuit judge or a district 

court judge in the 9th Circuit noted very approvingly of the 

changes that we had made in the Justice Department with regard 

to how we deal with the whole question of the invocation of the 

State secrets privilege. And I am actually proud of the work that 

we have done. I think that we justify every time that we have used 

it, and it has been used extremely sparingly by this Administration. 

Mr. GOODLATTE. The Chair recognizes the gentleman from North 

Carolina, Mr. Coble, for 5 minutes. 

Mr. COBLE. Thank you, Mr. Chairman. General, good to you have 

you back on the Hill. In August of 2013, the Justice Department 

announced it would not challenge recently-passed State laws legalizing the production, trafficking, possession, and recreational use of 

marijuana. Subsequently, DoJ issued guidance to banks regarding 

the proceeds of illegal marijuana trafficking. 

In issuing the guidance, you said that ‘‘there is a public safety 

component to this because the dispensaries have lots of cash.’’ General, what is the only public safety issue that the dispensaries have 

an excessive amount of cash? Well, let me continue that. Is there 

also not a public safety issue involving the trafficking, distribution 

of a substance that is still illegal under Federal law? 

Attorney General HOLDER. Well, the notion that somehow we 

have retreated from our enforcement of the Controlled Substances 

Act with regard to marijuana is not accurate. What we have done 

is to clarify in a, I guess, pronouncement that the Deputy Attorney 

General set out eight factors that we take into consideration before 

we use our limited resources with regard to marijuana and enforcement of the marijuana laws. That is not inconsistent with, I think, 

the way in which the Justice Department was acting before. 

Low level possessors of marijuana were never Federal cases in 

any case. The things that we are talking about now involve trafficking in marijuana that goes to minors, drug driving, where violence is involved, where cartels are involved, so that we remain 
19 

committed to enforcement of the marijuana laws when it involves 

those eight factors. 

Mr. COBLE. In the responses to the questions for the record from 

our last hearing, which we received last week, which is actually 11 

months after you last appeared here, you stated that ‘‘Congress has 

determined that marijuana is a dangerous drug, and that the illegal distribution and sale of marijuana is a serious crime that provides a significant source of revenue to large-scale criminal enterprises, gangs, and cartels. It is the responsibility of the Department 

of Justice to enforce the Controlled Substances Act in all States.’’ 

General, given your apparent commitment to enforcing Federal 

law, why is the Department now encouraging banks to help 

dispensaries launder money? Now, this may be subject to interpretation, but I think even though transactions may well have been 

legal in the two States with which we are familiar, it can still— 

well, strike that. Let me say it in a different way. Given the Federal exposure, that could well amount to money laundering, could 

it not? 

Attorney General HOLDER. I am sorry. I did not hear the end of 

your statement. 

Mr. COBLE. Pardon? 

Attorney General HOLDER. I just did not hear the end of your 

question. 

Mr. COBLE. I said admittedly they could well be subject to interpretation, but Federal involvement in these proceeds, which were 

legally exchanged at the time of purchase. Could that not amount 

to money laundering? 

Attorney General HOLDER. We decided in the statement that we 

issued was to deal with what I described was, and I think you 

quoted in my letter, a public safety concern where as a result of 

the changes made in Washington and in Colorado you have institutions that would have large amounts of cash on hand. And so, we 

wanted to come up with ways in which that cash would not necessarily be in one place subject to robbery, whatever, violence, and 

would be allowed to be placed into banks. And that is why those 

rules were changed. 

Ultimately, it is for the individual banks to make determinations 

about whether or not they want to accept those deposits given the 

eight factors that we have set out in our overall marijuana enforcement policy. 

Mr. COBLE. Well, many people, General, in response to Colorado 

and Washington seemed to make it clear these are legal transactions. Well, they are legal transactions at the State level, but 

they continue to be illegal activity, in my opinion, at the Federal 

level. Do you concur with that? 

Attorney General HOLDER. Well, again, there are a lot of things 

that are technically violative of the Federal law. We do not prosecute every violation of Federal law. We do not have the capacity 

to do that. And so, what we try to do is make determinations about 

how we use our limited resources. Those eight factors set out the 

things that from our perspective are most important about our 

marijuana enforcement efforts. 

I think that we will still be good stewards of the Controlled Substances Act. We will prevent marijuana from getting into the hands 
20 

of minors. We will prevent violence in the trafficking and sale of 

marijuana, prevent the cartels from profiting. Those are the factors. Those are the things that I think are worthy of Federal consideration. 

Mr. COBLE. Thank you, General. Chairman, I see my red light 

has illuminated. I yield back my time. 

Mr. GOODLATTE. The Chair recognizes the gentlewoman from 

California, Ms. Lofgren, for 5 minutes. 

Ms. LOFGREN. Thank you, Mr. Chairman, and thank you, Mr. Attorney General, for being here today. I want to follow up on some 

of the questions that have already been posed relative to surveillance. We have had a lot of conversation in the country about 

phone records, but I want to talk about Section 215 and 214, for 

that matter. 

Is it your view that other data held by third parties, for example, 

financial records, or emails, or records of what an individual 

searches for on the internet, that are held by third parties is in the 

same legal posture—I am not suggesting it is being done—but as 

a legal matter is in the same posture as phone records? 

Attorney General HOLDER. Well, do you mean to compare it to 

the bulk telephony program that existed? 

Ms. LOFGREN. Yes. I mean, the government’s view is that it is 

constitutional to collect bulk phone records because they are business records. There are other records that are held by third parties, 

for example—emails, searches of the internet, financial records— 

that are, I believe, covered under 215. I am just trying to probe 

whether that is your understanding as well. 

Attorney General HOLDER. Well, under the way in which we are 

trying to reform 215, the notion is that a request has to be supported by reasonable, articulable suspicion. 

Ms. LOFGREN. But you are not answering my question. My question is, are these other records in the same legal posture as the 

phone records? I mean, it is either yes or no. 

Attorney General HOLDER. I am not sure I am understanding 

your question. I mean, obviously they are governed by the same 

law, so—— 

Ms. LOFGREN. Okay. So then you have answered my question. 

Thank you. I want to talk about Section 702. Mr. Clapper sent a 

letter to Ron Wyden on March 28 indicating that there have been 

queries of U.S. persons of communications that he says were lawfully acquired under Section 702. 

Now, in taking a look at what the FISA Court said just a few 

years ago, in 2011 they observed that the NSA acquires more than 

250 million internet communications each year pursuant to Section 

702. That was in 2011. I want to probe how it could be that we 

would collect this data looking at foreign persons on a 51 percent 

basis of confidence that the person is abroad, and then feel free to 

query for U.S. persons. How does that comply with the Fourth 

Amendment in your judgment? 

Attorney General HOLDER. Well, I certainly think that everything that has been done is consistent with the Fourth Amendment, but that really only goes part of the way. The President has 

said, you know, just because we can do certain things does not necessarily mean that we should do them. Now, we have looked at 
21 

215. We proposed modifications, as I have indicated. We are looking at Section 702, and I think we are going to have modifications 

that we are going to propose there as well. 

Ms. LOFGREN. Let me ask you in terms of whether you think we 

have legal or constitutional limits in receiving information on 

American citizens in the United States that have been collected or 

obtained from our allies, for example, Britain, or Canada, or Australia’s security forces. Is there any prohibition constitutionally in 

our receiving information from allied agencies? 

Attorney General HOLDER. I am not sure there is a constitutional 

prohibition, but we do have good relationships with our allies. We 

share information with them when that is appropriate. 

Ms. LOFGREN. Let me ask you in terms of other public data, we 

are in a situation in this country and really in the world where 

there is a digital record made of us wherever we go. I mean, you 

walk down the street, every ATM machine has a camera. Every 7- 

Eleven has a camera. What is the Department’s view in terms of 

the need for a judicial review to obtain those digital records and 

to data mine them for information about American citizens? 

Attorney General HOLDER. I think the Department has different 

standards depending on the nature of the information that is 

sought, the privacy implications that are at play or that are a part 

of the determination. We try to do things in a way that are consistent with our obligations obviously under the Fourth Amendment, but go beyond that so that we do not turn ourselves into a 

state that we do not want to ultimately be. And so, there are different—— 

Ms. LOFGREN. But the question is, does the Department feel that 

you have to get a warrant or not to obtain and data mine such information? 

Attorney General HOLDER. When you say ‘‘data mine,’’ that is a 

very broad thing. I mean, it depends really on the nature of that 

which we seek. I mean, if you go back, you know, when I was a 

young prosecutor and you wanted to get mail covers, for instance, 

you know. There are a whole variety of things that you can do with 

and without the courts, and that is still the case. 

Ms. LOFGREN. Well, I see my time has expired, Mr. Chairman. 

I am going to follow up, if I may, with you, Mr. Attorney General, 

with some specific questions that I hope I can get answers to. And 

I thank you very much. 

Mr. GOODLATTE. And we hope the Attorney General will respond 

to those questions. And the Chair now recognizes the gentleman 

from Ohio, Mr. Chabot, for 5 minutes. 

Mr. CHABOT. Thank you very much, Mr. Chairman. Thank you, 

Mr. Attorney General. On July 25, 2013, 15 Members of this Committee wrote you to inquire whether the Department of Justice was 

consulted regarding the constitutionality of the Administration’s 

decision to delay the employer mandate, and if so, what the Department’s position was regarding its constitutionality. This Committee still has not received a satisfactory response. 

Now, you stated publicly on the record to Senator Mike Lee of 

Utah at a Senate Judiciary Committee hearing held on January 29, 

2014, about 2 months ago, that the Justice Department had indeed 

provided such a legal analysis. Now, at that same hearing, you 
22 

speculated publicly regarding what you recalled was contained in 

that legal analysis. Since you have previously speculated publicly 

on these issues, and since you have had time since that meeting 

back on January 29, 2014, the Senate hearing, to refresh your 

memory regarding the specific nature of that legal analysis, could 

you now please describe the specific nature of that legal analysis 

on the Affordable Care Act? 

Attorney General HOLDER. Well, I would say this. Chairman 

Goodlatte sent me a letter that I had a chance to review that contained within it my colloquy with Senator Lee. I believe it was Senator Lee. It seemed to me that that was a conversation that was 

more general than the one that you have discussed. But in any 

case, the Department generally does not disclose the content of confidential legal advice to the President or other government decision 

makers. The Department of Treasury has previously explained to 

Congress what the legal basis was for the decision to delay the enforcement of the employer mandate, and I think that I would refer 

you to that document. 

Mr. CHABOT. So when 15 Members of this Committee send you 

a request based on the legal analysis of something as significant 

as that, do you not think we deserve a response? 

Attorney General HOLDER. I apologize if there has not been a response to that inquiry, but I think, yes, that is certainly worthy of 

a response. Certainly it would contain what I just told you. 

Mr. CHABOT. All right. Thank you. Let me move on then. The 

President made the unilateral decision to delay the Affordable Care 

Act’s employer mandate for 1 year despite clear statutory language 

instructing that the penalties associated with the mandate shall 

apply—and this is a quote—‘‘shall apply 2 months beginning after 

December 31, 2013.’’ Now, when Congress puts effective dates in 

laws, do we need to further state that the effect cannot be waived 

or modified by the executive branch, or is the President required 

to follow the law and also follow the dates that are set by Congress? 

Attorney General HOLDER. Well, the President has the duty obviously to follow the law. 

Mr. CHABOT. Would that not include the dates that are contained 

in the law? There was not anything, I do not think, confusing about 

them or contradictory about them. It says a specific date. Does the 

President not have to follow that law? 

Attorney General HOLDER. Well, it would depend on the statute. 

It would depend on the statutory interpretation. 

Mr. CHABOT. Okay. Well, the statute we are talking about was 

the Affordable Care Act or Obamacare, as some people refer to it. 

So that is the one we are talking about. It is not some hypothetical 

law. That is the law. 

Attorney General HOLDER. Yes, and as I indicated, the Treasury 

Department had looked at it and determined that there was a legal 

basis for the—— 

Mr. CHABOT. Well, you are his legal advisor, and I am asking you 

should he not follow the law when it says specific dates. And my 

question was, or if that is not the way the President going to operate, are we going to have to put in there what I stated, that the 

effective date cannot be waived or modified by the executive 
23 

branch, meaning the President. Do we have to put that language 

in there from now on, or should that not be assumed that the 

President does not have to change it if we do not put that language 

in there? 

Attorney General HOLDER. Far be it from me to tell you how to 

do your jobs. I can only talk about the statutes that actually exist 

and the ones that come into either the Department or other 

branches of the executive—— 

Mr. CHABOT. All right. Thank you. I am almost out of town, so 

let me give you one quick one. As Attorney General, you are 

charged with faithfully executing the law. In remarks to the States 

attorneys general in February, you exhorted them to be suspicious 

of State laws that define marriage as the union of one man and one 

woman. Why when you are the top law enforcement official in the 

country would you tell your counterparts in the 50 States not to defend laws constitutionally passed by those States, regardless of 

whether you agree with that policy or not? 

Attorney General HOLDER. Well, with all due respect, Congressman, I think you have gotten some really bad information. I did 

not say that people needed to be suspicious of particular laws. 

Mr. CHABOT. Well, I am paraphrasing what you said, but I 

think—— 

Attorney General HOLDER. Well, that is not a great paraphrase. 

Mr. CHABOT. Okay. Well—— 

Attorney General HOLDER. What I said—— 

Mr. CHABOT. We will go back and look at the language. 

Attorney General HOLDER. That is fine. I mean, what I was said 

that decisions to not defend statutes cannot be based on politics or 

policy. There have to be—— 

Mr. CHABOT. You guys would never do that—— 

Mr. GOODLATTE. The time of the gentleman has expired. 

Attorney General HOLDER. Well, I mean—— 

Mr. GOODLATTE. The Attorney General can finish his answer. 

Attorney General HOLDER. I was going to say that there have to 

be bases in law, constitutional concerns. The example I used, I remember, in conversations with—I cannot exactly remember who— 

in 1953, the Congress passed a law that said that separate but 

equal was appropriate. And if I had been asked—— 

Mr. CHABOT. There was a Fugitive Slave Law at one time—— 

Mr. GOODLATTE. The time of the gentleman has expired. The 

Chair recognizes the gentlewoman from Texas, Ms. Jackson Lee, 

for 5 minutes. 

Attorney General HOLDER. I would not have defended that one 

either. 

Ms. JACKSON LEE. Let me thank the General for your presence 

and your service and just the number of vast changes that are for 

the good that we have been able to experience. A number of my colleagues have asked about the NSA, and I am going to either write 

a letter on that or ask the question if I get enough time. And I ask 

unanimous consent to introduce this letter into the record, Mr. 

Chairman, that I sent to Mr. Holder in January of 2014. 

Mr. GOODLATTE. Without objection, it will be made a part of the 

record. 

[The information referred to follows:] 
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25 
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Ms. JACKSON LEE. If you would, General Holder, unfortunately 

Jasper, Texas has had another incident. Jasper, Texas, the home 

of the late James Byrd, Jr., who was violently murdered in 1998. 

Another young man by the name of Alfred Wright, a 28-year-old 

African-American honors graduate from the University of Memphis, whose body was found 19 days after first reported missing, 

and the community had allegedly been searching for 17 days. His 

body was somewhat mutilated, but certainly did not look like it had 

been in the wild, if you will, for 17 or 19 days. He stopped his 

truck. It was overheated. He was in front of a store, and all of a 

sudden he went missing. 

We have, as I understand it, a Justice Department investigation, 

but there has been no word whatsoever. There has been a lot of 

chatter, a lot of upsetness by the family members, a lot of emotion. 

And so, my question is, how speedily can we move that investigation? And I would also encourage, even though I understand we 

cannot taint an investigation, but I would appreciate if there would 

be some dialogue. I do not believe that dialogue with those who 

represent those individuals is a violation of the investigation. Mr. 

General? 

Attorney General HOLDER. Yes, we will certainly take into account the letter that you have indicated, the letter that you have 

talked about. I was just checking to make sure with my memory, 

but the U.S. Attorney is actually looking at this matter. I am not 

in a position to discuss this further at this time, but I have been 

told that the U.S. Attorney has been in touch with the family. But 

it is something that we are taking seriously. 

Ms. JACKSON LEE. And I appreciate it. And if I could get a briefing through DoJ here in Washington, that is, General—I understand the specifics cannot be discussed—it would be very helpful. 

Attorney General HOLDER. Okay. We will share what we can appropriately. 

Ms. JACKSON LEE. Thank you. Let me move quickly to another 

letter that I sent on October 15, 2013. I ask unanimous consent to 

introduce this into the record, Mr. Chairman. This letter involves 

a shooting in Bellaire, Texas. And unfortunately, a young man, a 

family owned a home, and he was confronted by police on his own 

steps and shot on his own steps under the allegation that he had 

stolen a car. He happened to live in a majority neighborhood, 

meaning a neighborhood that did not look like him. 

The unfortunate part about it is that it ended his very promising 

baseball career. The problem is that a response came back that 

there was not going to be an investigation probably because 

incidences are not reported frequently out of Bellaire, Texas. There 

was a suggestion of practice and pattern. I would like the Justice 

Department to get back with me on how that could be pursued because the fact that you have one incident means that it is a community that does not report police abuses, and you have a situation 

that has not been addressed. This is Mr. Toller, and this case was 

sent to you. 

Attorney General HOLDER. Okay. 

Ms. JACKSON LEE. Thank you. I ask unanimous consent to put 

this in the record, Mr. Chairman. 
28 

Mr. GOODLATTE. Without objection, it will be made a part of the 

record. 

[The information referred to follows:] 
29 
30 

Ms. JACKSON LEE. Another letter that I am going to pursue questioning on, and thank you very much. February 5, three Members 

of this Committee sent a letter to major leaders of civil rights organizations to comment on the clemency process that is now being 

put in place. Mr. General, could you emphasize how important this 

process is based upon the change in law that this Committee had 

on the crack cocaine, and how is it being implemented with the 

Federal Bureau of Prisons? How successful do you think it is? How 

much more work do we need to reach these individuals who are 

doing it? 

And let me ask this follow-up question so that I will not be left 

out. I am going to send you a letter regarding the investigation of 

the high speed trading and just to understand what the basis of 

the law is on that. But the other question I want answered besides 

the clemency is, there is a proposed merger between Comcast and 

Time Warner. You have been vigorous before on antitrust issues. 

I want to know how vigorous you are going to be in this very massive and impactful potential merger. 

On the clemency, please, Mr. Attorney General. Again, thank you 

for your work. 

Attorney General HOLDER. The clemency matter or clemency 

process that you talked about is something that is of concern to us. 

We have required in our budget the ability to hire seven new people for our Pardon Attorneys’ Office that would include four attorneys so that we can process these matters at a greater rate. We 

have also begun an initiative to identify additional clemency candidates who are similarly situated to the ones that the President 

granted clemency to, the eight or so, I believe, a few months or so 

ago. 

There are people who do not have ties to gangs or cartels. They 

are not threats to public safety. They have sentences that I think 

that we would all generally agree are excessive in nature and 

where clemency is something that should be considered. The Deputy Attorney General gave a speech in New York where he sought 

the help of the private bar in addition to the resources that we 

have sought so that we could try to make this clemency process a 

better and more fulsome one. 

Mr. GOODLATTE. The time of the gentlewoman has expired. 

Ms. JACKSON LEE. Mr. Chairman. Mr. Chairman, could he just 

take 10 seconds on Time Warner, please? I ask unanimous consent. 

Mr. GOODLATTE. The time of the gentlewoman has expired. The 

Attorney General may answer that question in writing. 

It is now the opportunity of the gentleman from Alabama, Mr. 

Bachus, to be recognized for 5 minutes. 

Mr. BACHUS. Thank you, Attorney General. I hope you are feeling better. 

Attorney General HOLDER. I am getting there. 

Mr. BACHUS. Good. Good. When you appeared here last May, I 

asked you about the Associated Press case. You were not able to 

supply any details because you said you had recused yourself early 

on. I asked you if there was the date of that or whether it was a 

formal process, and you said there was no record of it. And I at 

that time indicated to you, and I think you probably agreed with 

me, that there should be a need when you recuse yourself from a 
31 

case to have a formal written entry. Have you all adopted such a 

policy? 

Attorney General HOLDER. Well, I guess I am not sure that we 

have formally done so, but in my own mind I thought that to the 

extent that I recuse myself in other matters, I would do so and put 

a writing together of some sort that would indicate what the basis 

was for that recusal. 

Mr. BACHUS. I know you just indicated it was a conflict of interest or the appearance of a conflict of interest. But do you not believe that because of that and other cases that it is essential that 

there actually be a formal process where you submit or whether 

there is something in writing with a date and time on it? 

Attorney General HOLDER. Yes. I think you raised it during the 

hearing last year. And I said then, I think it is a good idea. My 

only concern was I—— 

Mr. BACHUS. Well, I mean, as opposed to a good idea. Why does 

the Justice Department not adopt a formal process and do that, you 

know, particularly in that you are required by law to sign off on 

any subpoena involving the media? So I just think particularly in 

a matter like that that there ought to be a formal recusal. I am 

just going to again renew my request that you do that, inform us 

if and when you do it. 

Attorney General HOLDER. Okay. That is fine. 

Mr. BACHUS. You know, since that time, I became aware in a 

press conference about that same time you said the Associated 

Press case was one of the worst leaks you have seen throughout 

your career. Do you still believe that? 

Attorney General HOLDER. Yes. 

Mr. BACHUS. It is my understanding from everything we have 

seen now that the information they published on Monday was 

going to be the subject of an announcement by the White House 

early Tuesday morning, and this was something that happened a 

year or two before in Yemen. I am just wondering why a day’s 

delay with something that the White House was going to announce 

the next day, why would it have been so serious to secretly subpoena from Verizon all of the records. Am I wrong? Was the White 

House not going to reveal this information the very next day? 

Attorney General HOLDER. Well, I hope we are talking about the 

same leak. But what I was discussing was something that had a 

negative impact on our ability to—I cannot talk about this maybe 

too much—but to get—— 

Mr. BACHUS. Well, that case is closed, is it not, the AP case? 

Attorney General HOLDER. Yes, but we still have to talk about 

methods—— 

Mr. BACHUS. Well, if it is closed—— 

Attorney General HOLDER [continuing]. That were potentially—— 

Mr. BACHUS. Well, am I wrong that the White House was going 

to disclose the information disclosed in the article the very next 

day, and they had asked the AP to delay it one more day? 

Attorney General HOLDER. But that is only after the fact the leak 

had existed. Had there been no leak, there would—— 
32 

Mr. BACHUS. I do not think there has been any public—okay. All 

right. Well, but what I am saying is the White House was going 

to reveal that information the very next day. 

Attorney General HOLDER. As I remember it, the plan was not 

to reveal it on any day, but for the fact that the leak had already 

occurred. 

Mr. BACHUS. All right. You know, one time I also asked you, and 

I think it was informally, whether or not there were any other 

media outlets during that period of time or since that time—well, 

let us just say during that period of time—that were targeted by 

the Justice Department other than the Rosen case and the AP case. 

And you said you were not sure. Were there others? 

Attorney General HOLDER. Do I—— 

Mr. BACHUS. Were there other media outlets which were targeted? 

Attorney General HOLDER. Other media—— 

Mr. BACHUS. We know of the Rosen case. We know of the AP 

case. Were there other examples where media outlets were secretly 

targeted? 

Attorney General HOLDER. Oh, I see what you mean. I would not 

agree that any media outlets were targeted. What happened in at 

least a couple of those cases was determinations were made to try 

to get information. We went through a process after that firestorm. 

I met—— 

Mr. BACHUS. I know about that in July, but what I am asking 

you, were any other media targeted by secret request to Verizon or 

others to look at their information other than the Associated Press 

and the Rosen case, which we know of because that was revealed. 

Are there any others? 

Attorney General HOLDER. As I said, the processes that we had 

in place to the extent that we thought or I made the determination 

that changes need to be made have, in fact, been made. We had 

a good series of meetings with media—— 

Mr. BACHUS. Well, did you have any—— 

Mr. GOODLATTE. The time of the gentleman has expired. The 

Chair recognizes the gentleman from Virginia, Mr. Scott, for 5 minutes. 

Mr. SCOTT. Thank you, Mr. Chairman. Thank you, Mr. Attorney 

General, for being with us today. I had a question about torture, 

and just simply we have heard that torture worked in certain situations. Do you get retroactive immunity if it worked for conducting 

illegal torture? 

Attorney General HOLDER. Do you get retroactive immunity if 

you do what? 

Mr. SCOTT. If it worked. You got good information. What is the 

legal significance of getting good information if it worked? 

Attorney General HOLDER. I am not sure I understand the question. 

Mr. SCOTT. Well, some people say it worked; therefore, what otherwise would have been illegal torture was okay. Is it okay if it 

worked? 

Attorney General HOLDER. If somebody had engaged in practices—torture—that violated Federal law, the fact that it worked 

would not be a bar to potential criminal liability. 
33 

Mr. SCOTT. Thank you. If you call it ‘‘enhanced interrogation,’’ 

does that make it okay? 

Attorney General HOLDER. No. Slapping a label on something 

does not change things. 

Mr. SCOTT. Thank you. I want to switch subjects to mandatory 

minimums. You mentioned legislation that is pending. What can 

the executive branch do to alleviate the egregious harm inflicted by 

an unjust mandatory minimum? 

Attorney General HOLDER. Well, what I have tried to do through 

our Smart on Crime initiative is to make sure that our people in 

the field, our assistant U.S. attorneys, are using their discretion in 

appropriate ways only to bring cases that ought to be in the Federal system, only to charge mandatory minimum sentences where 

they are appropriate given the nature of the conduct of the defendant who is before a particular assistant U.S. attorney. And I have 

great faith in the men and women of the Department to make 

those determinations in an appropriate way. 

Mr. SCOTT. Are you recommending that the executive branch use 

the power of pardon to deal with some of these cases, too? 

Attorney General HOLDER. Yes. As I replied to somebody else 

previously, we think that the clemency process—the President 

agrees with this—that the clemency process has to be a part of this 

overall look at our criminal justice system. 

Mr. SCOTT. Thank you. The Youth Promise Act, I think you are 

familiar with it, which requires localities to come together, first of 

all, to assess how much they are spending on incarceration and 

other things that would be prevented with a good, comprehensive, 

evidence-based, locally-tailored program, and as money is being 

saved, to reinvest the money to keep the programs going. Has the 

Department of Justice taken a position on the Youth Promise Act? 

Attorney General HOLDER. I believe we are supportive of it, yes? 

We are supportive of the Youth Promise Act. 

Mr. SCOTT. Thank you. And on voting rights, we are all disappointed by the Shelby decision, and we are trying to fix it. What 

can we do to cover jurisdictions where there is not a formal finding 

of prior finding of recent discrimination? Is there any way that we 

can cover jurisdictions without that finding? 

Attorney General HOLDER. Well, I think what we shared with 

the Members of this Committee and other Members of Congress 

was a regulatory framework in which over a set period of time, a 

number of violations could make the particular State or jurisdiction 

subject to Justice Department review if there was a desire to 

change a voting procedure. And I think that would respond to the 

Supreme Court’s concern expressed in the Shelby case. 

Mr. SCOTT. Could we have someone be required to have a process 

pre-cleared if it is a suspect change if there is no prior finding of 

discrimination? 

Attorney General HOLDER. Well, beyond what we had proposed, 

there are other parts of the Voting Rights Act that allow the Department to look at individualized actions that a particular State 

or jurisdiction might take. Those are cases that are not easily proven. 
34 

Mr. SCOTT. But in terms of pre-clearance, is there any way that 

you can stick them with pre-clearance if you do not connect that 

with prior findings of discrimination under the Shelby case? 

Attorney General HOLDER. I think it would be difficult. And I 

think what we tried to come up with was a process by which the 

gambit of the Voting Rights Act would be spread beyond those 

States that had been covered before, and would focus on a requisite 

number of violations over a set period of time that would move over 

the years so they would not become old in nature. 

Mr. SCOTT. And what can be done to improve the injunctive process? 

Mr. GOODLATTE. The time of the gentleman has expired. The Attorney General can answer briefly the gentleman’s question. 

Attorney General HOLDER. The question was—— 

Mr. SCOTT. Maybe if you could do it for the record, if you could 

comment on how we can improve the process of injunction so that 

localities do not have to suffer irreparable harm. If you could respond to that for the record, I would appreciate it. 

Attorney General HOLDER. Okay. 

Mr. GOODLATTE. The Chair thanks the gentleman, and the Attorney General—— 

Attorney General HOLDER. Mr. Chairman, I am having a hard 

time sometimes hearing some of the questions. I am not sure if 

maybe the mikes are not on or something. 

Mr. GOODLATTE. We will check that. And in the meantime the 

Chair recognizes the gentleman from California, Mr. Issa, for 5 

minutes. 

Mr. ISSA. Thank you, Mr. Chairman. Mr. Attorney General, can 

you hear me okay? 

Attorney General HOLDER. I can always hear you. [Laughter.] 

Mr. ISSA. Thank you, Mr. Attorney General. Mr. Attorney General, I think you would agree that the importance and sanctity of 

the Inspector General Act is one that is important to all of government. Would you agree? 

Attorney General HOLDER. The sanctity? 

Mr. ISSA. The sanctity, the independence of the Inspectors General Act—— 

Attorney General HOLDER. Oh, okay. Sure. 

Mr. ISSA [continuing]. Is clearly an intent of Congress as signed 

into law, and you would agree with that. 

Attorney General HOLDER. Yes. To have a good inspector general, 

you need some degree of independence. 

Mr. ISSA. And Michael Horowitz, your inspector general, you 

would agree that, in fact, he is a good inspector general? 

Attorney General HOLDER. Yes, he is a very good inspector general. I have known Mike for a good number of years. 

Mr. ISSA. Well, last week Mike said at the Senate Appropriation 

Subcommittee that essentially, I will paraphrase, he has been 

interfered with. He has had to go specifically to you or your deputy 

to get permission to have access to records, and that has taken 

time, although he has ultimately gotten it. Can you tell me why 

you would require your inspector general to go through a process 

to get specific access to materials on his investigations and the 

delays that come with it? 
35 

Attorney General HOLDER. Well, first, I think it is important to 

note that, as he acknowledged, that the IG has gotten all the documents they believe were necessary—— 

Mr. ISSA. He said in time in the two particular cases which he 

felt were helpful to you that you approved it, but is it not a form 

of soft intimidation by any stretch of the imagination to force an 

independent individual who is supposed to have unfettered access 

to these documents in their investigations, which could even include an investigation of high-ranking individuals working for you? 

To have to ask for that by definition requires him to disclose and 

to essentially beg for permission to have access to documents. Is 

that not correct? 

Attorney General HOLDER. Yes. This is not a policy choice that 

has been made by me or any other attorney general. There are 

legal restrictions as to what the Department can do with certain 

sensitive information that is unique to the Justice Department, 

such as wiretap information, or grand jury information that require 

the Attorney General or perhaps the Deputy Attorney General to 

grant the inspector general access to that information. It is a legal 

restriction. 

Mr. ISSA. But you can grant him broad access just as you grant 

certain individuals broad access. It is not something where he 

needs to apply or needs to go through a process, is it? 

Attorney General HOLDER. I am not sure exactly what the process is, but I do not think it is anything that has had a negative 

impact on any investigation that he has tried to conduct. 

Mr. ISSA. Well, it has had a negative impact. It has caused 

delays. Ultimately he was granted in the two examples where he 

went through the process, but, well, I think it speaks for itself that 

this is not the treatment that IGs normally find, and it is one that 

is inconsistent with the act. 

I would like to next go to Director B. Todd Jones’ testimony last 

week before my other Committee in which, although he admitted 

that under Department of Justice observation that the ATF had 

used mentally disabled persons with some consistency around the 

country in their investigations, often having to train them, for example, on what a machine gun was, and then send them out to buy 

the machine gun after they taught them what it was, and then arrested them for buying it. He said that, in fact, his agents were not 

able to tell that somebody had an IQ of 50, and as a result it really 

was not something that was a target. It just happened. 

First of all, have you looked into this pattern by ATF of using 

mentally disabled individuals in their investigations? 

Attorney General HOLDER. Yes, I am familiar with that, and 

what I guess you are referring to are these storefront operations. 

Mr. ISSA. Correct. 

Attorney General HOLDER. I am greatly troubled by them. The 

head of ATF has asked the inspector to look at these. There are 

no longer any storefront operations that are in existence. And the 

conduct that you talk about, from my perspective, is very troubling. 

Mr. ISSA. I appreciate that. Would it be possible to have the Civil 

Rights Division be the one that leads looking at the question of the 

use of the mentally disabled? 
36 

Attorney General HOLDER. Well, I am sure the IG will look at it 

and make determinations, and then they typically will make recommendations—— 

Mr. ISSA. And I appreciate the IG’s independence in this matter. 

Lastly, the investigation into the IRS’ targeting of conservative 

groups, my understanding is it is being done in the Civil Rights Division. Is that correct? 

Attorney General HOLDER. It is being what? 

Mr. ISSA. It is being done under the Civil Rights Division. 

Attorney General HOLDER. No, it is being done by the Civil 

Rights Division, the Criminal Division, the FBI, and the Inspector 

General of the Treasury Department. 

Mr. ISSA. Why would it not be appropriate to be done under Public Integrity, which is an organization you once were very involved 

in, that, in fact, is sort of considered to be one of the premiere? And 

why would they not have the lead? 

Attorney General HOLDER. Well, the Public Integrity Section is 

involved. 

Mr. ISSA. And would it appropriate for them to have the lead 

since ultimately the actions of Lois Lerner and others clearly go to 

the question of public integrity? 

Attorney General HOLDER. I mean, it is hard to say who precisely 

has the lead. I mean, as I have been briefed on this, the person 

that—— 

Mr. ISSA. Well, you have never told us who is doing it, so it is 

kind of hard for us to know who has the lead, too. 

Attorney General HOLDER. Well, no. As I said, Criminal, Civil 

Rights, FBI, Treasury IG. As I look at the investigation and think 

of who is in the lead, I think of the Criminal Division as having 

the primary responsibility. And I talk to the Assistant Attorney 

General of the Criminal Division, but the people who are doing the 

work on the ground for the Criminal Division are the people from 

the Public Integrity Section. 

Mr. ISSA. And do you have access to 6103 information in order 

to further your investigation? 

Attorney General HOLDER. Tax information? 

Mr. ISSA. As necessary. Have you been granted as necessary to 

tax information that would allow you to know the individuals that 

were targeted and so on? 

Attorney General HOLDER. Well, I am not sure I have had that 

degree of granularity, but I have access to tax information pursuant to the investigations that we conduct. 

Mr. GOODLATTE. The time of the gentleman has expired. 

Mr. ISSA. Thank you. 

Mr. GOODLATTE. The Chair recognizes the gentleman from Tennessee, Mr. Cohen, for 5 minutes. 

Mr. COHEN. Thank you, sir, and, General Holder, I have great regard for you, but I have got some questions. We will do a lightening round if you do not mind because I have got a lot of issues, 

as you well now. 

First of all, is all politics is local. Shelby County, Tennessee, 

Memphis, has an election coming up. Early voting starts April 16, 

a primary election and then a general election in August. We have 

had a whole list of problems with the Election Commission. We 
37 

have written you over the last couple of weeks, Pastor Kenneth 

Whalum in Memphis and myself. And we will have a letter, which 

my staff member will give to one of your staff members. 

We would just like to have your assurance that you will look into 

having monitors because there have been elections thrown out because they let people vote that should not have been allowed to 

vote in certain elections. And people have been refused the right 

to vote and all kinds of problems. Can you assure us that you will 

looking into having monitors in Shelby County to see that the elections are done fairly? 

Attorney General HOLDER. We will look at that. In fact, I think 

we received a letter from you last week regarding an upcoming 

election in Shelby County, and we are reviewing that information. 

But we will look at anything else that you provide to us. 

Mr. COHEN. Thank you. Well, Pastor Whalum had called up, and 

he has been speaking to an individual in your office, and he had 

not gotten the letter. And it has been 2 weeks, and going through 

the legislative liaison sometimes take time. But thank you. 

Going to policy, as you well know, I am very concerned about our 

drug policy in our country and the way it affects minorities and the 

way it takes away people’s liberties by incarcerating them. I appreciate what you have done, and some of the statements you have 

made have been most forward moving, and I have appreciated 

them. But you recently talked about changing marijuana from 

Schedule 1 and said you would work with Congress, and Congress 

should take the lead. 

Let me suggest to you that it is my understanding under Title 

21 that you have the authority to initiate a request to the Secretary of Health and Human Services to do a study to look into 

marijuana and Schedule 1, and that you could then change it. In 

my humble opinion, and I think the majority of the people in this 

country, there is no way that marijuana should be Schedule 1 because it is not in the same class as heroin and LSD as it in the 

Code, which breeds contempt for our laws. 

And there is certainly a medical basis. Dr. Sanjay Gupta has 

shown this in his broadcasting that people have voted in in 20 

States for multiple sclerosis, for children with epilepsy and seizures, so it has medical benefit. And to be Schedule 1 it says it has 

no medical benefit. Well, that is just fallacious. And the fact that 

it says that there is a high susceptibility or likelihood of abuse, it 

is nothing like heroin. That is absurd. 

So I would like to ask you, why will you not act, as the President 

suggested, and I predict Congress will not act in this area because 

Congress is generally like tortoises. Until it is really clear, they are 

not going to put their head out there. But the Administration has 

acted on the Immigration Act and the Environment Policy Act, and 

wages, and minimum wages, et cetera. Why will the Administration not act with the pen and the phone to help people out with 

taking this out of Schedule 1 so it can be studied because we are 

all in favor of research? 

Attorney General HOLDER. Well, I think that we actually have 

acted in a responsible way in how we have made the determination, how we are going to use our limited resources. The policies 

that I have announced as part of the Smart on Crime initiative, the 
38 

directions that I have given to people in the field I think reflect a 

sensitivity to, again, the resource restraints that we have, the division between Federal and local law enforcement responsibilities. 

And I think that we have acted appropriately. 

Mr. COHEN. And those areas you certainly have, but on Schedule 

1 all you have to do is to ask the Secretary to make a scientific 

and medical evaluation, and after that then you can go further and 

make a determination on whether it should be Schedule 1. Schedule 1 says you cannot do any research on it. Why will you not ask 

the Secretary under Title 21, Chapter 13, to initiate that program 

to get marijuana out of Schedule 1? It is obviously not Schedule 1. 

Attorney General HOLDER. Well, what is obvious to one is perhaps not to another. I think, as I said, that given the responsibilities that I have—— 

Mr. COHEN. Well, let me ask you this. The Secretary would make 

that study to determine it. Why not initiate the opportunity for the 

Secretary to make the study and base it on science? And until you 

do that, it is not going to happen. 

Attorney General HOLDER. Well, as I said, within the world in 

which I have primary responsibility, I think we have acted in a 

way that is appropriate. 

Mr. COHEN. In those areas you have. ‘‘The Attorney General 

shall before initiating proceedings under Subsection A to remove a 

drug or other substance entirely, shall request from the Secretary 

a scientific and medical evaluation.’’ That is all you have to do is 

request it. That does not take away from your limited resources. 

Attorney General HOLDER. Well, as I said, I am satisfied with 

what we have done. 

Mr. COHEN. Commutations. You know I am interested in those 

issues as well. Have you looked at having a group of commutations 

to people who were convicted under crack, under the old determination of 100 to one instead of the 18 to one because of the fairness in sentencing law, and having all of those people in a group 

commutation be put forward? 

Mr. GOODLATTE. The time of the gentleman has expired. 

Mr. COHEN. Can he answer the question? 

Mr. GOODLATTE. The Attorney General will be permitted to answer the question. 

Attorney General HOLDER. Well, I do not think that we would be 

looking for group commutation. We would be looking for individuals 

who would be deserving of clemency or commutations given the nature of their conduct, their lack of ties to violence or to drug dealing gangs or cartels. We have begun an initiative to identify additional clemency recipients. This is something that I know is important to the President, and we are trying to come up with ways in 

which we can make individualized determinations about who 

should receive clemency. 

Mr. COHEN. Thank you. 

Mr. GOODLATTE. The Chair recognizes the gentleman from Virginia, Mr. Forbes, for 5 minutes. 

Mr. FORBES. Thank you, Mr. Chairman. And, Mr. Attorney General, thank you for taking time to be with us today. I think it 

comes as no surprise that a great many members of this body, I 

think, a great many individuals across the country believe and are 
39 

very concerned about the overreach they perceive coming from your 

office, the IRS, and the White House. And we had perhaps a suggestion today that the House Budget may in some way curtail that. 

If, in fact, that is the case, then many of us who were going to vote 

for that budget will now not just vote for it, but embrace it wholeheartedly because we get so frustrated in not being able to get answers and to control some of that overreach. 

One of the areas is what you have been just talking about, the 

clemency situation and pardons. And I know your Deputy Attorney 

General, Mr. Cole, on January 30th actually solicited petitions for 

pardon and for clemency in the speech that he gave to the New 

York State Bar Association. And he referenced the fact of overcrowding in our prisons. He also then mentioned that some of these 

individuals are truly dangerous people who threaten the safety of 

our communities and need to be taken off the streets for a long 

time. 

But I guess my first question is, can you give me any precedent 

of previous Attorneys General’s Offices who have solicited petitions 

for pardons or clemency limited to a particular category of crime? 

In other words, he did not mention individuals who might have 

been convicted of white-collar crime, or campaign finance laws, or 

a host of other areas that have been overcriminalized, who also do 

the overcrowding that we are very concerned with, but have a 

much lower recidivism rate. 

Attorney General HOLDER. Well, we have a Pardon Attorney’s Office that deals with a whole range of Federal crimes for which people have been convicted and then seek relief. 

Mr. FORBES. I understand that, but the concern for us is he actively was soliciting. He was actually asking the Bar Association to 

bring forward those petitions, but he only talked about drug offenses. He did not mention any of those others. And my question 

is, is there any precedent that you know of that any other Administration has ever solicited petitions for clemency or pardon limited 

to one particular category of crime? 

Attorney General HOLDER. I think what the Deputy Attorney 

General was responding to, and which I support—I am not putting 

it on him; I support this—is that we are dealing with a particular 

problem, and that is I think the pendulum swung a little too far 

in the 80’s. I mean, I was the U.S. attorney here in Washington, 

D.C. when this was the murder capital of the country. And we 

went, I think, a little too far with regard to some of the sentences—— 

Mr. FORBES. Can I ask you about that then, if I can, because one 

of the things he goes on to list is this. He says, ‘‘We’re looking for 

petitions for individuals who had,’’ and these are his quotes, ‘‘nonviolent, low-level drug offenders who were not leaders or had significant ties to gangs or cartels, without an extensive criminal history, who face life or near life sentences.’’ 

And my question to you is, give me an example of someone who 

would fall in that category, because as I am sure you know, under 

183553(f), that category would not have been subjected to mandatory minimums anyway. And that was put into law in 1984, and 

prior to that time anybody convicted would be subject to parole. So 

give me an example of someone who would have been a nonviolent, 
40 

low-level drug offender, not a leader or involved in organized gangs 

or cartels, no extensive criminal history who would have been facing a life or near life sentence. 

Attorney General HOLDER. A drug mule who would bring drugs 

from New York and got stopped at the bus terminal here in Washington, D.C. with a whole bunch of drugs in a bag could get 

charged not only with the possession of those drugs, which would 

have resulted in a huge sentence, but could have been charged with 

as being part of a conspiracy with all of the drugs that were involved with that conspiracy. And although that person did not engage in a violent crime and was nothing more than a drug mule, 

could have gotten a life sentence. 

Mr. FORBES. Well, he could have, but he would not have had a 

mandatory life sentence, would he? And my final thing, Mr. Attorney—— 

Attorney General HOLDER. Well, all right, if you get 60 or 70 

years, that is not technically a life sentence—— 

Mr. FORBES. Well, Mr. Attorney General, my time is about to expire. 

Attorney General HOLDER. That, in effect, is a life sentence. 

Mr. FORBES. But here is my question. 

Attorney General HOLDER. Which is why it is a life sentence or 

near life sentence. 

Mr. FORBES. Is it not true the prosecutor, the jury, and the judge 

who were actually handling that case would have had a much better opportunity to determine that sentence than somebody in your 

office 5 years down the road? 

Attorney General HOLDER. Well, except that the jury and the 

judge’s hands were tied at that time by the sentencing guidelines 

or by mandatory minimums that were tied to the amounts that 

were involved as opposed to the conduct that a particular person 

engaged in. And that is the wrong that we are trying to redress. 

Mr. FORBES. Well, I think if you look again and give me some 

examples—I know my time is about to expire—that would not have 

complied under 183553(f), which would have gotten them out of 

those mandatory sentences. And with that, Mr. Chairman, I yield 

back. 

Mr. BACHUS [presiding]. I thank the gentleman from Virginia. At 

this time we recognize Mr. Johnson, the gentleman from Georgia. 

Mr. JOHNSON. Thank you, Mr. Chairman. General Holder, good 

to see you today, sir. The U.S. has the highest incarceration rate 

in the world, and $27.4 billion is your budget request for the Department of Justice for 2015. And $8.4 billion of that $27.4 billion 

is for Federal prisons and detention facilities, is it not? 

Attorney General HOLDER. I believe that is correct. I do not 

know. 

Mr. JOHNSON. So about a third of your budget is to incarcerate 

people at the highest rate in the world, not just the civilized world, 

but in the world. That is disturbing. And of the people who are incarcerated, about 40 percent of them are African-Americans, is that 

a fact? Would you disagree with that? 

Attorney General HOLDER. I think that number is about right. I 

do not have the precise number. 

Mr. JOHNSON. And about 20 percent are Hispanics. 
41 

Attorney General HOLDER. I believe that that is also correct. 

Mr. JOHNSON. Yes. But now, has that line item in the budget, that $8.4 billion for Federal prisons, has it been increasing or decreasing? 

Attorney General HOLDER. It has been increasing. You are correct that about a third of our budget now goes to our Bureau of 

Prisons, and given the state of our system, that is deservedly so. 

We have to support the people who work in those facilities. But as 

we spend more money as it has increased over the years, it means 

that we have less money to hire agents, prosecutors, or to provide 

grant money to our State and local partners. There is a finite 

amount of money that we have, and the more and more that goes 

to our Federal Bureau of Prisons, the less we have to do all the 

other things that people want the Justice Department to do. 

Mr. JOHNSON. And as it goes to the Federal Bureau of Prisons, 

what percentage of those funds go to private for-profit detention facilities? 

Attorney General HOLDER. I do not know the number of that, but 

we can get you a percentage. 

Mr. JOHNSON. Approximately, would it be about a third or a 

fourth, half? 

Attorney General HOLDER. I simply do not know. I will have to 

get you that information. I do not know. 

Mr. JOHNSON. I think that is pretty important. Do the private 

for-profit facilities house Federal detainees and inmates at a higher 

cost than the Federal Government can do it or at a lower cost in 

general? 

Attorney General HOLDER. Again, I am not just familiar with 

what our relationship is in terms of numbers or the funding stream 

that goes to any private facilities that we might use. I just do not 

know the answer to that. 

Mr. JOHNSON. Well, let me ask you this. Your agency is responsible for investigating and prosecuting not just blue collar criminals, but white-collar criminals as well. But with the white-collar 

criminals, corporate theft, let us take, for instance, those corporations that have a much greater ability to fight back because they 

have resources. Has the fact that your Agency’s budget been 

trimmed over the past 3, 4, 5 years, this trimming of your budget 

or cutting of it actually, has it affected your ability to go after these 

corporate criminals? 

Attorney General HOLDER. I would say to date, no. But I will tell 

you that if sequestration were to reappear in 2015, ’16, whenever 

it might show up again, the capacity of the Justice Department to 

do that which the American people expects us to do from a range 

of things, from national security, to white-collar enforcement, to 

violent crime enforcement would be negative impacted. We have to 

at all cost—at all cost—avoid the mistake that was sequestration. 

Mr. BACHUS. I thank the gentleman from Georgia. And at this 

time we will hear from the gentleman from Iowa, Mr. King, for 5 

minutes. 

Mr. KING. Thank you, Mr. Chairman. Attorney General, thanks 

for your testimony. I appreciate you coming here. I recall a previous exchange in a previous hearing between us, and I believe I 

asked the question to the effect of your priorities, are they directed 
42 

by the President into your office or are you an independent department. And I believe your response was generally I am independent. 

I do not take direct direction from the President, and it is your job 

to provide equal justice under the law. That would be generally the 

response that I recall. And I note you are nodding your head in relative agreement. 

Attorney General HOLDER. I have been here too long. You guys 

can quote too many things that I have said previously, but, yes. 

[Laughter.] 

I think that is right. That is right. 

Mr. KING. Well, and I want to make sure I represent it accurately. I think that is an appropriate response. 

Attorney General HOLDER. That is fine. That is fine. 

Mr. KING. And so, I would like to just go through a list of some 

of the things that pop into my head that I am thinking about here. 

One of them is relatively new. It has been back in the news fairly 

recently, and that is the Senator Ted Stevens issue. And I understand that that prosecution took place before you took office, but 

it has been reported as recently as March that an FBI agent was 

severely disciplined, and that discipline was imposed for improper 

actions in the investigation and prosecution of Senator Ted Stevens. 

Now, I think it is clear that it is very likely he lost his Senate 

seat over that investigation, over that conviction, and then subsequently was killed in a plane crash. That is one piece about the discipline within the FBI that I would like to hear about. 

Second is, the overreach by allegedly Carmen Ortiz in the case 

of Aaron Swartz, who committed suicide. The third one would be 

we have seen as the knockout game has been reported at least in 

the news to be primarily Black on White crime. I do not know of 

any prosecutions there except for the Federal investigation and the 

prosecution of Conrad Barrett, who was the anomaly as far as I am 

reading the news, as a White on Black crime of the knockout game. Next, Dinesh D’Souza allegedly transferred $20,000 that showed 

up in a U.S. Senate campaign targeted for this investigation. I 

would presume there are thousands in America who are likely engaged in similar acts are unprosecuted. Governor Bob McDonnell 

for the charges brought against him. Now five former U.S. attorneys general have come out in Virginia and said they think this is 

overreach and outside the definition of the law. And then I am 

thinking about Governor Chris Christie, who, when the situation 

known as Bridgegate came up, within a week there were Federal 

investigators investigating the Hurricane Sandy issue. 

Now, those are just things that I put down here while I am sitting here listening to the testimony. Here is the other side. Black 

Panthers’ prosecution is cancelled about the time you took office. 

Tom Perez, the Assistant General Attorney at the time, now Secretary of Labor, sat just nearly where you are and said he had provided the lowest penalty allowable under law. We know that was 

not true. It was the smallest de minimus penalty provided under 

law. 

You have heard Jim Sensenbrenner bring up the James Clapper 

issue in his testimony, the conflicting testimony under oath. I am 

thinking of another governor, Governor John Corzine, a billion dol-
43 

lars missing in Global Crossing. I do not know of a prosecution 

there that is taking place. Lois Lerner, I think she would be a candidate. 

Then I am thinking of entire classes of people that have been exempted by this Administration down to the point of I understand 

this is immigration enforcement. However, 99.92 percent of those 

who have been removed are not removed because they are unlawfully present. Only .08 percent are for that narrow little reason because classes of people have been created by this Administration 

exempted from the law, at least in fact. 

And then marijuana companies exempted from enforcement of 

the law as well as essentially a suspension of the Federal enforcement of marijuana laws. We have talked about DOMA. I take us 

to voter fraud and the Texas issue where Texas says I want a voter 

ID. They get labeled as a poll tax and a racist plot. 

My question really is, have you prosecuted anyone in this Administration? Have you impaneled a grand jury, have you investigated 

anyone in this Administration, because it looks to me that those 

folks that are on the other side of the aisle are getting extra scrutiny, and those on your side on your aisle are getting no scrutiny. 

Attorney General HOLDER. First, I am not going to comment on 

any cases that are pending. I will simply say that we have followed 

the facts and the law in making our prosecutive determinations 

and making our investigatory decisions. This is an Administration, 

this is a Justice Department that I have run, and I am proud of. 

The men and women who are the career employees in the Department for lesser periods of time make their decisions based only on 

the facts in the law and conduct themselves in the way that is in 

the best traditions of this Department. 

And I will put my record up against any other attorney general, 

any other Justice Department. And any hint that we have engaged 

in anything that is partisan or inappropriate in nature, I totally 

1,000 percent reject. 

Mr. KING. But you have not really responded to the question of 

whether you have investigated or—— 

Mr. BACHUS. I thank the gentleman. 

Mr. KING [continuing]. Or indicted a member of the Administration. 

Mr. BACHUS. Mr. King—— 

Mr. KING. That would be an unresponsive response I would assert. 

Mr. BACHUS. Time has expired. Thank you. At this time, I would 

recognize the at large Member from Puerto Rico, Mr. Pierluisi, for 

5 minutes. 

Mr. PIERLUISI. Thank you, Mr. Chairman. It is good to see you 

again, General. I have two questions. I would like to ask them 

both, and then give you an opportunity to respond. 

The first issue is DoJ’s response to drug-related violence in Puerto Rico. The Consolidated Appropriations Act approved in January 

requires ONDCP to coordinate the preparation and publication of 

a Caribbean border counter narcotics strategy with a focus on 

Puerto Rico and the USVI. The strategy will outline the steps that 

the Federal Government is taking and recommend additional steps 

it should take to reduce the supply of drugs entering Puerto Rico 
44 

and the USVI, and to lower violence associated with the drug trade 

in the two territories. 

Now, a strategy is essential, but it is not enough. The strategy 

must be implemented with the right resources and personnel. I 

have made no secret of the fact that I think DoJ’s response to the 

crisis in Puerto Rico has not been sufficiently robust. Unlike DHS, 

DoJ has been reluctant to surge personnel to Puerto Rico. At the 

same time, DoJ does deserve credit for executing an MOU with the 

Puerto Rico Department of Justice so that certain crimes that 

would otherwise be tried in State court are tried in Federal court 

instead, often using State prosecutors deputized by DoJ for that 

purpose. 

So my first question is, are you satisfied DoJ has the appropriate 

level of personnel from the DEA, FBI, ATF, and the U.S. Attorney’s 

Office in Puerto Rico to combat trafficking and violent crime in 

light of the severity of the problem there? 

The second issue I am raising involves again the Consolidated 

Appropriations Act because it includes a provision which I fought 

long and hard to secure that provides funding to the Puerto Rico 

Elections Commission to conduct the first federally sponsored plebiscite in Puerto Rico’s history. This language is a response to a 2012 

plebiscite in which a majority of voters said they do not want Puerto Rico to remain a territory, and more voters expressed a desire 

for statehood than any other option. 

As you confirmed to Mr. Serrano at a hearing last week, the law 

requires DoJ to ensure that voter education materials and the ballot prepared by the Elections Commission in Puerto Rico are compatible with U.S. law and policy. The law also states that the purpose of the plebiscite is to resolve Puerto Rico’s status once and for 

all. 

I have introduced legislation that proposes to structure the federally sponsored plebiscite as a straightforward vote on the admission of Puerto Rico as a state as was done in Alaska and Hawaii. 

This structure is eminently fair. Those who support statehood can 

vote yes and those who oppose it for any reason can vote no. My 

bill has 130 co-sponsors and a Senate companion bill has been introduced. As I see it, structuring the plebiscite as a vote on Puerto 

Rico’s admission as a state is consistent with U.S. law because 

statehood is a constitutionally valid status that would resolve Puerto Rico’s political future. Do you agree? 

Attorney General HOLDER. Well, with regard to the question of 

resources, I think that, you know, given the flows that we see of 

drugs through the Caribbean, through the Virgin Islands, through 

Puerto Rico, the levels of violence that we see in Puerto Rico, there 

is clearly a need for additional resources. We are a resource 

strained institution, we simply are. And we have tried to the best 

we could. 

I was in Puerto Rico in July of 2013 and announced a consent 

decree with the police department there. I met with the governor 

to try to talk about ways in which we might be of greater assistance, and we are trying to do what we can. But unfortunately, we 

have to be creative. I wish I had more resources, and if we did 

those would be places where I think we could make great use of 

those additional resources. 
45 

When it comes to the voting initiative, as I indicated, I guess, to 

Congressman Serrano, the role of the Department is really limited 

to reviewing, I guess, those documents and determining whether 

the documents put out by the State Election Commission of Puerto 

Rico are compatible with the Constitution, the laws, and policies of 

the United States. There is a $2.5, I guess, million carve-out Byrne 

JAG grant for this objective, but we are not really engaged in the, 

I would say, the guts of the effort as much as just to oversee to 

make sure that the materials are appropriate that are handed out. 

Mr. PIERLUISI. Can I quickly say, but would you not agree that 

if the vote involves an up or down vote on statehood, that you 

would have to say that that is consistent with U.S. law? There is 

nothing wrong with that in terms of U.S. law and policy? 

Mr. BACHUS. I will give the Attorney General—— 

Attorney General HOLDER. If that were an issue that were presented to us, I mean, that is one that obviously we would seek to 

answer. But the task that we have been given is really to just 

make sure that these materials are consistent with our constitutional laws and policies. That is the only involvement, I think, that 

we have, at least at this point. 

Mr. PIERLUISI. And would that—— 

Mr. BACHUS. I thank the gentleman from Puerto Rico. And at 

this time I will recognize the gentleman from Arizona, Mr. Franks, 

for 5 minutes. 

Mr. FRANKS. Well, thank you, Mr. Chairman. And, General Holder, thank you for being here. General Holder, you have risen in law 

enforcement to the very pinnacle of that profession, and those of us 

here on this panel have spent a lot of our lives in search and in 

the cause of the right laws and respect for the rule of law. And I 

would hope that there would be, in light of that, on both our parts, 

a strong consensus and a common respect for this thing called the 

rule of law. And yet earlier, Steve Chabot, Congressman Chabot, 

mentioned that the Affordable Care Act’s employer mandate was 

delayed by this Administration for a year despite statutory language instructing that penalties associated with the mandate ‘‘shall 

apply’’—I am going to say it very clearly—‘‘shall apply 2 months 

beginning after December 31, 2013.’’ 

Now, your testimony was that the Treasury Department had 

come up with some legal interpretation that that did not apply. 

And I do not know whether that is dumbfounding or just heartbreaking. I mean, I really do not. If we cannot read that language 

clearly, then I think we are in trouble. So my next question to you 

may be superfluous. It may be a hopeful and hopeless exercise 

here. 

But my question is the Religious Freedom Act, Religious Freedom Restoration Act, declares that the Federal Government may 

not substantially burden a person’s exercise of religion unless it 

had a ‘‘compelling reason’’ to do so. Now, you and I know what 

those words mean. So my question is, are the Federal agencies like 

yours or Federal agencies in general bound by statutory requirements put in place by Congress, like the Religious Freedom Restoration Act requirements I just described? Are they bound by 

those requirements put in place by Congress when they promulgate 

regulations? 
46 

Attorney General HOLDER. Sure. I mean, if there are statutory 

mandates from Congress, those are the kinds of things that have 

to be used when we are proposing rules, regulations, things of that 

nature. 

Mr. FRANKS. All right. Then my next question is, did HHS consider the Religious Freedom Restoration Act and comply with it 

when it promulgated the HHS mandate which requires many religious employers to arrange and pay for employee health insurance 

that covers abortion-inducing drugs, contraceptives, and sterilization? Did they comply with that statute? 

Attorney General HOLDER. Well, I think the way in which the act 

was put together is consistent with the act, the way in which the 

religious organizations could express their concerns and the options 

that they had. I mean, this is something that is actually the subject 

matter of an ongoing case, and I do not want to get too much into 

it. But I think that the policy that the Administration has taken 

is consistent with the act that you referenced. 

Mr. FRANKS. I do not know. I mean, it sounds like we are on two 

different planets if that is the case. But let me ask you then, did 

the Department of Justice, including you or the Office of Legal 

Counsel, before any of the cases came about—I am not asking you 

to touch on any existing litigation—but before any of this occurred, 

did you provide any legal opinions, written or oral, regarding the 

religious employer exception to the HHS mandate? 

Attorney General HOLDER. Well, I had said previously the Department generally does not disclose the—— 

Mr. FRANKS. But before all of that. I am trying to get ahead of 

that because we wrote you a letter like this, and the response we 

got back, we could not have been able to tie the two together it was 

that unresponsive. 

Attorney General HOLDER. I am sorry, ‘‘the response did not?’’ I 

did not hear you. You said—— 

Mr. FRANKS. We wrote you a letter and your response was a total 

non-response, much like this. I mean, I am saying before the litigation ever occurred, did you ever come up—it is not a hard one, Mr. 

Attorney General. 

Attorney General HOLDER. It is not a hard answer. The Department does not generally disclose the content of confidential legal 

advice to the President or other governmental decision makers. It 

is something that not only this Department does, but other Departments of Justice. It is a policy we have always followed. 

Mr. FRANKS. Well, I am not countering that policy, but asking 

you if you had done anything prior to that that were legal opinions 

regarding the religious employer exception before any case was 

filed. I mean, I do not think you are going to answer the question. 

But could you provide any copies of any opinions addressing the 

application of Religious Freedom Restoration Act to the Federal 

Government, including any opinions by the Office of Legal Counsel, 

that address the need or a lack thereof for the religious employer 

exception? Do you have anything like that you could provide to us 

that would not be related to any litigation, but that would give us 

some idea of what your opinion of this statute is? 

Attorney General HOLDER. Well, as I indicated, it is not our practice to disclose the content of the legal advice that we give. To the 
47 

extent that there are legal questions, you could ask HHS what was 

the basis for their legal determination to promulgate a regulation 

that is of concern to you. 

Mr. BACHUS. I thank the gentleman—— 

Mr. FRANKS. Unfortunately religious—thank you, Mr. Chairman. 

Mr. BACHUS. I thank the gentleman from Arizona. At this time, 

I will recognize the gentlelady from California, Mrs. Chu, for 5 

minutes. 

Ms. CHU. Thank you, Mr. Chair. Mr. Holder, the DoJ’s existing 

guidance on racial profiling issued in 2003 outlines provisions to 

ban some forms of profiling. However, the guidance does not apply 

to profiling based on religion and national origin. This is problematic because profiling based on religion or nationality is significantly increasing. 

Now, it is my understanding that DoJ has been engaged in a review of its guidance throughout the past few years. In April 2012, 

over 70 members of the House and Senate sent you a letter about 

this issue. When you testified before this Committee last year, you 

indicated that DoJ was nearing the end of the review, but still we 

have yet to see the updated guidance. What is the status of the review, and how will you address the issue of racial profiling based 

on religion and national origin? 

Attorney General HOLDER. Well, that review has, in fact, been 

underway for, as you say, an extended period of time. Well, I will 

say just maybe a little too long, but I think we are near the end 

of that process. We have made a great deal of progress, and my 

hope would be that we be able to complete the review in the relatively near future, and that we will be in a position to share with 

Members of Congress and the American people the result of that 

review. This is something that will happen on my watch. 

Ms. CHU. Do you have a time? Exactly when will this happen? 

Attorney General HOLDER. I am not sure that I can say exactly 

when, but I can say that we are far closer to the end now than we 

were before. I mean, this has been a painstaking process, but I am 

hopeful that we will be at an end relatively soon. 

Ms. CHU. As you know, many people are anticipating it, so we 

look forward to this. I understand that the racial profiling guidance 

includes a broad exception for counterterrorism investigation and 

national security. Yet there have been reported instances where 

the FBI has targeted mosques or profiled Muslims for little reason 

other than their faith. This occurred in San Francisco under the socalled Mosque Outreach Program in which the FBI collected information on the religious views and practices of Muslims in northern 

California and shared their surveillance with other government 

agencies, but without any apparent evidence of wrongdoing to target it. 

So of course it would be a great step forward if the DoJ guidance 

on racial profiling were amended to include a ban on discrimination 

on the basis of religion or national origin. But I am concerned 

about the national security exception eroding any such protections. 

Will the revisions under discussion include any changes to the national security exemption, and how will the DoJ ensure that the 

rights of innocent Americans are protected? 
48 

Attorney General HOLDER. Well, I mean, I will say that it will 

be for others to decide whether the changes are appropriate, go far 

enough, do not go far enough. But the national security exception 

has been the focus of the effort that has been underway, as I said, 

for this extremely long period of time. And once announced, that 

will be the primary topic that will be discussed with regard to what 

the Justice Department has responsibility for. 

Ms. CHU. Okay. Well, switching gears, I would like to ask about 

the DoJ’s Executive Office of Immigration Review. Mr. Holder, 

since so many non-citizens in immigration courts do not have attorneys and lack a basic understanding of the immigration court processes, what steps are the Executive Office of Immigration Review 

proposing to give non-citizens better access to information so they 

can move through court proceedings more expeditiously without 

sacrificing due process? 

Attorney General HOLDER. We are trying to make our EOR system better. We have a backlog of about 358,000 cases. It is a 56 

percent increase from 2009. Our budget request asks for additional 

immigration judge teams so that we can get this backlog down to 

a better level. We are also trying to come up with ways in which 

make sure that people who find themselves in the system have 

adequate representation, doing a variety of things in that regard. 

We are trying to deal with the problem of unaccompanied minors. 

There are a whole range of cases, a whole range of issues, that we 

are trying to deal with. 

We are trying to be, again, as creative as we can, though we simply need at some level, we just need more money to put in place 

these teams to reduce the backlog, to otherwise find ways in which 

we can come up with this program to deal with people who have 

mental health issues, to deal with unaccompanied minors, and then 

deal with the other problem of people who appear and do not have 

either counsel or do not have adequate counsel. These are all issues 

that are problematic. 

And I point out again the need for a comprehensive immigration 

reform package that would deal with a whole variety of other 

things, but would help us a great deal with regard to what the Justice Department component is of the problem. 

Ms. CHU. Thank you. I yield back. 

Mr. GOODLATTE [presiding]. The Chair thanks the gentlewoman, 

and recognizes the gentleman from Texas, Mr. Gohmert, for 5 minutes. 

Mr. GOHMERT. Thank you, Mr. Chairman. General Holder, back 

April 27, 2011, at my request, the Chairman of this Committee, 

Lamar Smith, sent a letter to the Justice Department asking for 

the documents in the Holy Land Foundation that had been used to 

prosecute them. And since then we have had an ongoing back and 

forth, most recently in a letter June 13, 2013, asking for the documents. And I was fairly specific to make it clear that I got the documents that the Department of Justice handed over to people convicted of supporting terrorism. 

They are terrorists. We have given them the documents, the Justice Department has, and my information is that they have now 

been put on disk and sent to Illinois. So we know they are easily 

provided, just not to Members of Congress. But in the response 
49 

after 7 months approximately from my letter in June, I am told, 

well, here is a link that will have nearly 500 publicly available exhibits that were admitted into evidence, and then was also told to 

check the public access to court electronic records. 

Attorney General, I have read in the 5th Circuit opinion about 

9,600 summaries of transcripts of conversations that the Justice 

Department had that were made available to attorneys for the terrorists. I still do not understand why your Department can provide 

documents to terrorists’ lawyers, to four out of eight of the terrorists, and not provide them to Members of Congress. 

All I am asking again is could we please get the documents that 

have been put on disks of the 9,600 summaries of transcripts and 

the documents that are produced to the terrorists and not some 

link, but documents that you made available or your Department 

made available to the terrorists. I renew my request. 

Attorney General HOLDER. Well, I think what we promised to do 

is to provide you and your staff with—— 

Mr. GOHMERT. Sir, I have read you what your Department promised, and it is inadequate. And I realize that contempt is not a big 

deal to our Attorney General, but it is important that we have 

proper oversight. 

Attorney General HOLDER. You do not go there, buddy. You do 

not want to go there, okay? 

Mr. GOHMERT. I do not want to go there? 

Attorney General HOLDER. No. 

Mr. GOHMERT. About the contempt? 

Attorney General HOLDER. You should not assume that is not a 

big deal to me. I think that it was inappropriate. I think it was unjust. But never think that that was not a big deal to me. Do not 

ever think that. 

Mr. GOHMERT. Well, I am just looking for evidence, and normally 

we are known by our fruits. And there been no indications that it 

was a big deal because your Department has still not been forthcoming in producing the documents that were the subject of the 

contempt. 

Attorney General HOLDER. You never wanted the documents. 

Mr. GOHMERT. But let me move on. There have been other questions asked about—— 

Attorney General HOLDER [continuing]. With regard to contempt. 

The documents that we were prepared to make available then we 

are prepared to make available now that would have obviated the 

whole need. This was all about the gun lobby and a desire to 

have—— 

Mr. GOHMERT. Sir, we have been trying to get to the bottom of 

Fast and Furious where—— 

Attorney General HOLDER. That is what it is all about. 

Mr. GOHMERT [continuing]. People died, where at least a couple 

hundred Mexicans died, and we cannot get the information to get 

to the bottom of that. So I do not need lectures from you about contempt—— 

Attorney General HOLDER. And I do not need lectures from you 

either. 

Mr. GOHMERT [continuing]. Because it is very difficult to deal 

with asking questions. As a former judge, I never have asked ques-
50 

tions of someone who has been held in contempt. We waited until 

the contempt was purged and then we asked questions. 

Let me ask you, do you think someone who believes marriage is 

between a man and a woman violates the civil rights of a same sex 

couple? 

Attorney General HOLDER. Somebody’s personal belief? 

Mr. GOHMERT. Yes. 

Attorney General HOLDER. No. 

Mr. GOHMERT. How about if they have a business and they believe that? 

Attorney General HOLDER. If they have a business? If a business 

has a—— 

Mr. GOHMERT. If it is a private business and the owners of the 

private business believe marriage is between and a woman, are 

they violating a same sex couple’s civil rights, in your opinion? 

Attorney General HOLDER. Well, that obviously a matter that is 

under consideration by the courts, and we have taken a position on 

that. I would not want to get into something that is, as I said, a 

pending matter. 

Mr. GOHMERT. Well, it is your opinion that matters on whether 

you tell attorneys general how to act in the States or how you approach businesses or individuals that have this biblical view that 

the President had when he was a senator in 2008. So I thought it 

was rather important. Well, let me ask you—— 

Mr. GOODLATTE. The time of the gentleman has expired. 

Mr. GOHMERT. Unfortunately. 

Mr. GOODLATTE. The Chair recognizes the gentleman—— 

Attorney General HOLDER. Good luck with your asparagus. 

Mr. GOODLATTE. The Chair recognizes the gentleman from Florida, Mr. Deutch for 5 minutes. 

Mr. DEUTCH. Thank you, Mr. Chairman. And, Mr. Attorney General, thank you for being here. Under your leadership, General 

Holder, the DoJ has reached historic settlements with major banks 

and institutions. There is the $13 billion settlement with 

JPMorgan for its packaging and reselling of toxic mortgages leading up to the financial crisis. There was the $25 billion agreement 

with the Nation’s five largest mortgage servicers for widespread 

foreclosure abuses. There was another $2 billion settlement with 

JPMorgan for its role as chief banker in Bernie Madoff’s multimillion Ponzi scheme, and a $1.9 billion deferred prosecution agreement with HSBC Bank for laundering money for Mexican drug cartels and conducting transactions with Cuba, Iran, Libya, and 

Burma. 

But I want to return to something that Mr. Nadler brought up 

earlier, and I would like to also return, I gather as has been a 

theme this morning, to another hearing that was held before this 

Committee, in this case 3 years ago when we first learned that the 

DoJ was launching a billion dollar lawsuit against Deutsche Bank 

and Mortgage IT for repeatedly defrauding taxpayers when seeking 

insurance for bad mortgages. As you know, that billion dollar suit 

was eventually solved in a $200 million settlement. 

And we had an exchange that although it is awkward, I just feel 

it is necessary to walk through. I had asked whether the Department would pursue criminal charges that could result in jail time 
51 

for the heads of these larger banks and services, and you responded 

that ‘‘If there are individuals who have taken actions that would 

warrant individual liability, that is something that we would pursue.’’ 

So I pointed out that under Sarbanes-Oxley, the statute provided 

for knowingly make false claims, one would be subject to fines of 

a million dollars, imprisonment of up to 10 years. If the claims 

were willful, the violations were willful, fines of $5 million and jail 

time of up to 20 years. And I asked if that would be the basis for 

potential claims, to which you responded, ‘‘There are other statutes 

that we could bring, some as old and tried and true as wire fraud 

and mail fraud. There are a whole variety of tools that we have, 

including those that you have mentioned, and we will try to make 

use of all of those as we continue these investigations.’’ 

I then asked that given the vast array of potential claims that 

could be brought that would bring the potential of criminal violations, when would we expect to see the cases filed, to which you 

said, ‘‘All I can tell you is we are looking seriously. We are going 

to pursue them aggressively, and as soon as we can make a determination and share that with the American people, we will. The 

possibility that those cases could be brought is certainly the case. 

We are in the process of looking them, and it is possible that criminal prosecutions will result.’’ 

It is now 2014, and not a single high-level executive with these 

financial institutions have faced criminal prosecutions. In fact, 

many of the settlements that DoJ has reached with these companies have absolved the individuals of ever answering to criminal 

charges. 

Now, the settlements that I referred to focused on actions by individuals at firms whose actions nearly brought down the United 

States economy. They are not minor infractions. They did not happen by accident. And it is difficult to believe that this illegal activity happened without the knowledge of any executive at any of 

these financial institutions. Indeed, it is difficult for many Americans to have full faith in our criminal justice system when none of 

the principals, none of the decision makers of these companies have 

been prosecuted, have been taken to court, have been tried before 

a jury. 

And I would just quote one more quote from Judge Jed Rakoff, 

Senior U.S. District Court judge, who said, ‘‘Companies do not commit crimes. Only their agents do. And while a company might get 

the benefit of some such crimes, prosecuting the company would inevitably punish directly or indirectly the many employees and 

shareholders who were totally innocent. Moreover, under the law 

of most U.S. jurisdictions, a company cannot be criminally liable 

unless at least one managerial agent has committed the crime in 

question. So why not prosecute the agent who actually committed 

the crime?’’ 

We have seen many large settlements, General Holder, some to 

resolve the claims of illegal actions. But as Judge Rakoff points out, 

companies do not commit crimes, only their agents do. And to date, 

we have not seen any criminal convictions of executives in those 

companies. And I will ask what I asked 3 years ago. Is the Department pursuing or going to pursue criminal claims against the peo-
52 

ple at these companies that committed the crimes that were the 

basis of the large settlements that were reached, the crimes that 

many Americans—many Americans—are still recovering from 

today? 

Attorney General HOLDER. Well, it is still the position of the Justice Department that there is no institution that is too big to prosecute, no person who is too important to prosecute. As I indicated 

in a previous answer, there have been individuals prosecuted from 

JPMorgan, Goldman Sachs, Morgan Stanley Credit Suites, UBS, 

RBL Bank, ICAP, Galleon, SAC, Stanford Financial Group, all 

cases that have been brought against not those companies, but 

against individuals. The $13 billion agreement that we worked out with JPMorgan 

Chase has a carve-out that allows us to pursue criminal charges 

against individuals. And so, when we have capacity to make cases, 

we will make them. 

Mr. DEUTCH. General Holder, but in all of those cases that you 

listed, I appreciate those claims against individuals. But to date, 

none of the executives, none of the decision makers at any of these 

companies have been held accountable. 

Mr. COLLINS [presiding]. The gentleman’s time has expired. The 

Chair now recognizes the gentleman from Ohio, Mr. Jordan. 

Mr. JORDAN. I thank the gentleman. Mr. Holder, I sent you in 

the last several months six letters to you and agencies in the Justice Department, specifically ATF and FBI, asking for answers to 

basic questions—and I would stress ‘‘basic questions’’—about your 

criminal investigation into the IRS targeting of conservative 

groups, conduct that you called outrageous and unacceptable last 

May, and the investigation that you launched last May. 

And we have had countless legal experts tell us that giving answers to these questions, not what witnesses may have said, not 

what they convey, not to questions you ask, just basic information, 

that countless legal experts tell us this is more than appropriate 

to get this kind of general, basic information. 

So I just want to ask you just four quick questions. Bill Taylor, 

the attorney for Ms. Lerner, it has been reported in the press that 

he indicated she actually sat down with an interview at the Justice 

Department or with the Justice Department. So I just want to 

know a few things. When did you interview Lois Lerner, where did 

the interview take place, who was the personnel who conducted the 

interview at the Justice Department, and at any time during the 

interview did she exercise her Fifth Amendment rights and refuse 

to answer questions? 

Attorney General HOLDER. Because this is an ongoing matter, I 

am not going to answer those questions. 

Mr. JORDAN. You cannot even answer—well, let me ask you this. 

Did you interview Lois Lerner? 

Attorney General HOLDER. As I said, this is an ongoing matter, 

and I am not going to comment on an ongoing matter. 

Mr. JORDAN. So her attorney has reported that you did. You will 

not confirm that that, in fact, took place? 

Attorney General HOLDER. As I said, I am going to talk about an 

ongoing investigation. The Justice Department is not in the habit 

of talking about who was interviewed—— 
53 

Mr. JORDAN. But this is part that always frustrates me. I am not 

asking you to tell me what she said. I am just saying did you talk 

to her. Just give me the date. Did you do it last May when you 

started the investigation? Did you interview her in June? Did you 

interview her in July? Did you interview this January? When did 

you do it? 

Attorney General HOLDER. Well, as I said, this is an ongoing 

matter that the Justice Department is actively pursuing, and as 

such, it would be inappropriate to comment on what it is that we 

are doing. 

Mr. JORDAN. How is telling this Committee and, more importantly, the American people, the date you interviewed Ms. Lerner, 

if, in fact, you did that, and where that took place—at her house, 

at the Justice Department, someplace you met? How is that going 

to compromise an investigation? 

Attorney General HOLDER. You do not understand the nature of 

what it is that we are doing. You cannot because you are not a part 

of the investigation. 

Mr. JORDAN. Well, what some of us have made a big issue about 

is the fact Barbara Bosserman, who we have interviewed, have told 

us that she is the lead investigator. You were willing to tell Senator Cruz when he questioned you about that fact. You were willing to tell him she is not the lead investigator. So you were willing 

to give some specific information about the process and who is conducting and who is doing what, so it seems to me you opened the 

door to some of these basic questions when you said she is not the 

lead investigator on this investigation. So I am asking you just 

basic things, too, like did, in fact, you talk to Lois Lerner, or if it 

is not Barbara Bosserman who is the lead investigator, who is? 

Attorney General HOLDER. You seem to think a door has been 

opened. I do not think any door has been opened at all, and I think 

the answers that I have given are consistent with what I have—— 

Mr. JORDAN. Let me ask you about one other thing then. Did 

someone from the Justice Department leak to the Wall Street Journal that no criminal charges will be filed in the IRS investigation 

case? 

Attorney General HOLDER. I have no idea who told that to the 

Wall Street Journal. 

Mr. JORDAN. This is from a January 13, 2014 report in the Wall 

Street Journal. ‘‘The Federal Bureau of Investigation does not plan 

to file criminal charges over the IRS heightened scrutiny of conservative groups, law enforcement official said.’’ Do you know who 

said that? 

Attorney General HOLDER. No. 

Mr. JORDAN. Have you investigated who leaked that information 

to the Wall Street Journal? 

Attorney General HOLDER. Not to date. 

Mr. JORDAN. You have not? A year ago in front of the Senate Judiciary Committee, you said this, ‘‘We have tried more leak cases, 

brought more leak cases during the course of this Administration 

than any other Administration.’’ So leaks are pretty important to 

the Justice Department, and you have not investigated the leak to 

the Wall Street Journal that no one is going to be prosecuted in 

the IRS targeting scandal? 
54 

Attorney General HOLDER. If you look at all the leaks that 

occur—— 

Mr. JORDAN. No, I am asking about this leak. Have you investigated this leak? 

Attorney General HOLDER. Can I answer the question? 

Mr. JORDAN. I am asking you a specific question. You said earlier 

you have not investigated it. I am asking you just to confirm you 

have not investigated the leak to the Wall Street Journal that no 

one is going to be prosecuted in the targeting of conservative 

groups case with the IRS. 

Attorney General HOLDER. As I said, if you look at all the leaks 

that happen in Washington, D.C. in connection with a whole variety of cases—— 

Mr. JORDAN. Mr. Attorney General, with all due respect, have 

you investigated that leak? 

Attorney General HOLDER [continuing]. We have looked at—I answered the question. We have looked at a number of cases. The 

cases that we have focused on in terms of leaks have generally 

been the ones that have dealt with national security. When I 

talked about the bringing of more cases, those were national security cases. When it comes to the disclosure of investigative matters, 

that is something that is reprehensible—— 

Mr. JORDAN. Are you saying this is not important? 

Attorney General HOLDER [continuing]. But it is not necessarily 

something that we investigate in every instance. 

Mr. JORDAN. Just for the record, just for the Committee, just for 

the American people, can you answer one more time, have you investigated the leak to the Wall Street Journal that no one is going 

to be prosecuted in the IRS investigation? 

Attorney General HOLDER. Well, especially when you deal 

with—— 

Mr. JORDAN. It is a yes or no. 

Attorney General HOLDER. No, no, I am not going to answer that 

way. Especially when you deal with information that has no basis 

in fact. What would be the basis if somebody is providing information about a determination that has not been made? 

Mr. JORDAN. If I could real quickly, Mr. Chairman. 

Mr. COLLINS. The gentleman’s time has expired. The gentleman 

from Louisiana, Mr. Richmond, is recognized. 

Mr. RICHMOND. Thank you, Mr. Chairman. First, let me thank 

you, Attorney General Holder and Secretary Duncan for your support of the school discipline initiative, which I think is going to do 

wonders in communities across the country and curb our school to 

prison pipeline. 

Let me start with something that is not necessarily under your 

entire tenure, but it overlaps. And there was an article that detailed more than 650 cases of misconduct in the last 12 years in 

the U.S. Attorney’s Office with Federal prosecutors and so forth, 

which highlights the fact that OPR falls under you. And if you remember our issues in Louisiana, more specifically, Eastern District 

with our U.S. attorney stepping down, the first assistant, the second assistant. 

We have asked for the report to be made public. It has not been 

made public. And my question becomes your stance on the Senate 
55 

bill, which would put it under the Inspector General in an independent area outside the Office of the Attorney General, which we 

plan to file a corresponding bill. So could you give me your feedback on that? 

Attorney General HOLDER. I am not supportive of any action that 

would put under the Inspector General that which now is the responsibility of the Office of Professional Responsibility. OPR has 

had, I think, a long and distinguished history of looking at these 

matters, recommending where appropriate punishment that has 

been carried out. They have a unique expertise. There are specific 

matters that I think only an OPR can handle. I have great respect 

for the Inspector General’s Office, but I do not think that the merger of those functions would be in the best interest of the Justice 

Department. 

Mr. RICHMOND. Well, could I ask a question then? Why would we 

not make the OPR reports and the findings of misconduct automatically public when they conclude investigations and so forth? So 

that would be my general question. 

Attorney General HOLDER. Yes, and we are prohibited from doing 

so by a number of things, but chiefly by the Privacy Act. We do not 

have the ability because of the strictures of the Privacy Act to 

make available or to make public some of the findings we have 

done. We have tried to be more transparent over the years in producing summaries of the reports that we have made available. We 

sometimes share the reports with Congress and then Congress has 

the capacity to do with the report what it will in a way that we 

in the executive branch do not. 

Mr. RICHMOND. So if we request a report, we can get it? 

Attorney General HOLDER. I believe that that is generally true. 

A Committee Chair has to make the request. 

Mr. RICHMOND. Okay. What about the findings of prosecutorial 

misconduct or any prosecutorial infractions that are reported to the 

State Bar Associations, but not reported publicly? Can those be 

made public? 

Attorney General HOLDER. I am not sure how individual bars 

work or what we do with regard to referrals to the bars. I will have 

to look into that. 

Mr. RICHMOND. And let me just say, I am a lawyer, but prosecutorial misconduct and things like that I think should be public. And 

part of my concern today is that the Department of Justice can 

leak and say whatever it wants when it wants. And let us just look 

at the mayor’s race in D.C., I am not commenting on anybody’s 

guilt or innocence, but to have your name tied into a Federal investigation 3 weeks before your election, and to say that it leads toward you I think affects the electoral process. 

And if our assistant U.S. attorneys can do things like that, then 

I think they have to be held to the same standard when they become the subject of an investigation, disciplinary action, and so 

forth. I think we are on a very slippery slope when we start leaking 

information right before election time because we are influencing 

the election process. 

Attorney General HOLDER. Well, what happened in Washington 

was not a leak. It was a formal filing in public court about where 
56 

a case was, a plea that involved a particular person who was involved with that person. And I understand your concern—— 

Mr. RICHMOND. But we do those under seal. We do a lot of things 

under seal for a specific period of time. 

Attorney General HOLDER. I understand your concern and the 

criticism that has been leveled at that decision. But if you look at 

it in reverse, if the Justice Department had put something under 

seal and waited until the election was over and then revealed the 

information, we would have been charged potentially with withholding information that would have been relevant for voters to 

have. 

And so, what we do is simply bring the cases when they are 

ready to go. And sometimes it is awkward, but it is the best way 

in which to do these things, irrespective of what the political fallout 

is going to be. 

Mr. COLLINS. The gentleman’s time has expired. 

Mr. RICHMOND. Thank you, Mr. Chairman, and I would yield 

back. 

Mr. COLLINS. The gentleman from Texas, Mr. Poe, is recognized. 

Mr. POE. Thank the Chairman. Attorney General, I sent you a 

couple of questions that I will ask you again about. It has to do 

with the trafficking statute in the United States that not only prosecutes interstate, but international traffickers that come into the 

United States. 

Specific question, how many consumers/buyers have been prosecuted by your office under 18 U.S.C. 1591, the trafficking statute? 

Just the buyer, the consumer, the child abuser, whatever you want 

to call them. 

Attorney General HOLDER. Yes. We have, I think, statistics that 

deal with prosecutions under 1591, but I do not think that we 

break them down in the way that you have requested. I think that 

we have an issue there with regard to our ability to give you a precise number with regard to the specific category of people that you 

have talked about. So I am not sure. As I said, I think we can give 

you a general number about 1591, but I am not sure that we can 

break it down into component parts. 

Mr. POE. I understand. Can you give me a number then of total 

folks that have been prosecuted under that statute, whether the 

trafficker or whether the buyer? Do you have that number? 

Attorney General HOLDER. I do not have that number in front of 

me, but I will pledge to get that number to you in due time. We 

will do that quickly. We will do that quickly. 

Mr. POE. All right. Thank you. I want to move over to the issue 

of the NSA data collection. If I understand the law correctly, NSA 

does their thing, and they may refer a case to the Justice Department for prosecution. And they basically give you the evidence to 

prosecute. Is that a fair statement of how that works with the 

NSA? 

Attorney General HOLDER. I am sorry? 

Mr. POE. The NSA does the investigation in a case, terrorist 

case, for example, but if they want it prosecuted they send it to 

your office and you prosecute the case. Is that correct? 

Attorney General HOLDER. NSA does not really do much in the 

way of investigating. I mean—— 
57 

Mr. POE. The evidence that they obtain. 

Attorney General HOLDER. Yes. We would do the investigating, 

but we would—— 

Mr. POE. You would investigate, but you would get information—— 

Attorney General HOLDER. Yes, we get information from a variety of places, including the NSA. 

Mr. POE. All right. On February the 4th, Deputy Attorney General James Cole was here, and we talked about the massive collection of NSA information on Americans. And I asked him the question how many people have been prosecuted by the Justice Department to be attributed to the NSA bulk data collection program. 

And he said maybe one person. That was his testimony, and I have 

it here. Would you agree or disagree with his statement that only 

one person has been prosecuted based upon that massive amount 

of information that has been collected or not? 

Attorney General HOLDER. I do not know the precise number, but 

it is a small number. It is a small number. 

Mr. POE. So it could be just one. 

Attorney General HOLDER. It could be. I just do not know. 

Mr. POE. A small amount—— 

Attorney General HOLDER. It is a small number. 

Mr. POE. Small amount of individuals. Moving over to another 

issue regarding privacy, emails. Current law, as I understand it, if 

a person has an email, that email if it gets over 6 months old, is 

stored in the cloud, then the Justice Department does not need a 

warrant to go in and retrieve that email. Is that correct or incorrect? 

Attorney General HOLDER. Yes, but that is not a policy I think 

that we should continue. 

Mr. POE. All right. I am just asking. The Justice Department 

does not need a warrant to obtain that email. 

Attorney General HOLDER. Yes, I think that is true, but what we 

have said is that policy, there needs to be a change made so that 

warrants would be appropriate regardless of the amount of time 

that has passed. 

Mr. POE. I agree with you on that that a warrant should be imposed or required. Law enforcement goes into a person’s private 

email account no matter how old it is, but you get a warrant from 

the Justice Department. 

Attorney General HOLDER. Right. 

Mr. POE. Do you agree with that philosophy? 

Attorney General HOLDER. It should not be a function of time. 

Mr. POE. And we have legislation, bipartisan, pending on that 

issue. 

Attorney General HOLDER. Right. 

Mr. POE. The last question I want to ask you has to do with the 

concept of domestic use of drones by law enforcement on targeted 

surveillance. Right now my understanding is the FAA makes the 

rules and regulations about who gets a drone, who can use it for 

what purposes. Would you think it would be better that Congress 

intervene and employ legislation safeguarding the Fourth Amendment, right of privacy basically, on citizens, or do you suggest as 
58 

the Attorney General that the FAA still control who gets a drone 

or not? 

Attorney General HOLDER. Well, actually, I mean, within the Department the only component in the Department that uses these 

vehicles at this point is the FBI. The ATF is in the process of working through to see if they want to make use of them. The Inspector 

General has recommended that we come up with some Department-wide policies about how these vehicles are used, and I think 

that would be an appropriate thing to do. And we are in the process of trying to work through what rules and regulations would 

handle the use of these kinds of vehicles. 

Mr. COLLINS. The gentleman’s time has expired. 

Mr. POE. Thank you. 

Mr. COLLINS. The gentleman from New York, Mr. Jeffries, is now 

recognized. 

Mr. JEFFRIES. Thank you, Mr. Chair, and thank you, Mr. General, for your appearance here today. Earlier today during this 

hearing in an exchange with my one of my colleagues related to 

concern about the Affordable Care Act, you were characterized as 

the President’s legal advisor. Do you recall that characterization? 

Attorney General HOLDER. I think so, yes. 

Mr. JEFFRIES. I think it is an erroneous characterization. Now, 

let me ask you a question about that. Are you familiar with the 

title of White House counsel, Mr. General? 

Attorney General HOLDER. I have heard that. 

Mr. JEFFRIES. And would you agree that the White House counsel is actually the President’s legal advisor in the constitutional 

system that we have created in America? 

Attorney General HOLDER. You have to understand as questions 

get fired at you, you cannot push back with regard to everything 

that is contained in a question. But you are right, I am not the 

President’s legal advisor. I am the Attorney General of the United 

States, and there is a fundamental difference. The White House 

counsel is, in fact, the President’s legal advisor. 

Mr. JEFFRIES. Thank you, Mr. General. Now, the characterization was also brought up earlier today suggestive of the fact that 

under your leadership, the Department of Justice has somehow engaged in prosecutorial decisions based on race and/or party affiliation. Do you recall that suggestion? 

Attorney General HOLDER. Yes. 

Mr. JEFFRIES. Now, my distinguished colleague from New Orleans recently asked the question of the matter in Washington, D.C. 

related to a mayoral candidate, who, in fact, lost the election after 

perhaps being linked to Justice Department activity. Was that current mayor a Democrat, Mr. General? 

Attorney General HOLDER. Yes. 

Mr. JEFFRIES. And he is a Black Democrat, is that correct? 

Attorney General HOLDER. Yes. 

Mr. JEFFRIES. Now, I also believe that the mayor of Charlotte 

was recently indicted, is that correct, by the Department of Justice? 

Attorney General HOLDER. That is correct. 

Mr. JEFFRIES. And was he a Democratic mayor, Mr. General? 

Attorney General HOLDER. I believe he is. 
59 

Mr. JEFFRIES. Okay. And he is African-American as well, is that 

correct? 

Attorney General HOLDER. He is. 

Mr. JEFFRIES. So I think that the suggestions related to your Department of Justice, and there are a myriad of examples, but I 

have got limited time, are really irresponsible, reckless, and not 

evidence-based. And I think this Committee would be well served 

by staying within the four corners of the actual facts that are before us. 

I have got limited time, so I want to deal with the gun violence 

issues. It is one that affects the district that I represent in Brooklyn. I think we have a gun violence problem. In fact, in America 

5 percent of the world’s population, 50 percent of the world’s guns, 

more than 14,000 American who died as a result of gun violence 

since the tragedy in Newtown, Connecticut. 

Now, we have got a legislative track which unfortunately has 

been barren of activity, and then there is an administrative executive track. The President in January of 2013 announced a series of 

initiatives, some of which he charged the Justice Department with 

engaging in, and I want to just explore where we are at in terms 

of that activity. 

It is my understanding the President directed the Attorney General to review the categories of individuals prohibited from having 

a gun to make sure that dangerous individuals are not possessing 

weapons that can do harm, is that right? 

Attorney General HOLDER. That is correct. 

Mr. JEFFRIES. Now, this is a real concern for the communities 

that I represent. We have tough gun control laws in New York 

State. A lot of the guns come from the neighboring State of Pennsylvania. Chicago famously has a lot of gun violence problems. A 

lot of their guns come from the neighboring State of Indiana. South 

Central Los Angeles has got some gun violence problems. A lot of 

their guns come from the neighboring State of Arizona. That is why 

the Justice Department engagement is so significant. 

Where do things stand in terms of that review that the President 

charged the Department of Justice with in January of 2013? 

Attorney General HOLDER. I do not remember the exact number. 

I think there were 17 or 21 things that came out of the review that 

the President asked us to review. And I think that we have now 

completed all of the things that the President asked us to do, which 

I think was as far as we could go using only the executive power 

that we have. 

There is still a need, I think, for legislation to deal with the common sense measures that would help deal with the gun violence 

problem in this country. We have tried to do what we could with 

regard to enhanced background checks, but there is still the need 

to close, for instance, the gun show loophole, to deal with the problem of assault weapons, to deal also with the problem of these large 

clips. These are things that, again, are overwhelmingly supported 

by the American people, make sense, and would keep the American 

people safe. 

Mr. JEFFRIES. Mr. General, I agree that there is an absolute need 

for congressional action. But let me also say that in the interim I 

think it is important, and I would like to be able to work closely 
60 

with the Department of Justice, the ATF, to deal with some of the 

underground problems that we have in America today short of legislative action because the children that I represent, some of whom 

are dying on the streets of Brooklyn, are from illegal guns from 

other parts of the country, cannot afford for us to wait for congressional action. 

And with that, I yield back. 

Mr. COLLINS. The gentleman from New York yields back. The 

gentleman from Utah, Mr. Chaffetz, is now recognized. 

Mr. CHAFFETZ. Mr. Attorney General, thank you for being here. 

It is an honor to be able to question you. The last time I had a 

chance to question you was May 15 in 2013. I was asking you 

about General Petraeus and his time as the CIA director. I followed 

up with a letter on March 3, 2014. I have communicated with your 

legislative staff through our staff. 

My question for you regarding—again, this is about General 

Petraeus’ time as director of the CIA—my understanding is that 

the FBI did go to General Petraeus’ home. They took documents 

and other items. There is some feedback that perhaps the FBI is 

a bit frustrated that there has not been a prosecution moving forward. Can you give the status of what is happening, and is there 

any friction with the FBI in what to do with this case? 

Attorney General HOLDER. All I can say is that this is an ongoing 

investigation. I am really not in a position to say much more about 

it than that. I will say, I have been briefed on this matter, and I 

did not detect any friction in what is an ongoing matter. 

Mr. CHAFFETZ. You know, we are talking about 2 years later, and 

this is still hanging over his head. Is that fair? Is that really fair 

to have somebody who has been touted as one of America’s greats 

having this hang over his head for 2 years? When do you anticipate 

closing this out? 

Attorney General HOLDER. That is a very legitimate question. I 

sat with General Petraeus in the Situation Room when he was the 

head of the CIA. He was a great colleague. I think he is a true patriot. 

Mr. CHAFFETZ. I have got to get to some more specific questions. 

I think that is the concern, too, is that this has been hanging over 

his head, and it just does not seem fair to have this hang over his 

head for so long. When did this happen when they went to his 

home and extracted these documents? 

Attorney General HOLDER. As I said, I cannot comment about an 

ongoing investigation. 

Mr. CHAFFETZ. Last time I asked you, you said that you first 

found out about this in the summer of 2012. Was that accurate? 

You were going to get back to me. I have not heard back from you. 

Attorney General HOLDER. Both the question when you posed it 

was a long time ago, and when I actually was first aware of this 

is kind of a long time at this point. It was some time certainly in 

2012, but exactly when I do not know. 

Mr. CHAFFETZ. There seem to be a number of mandatory reporting statutes that were not complied with. That is one of the concerns. As Senator Feinstein said, ‘‘A decision was made somewhere 

not to brief us, which is atypical. This is certainly an operationally 
61 

sensitive matter, but we were not briefed. I do not know who made 

that decision.’’ This was quoted on the NBC news. 

Attorney General HOLDER. Well—— 

Mr. CHAFFETZ. I mean, why not inform the Congress? Why not 

do the necessary requirements under the law, the National Security Act of 1947? 

Attorney General HOLDER. Without commenting on the investigation itself, but with regard to our decision or determination about 

how we would interact outside of the Justice Department. We did 

not think on the basis of the allegations that we were looking at 

that there was any basis or any concern that we had about our national security on the basis of—— 

Mr. CHAFFETZ. There is a news report that in the spring of 2012 

General Petraeus’ schedule was compromised, and that his security 

detail was informed of that. Is that true? 

Attorney General HOLDER. Again, I do not want to go into an ongoing investigation. 

Mr. CHAFFETZ. When is this going to be complete? 

Attorney General HOLDER. It is a matter that is ongoing that we 

are working diligently to resolve. 

Mr. CHAFFETZ. Do you have any idea when the President was 

told? 

Attorney General HOLDER. I do not remember right now. 

Mr. CHAFFETZ. Do you remember when Mr. Morrell was told, his 

deputy? 

Attorney General HOLDER. I do not remember that as well. 

Mr. CHAFFETZ. Mr. Brennan? Do you know when Mr. Brennan 

was informed? 

Attorney General HOLDER. I do not remember. I am not sure—— 

Mr. CHAFFETZ. Mr. Attorney General, I have got the greatest respect for you. I appreciate personally the time you have taken with 

me. I asked questions in the Committee about a year ago. I sent 

you a follow-up letter. I work with the legislative staff. We come 

before a hearing again, and it appears as if you took no time to go 

back and ask for these very basic things. We are dealing with not 

the head of the Department of Fish and Wildlife. We are talking 

about the CIA director, somebody who is revered in this country. 

And here we are 2 years later. It seems suspicious that it continues 

to linger without any sort of relief. 

And I think the Congress’ understanding of how you deal with 

the mandatory requirements to inform the Congress is something 

that is concerning Senator Feinstein. It concerns me. I think it is 

fair to say it concerns the Intelligence Committee. And that is what 

we would like some help understanding over the course—— 

Attorney General HOLDER. Well, I think we complied with the reporting requirements that you referenced and that, I guess, Senator Feinstein had referenced also. I can also tell you that the matter has, again, not talking about the specifics, but the fact of it. 

The matter has been handled in a diligent way, and sometimes 

these matters, they just unfortunately take time. 

Mr. CHAFFETZ. In the CRS, as I yield back, says ‘‘It seems that 

once the FBI investigation turned to possible hacking involving 

Petraeus’ private email account, the purpose of the investigation 

was likely to discover where the compromise of intelligence may 
62 

have occurred, in which case it would seem then to fit the definition of intelligence activity under the NSA.’’ I would just point to 

this CRS report, Mr. Chairman, of November 15 of 2012. I yield 

back. 

Mr. COLLINS. The gentleman’s time has expired. The gentleman 

from Rhode Island, Mr. Cicilline, is recognized. 

Mr. CICILLINE. Thank you, Mr. Chairman, and I thank the Attorney General for being here today. I want to just make two quick 

points before I get to my question. One is I associate myself with 

the remarks of Congressman Deutch on the urgent necessity of 

prosecuting the executives of these financial institutions that are 

responsible for harm that was caused to millions of Americans and 

many Rhode Islanders. And appreciate and applaud the work you 

have done to hold institutions accountable, but urge you to continue and to help us to restore the public’s confidence in our judicial system by prosecuting the decision makers, as Congressman 

Deutch has suggested in his questions. 

And second, just to quickly follow up on Mr. Nadler’s national security letter question we wrote to you on February 19, and I look 

forward to a written response. But just to urge you again to look 

at this issue because if you look at the history between NSL letters 

and 215 and the kind of the shift in use of them, the unanimous 

recommendation of the President’s commission was, and I quote, 

‘‘That all statutes authorizing the use of national security letters 

should be amended to require the use of the same oversight, minimization retention, and dissemination standards that currently 

govern the use of Section 215 orders.’’ And I would just urge you 

reconsider your position on that. I think there is a reason to harmonize those and to protect the privacy interests of the American 

people. 

But what I would like to focus on in terms of my question is the 

issue of gun violence and the ways that the Justice Department 

might think about supporting State and local efforts to combat this 

serious problem in our country. Unfortunately there seems to be a 

concerted strategy of obstruction here in Congress about doing anything to address the issue of firearm related violence, and that is 

despite the gun violence claimed the lives of more than 360,000 in 

the United States between 1999 and 2010, including more than 

35,000 children and teenagers according to the National Center for 

Injury Prevention and Control. 

But a lot of States and municipalities and local stakeholders are 

working to address this complicated problem, and I would like to 

ask you about whether the Department of Justice has made an effort to study the effectiveness of two particular strategies for addressing this issue. One is the product of State practices and another is more locally focused. 

The State practice is some States have enacted laws that require 

mental health professionals to report certain individuals in identifying information about individuals who are seriously mentally ill 

or found to pose a danger to themselves or others to a firearms prohibition database, New York and Connecticut being two of them. 

Obviously, I would be interested to know whether or not you have 

looked at these and whether these are effective strategies, particularly California who has had it for a couple of decades. 
63 

And the second is related really to a local kind of innovation by, 

and I will give one example in my home State that I know you 

know about. You visited Providence in 2011, and I know you had 

the opportunity to meet with the street workers at the Institute for 

the Study and Practice of Nonviolence and with my senator, Senator Whitehouse. And this is an organization that works very closely with the police department using former gang members to help 

combat violence and to help de-escalate situations. They have been 

heroic in their work in terms of preventing violence, but they are, 

like many organizations, struggling for funding. 

And so, is the Justice Department figuring out ways to both identify best practices like the street workers at the institute in Providence that are effective, and then figuring out how we can support 

them with funding streams because they spend so much time on 

the brink because they just do not have the resources, and they are 

doing really good work that is combatting gun violence and other 

kinds of violence. I would just love to hear your thoughts on both 

of those issues. 

Attorney General HOLDER. Well, you have raised two very good 

points. We have recently proposed a regulation that seeks to clarify 

who, due to mental health reasons, is prohibited under Federal law 

from receiving, possessing, shipping, or transporting a firearm. 

Now, this regulation is open for public comment, I guess, until the 

beginning of this month. And it deals with the whole question of 

what is an adjudicated or a mental defective or committed to a 

mental institution. 

And so, what we have tried to do is put it out for comment and 

see what we get back. And expansion potentially of who under the 

mental health disqualifier would be prohibited from possessing a 

firearm. So that regulation is out there. Public comments will come 

in. Those comments obviously will be looked at before we propose 

a final rule. 

With regard to the Street Program, for lack of a better term, that 

you described, those are the kinds of things that we are trying to 

identify through our Office of Justice Programs, things that are unconventional, that are creative, that sometimes raise people’s eyebrows about who is involved in these kinds of effort, but ultimately 

that are potentially successful. And we try to use an evidencebased approach. 

We do not go into it with any pre-conceived notions. I am familiar, at least a little bit, with what you are describing in Rhode Island. It is consistent with what we have seen in other States as 

well where you get former gang members who have fully turned 

around. And if they can be used in a positive way and have a positive impact on those who might otherwise duplicate the mistakes 

that they made, those are the kinds of programs that we want to 

support. 

Again, it is why our budget request, I think, is so important. We 

need the funds and the capacity to fund and support these innovative, creative efforts not all of which are going to be successful and 

not all of which we will continue to support. But at least we want 

to try to give people who are trying to do innovative, appropriate, 

creative things at least a first chance. 
64 

Mr. COLLINS. The gentleman’s time has expired. The gentleman 

from South Carolina, Mr. Gowdy, is recognized. 

Mr. GOWDY. Thank you, Mr. Chairman. General Holder, I appreciate the fact that you cannot comment on pending investigations. 

I do. So I would not ask you that. I wish the President would also 

follow your advice because when he said there is not a smidgen of 

corruption on national television talking about an ongoing investigation, not only did he undermine people’s confidence in the efficacy of that investigation, in my judgment, he undermined your 

Department, because you cannot comment on it. I think he should 

have taken a pass and said the exact same thing that you said 

when Jimmy Jordan just asked you the question. 

I also want to thank you because I think you are coming to 

Charleston on Friday to see our U.S. Attorney and the work that 

the women and men of our U.S. Attorney’s Office are doing in 

Charleston. The U.S. Attorney in South Carolina is a wonderful 

friend of mine. We met on opposite sides of a death penalty case, 

which is a strange place for a friendship to begin. And he is an 

avowed progressive, and I am a conservative from the upstate of 

South Carolina. But we are wonderful friends I think, in part, because we hold out this hope that the law will trump politics, that 

it is the greatest equalizing force in our country, and it is the 

greatest unifying force in our country. 

So I want to thank you for going to Charleston, and I want to 

ask you some questions about rule of law and prosecutorial discretion. If a bill becomes law and there is no question with respect to 

its constitutionality, does the Chief Executive have to enforce that 

law? 

Attorney General HOLDER. Have to enforce it? 

Mr. GOWDY. Yes. 

Attorney General HOLDER. The President has the constitutional 

responsibility to enforce the laws. The executive branch has the responsibility of enforcing the laws. 

Mr. GOWDY. Right. So you agree with me that if a bill passes and 

is signed into law, and there is no allegation of a lack of constitutionality, the chief executive has to enforce that law. 

Attorney General HOLDER. We are talking about a hypothetical 

situation here now, and given the hypothetical that you have espoused, I would think there would obviously be a responsibility to 

enforce the law. 

Mr. GOWDY. Do you agree that there is a difference between enforcing the law and following the law? 

Attorney General HOLDER. I am not sure I quite understand that 

question. 

Mr. GOWDY. Well, here is the distinction I would make. Your Department is asked to enforce certain statutes, Title 18 statutes. You 

have prosecutorial discretion. You can decide that with these facts, 

we cannot get a conviction. But if Congress were to impose upon 

you a duty, in other words, to make a report to us by a certain 

date, then you would have to follow that law. You are not enforcing 

it, you are following it. 

So the case law has made a distinction between enforcing the law 

where prosecutorial discretion comes into play and following the 

law prosecutorial discretion is not a defense. So if we were to ask 
65 

you to do something, you would have to follow the law and you 

could not cite prosecutorial discretion as a reason not to follow the 

law. 

Attorney General HOLDER. Well, I would agree, but I would disagree to this extent. If Congress passed a statute that said the Justice Department was obligated to bring every case under Title 18, 

Section 1951, every public corruption case under a particular statute, I think that would violate the separation of powers. 

Mr. GOWDY. I agree. I agree, because that would thwart prosecutorial discretion. But if Congress were to tell you you have to make 

a report or you have to do something by X date and impose a duty 

on the executive branch itself, prosecutorial discretion is not going 

to get you out of that, or else prosecutorial discretion consumes all 

of the law. If you have the ability to both not enforce and not follow 

law, then we have no law. 

Attorney General HOLDER. Well, no. If Congress were to impose 

upon us a reporting requirement, I would agree with that. I mean, 

to say, all right, you know, tell us how many cases you have 

brought under this statute by December 31 of whatever year, something like that. 

Mr. GOWDY. You have to follow it. 

Attorney General HOLDER. I think we have the obligation to fulfill that reporting requirement. 

Mr. GOWDY. Right. I want to ask you this. You issued a memo 

directing in certain circumstances that your AUSAs and USAS not 

inform the grand jury and, therefore, not inform the jury, and, 

therefore, not inform the judge about drug amounts. 

Attorney General HOLDER. About drug? 

Mr. GOWDY. Drug amounts in Title 21 cases. 

Attorney General HOLDER. I am sorry, drug? 

Mr. GOWDY. Amounts. 

Attorney General HOLDER. Drug amounts. I am sorry. Go ahead. 

Mr. GOWDY. Right. It is a memo. ‘‘In cases involving Title 21 

mandatory minimum sentences based on drug type, prosecutors 

should decline to charge the quantity necessary to trigger mandatory minimum.’’ General Holder, we already have a safety valve. 

Congress has already passed a law that if you meet these requirements, the mandatory minimum is not applicable. So why would 

you eschew what Congress has done and trump it with a memo? 

I am really honestly trying to understand how you can respect the 

law and disrespect a statute that Congress has already passed. 

Attorney General HOLDER. Well, the view that we had based on 

a review that I ordered back in January of 2013, I guess, was that 

we have to do something about the prison population that we have. 

We also have to come up with a system that is both more effective, 

more efficient, and keeps the American people safe. 

And what I ultimately have tried to do is to push discretion in 

the hands of the men and women who serve as assistant U.S. attorneys to look at the defendant who is in front of them and make an 

appropriate determination based on the conduct of that person 

what an appropriate sentence is. 

Mr. GOWDY. Mr. Chairman, I know I am out of time. Could I ask 

unanimous consent for 30 seconds just to follow up? Just 30 seconds? 
66 

Mr. COLLINS. Without objection. 

Attorney General HOLDER. That is fine. 

Mr. GOWDY. Thank you. Attorney General, I would just ask you 

under this general heading of respect for the rule of law that you 

would come to like-minded Members of the Judiciary Committee 

and say we need to expand the safety valve because we have a law 

that does what your memo purports to do. And if we ever get to 

the place in this society where a memo is on equal footing with the 

law, I think we are in trouble. So I would encourage you to come 

to Rand Paul and Raul Labrador and others who are like minded 

and fix the statute, not the memo. And with that, I would yield 

back. 

Attorney General HOLDER. As indicated in my opening statement, Congressman Labrador’s approach, Senator Paul’s approach, 

Senator Durbin, Senator Lee, these are all the kinds of things that 

we want to work with Congress about. I think there are ways 

where ultimately the best of all possible fixes is to work between 

the executive branch and the legislative branch. That is something 

that we are desirous of doing. 

But I do think that the policy pronouncements that I have made 

in recent months are consistent with the law, and also are consistent with good law enforcement. But I—— 

Mr. COLLINS. Go ahead. You can continue. 

Attorney General HOLDER. I was just going to say at the end of 

the day, I think the best thing would be for the two branches to 

get together and come up with a common approach. 

Mr. COLLINS. The gentleman’s time has expired. The gentleman 

from Idaho, Mr. Labrador, is recognized. 

Mr. LABRADOR. Thank you, Mr. Chairman. And, Mr. Holder, 

thank you for being here today. And I actually want to follow up 

a little bit on what my good friend, Trey Gowdy, was saying. As 

you know, you and I have had many disagreements over our history, and I hope you know now that I am from Idaho. And one area 

where we agree is on the Smarter Sentencing Act, which is have 

introduced in the House with my colleague on the Committee, Congressman Bobby Scott. 

I am very pleased that you are supportive of this legislation. I 

also understand that the President is supportive of this legislation. 

However, the concern that I have, you know, my job as a Member 

of Congress is to try to get my like-minded friends to agree with 

me on certain pieces of legislation even if it is outside of the scope 

of what they usually think about. And this something that I think 

you would agree Republicans have not always agreed with Democrats on, and it is something that I have been working for the last 

year or so trying to get Republicans on board. 

But you make actually my job much more difficult when you unilaterally, as you have, you write memos, and you try to do the 

same thing through memos that we are trying to accomplish 

through this legislation. When you say you are not seeking mandatory minimum sentences for nonviolent drug crimes, you are working around Congress instead of with Congress. 

So I am extending to you my hand right now to work with you 

to help pass the Smarter Sentencing Act. But could you please help 

me try to pass the Smarter Sentencing Act by not going around the 
67 

law, and by trying not to work through executive action only, but 

actually working with Congress. Could you do that for me, because 

it is making my job much more difficult. 

Attorney General HOLDER. Well, we certainly want to work with 

you, as I indicated to Congressman Gowdy. I think the policy pronouncements that I made and, frankly, the raising of this issue in 

that speech I gave in August of, I guess, what, 2013, I guess, at 

the ABA in San Francisco is what really in many ways generated 

the conversation that we are now having. 

Again, I am talking about pushing discretion to assistant U.S. attorneys to make determinations about what is an appropriate sentence, what is an appropriate charging decision subject to supervisory control for a defendant that is front of them as opposed to 

a previous policy that existed that required every assistant U.S. attorney to charge the most serious offense that could be proven, almost regardless of what other factors were in existence. I have got 

more faith in the men and women who serve in this Department 

of Justice to make the right decisions. 

Mr. LABRADOR. But you are telling them not to charge certain 

crimes. I am not sure that you are exhibiting faith. You are actually telling them do not charge certain crimes, and if they do not 

follow your orders, I think it is going to be something—I have 

never been an assistant U.S. attorney like my good friend, Trey 

Gowdy, but I am not sure that that is something that somebody 

would do. 

Now, let us talk about a different issue. We have heard a lot recently about the President’s record of deportations. And my friends 

on the other side continue to say that these are record deportations, that we have not as many deportations in the history of the 

United States. But my understanding is that the majority of what 

the Administration is counting as deportations are from the border 

and not from the interior. Is that correct? 

Attorney General HOLDER. I am just not aware. I do not know 

that. 

Mr. LABRADOR. And when I look at the number of orders of removals in the DoJ’s Fiscal Year 2012 statistical yearbook, I see 

that they actually have dropped 30 percent since 2009, and are 

down by 42 percent since 2005. How do you explain the Administration’s claim that we have record deportations, but your own statistical yearbook says that they have dropped and continue to drop 

in 2013? 

Attorney General HOLDER. Well, you know, I do not have the statistics in front of me, but I know that the President has been, I 

think, unfairly labeled the deporter in chief. I think he is—— 

Mr. LABRADOR. Well, I agree with you. I think he has been unfairly labeled because we are playing tricks with the numbers. You 

are counting people who were stopped at the border that in the 

past were not being counted as deportations. And I think it has 

been a trick of my friends on the other side to try to claim that 

there has been a record number of deportations, but I believe actually the evidence does not bear that out. 

Attorney General HOLDER. Well, when I said ‘‘unfairly,’’ I only 

meant to say that this somehow betrays an inconsistency in what 

the President has proposed with regard to his comprehensive immi-
68 

gration plan, and his sensitivity to the needs of the immigrant community, and what he has done with regard to these deportations. 

I do not think that there is necessarily a tension between them, 

and that is why I think that the label that has sometimes been 

placed on him is an unfair one. 

Mr. LABRADOR. Okay. Thank you. I yield back my time. 

Mr. GOODLATTE [presiding]. The Chair thanks the gentleman, 

and recognizes the gentleman from Texas, Mr. Farenthold. 

Mr. FARENTHOLD. Thank you very much, Mr. Chairman. You 

know, I understand that this Committee has a constitutional duty 

of oversight over the Department of Justice, and that is why we 

have Mr. Holder here today. But I do not think that I can be a part 

of eroding the constitutional balance of power favoring the executive over the legislative. 

You know, I do not think Mr. Holder should be here. He is in 

contempt of this body. I have called for his resignation. I have 

sponsored articles of impeachment. And this week I am going to be 

introducing legislation that would prevent Federal employees who 

are held in contempt of Congress or fail to fully comply with congressional subpoenas not be paid their taxpayer-funded salary. And 

I am going to try to get that enclosed with the appropriations bills 

that will be going through. 

I am committed to maintaining the constitutional balance of 

power and the authority that this legislative branch has. And I just 

do not think it is appropriate that Mr. Holder be here. If an American citizen had not complied with one of the Justice Department 

subpoenas, they would be in jail, not sitting here in front of us testifying. But I realize there are questions to be asked, and I yield 

the remainder of my time to Mr. Gowdy. 

Mr. GOWDY. I thank the gentleman from Texas. General Holder, 

I want to go back to our mandatory minimum. If this were methamphetamine instead of Altoids, and I am going to trust that it is 

Altoids because it is Marino’s. If that were methamphetamine, 

Congress passed a statute that that amount would get you a mandatory minimum 5 years. But Congress also passed a statute that 

if you had a de minimus criminal history, were not an organizer, 

did not use a weapon that the mandatory minimum would not 

apply. Now, that is after the fact. That is after the trial. That is 

after you have been in front of a judge to change your plea. Your 

memo tells the AUSAs not to cite the drug amount. I mean, they 

cannot. 

Attorney General HOLDER. No, it does not say that. The memo 

says that, you know, you take into consideration the totality of the 

circumstances in making a charging determination. It does not 

mean that if you, Trey Gowdy, you know, with your hypothetical 

here, you are a bad guy, you are a drug dealer, then you have got, 

I do not know, 15 ounces or whatever of Altoid/methamphetamine 

that you cannot be hit with a maximum sentence, you cannot be 

hit with a mandatory minimum. That in the discretion is an appropriate determination. If on the other hand—— 

Mr. GOWDY. But why not just exercise your prosecutorial discretion and not prosecute the case period? If you do not want low level 

drug dealers in Federal prison, you have absolute unfettered authority to tell your AUSAs do not pursue the case because in drug 
69 

cases all 50 States have drug laws. And if you do not prosecute it, 

the State DA will. 

Attorney General HOLDER. That is the first part of the memo 

that I sent out to the field, which was to make determinations 

about what truly is a Federal case, you know, when you bring it 

to the first—— 

Mr. GOWDY. All right. Well, all I am going to ask you to do is 

think about that you are going to see men and women in Charleston on Friday that if a judge asked them a question, they have no 

choice but to answer that question honestly. Whatever the question 

the judge asks—— 

Attorney General HOLDER. Sure. 

Mr. GOWDY [continuing]. You either answer it honestly or you 

are going to jail. 

Attorney General HOLDER. Right. 

Mr. GOWDY. What if a grand juror asked the question how much 

drugs are involved? The grand jury is about to draft the indictment. They are about the true billet. They want to know. And it 

is more than 50 grams, which triggers a mandatory minimum 10 

years. Are we not putting your AUSAs in the position of not being 

honest with the grand jury? 

Attorney General HOLDER. No, not at all. 

Mr. GOWDY. How not? 

Attorney General HOLDER. You can tell the grand jury that the 

amount is, let us say, above 50 grams. However, the charging document that we have does not specify an amount, and this is the reason we are not specifying the amount that is contained in the document that we are asking you to approve. You are being totally 

truthful with the 23 members of the grand jury. 

Mr. GOWDY. One other point. In our safety valve, it is required 

that the defendant cooperate with government. In your memo it is 

not required that the defendant cooperate with the government to 

get out from under a mandatory minimum. You would agree with 

me that cooperation with the government is very important when 

you are working narcotics cases. So why did you not require that? 

Attorney General HOLDER. That is one of the factors that is to 

be taken into consideration in making those kinds of determinations. The memo that I sent out did not say do not do this in a kind 

of, you know—— 

Mr. GOWDY. It said ‘‘Prosecutors should decline to charge the 

quantity necessary to trigger a mandatory minimum if the defendant meets the following criteria.’’ I can tell you, if I got that memo 

from you and the defendant met that criteria but did not meet all 

the criteria from Congress, I am going to go with the guy who signs 

my paycheck. And there is a conflict between the two. That is my 

point is your memo is trumping a congressional statute. 

Attorney General HOLDER. Well, I mean, we always have discretion. And would you say that—— 

Mr. GOWDY. But you do not have discretion on whether to follow 

the law or not. That is my point. 

Attorney General HOLDER. Well, no, I would disagree in the 

sense that taking into account resource constraints, it is incumbent 

upon those of us in the executive branch to make the maximum use 

of the resources that Congress gives to us. That necessarily we are 
70 

always making choices about the kinds of cases that we bring, how 

we deal with the cases that we bring. 

Mr. GOWDY. But you are already expending the resources of the 

prosecution or you and I would not be having the question. This 

is all about sentencing. I have no qualms if you say I am going to 

decline prosecution. You have an unfettered right to do that. What 

I am saying is you do not have the right to say in mandatory minimum cases do not tell the grand jury what the drug amount is. 

I just think you are putting your AUSAs in a tough position, but 

as is always the case, I could be wrong. And I am definitely out 

of time. 

Mr. FARENTHOLD. I yield back. 

Mr. GOODLATTE. The Chair thanks the gentleman, and recognizes the gentleman from North Carolina, Mr. Holding, for 5 minutes. 

Mr. HOLDING. General Holder, thank you for being here. A quick 

follow-up on a previous question. In the investigation of the IRS, 

there is a person who is leading that investigation, a first chair, if 

you will. I mean, there has to be. That is how you would run an 

investigation. Is that prosecutor a member of the Public Integrity 

Section or is it a member of the Civil Rights Division? 

Attorney General HOLDER. I would say it is a joint investigation 

being done by Civil Rights as well as by Public Integrity. 

Mr. HOLDING. Well, I wish you would tell us who is in the first 

chair, but you will not. At the same time that you issued the memo 

regarding charging the drug weights, part of that memo had to do 

with compassionate release and expanding the criteria for eligibility for compassionate release because historically it has been incredibly difficult to get compassionate release. 

And some of the new criteria are circumstances in which there 

has been a death or incapacitation of a family member or a caregiver of the inmate’s child, or circumstances in which the spouse 

or registered partner of the inmate has become incapacitated. I 

think those are pretty broad exceptions of eligibility criteria. How 

many people do you estimate to be eligible for compassionate release that are currently in the Federal system? 

Attorney General HOLDER. I do not know. You know, we have, 

and I believe these numbers are correct, over 100 people in the 

Federal system now who are over the age of 80. I think 30 something over the age of 85. Those would be, I think—— 

Mr. HOLDING. These criteria that I am looking at are pretty 

broad. A lot of inmates have children. A lot of inmates have 

spouses or partners. And, you know, this would apply to them. It 

has to be a pretty broad number. Have you put into place any 

methods to track these people after they are released under compassionate release? 

Attorney General HOLDER. I mean, these are the kinds of things 

that we will put in place to make sure that the determinations that 

we are making appropriate ones, I mean, because I think it is only 

the responsible thing to do if you are going to try these new policies 

to see what is the impact of them. And to the extent that we are 

releasing people who then engage in other crimes—— 

Mr. HOLDING. And you put in the memo that, you know, you will 

consult with the U.S. Attorney’s Offices on these cases about com-
71 

passionate release, but the authority to grant with them is with the 

director of the Bureau of Prisons. So, you know, there is any judicial restraint that could be on these compassionate releases, or is 

it just an order by the director of the Bureau of Prisons? 

Attorney General HOLDER. I believe the way it goes is that it is 

by statute the Bureau of Prisons through the U.S. Attorney’s Office 

has to petition the court for the release. 

Mr. HOLDING. Right. Well, to switch gears here before I run out 

of time, I am concerned about the illegal distribution of tobacco 

products, counterfeit cigarettes, illegally gotten cigarettes that are 

put into the system, counterfeit tax stamps. 

And, you know, we all know here that cigarette smuggling is 

often a funding source for terrorism or organized crime. We also 

know that ATF is charged with the investigation of tobacco-related 

crimes. It is the ‘‘T in ‘‘ATF.’’ People forget about that. You know, 

I appreciate that they are focused on firearms, but I would like to 

know and maybe you could have some staff brief my staff on what 

DoJ and ATF are doing to crack down on tobacco smuggling crimes, 

and what resources you have got placed into this, and what recommendations you have for additional resources that you would 

need to properly engage in the enforcement of this. 

Attorney General HOLDER. We can certainly do that. I think the 

point you make is one that people would find a little hard to believe, but you know being that you are a former U.S. attorney that, 

in fact, there at least have been a couple of instances where there 

was a tobacco terrorism connection. We know that. And so, but we 

will have our staffs interact. 

Mr. HOLDING. All right. And before I forget, I will ask for a follow-up on the compassionate release and any studies you have got 

of people who are in the system, numbers that might be eligible, 

and whatever system you have for tracking these people as they 

are released into the system under these new criteria and further 

illegal conduct that they might engage in. 

Attorney General HOLDER. That is fine. 

Mr. HOLDING. Thank you. Mr. Chairman, I yield back. 

Mr. GOODLATTE. The Chair thanks the gentleman, and recognizes the gentleman from Georgia, Mr. Collins, for 5 minutes. 

Mr. COLLINS. Thank you, Mr. Chairman. I mean, this is my second one with you in coming here, Mr. Attorney General, and I appreciate you coming. And it is always interesting to know what I 

have seen in my short time, but also looking at history. And I think 

one of the things that comes across today is just very much of a 

lack of trust in who is prosecuted, who is not prosecuted. We have 

heard that comment going on. 

I just happened to be in another Committee this morning, saw 

this article. Just pulled it out of a 2009 paper that said ‘‘Obama 

open to prosecuting Bush officials over abuse.’’ This is sort of what 

started the whole look, and I think there is even going to be a day 

of reckoning for these past few years, and that has tainted everything that has come forward. When you see, as my friend from 

Iowa has talked about, the prosecution cases not prosecuted, other 

things. 

And it gets into an issue here in which the gentleman from 

South Carolina brought it up, the gentleman from Idaho has 
72 

brought it up, and it is the fact of how we can work together. There 

is a process to this, Mr. Attorney General, and that is working together even through difficulties and even when we do not agree 

and there are problems. Even to the point of we cannot in this 

Committee today seem to understand that you are an advisor to 

the President, and that was mentioned by Mr. Chabot, and then it 

was sort of mockingly mentioned by my friend from New York. 

But even on your own budget request for the Office of Legal 

Counsel, it says ‘‘the mission of OLC is to assist the Attorney General in his function as legal advisor to the President and all of the 

executive branch agencies.’’ If this not your role and this is not 

their role, then I think we have found some money for you to put 

into ideas so we will defund this program and put this money into 

other places. 

So are you saying, again, to this Committee that you are not a 

legal advisor to the President on a lot of different issues? 

Attorney General HOLDER. Sure I am, but not the way in which 

it was used in that question. The question was posed as if I were 

the person kind of almost pulling the strings for the President. Of 

course I am an advisor to the President, and of course I have a particular area of responsibility with regard to that advice. 

But in terms of, you know, the person who on a day-to-day basis 

is advising the President, that is the White House counsel as opposed to the Attorney General because there is a wall. There is an 

independence that exists between the Justice Department and the 

White House. 

Mr. COLLINS. I am very familiar with that wall. I think just in 

the conversations going on, that it needs to be understood, and I 

think it goes back to this, you know, issue of oversight and discussion. 

I want to turn your attention to ATF. We just talked about it 

from the gentleman from North Carolina and tobacco, which is a 

concern. But I have a bigger concern over just what seems to be 

a lack of oversight from your office and overall when ATF was 

going through multiple interim directors. There is now a full-time 

appointed and confirmed director of ATF. 

But in Atlanta, I want to go back to an issue of the storefront. 

We have been over Fast and Furious. We are not going to talk 

about that. I want to go back to the storefront issue in Atlanta. 

This was at a time in which the current administrator was not in 

charge and there were interims going on, but you were ultimately 

in charge of ATF, correct? 

Attorney General HOLDER. Yes. 

Mr. COLLINS. So you have oversight. Does it not concern you, and 

I think it concerns many on this, that there seems to be, especially 

from Fast and Furious to this storefront operation, why there 

seemed to be no concerted oversight from your office, especially 

when there was not a permanent director. Can you help me understand why they seemingly were able to operate very rogue programs? 

I come from a law enforcement background. My father was in 

law enforcement. And the actions of one represents all, and they 

should not, and I agree with you there. But why was this going on? 

And I have asked specific questions, which they are supposed to 
73 

meet with me next week, but I still have not gotten the answers. 

Why was this program from your perspective not better managed? 

Attorney General HOLDER. Well, I think it was just poor management, poor decision making. But I also think, you know, that Congress bears some of the responsibility here by not approving a person, a Senate confirmed person, to run ATF. That makes a fundamental difference. 

Mr. COLLINS. So hold on just 1 second. I have a question there. 

So you are saying that if we do not confirm somebody or that—— 

Attorney General HOLDER. I am not saying—— 

Mr. COLLINS [continuing]. By the Senate. By the way, the Senate 

side would confirm, not us. 

Attorney General HOLDER. Oh, I am not blaming you all. 

Mr. COLLINS. That you put somebody in an interim role that they 

cannot make good decisions, that they use handicapped personnel 

to recruit folks? They take police weapons. They do not inform the 

local police that they have the weapons? In fact, Atlanta and Fulton County are still searching. The ATF has not acknowledged that 

they have the guns? 

Attorney General HOLDER. No, that is not what I am saying. I 

am saying that that is a factor in why you saw, I think, some of 

the things happen in ATF. If you look at the leadership that Todd 

Jones has been able to bring to that organization as the Senateconfirmed head of that organization, there is a certain gravitas that 

he has that people who preceded him simply did not have. 

Mr. COLLINS. I had a great time talking to him. 

Attorney General HOLDER. It is only a factor. It is only a factor. 

Mr. COLLINS. I had a great time talking with him last week. Now 

I am talking with you because during the time he was not there, 

these were going on. And to me, that is one of the things that has 

overridden these hearings a lot is just a simple lack of administrative trust on what is going on on the oversight, especially in ATF, 

but in other areas where it is viewed, and especially when we cannot seem to work together on getting stuff done. 

Instead, as you worded it just a moment ago, it was discretion 

to, as we were talking about, the drug instance. Discretion does not 

mean you cannot follow the law. Discretion is always there, and I 

think that is the concern that I have here, and it is the concern 

that just pops up whether it is ATF, whether it started back years 

ago. There is just a basic lack of trust when you look at prosecutions, when you look at the issues going on, and we cannot seem 

to get answers that are not just basically blown off. 

And I do not understand that from your perspective, especially 

with an agency like ATF that has already had problems why the 

leader would not have taken a better hands on role there. Can you 

explain that one to me? 

Attorney General HOLDER. Well, we have provided documents. 

We have provided evidence. 

Mr. COLLINS. But did it concern you? Not the documents. I want 

to know from you, Mr. Attorney General. 

Attorney General HOLDER. Sure it concerns me. The notion that 

you would use mentally unstable people, you would tattoo them, 

that you would do ridiculous things like that, is absurd, and people 

will held be accountable. 
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Mr. COLLINS. How were they held accountable? 

Attorney General HOLDER. It is crazy. 

Mr. COLLINS. How were they held accountable? 

Attorney General HOLDER. Well, the investigation—— 

Mr. COLLINS. What did you do to hold these people accountable? 

Attorney General HOLDER [continuing]. Is being run by the Inspector General. Once those findings are made and people are identified, they will be held be accountable, in the same way that happened with regard to other things that ATF was involved in. 

Mr. COLLINS. These are several years old, and so it is hard—— 

Mr. CONYERS. Mr. Chairman, can we have regular order? 

Mr. GOODLATTE. The time of the gentleman has expired. 

Mr. COLLINS. My time has expired. Mr. Attorney General, thank 

you for your questions. My time has expired. 

Mr. GOODLATTE. The Chair recognizes the gentleman from Florida, Mr. DeSantis, for 5 minutes. 

Mr. DESANTIS. Thank you, Mr. Chairman. Thanks for coming, 

Attorney General Holder. I want to follow up. You have been asked 

by Senator Lee about the Obamacare employer mandate delay, and 

then today by Congressman Chabot, and you cited the IRS analysis. So I have that if we can provide that for you. 

It is actually very simple. It is just one sentence, and it basically 

says that ‘‘The Secretary shall prescribe all needful rules and regulations for the enforcement of this title, including all rules and regulation as may necessary by reason of any alteration in law in relation to Internal Revenue.’’ Again, that is 7805-alpha. 

So how would that trump an obligatory statutory mandate, because in the Affordable Care Act it says that ‘‘This mandate shall 

take effect.’’ It does not say ‘‘discretionary.’’ This is providing authority to implement statutes and to prescribe rules for that effect. 

But how would this be used to trump that deadline, because the 

deadline has essentially been suspended twice. In the second suspension, there was additional gloss added. Now instead of a 50-employee, now we have this 50- to 100-employee, and there are different rules being prescribed. So what would you cite within that 

regulation that would give the executive branch the authority to 

suspend the statute? 

Attorney General HOLDER. Well, as I indicated, the Treasury Department came up with the analysis and the basis for the delay. 

It seems to me that it is not a question of trumping. It seems to 

me that it is consistent with the act, and the action taken by the 

Administration in that regard was appropriate. 

Mr. DESANTIS. So let me ask you another issue. In November we 

had this issue with Obamacare. Plans were being cancelled. It was 

obviously politically difficult for the President’s party in particular. 

And the way that provision worked, there is a grandfather provision, so as soon as the ACA was passed, you could potentially have 

been covered if you had existing coverage. But any new coverage 

that anyone got after that March 2010 date, the grandfather clause 

just did not apply. 

So this was causing a lot of problems in the marketplace, so the 

President came out to the podium in the White House press room, 

and he said this: ‘‘Already people who have plans that pre-date the 

Affordable Care Act can keep those plans if they have not 
75 

changed.’’ That was already in the law. That is what is called a 

grandfather clause that was included in the law. 

Today we are going to extend that principle both to people whose 

plans have changed since the law took effect and to people who 

bought plans since the law took effect. So if the grandfather clause 

is limited to plans that pre-date the implementation of Obamacare, 

where would the executive branch get the authority to extend the 

coverage of the statute to plans that were not covered by the law? 

Attorney General HOLDER. Well, again, I do not know exactly 

what the basis is for that action. I am confident that the determinations that were made within the Administration are consistent 

with the law. I think we all need to pull back a little bit here. Pull 

back a bit. We have got 7.1 million who have signed up, people who 

have healthcare now who did not have it before. 

Mr. DESANTIS. It does not excuse whether you are doing it. With 

all due respect, you can do good things or bad things—— 

Attorney General HOLDER. No, can I finish—— 

Mr. DESANTIS. But I think you are trying to—— 

Attorney General HOLDER. I have given you a chance to ask a 

question. 

Mr. DESANTIS. I know, but my time is limited, sir. I understand 

what you are going to say. 

Attorney General HOLDER. Well, let us go past 5 minutes then. 

How about that? And let us pull back a little back and see that 

people who did not have healthcare before now have it. People who 

did not have great healthcare before now have it. People who had 

pre-existing conditions are now covered. Younger people, like my 

kids who are unemployed, can stay on my healthcare plan, that 

there are going to be, you know, 7.1 million people signed up. 

There are substantially greater numbers of people in those other 

categories that I have mentioned. And let us look at that. Look at 

the totality of that before you start to pick at these things, which 

are not insubstantial. They are legitimate questions—— 

Mr. DESANTIS. But, Mr. Attorney General, the rule of law ultimately—we have a constitutional system. That is one of the things 

that makes our country unique from others is that you have separation of powers. This whole architecture was designed ultimately—— 

Attorney General HOLDER. And you tried to repeal it 50 times, 

and that is part of the constitutional system—— 

Mr. DESANTIS [continuing]. To protect individual freedom. And 

so, to say that, oh, well, people are now staying on their parents’ 

plans, that has nothing to do with the executive action that was 

taken in this instance, and we are trying to determine whether the 

President has gone beyond in this case by rewriting provisions of 

the statute. And basically you have simply referred to other analysis, but most of us on this Committee find that analysis has been 

wanting, and we do not think that it has been good. 

Final thing, this Dinesh D’Souza prosecution, I know you are not 

going to comment on the ongoing investigation, but it was a straw 

donation reimbursement scheme is the allegation. The FBI did say 

that this was uncovered during a routine review of FEC filings. 

And so, my question to you is, to put aside this case, how would 

it even be possible if all you are doing is reviewing the FEC filings 
76 

to know that some of those donations have been reimbursed? 

Would you not need to actually have targeted one of those donors 

and done additional investigation? It just seems to me by simply 

reviewing the FEC filings that is not going to be sufficient. 

Attorney General HOLDER. Well, I am not going to comment, as 

you said, on the ongoing investigation, but I can certainly tell you 

that information comes to the FBI, to the Justice Department in 

a variety of ways. And on the basis of the receipt of that information, determinations are made about what cases are going to be investigated, what cases are ultimately going to be prosecuted. 

Mr. DESANTIS. But that is not really—— 

Mr. GOODLATTE. The time of the gentleman has expired. The 

Chair recognizes the gentleman from Missouri, Mr. Smith, for 5 

minutes. 

Mr. SMITH OF MISSOURI. Thank you, Mr. Chairman. Attorney 

General, a pleasure to have you here. Does Federal law prohibit 

the sale or possession of marijuana? 

Attorney General HOLDER. Technically, yes. 

Mr. SMITH OF MISSOURI. Technically. Is it not under the Controlled Substance Act of 1970 where it defines that as a Schedule 

1 drug? So that is a fact, right? Correct? 

Attorney General HOLDER. Yes. 

Mr. SMITH OF MISSOURI. Okay. And whenever State law conflicts 

with Federal law, does Federal law take precedence? 

Attorney General HOLDER. That is generally true. It is not always true. 

Mr. SMITH OF MISSOURI. Would it be true in the case of the Controlled Substance Act of 1970? 

Attorney General HOLDER. That is an interesting question. If a 

State, for instance, decided to decriminalize possession of a particular substance, there is at least an argument that can be made 

that the Federal Government could bring a supremacy clause suit 

against the State. But there is an argument that could be made 

that a State cannot be forced to criminalize something. So it is actually an interesting question. 

Mr. SMITH OF MISSOURI. Is it, would you say, similar to the Arizona immigration case? 

Attorney General HOLDER. No. There I think it is clear that the 

responsibility for the enforcement of immigration law is something 

that is clearly Federal in nature. There is not a dual responsibility 

as there is with regard to certain criminal laws. 

Mr. SMITH OF MISSOURI. I thought it was interesting in that Arizona case that Justice Kennedy, who wrote the majority opinion, 

said ‘‘States may not pursue policies that undermine Federal law.’’ 

And the Controlled Substance Act is a Federal law, and the State 

of Colorado is undermining that Federal law, correct? 

Attorney General HOLDER. No. I mean, what we have said that 

we are looking at the way in which the law is being enforced or 

how we are going to enforce the law in Colorado and in Washington 

as well. We are going to apply those eight factors that we have put 

together, and we are going to use our limited resources to go after 

people who engage in the trafficking use of marijuana that has an 

impact on those eight factors. 
77 

Mr. SMITH OF MISSOURI. So if my fellow former colleagues in the 

State house and State Senate would say the State of Missouri does 

not want to participate in the Affordable Care Act, could or would 

you all sue the State of Missouri? 

Attorney General HOLDER. Well, certain States have made that 

determination by not expanding Medicaid. 

Mr. SMITH OF MISSOURI. So my constituents, if they do not sign 

up, they will not be penalized in their IRS forms? 

Attorney General HOLDER. No, that is not the way the statute is 

written. 

Mr. SMITH OF MISSOURI. Okay. Well, we know what the statute 

says in the Controlled Substance Act of 1970, and it says marijuana sale or possession is a violation of Federal law. I always visit 

my schools back home. I talk to the kids. And I always try to bring 

home the theme of being a responsible citizen to society and to 

obey the laws of the land. And one of the laws of the land, which 

is Federal law, from 1970, 10 years before I was ever born, that 

says that marijuana, the sale or possession, is a violation of Federal law. What do you say to those kids when you are in the classrooms and they ask why you choose to enforce certain laws and 

some laws you do not enforce? 

Attorney General HOLDER. Well, first I would say that with regard to our eight enforcement priorities, the very first one, the 

thing that will bring about Federal involvement, Federal concerns, 

Federal action, is number one, preventing the distribution of marijuana to minors. We have limited resources. I do not think you are 

meaning to suggest that the Federal Government should prosecute 

every possessory marijuana case that exists in the United States, 

which technically, I suppose, we would have the ability to do. That 

is not what you are proposing, right? 

Mr. SMITH OF MISSOURI. You know, the law of the land is the 

Controlled Substance Act of 1970 that says all marijuana, it is a 

violation of even one marijuana cigarette. That is what the law 

says, correct? 

Attorney General HOLDER. So you are saying that we should 

prosecute every one of those cases—— 

Mr. SMITH OF MISSOURI. I am asking you. You are the Attorney 

General of the United States. 

Attorney General HOLDER. And I am asking you a question, I 

think, legitimately in return to the question that you posed to me. 

Mr. SMITH OF MISSOURI. I am asking why you fail to enforce the 

laws of the land, Attorney General. 

Attorney General HOLDER. Your premise is wrong. We are enforcing the laws of the land. We are enforcing the laws—— 

Mr. SMITH OF MISSOURI. Does the law of the land say that under 

1970 that the sale or possession of marijuana is illegal? 

Attorney General HOLDER. We are enforcing the law consistent 

with the—— 

Mr. SMITH OF MISSOURI. And do States in the United States 

allow the sale of marijuana? 

Attorney General HOLDER. We are enforcing the law consistent 

with those eight enforcement priorities. And again, the question I 

have for you which you have not answered is would you have us 
78 

prosecute every marijuana possession case that exists in the United 

States of America? 

Mr. SMITH OF MISSOURI. Attorney General, when you actually 

answer my—— 

Attorney General HOLDER. Would you have us do that? 

Mr. SMITH OF MISSOURI [continuing]. Colleagues’ question, I 

would be more than happy to answer yours. 

Attorney General HOLDER. I will take that as a no. 

Mr. GOODLATTE. Thank you. The time of the gentleman has expired. The Chair recognizes the gentleman from Pennsylvania, Mr. 

Marino, for 5 minutes. 

Mr. MARINO. Thank you. General, I want to talk to you about 

two issues. These are important to my district. One is the OC 

spray, the pepper spray, for Federal prisons, number one. And 

number two is going to be the DEA and prescription drug issues. 

So I think you may recall that we have had a couple of discussions 

on the pepper spray. 

In August of 2012, the Bureau implemented a pilot evaluation of 

the pepper spray at seven high security institutions. In February 

of 2013 after 6 months’ review period, data indicated that OC spray 

significantly reduced incident containment times. As a result of 

these findings, the pilot program was expanded, I believe, to include all high security prisons in the Federal system detention centers and jails. 

In my district, the 10th District of Pennsylvania, we have the 

highest number of Federal prison workers of any district that I 

know of in the country. I hear from prison guards about their concerns for their safety. These concerns have only risen since the 

tragic death of Eric Williams—you and I were at his funeral—who 

was working in the Canaan Penitentiary and was brutally attacked 

by an attack. And since this horrific event, I have been asking for 

higher safety security measures for our guards as well as more 

staffing. 

You were to give us a comprehensive report on the results of the 

spray. But you know something? Giving the results of the report 

really is not that critical to me. My question is, why have we not 

put the pepper spray into effect throughout the Federal system for 

not only those officers, but also individuals that work there? 

Attorney General HOLDER. Congressman, if I could get back to 

you on that because we are all thinking that, in fact, as a result 

of that trial, the program has, in fact, been rolled out. But if that 

is not the case, I want to be able to respond to you in a way that 

is accurate. 

Mr. MARINO. Let me help you out there. I think it has been 

rolled out for the official guards who are responsible and have supervision over the inmates. Where it has not been rolled out, and 

you can correct me if I am wrong later, is, for example, there was 

a supervisor in a kitchen in one of the prisons. He is not really a 

‘‘prison guard.’’ 

Attorney General HOLDER. I see what you mean. 

Mr. MARINO. But he was attacked, brutally attacked. And he was 

one person supervising about 20 people in that kitchen. So why 

would he or she in counseling and in any other situations, because 
79 

they have all been trained. You have made sure that they have all 

been trained on this. I think they should all have it. 

Attorney General HOLDER. I see. 

Mr. MARINO. And I would appreciate it if you would really kick 

that into gear as soon as possible. 

Attorney General HOLDER. All right. I understand what you are 

saying. All right. We will look at that. We have, I think, a new and 

different relationship with the union and with, I think, the people 

they represent, but that is something that I think is worthy of examination. I understand what you are saying. 

Mr. MARINO. Thank you. Believe me, I have the utmost respect 

for the Justice Department. That was the pinnacle of my career 

when I was there. I am going to switch over to prescription drugs 

now and DEA. You underscored the Department’s commitment to 

fighting the rampant abuse of prescription drugs and heroin. You 

know the epidemic that that has caused, and I commend you for 

that effort. 

But I was troubled by some language that you chose, noting the 

Department’s enforcement initiatives. At least I inferred you seem 

to equate legitimate supply chain businesses to illicit narcotics cartels. I found that disappointing. This mindset, it is extremely dangerous to legitimate business. As a matter of fact, how am I reading this, and this is why I introduced a bill, H.R. 4069, Ensuring 

Patient Access and Effective Drug Enforcement Act of 2014. My 

legislation would encourage more collaboration—the operative term 

‘‘more collaboration’’—between DoJ and legitimate companies trying to work with you to prevent prescription drug abuse. 

My understanding is the DEA now is going to the drug companies and saying you should have realized that the amount of drugs 

that you were sending out to this particular individual, you should 

have made the determination that that individual was abusing 

drugs. And then these legitimate businesses are being held responsible for that and fined and perhaps put out of business. 

So I am asking if the people of DoJ in this area and DEA talk 

with these companies, sit down and put together guidelines, because they have told me they have asked DoJ, DEA, well, what are 

the guidelines. Can you give us some ideas, because when I was 

a prosecutor both at the State and Federal level, shipping companies and even pharmaceuticals brought information to our attention saying, hey, we think there may be an issue here going to this 

particular address. You might want to look into it. So I am asking 

you to set guidelines up for these companies so they can work very 

closely with you so we can, if not eliminate, significantly curtail the 

abuse of prescription drugs. Could you do that? 

Attorney General HOLDER. Sure. And I certainly did not mean to 

imply, and I do not think I said in the remarks I made, for instance, referring to that tape that was made, that companies who 

are legitimately producing these very useful products, they cannot 

be held responsible for the distribution chain down the road where 

doctors, people steal, you know, doing a whole variety of things. I 

do not want to cast that wide a net. 

And to the extent that there are concerns by people and industry, 

I would more than welcome a conversation. Perhaps you could facilitate—— 
80 

Mr. MARINO. I would love to. 

Attorney General HOLDER [continuing]. To have that conversation because the reality is we cannot, and this is the thing that 

concerns me, that there are people who have legitimate needs for 

these kinds of prescriptions, these kinds of substances that relieve 

pain. And we cannot in our desire, our legitimate desire and one 

that I am pushing, to stop opioid use, which potentially leads to 

heroin involvement. We cannot lose sight of the fact that there are 

good people, sick people, good companies who employ good people 

who are trying to do the right thing. 

Mr. MARINO. I see my time has expired, but if you find yourself 

not having something to do one some evening, which you probably 

never do, I would love to discuss the issues concerning mental 

health and the criminal justice. 

Attorney General HOLDER. Okay. 

Mr. MARINO. Thank you, sir. I yield back. 

Attorney General HOLDER. Thank you. 

Mr. GOODLATTE. The Chair thanks the gentleman. And, General 

Holder, he is the 34th Member to ask questions of you. So we 

thank you very much for joining us today and answering a lot of 

questions from a lot of Members of this Committee. 

Without objection, all Members will have 5 legislative days to 

submit additional written questions for the witnesses or additional 

materials for the record. 

And, General Holder, we hope that you will answer those questions in writing in a reasonable period of time. 

This hearing is adjourned. 

Attorney General HOLDER. Thank you, Mr. Chairman. 

[Whereupon, at 1:47 p.m., the Committee was adjourned.] 
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A P P E N D I X 

MATERIAL SUBMITTED FOR THE HEARING RECORD
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*The Committee had not received a response to these questions at the time this hearing 

record was finalized and submitted for printing on July 15, 2014. 

Questions for the Record submitted to the Honorable Eric H. Holder, Jr., 

Attorney General, United States Department of Justice, Washington, DC* 
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