U.S. GOVERNMENT PUBLISHING OFFICE

28–393 PDF WASHINGTON : 2018

S. HRG. 113–881 

OVERSIGHT OF THE 

U.S. DEPARTMENT OF JUSTICE 

HEARING 

BEFORE THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE 

ONE HUNDRED THIRTEENTH CONGRESS 

SECOND SESSION 

JANUARY 29, 2014 

Serial No. J–113–47 

Printed for the use of the Committee on the Judiciary 

( 
(II) 

COMMITTEE ON THE JUDICIARY 

PATRICK J. LEAHY, Vermont, Chairman 

DIANNE FEINSTEIN, California 

CHUCK SCHUMER, New York 

DICK DURBIN, Illinois 

SHELDON WHITEHOUSE, Rhode Island 

AMY KLOBUCHAR, Minnesota 

AL FRANKEN, Minnesota 

CHRISTOPHER A. COONS, Delaware 

RICHARD BLUMENTHAL, Connecticut 

MAZIE HIRONO, Hawaii 

CHUCK GRASSLEY, Iowa, Ranking Member 

ORRIN G. HATCH, Utah 

JEFF SESSIONS, Alabama 

LINDSEY GRAHAM, South Carolina 

JOHN CORNYN, Texas 

MICHAEL S. LEE, Utah 

TED CRUZ, Texas 

JEFF FLAKE, Arizona 

KRISTINE LUCIUS, Chief Counsel and Staff Director 

KOLAN DAVIS, Republican Chief Counsel and Staff Director 
(III) 

C O N T E N T S 

JANUARY 29, 2014, 10:09 A.M. 

STATEMENTS OF COMMITTEE MEMBERS 

Page 

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

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

WITNESS 

Witness List ............................................................................................................. 55 

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

Washington, DC ................................................................................................... 6 

prepared statement .......................................................................................... 56 

QUESTIONS 

Questions submitted to Hon. Eric H. Holder, Jr., by: 

Senator Coons ................................................................................................... 69 

Senator Feinstein ............................................................................................. 62 

Senator Flake .................................................................................................... 83 

Senator Grassley .............................................................................................. 70 

Senator Hatch ................................................................................................... 81 

Senator Leahy ................................................................................................... 60 

Senator Lee ....................................................................................................... 82 

Senator Whitehouse ......................................................................................... 68 

ANSWERS 

[Note: At the time of printing, the Committee had not received responses 

from Hon. Eric H. Holder, Jr.] 

MISCELLANEOUS SUBMISSIONS FOR THE RECORD 

American Legion, The, Washington, DC, January 8, 2013, letter ....................... 85 

American Veterans (AMVETS), Lanham, Maryland, April 2, 2013, letter ......... 87 

Articles on Veterans Treatment Court: Jessica Mador, ‘‘Expansion of Treatment Court Sought for Outstate Minnesota Vets,’’ Minnesota Public Radio, 

August 13, 2012; and Mark Brunswick, ‘‘Vets Court Focuses on Those 

Struggling After Their Service,’’ Star Tribune, November 20, 2011 ................ 88 

Wounded Warrior Project, Washington, DC, February 25, 2013, letter ............. 92 

(1) 

OVERSIGHT OF THE 

U.S. DEPARTMENT OF JUSTICE 

WEDNESDAY, JANUARY 29, 2014 

UNITED STATES SENATE, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC. 

The Committee met, pursuant to notice, at 10:09 a.m., in Room 

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

Chairman of the Committee, presiding. 

Present: Senators Leahy, Schumer, Durbin, Whitehouse, 

Klobuchar, Franken, Coons, Blumenthal, Grassley, Hatch, Sessions, Graham, Cornyn, Lee, Cruz, and Flake. 

OPENING STATEMENT OF HON. PATRICK J. LEAHY, 

A U.S. SENATOR FROM THE STATE OF VERMONT 

Chairman LEAHY. Before we start, today’s hearing, like most 

hearings in here, deals with a serious issue, and I know the public 

will act accordingly. I appreciate so many members of the public 

coming in here. We try to have these hearings as open as possible, 

Senator Grassley and I, make sure they are streamed live so anybody can watch. But I would also note at the outset that the rules 

of the Senate prohibit any outbursts or clapping or demonstrations 

of any kind, which, of course, includes blocking the view of people 

around you. And please be mindful of those rules, and, of course, 

the Capitol Police will enforce them. 

But I welcome the Attorney General back to the Senate Judiciary 

Committee. I thank him for his service and restoring Americans’ 

faith in a Department that has in the past at times lost sight of 

its core mission. 

It is interesting that the Judiciary Act of 1789—and neither Senator Grassley nor I were here at that time, but the Office of the 

Attorney General has carried since its inception the responsibility 

to protect Americans and safeguard the rights and liberties that 

make our country great. That is why it is the Attorney General of 

the United States—not the Secretary of Justice or anything else, 

but the Attorney General of the United States—representing all of 

us. For much of the past two centuries, the Department has faced 

many challenges: combating violent crime, fraud, and corruption 

and enforcing our Nation’s laws. 

Over the last several decades, the mission of the Department expanded to include protecting the civil rights of all Americans. We 

have to continue this even today, years after the end of Jim Crow 

laws and poll taxes. That is why I recently joined with Representa-
2 

tive Sensenbrenner to introduce the bipartisan Voting Rights 

Amendment Act. 

We also face ever more complex threats to our national security 

and more sophisticated methods of criminal activity. The Department has adapted quickly to develop new tools and resources to respond to these threats. But along with these rapid changes is the 

challenge of remaining true to our core values of liberty, privacy, 

and a Government responsive to the people. 

We live in a digital age. We all know that. The challenges are 

even more acute. Every day, Americans generate an enormous 

amount of information about their lives through simple, routine 

tasks like using a credit card, sending a text message, calling a 

friend, or searching for directions on the Web. This technology improves our lives, but the vast amount of data it creates is also remarkably revealing and vulnerable to exploitation. And I will ask 

at some point, is there anything in the U.S. Constitution that gives 

authority to the Congress to pass a law that enables and empowers 

an executive agency such as the NSA or the Bureau of Land Management, for that matter, to open, to listen, or to seize either the 

mail, the phone conversations, or electronic communications of U.S. 

citizens simply by a blanket law? In Vermont, we treasure our privacy, and this makes me wary of Government overreach or lax protections for consumers in these laws. I think the changes show a 

need for Congress and the Department to act. 

We need to set appropriate limits on when and how the Government can collect vast amounts of data on Americans, assuming we 

even have the power to allow and to pass a law to allow any agency—any agency—to do this. I will continue to push for passage of 

my USA FREEDOM Act, as well as legislation to reform the Electronic Communications Privacy Act. And I thank those Senators in 

both parties that have joined on similar legislation. We have to ensure that the huge amounts of data that are collected, assuming 

that they have the right to collect them, which is a big assumption, 

that they are—that those that are collected and shared and stored 

by businesses are kept safe from the growing threats of data 

breaches and identity theft. We are going to examine this issue in 

detail at a hearing next week. 

But it is also important that the Department continue to fulfill 

its core criminal justice mission. I know the Attorney General and 

I share an unshakable commitment to keeping Americans safe, to 

supporting the men and women on the front lines of law enforcement, but also to help victims rebuild their lives. We worked closely last year—and I appreciated the help—to reauthorize the Violence Against Women Act and the Trafficking Victims Protection 

Act with critical improvements to protect all victims. And after a 

3-year effort, last year the President signed into law my Dale Long 

Public Safety Officers’ Benefits Improvements Act, which will make 

significant improvements to the Public Safety Officer Benefits program that is so important to our first responders. 

I appreciate the Attorney General’s strong support for the goals 

of the Justice for All Reauthorization Act, the Second Chance Reauthorization Act, and forensics reform legislation, each of which are 

going to improve the effectiveness of our criminal justice system, 
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and I would like to see them enacted this year. I know a lot of people in law enforcement would like to see them enacted. 

I appreciate the Attorney General’s recognition of the bipartisan 

efforts currently underway in this Committee to address the 

unsustainable growth of our prison population. At the rate we are 

going, there will be no money for law enforcement. It will be just 

in prisons, even to the extent of having geriatric units in these 

prisons. In a time of shrinking budgets at all levels of Government, 

I think the problem that we have in an expanding prison population presents devastating consequences for our other critical public safety priorities. If you do nothing and we just allow the Federal 

prison population to consume more than a quarter of the Department’s budget with eventually even more in that, that makes us 

less safe. Incremental changes to mandatory minimums for nonviolent drug offenders is a good place to start, and I am optimistic 

that we are going to be able to pass a bipartisan bill out of this 

Committee to do that. 

So thank you, Attorney General, for returning to the Committee 

to discuss these important issues. But I also want to thank the 

men and women of the Department of Justice who work hard every 

day to keep us safe. I met with a lot of them. You are the face of 

the Department of Justice. As you know, there are thousands of 

people whose faces will never be in the news but who are out there 

every single day throughout the country and abroad keeping us 

safe. We pray for their safety, and we appreciate what they do. 

They deserve our gratitude and respect. 

Senator Grassley. 

OPENING STATEMENT OF HON. CHUCK GRASSLEY, 

A U.S. SENATOR FROM THE STATE OF IOWA 

Senator GRASSLEY. Before I read my statement, I would like to 

say to General Holder, obviously you and I were bitten by different 

political bugs, but—and we have policy differences. Maybe we have 

got more agreement than what you and I might realize at a particular time. And I think those policy differences are legitimate, 

and we can live with them. In my statement I am going to make 

some comments about some administrative action where I think 

there is no excuse for and Congress is not being respected by your 

Department, and whether it is you or people within your Department, I think at the very least we ought to have responses to 

things where there should be no political differences, just wanting 

information. So I hope you appreciate the fact that if we disagree 

on policy issues, that it does not carry over to things that when 

Congress simply wants some administrative action on your part. 

I thank you, Chairman Leahy, for this hearing. It is a very important hearing. Oversight is very, very important. And I thank the 

Attorney General for coming here. You take some beating by coming here, but at least you are fulfilling a constitutional responsibility of giving us information that we need in public. 

I have to start by pointing out to the Chairman that we still have 

not received answers to our questions for the record from the last 

oversight hearing with the Attorney General, which was almost 11 

months ago. As I have indicated, I think this is unacceptable. The 

Department should show sufficient respect for this Committee to 
4 

answer its questions—at least prior to the next oversight hearing, 

now 11 months elapse. We also have not received replies to questions directed to other department officials who testified at various 

hearings over the past year. 

This hearing also affords me the opportunity to call to your attention, General Holder, the many letters the Department has not 

yet answered. It is unfortunate that we always have to start a Department oversight hearing with this same request to respond to 

unanswered questions from Congress. 

For instance, back in early November I wrote you about the Justice Department’s counsel to Health and Human Services on the 

Affordable Care Act. HHS says that in consultation with your Department, it decided not to apply the anti-kickback statute to the 

Affordable Care Act. This is a clear violation of Congress’ move to 

strengthen anti-fraud laws, and you have helped us strengthen a 

lot of anti-fraud laws. Since I have not received an answer to my 

letter, I am going to ask you about that today. 

I have also written you about the Department’s handling of cases 

in which National Security Agency employees abused their signals 

intelligence authority. 

In August, after news reports about these cases, I wrote to the 

NSA Inspector General about them. In response, the Inspector 

General indicated that since 2003, there were 12 documented instances of NSA employees abusing these authorities, in many cases 

by spying on loved ones. It is good that the number of cases was 

very small, but even one case is too many. According to the Inspector General, at least six of these cases were referred to your Department for prosecution. 

So in October, I wrote to you to request information about how 

the Department handled these cases. I asked for a response by December 1st. I have not received one. 

It is important for the public to know whether the Department 

is taking these cases seriously. We need to deter this kind of behavior in the future, given the NSA’s powerful capabilities. 

In addition, this Committee has spent a considerable amount of 

time over the past 6 months considering various reforms to the 

NSA. In his speech on this a few weeks ago, the President directed 

you as Attorney General to work with the intelligence community 

to develop ‘‘options for a new approach’’ to the bulk collection of 

telephone metadata. I will be interested in hearing how that is proceeding. 

The President has also asked you to do a review of the FBI’s 

whistleblower protections and recommend changes on how to improve them. The assignment was contained in Presidential Policy 

Directive 19, which claimed to create protections for whistleblowers 

with access to classified information. The President gave you 180 

days to complete the review, and it is now 10 months overdue. 

There is a lot of lip service to whistleblower protection, but this is 

another example of how the actions do not match the rhetoric. 

I am concerned about the President’s Directive. I recently had a 

whistleblower from the CIA contact my office. He was seeking to 

report alleged violations of the whistleblower protections in the 

President’s Directive 19, false statements to Congress, and concerns related to qui tam legislation. He tried to get permission to 
5 

share the classified details with me. Yet a CIA lawyer wrote a letter denying permission, claiming Judiciary Committee members 

are not authorized to receive classified information from the CIA— 

which is, of course, false. But it scares whistleblowers and it intimidates them into silence. This is one of several things that suggests 

to me that even with the President’s Directive, we need stronger 

legislative protections for national security whistleblowers. 

Another topic I would like to discuss is the Department’s non-enforcement of the Controlled Substances Act. In August, the Department announced that it would not challenge laws in Colorado and 

Washington legalizing trafficking of marijuana. The Department 

apparently believes that so long as these States create effective 

regulatory schemes, key Federal enforcement priorities would not 

be undermined. Those priorities include the diversion of marijuana 

into other States, increased use among minors, and more druggeddriving fatalities. 

However, I am concerned that in many ways this policy is based 

on willful ignorance of the realities in these States. For example, 

as a result of failure to adequately regulate medical marijuana, 

Colorado has seen a sharp increase in public health and law enforcement problems related to these Federal priorities in the past 

few years. Just a few weeks ago, a senior Drug Enforcement Administration official told my and Senator Feinstein’s Caucus on 

International Narcotics Control that what was happening in these 

States is ‘‘reckless and irresponsible.’’ 

At a minimum, it is important that the Department set firm criteria to measure whether—or when—its Federal priorities are 

harmed so much that the decision not to challenge these State laws 

is revisited. 

This is all the more important now that I understand you will 

soon announce additional guidance that will permit marijuana distributors in these States to use the banking system to engage in 

what is, under Federal law, money laundering. 

I am also concerned that this administration has not been faithful to the Constitution in a number of other areas by unilaterally 

changing or ignoring laws passed by Congress. In my view, many 

of these actions are inconsistent with the Constitution’s requirement that the President ‘‘take Care that the Laws be faithfully executed.’’ 

However, your Department’s Office of Legal Counsel is involved 

with this because they provide an independent check on Executive 

action. The Office of Legal Counsel is responsible for advising the 

executive branch on constitutional questions. Moreover, it reviews 

the constitutionality of all proposed Executive orders. 

Last night during the State of the Union address, the President 

signaled that he will use Executive orders aggressively to advance 

his agenda this year. Transparency should be brought to the Office 

of Legal Counsel’s analysis of proposed Executive orders so that the 

American people can see whether they are subjected to a rigorous 

constitutional review. 

Thank you very much, General Holder, for listening. 

Chairman LEAHY. Thank you. 

Please go ahead, Attorney General. 
6 

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

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

Attorney General HOLDER. Chairman Leahy, Ranking Member 

Grassley, members of the Committee, I want to thank you for the 

opportunity to appear before you today to discuss the recent 

achievements and the ongoing priorities of the United States Department of Justice. 

I would like to thank the Members of Congress for coming together earlier this month to pass a bipartisan budget agreement 

that restores the Department’s funding to pre-sequestration levels. 

Now, we are reviewing this legislation to determine its impact on 

specific programs and components, but we anticipate that it will 

provide for the hiring of additional Federal agents, prosecutors, and 

other essential staff. This will allow us to invest in innovative programs, to keep supporting State and local law enforcement agencies, and to continue building upon the outstanding work that my 

colleagues have made possible over the past year. 

Now, as I have often said, the Department’s top priority must always be the protection of the American people from terrorism and 

other national security threats. Since I last appeared before this 

Committee, we have continued to strengthen key intelligence-gathering capabilities, to refine our ability to identify and to disrupt potential terrorist plots, and to ensure that those charged with terrorism-related offenses can be held accountable to the fullest extent 

of the law. 

As President Obama noted in his speech at the Justice Department roughly 2 weeks ago, in carrying out this work it is imperative that we continue striving to protect our national security while 

upholding the civil liberties that all of us hold dear. On Monday, 

we took a significant step forward in this regard when the Department acted to allow more detailed disclosures about the number of 

national security orders and requests that are issued to communications providers, the number of customer accounts targeted 

under those orders and requests, and the underlying legal authorities. Through these new reporting methods, communications providers will be permitted to disclose more information than ever before to their customers. Allowing disclosure of this aggregate data 

will resolve an important area of concern to communications providers as well as to the public. And in the weeks ahead, as we 

move forward with the timely implementation of this and other reforms directed by the President, my colleagues and I will work 

closely with members of this Committee and other congressional 

leaders to determine the best path forward. 

We also will continue enforcing essential privacy protections and 

other safeguards concerning data possessed by the Government as 

well as by the private sector. The Department of Justice takes very 

seriously reports of any data breach, particularly those involving 

personally identifiable or financial information, and looks into allegations that are brought to its attention. 

Now, while we generally do not discuss specific matters under investigation, I can confirm that the Department is investigating the 

breach involving the United States retailer Target, and we are 

committed to working to find not only the perpetrators of these 
7 

sorts of data breaches but also any individuals and groups who exploit that data via credit card fraud. 

Now, beyond this important work, the Department will continue 

to build on the progress we have seen in confronting really a wide 

variety of other threats and challenges—from combating drug and 

human trafficking, to addressing cyber attacks, protecting Americans from violent crime, and taking really commonsense steps to 

reduce gun violence. Earlier this month, the Department strengthened the Federal background check system by clarifying Federal 

rules concerning mental health-based prohibitions on firearm purchases. Under the leadership of our Civil Rights Division, we are 

working diligently with our Federal agency partners to implement 

the Supreme Court’s ruling, in United States v. Windsor, to make 

real the promise of equal protection under the law for all American 

families and to extend applicable Federal benefits to married samesex couples. And we are vigorously enforcing Federal voting protections—and working with congressional leaders from both parties to 

refine and to strengthen the proposals that Congress is currently 

considering—to help ensure that every eligible American has access 

to the franchise. 

In addition, last year, as part of our on going efforts to hold accountable those whose conduct sowed the seeds of the mortgage crisis, the Department filed suits against Bank of America and the 

ratings firm S&P. In November, the Department reached a $13 billion settlement with JP Morgan Chase and Co.—this is the largest 

settlement with any single entity in American history—to resolve 

Federal and State civil claims related to the company’s mortgage 

securitization process. Now, I think that these results demonstrate 

that no firm, no matter how profitable, is above the law, and they 

reinforce our commitment to integrity and equal justice in every 

case, in every circumstance, and in every community. 

This commitment is also reflected in the new ‘‘Smart on Crime’’ 

initiative that I announced this past August to strengthen our Federal criminal justice system; to increase our emphasis on proven diversion, rehabilitation, and reentry programs; and to reduce unnecessary collateral consequences for those who are seeking to rejoin 

their communities. 

As part of the Smart on Crime approach, I mandated a significant change to the Justice Department’s charging policies to ensure 

that people accused of certain low-level Federal drug crimes will 

face sentences that are appropriate to their individual conduct and 

that stringent mandatory minimum sentences will be reserved for 

the most serious criminals. Alongside other important reforms, this 

change will make our criminal justice system not only fairer, but 

also more efficient. And it will complement proposals like the bipartisan Smarter Sentencing Act—introduced by Senators Dick 

Durbin and Mike Lee—which would give judges more discretion in 

determining appropriate sentences for people convicted of certain 

Federal drug crimes. I look forward to working with Chairman 

Leahy, distinguished members of this Committee, and other leaders who have shown a commitment to commonsense sentencing reform—like Senator Rand Paul—to help advance this and other legislation. 
8 

I want to thank you all once again for your continued support of 

the United States Department of Justice, and I would be happy to 

answer any questions that you might have. 

Thank you, Mr. Chairman. 

[The prepared statement of Attorney General Holder appears as 

a submission for the record.] 

Chairman LEAHY. Thank you, and thank you for mentioning the 

Smarter Sentencing Act, part of what Senator Durbin and Senator 

Lee have done, Senator Paul and I and others. We are all working 

together to try to get something that not only makes sense but can 

pass. The all one-size-fits-all we have realized, one, it does not 

make us safer; two, it does not deter crime; but, three, it means 

we are spending a huge amount of money on things that do not 

make us better and has to take money away from good law enforcement that we need. 

Last week, the Privacy and Civil Liberties Oversight Board 

issued a report that concluded the NSA’s phone records program 

should end, and I agree with that. I look forward to the recommendations you and the Director of National Intelligence will 

develop in the coming months, but Executive action is not enough. 

I think Congress has to act to ensure that this legal theory—and 

that is what I consider it, legal theory—is not used by any administration to spy indiscriminately on its citizens. 

Now, DOJ’s current interpretation of relevance in Section 215 

could allow the Government to acquire virtually any data base that 

it might someday down the road for some reason somehow find 

useful. First, is there anything in the Constitution that allows us 

to pass such an overbroad law to allow us to search anywhere we 

want? And is there any meaningful limiting principle for the Government’s interpretation of Section 215? 

Attorney General HOLDER. Well, I think that you can look at 

what the Government has been able to do in terms of surveillance, 

whether it is wiretaps, mail covers. There are a number of statutes 

that Congress has passed that allows the Government to engage in 

that kind of surveillance activity. I think the difference between 

those kinds of, I think, universally recognized programs and what 

we have seen under Section 215, the metadata program, is that 

these other materials, the other programs, are really kind of predicate based. The metadata program is really an accumulation of material without necessarily a predicate, though I will say that to 

query the data base, there has to be a predicate, and that makes 

it, I think, consistent with what has been passed by Congress before and constitutionally upheld by the courts. 

Chairman LEAHY. Well, apparently we can pass something, and 

you mentioned some have been constitutionally upheld. But we 

could also pass—Congress could pass a law, for example, that 

would allow any police officer to seize anybody and lock them up 

incommunicado for 5 years. We could pass such a law. You are a 

former judge, and you are Attorney General of the United States. 

I think you would agree with me and everybody else that would not 

pass a constitutional test at all. 

So I ask again the question: Does the Constitution give us the 

right to pass a law to allow NSA or the Bureau of Land Manage-
9 

ment or anybody else to collect such untrammeled metadata on 

American citizens? 

Attorney General HOLDER. Well, I would say that 15 judges in 

the FISA Court, 2 judges—one in California, one in New York— 

have looked at this question and made the determination that the 

215 program is, in fact, constitutional. One judge in Washington, 

D.C., has decided it is not. But I think that really only deals with 

one-half of the question. I believe that they are correct that it is 

constitutional. It is an appropriate use in a constitutional sense of 

the Government’s power. But the question is, and what the President has proposed to us: Just because we can do something, should 

we do it? And that is what Director Clapper and I are going to be 

wrestling with over the next 60 to 90 days to modify the program 

in the way the President has indicated. 

Chairman LEAHY. You anticipated another question I was going 

to ask. As you do that, are you going to be consulting with the Privacy and Civil Liberties Oversight Board? 

Attorney General HOLDER. Yes, we will be touching base with 

them. Obviously there is a report that we can look at. But I think 

we want to make this a pretty wide-ranging interaction with those 

people who have been critical of Section 215 and the other surveillance program so that we have as much information, both pro and 

con, before we make recommendations back to the President. 

Chairman LEAHY. There were news reports this past week that 

the NSA and a British intelligence agency are working together to 

collect detailed personal information from smartphone apps. I have 

some questions I will ask you in a classified forum, but what protections are in place to ensure the NSA does not do an end run 

around U.S. surveillance rules, including the First Amendment, obviously, by just going to another foreign agency and saying, ‘‘Hey, 

we are prohibited from collecting this information on Americans. 

Would you do it for us?’’ 

Attorney General HOLDER. Well, under Executive Order 12333 

the intelligence community is not permitted to ask a foreign government to collect information that we ourselves would not be allowed to collect. And so any attempt to have a foreign government 

acquire information that we are not permitted to gather ourselves 

would be inappropriate and a violation of that Executive order. 

Chairman LEAHY. The FAA recently approved six test sites for 

the use of unmanned aerial systems, drones. The FAA is developing plans to allow drones to be operating in commercial airspace 

by next year. We have also heard, though, in this Committee that 

drones are already being used for a number of areas—homeland security, law enforcement purposes. That raises significant privacy 

concerns. I can almost feel what my reaction would be if I saw a 

drone flying around over my farmhouse in Vermont and what I 

would be inclined to do, not knowing where it was coming from or 

what it was. 

What plans does the Justice Department have to use drones 

within the U.S. for law enforcement purposes? And what kind of 

safeguards are being developed? The Orwellian aspect of it I find 

very chilling. 

Attorney General HOLDER. Well, with regard to the use of these 

unmanned aerial systems, at this point the only component within 
10 

the Department that is using them in an operational way is the 

FBI. And I think we have to understand that, if used appropriately, they can serve a useful purpose. I do not—I think you remember the young child who was held hostage in a tunnel, I think 

it was in Georgia or Alabama someplace. Use was made of a drone 

in that case and proved decisive in resolving that situation in a 

good way. 

The Inspector General in the Justice Department has recommended that we come up with a uniform system of rules and 

regulations within the Department to control how these devices are 

used, and that is something that I support, and it is something 

that we will be developing. 

Chairman LEAHY. And that I would like to work with you on the 

development, and I think other members of the 

Committee on both sides of the aisle, because simply the fact 

that we have the technology, I can see in the hands of some, boy, 

this is the latest and greatest whiz bang, let us just go spy on 

everybody’s back yard and everything else. And I think the reaction 

of the American public would be pretty significant as compared to 

the very specific targeted law enforcement, the missing child thing 

that you mentioned. 

Last, and I apologize to Senator Grassley, but we talked about 

the Federal prison population—this is something of concern to 

many of us here—has grown by more than 500 percent in the last 

30 years. That is eating up money that cannot be used to hire more 

prosecutors or agents or providing assistance to State and local law 

enforcement. In fact, the Inspector General said the Bureau of Prisons’ budget is at the top of its list of management challenges—the 

top of the list. 

What is this increasing prison population doing to your other priorities? 

Attorney General HOLDER. Well, the Bureau of Prisons’ budget 

takes up roughly a third of the Justice Department’s entire budget, 

and it precludes us from doing a variety of other things that I 

know members of this Committee are interested in, and those are 

interests that I share. Our ability to help our State and local partners with regard to grants is impacted. Our ability to hire more 

prosecutors, more agents, more support personnel is impacted. 

We have to fund the prison system to make sure that the people 

who are in those systems are safe, that we provide constitutional 

care to people who are incarcerated. But unless we take, I think, 

the fundamental look that has been suggested by you, Senator Durbin, Senator Lee, Senator Paul, unless we take that fundamental 

look, we are going to have a prison system that impedes our ability 

to do the kinds of things the American people expect the Justice 

Department to do. And I am very concerned about that, and that 

is why I announced that Smart on Crime initiative back in August. 

And I think what I announced is consistent with what members of 

this Committee have suggested as well, and that is why I want to 

work with you to try to get a handle on what is, I think, a growing 

and potentially very dangerous problem. 

Chairman LEAHY. Please do, because you have broad bipartisan 

support across the political spectrum to find our way out of this, 

and we need the advice. 
11 

Senator Grassley. 

Senator GRASSLEY. Yes, before my time starts, could I follow up 

on—I have the same concern you do about privacy being violated 

by drones, but I want to point out that with airplanes in Iowa and 

Nebraska, EPA has some authority to spy on certain animal feeding operations, but they were spying on people they did not have 

the right to regulate with airplanes. We are going to have a bigger 

problem with the Government abuse of privacy with drones now. 

So I just raise that as an issue, not for you to comment on or not 

for you to comment on. 

General, in my opening statement, a couple questions on something I have already discussed with you. I mentioned that I wrote 

you back in October concerning the Department’s handling of cases 

referred to in which the National Security Agency employees intentionally or willfully abused surveillance authority, but I never received a response. We need to know whether the Justice Department is taking any action or even whether you consider the cases 

serious. Can you tell me whether anyone at the NSA has been 

prosecuted for this conduct, and if they have not, why maybe they 

have not been prosecuted? 

Attorney General HOLDER. Well, I think the concern that you 

raise is a very legitimate one, and we will get a response to you 

in greater detail. But the fact that—and there were those referrals. 

But the fact that members of the NSA who have access to this information, access to these techniques, these capabilities would misuse them for—and I think you are right, as you said in your statement, using them for essentially personal use, look to spy on people 

with whom they had relationships, is totally inappropriate. We will 

get you a fulsome response to indicate how those cases were dealt 

with by the Justice Department. But I share the concern that you 

express. 

Senator GRASSLEY. Is it possible that you could do that soon? 

Attorney General HOLDER. Yes, we will do that soon. I will write 

that one down and make sure we get back to you on that. 

Senator GRASSLEY. Now, I have referred to Presidential Policy 

Directive 19 released 15 months ago. This follows up on my interest of making sure whistleblowers have protection. It mandated 

that you deliver a report to the President within 180 days—that 

would be April last year—to assess the effectiveness of the FBI’s 

procedure of handling whistleblowers. 

Now, why I raise this issue is because we have had whistleblowers’ rights violated, like Robert Kobus and Jane Turner, getting a runaround for years, even after the Inspector General has 

found in their favor. However, to date there has been no public announcement that your review has been completed. Why have you 

not issued the report nearly 10 months after deadline? What have 

you learned from your review? Will you provide a copy to the Committee of the review? 

Attorney General HOLDER. Well, I will have to check on the status of that review. I am not sure what shape it is in and whether 

it is ready for dissemination, but I will look at that. 

Again, I share the concerns that you have about whistleblowers. 

I think that people who have concerns about the way in which the 

Government is conducting itself have to have the feeling that they 
12 

have places that they can go and report these things in a way that 

does not do damage to the Government itself. And so if there is not 

that feeling that they have mechanisms, established means to 

share those concerns, we then end up with people sharing things, 

and I think in an inappropriate ways, perhaps with newspapers, 

other media. And so the concern you have is a very legitimate one, 

and this is another one where I will have to get back to you and 

let you know where we stand. 

Senator GRASSLEY. When you mentioned concerns of the Government, I appreciate that because Government has got certain responsibilities. But when you have got one individual against the 

Government, it would seem to me it is pretty easy to see how that 

one individual is going to be run over if we do not see that they 

get their constitutional rights protected. 

I had a question on drones, but I think you have answered that. 

I will go to the Office of Legal Counsel’s review of Executive orders 

that I spoke about. I mentioned my concern that the President has 

been using Executive orders to circumvent the will of Congress and 

the American people. I am sure he does not feel that way. You 

probably feel he has not either. But I will tell you, it is a big concern for people that come to my town meetings. It appears that he 

may continue to do this. He said so last night. 

In the interest of transparency—and with transparency comes 

accountability—would you disclose to the public the Office of Legal 

Counsel’s analysis of all proposed Executive orders so that the 

American people can see whether they are subjected to rigorous 

constitutional review? It would seem to me that would be one of 

your responsibilities. It would seem to me you would want the 

President to only do those things that are legal and constitutional. 

And if you would not make these public, would you tell me why? 

Attorney General HOLDER. Well, first, let me say that with regard to the use of Executive authorities, what the President has 

talked about was a desire in the first instance to work with Congress to try to pass legislation, but in the absence of that to use 

the power that he has as President in the way that he described. 

And what he has described is consistent with what other Presidents have done over the years. 

I think if one looks at a various number of studies that I have 

seen, this President has used far fewer Executive orders than his 

predecessors. 

Senator GRASSLEY. But I am not questioning whether or not he 

can do it. I might have some question about the legality and constitutionality of it, and if he has got the constitutional authority, 

if he has got the legal authority, we cannot do it. We are just trying 

to determine whether or not he has exceeded that authority, and 

your people making that determination, is there anything wrong 

with the public saying what the basis of it is, you know? 

Attorney General HOLDER. Well, I mean, I think we can certainly 

look at the requests that are made. We will have to see exactly how 

the President proposes to use these Executive authorities. And to 

the extent that we can share the OLC determinations, or whoever 

in the Justice Department is looking at it and making these determinations, I would be inclined to try to share that with Congress 

in an appropriate way. 
13 

Senator GRASSLEY. Okay. Well, will you at least—if you cannot 

share it with me, will you tell me why you cannot share it with 

me? Because I just do not want a big black hole here. 

Attorney General HOLDER. Sure. I mean, the concern we generally have with regard to the dissemination of OLC opinions is 

that we want to have full conversations, fulsome discussions about 

these matters where OLC lawyers write both pros and cons about 

a particular issue that they are addressing. 

Senator GRASSLEY. We are probably only interested in the outcome, not the debate within you our agency, just what is the outcome. 

Attorney General HOLDER. Yes, well, the memos—but the memos 

will contain all of the arguments with a conclusory couple of pages, 

or whatever. We will try to find ways in which we can share this 

information with you so that you and other members and the 

American people feel that the President is acting in an appropriate 

way—to the extent that he makes use of this authority at all, because as I said, his primary inclination and desire is to work with 

Congress to pass necessary legislation that I think all the American people want to see happen. 

Senator GRASSLEY. I think the Chairman would give me a couple 

minutes because he took 21⁄2 minutes. 

Attorney General HOLDER. I am not sure about that. 

[Laughter.] 

Senator GRASSLEY. The last question or maybe half a question 

after this one would be this simple: This is a discussion I had with 

the Secretary of Health and Human Services in another Committee. They announced that it does not consider the Affordable 

Care Act plans to be ‘‘Federal health care programs.’’ That exempts 

them from the anti-kickback laws and undermines the clear intent 

of Congress in the health reform law to make kickbacks a violation 

of the False Claims Act. So you have got my interest in the False 

Claims Act as well. 

Secretary Sebelius said that she made this decision after consulting with your Department. I asked Secretary Sebelius why 

these plans are any different than Medicare Advantage. She 

claimed Advantage plans are different because payments are made 

directly from the Medicare trust fund. 

So I wrote to you about this last November. I would like to know 

when I might be able to expect a response but, more importantly, 

whether you agree with Secretary Sebelius that the Affordable 

Care Act plans should be exempt from the anti-kickback laws. It 

does not seem to me like you would want to exempt anything from 

anti-kickback laws. And was the Department’s advice to HHS documented in writing? And if it was, I would like to have a copy of 

it. 

Attorney General HOLDER. I do not want to sound like a broken 

record, but that is something I will have to examine and see—— 

Senator GRASSLEY. Okay. 

Attorney General HOLDER. What we have there. But I will say 

that we have been very aggressive in enforcing the anti-kickback 

laws and recovered, you know, record amounts of money over the 

last few years. And I would have to look at the particulars with regard to the Affordable Care Act and see—— 
14 

Senator GRASSLEY. Well, I can understand that. 

Attorney General HOLDER. The applicability of those provisions. 

Senator GRASSLEY. But presumably this is action, according to 

the Secretary, that your Department has already taken, so there 

ought to be some sheet of paper around there that you can give to 

us. 

The half a question I was going to ask, you have got 1 more day 

to decide whether or not the Boston bomber is going to be subject 

to the death penalty. What is your decision? 

Attorney General HOLDER. We will be announcing that by the 

deadline. 

Chairman LEAHY. Thank you. 

Incidentally, I would note on the amount of money the Department of Justice has collected in fines in anti-kickbacks, I believe 

you set an all-time record in the amount that you have, and I compliment you on that. 

Senator Durbin. 

Senator DURBIN. Thanks a lot, Mr. Chairman. I just want to say 

for the record it was the Grassley amendment that brought us into 

this world in terms of bringing Members of Congress and their 

staff into the Affordable Care Act, which we are now under; and 

if it was not complete when it came to anti-kickback and such, then 

we certainly want to make sure that it is. 

I would like to—— 

Senator GRASSLEY. My colleagues did not know that. Why did 

you have to tell them? 

[Laughter.] 

Chairman LEAHY. Well, I think every staff member in the Congress who are now paying considerably more for their health care 

know that it is the Grassley amendment that did it. 

Senator DURBIN. Mr. Chairman, if I could address two questions 

related to the wheels of justice. Each year when you appear, Mr. 

Attorney General, I ask you the same question and you give me the 

same answer about racial profiling guidelines, and you say, ‘‘Really 

soon we are going to work on this.’’ This year I would like to ask 

you: How quickly can we expect new racial profiling guidelines 

when it relates to the issues of religion, national origin, and whether it applies to national security and border security cases? 

Attorney General HOLDER. Well, I do not want to repeat the 

words ‘‘really soon’’ given what you said, so I will say that they are 

forthcoming and that—in the Holder lexicon, ‘‘forthcoming’’ is 

shorter than ‘‘really soon.’’ We are working with those—there has 

been a review that is underway. We are really—and I mean this 

very sincerely. We are truly in the final stages of this. The proposal 

is now just being circulated for comment within the Department, 

and my hope would be that it would be out of the Department very 

soon. Then obviously there will be some White House involvement 

because we are talking about a 2003 Executive order. But I would 

hope that we would have an ability to talk about the modifications 

that I think are appropriate in a forthcoming way. 

Senator DURBIN. Thank you. Wheels of Justice question number 

2: 155 detainees remain at Guantanamo. I want to say for the 

record this has been the subject of a lengthy debate here in Congress. The President made his intentions clear when elected to 
15 

close Guantanamo. And yet resistance in Congress has thwarted 

him from accomplishing that. 

For those who want an establishment of the record, over 500 people have been convicted of terrorism and terrorism-related crimes 

through our judicial process since 9/11 in Federal courts. In contrast, there have been six convictions and one plea agreement from 

Guantanamo’s military commissions; two of those convictions have 

been overturned. 

The most dangerous terrorists who have been convicted through 

our judicial system reside in our prison system and the worst of the 

worst in maximum security. We spend on average $78,000 a year 

in facilities like Florence, Colorado, maximum security, to hold the 

most dangerous criminals in America, including the most dangerous terrorists, and there has never, ever, ever been an escape 

or a question that they would escape. 

We are spending for the 155 detainees in Guantanamo on aver- age—not $78,000 a year—$2.7 million a year per detainee. It is an 

outrageous waste of taxpayers’ dollars. 

Now, we were going to start a process to start reviewing the 155 

detainees in the hopes that we could dispose of some, dismiss some, 

transfer some. It took a long time to get started. The wheels of justice unfortunately went very slowly. 

The President issued an Executive order in March 2011. The first 

Periodic Review Board hearing at Guantanamo took place in November of last year, and earlier this month the Board recommended the transfer of the first detainee in question. 

The second Periodic Review Board hearing occurred yesterday. I 

am glad to hear this progress has been made, but with 155 detainees, 71 of whom are eligible for evaluation, Mr. Attorney General, 

we cannot live long enough to go through this process. At $2.7 million per Guantanamo detainee, can we get this process moving in 

an orderly, faster way? 

Attorney General HOLDER. I think we can. The President has indicated from the day that he took office that he wanted to close the 

Guantanamo facility. He put me in charge of an initial review that 

was done within a year that categorized all of the people in Guantanamo, those who could be tried in military commissions or Article 

III courts, those who could be released, and those who had to be 

detained. 

We did that. We did that. And I will say with all due respect, 

congressional restrictions that were placed on us thwarted our attempts to close Guantanamo in a more timely fashion. 

You are right, we are now in the process of going through this 

Review Board process that is largely based on the work that we did 

in that earlier task force that I was the head of. We are trying to 

do all that we can to close Guantanamo, and I am actually grateful 

for the loosening of the restrictions in the latest Budget Act that 

makes it easier for us to effectuate that closure. 

But this is something that, for the fiscal reasons that you talk 

about but also for the national security reasons that the continued 

presence of Guantanamo poses, that facility simply has to be 

closed. 

Senator DURBIN. The sooner the better, from my point of view, 

and I wish more Members of Congress felt the same way. 
16 

You were in Chicago in November of last year at the installation 

of the U.S. Attorney for the Northern District, Zach Fardon, who 

was a unanimous choice of Senator Kirk, myself, and our bipartisan review panel, and you made some encouraging statements 

about commitments that were going to be made to Chicago to deal 

with the violent crime problem and murder issue. Giving credit 

where it is due, Mayor Emanuel and his Superintendent of Police 

Mr. McCarthy have made extraordinary progress in this regard, 

but we need this help. 

Can you be more specific in terms of the resources and personnel 

that you will make available to help us fight these problems with 

violent crime? 

Attorney General HOLDER. Well, we are looking to come up with 

ways in which we can increase the number of Federal agents who 

are in Chicago on either a temporary basis or a permanent basis, 

also looking for grants that we can make available to the city. I am 

going to be speaking to Mayor Emanuel tomorrow. The purpose of 

the conversation, at least one of the things we are going to be talking about are the specific needs that he can identify that we might 

be able to help with. I will also be talking to Zach Fardon, U.S. Attorney Fardon, to get his perspective on this as well. 

I think that we want to do as much as we can, but I do not think 

that that should obscure the fact that the city administration, 

working with the new U.S. Attorney, I think has made pretty significant progress and I do not think necessarily get all the credit 

that they deserve for a pretty dramatic decrease in crime in Chicago. But there is Federal assistance that we want to try to make 

available. 

Senator DURBIN. My time is up, but I hope with the new appropriation bill you will be able to also find some Assistant U.S. Attorneys to help Mr. Fardon in his effort in the Northern District. 

Thank you, Mr. Chairman. 

Chairman LEAHY. Thank you very much. 

Senator Hatch. 

Senator HATCH. Thank you, Mr. Chairman. 

Welcome, Mr. Attorney General. I appreciate your service. I am 

going to try and ask a series of questions that I have tried to couch 

them so you can answer yes or no so I can get through a lot of 

stuff. To the extent that you can, I would appreciate it. 

But before asking some questions about the NSA surveillance 

matter, I would like to express my concern about the Department’s 

refusal to fully enforce the Controlled Substances Act. Marijuana 

is now widely available across the Utah border in Colorado. Federal, State, and local law enforcement have finally seen success in 

going after marijuana growers on public lands in Utah. There is a 

direct link between the U.S. marijuana trade and large-scale drugtrafficking organizations that threaten the safety and well-being of 

our country. 

Now, legalization in Colorado threatens the success that we have 

been seeing in tackling the problem. Controls on legal marijuana 

are unlikely to deter drug cartels from ramping up their operations 

on public lands in Utah and elsewhere, especially since demand in 

Colorado is wildly exceeding supply. I really think this policy shift 
17 

sends a mixed and dangerous message to both the law enforcement 

community and fellow citizens. 

Now, do you share my concern that legalization in one State can 

encourage more illegal marijuana production on public lands by 

drug cartels and others in bordering States? 

Attorney General HOLDER. Well, I will do it very quick if I cannot 

give you a yes or no. 

Senator HATCH. Sure. 

Attorney General HOLDER. I share those concerns, and those concerns are expressed in the eight priorities that we set out, let me 

just—three of them: preventing the diversion of marijuana from 

States where it is legal under State law in some form to another 

State, preventing the growing of marijuana on public lands, and 

preventing marijuana possession or use on Federal property. These 

are three of the eight things that would precipitate Federal Government action and enforcement of the CSA. 

Senator HATCH. Okay. Now, General Holder, the debate about 

NSA surveillance is in full swing. The illegal and selective leaks 

last summer were hardly the best way to start this debate, and I 

think they undermine rather than enhance it, but here we are. 

A lot of attention is being focused on the NSA’s collection and 

analysis of so-called telephone metadata, as you mentioned. It is 

worth reminding ourselves what that information is and what it is 

not. It includes the telephone number calling, the number being 

called, and the date, time, and length of the call. Is that correct? 

Attorney General HOLDER. That is correct. 

Senator HATCH. Okay. It does not include any information about 

the identity of the caller or the content of the call. Is that correct? 

Attorney General HOLDER. That is correct. 

Senator HATCH. Okay. The Privacy and Civil Liberties Oversight 

Board issued its report last week concluding that the PATRIOT Act 

does not provide legal authority for the NSA’s metadata program. 

In an interview last week, you noted that at least 15 judges on dozens of occasions have said that the program itself is legal. That is 

correct? 

Attorney General HOLDER. That is correct. 

Senator HATCH. Okay. To be clear, is it your position that the 

collection of metadata under Section 215 of the PATRIOT Act is 

legal and that the Oversight Board’s conclusion on this point is 

wrong? 

Attorney General HOLDER. That is my view. 

Senator HATCH. That is mine, too, as someone who was on the 

Intelligence Committee and who helped put this through. 

In your judgment, has the NSA abused or misused its capability 

to collect and analyze telephone metadata? 

Attorney General HOLDER. I think the NSA has acted in a way 

that is consistent with the law, but as I indicated, I think that is 

the part—that is part one of the analysis. Part two is whether or 

not we are getting from the acquisition and retention of that data 

material that is sufficient to deal with the civil liberties, privacy 

concerns that others have expressed. 

Senator HATCH. But they have not misused or abused that. 

Attorney General HOLDER. Yes, and that is what the President 

has asked us to look at. 
18 

Senator HATCH. Okay. One more question about the Oversight 

Board’s conclusion on the legality of the metadata program. In creating the Board, Congress authorized it to do two things: first, to 

ensure that the need for executive branch actions in protecting us 

from terrorism is balanced with the need to protect privacy. That 

is true? 

Attorney General HOLDER. Yes. 

Senator HATCH. Second, to ensure that liberty concerns are considered in the development of laws and policies in this area. That 

is true? 

Attorney General HOLDER. I believe that is true, also, yes. 

Senator HATCH. Now, these responsibilities certainly call for recommendations on conclusions about policy, but I do not see how 

they include opining on legal issues such as the legality of the 

metadata program. Did the Oversight Board exceed its statutory 

mission in addressing this issue? 

Attorney General HOLDER. I will be honest with you. I am not 

as familiar as perhaps you are as to what their statutory mission 

is. I will accept as legitimate the concerns that they expressed, 

though I do not agree with their legal determinations, their legal 

analysis. 

Senator HATCH. Well, I think they exceeded its statutory mission. So be it. 

So we are clear, in my opinion, on the very limited information 

that the NSA collects and analyzes. And we are clear that the 

metadata program is legal and that the NSA has not abused or 

misused its authority to collect and analyze this information, as far 

as you know. 

Attorney General HOLDER. That is correct. I mean, there have 

been some compliance issues that have been identified by the 

courts or by the Justice Department, sometimes by the NSA, but 

those have all been corrected once brought to the attention of the 

NSA. 

Senator HATCH. Okay. So my next question is how to know 

whether the program is valuable. The President’s Review Group 

said in its report that the metadata program was not itself essential to preventing a specific terrorist attack. Now, is that the right 

standard? Must there be proof that this program alone prevented 

an actual attack in order to for it to be valuable for national security and for it to continue? 

Attorney General HOLDER. See, I am not sure that—I think we 

have fallen into a false analysis there. I am not sure that is the 

only way by which you can judge the validity or the value of the 

program. There is a mosaic of things that we take into consideration in determining what—if we are acting in an optimal way. 

There are questions, I think, that can legitimately be brought 

and that we are going to consider about the continued need for Section 215, but I do not think that the only way you can test the validity or the need for 215 is whether or not it has prevented X number of attacks. 

Senator HATCH. On March 5, 2012, in a speech—the distinguished Chairman is granting me a little more time here so I can 

finish this line of questioning. 
19 

Senator SCHUMER [presiding]. Without objection, Senator Hatch 

will be given 2 more minutes. 

Senator HATCH. I am very grateful to him. 

In a speech at Northwestern University School of Law, you discussed oversight of surveillance programs under Section 702 of the 

Foreign Intelligence Surveillance Act. The Justice Department and 

Director of National Intelligence conduct oversight reviews at least 

once every 60 days and report to Congress at least twice a year. 

Now, I understand that surveillance programs under Section 215 

of the PATRIOT Act and Section 702 of FISA are different, but 

would you say that the metadata program authorized under Section 215 enjoys similarly rigorous oversight to that which you described for collection under Section 702? 

Attorney General HOLDER. I think there is sufficient oversight of 

Section 215 between what the Justice Department lawyers are 

looking at, as we are looking at materials that are presented to us 

by the FISA Court, and then with what NSA is doing internally. 

I think that there is a great deal of oversight, and that oversight 

has yielded issues that have been identified as problematic—— 

Senator HATCH. And then resolved. 

Attorney General HOLDER. And then resolved. 

Senator HATCH. That is right. One of the President’s proposals 

is for telephone companies rather than the NSA to store the 

metadata. It has been represented that telephone companies do not 

support this idea, but supposed they do. Today only 22 individuals 

at the NSA have access to this metadata—22 people—but there are 

dozens of phone companies, each of which would have to maintain 

these records. Thus, you have some number of employees at each 

telephone company with some kind of access to these data bases in 

addition to the 22 analysts at NSA who have still have access to 

query these data bases. How can you possibly provide a comparable 

level of supervision and accountability when this data is stored in 

numerous different locations and is accessible by far more individuals than it is today? 

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

the President has asked Director Clapper and I to do is to come 

up with an alternative way in which this information can be stored, 

and the issue that you have raised is one that has to be resolved. 

I think that the NSA has done a good job in the way in which it 

has stored this information. If we are to move to a different 

scheme, I think we have to answer the question of how can we put 

it in a different place and maintain the integrity of the process that 

I think the NSA has done a pretty good job at. 

Senator HATCH. I agree with that, and I have additional concerns 

about the security of that metadata at the phone companies. 

Verizon’s own data breach investigation report found that privileged misuse and abuse by insiders played a role in 13 percent of 

data breaches over the past year. A company can only do so much 

to protect against outside threats to its networks. Just look at Target and Neiman Marcus. 

Do you believe that the metadata would be more secure in the 

hands of the private sector than the NSA? 

Attorney General HOLDER. I think that we have to try to find out 

if we can do that, if we can maintain that whole question of main-
20 

tenance of security, if we can do it in a different setting than we 

presently do at the NSA, and that is one of the tasks the President 

has given to me and to Director Clapper. 

Senator HATCH. But they are doing the job at NSA. 

Attorney General HOLDER. I think they have done a good job. 

Senator HATCH. Thank you, Mr. Chairman. I appreciate the 

extra time. 

Senator SCHUMER. Thank you, Senator Hatch. 

And now I yield myself 7 minutes, plus whatever else I might 

need. 

It is very good to be here. I want to thank—— 

Senator SESSIONS. No objection. 

[Laughter.] 

Senator SCHUMER. I want to thank the Attorney General for the 

good work he does. I know he is aided with great, great skill by 

two former Schumer employees who work for you: Elliot Williams, 

who has been gone for a while, and Brian Fallon, who we miss very 

much and is doing a good job for you. That is our—— 

Attorney General HOLDER. Thank you, Senator Schumer. 

Senator SCHUMER. Okay. First, on autism spectrum disorders, I 

know you are familiar with the case of Avonte Oquendo. He is a 

child with autism spectrum disorder, ASD. He wandered away 

from his school this fall—about 50 percent of all children with ASD 

wander, causing great hardship to their parents—and his remains 

were found 3 months later about 11 miles from the school where 

he originally vanished. The heart of New York went out to Avonte 

and his mother, Vanessa Fontaine, and his grandmother, Doris 

McCoy. I have met with them, and I know their grief and heartache, shared by many parents with autism. You can imagine when 

a child wanders away, and many of them are non-verbal, very, very 

heart-wrenching situation and a dangerous situation, as, unfortunately, Avonte’s death showed. 

So right after Avonte went missing, as you know, Mr. Attorney 

General, I called on the Department of Justice to expand a current 

grant program that you have in place which has provided support 

for the use of tracking devices to agencies who work with patients 

diagnosed with Alzheimer’s and families of those patients. The program is administered by the Bureau of Justice Assistance. 

Now, we have been doing this for Alzheimer’s patients. The Justice Department funds a program. So it seems almost obvious. You 

know, it is like a hand fits into a glove that we could do this, and 

people with Alzheimer’s, as you know, wander as well. It seems 

like just a perfect fit to do the same thing for children with autism 

who tend to wander. 

Now, I understand that the program that is used for Alzheimer’s 

is not available for families of children with autism. So have you 

been able to identify any other streams of assistance pursuant to 

my request? 

Attorney General HOLDER. Well, I think the concern that you 

have is a very good one, a legitimate one, and the fact that you 

brought it to our attention I think is something that is going to 

help a lot of kids who deal with this issue. And we have made the 

determination that the Byrne grant program can be used for the 
21 

purchase of these devices, these ‘‘transmitted bracelets,’’ I think 

they are called. 

Senator SCHUMER. Sometimes they are bracelets, sometimes on 

the ankle. You can even sew them into the clothes, because occasionally the kids with autism want to take off the bracelets or the 

things on—— 

Attorney General HOLDER. Right, but Byrne grant money can be 

made and will be made available for the purchase of these devices. 

Senator SCHUMER. Right, so localities’ police departments can 

start applying. 

Attorney General HOLDER. Yes. 

Senator SCHUMER. Immediately? 

Attorney General HOLDER. Yes. 

Senator SCHUMER. That is great news, and that will really help 

in a lot of situations, so I really appreciate that. It is a big, huge 

step forward. 

Now, one other question on this. In order to ensure a permanent 

adequate stream of money for this, I have introduced legislation, 

we call it in New York ‘‘Avonte’s Law,’’ named after this lovely boy. 

It will create a new specific DOJ grant that will be available to 

local law enforcement, schools, and nonprofits that aim to assist 

children with autism spectrum disorder. It will authorize $10 million—that is, I think, how much we spend on the Alzheimer’s—in 

order to help fund the purchase of voluntary tracking devices for 

children with ASD, training for parents, schools, and local law enforcement, as well as other innovative methods for families who 

wander. 

What you are doing is great and will solve the problem immediately, but to ensure its permanence—we all know there will be 

at some point a different Attorney General, many years away, and 

so legislation would ensure this. 

Now, I know the way it all works. You cannot commit to specific 

legislation until you see the details, but do you agree with the general principle of trying to enact this in statute and assure the revenue stream for many years to come? 

Attorney General HOLDER. Yes. I think that given the nature of 

the unique issues that kids with autism issues face and given the 

way in which our Nation has responded to adults with Alzheimer’s 

issues, they ought to be treated in much the same way. And so I 

cannot commit, but I can say that personally I think that a dedicated funding stream makes a great deal of sense. 

Senator SCHUMER. All right. Thanks. We will get you the legislation, and you can put it through the long, laborious executive 

branch traps. It probably has to go through 47 different agencies, 

but get their support for this legislation, which we hope will be 

forthcoming. 

Okay. Now I would like to turn to media shield. I appreciate the 

administration’s support for the Free Flow of Information Act, 

which would protect confidential sources by providing clear and 

reasonable standards. Additionally, the Department’s revised 

guidelines governing the obtaining of evidence from members of the 

news media are a step in the right direction. 

However, they have not been finalized, and it is more than 6 

months after the Department sent its report to the President. 
22 

When will the revised guidelines be finalized in the Code of Federal 

Regulations? When will they go into effect? 

Attorney General HOLDER. I would expect that we would have 

them available for comment within the next couple of weeks. I had 

actually hoped that we would have them done by this hearing. 

There was a little glitch toward the end, but I think we will get 

through that, and we will have them available for public review 

and comment within weeks. 

I will say that in spite of the fact that they are not yet issued, 

we are working under them as if they were in place, and we are 

also looking to people the board that we are putting together as 

part of the review process. Mr. Fallon has been working on that. 

Senator SCHUMER. All right. Well, then it is in good hands. 

Attorney General HOLDER. Right. 

Senator SCHUMER. Does that include—you know, you mentioned 

this media review committee. Has that been established? Has it 

been convened? Is it officially working? Unofficially working? Give 

us the status of the review committee and the media—the News 

Media Dialogue Group I think is what you called it, to ‘‘assess the 

impact of the Department’s revised new media policies.’’ Has that 

been established? 

Attorney General HOLDER. There will be two bodies: one within 

the Department to assist the Attorney General in making determinations about requests to access information connected to the 

news media, and another one that would involve outsiders who will 

assist us on a periodic basis just to kind of give us an update on 

how are we doing with regard to the reforms that we have put in 

place and to consider other ones. 

Brian, Mr. Fallon, has been working to come up with the appropriate people for that outside board, and I think we have made a 

lot of progress. I think we are on the verge of making an announcement there. 

Senator SCHUMER. How soon do you think? I do not want to steal 

Mr. Fallon’s news thunder here. 

Attorney General HOLDER. We expect that the first meeting will 

be in February. 

Senator SCHUMER. Thank you. 

Attorney General HOLDER. Thank you, Brian. 

Senator SCHUMER. Thank you very much, Mr. General. 

And I will do two things now: Call on Senator Sessions and turn 

over the august process—engage in the august process of turning 

over the Chair gavel to the wonderful senior Senator from Minnesota, Senator Klobuchar. 

Senator SESSIONS. And you finished with your time. Very well. 

Attorney General Holder, you mentioned gun violence and crime. 

I would just note, as I watch your statistics, that your prosecutions, 

total prosecutions of gun crimes declined 5.2 percent this year from 

last year. And I think prosecutions, vigorous prosecutions, do make 

a difference, and I would encourage you to keep those numbers up 

as you go forward. 

A lot of our members are discussing how to deal with the mandatory sentences. I would just say I was there when we had the revolving doors in the 1960s and 1970s, and we as a Nation turned 

against that. We have created a system that requires certainty in 
23 

punishment, swifter trials, and the result is a very great drop in 

the crime rate. 

So to my colleagues, we just have to be careful as we go forward. 

I know you have been a United States Attorney, Attorney General 

Holder, and you have seen it as a judge and U.S. Attorney, and I 

think we just have to be careful. We need to have good data as we 

go forward to analyze how we can find some areas where crime 

punishments could be reduced. And I do agree with you about the 

NSA and the metadata question. I think you have thought this 

through. I believe your position is sound. 

Attorney General Holder, when I became United States Attorney 

in 1981, the percentage of young people in high school, high school 

seniors, according to the University of Michigan authoritative national survey, 50 percent plus had admitted using an illegal drug 

previously, in the previous year. That was a dramatic thing. And 

the Nation energized itself. Nancy Reagan has the ‘‘Just Say No’’ 

program. In my district—and this was done all over America— 

groups formed: the Partnership for Youth, the Coalition for a DrugFree Mobile. We met—I was involved with it, and we created and 

worked to create in the country hostility to drug use, to create an 

impression that it is not socially acceptable and children should not 

be using it and it is wrong. And the trend started the other way. 

Within 10 years, less than 25 percent of the high school seniors 

under that study admitted using illegal drugs. 

I invested a tremendous amount of my time, citizens all over 

America invested huge amounts of their time, volunteer efforts, financial contributions, to break the cycle of drug use among young 

people that were threatening the very viability of our education 

system and the future of so many. It was just a very serious thing. 

So I have to tell you, I am heartbroken to see what the President 

said just a few days ago. It is just stunning to me. I find it beyond 

comprehension. 

This is the Atlantic article surveying what the New Yorker—the 

President’s interview with the New Yorker said. The headline is: 

‘‘Obama on pot legalization: It is important for it to go forward.’’ 

That is the President’s quote. 

He goes on to quote from that interview. He said, the following 

things about smuggling marijuana: 

‘‘I view it as a bad habit and vice, not very different from the 

cigarettes I smoked as a young person.’’ 

‘‘I do not think it is more dangerous than alcohol,’’ he said. In 

fact, it is less dangerous than alcohol ‘‘in terms of its impact on the 

individual consumer.’’ 

And then he goes on to say: ‘‘Well, those who argue for legalizing 

marijuana as a panacea and it solves all these social problems I 

think are probably overstating the case.’’ 

This is just difficult to me to conceive how the President of the 

United States could make such a statement as that. 

So, first, do you support the President’s view in that regard as 

the chief law enforcement officer in America? 

Attorney General HOLDER. Well, let me say there are a couple 

misimpressions there with regard to guns. We are prosecuting the 

same number of people that we did from 2007 to 2013. There may 

be fewer numbers of cases, but that means, I think, that the cases 
24 

we are bringing are more significant. One-seventh of all the cases 

that we bring involve guns. 

Senator SESSIONS. All right. I have the data on that. I will submit it for the record, and people can decide. The number of gun 

cases are down, according to the data from the Department of Justice. 

[The information referred to appears as a submission for the 

record.] 

Senator SESSIONS. But what about the President’s view on this 

important subject? Do you agree with it? 

Attorney General HOLDER. Well, I think that, as I—I have not 

read the article, but as I have understood what the President said 

in his totality, it was that he thought that the use of marijuana by 

young people was not a good thing. One of our eight priorities is 

the prevention of distribution of marijuana to minors. If there is an 

indication that marijuana is being distributed to minors, that 

would involve—that would require Federal involvement. That is 

what the Deputy Attorney General said in his August 29, 2013, 

memo to the field. 

Senator SESSIONS. You think it is a bad habit but not much 

worse than smoking? 

Attorney General HOLDER. Well, I mean, you know—— 

Senator SESSIONS. Your opinion. Give us your opinion. 

Attorney General HOLDER. Well, I think that the use of any drug 

is potentially harmful, and included in that would be alcohol. 

Young people—— 

Senator SESSIONS. But the President said, ‘‘I do not think it is 

more dangerous than alcohol.’’ Do you agree with that? 

Attorney General HOLDER. Well, as I said, I think that any drug 

used in an inappropriate way can be harmful, and alcohol is among 

those drugs. 

Senator SESSIONS. Using marijuana against the law, is that appropriate use? 

Attorney General HOLDER. Well, I mean, as I said, for young people to do that, that is something that violates the Federal law and 

something that we said would be something that we would continue to use our Federal law enforcement resources. 

Senator SESSIONS. Are you aware that Gil Kerlikowske, the drug 

Czar the President has appointed, said this in December: ‘‘Young 

people are getting the wrong message from the medical marijuana 

legalization campaigns. If it is continued to be talked about as a 

benign substance that has no ill effects, we are doing a great disservice to young people by giving them that message.’’ 

Do you agree with that? 

Attorney General HOLDER. Well, I think that is right, and that 

is why we have said that the distribution of marijuana to minors 

will involve—will entail a very vigorous Federal response. 

Senator SESSIONS. Are you aware—isn’t it a fact that if the laws 

are relaxed with regard to adults, it makes this drug even more 

available to minors? 

Attorney General HOLDER. Well, I am not sure that that is necessarily true. 
25 

Senator SESSIONS. Attorney General Holder, isn’t it true that if 

marijuana is legalized for adults, it makes it more available for 

young people? 

Attorney General HOLDER. Well, I am not sure that that is true, 

and I say that only because, you know, the alcohol—people cannot 

buy alcohol I guess now until you are age 18—or age 21, but young 

people find ways to get alcohol because adults can have access to 

it. I am not sure that we will see the same thing here given what 

we have said with regard to law enforcement priorities. 

Senator SESSIONS. Did the President make—conduct any medical 

or scientific survey before he waltzed into the New Yorker and 

opined, contrary to the position of Attorney Generals and Presidents universally prior to that, that marijuana is not—as I have 

quoted him? Did he study any of this data before he made that 

statement? 

Attorney General HOLDER. I do not know, but I think, as I 

said—— 

Senator SESSIONS. Did he consult with you before he made that 

statement? 

Attorney General HOLDER. No, we did not talk about that. 

Senator SESSIONS. Well, what about this study from the American Medical Association, October 2013, ‘‘Heavy cannabis use in 

adolescents causes persistent impairments in neuro-cognitive performance and IQ, and use is associated with increased rates of anxiety, mood, and psychotic thought disorders’’? Or this report from 

Northwestern University, in December, last December, the study 

found that marijuana users have abnormal brain structure and 

poor memory and that chronic marijuana use may lead to brain 

changes resembling schizophrenia. The study also reported that the 

younger the person starts using marijuana, the worse the effects 

upon him. Would you dispute those reports? 

Attorney General HOLDER. I have not read the reports, but I do 

not—if they are, in fact, from the AMA, I am sure they are good 

reports. But that is exactly why one of our eight enforcement priorities is the prevention of marijuana to minors. 

Senator SESSIONS. Well, Lady Gaga said she is addicted to it and 

it is not harmless. She has been addicted to it. Patrick Kennedy, 

former Congressman Kennedy, said the President is wrong on this 

subject. 

I just think it is a huge issue. I hope that you will talk with the 

President—you are close to him—and begin to push back or pull 

back from this position that I think is going to be adverse to the 

health of America. 

Thank you, Madam Chair. 

Senator KLOBUCHAR [presiding]. Thank you, Senator. 

Senator Whitehouse. 

Senator WHITEHOUSE. Thank you. 

Welcome back to Congress, Attorney General, and thank you for 

the terrific work that you are doing as our Attorney General. As 

a former U.S. Attorney and as a friend of the Department, I not 

only have my own opinion, but I have other folks who are observers 

of the Department, and I think we are very appreciative of the fine 

leadership you are providing the Department of Justice. 

Attorney General HOLDER. Thank you. 
26 

Senator WHITEHOUSE. Let me talk with you for a moment about 

cyber. Our efforts to address the cyber threat on the military side 

have been quite distinct and have led to the establishment of a 

cyber command with two four-star generals in charge, one doublehatted to lead NSA. On the law enforcement side, our administrative advancement to meet this threat has been, to put it mildly, incremental. And, for instance, responsibility for cyber threats within 

the Department of Justice itself is divided between the Criminal 

Division and the National Security Division. And the enforcement 

responsibility is divided between the FBI and the Secret Service, 

although the FBI has a very dominant role—and, by the way, does 

a terrific job. 

In the spending bill that was just passed, thanks to Chairman 

Mikulski’s exemplary legislative talents, there is a provision that 

requires the Department of Justice within 120 days to put forward 

a multi-year strategic plan for this. As you know, I have had this 

discussion with the Department of Justice, and the Department of 

Justice has said we cannot talk about this because OMB is not in 

the room and they will whip us unmercifully if we talk about budget stuff without their presence, because it will look like we are 

submarining the prerogatives of the White House over budget 

issues. So we brought OMB in, and those discussions have gone 

forward at a moderate pace. 

I just wanted to flag for you this legal requirement that it be 

done within 120 days because I am really expecting that there will 

actually be a report within 120 days, and I am hoping that you and 

OMB will both put considerable effort into it, because if you look 

out 4 or 5 years at the rapid rate in which the cyber threat is growing, in which it is morphing into more complex and varied threats, 

and at all the ways in which it can affect the lives of ordinary 

Americans, I think that we are both underresourced and inadequately structured to deal with that problem in the long haul. 

So what assurances can you give me about how you guys are 

going to handle this responsibility for a multi-year strategic plan 

on cyber within 120 days? 

Attorney General HOLDER. Well, I do not want to be alarmist, 

but I think the concern you have expressed over the years is well 

founded. This Nation needs to be afraid of where we could be after 

a cyber attack. When you see the proliferation of these cyber capabilities to criminal organizations, to nation states, our Nation is at 

risk. Our infrastructure is at risk. And we as a Nation have not, 

I think, adequately responded to it. 

I think the 120-day examination that we have to do to come up 

with this multi-year plan is indeed a good thing, and we will take 

it very seriously and respond within that timeframe, bringing into 

it OMB and, I think, bringing Members of Congress who have expressed an interest—you, for instance—into this process as well, at 

least to be a part so that we have your views in formulating what 

this plan is like. 

But we as a Nation have not dedicated the attention, the resources to a problem that is 21st century in its inception and will 

be with us for, I suspect, throughout the duration of the century. 

And it is only going to get worse. The danger to us is only going 

to be heightened. 
27 

Senator WHITEHOUSE. I spoke to the FBI Cyber Division, I guess 

yesterday morning, and used the example of the United States Air 

Force, which, before the opportunity and threat of air warfare was 

fully appreciated, began as a subcomponent of the Army Signal 

Corps. And then, obviously, it had to grow, and then it became the 

Army Air Corps, and finally we got a U.S. Air Force. And I think 

a similar process needs to be planned for on this. 

The other issue I wanted to raise with you is that many of us 

have been shocked by the discrepancy between the filings that political organizations have made at the Internal Revenue Service, 

promising under oath that they were not going to spend any money 

on political activities, and at the same time filing declarations 

under oath at the Federal Election Commission that they had 

spent tens of millions of dollars in political activities. 

I suspect that those discrepancies reflect false statements that 

could be prosecuted under 18 U.S.C. Section 1001. There have been 

no cases from the Department in that respect because the IRS has 

not referred anything. I think the IRS has been frightened of the 

power behind these big political machines, so they have basically 

chickened out and pitched it in. But now they have decided to take 

a look at those rules, and I would ask you to assign somebody on 

your staff to track the IRS process, make sure that you are comfortable with where those rules are coming out, and make sure that 

if there are open and notorious conflicts between sworn statements 

by these organizations, it leaves room for the Department of Justice to step in and get in front of a grand jury and bring in some 

evidence and find out if they are, in fact, the prosecutable false 

statements that they appear to be on their face. 

Attorney General HOLDER. I think that is something that is worthy of examination. I think the problem exists in that under the 

Tax Reform Act, this is information that is called ‘‘tax return information’’ that is always guarded very zealously. There is a Memorandum of Understanding that exists between the Department 

and—— 

Senator WHITEHOUSE. You do not get to look at it unless they 

have referred to you. 

Attorney General HOLDER. Right. 

Senator WHITEHOUSE. But when an open and notorious violation 

appears to be happening in place, I do not think there is anything 

in that law that prevents the Department of Justice from saying 

to the IRS, ‘‘Excuse me, why are you not referring this to me? I 

can see what is happening right here in the plain light of day. They 

said zero dollars in this filing under oath and $20 million in this 

filing under oath. They cannot both be true. Somebody is lying 

somewhere. We would like to look into it.’’ 

Attorney General HOLDER. Yes, I think those referrals only occur 

in what I think are termed ‘‘extraordinary circumstances,’’ and I 

think that is just a question of defining what ‘‘extraordinary’’ 

means. And I think that an examination of this issue makes a 

great deal of sense, and this is not an ideological issue. This is one 

that, you know, groups on the left and on the right I think should 

be held to the full letter of the law. 

Senator WHITEHOUSE. The crime of lying to a Federal official has 

no partisan component to it, and I appreciate that you will take a 
28 

look at it with that in mind. And I have gone a bit over my time, 

so I thank my colleagues, and I yield my time. 

Senator KLOBUCHAR. Very good. Senator Cornyn. 

Senator CORNYN. Thank you, Madam Chairman. Good morning, 

Attorney General Holder. 

Attorney General HOLDER. Good morning. 

Senator CORNYN. I want to introduce you to a constituent of 

mine and Senator Cruz, Catherine Engelbrecht of Houston, Texas. 

She founded two organizations known as True the Vote and King 

Street Patriots dedicated to improving elections and furthering the 

ideals of our Founding Fathers. She leads a coalition of citizen volunteers who work as election monitors, who provide resources for 

voter registration drives, and are dedicated to rooting out election 

fraud. Yet the Federal Government has targeted Catherine 

Engelbrecht and her organizations with harassment and discrimination. 

In the spring of 2010, True the Vote and King Street Patriots 

both filed for nonprofit status. Like so many organizations, they 

just wanted to participate in the political process. When the IRS 

failed to respond, in January 2011 I wrote a letter inquiring about 

the status of True the Vote’s application. A few weeks later, the 

now notorious Cincinnati office of the IRS began a series of gratuitous and invasive inquiries into Ms. Engelbrecht’s organizations. 

This investigation was so over the top that the Federal Government demanded, among other things, every Facebook post and 

every Tweet that Ms. Engelbrecht had ever posted. 

For more than 3 years, the IRS denied True the Vote and King 

Street Patriots the nonprofit status they requested and subjected 

both Ms. Engelbrecht and her family and her business to this kind 

of harassment. 

This kind of abuse of power was not limited to the IRS, however. 

According to CBS News, within 2 months—or within months of 

True the Vote’s filing, two arms of the Justice Department targeted 

Ms. Engelbrecht. The FBI made calls to King Street Patriots and 

attended some of its meetings. And the ATF has twice audited Ms. 

Engelbrecht’s business. 

Coincidence? Maybe. But where there is smoke, there is fire. The 

IRS finally, 3 years after they applied, granted True the Vote’s taxexempt status that it requested. 

But we now know that True the Vote was just one of the conservative organizations that was targeted for discrimination, harassment, and intimidation by the Federal Government, the IRS in particular. IRS officials at the highest levels targeted the leaders of 

conservative organizations based solely on their political beliefs. In 

Ms. Engelbrecht’s case, the intimidation tactics were shocking: 

threatening to bankrupt an American family and the business they 

built simply because they dared criticize the Federal Government. 

This is chilling, and it should be unacceptable in the United States 

of America. 

The President, to his credit, agrees that this is a terrible abuse. 

He called the IRS scandal ‘‘intolerable’’ and ‘‘inexcusable,’’ and he 

called for those guilty of this misconduct to be held accountable. 

But when your Department was asked to step in and investigate, 

no one has been held accountable for this abuse. In fact, your De-
29 

partment installed a political donor of the President’s to lead the 

investigation. Appointing a political donor to investigate a political 

activity I think calls the entire investigation into question, and I 

cannot imagine how this would be designed to instill public confidence in the investigation. 

Now, FBI Director Comey, to his credit, said this investigation 

was an important one for his agency. Now, though, it has been 

publicly reported that the Department will not pursue criminal 

charges against any IRS official, even though the FBI’s investigation has not yet been concluded. And, shockingly, the Department 

made this decision, if it is true—and you can certainly confirm it 

or refute it if it is not. They made this decision without even talking to Catherine Engelbrecht. I talked to her yesterday. She 

verified she has not heard a word from the Department of Justice 

or the FBI. 

So I would like to know, General Holder, what you have to say 

to Ms. Engelbrecht and other Americans who spent thousands of 

dollars defending themselves against harassment by the Internal 

Revenue Service for daring to exercise their constitutional right to 

participate in the political process. And I would like to ask you 

whether you will agree to make sure that your Department 

consults personally with every victim of this type of intimidation by 

the Federal Government. And if you can tell us, what kind of accountability can the American people expect from this abuse of 

power? 

Attorney General HOLDER. Well, what I would say is, first off, 

that I do not remember the exact words that I used, but I think 

shortly after the President made the statements that you made, I 

expressed similar concerns, and I was the one who actually ordered 

the investigation into these matters. They are being handled by the 

Criminal Division in the Justice Department, the Civil Rights Division in the Justice Department, the Treasury Inspector General, 

and the FBI, as you indicated. This is a matter that is an open inquiry. The matter is still going on. 

Press reports that I think you were referring to with regard to 

how the case is ultimately going to be decided is a press report. I 

can tell you that the reporters who have made those assertions are 

not people privy to what is actually going on in the investigation. 

It is something, as I said, that is open. The investigation is proceeding. 

Senator CORNYN. So is there still a potential for criminal charges 

to be brought in connection with the investigation since it has not 

been concluded? 

Attorney General HOLDER. Well, I would—I mean, obviously all 

the options that we have are on the table, given the fact that there 

has not been a determination either to bring charges or to decline 

the case. 

Senator CORNYN. Well, don’t you think it is the responsibility of 

the Department to actually contact the people with the most information about what exactly happened, like this victim of this abuse 

of power, like Catherine Engelbrecht? 

Attorney General HOLDER. I am not familiar with the woman 

who you refer to, but I have confidence in the career people at the 

FBI and the other investigative agencies to conduct a thorough, 
30 

comprehensive investigation, and that is what I would expect of 

them, and that is why matters like this take as long as they do. 

Senator CORNYN. Well, would you please, in conclusion—I know 

my time is up. Would you please commit here to me and publicly 

to contact Catherine Engelbrecht and to get her side of the story 

or have somebody on your staff do so? 

Attorney General HOLDER. The determinations as to who gets 

interviewed will be made by the career people who are conducting 

the investigation. As you have said—and I do not want to cast any 

doubt on what you have said—she seems like a logical person to 

talk to on the basis of what you have said. I do not have any independent knowledge of what her involvement is or what her organization is about. But that is something that I would leave to the 

people who are, as I said, career professionals to make determinations as to who needs to be interviewed. 

Senator CORNYN. Well, I hope the Department would talk to the 

victim. 

Chairman LEAHY [presiding]. Okay. Thank you, Senator Cornyn. 

Senator Klobuchar will be recognized, and I am also turning the 

gavel over to her following another matter. But I also want to express again to the Attorney General my appreciation not only for 

being here, but being available to so many of us on this Committee 

on both sides of the aisle whenever we have called you. I appreciate 

that. That has not always been the precedent in the Department, 

so I appreciate the fact you have always been available. 

Senator KLOBUCHAR [presiding]. Thank you very much, Mr. 

Chairman. 

Welcome, Attorney General Holder. Thank you for being here. 

You and I have talked about this many times, but I want to make 

sure my Republican colleagues are aware of the fact that the State 

of Minnesota has not had a full-time U.S. Attorney for 882 days. 

This came about because our U.S. Attorney was appointed to head 

up the ATF after the mess with Fast and Furious. He did an able 

job. He is now, through the vote of this Senate, the Director of the 

ATF. But during that time, for 2 years he was a part-time U.S. Attorney and, in fact, he was at the ATF much more than he was the 

U.S. Attorney. 

During that time our drug prosecutions have gone down remarkably. I have had Federal judges call me repeatedly. I have had the 

FBI Director call me in Minnesota repeatedly. And we now have 

a very good candidate who is supported by law enforcement, who 

is supported by our Republican Congressman, who made it through 

this Committee with no objections, but he is now on hold because 

right now this Senate has decided not to take up unanimous nominees, and it is being blocked. 

We have a situation where over 100 people are working now for 

882 days without a full-time boss, and I just think it is absolutely 

outrageous. When Minnesota became a State, we got our U.S. Attorney through President Zachary Taylor in 2 days, and we have 

not had a full-time boss for 882 days. This is the office that prosecuted the second biggest white-collar case next to Madoff in the 

last few years. This is the office that dealt with what would have 

been the additional terrorist for 9/11, Moussaoui. This is the office 

that has handled numerous complex cases and has been one of the 
31 

best U.S. Attorney’s Offices. And I fear, knowing half the people 

that work there that used to work for me when I was a prosecutor, 

there is a decline in morale. They need a boss. And I am angry at 

everyone about this, as you know, but it has to end. 

So I just ask my Republican colleagues, when Senator Grassley 

and I both have a U.S. Attorney in Iowa and Minnesota, when Senator Grassley has repeatedly criticized this office in Minnesota because of these crime numbers and other things that I have mentioned, that we be allowed to get a U.S. Attorney in Minnesota. 

And so I would just like you to comment about that. 

Attorney General HOLDER. I agree with you, and I share that 

concern, and I think that the point that you made at the end is one 

that I think is extremely relevant and hopefully the Senate will 

consider. This is not simply a United States Attorney for Minnesota. We also have a United States Attorney in Iowa who needs 

to be confirmed. We also have other people in the Justice Department who are awaiting confirmation and who are on the floor and 

who traditionally—these are people who are not very—they are not 

controversial at all. They are simply waiting to go through the normal Senate process, which is usually by unanimous consent. I 

would hope that we would get to the point where that process can 

be begun again so that we could have installed Senate-confirmed 

people in these positions, because it really does matter. Having a 

Senate-confirmed person either as United States Attorney, an Assistant Attorney General, it matters. So that is something that I 

hope that we would be able to work our way through. 

Senator KLOBUCHAR. I appreciate that, and I just would suggest 

to my colleagues, though, that no one ever allows this to go on so 

long, to have a job share. I will never do this again. And I understand the reasons for it, but because our Congress has not been 

able to do simple things like approve people for the ATF or approve 

people when you have a U.S. Attorney’s Office that clearly needs 

a U.S. Attorney, we just cannot take the responsibility to do that 

job. And because of that, no one should ever allow their U.S. Attorney to take another job at the same time, because we cannot handle the responsibility of confirming a replacement or confirming 

that person for that job. And so we deserve what we get if that is 

what happens. 

I want to turn to something else, which is sex trafficking, something that Senator Cornyn and I have a very strong bill with a lot 

of support, bipartisan support, to literally take Minnesota’s safe 

harbor model, which has been a very good force in our State, just 

getting started, but we had last month a 40-year sentence from the 

Ramsey County Attorney’s Office against the head of one of these 

rings. And if you could talk about the President’s Interagency Task 

Force, what is going on. The Super Bowl is approaching us this 

weekend, which is a concern which many have raised in terms of 

the uptick in the number of sex-trafficking ads. In Dallas in 2011, 

there was a 300-percent increase in people advertising things like 

Super Bowl specials, just what the Justice Department is doing 

about this increasing problem, due in part to the number of ads 

and what we are seeing. 

Attorney General HOLDER. Well, one thing I think you have said, 

it is something that our country needs to take note of, that where 
32 

Super Bowls locate, you see a decided increase in human trafficking. You see young girls, young women brought into these areas 

for illicit sexual purposes. That is an ugly thing that this Nation 

has got to confront, has got to deal with, but it really is just indicative of a larger problem, that is, this scourge of human trafficking. 

This is a top priority for the Justice Department. It is a top priority 

for me as well. 

We need to stop—we need to have effective mechanisms to investigate and hold accountable people who would engage in these activities. We need to see the young women who are involved in this 

as victims, not as criminals, and come up with rehabilitative services for them. 

We have a proposal—the proposal I think that you have made— 

with regard to getting trafficking experts together to look at this 

problem and come up with ways in which we are more effective in 

dealing with this issue. It is one that I fully support. 

We also have to deal, I think, quite frankly, with the way in 

which this is advertised in the media. There are certain publications that make it known that young women—ads that are published, that are available for these inappropriate sexual purposes, 

and that is something that we need to deal with as well. 

We as a Nation are not dealing with this nearly as effectively as 

we can. We have specialists in our U.S. Attorney’s Offices who are 

trying to deal with the issue, but we need to help our State and 

local partners as well. 

Senator KLOBUCHAR. Thank you. The last thing, synthetic drugs, 

something that Senator Schumer and Senator Grassley and Senator Feinstein and I have worked on, as well as others in this 

room. This is the new drug on the scene. We have had several people die in our State, and I did want to thank you and the U.S. Attorney’s Office for the prosecution in Duluth, Minnesota, of a major 

head shop owner that had been going on, people literally laying on 

the streets from all these synthetic drugs. And while the sentencing, we are awaiting the sentencing, it was a major prosecution, and the shop has been shut down. The guy in charge, they 

just found something like $700,000 in bags hidden in his bathroom, 

and I just want to thank you for that work. 

Attorney General HOLDER. Yes, I mean, that is an issue that, 

again, we need to confront. There is this myth, especially among 

young people, that somehow or other these synthetic drugs are not 

dangerous. We have to dispel that myth. Our DEA, Drug Enforcement Administration, is really devoting a lot of time to dealing 

with these issues. We have had a number of significant busts. 

But I think there also is an educational component to this that 

we really have to focus on young people about the dangers of these 

synthetic drugs that are marketed in such a way to make them 

think that there are no dangers in using them. 

Senator KLOBUCHAR. Very good. Thank you very much. 

And I believe Senator Lee is next. 

Senator LEE. Thank you, Madam Chair, and thank you, General 

Holder, for joining us today. 

I appreciate the support you expressed earlier for the Smarter 

Sentencing Act. I appreciated the opportunity to work with Senator 

Durbin on that and welcome the support of my colleagues as we 
33 

try to move forward in a way that makes our law enforcement efforts more effective and makes sure that we do not continue to escalate our Federal prison population at a rate of about tenfold as 

we have over the last 30 years. 

I wanted to talk to you first a little bit about metadata. Regardless of how you read Smith v. Maryland and regardless of whether 

you think under Smith v. Maryland and its progeny a constitutional case can be made for the collection of this data as it relates 

to American citizens, wouldn’t you agree that at some point, when 

you amass an enormous volume of metadata on American citizens 

and you retain within the Federal Government the capacity to 

search that data, targeting potentially specific Americans, that 

gives the U.S. Government a lot of power to peer into things that 

are, by their nature, very private? 

Attorney General HOLDER. Yes, and it is one of the reasons why 

in the interim, before we come up with whatever our proposals are 

going to be, the President has indicated that in querying that data 

base now, we should only do so through use of judicial authorization. And so that ultimately may be something that we want to enshrine in the program. But that is what the President has asked 

us to do in the interim, unless there is an emergency situation. 

Senator LEE. Right. So you would make that tantamount to a 

warrant, in other words, because right now what you have are internal operating procedures, internal regulations that can be 

changed; whereas, if we put that in law, that would provide greater 

protection. 

Attorney General HOLDER. I think we want to try to work out 

what the mechanism might be so that we would afford the appropriate amount of protection while at the same time not having a 

negative impact on the operational abilities of people who need to 

potentially get access to that information on a pretty quick basis. 

But I think one thing we should understand is that although 

there might be billions of records in those metadata bases, I think 

the number for last year, in terms of the number of queries that 

were made of that data base, was about 300 or so. 

Senator LEE. I understand that. I understand that, and I think 

for purposes of this discussion, even if we were to assume that all 

of the men and women serving us within the NSA, even if they are 

acting in good faith and abiding by their own rules, at some point 

there is a very grave risk of abuse. And I do not know whether that 

might happen a day from now, a year from now, 10 years or 20 

years from now. But, you know, we have seen this movie before. 

We know how it ends, and we know that it is not pleasant. This 

will ultimately be abused unless we put in place some very significant restrictions. 

I heard you mention a few minutes ago in response to some of 

the questions asked by Senator Grassley that it is the President’s 

preference to work with Congress and that, wherever possible, he 

would like to get Congress to agree with him, to pass legislation 

that he would like. But, of course, the other side of that coin is 

something that the President referred to repeatedly last night in 

his State of the Union address, which is that if he cannot get Congress to act, he will go it alone. If Congress will not act the way 
34 

he wants Congress to act, then he will issue an Executive order 

anytime he gets the chance. 

This brings to mind a concern that I have had as to whether or 

not sufficient analysis is being undertaken when these Executive 

orders are issued. As you know, the Supreme Court has since 

Youngstown Sheet & Tube v. Sawyer and Justice Jackson’s concurrence, and certainly since Dames & Moore v. Regan, when that 

Jackson concurrence was adopted by the majority of the Court, it 

has tended to separate out Executive orders into three categories. 

You know, in Category 1 you have a situation where Congress 

acts pursuant to authorization by Congress, and that is where his 

authority to act with an Executive order is at its strongest. 

Category 2 is where you have the President acting in the absence 

of either a congressional authorization or a congressional prohibition. Justice Jackson described this as sort of a twilight zone where 

it is a little unclear, it is a little murky. 

Category 3 is where you have the President taking measures 

that are incompatible with a congressional command. 

And so I would ask, number one, is this analysis undertaken 

each time the President issues an Executive order? And, number 

two, was that kind of analysis undertaken when the President, for 

example, announced on July 2, 2013, that he would not be enforcing the employer mandate of the Affordable Care Act throughout 

the duration of 2014, even though by law the employer mandate 

was set to take effect as of January 1, 2014? 

Attorney General HOLDER. Before the President exercises the Executive authority that he discussed last evening—and, again, I 

want to preface that with I think the pretty clear indication from 

the President that he wants to work with Congress on behalf of the 

American people. In the absence of that kind of activity, as he has 

done with regard to raising of the minimum wage, he has used his 

Executive authority—well, will use his Executive authority to raise 

the minimum wage for those who do business with the Federal 

Government. Those kinds of activities by the President are done 

after consultation with the Justice Department and an analysis is 

done to make sure that the President is acting in an appropriate 

and a constitutional way, and those three categories that you talk 

about, that we all studied in law school from Justice Jackson, are, 

you know, among the things that obviously are a part of the analysis, you know, where the President’s authority is greatest, at twilight zone, and at where the President’s authority is weakest. 

Senator LEE. So in which of those three categories would you put 

the President’s decision to delay the enforcement of the employer 

mandate? Is that Category 1, 2, or 3? 

Attorney General HOLDER. To be honest with you, I have not 

seen—I do not remember looking at or having—I do not remember 

having seen the analysis in some time, so I am not sure where 

along the spectrum that would come. 

Senator LEE. How about the Executive order that he proposed 

last night with regard to minimum wage? Would that be Category 

1, Category 2, or Category 3? 

Attorney General HOLDER. Well, again, without having delved 

into this to any great degree, that would—— 
35 

Senator LEE. But you are the Attorney General. I assume he consulted you. 

Attorney General HOLDER. Well, there have been consultations 

done with the Justice Department. From my perspective, I think 

that would put us in Category 1. Given the congressional involvement in the matter, the ability of the President to regulate things 

that involve the executive branch, and how contracting is done, it 

seems to me the President is probably at the height of his constitutional power in that regard, with regard to the one we—— 

Senator LEE. So you are saying there is a Federal statute that 

authorizes him to issue the Executive order regarding the minimum wage? 

Attorney General HOLDER. No, I think that there is a constitutional basis for it, and given what the President’s responsibility is 

in running the executive branch, I think that there is an inherent 

power there for him to act in the way that he has. 

Senator LEE. And with regard to the employer mandate? 

Attorney General HOLDER. Again, as I said, I have not had a 

chance to look at, you know, for some time exactly what the analysis was there, so I am not sure that I would be able to put it in 

what category. But, again, I would think that given that we are 

talking about a statute passed by Congress that delegates or devolves to the executive branch certain authorities, I would think 

that you are probably in Category 1 there as well. But, again, I 

have not looked at the analysis in some time. 

Senator LEE. Okay. I appreciate your candor on that, and I see 

my time has expired. But as I conclude, I would just like to point 

out that this is very, very important and it is one of the reasons 

why, as one of my colleagues suggested earlier, it could be very 

helpful for you to release legal analysis produced by the Office of 

Legal Counsel or whoever is advising the President on these issues. 

It is imperative within our constitutional system that we not allow 

too much authority to be accumulated in one person, and it is one 

of the reasons why we have a Constitution, is to protect us against 

the excessive accumulation of power. And I think the President certainly owes it to the American people and you owe it to the President as his Attorney General to make sure that when he does act 

by Executive order, that he do so clearly and clearly state the basis 

of his authority so that the American people can be aware of what 

is happening and on what basis he is claiming that authority. 

I look forward to hearing your explanation. Perhaps you can submit something to us in writing after this hearing about his basis 

for making some of these decisions, particularly with regard to the 

delay of the employer mandate. Thank you. 

Thank you, Madam Chair. 

Attorney General HOLDER. Let me just say that I have great respect for your legal, analytical skills. You are clearly your father’s 

son. But I also want to assure you and the American people that 

the President will not act in a way that is inconsistent with the 

way other Presidents have acted in using their Executive authority. 

He has made far less use of his Executive power at this point in 

his administration than some of his predecessors have. And he will 

only do so, as I indicated previously, where he is unable to work 

with Congress to do things together. That is the desire of the Presi-
36 

dent, to work with Congress to deal with the issues that confront 

the American people. 

Senator LEE. General Holder, I respectfully but forcefully disagree with the assertion, if this is what you are saying, that because the number of Executive orders issued by this President 

might be comparable to the number of Executive orders issued by 

previous Presidents, that that means that he has not made more 

use of it than other Presidents have. When you look at the quality, 

not just the quantity but the quality, the nature of the Executive 

orders that he has issued, he has usurped an extraordinary amount 

of authority within the executive branch. This is not precedented. 

And I point to the delay, the unilateral delay—lawless delay, in my 

opinion—of the employer mandate as an example of this. 

And so at a minimum, I think he owes us an explanation as to 

what his legal analysis was, particularly given the fact that it is 

difficult to imagine who has got standing to challenge this, and it 

is difficult to imagine who, if given—if acquiring standing to challenge this could do so in a timely enough manner so as to avoid 

a mootness problem in the case. So it is all the more reason why 

it is important in this case. 

Thank you very much. 

Attorney General HOLDER. We have to separate then—I mean, 

with regard to the notion that there is a usurpation or that the 

President has acted in a lawless way, I think that is totally inconsistent with what the President has done and what his desires are 

to do. 

Senator KLOBUCHAR. Very good. Senator Blumenthal. 

Senator BLUMENTHAL. Thank you, Madam Chairman. 

I want to begin—I had not planned to begin this way, but I want 

to begin by respectfully taking issue with my colleague Senator Lee 

and say that the use of Executive orders in the past has been very 

sparing and cautious, and, in fact, in my view the numbers of Executive orders, which have been far less than any recent President, 

reflect that very sparing and cautious use—in my view, too cautious and too sparing. And I applaud the President’s apparent determination to use his authority more aggressively and more vigorously in areas that matter so much to the well-being of the American people, particularly when it comes to economic opportunity as 

well as to immigration and veterans issues. 

The basic concept here is that the President is using his authority. Whether you adopt the construct of three categories or any 

other method of analysis, at the end of the day the President is 

simply executing the law and using authority that has been granted to him by Congress for the well-being of the American people, 

to protect their health and safety and to advance the national interest. And in my view—and I have expressed this view through 

the Subcommittee that I chair on regulation, in some instances the 

delay in using that authority has been more on the side of caution 

than on the side of how aggressively it should be used. So I think 

your position that any use of Executive power will be in accordance 

with the law and his legal authority clarifies the point that I think 

has been missed in a lot of the reaction to the President’s speech. 

Where some of his critics have said that he is going to be legis-
37 

lating or bypassing the Congress, in fact, he is using legislation 

that has granted him authority. 

Let me just say on the issue of sex trafficking, I welcome your 

comments on that score. I have proposed a resolution, a bipartisan 

resolution with my colleague Rob Portman, who is not a member 

of this Committee, basically saying that there should be more vigorous enforcement of these laws, particularly around the time of 

the Super Bowl, because the trafficking on websites like 

backpage.com tends to increase during this time. So I welcome your 

comments. 

And let me just add briefly, to take Senator Leahy’s comment, I 

want to thank you and the Department of Justice for really over 

these past years viewing these legal issues on their merits, on their 

legal merits, putting politics aside. The Justice Department went 

through a dark period, in my view, under a previous administration when politics all too often became a part of the analysis, and 

I want to thank the career Justice Department employees who 

worked so hard and long under you to make sure that the rule of 

law is preserved. 

Let me turn to a part of the President’s speech where I might 

have hoped he had said more on the issue of preventing gun violence. The mention by the President was very brief, but I hope, and 

I hope you will join me in the view, that the President remains 

completely committed to end gun violence in this country, adopting 

commonsense, sensible measures like background checks and mental health initiatives, a ban on straw purchases and illegal trafficking. The bill that was before us unfortunately failed to pass, but 

I would like your commitment on behalf of the administration that 

he remains resolutely and steadfastly in support of these initiatives. 

Attorney General HOLDER. Yes, we do still have that commitment. The worst day that I had as Attorney General of the United 

States was the day that I went to Newtown to thank the first responders, crime scene search officers who were there, and they took 

me on a tour of that school. And if people had the ability—if the 

American people, legislators, Members of Congress had had the 

ability to be with me on that day, to walk through the classrooms 

and see the caked blood, to see the tufts of carpet that I did not 

quite understand when I first saw the carpet picked up, then I realized that that was where bullets had gone through and picked up 

the carpet, if people had seen the crime scene search pictures of 

those little angels, I suspect that the outcome of that effort that we 

mounted last year would have been different. 

Our resolve remains the same. My resolve is as firm as it was 

back then. And I think what we should also understand is that the 

vast majority of the American people still want those commonsense 

gun safety measures that we advanced last year. Our commitment 

is real, and we will revisit these issues. 

Senator BLUMENTHAL. And on the subject of the use of the President’s authority, my hope is—and I would urge that he take whatever action is possible, as he has done in a number of steps already 

and as you have done in trying to clarify the mental health issues 

that have to be reported to the NICS system. My hope is that addi-
38 

tional measures, Executive actions are contemplated under that authority. 

Attorney General HOLDER. Yes, the President, it is his intention 

to, again, try to work with Congress, but in the absence of meaningful action to explore all the possibilities and use all the powers 

that he has to, frankly, just protect the American people. 

Senator BLUMENTHAL. Thank you. One last subject. I have a lot 

of subjects that I could explore with you, but I am hoping that the 

administration will also explore very vigorously what it can do to 

stop sexual assaults on campus. I applaud the President’s initiative, and you were part of the task force that he has appointed. The 

report of the Council on Women and Girls very recently emphasizes 

how pressing and pervasive this problem is on our campuses. I am 

intending an initiative in Connecticut to try to raise awareness 

about it. And I would like your commitment that you will work 

with me and others on this Committee on this issue. 

Attorney General HOLDER. I look forward to working with you on 

that very important issue. I mean, the statistics are very alarming: 

20 percent of all young women are either sexually assaulted or an 

attempt made at a sexual assault. Usually—who are in college. 

Usually this happens in their freshman or the early part of their 

sophomore years. We are going to try to use those kinds of statistics and the work of this task force that the President has put together to try to deal with that issue, and we will look forward to 

working with you and other Members of Congress in trying to come 

up with meaningful ways that we can deal with an issue that has 

too often been, if not ignored, not given the attention that it deserves. 

Senator BLUMENTHAL. And just so no one thinks that this issue 

merely involves rhetoric, there is a legal basis for action in Title 

IX and other Federal statutes for the Federal Government to be involved in protecting women against the ongoing assaults and other 

kinds of harm that they suffer on our campuses. 

Attorney General HOLDER. Yes, and the Justice Department is 

using all the tools that we can. We worked out an agreement with 

the University of Montana using our civil rights statutes where 

that problem was not being adequately addressed, and we worked 

out—to the credit of the university, we put in place a consent decree, and other universities, as I now understand it, are talking to 

the University of Montana to see what measures they have put in 

place, and it is our hope that this kind of thing will expand and 

cover more college campuses. 

Senator BLUMENTHAL. Thank you very much. Thank you for your 

testimony today and for your and the Department of Justice’s service to our Nation. Thank you. 

Attorney General HOLDER. Thank you. 

Senator KLOBUCHAR. Thank you, Senator. 

Senator Graham. 

Senator GRAHAM. Thank you. Good morning, Mr. Attorney General. 

Attorney General HOLDER. Good morning. 

Senator GRAHAM. People on both sides of the aisle are asking you 

to do some very worthy things. I mean, this is a great area for you 

to be involved in. Tell me how sequestration over the next decade 
39 

affects your ability not only to do more but to do what you are 

tasked to do today in terms of fighting crime and terrorism. 

Attorney General HOLDER. Were sequestration to remain in 

place, we would simply not be able to do the kinds of things that 

the American people expect of us. We have 4,000 fewer people in 

Justice Department now than we did in January 2011 as a result 

of sequestration, or the expectation of sequestration that forced me 

to put into place a hiring freeze. And we simply have—we have 

fewer investigators, fewer prosecutors. Our ability to do the job is 

just very negatively impacted by sequestration, or has been negatively impacted by sequestration. 

Senator GRAHAM. It is one thing to become more efficient. Eventually it becomes a lack of ability. 

Attorney General HOLDER. Right. 

Senator GRAHAM. So I hope we will all remember that. 

Over the next decade, do you see threats to our homeland increasing, decreasing, or staying about the same regarding terrorist 

activity? 

Attorney General HOLDER. That is an interesting question. I 

would say that in terms of the threat from core al Qaeda, the 

threat I think is likely to be less severe. I am more concerned about 

homegrown violent extremists who get radicalized in a variety of 

ways that, you know, you are very familiar with and what they 

might try to do, where you have one-offs or two people—— 

Senator GRAHAM. So there are two threats: homegrown terrorism—which I agree is definitely on the rise. The likelihood of 

being attacked by someone here who has been radicalized as an 

American citizen I think, as Boston, may be the future. But you 

have got to remember the Pakistan Taliban are the ones that 

trained the guy in New York, so it is just not core al Qaeda. 

Attorney General HOLDER. No, I mean the affiliates. No, you are 

right. The affiliates are—— 

Senator GRAHAM. They are out to get us, and I just want people 

to understand that, you know, privacy is important, but understanding the threat, too, is also important. 

About the IRS, do you agree with me that the allegation is that 

the IRS agency targeted people who were political enemies of the 

President, perceived to be political enemies of the President, and 

made it harder for them to organize and express themselves? Isn’t 

that the basic allegation? 

Attorney General HOLDER. It is certainly what generated my desire to have an investigation done. 

Senator GRAHAM. Yes, I mean, this is not the first time that has 

happened in Washington. I mean, there are some Nixon—— 

Attorney General HOLDER. I am old enough to remember the 

Nixon—— 

Senator GRAHAM. Right, and things do happen. But I guess how 

we handle it is important. 

Senator Cruz has written you a letter that please pay good attention to, because Senator Cornyn suggested that the victim, the person trying to organize in Houston—is that where the lady is 

from?—has not been talked to. Is that possible? 

Attorney General HOLDER. Well, because the investigation is not 

completed—— 
40 

Senator GRAHAM. Okay. But how could you investigate a matter 

if you do not talk to the people who are claiming to be the victim 

of the offense? It would be almost impossible to say that was a 

thorough investigation, wouldn’t it? 

Attorney General HOLDER. Well, you are certainly going to have 

to talk to the victims. My only point was that the investigation is 

not over, so it is possible—— 

Senator GRAHAM. Yes. No, I understand. But at this point in the 

investigation, could you—how many victims of the Tea Party organizations that claim to have been abused by the IRS, how many 

people have been actually talked to, the victims themselves, by 

anybody in the Justice Department? 

Attorney General HOLDER. Yes, this is an ongoing matter, and I 

am not necessarily sure I want to get into the specifics of what we 

have done, what we—— 

Senator GRAHAM. Well, if the answer were none, that would be 

stunning, wouldn’t it, at this late date? 

Attorney General HOLDER. Well, you say ‘‘late date.’’ The investigation has been going on for some time. I am not sure how much 

longer it is going to go, so I am not sure if we can say we are at 

a late date. 

Senator GRAHAM. Okay, and I do not mean to belabor this, but 

do you know if any of the victims have been talked to by the Department of Justice about what they allege happened to them? 

Attorney General HOLDER. Well, again, I do not want to get 

into—I have been briefed on this matter on a couple of occasions. 

I do not want to share what happened in the briefing. 

Senator GRAHAM. Well, finally, the idea of a special prosecutor 

seems to me makes sense here, that the gentleman that you have 

appointed—I am sure he is a fine man. He made a donation to the 

President, and that bothers some people. I understand why it 

would. Don’t you think we would be better off just to have somebody clearly disconnected from the politics of President Obama, certainly not be a Republican but just somebody that does not—that 

cannot be seen as maybe having a political allegiance to close this 

matter, either through prosecution or dismissal? 

Attorney General HOLDER. Well, this is—— 

Senator GRAHAM. Do you think the country would be better 

served if we did that? 

Attorney General HOLDER. I think this is an investigation that 

is being done by career people who have constitutional rights to engage in political activity. The men and women of the Justice Department have from time immemorial put aside whatever their political leanings are and conducted investigations in a way that—— 

Senator GRAHAM. I understand—— 

Attorney General HOLDER. Rely only on the facts and the law. 

Senator GRAHAM. Right. You have got political appointees and 

you have got career people, and I respect both. But we have got a 

country to run here, a democracy, and when a group of people, apparently with great reason, believe that their own Government 

made it difficult for them to organize and express themselves politically, that sort of goes to the heart and soul of the democracy, and 

it would be better for us all if somebody with an independent viewpoint looked at that. 
41 

Attorney General HOLDER. I do not think there is any basis to 

believe that anybody who is involved in this investigation would 

conduct themselves in a way that is inappropriate or would be 

shaded by their—— 

Senator GRAHAM. Well, the person you appointed—— 

Attorney General HOLDER. Political activity. 

Senator GRAHAM. What do I tell someone in South Carolina, the 

person investigating the abuse of power by the Obama administration against conservative groups was a donor to the President? 

Attorney General HOLDER. I would say that people have constitutional rights. The Hatch Act—— 

Senator GRAHAM. I totally agree that—I am just saying from a 

perception problem, for lack of a better word. I mean, you know, 

to me it just is a no-brainer. I mean, I am glad that someone outside the Nixon administration eventually looked at Watergate. And 

I am not saying this is Watergate. I am saying on its face it is not 

a good moment. 

So let us go to Benghazi. Can we expect any prosecutions anytime soon against alleged perpetrators in Benghazi? 

Attorney General HOLDER. We have been working very hard in 

connection with that investigation. We are dealing—the work we 

are doing is in a very challenging environment. We have identified 

people who we believe are responsible for—— 

Senator GRAHAM. Is one of them a Mr. Khattala? 

Attorney General HOLDER. I do not want to comment on anybody 

specifically that—— 

Senator GRAHAM. Well, let me just say that Mr. Khattala is commonly identified in the press as one of the planners of the attack, 

a man who participated in the attack in Libya. That is what the 

press reports are, and I have reason to believe they are right. He 

has been interviewed by CNN, the Times of London, and Reuters. 

Why can’t we grab him if the press can talk to him openly in the 

hotel in Libya? 

Attorney General HOLDER. I will say that we are determined to 

hold accountable the people who were responsible for that attack, 

and we will take and use all measures of the American Government in order to effectuate that desire. 

Senator GRAHAM. A few more questions. The FBI interviewed the 

survivors of the attack in the State Department on the 15th, 16th, 

and 17th of September. I have asked for those FBI interviews because I want to know what they said about a potential protest. The 

Deputy Director, now retired, of the FBI said that none of the survivors told the FBI agents in Germany, 15, 16, and 17 September, 

there was anything other than a terrorist attack. They never mentioned a protest. Would you allow us as Members of Congress to 

have access to those interviews? 

Attorney General HOLDER. I am not aware what happened in 

those interviews. I am not aware of—you say these 3 days of interviews. I am not conversant with what happened during the 

course—— 

Senator GRAHAM. When did you first get notified about what 

happened in Benghazi? And did you believe it to be a terrorist attack? 
42 

Attorney General HOLDER. I would have to think about it. I am 

not sure when I first heard about the attack. I am sure it is some 

time shortly after. It is probably within—— 

Senator GRAHAM. Did the FBI ever brief you after these interviews? Do you remember being briefed by the FBI about what they 

learned in Benghazi? 

Attorney General HOLDER. After the attack or—— 

Senator GRAHAM. Yes. After the interview. 

Attorney General HOLDER. I have been briefed by the FBI on a 

number of occasions with regard to both the attack and the investigation into the attack. 

Senator GRAHAM. If the last interview was done on the 17th of 

September, can you look back in your notes and recall and tell us 

when is the first time you were informed by the FBI about what 

they had found about the attack? Is that possible? 

Attorney General HOLDER. I am not sure I understand. 

When—— 

Senator GRAHAM. Okay. My time is up, but the point I am trying 

to make, when did the Attorney General of the United States— 

were you made aware of the fact that the FBI had interviewed the 

survivors of the attack? When did they tell you about the interview 

and about what they found? 

Attorney General HOLDER. I would have to look at the records on 

that. I mean, what we tried to do initially was to work with the 

Libyan Government to get the FBI into Libya to look at the crime 

scene. That was our primary concern, our initial concern. And then 

from there interviews were done of people who were in the facility 

at the time and who survived the attack. 

Senator GRAHAM. If you could go back and look and let us know 

in writing when you were first made aware of the FBI’s results, I 

would appreciate it. 

Thank you. 

Senator KLOBUCHAR. Thank you very much, Senator. 

Senator Franken. And I do want to note that Senator Franken 

and I both jointly recommended Andy Luger as the U.S. Attorney. 

We started our process way before Todd Jones had even been confirmed, despite some pushback in doing that, and so it has now 

been 189 days since we recommended him. 

Senator Franken. 

Senator FRANKEN. Thank you, Madam Chairman. 

I would associate myself with the Chairwoman’s remarks. Andy 

is an outstanding nominee. We passed him through the Committee 

here, and I hope he gets to the floor as fast as possible. 

Mr. Attorney General, thank you for your service. I want to talk 

to you about a matter that is pressing right now. It is very urgent 

right now. Minnesota and a number of other States are experiencing a severe shortage in propane, and the cost of propane is skyrocketing. This is a real crisis. I wrote the President about it over 

the weekend urging him to take immediate action. I just spoke an 

hour or so ago with Secretary of Energy Moniz. One of the things 

that the administration can do is to work with the industry to 

make sure propane is getting to the regions of the country that 

really need it. I think there are about 25 States that are in crisis 

here. 
43 

But one of the potential challenges with getting companies in a 

room to address the crisis is there may be a concern over antitrust 

violations, however unintended. And I know this issue may not yet 

be on your radar, but will you commit to working with me to make 

sure that any of those issues can be addressed and avoided in the 

midst of this crisis? 

Attorney General HOLDER. Yes, we will certainly do that. We will 

try to do all that we can to make sure that the relief that people 

need with regard to the provision of propane occurs, and we will 

look at what we can do to be as flexible as we can. 

Senator FRANKEN. Yes, to allow these companies to meet. I was 

pleased to see that you visited a veterans treatment center in Roanoke last week. We have some very successful veterans treatment 

courts in Minnesota and across the country, but not nearly enough 

to meet the demand. Can you tell the Committee what you learned 

from your visit to the veterans treatment court and why you think 

it is worthwhile for the Federal Government to invest in these programs? 

Attorney General HOLDER. Well, first I think that we as a Nation 

owe a debt to people who have served and have done so obviously 

putting their lives at risk. They oftentimes come back with issues 

that were generated as a result of their service that puts them in 

conflict with the law. They break the law, and they should be held 

individually responsible. But I also think we need to come up with 

ways in which we deal with those underlying issues that generated 

or that caused that involvement with the law. And what I saw in 

Roanoke and something that I think we want to try to expand was 

a very difficult thing. You talk to these veterans, and they said it 

would be a lot easier simply to plead guilty, do 30 days in jail, a 

year in jail, and be done with it, as opposed to going through a 6- 

month program where you have to report every week, where you 

are subject to random drug tests, where you have to prove that you 

have a good living situation, that you have employment. It is very 

rigorous. 

But the recidivism rate is tiny compared to what other people go 

through, and so we save money by not incarcerating people unnecessarily, and we enhance public safety by decreasing the number 

of recidivist crimes. What I saw in Roanoke I think was very heartening to see and is something that we need to support and expand. 

Senator FRANKEN. I really appreciate that response. This is a 

very important issue to me and to a lot of members of both the 

House and the Senate on a totally bipartisan basis. I have a bill, 

the Justice and Mental Health Collaboration Act, which would authorize Federal funding for veteran treatment courts along with a 

whole bunch of other things. I mean, we do have too many people 

incarcerated who have not committed violent crimes, who are there 

because of mental health issues or there for addiction, who would 

be better off not being in prison and who we are paying way too 

much money to keep incarcerated and who have more recidivism 

because of being put in prison instead of being put in treatment. 

This is about mental health courts, this is about veterans courts, 

and I would like to submit records of support that I have received 

from the American Legion, the Wounded Warrior Project, and 

AmVets, and I would like to submit articles from the Star Tribune 
44 

and Minnesota Public Radio website that discuss this issue, 

Madam Chairman. Do you object? 

Senator KLOBUCHAR. No objection. They are in the record. 

Senator FRANKEN. Thank you. 

[The information referred to appears as submissions for the 

record.] 

Senator FRANKEN. Attorney General Holder, on Monday the Department announced that it would let companies disclose the number of certain surveillance orders they get and the number of customers affected by those orders. I think this is a step forward for 

transparency, and I want to thank you for your work on this. But, 

respectfully, I do not think there is enough transparency. The disclosures do not apply to the largest surveillance program that has 

been declassified, 215, the call records program that affects hundreds of millions of Americans. And what is more, company disclosures are optional and voluntary. And unless the Government tells 

the American people how many of them have had their information 

collected under all of these programs, the public will not know the 

full scope of surveillance. 

I have a bipartisan bill with Senator Dean Heller of Nevada that 

would force the Government to give the American people a good 

idea of how many of them have had their information collected 

under all these programs and how much of it has been queried, 

how much of their information has been looked at. Senator Heller 

introduced this bill with me, and Chairman Leahy has cosponsored 

it, along with several other colleagues on this Committee. But the 

Government has opposed this measure, and it refuses to disclose 

this information on its own. This is surprising to me because I 

think it is common sense that if the public knew this information, 

it would be able to make a better decision for itself as to both the 

purpose, the efficacy of this program, and to what extent—I think 

it would—and I think the President said it last night. It would help 

gain trust. 

So my question is: When will the Government give the American 

people a good idea of how many of them have had their information 

collected and viewed or queried or accessed under this program? 

Attorney General HOLDER. Well, one of the things that we want 

to try to do—and I think you are right that the action that we took 

on Monday was a first step. It was only a first step. There is, I 

think, a need for greater transparency for people to understand the 

nature of the programs that are being run. We always have to understand, though, that the value in these programs, a substantial 

part of the value of these programs is that they are done—they are 

intelligence programs, and, therefore, they have to be kept secret. 

So how we strike that balance is something that Director Clapper 

and I will be working on in conjunction with other people, and we 

would certainly invite your involvement in that process, so that we 

ultimately come up with a system that is effective and keeps the 

American people safe, but at the same time gives the American 

people a degree of assurance that we are only doing that which is 

necessary to make those programs effective. And to the extent that 

we can share information, as we did on Monday, about what actually is being collected in terms of numbers, to the extent that we 
45 

can do that, I think that is something that we want to try to encourage. 

Senator FRANKEN. Thank you. My time has expired. I would like 

to submit some questions for the record. 

Thank you, Madam Chair. 

[The questions of Senator Franken appears as a submission for 

the record.] 

Senator KLOBUCHAR. Thank you very much. 

Senator Cruz. 

Senator CRUZ. General Holder, thank you for being here. I would 

like to talk to you about abuse of power and the integrity of the 

Department of Justice. 

Eight months ago, the Inspector General at the Department of 

Treasury concluded that the IRS had improperly targeted conservative citizen groups, Tea Party groups, pro-Israel groups, pro-life 

groups. The day that was made public, President Obama described 

what had occurred as ‘‘intolerable and inexcusable,’’ and he said, 

‘‘Americans have a right to be angry about it, and I am angry 

about it.’’ Likewise, that same day you said the IRS’ targeting of 

conservative citizens groups was ‘‘outrageous and unacceptable.’’ 

That was 8 months ago. 

In the 8 months that have transpired, Lois Lerner, the head of 

the office that targeted conservatives improperly, has gone before 

Congress and pleaded the Fifth, which, as you know, means she 

raised her hand and said, ‘‘If I testify, I may incriminate myself in 

criminal conduct.’’ For a senior Government official to plead the 

Fifth is a major occurrence. 

In the 280 days since that Inspector General report, nobody has 

been indicted. Not a single person. In the 280 days since that Inspector General report, it has been publicly reported that no indictments are planned. Today in this hearing, you were unwilling to 

answer a question whether even a single victim of the targeting 

has been interviewed in the 280 days that have transpired. And 

most astonishingly, it has now been publicly reported that the lead 

lawyer heading the investigation was, number one, appointed from 

the Civil Rights Division, which has historically been the most politically charged Division in the Department of Justice, and even 

more astonishingly, is a major Democratic donor and donor to 

President Obama. Indeed, between 2004 and 2012, she has personally given $6,750 to President Obama and the Democratic Party. 

I must tell you, I find it astonishing that the Department of Justice appointed a major Obama donor to head this investigation. So 

the first question I want to ask is: Did you know that the lawyer 

in charge of this investigation was a major Obama donor? 

Attorney General HOLDER. Well, first off, the characterization of 

this lawyer as the ‘‘lead lawyer’’ on the case I think is not correct. 

This is an investigation being done by the Civil Rights Division as 

well as by the Criminal Division of the Justice Department. And 

if I had to assign a lead in this, I would say that the Criminal Division, the Public Integrity Section, has actually got the lead. It is 

also involving the FBI as well as the Inspector General from the 

Treasury Department. 
46 

Senator CRUZ. General Holder, with all respect, you did not answer the question I asked, which is: Did you know that this lawyer 

was a major Obama donor? 

Attorney General HOLDER. No, I do not know anything about the 

political activities of any of the people who are involved in this investigation. 

Senator CRUZ. Now, previously, when you were asked about this, 

you made a reference to the fact that she has a First Amendment 

right to be involved in politics, and that is surely right. No one is 

talking about restraining her First Amendment right to be involved 

in politics. But the Department of Justice ethics guideline says that 

if a lawyer ‘‘believes your impartiality might be questioned, you 

must either disqualify yourself or see the ethics officer.’’ And indeed, it goes on to say, ‘‘In a case where your impartiality might 

be questioned, you may obtain a formal opinion that the Department’s interest and your participation in this matter outweighs the 

concern that the integrity of the Department’s operation would be 

questioned.’’ 

Now, I have to tell you, the fact that a major Obama donor is 

playing this leadership role has resulted in the integrity of the Department being questioned. 

Is it your position that out of the 117,000 employees at the Department of Justice the only lawyer available to head this investigation was a major Obama donor? 

Attorney General HOLDER. Well, first, we have got 112,000 people, but beyond that, the people who are assigned to this case, the 

assignments were done by career people within the Department to 

make sure that the best people with the greatest amount of experience would handle this matter. Your repeated reference to her as 

the ‘‘lead lawyer,’’ as I said, I think is not—is not borne out by the 

role she is actually playing. 

I do not have any basis to believe that the people who are engaged in this investigation are doing so in a way other than investigations are normally done, that is, by looking at the facts, applying the law to those facts, and reaching the appropriate conclusions. I do not have any basis to believe that anything other than 

that is occurring. 

Senator CRUZ. Well, I will say a lot of American citizens have a 

basis to believe it given that 280 days have passed, no one has 

been indicted; 280 days have passed and many, if not all, of the victims have not even been interviewed; 280 days have passed and apparently the anger and outrage that both the President and you expressed has utterly disappeared. Indeed, last night in the State of 

the Union address, the President did not so much as mention the 

word ‘‘IRS.’’ So that anger and outrage sees very little manifestation in actual action. 

Now, I would also point out—— 

Attorney General HOLDER. I would actually hope that the President would not discuss an ongoing investigation. I do not know if 

you have ever conducted an investigation, Senator, but the fact 

that it has taken—and I will just take you at your word—280 days 

is not unusual for complex investigations. We want to make sure 

that what we do is comprehensive and that at the end of the day 

we get it right. I do not—— 
47 

Senator CRUZ. Well, many of the victims have not—— 

Attorney General HOLDER. Ask people to do things on a short 

basis. I ask people simply to do them right, and—— 

Senator CRUZ. Many of the victims have not been interviewed. 

Has the investigation examined the meetings between the head of 

the IRS and White House political operatives to determine the degree of political influence that was exercised from the White House 

over this political targeting? 

Attorney General HOLDER. As I said to, I think it was, maybe 

Senator Graham, I am not going to discuss an ongoing investigation and what steps have been taken in connection with that investigation. And that is not something I am only doing for this inquiry. This would be an answer you would get from me for any investigation that the Justice Department was involved in. It is not 

appropriate for an Attorney General or any Justice Department 

person to discuss an ongoing criminal investigation. That is 

just—— 

Senator CRUZ. Has any investigation been done about whether 

individual donors to Governor Romney have been audited and targeted by the IRS at a greater rate than donors to President 

Obama? I will tell you, as I travel the country, I have heard from 

dozens of financial supporters for Governor Romney who told me 

that they had never been audited in their life, and within a week, 

a month of it becoming public that they were raising money for 

Mitt Romney, they discovered they were being audited. 

Now, those are anecdotal stories, but it would be relatively simple to examine the prosecution rates of Obama donors versus Romney donors, and if there were a sharp differential, if it were the 

case that Romney donors were being audited at a much higher frequency, that would raise substantial basis to investigate further. 

Has the investigation inquired as to that? 

Attorney General HOLDER. Senator, you know, I will say—I will 

give you the same response to the questions that you are asking 

that are in many ways very similar. I am not going to discuss what 

we have done in an ongoing investigation. This is a matter that is 

presently being investigated; interviews are being done; analysis is 

being conducted. And it would be inappropriate for me to talk 

about the matter in the way that you have asked. 

Senator CRUZ. Well, my time has expired, but let me say this in 

conclusion, which is, I sent you last week a letter laying out this 

record, laying out the abuse of power, laying out the obvious conflict of interest. In my view, the integrity of the Department of Justice has been severely compromised. Predecessors of yours in both 

parties, Democrat and Republican, when faced with serious charges 

of abuse of power for partisan gain, have made the right decision 

and appointed special prosecutors. 

Elliot Richardson appointed Archibald Cox to investigate allegations of President Nixon’s abuse of power. No one would have trusted John Mitchell to investigate Richard Nixon. Likewise, Janet 

Reno appointed Robert Fisk to investigate allegations against 

President Clinton. 

I would call upon you to carry out the tradition of independence 

that Attorneys General have honored that office with for centuries 

and protect the integrity of the Department of Justice. Given the 
48 

political sensitivities, given the fact that individual citizens believe 

they are being persecuted by the Federal Government for partisan 

reasons, it would further justice and further the integrity of the 

Department of Justice for you to appoint a special prosecutor with 

a meaningful degree of independence to investigate and find out 

what happened. And I would suggest that any special prosecutor 

should have integrity beyond reproach and not be a major Obama 

donor. 

Attorney General HOLDER. Well, let me just say this: The statute—a lot of what Attorney General Reno did with regard to the 

appointment of independent counsel was pursuant to a statute that 

no longer exists. The regulations that now exist were put in place 

under my supervision when I was a Deputy Attorney General in 

the Clinton administration, and so I am familiar with both the regulations and when it ought to be applied. I do not think that there 

is a basis for us to conclude on the information as it presently exists that there is any reason for the appointment of an independent 

counsel. I have faith in the career people who are handling this 

matter to do so in a way that is free of any kind of partisan or ideological tint and to come to an assessment of the facts and the law 

based only on the facts and on the law. And the notion that somehow this has caused a loss of faith in this Justice Department I 

think is inconsistent with the facts. 

Senator KLOBUCHAR. All right. Senator Coons. 

Senator COONS. Thank you, Senator Klobuchar, and thank you, 

Attorney General Holder, for your testimony today and for your 

service. 

I wanted to first focus on an area of shared concern and interest. 

The Department of Justice, as questioning has highlighted today, 

has a broad range of responsibilities toward promoting justice and 

public safety for our country. One of particular interest to me is 

strengthening and sustaining the vital connections between Federal, State, and local law enforcement, and in your opening statement you emphasized your gratitude for the appropriations this 

year which makes possible strengthening that relationship. 

In Delaware, in particular, the Justice Reinvestment Initiative is 

one example of this partnership that is making a real difference, 

and sustained Federal support is going to be critical to ensuring 

that newly enacted State reforms actually translate into reduced 

recidivism, save lives, and save dollars. 

Can you just comment at the outset for me why it is important 

for the Federal Government to invest in State and local law enforcement, training, information sharing, funding assistance? Why 

does this make a difference? 

Attorney General HOLDER. Well, I think there are at least a couple of bases—one, to try to increase the capacity of our State and 

local partners. The reality is that the vast majority of criminal law 

enforcement is conducted by people who are in our State and local 

law enforcement agencies, and so helping them just do their jobs 

makes a great deal of sense. 

But I also think that what we see is innovative practices being 

done by our State and local counterparts that we want to try to 

support, experiments almost, and see which things work and then 

try to push those out to other parts of the country. 
49 

If we want to have a truly safe country with safe communities, 

with really innovative law enforcement practices, the Federal Government I think has the unique capacity through our funding 

mechanisms to funnel money to agencies that have particular 

crime problems that they are dealing with or have innovative solutions to crime problems that many communities around the Nation 

are facing. 

Senator COONS. Thank you. I am a strong believer in the capacity of the Federal Government to find specific programs and to 

combine research, training, and funding assistance to sort of catalytically leverage those either unique practices or important and 

special programs, and I want to draw your attention to two of them 

that we have discussed before: 

The Victims of Child Abuse Act has in the past funded child advocacy centers that are a really important tool, and Senator 

Klobuchar discussed with you earlier the critical importance of 

strengthening our enforcement against sex trafficking. I think 

these child advocacy centers have played a central role in that. 

And, second, the Bulletproof Vest Partnership Act, which has 

made possible the deployment of cutting-edge vests that protect 

local law enforcement officers, particularly in smaller or more rural 

departments where they could not sustainably field them themselves. 

Regrettably, both of those were zeroed out in the President’s Fiscal Year 2014 Budget, and through action on the Appropriations 

Committee funding was restored, and I think we are continuing to 

work in partnership to ensure that they are actually carried forward and deployed. 

I know that you have spoken in support of these programs in the 

past, and budgets are difficult and they are also an important tool 

to convey our values and our priorities. Would you just comment 

on how these specific programs can help State and local law enforcement, particularly in ways that are not possible if done alone 

at the State or local level? 

Attorney General HOLDER. Well, I think the child advocacy centers are things that I have been familiar with since my time as 

United States Attorney here in Washington, D.C. They are a primary tool, a good tool for people in law enforcement to successfully 

prosecute cases that involve children who are victims. But beyond 

that, it also helps the healing process for young victims so they do 

not get re-victimized by the process that they go through and, then 

once through with the process, can try to get on and to heal. For 

too long we did not understand the unique needs that children had, 

and child advocacy centers I think have really gone a long way to 

increase our sensitivity in that regard. 

We do not have budget numbers yet for Fiscal Year 2015. We 

have them in a macro sense, but we do not have the micro numbers 

with regard to the Justice Department, but I will be advocating on 

behalf of these child advocacy centers. I think they are proven to 

work, and given who they assist, I think that as we are trying to 

decide what our priorities are, the protection of our most vulnerable citizens, our children, has to be a place where we put our 

money. 
50 

With regard to the vests, I think that—we have talked about this 

before, a concern—you have raised a very legitimate concern that 

we not make the provision of vests dependent on the size of the 

community. Officers who are on two-, three-man police forces are 

just as at risk when they are making a stop on a highway in the 

middle of the night as is somebody who works on the New York 

Police Department. And to the extent that we can, we want to get 

as many of these vests out there as we can. 

Senator COONS. The recent report from the Presidential Commission on Election Administration confirms an issue I have raised 

previously, that there is a widespread lack of compliance with Section 5 of the National Voter Registration Act, the so-called motorvoter law. In fact, the report very specifically says that DMVs, 

which are supposed to play an absolutely central role in registration, are the weakest link in the system. Many State DMVs disregard the laws. Others have erected impediments to the seamless 

transfer of voter registration data from motor vehicle to voter registration. 

Do you see this report as a call to action for enforcement of Section 5 of the NVRA by the Department? And what is your plan to 

make sure this important law is enforced? 

Attorney General HOLDER. Well, I think we need to look at that 

report. I think that that was a very thoughtful and potentially very 

consequential piece of legislation. And for it not to be enforced and 

for it not to be paid attention to would go against what I think is 

really important, which is to somehow in an appropriate way, without any fraud, expand the franchise and make it easier for people 

to get to vote. And so to the extent that issues have been identified 

in that report, we will look at them and that will help shape our 

enforcement efforts. 

Or just to bring—when I say ‘‘enforcement efforts,’’ that does not 

necessarily mean we are going to have to bring cases, but just to 

bring to the attention of departments in various States that are not 

doing that, if we bring to their attention sometimes just best practices, we can hopefully modify things that are inconsistent with the 

Act. 

Senator COONS. Let me, if I might, ask a last question about 

FISA reform. The President has publicly recently instructed you to 

develop options to reform the Section 215 bulk collection program 

in ways that would better respect and defend civil liberties in this 

country. Is it the Department’s position that Section 215 can be 

used for suspicion-less bulk collection of metadata beyond phone 

records, including location information, financial records, or other 

Internet records? And how do you view the best way moving forward to ensure the public that the framework for making these decisions is right? Do you support more disclosures of the legal rationales for various aspects of the surveillance program? 

Attorney General HOLDER. Yes, I think that we have to ask some 

very frank questions about the bulk collection component of Section 

215 and make a decision as a Nation about whether or not we are 

getting from that program sufficient amounts of good information, 

sufficient amounts of usable information to balance the, I think, 

very legitimate concerns that people have expressed about the 

wide—potentially wide-ranging nature of the program. 
51 

I come into this, I will be honest with you, with an open mind. 

You know, there are certain programs, section 702, for instance, 

that I think has to be guarded almost at all costs. With regard to 

215, I think the metadata part of 215, I think that we have to ask 

ourselves some difficult questions and not simply do things, as the 

President has said, simply not do things because we can do them. 

The question is: Should we do them? 

As I said, I think 215 is legal, but that does not answer the question that the President has posed to us. 

Senator COONS. Well, thank you, Mr. Attorney General. I join a 

number of colleagues in urging and hoping that the investigation 

into IRS actions is done in a balanced and professional and appropriate way, and I assume it is unless demonstrated otherwise. And 

what I have heard is that there were progressive groups as well as 

Tea Party groups that were perhaps allegedly on the receiving end 

of reviews of their 501(c)(3) applications, and it is my expectation 

that we will hear more in an appropriate and timely way about the 

conduct of this investigation. 

Attorney General HOLDER. Well, let me assure you and the 

American people that the investigation of what we call the IRS investigation will be done in a nonpartisan, non-ideological way, that 

we will make determinations only on the basis of the good investigative techniques that we always employ in the Justice Department. And let me also express confidence in the men and women 

who are part of the team who are investigating the case now. 

As I said, I see no basis to question their impartiality, and we 

will try at the conclusion of the investigation to share as much information as we can about the conclusions that we have reached, 

either through prosecutions or declinations, however the case ends 

up. 

Senator COONS. Thank you. 

Senator KLOBUCHAR. Very good. Last but not least, Senator 

Flake. 

Senator FLAKE. Thank you. I appreciate you being here, and I 

just want to say I share the concerns that some of my colleagues 

have expressed about some of the, for lack of a better term, extraconstitutional actions taken by the President with regard to the 

ACA. But you have been asked those questions. Some answers 

have been given, some not. I do not think I will plow any new 

ground by going over that. 

Also, I share the concerns about the investigation, the timeliness 

of it. I hope that we can move forward quickly, and I am concerned 

about whether there are leaks or whether there are statements by 

the FBI that should not have been made about that there will be 

no criminal prosecution, I think that is concerning. When the FBI 

says something like that or leaks that out, I would hope that DOJ 

refutes that. And I do not think we saw that. 

Let me just talk about an area that I do not think has been 

talked about. It is with regard to waste or inefficiency in the grant 

programs. DOJ administered about $17 billion in grants just between 2009 and 2013. Inspector General Michael Horowitz issued 

a report in December that I think is some pretty tough medicine. 

He is saying that we need some budget constraints, we need some 

things put in place to make sure that we are not squandering a lot 
52 

of taxpayer resources. DOJ, it was reported by someone, has squandered perhaps as much as $100 million in taxpayer dollars over the 

past 5 years. The OIG audit questioned, for example, all of the 

more than $23 million in grant funds awarded by the Department 

to Big Brothers and Big Sisters of America. There just are not the 

controls in place that there need to be to shed a light on where this 

money is going. 

Mr. Horowitz highlighted the problem yesterday. He said that 

there is ‘‘virtually no visibility’’ on how grant funds are actually 

being used by the recipients. 

‘‘Unless there is an OIG audit or investigation or the granting 

agency dedicates resources to collecting and analyzing the accounting information from a recipient, the Government and taxpayers 

are virtually in the dark regarding how grant funds are actually 

used.’’ 

This is an ongoing problem. I just want to know what is being 

done to remedy this. 

Attorney General HOLDER. First, I think what we have to understand is that I do not the Inspector General indicated that he is 

concerned that these funds have necessarily been misused as much 

as there are not mechanisms in place to assure that they are being 

used in an appropriate way, which I—that is a serious concern. I 

think, as I remember the report, that he had said that over the 

past couple of years, I think, that things have gotten better than 

they perhaps were at the beginning. I might be confusing the reports, but I think that is what he said. 

But what we have to do, I mean, the concern you raise is a legitimate one, and we have to have in place the mechanisms so that 

we know that the money that is given to grantees is being used in 

an appropriate way, first so that we know that it is being done for 

the purpose that it was given, but also just to assess the effectiveness of the grants. 

Senator FLAKE. Let me get beyond just platitudes on this. DOJ 

said in 2012 that you would conduct an assessment of these programs to see where there is overlap and where money perhaps is 

being wasted. The Inspector General said that that assessment has 

not been completed or provided to him or to Congress. Is that the 

case? 

Attorney General HOLDER. Well, we will have to, you know, get 

that assessment completed, share it with Congress, and share it 

with the Inspector General. 

Senator FLAKE. You mentioned with regard to the investigation, 

the IRS, that it is perhaps routine to go 260 days, or whatever figure was used, and I understand that. It probably is routine. What 

I would suggest is that it is not routine to go for a year, a year 

and a half, 2 years before you come back with an assessment that 

you said that you would do with regard to these programs. Is that 

routine to take a year and a half or so after you say you will have 

an assessment? 

Attorney General HOLDER. I would not say it is routine, but obviously what we want to do is make sure that we have looked at 

these things and done a good and complete job. If, in fact, it is 18 

months, whatever the timeframe is, that would seem to me to be 

on the excessive side. 
53 

Senator FLAKE. Speaking of which, it was brought up earlier in 

the hearing that the questions that were submitted after the last 

oversight hearing in March of last year, that DOJ has not returned 

any answers to those questions by this oversight Committee. Is 

that routine to go nearly a year without answering specific questions that have been asked as part of the oversight hearing? 

Attorney General HOLDER. I think what we generally try to do 

is make sure—I think as Senator Grassley said, to try to make 

sure that we answer all the questions before the next oversight 

hearing. I do not know how many of the questions have not been 

responded to. I just do not know. I will have to look into that at 

the conclusion of—— 

Senator FLAKE. I think it was the case that none of the questions 

had been submitted. Nothing. 

Attorney General HOLDER. All right. The answers actually have 

been prepared. They are now under review by the Office of Management and Budget. 

Senator FLAKE. So nearly a year later, when we come to the next 

oversight hearing, we still have not received answers to the questions from the last oversight hearing. I realize we have not gone 

through regular order in this place for a while, but it is difficult 

to provide oversight when the answers do not come back. 

Attorney General HOLDER. That is a fair criticism, and we obviously are going to have to do a better job in the administration, 

both at the Department and OMB, to get answers to you in a more 

timely fashion. 

Senator FLAKE. We will have some follow-up questions to this, 

and I would like to have a commitment, if I could, that you will 

get back in a more timely fashion. 

Attorney General HOLDER. We will do better. I promise. 

Senator FLAKE. With regard to just one quick question on immigration, as you know, I was part of the group, the bipartisan group 

here, that put together an immigration bill. I share the President’s 

concern and his desire to get immigration reform done. Let me just 

tell you, in all honesty, one of the most difficult questions I face 

at home from constituents and others is about this new legislation 

we are putting forward, as they say why in the world do we want 

to create more laws when we simply are not enforcing the ones 

that we have, or the Department, the administration takes it upon 

itself to interpret the laws that we have and use perhaps a little 

too much discretion in terms of implementing those laws. They 

have very little confidence that the new legislation put forward, 

when it becomes a law, will be implemented as it was intended. 

Do you understand that sentiment out there, at least? And what 

can the administration do to help us? We are trying to get this 

done. I am on your side, and those who want to get immigration 

reform done, but I can tell you it is very difficult when we see 

things like release of individuals with multiple felonies into the 

community. I asked questions of Secretary Napolitano. Those answers never got back to us either. I mean, that kind of stuff at 

home makes it very difficult to instill the confidence that we need 

that these laws will be faithfully executed. 

Attorney General HOLDER. Well, I think that if people truly understood how we enforce the laws, how completely we enforce them, 
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how we use the discretion that we possess, they would have a 

greater degree of comfort in how the Justice Department, DHS for 

that matter, conduct themselves and not focus necessarily on anecdotal things but really on a more systemic—have a more systemic 

view of how it is we do what we do, because I am actually quite 

proud of the way in which we use the limited resources that we 

have to keep the American people safe. 

Senator FLAKE. I agree with that, and I would just tell you that 

if people understood—perhaps they would better understand if they 

had answers to these questions. What I am telling you is we are 

not getting answers to those questions. I am unable to go back to 

my constituents and say here is the reason that these people with 

multiple felonies were released into the community, because I am 

not getting answers back from the Department of Homeland Security or in some cases from DOJ. So I take your point, but just tell 

you it is very difficult when we do not hear back from the Department a year later in conducting oversight hearings. 

So I just would leave you with that, and I appreciate you being 

here, and we will have further written questions to follow up. 

Attorney General HOLDER. And, Senator, the concern you raise 

is a fair one. That is a fair one. And as I said, we will have to do 

better. And I am not criticizing anybody in the Justice Department. 

I mean, we have to, as an executive branch, do better in responses 

to the questions that you are talking about. 

Senator FLAKE. Thank you. I yield back. 

Senator KLOBUCHAR. Thank you very much, Senator Flake. 

Thank you, Attorney General Holder, and I think the people who 

watch this hearing can see the range of work the Justice Department does, everything from—I was jotting down some notes—legal 

issues regarding surveillance, autism, propane fuel, sex trafficking, 

IRS investigations, and drug policy. So we thank you for answering 

such a broad range of questions at this oversight hearing today and 

look forward to seeing you again soon. The record will stay open 

for 2 weeks. Thank you. 

Attorney General HOLDER. Thank you. 

[Whereupon, at 1:06 p.m., the Committee was adjourned.] 

[Additional material submitted for the record follows.] 
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A P P E N D I X 

ADDITIONAL MATERIAL SUBMITTED FOR THE RECORD
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QUESTIONS SUBMITTED TO HON. ERIC H. HOLDER, JR., BY SENATOR HATCH
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QUESTIONS SUBMITTED TO HON. ERIC H. HOLDER, JR., BY SENATOR FLAKE
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