U.S. GOVERNMENT PUBLISHING OFFICE

25–638 PDF WASHINGTON : 2018

S. HRG. 114–771 

CONFIRMATION HEARING ON THE 

NOMINATION OF HON. LORETTA E. LYNCH 

TO BE ATTORNEY GENERAL 

OF THE UNITED STATES 

HEARING 

BEFORE THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE 

ONE HUNDRED FOURTEENTH CONGRESS 

FIRST SESSION 

JANUARY 28 and 29, 2015 

Serial No. J–114–2 

Printed for the use of the Committee on the Judiciary 

( 
(II) 

COMMITTEE ON THE JUDICIARY 

CHARLES E. GRASSLEY, Iowa, Chairman 

ORRIN G. HATCH, Utah 

JEFF SESSIONS, Alabama 

LINDSEY O. GRAHAM, South Carolina 

JOHN CORNYN, Texas 

MICHAEL S. LEE, Utah 

TED CRUZ, Texas 

JEFF FLAKE, Arizona 

DAVID VITTER, Louisiana 

DAVID PERDUE, Georgia 

THOM TILLIS, North Carolina 

PATRICK J. LEAHY, Vermont,

Ranking Member 

DIANNE FEINSTEIN, California 

CHARLES E. SCHUMER, New York 

RICHARD J. DURBIN, Illinois 

SHELDON WHITEHOUSE, Rhode Island 

AMY KLOBUCHAR, Minnesota 

AL FRANKEN, Minnesota 

CHRISTOPHER A. COONS, Delaware 

RICHARD BLUMENTHAL, Connecticut 

KOLAN L. DAVIS, Chief Counsel and Staff Director 

KRISTINE LUCIUS, Democratic Chief Counsel and Staff Director 
(III) 

C O N T E N T S 

JANUARY 28, 2015, 10:03 A.M., and JANUARY 29, 2015, 10:05 A.M. 

STATEMENTS OF COMMITTEE MEMBERS 

Page 

Feinstein, Hon. Dianne, a U.S. Senator from the State of California: 

January 28, 2015, prepared statement ........................................................... 322 

Grassley, Hon. Charles E., a U.S. Senator from the State of Iowa: 

January 28, 2015, opening statement ............................................................. 1 

January 29, 2015, opening statement ............................................................. 119 

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

January 28, 2015, opening statement ............................................................. 4 

January 28, 2015, prepared statement ........................................................... 330 

January 29, 2015, opening statement ............................................................. 121 

PRESENTERS 

Gillibrand, Hon. Kirsten E., a U.S. Senator from the State of New York 

presenting Hon. Loretta E. Lynch, Nominee to be Attorney General of 

the United States ................................................................................................. 7 

Schumer, Hon. Charles E., a U.S. Senator from the State of New York 

presenting Hon. Loretta E. Lynch, Nominee to be Attorney General of 

the United States ................................................................................................. 6 

STATEMENT OF THE NOMINEE 

Witness List ............................................................................................................. 179 

Lynch, Hon. Loretta E., Nominee to be Attorney General of the United States .. 8 

prepared statement .......................................................................................... 180 

questionnaire and biographical information .................................................. 185 

STATEMENTS OF THE WITNESSES 

Attkisson, Sharyl, Investigative Journalist, Leesburg, Virginia ......................... 123 

prepared statement .......................................................................................... 241 

Barlow, David B., Partner, Sidley Austin LLP, Washington, DC ....................... 125 

prepared statement .......................................................................................... 244 

Clarke, David A., Jr., Sheriff, Milwaukee County, Milwaukee, Wisconsin ........ 133 

prepared statement .......................................................................................... 246 

Engelbrecht, Catherine, Founder, True The Vote, Houston, Texas .................... 137 

prepared statement .......................................................................................... 250 

Fedarcyk, Janice K., Fedarcyk Consulting LLC, Crownsville, Maryland ........... 128 

prepared statement .......................................................................................... 256 

Legomsky, Stephen H., John S. Lehmann University Professor, School of 

Law at Washington University, St. Louis, Missouri ......................................... 129 

prepared statement .......................................................................................... 261 

Newsome, Rev. Dr. Clarence G., Cincinnati, Ohio ................................................ 126 

prepared statement .......................................................................................... 281 

Rosenkranz, Nicholas Quinn, Professor of Law, Georgetown University Law 

Center, and Senior Fellow in Constitutional Studies, The Cato Institute, 

Washington, DC ................................................................................................... 135 

prepared statement .......................................................................................... 286 

Turley, Jonathan, J.B. and Maurice C. Shapiro Professor of Public Interest 

Law, George Washington University Law School, Washington, DC ................ 131 

prepared statement .......................................................................................... 296 
Page

IV 

QUESTIONS 

Questions submitted to Sharyl Attkisson by Senator Grassley ........................... 459 

Questions submitted to Sheriff David A. Clarke, Jr., by Senator Grassley ........ 461 

Questions submitted to Hon. Loretta E. Lynch by: 

Senator Cornyn ................................................................................................. 332 

Senator Cruz ..................................................................................................... 343 

Follow-up questions submitted by Senator Cruz ........................................... 372 

Senator Durbin ................................................................................................. 391 

Senator Feinstein ............................................................................................. 392 

Senator Flake .................................................................................................... 403 

Senator Franken ............................................................................................... 406 

Senator Graham ............................................................................................... 407 

Senator Grassley .............................................................................................. 409 

Follow-up questions submitted by Senator Grassley ..................................... 448 

Senator Hatch ................................................................................................... 470 

Senator Leahy ................................................................................................... 472 

Senator Lee ....................................................................................................... 473 

Senator Perdue ................................................................................................. 477 

Follow-up questions submitted by Senator Perdue ....................................... 486 

Senator Schumer .............................................................................................. 490 

Senator Sessions ............................................................................................... 491 

Follow-up questions submitted by Senator Sessions ..................................... 501 

Senator Tillis .................................................................................................... 508 

Follow-up questions submitted by Senator Tillis ........................................... 511 

Senator Vitter ................................................................................................... 514 

Follow-up questions submitted by Senator Vitter ......................................... 522 

Senator Whitehouse ......................................................................................... 524 

Questions submitted to Prof. Nicholas Quinn Rosenkranz by Senator Grassley . 462 

Questions submitted to Prof. Jonathan Turley by Senator Grassley .................... 466 

ANSWERS 

Responses of Sharyl Attkisson to questions submitted by Senator Grassley ..... 525 

Responses of Sheriff David A. Clarke, Jr., to questions submitted by Senator 

Grassley ................................................................................................................ 529 

Responses of Hon. Loretta E. Lynch to questions submitted by: 

Senator Cornyn ................................................................................................. 534 

Senator Cruz ..................................................................................................... 549 

Follow-up questions submitted by Senator Cruz ........................................... 588 

Senator Durbin ................................................................................................. 624 

Senator Feinstein ............................................................................................. 626 

Senator Flake .................................................................................................... 638 

Senator Franken ............................................................................................... 643 

Senator Graham ............................................................................................... 645 

Senator Grassley .............................................................................................. 650 

Follow-up questions submitted by Senator Grassley ..................................... 708 

Senator Hatch ................................................................................................... 730 

Senator Leahy ................................................................................................... 734 

Senator Lee ....................................................................................................... 736 

Senator Perdue ................................................................................................. 744 

Follow-up questions submitted by Senator Perdue ....................................... 764 

Senator Schumer .............................................................................................. 771 

Senator Sessions ............................................................................................... 774 

Follow-up questions submitted by Senator Sessions ..................................... 795 

Senator Tillis .................................................................................................... 808 

Follow-up questions submitted by Senator Tillis ........................................... 812 

Senator Vitter ................................................................................................... 816 

Follow-up questions submitted by Senator Vitter ......................................... 835 

Senator Whitehouse ......................................................................................... 839 

Responses of Prof. Nicholas Quinn Rosenkranz to questions submitted by 

Senator Grassley .................................................................................................. 840 

Responses of Prof. Jonathan Turley to questions submitted by Senator Grassley 848 
Page

V 

LETTERS RECEIVED REGARDING THE NOMINATION OF HON. LORETTA E. 

LYNCH TO BE ATTORNEY GENERAL OF THE UNITED STATES 

Alliance for Justice, Washington, DC, January 27, 2015 ..................................... 930 

Alliance of North Carolina Black Elected Officials, The, Shelby, North Carolina, February 23, 2015 ....................................................................................... 966 

Alpert, Stanley N., former Assistant U.S. Attorney, et al., Eastern District 

of New York, December 9, 2014 .......................................................................... 864 

Anello, Robert J., former President, et al., Federal Bar Council, White Plains, 

New York, January 14, 2015 ............................................................................... 885 

Association of Prosecuting Attorneys (APA), Washington, DC, January 27, 

2015 ....................................................................................................................... 943

Barlow, David B., former U.S. Attorney, District of Utah, et al., January 22, 

2015 ....................................................................................................................... 909

Biehl, Richard, Chief, Dayton Police Department, Dayton, Ohio, et al., December 9, 2014 ............................................................................................................ 855 

Bratton, William J., Police Commissioner, New York City Police Department, 

New York, January 26, 20 15 ............................................................................. 926 

Cardozo, Michael A., former President, et al., New York City Bar Association, 

New York, New York, January 22, 2015 ............................................................ 907 

Center for Judicial Accountability, Inc. (CJA), White Plains, New York, December 17, 2014 .................................................................................................... 980 

Congressional Black Caucus, The, Hon. G.K. Butterfield, a Representative 

in Congress from the State of North Carolina, and Chairman, Washington, 

DC, January 14, 2015 .......................................................................................... 884 

County of Durham, Board of Commissioners, Durham, North Carolina, 

December 15, 2014 ............................................................................................... 877 

Federal Bureau of Investigation Agents Association (FBIAA), Arlington, 

Virginia, January 27, 2015 .................................................................................. 947 

Federal Law Enforcement Officers Association (FLEOA), Jon Adler, National 

President, Washington, DC, January 22, 2015 .................................................. 906 

Field, Arthur Norman, former President, et al., New York County Lawyers’ 

Association (NYCLA), New York, New York, January 23, 2015 ...................... 915 

Freeh, Hon. Louis J. Freeh, former Judge and former Director, Federal 

Bureau of Investigation, January 20, 2015 ........................................................ 904 

Gilbride, John P., former Special Agent, Drug Enforcement Administration, 

Middletown, New Jersey, January 26, 2015 ...................................................... 917 

Gorelick, Hon. Jamie S., former Deputy Attorney General, U.S. Department 

of Justice, Washington, DC, January 26,2015 ................................................... 948 

Guccione, Joseph R., former U.S. Marshal, Southern District of New York, 

Wilmington, Delaware, January 23, 2015 .......................................................... 914 

Human Rights Campaign (HRC), Washington, DC, February 11, 2015 ............. 967 

Immelt, Stephen J., Chief Executive Officer, et al., Hogan Lovells US LLP, 

New York, New York, January 15, 2015 ............................................................ 902 

International Association of Chiefs of Police (IACP), Alexandria, Virginia, 

February 25, 2015 ................................................................................................ 969 

Landrith, George, Frontiers of Freedom, et al., January 21, 2015 ...................... 970 

Leadership Conference on Civil and Human Rights, The, Washington, DC, 

January 26, 2015 .................................................................................................. 919 

Legal Momentum: The Women’s Legal Defense and Education Fund, New 

York, New York, February 25, 2015 ................................................................... 972 

Lewis, Hon. John, a Representative in Congress from the State of Georgia, 

January 27, 2015 .................................................................................................. 937 

Maloney, Andrew J., former U.S. Attorney, Eastern District of New York, 

et al., December 3, 2014 ...................................................................................... 862 

Major Cities Chiefs Association, Tom Manger, President and Chief of Police, 

Montgomery County Police Department, Maryland, January 8, 2015 ............ 882 

Moss, Sara, Executive Vice President and General Counsel, The Este ́e Lauder 

Companies Inc., New York, New York, January 14, 2015 ................................ 965 

National Association for the Advancement of Colored People Legal Defense 

and Educational Fund, Inc. (LDF), New York, New York, and Washington, 

DC, January 27, 2015 .......................................................................................... 932 

National Association of Social Workers (NASW), Washington, DC, January 27, 

2015 ....................................................................................................................... 976
Page

VI 

National Association of Women Lawyers (NAWL), Chicago, Illinois, February 3, 

2015 ....................................................................................................................... 957

National Bar Association (NBA), Washington, DC, January 29, 2015 ............... 952 

National Black Prosecutors Association (NBPA), Chicago, Illinois, January 22, 

2015 ....................................................................................................................... 961

National Conference of Women’s Bar Associations (NCWBA), Portland, 

Oregon, January 28, 2015 ................................................................................... 935 

National Disability Rights Network (NDRN), Washington, DC, March 3, 2015 978 

National District Attorneys Association (NDAA), Alexandria, Virginia, 

November 9, 2014 ................................................................................................ 860 

National Immigration Law Center (NILC), Los Angeles, California, February 3, 

2015 ....................................................................................................................... 959

National Organization of Black Law Enforcement Executives (NOBLE), Alexandria, Virginia, December 27, 2014 .................................................................. 881 

National Task Force to End Sexual and Domestic Violence (NTF), Seattle, 

Washington, December 9, 2014 ........................................................................... 857 

National Urban League (NUL), Marc H. Morial, President and Chief Executive Officer, New York, New York, January 26, 2015 ....................................... 922 

National Women’s Law Center, Washington, DC, January 26, 2015 .................. 924 

O’Connor, Kevin J., United Technologies Corporation, Hartford, Connecticut, 

January 22, 2015 .................................................................................................. 911 

Parr, Brian G., Chief Security Officer, Citigroup Inc., New York, New York, 

January 25, 2015 .................................................................................................. 954 

People For the American Way, Washington, DC, January 26, 2015 ................... 928 

Rice, Kathleen M., District Attorney, Mineola, New York, November 17, 2014 861 

Schneiderman, Hon. Eric T., Attorney General for the State of New York, 

New York, New York, March 13, 2015 ............................................................... 984 

Schwartz, Bart M., Chairman, Guidepost Solutions LLC, New York, New 

York, January 26, 2015 ....................................................................................... 955 

Strauss, Audrey, Executive Vice President and Chief Legal Officer, Alcoa 

Inc., January 13, 2015 ......................................................................................... 883 

Thompson, Larry D., former Deputy Attorney General, U.S. Department of 

Justice, Washington, DC, January 27,2015 ....................................................... 950 

Tursi, Elizabeth Anne ‘‘Betiayn,’’ Women in Law Empowerment Forum, January 22, 2015 .......................................................................................................... 913 

Walsh, Peter H., Senior Deputy General Counsel and Chief of Litigation, 

UnitedHealth Group Incorporated, Minnetonka, Minnesota, January 23, 

2015 ....................................................................................................................... 944

Wilson, Benjamin F., Managing Principal, Beveridge and Diamond, P.C., et al., 

January 28, 2015 .................................................................................................. 940 

Women in Federal Law Enforcement (WIFLE), Arlington, Virginia, January 27, 

2015 ....................................................................................................................... 858

Women’s Bar Association of the District of Columbia (WBA), Washington, 

DC, January 28, 2015 .......................................................................................... 945 

YWCA USA, Washington, DC, January 27, 2015 ................................................. 938 

MISCELLANEOUS SUBMISSIONS FOR THE RECORD 

Beck, Charlie, Chief of Police, City of Los Angeles Police Department, Los 

Angeles, California, statement ............................................................................ 985 

‘‘Breakdown of the Subsequent Convictions Associated With Criminal Aliens 

Placed in a Non-Custodial Setting in Fiscal Year 2013,’’ table ........................ 988 

Frum, David, Senior Editor, The Atlantic, ‘‘Reagan and Bush Offer No Precedent for Obama’s Amnesty Order,’’ November 18, 2014, article ...................... 1026 

Marek, Stan, President and Chief Executive Officer, Marek Family of Companies, Houston, Texas, statement ......................................................................... 1033 

Martin County, Board of Commissioners, Williamston, North Carolina, January 7, 2015, resolution ......................................................................................... 1035 

United States Department of Justice, Office of the Inspector General, Abbreviated Report of Investigation, Final, January 23, 2015, report—redacted .... 1029 
Page

VII 

ADDITIONAL SUBMISSIONS FOR THE RECORD 

Submissions for the record not printed due to voluminous nature, previously 

printed by an agency of the Federal Government, or other criteria 

determined by the Committee, list ..................................................................... 1036 

Attorney General’s Advisory Committee, December 19, 2014, working draft 

agenda—redacted, 

Part 1: 

https://www.judiciary.senate.gov/imo/media/doc/AGAC%20(12-19- 

2014)lPart1.pdf ........................................................................................... 1036 

Part 2: 

https://www.judiciary.senate.gov/imo/media/doc/AGAC%20(12-19- 

2014)lPart2.pdf ........................................................................................... 1036 

Part 3: 

https://www.judiciary.senate.gov/imo/media/doc/AGAC%20(12-19- 

2014)lPart3.pdf ........................................................................................... 1036 

Part 4: 

https://www.judiciary.senate.gov/imo/media/doc/AGAC%20(12-19- 

2014)lPart4.pdf ........................................................................................... 1036 

Part 5: 

https://www.judiciary.senate.gov/imo/media/doc/AGAC%20(12-19- 

2014)lPart5.pdf ........................................................................................... 1036 

Legal and Administrative Management Evaluation, United States Attorney’s 

Office, Eastern District of New York, January 23, 2015, draft report— 

redacted: 

https://www.judiciary.senate.gov/imo/media/doc/EARS—Redacted 

%20FINAL.pdf ............................................................................................... 1036 

(1) 

CONFIRMATION HEARING ON THE 

NOMINATION OF HON. LORETTA E. LYNCH 

TO BE ATTORNEY GENERAL 

OF THE UNITED STATES 

WEDNESDAY, JANUARY 28, 2015, 

UNITED STATES SENATE, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC. 

The Committee met, pursuant to notice, at 10:03 a.m., in Room 

SH–216, Hart Senate Office Building, Hon. Charles E. Grassley, 

Chairman of the Committee, presiding. 

Present: Senators Grassley, Hatch, Sessions, Graham, Cornyn, 

Lee, Cruz, Flake, Vitter, Perdue, Tillis, Leahy, Feinstein, Schumer, 

Durbin, Whitehouse, Klobuchar, Franken, Coons, and Blumenthal. 

OPENING STATEMENT OF HON. CHARLES E. GRASSLEY, 

A U.S. SENATOR FROM THE STATE OF IOWA 

Chairman GRASSLEY. Good morning. I welcome everyone to this 

very, very important hearing. Before we start, I would like to state 

a few things. These are some ground rules, pretty much the same 

as what former Chairman and my friend Senator Leahy and others 

have stated in the past. 

I want everyone to be able to watch the hearing without obstruction. If people stand up and block the view of those behind them 

or speak out of turn, it is not fair or considerate to others. So officers would then remove those individuals. I know that there is a 

lot to protest regarding this administration’s policies, but this is 

not the time or place to do it. 

Before I turn to our opening statements, I want to go over a couple of housekeeping items and explain how we are going to proceed. 

Senator Leahy and I will give our opening statements. Then I will 

call on Senators Schumer and Gillibrand to introduce the nominee. 

Following Ms. Lynch’s opening remarks, we will begin with the 

first round of questions in which each Senator will have 10 minutes. After the first round, we are going to do 8-minute rounds of 

questions. I want everyone to know that I am prepared to stay here 

as long as Members have questions that they would like to ask. 

I think this is the most fair way to proceed both to the responsibilities of the Senate and Senators and, most importantly, to the 

nominee who has to sit here through all of this and answer our 

questions. And I think we all know that this is a very important 

position in the Cabinet, and we should do what we can to move it 
2 

along within our rules. We have a lot of ground that we want to 

cover in live questioning. 

One final note on scheduling. I would like to take a short break 

of maybe 45 minutes sometime around 12:30 or 1 o’clock, and I 

know that we have a series of stacked votes this afternoon in regard to, I think, 18 amendments we have to vote on. The plan right 

now is to keep this hearing going even though it may be a very 

chaotic way to do things and maybe not as respectful to the position of Attorney General as it ought to be, but I do not know how 

else to get through the process to get every question asked that 

wants to be asked. So I would ask that all of my colleagues remain 

very flexible and keep it going, and that means some accommodation by Members on my side of the aisle to chair when I cannot be 

here and am over there voting. 

With that, I am going to turn to my opening statement, then immediately go to Senator Leahy. 

Ms. Lynch, I have had a chance to talk to you privately on two 

occasions. I welcome you to the Senate Judiciary Committee. It is 

a very big day for you and especially for family and friends that 

are proud of you. I congratulate you on your nomination. 

You have already been confirmed by the Senate as U.S. Attorney, 

but the process involved to serve as the 83rd Attorney General is 

a bit more rigorous. For one thing, U.S. Attorneys do not even have 

hearings, let alone one like this. 

So my hope is that we discuss some of the most important matters facing our Nation, and in the process of doing that, then we 

will get to know you a bit better. The fact of the matter is this 

nomination comes at a pivotal time for the Department of Justice 

and for our country. And as I discuss some of those things, those 

are probably things you have had nothing to do with. But you have 

an opportunity to make some changes. 

The next Attorney General will face some very difficult challenges, from combating cybercrime, to protecting our children from 

exploitation, to helping fight the war on terror. 

But I am not just concerned about the tough decisions that come 

with the office. There are challenges facing the Department of Justice that go to the heart of our system of Government. 

How about restoring faith in the bedrock principles like respect 

for the rule of law and the fair and evenhanded application of those 

laws? 

How about restoring respect for the co-equal branches of Government? 

How about taking care that the law is faithfully executed and not 

rewriting it? 

How about the Department of Justice honoring, once again, its 

longstanding duty to vigorously defend our Nation’s laws—even 

when political appointees disagree with the policy? 

Then there is the Office of Legal Counsel. I am interested in returning that office to its rightful place as the impartial ‘‘crown 

jewel’’ of the Justice Department. Its opinions should be firmly 

rooted in the Constitution’s text, neutral interpretation of statutes, 

and sound judicial precedent. They should not be transparently 

self-serving attempts to justify whatever the President or an Attorney General wants to do for political reasons. 
3 

And let me say it right here: The Office of Legal Counsel should 

be sharing with the American public the opinions it is providing to 

the President, especially when they supposedly sanction the unprecedented authority he claims to possess. And I am going to work 

to see that it does. The public’s business ought to be public. 

Transparency, I believe, and, in fact, does bring accountability. 

These ideals and principles are foundational to the Republic. But 

ideals and principles are not simply academic, and they do not 

exist in a vacuum. 

Over the last few years, public confidence in the Department’s 

ability to do its job without regard to politics has been shaken, with 

good reason. 

It is not just Republicans who see the problem or who recognize 

it has real-world effects on our own fellow Americans. The Department’s own Inspector General listed as one of its top management 

challenges ‘‘Restoring Confidence in the Integrity, Fairness, and 

Accountability of the Department.’’ 

The IG cited several examples, including the Department falsely 

denying basic facts in the Fast and Furious controversy. The Inspector General concluded this ‘‘resulted in an erosion of trust in 

the Department.’’ In that fiasco, our Government knowingly allowed firearms to fall into the hands of international gun traffickers, and it led to the death of Border Patrol Agent Brian Terry. 

And then, after Congress called on the leadership of the Department to account for this foolish operation, what did they do? Did 

they apologize to the family and rush to uncover the truth? 

Quite the opposite. They denied, spun, and hid the facts from 

Congress and the American people. They bullied and intimidated 

whistleblowers, members of the press, and anyone who had the audacity to investigate and to uncover the truth. 

The Department has also failed to hold another Government 

agency accountable: the Internal Revenue Service. We watched 

with dismay as that powerful agency was weaponized and turned 

against individual citizens. And why? What exactly did these fellow 

citizens do to make their Government target them? They had the 

courage to get engaged and speak out in defense of faith, freedom, 

and our Constitution. And for that, they then were targeted by the 

IRS. 

What was the Justice Department’s reaction to the targeting of 

citizens based on political beliefs? Well, they appointed a campaign 

donor to lead an investigation that has not gone anywhere and 

called it then a day. That simply is not good enough. 

Meanwhile, the Department’s top litigator, the Nation’s Solicitor 

General, is arguing in case after case for breathtaking expansions 

of Federal power. 

I would like to have you consider this: Had the Department prevailed in just some of the arguments that it pressed before the Supreme Court in the last several years, there would be essentially 

no limit on what the Federal Government could order States to do 

as a condition of receiving Federal money. 

Another case, the Environmental Protection Agency could fine a 

homeowner $75,000 a day for not complying with an order and 

then turn around and deny that homeowner any right to challenge 

the order or those fines in court when the order is issued. 
4 

The Federal Government could review decisions by religious organizations regarding who can serve as a minister. 

The Federal Government could ban books that expressly advocate for the election or defeat of political candidates. And the 

Fourth Amendment would not have anything to say about the police attaching a GPS device to a citizen’s car without a warrant and 

constantly tracking their every movement for months and years. 

These positions are not mainstream, in my judgment. At the end 

of the day, the common thread that binds all these challenges together, in my judgment, is a Department of Justice that is very 

deeply politicized. But that is what happens when an Attorney 

General of the United States views himself—and these are his own 

words—as the President’s ‘‘wingman.’’ 

I do not expect Ms. Lynch and I will agree on every issue. But 

I for one need to be persuaded that she will be an independent Attorney General. And I have no reason to believe at this point she 

will not be. The Attorney General’s job is to represent the American people, not just the President and not just the executive 

branch. 

So today we will hear from Ms. Lynch. As far as I know, Ms. 

Lynch has nothing to do with the Department of Justice’s problems 

that I just outlined, but as a new Attorney General, she can fix 

them. 

Tomorrow we will hear from a second panel of witnesses, many 

of whom will speak directly to the many challenges facing the Justice Department. 

As I listen to both panels, I will be considering whether Ms. 

Lynch has what it takes to fix the Obama Justice Department. 

We need to get back then to first principles, and that starts with 

depoliticizing the Department of Justice, because the American 

people deserve better. So I hope Ms. Lynch can fix these flaws. 

Senator Leahy. 

OPENING STATEMENT OF HON. PATRICK J. LEAHY, 

A U.S. SENATOR FROM THE STATE OF VERMONT 

Senator LEAHY. Thank you. I will not speak as long because I 

just want to focus on Loretta Lynch and not on all the problems 

that some may see in this country. 

It is a pleasure to welcome her to this Committee. She is smart, 

she is tough, she is hard-working and independent. She is a prosecutor’s prosecutor, and her qualifications are beyond reproach. She 

has been unanimously confirmed by the Senate twice before to 

serve as the top Federal prosecutor based in Brooklyn, New York, 

and I hope we have another swift confirmation for Ms. Lynch. 

As U.S. Attorney for the Eastern District of New York, she has 

brought terrorists and cybercriminals to justice. She has obtained 

convictions against corrupt public officials from both political parties. She has fought tirelessly against violent crime and financial 

fraud. She has remained determined to protect the rights of victims. 

Ms. Lynch has worked hard to improve the relationships between 

law enforcement and the communities they serve, and that is probably one of the reasons why her nomination enjoys strong support 

from both. She has prosecuted those who have committed crimes 
5 

against police officers, as well as police officers who have committed crimes. Her record shows that, as Attorney General, Ms. 

Lynch will effectively, fairly, and independently enforce the law. 

I hope we all remember that she is the nominee for Attorney 

General, and that is why I am focusing on her. She was born in 

North Carolina, the daughter of a Baptist preacher and a school librarian, and we are honored to have members of her family here 

with us today. And I know you will be introducing them later. 

She grew up hearing her family speak about living in the Jim 

Crow South, but she never lost faith that the way to obtain justice 

is through our legal system. And her nomination is historic. When 

she is confirmed as the 83rd Attorney General of the United States, 

she will be the first African-American woman to lead the Department of Justice. 

Really, I cannot think of anyone more deserving of that honor. 

She is going to lead a Justice Department that faces complex 

challenges. Nearly one-third of its budget goes to the Bureau of 

Prisons, and that drains vital resources from nearly all other public 

safety priorities. Think of that. A third of the budget goes to prisons. 

A significant factor leading to this budget imbalance is the unnecessary creation of more and more mandatory minimum sentences. Passing new mandatory minimum laws has become a convenient way for lawmakers to claim that they are tough on crime— 

even when there is no evidence that these sentences keep us safer. 

And it is one of the reasons why we have the largest prison population in the world. It is why I oppose mandatory minimums. I 

hope we can find a way to face this mass incarceration problem. 

And the Justice Department needs strong leadership to keep up 

with the rapid development of technology. We must stay ahead of 

the curve to prevent and fight threats to cybersecurity and data 

privacy. Think what it would have been like the last few days in 

the Northeast if a cyberterrorist could have closed down all of our 

electrical grids. 

The growing threat of cybercrime is very real, but so is the specter of unchecked Government intrusion into our private lives, particularly dragnet surveillance programs directed at American citizens. The intelligence community faces a critical deadline this June 

when three sections of the Foreign Intelligence Surveillance Act are 

set to expire. 

I believe we have to protect our national security, but we also 

have to protect our civil liberties which make us unique as a country. So we have to reform our Nation’s surveillance laws so we can 

realize both goals. 

The next Attorney General is going to play an essential role in 

protecting all Americans. All Americans. The President’s selection 

for Attorney General, no matter who the President is, deserves to 

be considered swiftly, fairly, and on the nominee’s own record. I believe Americans realize that a role this important cannot be used 

as just one more sound bite, a Washington political football. I am 

confident that if we stay focused on Ms. Lynch’s impeccable qualifications and fierce independence, she is going to be confirmed 

quickly by the Senate. She deserves a fair, thoughtful, and respectful confirmation process. And the American people deserve an At-
6 

torney General like Ms. Lynch. So I thank you for your years of 

public service. I look forward to your testimony. 

[The prepared statement of Senator Leahy appears as a submission for the record.] 

Chairman GRASSLEY. For those of you who are new to a hearing, 

it is tradition that Senators from the home State introduce nominees from their State. So I am now going to call on Senator Schumer and then Senator Gillibrand, the Senators from New York, to 

do that. And since we are under such a tight schedule, if I could 

ask you to keep it to 5 minutes, it would be very nice. Thank you. 

PRESENTATION OF LORETTA E. LYNCH, NOMINEE TO BE 

ATTORNEY GENERAL OF THE UNITED STATES, BY 

HON. CHARLES E. SCHUMER, A U.S. SENATOR FROM THE 

STATE OF NEW YORK 

Senator SCHUMER. Thank you, Mr. Chairman. I want to thank 

you and Ranking Member Leahy and the Members of the Committee. It is my great privilege to introduce Loretta Lynch, a proud 

New Yorker and the nominee to be the next Attorney General of 

the United States. 

Born in North Carolina, her father was a fourth-generation Baptist minister, a man who grew up in the segregated South, and her 

mother picked cotton when she was a girl so her daughter would 

never have to. 

Well, their daughter grew up to be one of the keenest legal minds 

our country has to offer, someone who has excelled at every stage 

of her education and her career, while cultivating a reputation as 

someone who is level-headed, fair, judicious, and eminently likable. 

If there is an American dream story, Ms. Lynch is it. And adding 

to the American dream story, Ms. Lynch’s late brother Lorenzo was 

a Navy SEAL. 

Still, despite her intellectual and career achievements, Ms. Lynch 

has always been a nose-to-the-grindstone type, rarely seeking acclaim, only a job well done. She has earned a reputation for keeping her head down and avoiding the spotlight. Just like me. 

[Laughter.] 

Senator SCHUMER. At just over 5 foot and with her consistent understated approach to the public spotlight, some might underestimate Ms. Lynch. But as hundreds of criminals have learned the 

hard way, looks can be deceiving, and Ms. Lynch packs a powerful 

punch. 

When you look at the breadth and depth of the cases she has 

handled, it is clear Loretta Lynch is law enforcement’s renaissance 

woman. One I would mention: the Abner Louima case, where she 

convicted police officers who horribly abused a Haitian immigrant. 

As we have seen, these types of cases can create great tension 

between the police and the community. But despite the high-running emotions that accompanied this notorious case, Ms. Lynch 

was praised by lawyers on both sides, as well as community leaders 

and police officials, for her judicious, balanced, and careful approach. 

Mr. Chairman, Members of this Committee, in this age of global 

terrorism, the AG’s role in national security has never been more 
7 

important. It makes apparent that the confirmation of a new Attorney General cannot and should not be delayed any longer. 

Today we have already heard and will hear a lot more about 

issues completely unrelated to Ms. Lynch’s experience and her 

qualifications. If anything, that just goes to show how qualified she 

is. No one can assail Loretta Lynch, and no one has, who she is, 

what she has done, and how good an Attorney General she would 

be. So instead some are trying to drag extraneous issues—Executive orders on immigration, the IRS—into the fray to challenge her 

nomination because they cannot find anything in her record to 

point to. 

Let me be clear: Attempts to politicize this nomination, to turn 

this exceptional nominee into a political point-scoring exercise, are 

a disservice to the qualified candidate we have before us today. 

I originally recommended Loretta Lynch for the position of U.S. 

Attorney in 1999 because I thought she was excellent. Sure 

enough, she was. When President Bush took office, she went to the 

private sector to earn some money. 

But when I had the opportunity to recommend a candidate to 

President Obama, I was certain I wanted Ms. Lynch to serve again. 

So I called her on a Friday afternoon. She was happy with her life 

in the law firm. But I was confident that, with the weekend to 

think it over, she would be drawn to answer the call to public service. And sure enough, her commitment to public service was so 

strong that she called me back on Monday to say yes. 

She passed unanimously out of the Senate twice already. 

Wouldn’t it be nice if we could pass her unanimously out of the 

Senate a third time? Based on her record, we should. Mr. President, if we cannot confirm Loretta Lynch, then I do not believe we 

can confirm anyone. And I would like to remind my colleagues that 

the President’s immigration policies are not seeking confirmation 

today. Loretta Lynch is. 

When we move to vote, hopefully sooner rather than later, you 

will not be voting for or against the President’s policies. You will 

be voting on this eminently qualified law enforcement professional, 

first-rate legal mind, and someone who is committed in her bones 

to the equal application of justice for all people. 

Thank you, Mr. Chairman. 

Chairman GRASSLEY. Thank you, Senator Schumer. 

Senator Gillibrand. 

PRESENTATION OF LORETTA E. LYNCH, NOMINEE TO BE 

ATTORNEY GENERAL OF THE UNITED STATES, BY 

HON. KIRSTEN E. GILLIBRAND, A U.S. SENATOR FROM THE 

STATE OF NEW YORK 

Senator GILLIBRAND. Thank you, Mr. Chairman and Ranking 

Member Leahy. I am honored to be here today with Senator Schumer to introduce United States Attorney for the Eastern District of 

New York, Loretta Lynch, as President Obama’s nominee to serve 

as the next Attorney General of the United States. 

To serve as United States Attorney General requires deep experience in the field of law. It also requires a brilliant intellect, and 

it requires a steady moral compass. 
8 

I met with Ms. Lynch 2 months ago, and I can tell you she meets 

all of those criteria. She is strong, tough, independent, and fearless, 

and as one of our country’s most accomplished and distinguished 

women serving in law enforcement, I urge my colleagues to support 

her nomination. 

She is an outstanding candidate for this job. Ms. Lynch began 

her service as the U.S. Attorney for the Eastern District of New 

York in 1990 where she rose quickly to serve as Chief of the Long 

Island Office and then Deputy Chief of General Crimes, and Chief 

of Intake and Arraignments. For 15 years, she has been a prosecutor in the U.S. Attorney’s Office for the Eastern District of New 

York, and since 2010, she has served admirably as the United 

States Attorney for the Eastern District of New York. In that position, she has demonstrated a superior sense of judgment and remarkable legal expertise. 

Ms. Lynch has dealt with an impressive array of cases on subjects ranging from civil rights to organized crime to terrorism. 

These are each issues that our new Attorney General will have to 

engage with constantly from Day 1 of her tenure. 

Ms. Lynch’s experience as a Federal prosecutor in New York will 

undoubtedly serve her exceptionally well in Washington. She is extraordinarily well qualified, and I believe she deserves a quick confirmation process. 

Thank you, Mr. Chairman. 

Chairman GRASSLEY. Thank you, Senator Gillibrand. 

[Pause.] 

Chairman GRASSLEY. Before you seat yourself, would you take an 

oath, please? Would you raise your hand? And I will give the oath. 

Do you affirm that the testimony you are about to give before the 

Committee will be the truth, the whole truth, and nothing but the 

truth, so help you God? 

Ms. LYNCH. I do. 

Chairman GRASSLEY. Thank you. 

The Committee welcomes you, and I know that it is an honor for 

all of us to have you before us. But it is also an honor for you to 

be selected by the President, and it is quite an honor for your family. So I would ask, before you make your statement, if you would 

like to introduce anybody to the Committee and speak about them 

any way you want to. 

And then if there are people that are not introduced by you that 

you would like to have their name in the record and you would 

submit their names, I would be glad to include that in the record. 

So would you proceed as you choose? 

Senator LEAHY. Turn your microphone on. 

Chairman GRASSLEY. Yes, I think the microphone is not automatic. 

STATEMENT OF HON. LORETTA E. LYNCH, NOMINEE 

TO BE ATTORNEY GENERAL OF THE UNITED STATES 

Ms. LYNCH. Thank you, Senator. Let me introduce for the record: 

I am delighted to welcome numerous family and friends here with 

me today. 
9 

I would like to introduce, first and foremost, my father, the 

source of my inspiration in so many ways. He is to my immediate 

left, the Reverend Lorenzo Lynch. 

Immediately to his left is my husband, Stephen Hargrove, who 

has supported me in all of my endeavors, no matter how poor they 

make us. 

[Laughter.] 

Ms. LYNCH. Immediately to his left is my younger brother, the 

Reverend Leonzo Lynch, who is the fifth generation of ministers in 

a direct line in my family; and my sister-in-law, NiCole Lynch. 

I am also here with several other family members and friends 

whom I would love to introduce, but I am informed that you have 

a schedule for the afternoon, so I will keep to that. But let me say 

to all of them how tremendously gratified I am for their support, 

not just today but over the years. 

Chairman Grassley, Senator Leahy, distinguished Members of 

this Committee, I am honored to appear before you in this historic 

chamber, among so many dedicated public servants. 

I want to thank you for your time this morning, and I also want 

to thank President Obama for the trust he has placed in me by 

nominating me to serve as Attorney General of the United States. 

It is a particular privilege to be joined here today by members 

of my family that I have introduced, as well as the other numerous 

family and friends who have come to support me and for whose 

travel and service I am so appreciative. 

Mr. Chairman, one of the privileges and, in fact, one of my favorite things in my position as United States Attorney for the Eastern 

District of New York is welcoming new attorneys into my office and 

administering to them the oath of office. It is a transformative moment in the life of a young prosecutor and one that I actually remember well. 

And as they stand before me, prepared to pledge their honor and 

their integrity, I remind them that they are making their oath not 

to me, not to the office, not even to the Attorney General, but to 

our Constitution, the fundamental foundation for all that we do. It 

is to that document and the ideals embodied therein that I have 

devoted my professional life. And, Senators, if confirmed as Attorney General, I pledge to you today and to the American people that 

the Constitution, the bedrock of our system of justice, will be my 

lodestar as I exercise the power and the responsibility of that position. 

I owe so much to those who have worked to make the promise 

of that document real for all Americans, beginning with my own 

family. All of them—and so many others—have supported me on 

the path that has brought me to this moment, not only through 

their unwavering love and support, which is so beautifully on display today, but through their examples and the values that have 

shaped my upbringing. 

My mother, Lorine, who was unable to travel here today, is a retired English teacher and librarian for whom education was the 

key to a better life. She still recalls people in her rural North Carolina community pressing a dime or a quarter into her hands to help 

support her college education. As a young woman, she refused to 

use segregated restrooms because they did not represent the Amer-
10 

ica in which she believed. She instilled in me an abiding love of literature and learning and taught me the value of hard work and 

sacrifice. 

My father, Lorenzo, who is here with me today, is a fourth-generation Baptist preacher who in the early 1960s opened his Greensboro church to those planning sit-ins and marches, standing with 

them while carrying me on his shoulders. He has always matched 

his principles with his actions—encouraging me to think for myself, 

but reminding me that we all gain the most when we act in service 

to others. 

It was the values my parents instilled in me that led me to the 

Eastern District of New York, and from my parents I gained the 

tenacity and resolve to take on violent criminals, to confront political corruption, and to disrupt organized crime. They also gave me 

the insight and the compassion to sit with the victims of crime and 

share their loss. Their values have sustained me as I have twice 

had the privilege—indeed, the honor—of serving as United States 

Attorney, leading an exceptional office staffed by outstanding public servants, and their values guide and motivate me even today. 

Senators, should I be confirmed as Attorney General, my highest 

priorities will continue to be to ensure the safety of all of our citizens, to protect the most vulnerable among us from crime and 

abuse, and to strengthen the vital relationships between America’s 

brave law enforcement officers and the communities they are entrusted to serve. 

In a world of complex and evolving threats, protecting the American people from terrorism must remain the primary mission of today’s Department of Justice. 

If confirmed, I will work with colleagues across the executive 

branch to use every available tool to continue disrupting the catastrophic attacks planned against our homeland and to bring terrorists to justice. 

I will draw upon my extensive experience in the Eastern District 

of New York, which has tried more terrorism cases since 9/11 than 

any other office. We have investigated and prosecuted terrorist individuals and groups that threaten our Nation and its people, including those who have plotted to attack New York City’s subway 

system, John F. Kennedy Airport, the Federal Reserve Bank of 

New York, and U.S. troops stationed abroad, as well as those who 

have provided material support to foreign terrorist organizations. 

And I pledge to discharge my duties always mindful of the need 

to protect not just American citizens, but American values. 

If confirmed, I intend to expand and enhance our capabilities in 

order to effectively prevent ever-evolving attacks in cyberspace, to 

expose those wrongdoers and bring those perpetrators to justice as 

well. 

In my current position I am proud to lead an office that has significant experience prosecuting complex, international cybercrime 

including high-tech intrusions at key financial and public sector institutions. If I am confirmed, I will continue to use the combined 

skills and experience of our law enforcement partners, the Department’s criminal and national security divisions, and the United 

State’s Attorney community to defeat and hold accountable those 

who would imperil the safety and security of our citizens through 
11 

cybercrime. I will also do everything I can to ensure that we are 

safeguarding the most vulnerable among us. 

During my tenure as U.S. Attorney, the Eastern District of New 

York has led the prosecution against financial fraudsters who have 

callously targeted hard-working Americans—including the deaf and 

elderly—and stolen not just their trust, but their hard-earned savings. We have taken action against abusers in over 100 child exploitation and child pornography cases and we have prosecuted 

brutal international human trafficking rings that have sold—sold 

victims as young as 14 and 15 into sexual slavery. 

If confirmed as Attorney General, I will continue to build upon 

the Department’s record of vigorously prosecuting those who prey 

on those most in need of our protection, and I will continue to provide strong and effective assistance to survivors, who we must both 

support and empower. 

Senators, throughout my career as a prosecutor, it has been my 

signal honor to work hand-in-hand with dedicated law enforcement 

officers and agents who risk their lives every day in the protection 

of the communities we all serve. I have served with them. I have 

learned from them. I am a better prosecutor because of them. 

Few things have pained me more than the recent reports of tension and division between law enforcement and the communities 

we serve. 

If confirmed as Attorney General, one of my key priorities would 

be to work to strengthen the vital relationships between our courageous law enforcement personnel and all of the communities we 

serve. 

In my career, I have seen this relationship flourish. 

I have seen law enforcement forge unbreakable bonds with community residents and I have seen violence-ravaged communities 

come together to honor officers who have risked all to protect them. 

And as Attorney General, I will draw all voices into this important 

discussion. 

In that same spirit, I look forward to fostering a new and improved relationship with this Committee, the United States Senate, 

and the entire United States Congress—a relationship based on 

mutual respect and constitutional balance. Ultimately, I know we 

all share the same goal and commitment to protect and to serve the 

American people. 

Now, I recognize that we face many challenges in the years 

ahead, but I have seen in my own life and in my own family how 

dedicated men and women can answer the call to achieve great 

things for themselves, for their country, and for generations to 

come. 

My father, that young minister who carried me on his shoulders, 

has answered that call, as has my mother, that courageous young 

teacher who refused to let Jim Crow define her. Standing with 

them are my uncles and cousins who served in Vietnam, one of 

whom is here to support me today, and my older brother, a Navy 

SEAL, all of whom answered that call with their service to our 

country. 

Senators, as I come before you today in this historic chamber, I 

still stand on my father’s shoulders, as well as on the shoulders of 

all of those who have gone before me and who dreamed of making 
12 

the promise of America a reality for all, and worked to achieve that 

goal. 

I believe in the promise of America, because I have lived the 

promise of America. And if confirmed to be Attorney General of the 

United States, I pledge to all of you and the American people that 

I will fulfill my responsibilities with integrity and independence. I 

will never forget that I serve the American people from all walks 

of life who continue to make our Nation great, as well as the legacy 

of all of those whose sacrifices have made us free. 

And I will always strive to uphold the trust that has been placed 

in me to protect and defend our Constitution, to safeguard our people, and to stand as the leader and public servant that they deserve. 

Thank you all once again for your time and your consideration. 

I greatly appreciate this opportunity to speak with you today. I 

look forward to your questions and to all that we may accomplish 

in the days ahead together in the spirit of cooperation, shared responsibility and justice. 

Thank you for your time today. 

Chairman GRASSLEY. And thank you, Ms. Lynch, for that statement. 

Before my 10 minutes starts for the first round, I would like to 

talk to my colleagues just a minute, because of the 18 votes that 

are coming up this afternoon and because of the chaotic situation, 

and the more important thing is getting this hearing over in one 

sitting—in one day, even if it goes into the evening. 

I hope my colleagues will be cognizant of what we normally do. 

Between Senator Leahy and I, we are fairly liberal on letting people go over, and whether we have five-, seven- or 10-minute rounds 

in any hearing, my practice is generally if you have got one second 

left, you can ask a question. But this time, I would prefer that you 

kind of stick to the 10 minutes. And I am not very good at gaveling 

people down, so take care of my timidity, will you please? 

[Laughter.] 

Chairman GRASSLEY. Now again, before the first 10 minutes 

starts, I would like to make something clear, just for myself—I cannot speak for my colleagues—and it takes on two things. One, what 

you said about you wanted to improve relationships with the Committee and with Congress. I—we welcome that very much, and that 

will be very, very helpful, particularly in regard to our responsibilities of oversight. 

Secondly, taking off on something Senator Schumer said, and 

just speaking for myself, if I use this subject or that subject or another as a basis of maybe questioning what the President or an Attorney General’s done, I want it clear that that is not the issue for 

me now. The issue is whether or not the Constitution or the laws 

have been violated or whether the Justice Department has acted in 

an appropriate way. 

So now I would start with my questions. 

On November the 20th last year, President Obama announced 

that he would defer deportation of millions of individuals in the 

country undocumented. Not only is this action contrary to our laws, 

it is a dangerous abuse of Executive authority. 
13 

If you are confirmed as the next Attorney General, before you 

take office, you will take an oath. You will raise your right hand 

and swear ‘‘to support and defend the Constitution of the United 

States and to bear true faith and allegiance to the same.’’ Your 

duty as Attorney General is not to defend the President and his 

policies; your duty is your oath, to defend the Constitution. 

So my first question, with that oath in mind, I ask you, do you 

believe that the President has the legal authority to unilaterally 

defer deportations in a blanket manner for millions of individuals 

in the country illegally and grant them permits and other benefits, 

regardless of what the U.S. Constitution or—immigrations laws 

say? 

Ms. LYNCH. Thank you for the question, Senator, and you raise 

a very important issue of how we manage the issue of undocumented immigrants here in our country, while still welcoming 

those who bring such great value to our shores, to our business 

community and to our culture. 

Certainly I was not involved in the decisions that led to the Executive actions that you reference, and I am not aware of, at this 

point, how the Department of Homeland Security has set forth regulations to actually implement that, so I cannot comment on the 

particulars of what will happen. 

I have had occasion to look at the Office of Legal Counsel opinion 

through which the Department of Homeland Security sought legal 

guidance there, as well as some of the letters from constitutional 

scholars who have looked at the similar issue. And certainly it 

seems to be a reasonable discussion of legal precedent, the relevant 

statute, congressional actions, along with the enforcement discretion of the agency, and I do not see any reason to doubt the reasonableness of those views. 

I do think, however, that the ultimate responsibility of the Department of Justice is to always, when presented with issues by the 

White House or any agency, to review those issues carefully, to 

apply the relevant law and make a determination as to whether or 

not there is a legal framework that supports the requested action. 

And I found it interesting, as I was reading the legal counsel 

opinion, that some of the proposals that were—that were set forth 

and asked about, the Office of Legal Counsel opined did not in fact 

have a legal framework, and I do not believe that those were actually implemented. 

So I do think it is very important that as the Department of Justice, through any of its agencies, be it the Office of Legal Counsel 

or in a direct conversation with the President or any other member 

of the Cabinet, always ensure that they are operating from a position of whether or not there is a legal framework that supports the 

requested action. And the advice provided must be thorough, it 

must be objective, and it must be completely independent. 

Chairman GRASSLEY. Let me take off on one word you used, ‘‘discretion,’’ and I presume that may have applied to prosecutorial discretion that was part of the President’s rationale. 

If this is lawfully exercised on an individual basis, depending on 

the facts of a specific case, it is in fact case-by-case. So this is not 

so much a philosophical question as a practical thing. 
14 

What it does not allow anybody to do is tell whole categories of 

people that the law will not apply to them going forward. No one 

seriously disputes these broad principles; even the Office of Legal 

Counsel opinion on the President’s Executive action accepts them. 

So let me ask you this. What are the outer limits of the doctrine 

of prosecutorial discretion, and why don’t the President’s actions 

exceed those boundaries? When we are talking about millions of 

people, how does this action realistically allow for a case-by-case 

exercise of discretion? 

Ms. LYNCH. Senator, as I reviewed the opinion and looked at the 

issues presented therein from the perspective of my career as a 

prosecutor and as a United States Attorney, and applying those 

principles of the exercise of discretion, I viewed it as a way in 

which the Department of Homeland Security was seeking legal 

guidance on the most effective way to prioritize the removal of 

large numbers of individuals, given that the resources would not 

permit removal of everyone who fell within the respective category. 

And that certainly was the framework from which I viewed that. 

And looking at it from that perspective, the Department of Homeland Security’s request and suggestion that they in fact prioritize 

the removal of the most dangerous of the undocumented immigrants among us—those who have criminal records, those who are 

involved in national security and terrorism, those who are involved 

in gang activity, violent crime, along with, I believe, people who 

have recently entered and could pose a threat to our system— 

seemed to be a reasonable way to marshal limited resources to deal 

with the problem. 

As a prosecutor, however, I have had experience, obviously, in 

doing similar things and finding the best way to attack a serious 

problem with limited resources. But as a prosecutor, I always want 

the ability to still take some sort of action against those who may 

not be in my initial category as the most serious threat. And I did 

not see anything in the opinion that prevented action being taken 

against individuals who might otherwise qualify for the deferral. 

Again, I am not aware of how the Department will actually go 

forward and implement by regulation this matter. I have not had 

the occasion to study that, and I do not know in fact if those are 

out. 

Certainly, if I am confirmed as Attorney General, I look forward 

to learning more about that process and making sure that we are 

using all of our resources to protect the American people, particularly against the dangerous offenders who rightfully stand at the 

top of the removal list. 

Chairman GRASSLEY. Yes. Well, I think you are telling me that 

you can do it for a few thousand or a few tens of thousands of people that maybe have committed a crime or something, but it seems 

to me to be—common sense would dictate that it is impossible to 

do prosecutorial discretion the way it has traditionally been done 

on an individual basis for the millions that are left over. 

Let us move on. I would like to move away from the President’s 

refusal to enforce the law and talk a little bit about this administration’s failure to apply the law in an evenhanded way. 

According to the—this goes to the IRS. According to the Treasury 

Department Inspector General—now, that is not me, the Inspector 
15 

General—the IRS used inappropriate criteria to deny tax-exempt 

status to predominantly conservative organizations, asked unnecessary questions and lastly, slowed approval of their application. 

Initially, President Obama remarked that any IRS actions to target conservatives would be ‘‘outrageous.’’ Then last February the 

President said there was not ‘‘even a smidgeon of corruption’’ in 

what occurred at the IRS. ‘‘A smidgeon of corruption.’’ 

Yet a few months later, in June, the director of the FBI, Director 

Comey, testified before the House Judiciary Committee that there 

was a ‘‘very active’’ ongoing criminal investigation into the matter. 

So this brings me to these questions. 

I would like to know how to reconcile these two statements. If 

what the President said was accurate, then why in the world would 

the FBI be conducting an ongoing criminal investigation? A rhetorical question: Would the FBI investigation be just for show? I 

would like—I am going to take Director Comey at his word. 

So if there is an ongoing criminal investigation at the FBI, then 

how could it be possible—be appropriate for the President to reach 

a conclusion about the facts before Director Comey? 

Ms. LYNCH. Thank you, sir, and let me state at the outset that 

with regards to the actions of any of the agencies of our Government, there is certainly no place for bias or favoritism or anything 

other than the evenhanded application of the relevant laws and 

regulations. And certainly that has always been my goal as a prosecutor, and would be my continued goal should I be confirmed. 

With respect to the IRS investigation, I am generally aware that 

there is an investigation going on, but it is not a matter that is either being conducted by my office or that I have been briefed on 

as United States Attorney. So I am not able to comment on the status now, except state that I do—— 

Chairman GRASSLEY. Based on what you just said, then, I can 

shorten this up by asking you this question. You have spent a career in law enforcement. When would it ever be appropriate for any 

President to know the results of a criminal investigation and then 

comment on it publicly while the investigation is still ongoing? 

Ms. LYNCH. Senator, it—with respect to this investigation or any 

other, I am not aware of the context or the basis for the President’s 

remarks, so I am not able to determine whether or not they were 

in fact done after any evaluation of the investigation or whether 

they were a matter of opinion. So I am not able to comment on that 

specific remark. 

Certainly, as part of the Department of Justice’s exercise of its 

powers, whether at the United States Attorney level or here in 

Washington, investigations are handled independently and without 

provision of materials or information about them—before their conclusion—to others in the executive branch or other agencies. 

Chairman GRASSLEY. Senator Leahy. Thank you very much. 

Senator LEAHY. Thank you, Mr. Chairman. 

You know, I have been fortunate that my native State of 

Vermont has allowed me to serve here for four decades. I have listened in several different Committees I have been on to a lot of 

statements by nominees. I cannot think of one that is so moving 

as your statement, and I intend to make sure I have some copies 

for all members of my family and other friends. 
16 

You know, my years in law enforcement as State’s Attorney in 

Vermont gave me a lot of respect for the difficult and dangerous 

work we ask police officers to do every day. I know the toll it can 

take, not only on the officers, but oftentimes on their families. 

Ms. LYNCH. Yes. 

Senator LEAHY. I have tried to support the work of law enforcement to keep our communities safe. They have to have the resources they need, whether it is bulletproof vests or funding for innovative criminal justice efforts. 

I have also been deeply moved by the tragic events in Ferguson 

and New York. They have focused on what we know is a reality— 

strained relations between law enforcement and the communities 

they serve. I appreciate your reference to that in your statement. 

But you have worked very hard as a U.S. Attorney to bring both 

law enforcement and the communities together. Could you elaborate on that a little bit more? 

Ms. LYNCH. Yes, thank you, Senator. I think you have raised one 

of the most important issues facing our country today, which is the 

need to resolve the tensions that appear to be discussed and appear 

to be rising between law enforcement and the communities that we 

serve. In my experience as a prosecutor and United States Attorney, these tensions are best dealt with by having discussions between all parties so that everyone feels that their voice has been 

heard. 

With respect to our brave law enforcement officers, we ask so 

much of them. We ask them to keep us safe; we ask them to protect us, literally, from ourselves, and we ask them to do it often 

without the resources that they need to be safe and secure themselves. Yet they still stand up every day and risk their lives for us. 

Many of our community residents, because of a host of factors, 

feel disconnected from government in general today, and when they 

interact with law enforcement, transfer that feeling to them as 

well, even if someone is there to help. What I have found most effective is getting people together and simply listening to their concerns, being open, helping them see that in fact we are all in this 

together and that the concerns of law enforcement, a safe society, 

a free society, are the exact same concerns of every resident of 

every community there. 

Senator LEAHY. And would you agree that that is something that 

has to be considered by not only Federal law enforcement, but by 

State and local law enforcement, and that the Federal Government 

can help the State and local law enforcement in that respect? 

Ms. LYNCH. Absolutely, Senator. One of the most important roles 

that the Department of Justice plays is not necessarily its most 

visible role, but it is the support that we provide to State and local 

law enforcement partners through our grant program and through 

our training program. We try our best to provide them with the resources that they need to carry out their jobs safely and effectively. 

Senator LEAHY. You know, we all know that no prosecutor’s office 

has the resources to prosecute every single crime before it, and you 

have to decide which ones have priority. Let me talk about one. 

In State court, there is a case where a child rapist would receive 

two years. You obviously disagree with that. 
17 

You have brought Federal charges. And I think Bill O’Reilly on 

Fox called you a hero and said, ‘‘You should be respected by all 

Americans for standing up to gross injustice,’’ and I agree. I agree 

with Bill O’Reilly on that. 

More and more of the Justice Department’s budget, as I said earlier, is going into our Federal prison system, so you have limited 

resources. How do you make these kind of judgments? How do you 

determine which cases are the important ones? A very difficult 

thing, realizing if you go after certain cases, it means you do not 

have the resources to go after others. 

Ms. LYNCH. Certainly, Senator. One of the privileges of being the 

U.S. Attorney for the Eastern District of New York has been the 

ability to work with so many of my United States Attorney colleagues across the country. 

All of us engage in this process every day, and we start with a 

full and frank evaluation, with our law enforcement partners, of 

the crime issues facing our particular districts. We try and determine what are the greatest threats to the people that we have 

sworn to serve. 

And that is what I do in the Eastern District of New York every 

day. We then look at our resources and set priorities and goals to 

achieve the safest communities that we can. 

But Senator, we do have to always, always maintain the flexibility to look at specific cases such as the Goodman case and determine if a Federal interest exists and if, in fact, a victim has not 

been protected and has not been heard, and use Federal resources 

there as well. 

Senator LEAHY. Well, let me go into one that takes resources— 

we have had some people say to actually go get terrorists and lock 

them up in Guantanamo, even though we know what that has cost 

the American people, both in respect abroad and in dollars. 

You have successfully prosecuted a number of terrorism cases in 

the Eastern District of New York, cases against individuals—plotting against John F. Kennedy Airport, the Federal Reserve Bank, 

and so on. 

Just this month, you charged two Al-Qaeda members for attacking American troops in Afghanistan and Iraq. I was impressed, not 

only in your district, but in other parts of the country, where we 

have actually brought these terrorists to trial in our Federal courts. 

We have shown the rest of the world we can do it. There have been 

convictions, Osama bin Laden’s son-in-law being one, and then they 

have been locked up. 

Now, do you find the criminal justice system—I think I know 

your answer—an important terrorism tool? 

Ms. LYNCH. Senator, it is certainly an important counterterrorism tool in the arsenal of tools that we have to deal with this 

ever-growing and ever-evolving threat. Let me say, at the outset, 

my view is that if terrorists threaten American citizens here or 

abroad, they will face American justice. 

We work with our counterparts throughout the executive branch 

to determine, based on every case, the most appropriate venue for 

bringing terrorists to justice, as our primary goal is to incapacitate 

them and prevent further destruction. 
18 

Certainly within my own career as U.S. Attorney when cases— 

when the decision has been made that the case should be handled 

by a U.S. Attorney’s Office, we proceed in that fashion. 

We also work closely, however, with the Office of Military Commissions and consult with them and share information to make 

those decisions as to what is in fact the best way to manage every 

case. 

Senator LEAHY. I want to ask you a question I have asked each 

of the previous Attorney General nominees, and I say this because 

I think of the tremendous effort of the Senator from California, 

Senator Feinstein, who is sitting here—her tremendous efforts to 

confront acts of torture carried out in our country’s name. 

Do you agree that waterboarding is torture and that it is illegal? 

Ms. LYNCH. Waterboarding is torture, Senator. 

Senator LEAHY. And thus illegal? 

Ms. LYNCH. And thus illegal. 

Senator LEAHY. Thank you. 

And I know you are going to be asked a lot about immigration. 

Well, it makes me think we should be focusing on your qualifications for this job. Asking those questions might also speak to some 

of the qualifications of Congress. 

We worked for months in this Committee, night and day, hundreds of hours, hearings, markups, debate, and we passed, by a 

strong bipartisan majority, an immigration bill that referenced so 

many of these things that we now hear discussed. 

In my opinion, there were votes enough to pass it in the House 

of Representatives, but their leadership decided not to bring it up. 

I think that was a mistake. So now we deal with the question of 

Executive action. 

You did not write the Executive action; you were not consulted 

about it, were you? 

Ms. LYNCH. No, I was not aware of it until it was rendered. 

Senator LEAHY. And would you say, if you have got millions of 

people in this country who may not be in a valid or legal status, 

it would perhaps strain our resources to think about how we would 

deport 10 to 12 million people? 

Would that be a fair statement? 

Ms. LYNCH. I believe that statement is fair, sir. 

Senator LEAHY. Thank you. 

Thank you, Mr. Chairman. 

Chairman GRASSLEY. Senator Hatch is the next one, but I wanted to inform all the Committee Members that since everybody on 

the Committee was here at the fall of the gavel, it will be done on 

a seniority basis, as opposed to first-come, first-served basis. 

Senator Hatch is next. 

Senator HATCH. Well, thank you, Mr. Chairman. I appreciate it. 

Ms. Lynch, welcome to the Judiciary Committee. 

Ms. LYNCH. Thank you. 

Senator HATCH. I appreciate the service you have given in this 

country, and I am impressed with your qualifications, and I hope 

I can support your nomination. 

It is important to hear what you understand your role and duty 

will be. Do you agree that when the constitutionality of a law is 
19 

challenged, the Attorney General has a duty to defend that law if 

reasonable arguments can be made? 

Ms. LYNCH. Senator, I believe that one of the first and foremost 

duties of the Department of Justice is to defend the laws as passed 

by this body. 

Senator HATCH. All right. Now, I would like you to answer these 

questions. I am trying to get through a number of them. I think 

you can answer most of them yes or no, if you can. 

If you are confirmed, will you commit to enforce and defend the 

laws and the Constitution of the United States, regardless of your 

personal and philosophical views on—any matter? 

Ms. LYNCH. Absolutely, sir. 

Senator HATCH. Thank you. I am glad you said that. 

Attorney General Holder answered that same question in the 

same way. The Justice Department had made reasonable arguments that the Defense of Marriage Act is constitutional, but then 

the Attorney General chose to stop making those arguments because of his personal views. And by breaking his promise, he cast 

doubt about others who make the same commitment as you did 

today. 

Now, I do not doubt your sincerity. We have met together, and 

I have a high opinion of you. But is there any more assurance that 

you can give us on something like that? 

Ms. LYNCH. Senator, it is my view that when it comes to the position of the Attorney General and the role of the Department of 

Justice in defending the statutes as passed by this Congress, the 

issue is not my personal view or any issue of bias or policy, even. 

But it is the duty and responsibility of the Department of Justice 

to defend those statutes. 

Certainly, as we have seen, there may be rare instances where— 

and again, I was not involved in those—in that analysis, but there 

may be certain circumstances where careful legal analysis raises 

constitutional issues. 

Senator HATCH. But they would be rare—— 

Ms. LYNCH. Those would be few and far between. 

I also think that, should we reach that point, if there is a matter, 

it is a matter that I would prefer to have discussion about. 

Senator HATCH. Okay. I appreciate that answer. 

I am concerned that the administration has exceeded its lawful 

authority in several ways in an effort to avoid working with us up 

here in Congress. Now, I understand why they might not want to 

work with Congress from time to time, but, unfortunately, the Constitution requires us to work together, and that the Justice Department has actually facilitated this pattern of behavior, some people 

believe. 

The Department has done so in a number of ways: in exceeding 

and even contravening lawful authority in the programs it helps 

administer, such as with the latest Executive actions on immigration; in purporting to provide legal justification for other agencies 

to ignore the law, as apparently occurred with the transfer of 

Taliban terrorists out of Guantanamo without notifying Congress, 

which is an obligation; and in taking some extreme litigation positions which, by my count, the Supreme Court has unanimously rebuked a record 20 times. 
20 

Now, given these disturbing patterns, how can you assure us 

that you will be independent, that you will say no to the White 

House or other executive branch agencies when they wish to act beyond the law as it is written? 

Ms. LYNCH. Senator, I think one of the most important functions 

of the Department of Justice is to provide a legal framework, if it 

exists, when questions are raised. 

Senator HATCH. Right. 

Ms. LYNCH. But consistent with that, every good lawyer knows 

you must also provide the information that indicates that a legal 

framework may not exist for certain actions that someone may 

want to take. Every lawyer has to be independent, the Attorney 

General even more so, and I pledge to you that I take that independence very seriously. 

Senator HATCH. Well, you did that in my office, and I appreciate 

that, because I think you will be a great Attorney General if you 

will do that. 

Last August, you gave a speech in Switzerland in which you 

praised Attorney General Holder’s initiative to limit mandatory 

minimum sentences only to some of the criminals who Congress 

said should receive them. But prosecutors, including even the Attorney General, do not have authority to decide that entire categories of defendants will not receive a sentence that the Congress 

has mandated. Is not that another example of using prosecutorial 

discretion to really, in effect, change the law without Congress? 

Ms. LYNCH. Senator, with respect to the material that you are referring to, when I did give that speech, I was referring to the Department’s ‘‘Smart on Crime’’ initiative, which seeks to manage another intractable problem of the large number of narcotics defendants and the limited resources that we have to handle those defendants and prosecute them. 

Senator HATCH. And I want to help you with that. I want to help 

you with that. 

Ms. LYNCH. Yes, and prosecute them effectively. In fact, in my 

own experience both as an Assistant United States Attorney and 

United States Attorney, we have had to deal with similar issues in 

the Eastern District of New York. We have had tremendous issues 

with narcotics importations over the years, and we have had to 

work out ways of resolving those cases. Many of them go to trial, 

but we also have had to prioritize the cases that we will seek mandatory minimums for and those which we seek guideline sentences 

for. 

But, importantly, with respect to the Smart on Crime initiative, 

as pushed out and as has been implemented in the field, every 

prosecutor from the United States Attorney on down to line assistants are encouraged to still consider cases that might fall into a 

category where initially you would not seek a mandatory minimum 

but consider whether they would be appropriate. And those cases 

have occurred, and they will continue to occur. 

Senator HATCH. Okay. I understand. As currently written, the 

Electronic Communications Privacy Act, or ECPA, requires only a 

subpoena for law enforcement to access email that has been 

opened, even though a search warrant would be required for a 

printout of the same communication sitting on a desk. 
21 

To make matters more complicated, ECPA is silent on the privacy standard for accessing data stored abroad. Without an actual 

legal framework in place, this puts the privacy of American citizens 

at risk for intrusion by foreign governments. 

In the coming days, I intend to reintroduce the LEADS Act, 

which will promote international comity and law enforcement cooperation. Will you commit to working with me on this important 

subject? Because it is important we solve these problems. 

Ms. LYNCH. Senator, the subject of electronic privacy is central 

to so many of our freedoms, and as you point out, in an era of everchanging technology, we have to be vigilant to make sure that we 

are not only providing law enforcement the tools it needs but protecting our citizens’ privacy. And I certainly commit to you to working with you on this important legislation and all the issues that 

will flow from it. 

Senator HATCH. Well, thank you so much. 

Trade secrets are among the most valuable assets for American 

companies and currently are protected under Federal criminal law 

by the Economic Espionage Act and by an array of State civil laws. 

Unlike other forms of intellectual property, however, there is no 

Federal civil remedy for trade secret owners. I will reintroduce the 

Defend Trade Secrets Act in the coming days with Senator Coons 

to provide an efficient Federal remedy for trade secret owners. 

Do you agree that trade secret owners should have the same access to a Federal remedy as owners of other forms of intellectual 

property? 

Ms. LYNCH. Senator, I think that the issue of trade secrets, 

again, particularly as American technology becomes ever more complex and becomes ever more a target from those both in the U.S. 

and without who would seek to steal it, is an increasingly important issue, and I look forward to working with you to consider that 

statute. I am not familiar with the provision that you raise, but it 

certainly touches on an important issue of making sure that our 

companies and their technology are protected. 

Senator HATCH. Well, thank you so much. 

I am today introducing legislation to help victims of child pornography receive the restitution that Congress has already said they 

deserve. The Supreme Court said last year that the current restitution statute, enacted more than 20 years ago, does not work for 

child pornography victims, and this legislation will change that. I 

am joined by more than 30 Senators on both sides of the aisle, including 4 on this Committee. 

Do I have your commitment that, under your leadership, the Justice Department will aggressively prosecute child pornography and 

use tools like this legislation to help victims get the restitution 

they need to put their lives back together? 

Ms. LYNCH. Senator, throughout my career, I have expressed a 

commitment to prosecuting those who would seek to harm our children, be it through child pornography or the actual abuse of children, which often go hand in hand. 

You certainly raise important issues about how can we make 

these victims whole, and I look forward to working with you and 

the Members of this Committee in reviewing that legislation as 

well. 
22 

Senator HATCH. Thank you so much. 

Now, I recently read a powerful book. I read it in one day. It is 

titled ‘‘License to Lie: Uncovering Corruption in the Department of 

Justice.’’ The author writes about many things, including the debacle that occurred in the misguided prosecution of Senator Ted Stevens, which I thought was out of this world bad. I was one of the 

people who testified as to his character, and he was a person of 

great character. 

As you know, he lost the Senate race because of this type of prosecution. I know that case. Ted Stevens was a dear friend of mine, 

and I testified on his behalf, as I said. 

Only after he was convicted did we learn that the Justice Department prosecutors intentionally hid exculpatory evidence that could 

have helped his case. 

Now, these were not mistakes. They were corrupt acts that violated every prosecutor’s duty under the Brady v. Maryland decision 

to turn over exculpatory evidence so that the trial will be fair. 

Now, I recommend that you read this book because, if even half 

of it is true—and I believe it is true—you have a lot of work to do 

to clean up that Department. Will you consider doing that for me? 

Ms. LYNCH. Thank you, Senator. I will. 

Senator Hatch. I appreciate it. 

Thanks, Mr. Chairman. 

Chairman GRASSLEY. Before I call on Senator Feinstein, I am 

going to ask, just as soon as the Finance Committee convenes, I am 

going to offer an amendment, so I would ask the most senior Republican to watch the time and call on the next person in seniority 

order. 

Senator Feinstein. 

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

Ms. Lynch, I sat through six opening statements by potential Attorneys General, and I just want to tell you yours was the best. 

Ms. LYNCH. Thank you. 

Senator FEINSTEIN. I see the combination of steel and velvet. I 

see your effectiveness before a jury. I see your love for the Constitution. And I see the determination which is in your heart and, 

I think, your being, and it is very, very impressive. So I want to 

thank you for really 30 years of service. 

Ms. LYNCH. Thank you, Senator. 

Senator FEINSTEIN. And I hope it will be a lot longer. 

Mr. Chairman, I would like to place in the record Los Angeles 

Police Department Chief Charlie Beck’s written testimony on the 

subject of the President’s Executive action on immigration. 

Chairman GRASSLEY. Without objection, so ordered. 

Senator FEINSTEIN. Thank you very much. 

[The information appears as a submission for the record.] 

Senator FEINSTEIN. Ms. Lynch, I am going to ask you three questions. The first is on expiring provisions of the Foreign Intelligence 

Surveillance Act, which will come to this Committee before June of 

this year and also before the Intelligence Committee, on which I 

serve; a question about Office of Legal Counsel opinions; and a 

question on the State Secrets Act. 

Let me begin with FISA. The three provisions that are going to 

expire on June 1 are, first, the roving wiretap authority. This pro-
23 

vision enables the Government to maintain surveillance on a target 

when he or she switches phone numbers or email addresses without seeking a new court order. 

The second is the lone wolf authority, which enables the Government to conduct surveillance of a non-United States person engaged in international terrorism without demonstrating that they 

are affiliated with a particular international terrorist group such as 

ISIS or Al-Qaeda. 

And the third is the business records authority, which carries 

with it Section 215 of the National Security Administration. This 

enables the Government to obtain a court order directing the production of ‘‘any tangible thing’’ that is relevant to an authorized national security investigation. 

Can you describe for us the importance of these three provisions 

and what would be the operational impact if the three were allowed to sunset in June? 

Ms. LYNCH. Thank you, Senator. You certainly raise an important issue about the need to have a full panoply of investigative 

tools and techniques to deal with the ever-evolving threat that terrorism presents against us. 

With respect to the provisions that you refer to, I think I have 

always found it most interesting that the roving wiretap provision 

is actually a provision that was incorporated into the FISA statute 

after being utilized extensively for several years in narcotics prosecutions. It was one with which I was familiar as a young prosecutor, as many of my colleagues across the country were as well. 

And the ability to describe to a court the nature of the offense, the 

nature of the activity, and the use of attempts to shield oneself 

from electronic surveillance, which is part of what must be set 

forth in the application, have been invaluable tools. 

Of particular importance is the fact that all of this must go to 

a court. Obviously, in the narcotics area, it was an Article III 

Court; in the FISA area, it is to the FISA Court. But there is judicial review for this, and it has been an important part of the techniques we have used in the war on terror, as have the other two 

provisions that you mention. 

I do think, however, that with respect to FISA, there is always 

the ability, there is always the need to make sure that we are current not just with technology, but with the most effective way to 

protect privacy as we go forward in this important act. I know that 

is something that you have spent a great deal of time on, as well 

as many of your colleagues on this Committee as well as on the Intelligence Committee. And I look forward to continuing those discussions with you, should I be confirmed. 

With respect to the lone wolf provision, again, I think we have 

to obviously examine it carefully. Recent events, however, have underscored the importance of this as an issue in the war on terror, 

and so I would hope that we could move forward with any proposed 

changes to FISA with a full and complete understanding of the 

risks that we are still facing, and if any changes need to be made, 

again, after full and fair consideration with this Committee, with 

the Intelligence Committee, and the discussions that we need to 

have, making sure that we can still provide law enforcement with 

the tools that they need. 
24 

Similarly with Section 215, I believe that the court order provision in there is an effective check and certainly a necessary check 

as we gather data from all types of sources. As I have always said, 

I am certainly open to discussions about how they can be best 

modified, if we need to modify them, consistent with the goals of 

protecting the American people. And I commit to you, Senator, and 

indeed to all of this Committee, that I will always listen to all 

those concerns, be it about the FISA statute or any of the techniques we are using in the war on terror. 

Senator FEINSTEIN. Thank you very much. 

As a Member of both Judiciary and Intelligence, we have on both 

Committees sought access to Office of Legal Counsel opinions, 

called ‘‘OLC opinions,’’ and these opinions often represent the best 

and most comprehensive expression of the legal basis for intelligence activities Congress is actually charged with overseeing. So 

without these opinions, you do not really know the legal basis upon 

which an administration has based certain activities, and it has 

been very frustrating to us. 

In particular, executive branch officials have previously advised 

the Committee of the existence of a seminal OLC opinion written 

by Ted Olson decades ago governing the conduct of collection activities under Executive Order 12333. 

My question is: Can we have your commitment that you will 

make a copy of this OLC opinion available to Members of both the 

Intelligence and the Judiciary Committees? Probably your first 

tough question. 

[Laughter.] 

Ms. LYNCH. Well, Senator, I think that with respect to the OLC 

opinions, you are correct; they do represent a discussion and an 

analysis of legal issues on a wide variety of subjects when a variety 

of agencies come to the Department for that independent advice 

that we must provide them. Certainly I am not aware of the discussions that have been had about this previous opinion in terms of 

providing it. Certainly I will commit to you to work with this Committee as well as the Intelligence Committee to find a way to provide the information that you need consistent with the Department’s own law enforcement and investigative priorities. 

Senator FEINSTEIN. Thank you very much. This particular opinion is important, and it would be useful if we can review it, so 

thank you. 

On state secrets, on September 23, 2009, the Attorney General 

issued a memorandum establishing new procedures and standards 

to govern DOJ’s defense of an assertion of the state secrets privilege in litigation. Among other things, the memorandum stated 

that the DOJ would provide the periodic reports to Congress on the 

exercise of the state secrets privilege. 

Since 2009, only one such report, from April 2011, has been provided. That report discussed the two cases in which the privilege 

had been invoked under the new policy, but those are no longer the 

only two cases. 

So I would like to ask you if you could provide the appropriate 

Oversight Committees with the second periodic report on the exercise of state secret privileges that discusses those cases which the 

privilege has been invoked on since April of 2011? 
25 

Ms. LYNCH. Senator, you raise the important issue of the need 

to work with the Oversight Committees, be they this Committee or 

Intelligence, in reviewing the actions of the Department of Justice, 

not just so the Committees can carry out their work, but so that 

the American people can be aware of how the Department carries 

out its work. 

I am not familiar with the reports that you referred to at this 

point. I certainly look forward to reviewing this issue, and I certainly commit to you that I will do my best to ensure that the Department lives up to its obligations that it has set forth. 

Senator FEINSTEIN. Good. And I will come back. This is an important question to us, so I will come back and hopefully can get 

an answer, ‘‘yes’’ or ‘‘no,’’ within the next couple of weeks. So thank 

you very much. 

Ms. LYNCH. Senator, I look forward to learning more about the 

issue, and I look forward to sharing that with you, should I be confirmed, as well as any issues of concern that this Committee or others have. 

Senator FEINSTEIN. Thank you very much. 

Thank you, Mr. Chairman. 

Chairman GRASSLEY. Thank you, Senator Feinstein. 

Now, it is Senator Sessions’ turn. 

Senator SESSIONS. Thank you, Mr. Chairman. 

It is great to have you here. I appreciated the opportunity to 

have a good discussion, I think, in our office, and having had—I 

think I just passed my time in the Senate longer than I spent in 

the Department of Justice. It was a great honor to serve that, and 

I have high ideals for this Department. And we understand that 

the Attorney General is the premier law enforcement officer, the 

senior law enforcement officer in America. He or she sets the tone 

for law in America, the commitment to law, and must resist politicizing law and do the right thing on a daily basis. 

On occasion, you are called upon to issue opinions. 

OLC works for you, the Office of Legal Counsel who issues these 

opinions. And you will have to tell the President ‘‘yes’’ or ‘‘no’’ on 

something that he may want to do. 

Are you able and willing to tell the President of the United 

States ‘‘no’’ if he asks permission or a legal opinion that supports 

an action you believe is wrong? 

Ms. LYNCH. Senator, I believe you have touched upon one of the 

most important responsibilities of the Attorney General, and let me 

say also that I appreciated very much the opportunity to meet with 

you and discuss these important issues. 

The Attorney General’s position as a Cabinet member is perhaps 

unique from all other Cabinet members. Yes, a member of the 

President’s Cabinet, but the Attorney General has a unique responsibility to provide independent and objective advice to the President or any agency when it is sought, and sometimes perhaps even 

when it is not sought. 

With respect to the Office of Legal Counsel—— 

Senator SESSIONS. And so you understand that your role is such 

that on occasion you have to say ‘‘no’’ to the person who actually 

appointed you to the job and who you support? 
26 

Ms. LYNCH. Senator, I do understand that that is, in fact, the 

role and the responsibility of the Attorney General and, in fact, a 

necessary obligation on their part. 

Senator SESSIONS. Well, you know, people have agendas, and Attorneys General sometimes do, and they have to guard against that 

and be objective, as you basically said to me, now in Committee. 

On April 24th of 2013, Attorney General Holder said this—and 

I am raising this fundamentally because I think there is a lot of 

confusion about how we should think about immigration in America, what our duties and what our responsibilities are. He said this: 

‘‘Creating a pathway to earned citizenship for the 11 million unauthorized immigrants in our country is essential. The way we treat 

our friends and neighbors who are undocumented—by creating a 

mechanism for them to earn citizenship and move out of the shadows—transcends the issue of immigration status. This is a matter 

of civil and human rights.’’ 

So let me ask you, do you believe that a person who enters the 

country unlawfully, that has perhaps used false documents or otherwise entered here, has a civil right to citizenship? 

Ms. LYNCH. Well, Senator, I am not familiar with the context of 

those comments. I certainly think that you do touch upon the difficult issue of how do we handle the undocumented immigrants 

who come to our country, I believe, for the life that we offer, I believe, because of the values that we espouse. 

Senator SESSIONS. Well, I do not want to interrupt you, but just 

the question is: Do you agree with that statement that it is a matter of civil rights and citizenship and work authority, a right to 

work in America, for someone who enters the country unlawfully, 

that is a civil right? 

Ms. LYNCH. Senator, I have not studied the issue enough to come 

to a legal conclusion on that. I certainly think that people who 

come to this country in a variety of ways can rehabilitate themselves and apply, but that would have to be something that would 

be decided on a case-by-case basis. 

Senator SESSIONS. Well, I would just like to hear you answer 

that. Is it a civil right for a person who enters the country unlawfully, who would like to work and like to be a citizen, to demand 

that contrary to the laws of the United States, and when Congress 

does not pass it, is that a right that they are entitled to demand? 

Ms. LYNCH. Sir, I do not think that—I think that citizenship is 

a privilege. Certainly it is a right for those of us born here. I think 

it is a privilege that has to be earned. And within the panoply of 

civil rights that are recognized by our jurisprudence now, I do not 

see one such as that you are describing. 

Senator SESSIONS. I certainly agree. I am a little surprised it 

took you that long, but the Attorney General’s statement was 

breathtaking to me. 

Now, Peter Kirsanow, who is a member of the U.S. Commission 

on Civil Rights, responded to that some time ago, and here is what 

he said: ‘‘To equate amnesty for breaking the Nation’s immigration 

laws with civil rights betrays an incoherent and ahistorical understanding of the civil rights movement. Law-abiding Black citizens 

of the United States were not seeking exemption; they were seek-
27 

ing application of such laws in the same manner that was applied 

to Whites.’’ 

Would you agree with Mr. Kirsanow’s analysis? 

Ms. LYNCH. Well, certainly I think with respect to the civil rights 

movement and the role of African Americans in it, it certainly was 

a movement designed to assure equal access to law and equal application of law. 

Senator SESSIONS. Well, on the 50th anniversary of the Selma 

march that is approaching—people were denied systematically fundamental rights as citizens of the United States of America. And 

that was a historic event. It changed America, and I think it is important that that be remembered. But I will just tell you, it is quite 

different, as I think Mr. Kirsanow points out, to demand your lawful rights as an American and to ask for—insist that civil rights 

apply to those who enter the country unlawfully to have these benefits. 

Well, the President’s action would give people who came here unlawfully the right to work, the right to participate in Social Security and Medicare, when Congress has not done that; allows them 

to stay, for at least a period, lawfully. 

Let me ask you this: In the workplace of America today—when 

we have a high number of unemployed, we have had declining 

wages for many years, we have the lowest percentage of Americans 

working—who has more right to a job in this country: a lawful immigrant who is here, a green-card holder, or a citizen, or a person 

who entered the country unlawfully? 

Ms. LYNCH. Well, Senator, I believe that the right and the obligation to work is one that is shared by everyone in this country, regardless of how they came here. And certainly if someone is here, 

regardless of status, I would prefer that they be participating in 

the workplace than not participating in the workplace. 

With respect to—— 

Senator SESSIONS. Well, that was—so you think that a person 

that is—anybody that is here, lawfully or unlawfully, is entitled to 

work in America? 

Ms. LYNCH. Well, Senator, I am not sure if I know—if I understand the basis for your question as to whether or not there is a 

legal basis for them to work or not. 

Senator SESSIONS. I asked you who had—we were talking about 

rights. Who has the most rights? Does a lawful American immigrant or citizen have the right to have the laws of the United 

States enforced so that they might be able to work? Or does a person who came here unlawfully have a right to demand a job? 

Ms. LYNCH. Certainly the benefits of citizenship confer greater 

rights on those of us who are citizens than those who are not. 

Senator SESSIONS. Well, do you think a person that is here unlawfully is entitled to work in the United States when the law says 

that employers cannot hire somebody unlawfully in America—— 

Ms. LYNCH. I believe that—go ahead. 

Senator SESSIONS. Go ahead. 

Ms. LYNCH. Sorry, sir. I think that certainly the provision that 

you refer to regarding the role of the employer in ensuring the 

legal status of those who are here is an important one and that we 

have to look at it in conjunction with this issue in terms of pre-
28 

venting undocumented workers who, as you have indicated before, 

are seeking employment. Again, we want everyone to seek employment, but we have in place at this point in time a legal framework 

that requests or requires employers to both provide information 

about citizenship as well as not hire individuals without citizenship. 

Senator SESSIONS. Do you think that someone given—I understand that you support the Executive order and OLC’s opinion; is 

that correct? 

Ms. LYNCH. I do not believe my role at this point is to support 

or not support it. My review of it was to see whether or not it did 

outline a legal framework for some of the actions that were requested. And as noted, it indicated that there was not a legal 

framework for other actions that were requested. 

Senator SESSIONS. Well, let me wrap up by asking this: If a person comes here and is given a lawful right under the President’s 

Executive amnesty, they have a Social Security and a work authorization card, what if somebody prefers to hire an American citizen 

first, would you take action against them? Do you understand this 

to mean that those who are given Executive amnesty are entitled 

as much as anybody else in America to compete for a job in America? 

Ms. LYNCH. Well, I do not believe that it would give anyone any 

greater access to the workforce and certainly an employer would be 

looking at the issues of citizenship in making those determinations. 

Senator SESSIONS. Would you take action against an employer 

who says no, I prefer to hire somebody that came to the country 

lawfully, rather than someone given Executive amnesty by the 

President? Would Department of Justice take action against them? 

Chairman GRASSLEY. When you answer that I will move on then. 

Ms. LYNCH. Thank you, sir. 

With respect to the provision about temporary deferral, I did not 

read it as providing a legal amnesty. That is not permanent status 

there, but a temporary deferral. With respect to whether or not 

those individuals would be able to seek redress for employment discrimination if that is the purpose of your question, again, I have 

not studied that legal issue. I certainly think you raise an important point and would look forward to discussing it with you and 

using and relying upon your thoughts and experience as we consider that point. 

Chairman GRASSLEY. Thank you, Senator Sessions. 

Now Senator Schumer. 

Senator SCHUMER. Well, thank you and you know, I think that 

even in the short while here, it is clear to my colleagues why you 

are such a tremendous—why you have been such a tremendous 

U.S. Attorney in my home State of New York and home borough 

of Brooklyn, and why you would make such a great Attorney General. You are just knocking them out of the park. 

And speaking of sports analogies, there is another point I would 

like my colleagues to know, another testament to your perseverance, to your loyalty in the face of incredible adversity. With all 

due respect to Mr. Tillis, you are not a Tar Heel or a Blue Devil, 

you are a Knicks fan. And that takes—it is a lot tougher being a 

Knicks fan than going through these questions here today. 
29 

But, anyway, I would like to just go over a couple of points some 

of my colleagues made. First on prosecutorial discretion, there is a 

myth out there that prosecutorial discretion policies are tantamount to an illegal failure to enforce the law. And we know that 

you have enforced the law aggressively and will continue to do so, 

as has the administration. 

Some of my friends across the aisle seem to be suggesting that 

the President’s announcement of the enforcement policies for the 

Department of Homeland Security is tantamount to an announcement that we will not enforce our immigration laws, but that is absurd. 

We know we have 11 million undocumented immigrants living in 

the United States. Congress, this body, only allocates enough 

money for DHS to deport 400,000 of them; 11 million illegal immigrants, enough money to deport 400,000. Obviously you have to 

make some choices here. And I am sure when my dear friend Jeff 

Sessions, and he is a dear friend, was U.S. Attorney in Alabama, 

he used prosecutorial discretion. I know he did a good job going 

after violent drug dealers and criminals. 

We want our prosecutors to go after the highest level crimes if 

they do not have the resources to do all of them. Doesn’t it make 

sense to have a general rule to prosecute in a prosecutorial office 

with limited resources to go after bank robbers before you go after 

shoplifters? 

Now, obviously there can be an occasional exception. As you mentioned, the President’s Executive order allows for that occasional 

exception. But this idea that going after—having an office go after 

the higher-level, more dangerous crimes first is part of how law enforcement has gone on for hundreds of years, and it should. So I 

do not even get this idea that this is an illegal act by the President. 

We arm our law enforcement officials with an array of laws, but 

limited resources. They have to make hard choices. And a straightforward allocation of resources is not political activism, it is what 

prosecutors are doing in every jurisdiction of this land right now. 

Immigration is like any other issue. We have limited resources. 

It makes eminent sense to go after the hardened criminals before 

going after lower-level offenders. So just let me ask you a couple 

of questions here. 

Don’t U.S. Attorney’s Offices all over the country consistently 

have to make these general type of prosecutorial decisions on a 

day-to-day basis? And how do you? 

Ms. LYNCH. Yes, Senator. With respect to the exercise of discretion and the setting of priorities, one of the privileges that I have 

had of being the U.S. Attorney in the Eastern District of New York 

and working with my colleagues across the country has been getting to know them and learning about how different every district 

is. How a crime problem in Brooklyn may not even appear on the 

West Coast. And how a crime problem in the Midwest that has 

seen an increase in crime due to the happy accident of increased 

oil reserves may present issues that I would never face in an urban 

environment. 

My colleagues and I work together and we share our thoughts on 

the best ways to deploy our limited resources to deal with the 

crime problems in our districts. My colleagues that have a large 
30 

number of Native American reservations in their districts, for example, have a very different base of problems than I do. But they 

are just as committed and just as focused on keeping those citizens 

safe as well. 

So all of us look at the crime problems in our districts. To do 

that, we work very closely with our law enforcement partners in 

looking at how they have determined the nature of the threat, be 

it terrorism, be it narcotics, be it those who would target children. 

We also work closely with our State and local counterparts, not 

just the law enforcement counterparts, but our prosecutive counterparts in the District Attorney’s Offices. 

Many times I will have a matter in my office that is subject to 

both Federal and State jurisdiction and it may be more appropriate 

for the District Attorney to prosecute that type of crime because of 

the nature of the sentence that can be achieved, because of the impact on a particular victim or community, or because of the legal 

issue involving proof and the admissibility thereof. All of these 

things go into the consideration of how we manage individual cases 

but also how we set priorities and then deploy our limited resources to best protect the people of our district. 

Senator SCHUMER. Exactly. Every prosecutor, whether it is the 

Justice Department, the U.S. Attorney’s Office, sets priorities and 

has to, and that is just what the President did in my opinion in 

the Executive order. 

The next one, we are hearing a lot about Executive action being 

unconstitutional. And so I would like to just talk about that. That 

is another myth that is out there. No Federal court has struck 

down Executive action. The most recent Federal court to hand 

down a decision supported it. I have heard it suggested Federal 

courts have declared Executive action unconstitutional. It so happens, in fact, dating back to Chief Justice Rehnquist, the Supreme 

Court has repeatedly bolstered Executive discretion and refused to 

review agency decisions that are within the law. 

With respect to this Executive action there have been two Federal cases filed—one here in Washington by Sheriff Arpaio, notoriously anti-immigration activist, that has been dismissed. The second suit was filed in Texas and is still pending. So no courts have 

struck down Executive action. 

Now we are hearing that Speaker Boehner and House Republicans will be suing the President on this Executive action. I do not 

think that is a responsible use of taxpayer dollars, but at least 

Speaker Boehner and I agree on one thing: if Republicans disagree 

with President Obama over the legality of this policy, they can sue 

him and let the courts decide. The confirmation of America’s highest law enforcement officer is not the time or place to vent frustration. 

So let me just ask you a couple of questions. You have answered 

them, but I want to underscore them. Because some people are concerned that the, ‘‘rogue Obama administration’’ is lawless. Will you 

commit to following court decisions and legal process? 

Ms. LYNCH. Absolutely, Senator, that is my first point of reference. 

Senator SCHUMER. And specifically if a court happens to strike 

down Executive action, will you respect that court decision? 
31 

Ms. LYNCH. I will respect that court decision. 

Senator SCHUMER. And let us imagine Congress—I do not think 

this will happen—I would try to prevent it as best I could, but let 

us say Congress were to pass a bill explicitly prohibiting President 

Obama’s immigration actions, a bill I find hard to imagine the 

President would sign, but let us just imagine for the sake of argument happened. 

If such a bill passed, will you commit to following the new law? 

Ms. LYNCH. I will commit to following all the laws duly executed 

by this body. 

Senator SCHUMER. Thank you. Okay. Just one other issue since 

I have a little more time. Work permits, which my good friend, 

again, Jeff, brought—Senator Sessions brought up. Some have suggested it is illegal for the administration to issue work permits for 

recipients of deferred action. Again, they imply this is unprecedented. That is misleading. Guess who did it in 1982? Ronald 

Reagan. They published INS regulations authorizing work permits 

for recipients of deferred action—1982, the Reagan administration. 

That is not to say workplace enforcement is not necessary. It is. 

And in fact, isn’t it true, Ms. Lynch, that you have a strong record 

of enforcing workplace immigration rules? 

Just tell us a little about the 7-Eleven stores case that you 

brought on Long Island? 

Ms. LYNCH. Thank you, Senator. The case against the 7-Eleven 

stores and various franchises was a very important one to my office 

because it was one in which we saw a corporate entity deliberately 

flouting the labor laws. Individuals mostly of a particular ethnic 

group who owned franchises of 7-Eleven were reaching out to their 

own community members and hiring them to work in the stores. 

This would have been an opportunity for individuals to earn money 

for their families and to essentially become part of the American 

Dream. 

Instead, however, the workers were systematically victimized. 

They were forced to work double shifts, triple shifts, yet only paid 

for working part-time hours. They were only given their money in 

either a 7-Eleven debit card, or cash as deemed appropriate by the 

manager. 

Even worse than this was the evidence that we uncovered that 

the stores were aware that they were violating the labor laws and 

simply flouting them. 

They also requested—they also required the workers to all live 

together in company-sanctioned housing. We essentially were creating a modern-day plantation system on Long Island and also 

throughout the Virginia area with co-conspirators of these franchise owners. 

We spent a long time working on the investigation in conjunction 

with our law enforcement partners. The matter is still being reviewed with respect to other States. And wherever we find workers 

being victimized and being discriminated against, certainly my office has never hesitated to take action. 

Senator SCHUMER. Thank you, my time has expired, Mr. Chairman. 

Senator SESSIONS [presiding]. Thank you. I would offer for the 

record a consent that the article from the Atlantic saying—headline 
32 

by David Frum, ‘‘Reagan and Bush Offer No Precedent for Obama’s 

Amnesty Order.’’ And I think that is crystal clear. 

[The article appears as a submission for the record.] 

Senator SESSIONS. Senator Cornyn, ‘‘Justice’’ Cornyn is next. 

Senator CORNYN. Good morning, Ms. Lynch. 

Ms. LYNCH. Good morning. 

Senator CORNYN. Congratulations, again, to you on your nomination and thank you for coming to my office last—I guess it was last 

Friday—— 

Ms. LYNCH. Yes. 

Senator CORNYN [continuing]. To visit about this hearing. And I 

should say congratulations to you for an outstanding career as a 

United States Attorney. The challenge, I think, that people have 

when they come to Washington, DC, and they assume jobs that 

have political implications is that they sort of forget their basic 

mooring in the law and they become politicians, masquerading as 

law enforcement officers, and that is a real challenge. And I will 

not claim that it is only a challenge for Democrats, it has been a 

challenge for Republicans as well. 

But I am concerned—well, let me for Senator Schumer’s benefit, 

let me just stipulate, you are not Eric Holder, are you? 

Ms. LYNCH. No, I am not, sir. 

Senator CORNYN. So no one is suggesting that you are, but, of 

course, Attorney General Holder’s record is heavy on our minds 

now and I agree with the Chairman about his concerns when the 

Attorney General refers to himself as the President’s wingman, 

suggesting that he is not—does not exercise independent legal 

judgment as the chief law enforcement officer for the country. 

You wouldn’t consider yourself to be a political arm of the White 

House as Attorney General, would you? 

Ms. LYNCH. No, Senator, that would be a totally inappropriate 

view of the position of Attorney General. 

Senator CORNYN. And you would be willing to tell your friends 

‘‘no’’ if in your judgment the law required that? 

Ms. LYNCH. Sir, I think that I have to be willing to tell not just 

my friends and acquaintances, but colleagues, ‘‘no’’ if the law requires it. 

Senator CORNYN. And that would include the President of the 

United States? 

Ms. LYNCH. I think that the obligation of the Attorney General 

is to, when presented with matters by the President to provide a 

full, thorough, independent, substantive legal analysis and give the 

President the best independent judgment that there is. And that 

may be a judgment that says that there is a legal framework for 

certain actions and it may be a judgment that says that there is 

not a legal framework for certain actions. 

Senator CORNYN. And while we have stipulated you are not Eric 

Holder, Mr. Holder’s record is certainly on our minds, because I 

cannot think of an Attorney General who so misevaluated the independent role of the chief law enforcement officer and taken on that 

aspect of the President’s wingman and operated as a politician 

using the awesome power conferred by our laws on the Attorney 

General. 
33 

The Attorney General has been openly contemptuous of the oversight responsibilities of a co-equal branch of Government. He’s 

stonewalled legitimate investigations by the Congress including the 

investigation into the Fast and Furious episode that Senator Grassley referred to earlier, making bogus claims of executive privilege 

in order to keep Congress and the American people from finding 

out the facts. 

We know that the Attorney General has repeatedly made legal 

arguments that have been rejected as unconstitutional by the 

United States Supreme Court, and he’s harassed States like mine, 

and I suspect you will hear from another colleague about his State 

on matters like voter ID when the United States Supreme Court 

has upheld the validity of voter ID as a means to protect the integrity of the ballot for people who are qualified to vote. And at the 

same time, the Attorney General has failed to implement laws that 

Congress has passed in order to provide—to protect the voting 

rights of our military deployed overseas. 

He’s also politicized the war on terror. He’s declassified top secret 

legal memos exposing public officials in the intelligence community 

to not only ridicule, but threats, legal and otherwise, for performing 

actions that they were told by the highest legal authorities were 

legal and were necessary to save American lives. And, indeed, he 

reopened a criminal investigation into those same members of the 

intelligence community after a previous investigation had not revealed any basis for criminal charges. 

So how do we know you are not going to perform your duties of 

office as Attorney General the way Eric Holder has performed his 

duties? How are you going to be different? 

Ms. LYNCH. Senator, if confirmed as Attorney General, I will be 

myself. I will be Loretta Lynch. And I would refer you to my record 

as United States Attorney on two occasions, as well as a practicing 

lawyer, to see the independence that I have always brought to 

every particular matter. 

I certainly think that going forward, while I am not familiar with 

the particulars of the issues that you raise, they clearly are of concern to you and perhaps to this Committee. And I do pledge to this 

Committee that I want to hear your concerns. I want to listen to 

your concerns, and I will always be open to discussing those issues 

with you. 

Senator, I am sure that as we go forward, should I be confirmed, 

while it would be wonderful to think that you would agree with everything that I would do, that may not be the case. 

Senator CORNYN. You may not agree with everything we do. 

Ms. LYNCH. And that is perfectly appropriate. But, Senator, I will 

always be open to discussing with you why I have done something 

and the basis for which I have made an action, to the extent that 

I am able to do so. I have found that to be the most effective way 

of not just for me in terms of learning from people with whom I 

disagree, but also working effectively with people with whom I may 

disagree on various points, but with whom, like you, we share a 

common goal. 

Senator CORNYN. Ms. Lynch, I have been married 35 years and 

I can guarantee you that 100 percent agreement is an impossible 
34 

standard for anybody to comply with. So we do not expect that, obviously. 

But I want to ask you about your commitment to working with 

the Committee and Congress and respecting our congressional 

oversight authority. A recent letter sent to Senator Leahy on behalf 

of Attorney General Holder was dated December the 5th, 2014, and 

it responds to questions for the record that arose in an appearance 

before this Committee on March the 6th, 2013. So obviously about, 

this looks roughly a year and a half, more than a year and a half 

later. Can we expect a more timely response from you and the Department of Justice to the legitimate inquiries of this Committee? 

Ms. LYNCH. Certainly, Senator. I believe that the oversight responsibility of this Committee is important, not just for the functioning of the Committee, but also to the American people in terms 

of helping them understand the way in which the Department operates and the way in which we all work to keep them safe. 

I commit to you absolutely that I will work with this Committee 

to ensure that we provide as timely a response as possible. I am 

not sure of the particulars of the matter that you raise, so I am 

not able to comment on that. But certainly I would hope to be able 

to provide you with the information that you need in as timely a 

manner as consistent with the Department’s litigation and enforcement responsibilities. 

Senator CORNYN. I think it would make it possible for you to be 

a more effective Attorney General and it would make it possible for 

us to be more effective in our respective roles as Members of Congress exercising our responsibilities as well. 

I want to just ask you a little bit about prosecutorial discretion 

which you have heard something about here. My only regret from 

this morning’s hearing is that the—and Senator Schumer, the senior Senator from New York who introduced you, was not available 

for cross-examination by Members of the Committee. But we will 

have a chance to talk later. But he seemed somewhat dismissive 

of concerns about this massive—what I would consider, in essence, 

refusal to enforce existing law that is involved in these Executive 

actions. 

There is a difference to your mind, isn’t there, between a caseby-case exercise of prosecutorial discretion and a refusal to enforce 

the laws that are on the books? There is a difference, isn’t there? 

Ms. LYNCH. Senator, there is a difference. And I do not view the 

Department of Justice, certainly in my own practice, as refusing to 

enforce law, but rather attempting to set priorities and then exercising discretion within those priorities. 

Senator CORNYN. Well, let me ask you about that. Isn’t it incumbent upon the Department of Justice to ask Congress for the resources to do the job that Congress has said the Department must 

perform before you can come back and say, well, we are just not 

going to pursue those crimes and those offenses because we do not 

have enough money. I mean, isn’t it your responsibility—will it be 

your responsibility as the next Attorney General to come to us and 

ask us for those resources? 

I cannot imagine if Attorney General Holder or the President of 

the United States or Secretary Johnson, or others, had come to us 

and said, we do not have the resources to enforce the immigration 
35 

laws, so we are going to have to, in essence, decline to enforce them 

because we do not have those. I mean, don’t you have that responsibility to ask for those resources before you decline to enforce the 

law based on lack of resources? 

Ms. LYNCH. Certainly, Senator, I am not aware of the Department of Homeland Security’s budget requests before this body or 

Congress in general. With respect to the Department of Justice, I 

had been involved in reviewing the budget as part of my work on 

the Attorney General’s Advisory Committee, and certainly during 

sequestration spent a great deal of time looking at the budget to 

ensure that we did maintain the appropriate resources to carry out 

our core mission of protecting the American people within the constraints that were placed upon us at that time. And it is my understanding that, with respect to budget requests that the Department 

of Justice makes, that those requests do include information about 

goals and priorities across the board as a way of explaining to Congress why specific resources are needed. 

Senator CORNYN. So you do need more money? 

Ms. LYNCH. I would probably join all of my agencies in saying 

that, sir, but I cannot speak for them. Senator Cornyn. That is 

what I thought. Thank you. 

Chairman GRASSLEY. Thank you, Senator. 

Now Senator Durbin and the next Republican will be Senator 

Lindsey Graham. 

Senator DURBIN. Ms. Lynch, thank you for being here. I will be 

objective, although I am deferential to women named Loretta. I 

have been married to one for 47 years. And I am glad that you are 

here today. 

When your father lifted you up on his shoulders, at that Greensboro church, you were a young girl at the time, but a witness to 

a moment in history that changed America forever and literally 

changed your life. There was no way you could know that. 

One of the central issues that was raised during the civil rights 

movement was the right to vote. A right of which Chief Justice 

Roberts said, sitting in that very same place, and quoting a Court 

decision, ‘‘it’s preservative of all rights.’’ We are now in a unique 

position, some 50 years later, about to celebrate the 50th anniversary of the Voting Rights Act. The Supreme Court in Shelby County v. Holder struck down major provisions of the Voting Rights Act, 

and Congress, which historically had renewed the Voting Rights 

Act on a bipartisan basis, is now, with few rare exceptions, split 

along partisan lines as to whether or not there will be a renewal 

of some sections. 

We are finding States across the Nation, many States, that are 

changing the requirements for voting. I chaired the Constitution 

Subcommittee of Judiciary. I took the Subcommittee to public hearings in Ohio and Florida where there were new restrictions placed 

on voting by State legislatures. I called the election officials of both 

political parties in those States and asked them if there was any 

evidence of voter fraud or voter abuse that led to these legislative 

changes and to a person they said virtually none. 

What has happened is that the Department of Justice has 

stepped in—in some cases that they considered to be extreme and 
36 

unfair—and worked to stop the implementation of the State laws 

that restricted the right to vote. 

As you embark on the possibility of making that decision as Attorney General, how do you view the State voting rights in America 

today and what do you view is your responsibility should you be 

our next Attorney General? 

Ms. LYNCH. Thank you, Senator. Certainly I believe that the 

right to vote is the cornerstone of a free democracy and one that 

every citizen has the right and, in fact some would argue, the obligation to exercise. 

With respect to how voting rights are being handled in the country now, I think we are in a time of great debate over these issues. 

Those are important issues and I am certainly open to hearing all 

sides of it. 

With respect to how—and I also think that every State does have 

the responsibility and obligation to regulate the voter rolls and to 

ensure that the vote is carried out freely and openly and fairly. 

And I do believe that that is the goal of many of our elected officials, if not most of our elected officials, who deal with these issues 

every day. 

The concerns that are raised, Senator, are when acts that are 

taken with a goal towards protecting and preserving the integrity 

of the vote act in a different way and act to suppress the vote or 

in some way prevent people from exercising the franchise. 

I would hope that at the first outset, through the political discourse and discussion, that we could have a conversation about 

that and come to a resolution of practices and procedures that 

would ensure the right to vote for all citizens while still protecting 

the integrity of everyone’s ballot. 

Absent that, I believe that when laws are passed, the Department of Justice has to look very carefully at their impact in making 

a decision as to how to proceed. Certainly there have been instances when voter ID laws have received approval from the Department under what was previously known as preclearance because they sought to simply regulate and protect the ballot as opposed to act in a different way. 

But where there is an indication that the vote will somehow be 

harmed, I believe the Department of Justice certainly has the obligation to review that matter, to look carefully at all of the facts in 

evidence, and then proceed accordingly. 

Senator DURBIN. I could not agree with you more, and I find it 

ironic and painful that at this moment in our history, as we celebrate with the movie ‘‘Selma’’ and talk about the 50-year anniversary of the Voting Rights Act, that States, many States, on a systematic basis are making it more difficult for Americans to vote, 

without any evidence of voter fraud to back up those changes. In 

one Southern State, it is estimated that some 600,000 voters were 

basically precluded from voting in an election because of new voter 

ID requirements. In that same State, a 93-year-old veteran was 

turned away, a 70-year-old doctor turned away, people who were 

proud to vote, wanted to vote, turned away by new laws. These 

were people who had a right to vote, and it troubles me that, 

amidst all the celebration of the civil rights movement, we are find-
37 

ing a reversal of the most fundamental principle in preserving that 

right to vote. 

I appreciate what you had to say about it. 

I would say a word about the Smarter Sentencing Act, which I 

introduced with Senator Lee from Utah, who may be still here 

today, a bipartisan measure with 32 cosponsors, in an effort to take 

a look at the reality that not only does the United States have 

more prisoners per capita than any other nation, but in many instances, lengthy prison sentences do not serve the cause of justice 

and deny us resources we need to keep our communities safe. 

Attorney General Holder, who is not held in the highest regard 

by some Members of this Committee, has been an outspoken supporter of this bipartisan measure, and I hope that you would consider supporting it, too, although I will not put you on the spot to 

do that without giving you a chance to look at it. 

Let me add one other element. As Chairman of the Constitution 

and Human Rights and Civil Rights Committee, which was its 

name before this new Congress, we also had a hearing on solitary 

confinement. It turns out the United States in its prison system 

has more prisoners in solitary confinement than any other nation. 

And we had testimony from those who had spent 10 years on death 

row in solitary confinement in Texas, an even longer period of time 

in solitary confinement on death row in the State of Louisiana and 

ultimately exonerated. They were not found to be guilty. 

The devastating impact that has on the human mind and spirit 

for so many of these people who serve time in solitary confinement, 

many of whom are going to be ultimately released, is something 

the Federal Bureau of Prisons is now addressing. 

You have been a prosecutor for many years. What is your view 

when it comes to incarceration and segregation or solitary confinement? 

Ms. LYNCH. Senator, you raise important issues about the management of our prison system, which are charged with being the ultimate repository for those that we have concluded are seeking to 

harm Americans, but are also charged with doing so in a manner 

that is constitutional, that is effective, and that protects the safety 

of both the inmates and those who are guarding them. 

So these are balances that we have to strike, and I take the view 

that certainly as we look at these issues, one of the benefits, I believe, of discourse like this, and that I hope to have going forward 

with this Committee, is continued discussion on those issues. 

There are a number of municipalities, for example, that are looking at this very same issue. New York City is looking at it with 

respect to juvenile detention and looking to remove solitary confinement as an option for juvenile detention as well based on many of 

the similar studies that you are talking about. 

I believe we have to look at those studies. We have to listen to 

the evidence that comes before us and make the best determination 

about how to handle what can be a dangerous prison population, 

but how to handle that prison population in a way that is both constitutional and effective. 

Senator DURBIN. Thank you very much. 

Thank you, Mr. Chairman. 

Chairman GRASSLEY. Senator Graham is next. 
38 

Senator GRAHAM. Thank you. Thank you very much, Ms. Lynch, 

and congratulations on being chosen by the President. This is truly 

an honor, I am sure. 

Do you support the death penalty? 

Ms. LYNCH. Senator, I believe that the death penalty is an effective penalty. In fact, my office most recently was able to 

achieve—— 

Senator GRAHAM. How about ‘‘yes’’? 

Ms. LYNCH. A death verdict there. 

Senator GRAHAM. Yes. 

Ms. LYNCH. So we have sought it, yes. 

Senator GRAHAM. Okay. That is good. Well, that is good from my 

point of view. I do not know about other people. 

Sequestration. Have you had a chance to look at the impact sequestration will create on your ability to defend this Nation as Attorney General, all those who work for you? 

Ms. LYNCH. Senator, with respect to sequestration, I have had an 

opportunity to review that matter very closely through my work on 

the Attorney General’s Advisory Committee and also as United 

States Attorney dealing with the budgetary limits that came down 

with the implementation of sequestration. As you are familiar with 

the history perhaps far more than I, it did constrain the Federal 

budget greatly about 18 months ago. 

Senator GRAHAM. Is this a fair statement: ‘‘If Congress continues 

to implement sequestration, it will devastate the Department of 

Justice’s ability to effectively defend this country’’? 

Ms. LYNCH. Senator, I believe that that is not only a fair statement, but it is one that warrants serious discussion about how we 

manage budgets in a responsible manner, which I know is important to this body, but also giving us the tools that we need to protect the American people. 

Senator GRAHAM. In your time in this business, have you ever 

seen more threats to our country than are presented today? 

Ms. LYNCH. Certainly throughout my career as a prosecutor and 

U.S. Attorney, we are seeing an increased number and probably 

the highest number of threats that I have seen, not just from terrorist activity but the increased activity in terms of cybercrime is 

one that has not only increased numerically but qualitatively in the 

type of threat that we face. 

Senator GRAHAM. So we need to up our game in the cybersecurity 

area fairly quickly. Do you agree with that? 

Ms. LYNCH. We do need to make sure we have the resources we 

need to keep up with cybercrimes and also to get ahead of these 

criminals in terms of detection, in terms of prevention, even before 

we get to the apprehension of these criminals. 

Senator GRAHAM. And there is just not criminals. Terrorists also 

are in the cyberbusiness. Is that correct? 

Ms. LYNCH. Senator, you have outlined perhaps the greatest fear 

of any prosecutor—it is that the combination of a cyberattack being 

carried out on behalf of a terrorist entity is one that we take great 

pains to prevent, to detect, and to disrupt. But it is certainly an 

emerging threat, and it calls for resources beyond just mere personnel, but in terms of our own technology also. 
39 

Senator GRAHAM. Does it also cry out for Congress to take a comprehensive approach to our cyberproblems and pass legislation that 

would modernize our ability to deal with this threat? 

Ms. LYNCH. Certainly a comprehensive approach is necessary. In 

my experience both in the Eastern District of New York and in 

talking to my colleagues, all of us are struck by the prevalence of 

cyberissues in every type of case that we prosecute now, much 

more so than even 5 or 10 years ago. And so we must have not only 

a comprehensive approach but one that allows Government to work 

with private industry as well to come up with ways to best protect 

us against this threat. 

Senator GRAHAM. Could you give us an estimate—if not now, in 

the future—what it would cost to deport 11 million people? 

Ms. LYNCH. Certainly, Senator, I can—I would not be able to give 

you that estimate now, and I would probably have to reach out to 

the Department of Homeland Security who would be charged with 

that particular action to see if they could provide that information 

to you. 

Senator GRAHAM. Okay. Do you have a role in the deportation of 

people who are here illegally in the Department of Justice? Do you 

have any role at all there? 

Ms. LYNCH. Well, that role is initially—in terms of deportation, 

the role is initially handled by the Department of Homeland Security. There are the immigration courts through which individuals 

can seek either asylum or redress from deportation orders that are 

handled by the Department of Justice. But that would be simply 

actually further along in the process. 

Senator GRAHAM. But that is part of the process. 

Ms. LYNCH. Yes, it is. 

Senator GRAHAM. If you could maybe give us an estimate of what 

it would take to deport 11 million people from your lane, call the 

Department of Justice and see what they say, I think it would be 

instructive to us to see what the bill actually would be. 

Now, do you think the National NSA Terrorist Surveillance Program is constitutional as it is today? 

Ms. LYNCH. I am sorry? 

Senator GRAHAM. Do you think the NSA Terrorist Surveillance 

Program that we have in effect today is constitutional? 

Ms. LYNCH. Senator, I believe that it is constitutional and effective. I know that there are court challenges to it, and certainly we 

will abide by those court regulations. 

Senator GRAHAM. Right. 

Ms. LYNCH. But it has been a very effective tool in managing—— 

Senator GRAHAM. But you are okay with it being constitutional 

from your viewpoint? 

Ms. LYNCH. Certainly constitutional and effective. 

Senator GRAHAM. Thank you. 

Marijuana. There are a lot of States legalizing marijuana for personal consumption. Is it a crime at the Federal level to possess 

marijuana? 

Ms. LYNCH. Marijuana is still a criminal substance under Federal law, and it is still a crime not only to possess but to distribute 

under Federal law. 
40 

Senator GRAHAM. Under the doctrine of preemption, would the 

Federal law preempt States who are trying to legalize the substance? 

Ms. LYNCH. Senator, I think you raise very important questions 

about the relation of the Federal criminal system with the States 

and their ability to regulate criminal law that they also have, as 

there is concurrent jurisdiction, and in terms of matters in which 

citizens of various States have voted. 

With respect to the marijuana enforcement laws, it is still the 

policy of the administration and certainly would be my policy, if 

confirmed as Attorney General, to continue enforcing the marijuana laws, particularly with respect to the money-laundering aspect of it, where we see the evidence that marijuana, as I have noticed in cases in my own district, brings with it not only organized 

crime activity but great levels of violence. 

Senator GRAHAM. Do you know Michele Leonhart, the DEA Administrator? I do not know if I said her name right. 

Ms. LYNCH. She is the Administrator of the Drug Enforcement 

Administration. 

Senator GRAHAM. Have you ever had a discussion with her about 

her views of legalizing marijuana? 

Ms. LYNCH. Michele and I have not had that discussion, although 

we have spoken on any number of other issues. 

Senator GRAHAM. Could you maybe have that discussion and report back to me as to what the results were? 

Ms. LYNCH. Certainly, Senator. I look forward to speaking to not 

just Ms. Leonhart but with you on this issue. 

Senator GRAHAM. On August 29, 2013, I think, Deputy Attorney 

General James M. Cole advised all U.S. Attorneys that enforcing 

marijuana laws against those that are in compliance with State 

marijuana laws would not be a priority of the DOJ. Did you get 

that memo? 

Ms. LYNCH. All U.S. Attorneys received that memo, as did I. 

Senator GRAHAM. Do you think that is a good policy? 

Ms. LYNCH. I believe that the Deputy Attorney General’s policy 

seeks to try and work with State systems that have chosen to take 

admittedly a different approach from the Federal Government with 

respect to marijuana and determined the most effective way to still 

pursue marijuana cases consistent with the States and the choices 

that they have made. The Deputy Attorney General’s policy, as I 

understood it and as it has been implemented, still requires Federal prosecutors to seek prosecution of marijuana cases, particularly where we have situations where children are at risk, where 

marijuana is crossing State lines, particularly where you have 

marijuana being trafficked from a State that has chosen a legal 

framework into a State that has not chosen a legal framework and 

the attendant harms therein, as well as those who are driving 

under the influence of this. 

A great concern certainly within the Department and those of us 

who are looking at these issues is the availability of the edible 

products and the risk of those falling into the hands of children 

and causing great harm there. 
41 

Senator GRAHAM. If a State is intending to try to legalize personal consumption at a small level of marijuana, what would your 

advice be to that State? 

Ms. LYNCH. Well, certainly I am not sure that if a State were to 

reach out to the Department for its views—and I do not know that 

that has happened or what advice has been given, but certainly I 

believe the Department would have an obligation to inform them 

of the current Federal status of narcotics laws and the Department’s position that the Federal narcotics laws will still be enforced 

by the Department of Justice. 

Senator GRAHAM. In 2006, you signed an amicus brief supporting 

Planned Parenthood’s opposition to the partial-birth abortion ban. 

Is that correct? 

Ms. LYNCH. Yes, I was one of a number of former Department 

of Justice officials, although the amicus brief that we signed was 

focused on the issue of the facial issues of the law and how it might 

impact the perception of law enforcement’s discretion and independence. 

Senator GRAHAM. Okay. The only reason I mention that is that 

if there is a Republican President in the future and an Attorney 

General nominee takes an opposite view on an issue like abortion, 

I hope our friends on the other side will acknowledge it is okay to 

be an advocate for a cause as their lawyer. That does not disqualify 

you from serving. 

Same-sex marriage. The courts are wrestling with this issue 

right now. 

Ms. LYNCH. I am sorry? 

Senator GRAHAM. Same-sex marriage, this may go to the Supreme Court very soon. If the Supreme Court rules that same-sex 

marriage bans are unconstitutional, it violates the U.S. Constitution for a State to try to limit marriage between a man and a 

woman, that is clearly the law of the land unless there is a constitutional amendment to change it. What legal rationale would be 

in play that would prohibit polygamy? What is the legal difference 

between a State—a ban on same-sex marriage being unconstitutional but a ban on polygamy being constitutional? Could you try 

to articulate how one could be banned under the Constitution and 

the other not? 

Ms. LYNCH. Well, Senator, I have not been involved in the argument or analysis of the cases that have gone before the Supreme 

Court, and I am not comfortable undertaking legal analysis without 

having had the ability to undertake a review of the relevant facts 

and the precedent there. So I certainly would not be able to provide 

you with that analysis at this point in time, but I look forward to 

continuing the discussions with you. 

Chairman GRASSLEY. Before the Senator from Rhode Island asks 

his questions, this would be my plan, and you tell me if this will 

give you enough time. The Rhode Island Senator, Senator Lee, and 

then Senator Klobuchar, that will take us to about 12:45. Then I 

was thinking of coming back about 1:30. 

Ms. LYNCH. Thank you, Senator. 

Chairman GRASSLEY. Is that going to give you enough time? 

Ms. LYNCH. Yes, indeed. Thank you, Senator. 

Chairman GRASSLEY. Okay. The Senator from Rhode Island. 
42 

Senator WHITEHOUSE. Thank you, Chairman. 

Ms. Lynch, welcome to the Committee and congratulations on 

your nomination. I look forward to working with you on a considerable number of issues as we go forward. 

Since there has been a significant amount of commentary about 

the President’s immigration measures, the Ranking Member has 

asked me to put into the record letters from law enforcement leaders in Ohio, Utah, Iowa, Indiana, and Wisconsin supporting the 

President’s policies and concluding, ‘‘While the executive reforms 

improve a broken immigration system, they can achieve only a 

fraction of what can be accomplished by broad congressional action. 

We continue to recognize that what our broken system truly needs 

is a permanent legislative solution and urge Congress to enact comprehensive immigration reform legislation.’’ 

There is a similar letter from the member organizations of the 

National Task Force on Sexual and Domestic Violence, and a similar statement for the record of Stan Marek of Texas, the president 

and CEO of the Marek Family of Companies. If I may ask unanimous consent that those be made a part of the record? 

[Pause.] 

Senator WHITEHOUSE. Without objection. 

[The information appears as submissions for the record.] 

Senator WHITEHOUSE. There has also been considerable commentary about Attorney General Holder in a hearing at which he 

does not have the opportunity to defend himself, and it is my view 

that a significant amount of that commentary would not withstand 

his ability to defend himself if he were here. So let me say in response to that, there are legal arguments and policies that fall outside a particular political ideology. That does not make them outside the mainstream, and it does not politicize a Department to 

make those arguments or pursue those policies. 

I would argue actually that it is the effort to constrain the Department within that ideology that would be politicizing. 

I would further note, as a former United States Attorney, that 

the Department that Attorney General Holder inherited was in a 

very grave state of disarray, and that is not just a matter of opinion. The Office of Legal Counsel wrote opinions that were so bad, 

so ill-informed, so ill-cited to the case law that pertained that when 

they were finally exposed to peer review, they were widely ridiculed and ultimately withdrawn by the previous administration. 

We witnessed efforts to manipulate United States Attorneys— 

and I know that you are one, Ms. Lynch—that caused a very public 

rebellion among sitting U.S. Attorneys at the time and that drew 

in past U.S. Attorneys appointed by both Republican and Democratic Presidents. We were exposed to hiring practices within the 

Department that were on their face overtly political and had political litmus tests for hiring, a first in the Department’s history—it 

had not gone down that way before—and ultimately a series of 

other issues as well as those led to the resignation of the Attorney 

General of the United States. 

So it is easy to critique Attorney General Holder and blame him 

for politicizing the Department, but I think history’s calm and dispassionate judgment will reflect that the Attorney General actually 

brought the Department back from a place where it had been, 
43 

sadly, politicized. And I can say firsthand that a lot of my U.S. Attorney colleagues, both from Republican and Democratic administrations, were very, very concerned about what was happening to 

the Department back then. 

I should not waste the time of this hearing on that, but with all 

the things that have been said about Attorney General Holder, 

without him having the opportunity to defend and rebut, I wanted 

to say that. 

These are some of the areas I think we need to work on together, 

Ms. Lynch, when you are confirmed, as I hope you will be. 

Senator Graham raised the issue of cybersecurity, and he has 

been an extraordinarily helpful and forward-leaning Member of the 

Senate on protecting our country from the dangers of cyberattacks, 

whether ordinary criminal activity or the theft of intellectual property wholesale on behalf of Chinese industries or the really dangerous threat of laying in the cybersabotage traps that can be detonated later on in the event of a conflict. 

I am concerned about the structure within the Department for 

handling cybersecurity. At an investigative level, it is spread across 

primarily the FBI, secondarily the Secret Service, and to a degree 

Homeland Security. Within the Department it falls under the rubric both of the Criminal Division and of the National Security Division. 

And I hope that with the assistance of the Office of Management 

and Budget, you and I and the Office of Management and Budget 

and other interested Senators can continue a conversation about 

what the deployment of resources and structure should look like 

against the cybersecurity threat in the future. Will you agree to 

participate in such a process? 

Ms. LYNCH. Certainly, Senator. I think you have outlined an important issue, and if confirmed as Attorney General, I will look forward to working with you and all of the relevant partners on this 

Committee and throughout Congress in making sure that the Department is best situated to handle this growing threat. 

Senator WHITEHOUSE. There is considerable bipartisan legislation in the Senate on this subject, and I hope it is one where we 

can get something serious accomplished in the months ahead. 

Another area where there is considerable bipartisan legislation is 

on sentencing reform. Senator Durbin mentioned his and Senator 

Lee’s legislation that is at the front end, at the sentencing end. 

Senator Cornyn and I have an almost parallel bill that relates to 

the end of the sentence and how to encourage incarcerated people 

to get the type of job training, drug and alcohol rehabilitation, 

anger management, mental healthcare, family reconciliation, job 

training, whatever it is that they need, so that when they are put 

back into society, they have less chance of going back to a life of 

crime, of recidivating, as they say. 

I think we have made a lot of progress on that, and I think we 

have very good legislation, and I hope that you and the Department will continue to be supportive of our efforts. 

Ms. LYNCH. Certainly, Senator. You have raised I think the next 

challenge as we look at how to manage our prison population and 

the issue of crime, which is, How do we help people who are going 

to be released return to the communities from which they came 
44 

and become productive citizens as opposed to returning to the prior 

behavior, criminal behavior that not only landed them in prison 

but creates new victims? And that will certainly be an important 

part of my focus. 

Within the Eastern District of New York, we are very strong participants in reentry programs that are sponsored by our colleagues 

at the Brooklyn District Attorney’s Office in one of the most difficult neighborhoods in my district, in Brownsville. We work extensively with those reentry efforts, and those reentry efforts work exactly as you said in focusing on job training and focusing on building skills so that those coming out of prisons can become productive members of society as opposed to those who will continue to 

harm others in society. 

So you certainly have raised very important issues, and I look 

forward to continuing the discussion with you and people on this 

Committee and throughout this body on those issues. 

Senator WHITEHOUSE. Thank you. 

Another piece of legislation we will be working on, thanks to the 

courtesy and care of our Chairman, Senator Grassley, is a reauthorization of the Juvenile Justice and Delinquency Prevention Act. 

It has been now 12 years since its last reauthorization. And I appreciate very much that the Chairman has been willing to work on 

this and has made it one of the priorities for this Committee. Obviously, the way in which juveniles are treated in our corrections system and are detained have been important issues for the Justice 

Department, and I would ask again for your cooperation and active 

support of our process going forward to reauthorize the JJDPA. 

Ms. LYNCH. Certainly, Senator. I think that the way in which we 

handle juveniles within the criminal justice system is something 

that is of great concern to me in terms of both my practice in the 

Eastern District of New York and also talking to my colleagues, the 

other U.S. Attorneys across the country who face these issues. 

I believe it certainly is incumbent upon all of us to look at the 

latest research on issues of how juveniles develop and they manage 

themselves in certain environments and always be open to reviewing those. 

I look forward to working with you and others in discussing that 

statute. 

Senator WHITEHOUSE. In my last seconds, you and I have both 

had the experience of being United States Attorneys and I suspect 

we have both had the experience of finding people who were targets of our criminal enforcement efforts who, if we look back into 

their pasts, might have avoided our attention had they managed 

their drug or alcohol addiction—— 

Ms. LYNCH. Certainly. 

Senator WHITEHOUSE [continuing]. Or gotten the mental health 

treatment that they needed. And it is sort of a—I guess it is almost—it is a societal sorrow when somebody like that does not get 

the treatment that they need and ends up in the criminal justice 

system and it is a great burden for the taxpayer. 

We have other legislation, the Comprehensive Addiction Recovery Act, that I hope you will also work with us on to try to make 

sure that where we can intervene with appropriate addiction treatment and mental health treatment, we can steer people to a more 
45 

appropriate setting rather than burden the criminal justice system 

with what is often an inappropriate response to their conduct and 

to their condition. 

Ms. LYNCH. Certainly, Senator. In my own district, our court has 

been very forward-thinking and very effective in setting up diversion programs and a pre-trial opportunity program that has provided great support for people and enabled them to provide treatment and learn to become productive members of society and, 

therefore, escape being trapped into a spiral of criminal behavior 

and the results thereof. 

Chairman GRASSLEY. Thank you. 

Senator WHITEHOUSE. Thank you, Mr. Chairman. 

Chairman GRASSLEY. Thank you very much. And now Senator 

Lee. 

Senator LEE. Thank you, Mr. Chairman. And thank you, Ms. 

Lynch, for joining us today. Thanks for your service to our country. 

I also appreciated our visit recently when you came to my office 

and I am grateful to you for your support for sentencing reform. 

The bipartisan legislation that I am working on with Senator Durbin that he referenced a few minutes ago is important and I appreciate your views on that as well. 

I want to speak with you briefly going back to prosecutorial discretion. As a former prosecutor, I assume you would agree with me 

that there are limits to prosecutorial discretion in the sense at 

least that it is intended to be an exception to the rule and not to 

swallow the rule itself. 

Would you agree with me that far? 

Ms. LYNCH. Certainly, sir. I believe that in every instance, every 

prosecutor has to make the best determination of the problems presented in their own area, in my case, in my district, and set priorities and within those priorities, exercise discretion. 

Senator LEE. Right. Prosecutors inevitably have limited resources and so it is understandable why they would choose, when 

they have got to prioritize, to perhaps put more resources into punishing, for example, bank robberies than they do into punishing 

pickpocketers, and perhaps they might put more resources into 

going after pickpocketers than they do going after people who exceed the speed limit. 

But at some point there are limits to this and that does not mean 

that it would be okay, that it would be a proper exercise of prosecutorial discretion to issue permits for people to speed. Right? 

Ms. LYNCH. Certainly, sir. I think that if a prosecutor were to 

come to the view that they had to prioritize one crime over another, 

you would always still want to retain the ability. Even if it was an 

area that was not an immediate priority, if, for example, it became 

one because a particular neighborhood was being victimized or, 

again, to use your issue of speeding, there were deaths resulting 

from that, you would want to have the ability to still, if you could, 

take resources and focus on that issue. It might not be the first priority, but you would want to have the ability to go back and deal 

with that issue. 

Senator LEE. And for that reason, prosecutorial authorities or 

law enforcement authorities typically do not go out and say we are 

only going to punish you for a civil violation involving a traffic of-
46 

fense if you speed and then it results in an accident with injuries. 

They leave open the real possibility, indeed, the likelihood that 

someone can and will be brought to justice in one way or another 

for any civil violation they commit while speeding. 

Ms. LYNCH. Well, certainly, I cannot speak to all law enforcement agencies. I know that depending upon the agency, sometimes 

the priorities are known. Sometimes they are expressed. Every office has guidelines. Certainly, the law enforcement agencies are 

aware of certain guidelines in terms of, for example, a dollar 

amount involving certain types of crimes. 

Senator LEE. But if someone went out and said I am going to 

issue a permit to someone saying that they may speed, saying they 

may go up to 100 miles an hour without receiving a ticket, unless 

that person were also in charge of making the law in that jurisdiction, that would be a usurpation of the system by which our laws 

are made. Would you agree with that? 

Ms. LYNCH. Again, without knowing more about it, I am not able 

to respond to the hypothetical. It certainly does not sound like 

something that a law enforcement officer would be engaged in, but, 

again, without knowing more of the facts, I am not able to really 

respond to your hypothetical. 

Senator LEE. Okay. Thank you. Let us shift gears for a minute. 

Do you agree that citizens and groups of citizens should not be targeted by Government, should not be the recipients of adverse action by the Government based on their exercise of their First 

Amendment rights? 

Ms. LYNCH. Certainly, I think that the First Amendment is one 

of the cornerstones of a free society and I believe that our jurisprudence has set forth great protections for individuals, as well as 

groups, in the exercise of their First Amendment rights to make 

sure that they are protected and not targeted. 

I also would say that, certainly, as a career prosecutor and U.S. 

Attorney, there is really no place for bias or personal view in terms 

of how we approach the types of crimes that we pursue. 

Senator LEE. And presumably you would say the same with respect to someone’s exercise of their rights under the Fourth 

Amendment or the Fifth Amendment or the Sixth or the Seventh 

or the Eighth. Under any of those protections, somebody should not 

be punished by Government for exercising their rights under those 

provisions of the Constitution. 

Ms. LYNCH. Certainly, I believe that there are safeguards in 

place to prevent that. I think we always certainly have to balance 

that with some—with the possibility of an extreme situation in 

which we may have to move quickly, for example, to protect someone or there is an imminent threat therein. But I believe that there 

are protections set up for that purpose. 

Senator LEE. Second Amendment rights, as well, presumably 

then. Right? 

Ms. LYNCH. I believe that certainly the Supreme Court has set 

forth clarity on this issue. And so, therefore, that—regardless of 

the amendment—that certainly that is a protected right. 

Senator LEE. Are you aware that there is a program called Operation Choke Point within the Department of Justice and that 

through this program the Department of Justice and some other 
47 

Federal law enforcement agencies have on some occasions put financial pressure on legal businesses, including hardworking Americans who happen to be involved in the business of selling firearms 

and ammunition, by essentially telling banks not to do business 

with them? 

Ms. LYNCH. I am generally familiar with the name Operation 

Choke Point and my understanding of it with respect to the Department of Justice’s current work—again, I have not been involved in either the implementation or the creation of it. But my 

general understanding of it is that it looks to target financial institutions that are involved in perpetrating frauds upon consumers 

and where there might be a financial institution that is facilitating, 

for example, consumer bank accounts being looted or consumers essentially losing their bank accounts, that that is the target of that. 

Again, I am not familiar enough with the specifics of it to know 

about the underlying businesses that the transaction might have 

originated from, but that is my understanding of the program. 

Senator LEE. Okay. I assume it is safe to assume that should you 

be confirmed, you will work with me to make sure that legitimate 

law-abiding Americans are not targeted for their exercise of their 

Second Amendment rights. 

Ms. LYNCH. On that and any other issue of importance to you, 

Senator. I look forward to hearing your concerns and working with 

you on them. 

Senator LEE. Thank you. Thank you. I want to talk about civil 

forfeiture for a minute. Do you think it is fundamentally just and 

fair for the Government to be able to seize property from a citizen 

without having to prove that the citizen was guilty of any crime 

and based solely on a showing that there was probable cause to believe that that property was in some way used in connection with 

a crime? 

Ms. LYNCH. Senator, I believe that civil forfeiture, civil and 

criminal forfeiture, are very important tools of the Department of 

Justice, as well as our State and local counterparts through State 

laws, in essentially managing or taking care of the first order of 

business, which is to take the profit out of criminal activity. 

With respect to civil forfeiture, certainly as implemented by the 

Department, it is done pursuant to supervision by a court. It is 

done pursuant to court order and I believe that the protections are 

there. 

Senator LEE. What if you just ask the average person on the 

street whether they thought the Government could or should be 

able to do that, should the Government be able to take your property absent a showing that you did anything wrong, thereafter requiring you, as a condition for getting your property back, whether 

it is a bank account that has been seized or frozen, whether it is 

a vehicle that has been seized, that you would have to go back and 

prove your innocence? 

So you are guilty, in essence, until proven innocent, at least 

guilty in the sense that your property is gone. Do you think your 

average citizen would be comfortable with that? 

Ms. LYNCH. Well, I certainly cannot speak in terms of what the 

average citizen would or would not be aware of there. I certainly 
48 

understand that there has been a lot of discussion and concern over 

asset forfeiture as a program as expressed by a number of people. 

Senator LEE. And particularly at the State level, such that some 

States have adopted, in response to a pretty widespread citizen outcry, laws significantly restricting the use of civil forfeiture proceedings for that very reason, which leads to why I raise this with 

you. It is my understanding that the Department of Justice has, in 

many instances, been used as a conduit through which law enforcement officials at the State and local level can circumvent State 

laws restricting the use of civil forfeiture within the State court 

system. 

In other words, where, under the State courts, the State law established system, that kind of forfeiture is prohibited, people can 

go through the Department of Justice. The Department of Justice 

will take out a fee, maybe 20 percent of the value of the assets 

seized, and then those can be returned. It is a process known as 

adoption. 

Do you not think most Americans would find that concerning if 

the Federal Government is facilitating efforts to circumvent State 

laws that are designed to prohibit the very thing that they are 

doing? 

Ms. LYNCH. I think that a number of people would have questions about how the Department of Justice manages its asset forfeiture program, and my understanding is that those questions 

have been raised about various aspects of it. 

My understanding is that the Department is undertaking a review of its asset forfeiture program, and certainly, as U.S. Attorney, I am aware of the fact that the adoption program that you 

have just described, which did raise significant concerns from a 

number of parties, has actually been discontinued by the Department—that is the guidance that we have recently received—with 

some exceptions for things like items of danger, explosives and the 

like. 

But it is part of an ongoing review of the asset forfeiture program and certainly, should I be confirmed, I look forward to continuing that review. 

I would also say, Senator, that I look forward to continuing these 

discussions with you as you express concerns and interests on behalf of constituents or others as an important part of the Department being as transparent as possible in explaining how it operates. 

Asset forfeiture is a wonderful tool. We return money to victims. 

We take the profit out of crime. But as with everything that we do, 

we want to make sure that we are being as responsive as possible 

to the people that we are serving. 

Senator LEE. Thank you. I look forward to those additional discussions. And I see my time has expired. 

Thank you very much. 

Chairman GRASSLEY. Thank you, Senator Lee. And now Senator 

Klobuchar. 

Senator KLOBUCHAR. Thank you very much. And thank you so 

much to you. I understand I am the only thing that stands between 

you and your lunch and this entire room and their lunch. We will 

have a good 10 minutes here. Your dad seemed to enjoy that one. 
49 

[Laughter.] 

Senator KLOBUCHAR. I think everyone knows you have an impressive re ́sume ́ and the one thing that has not been brought up 

was something I actually read this weekend in the profile about 

you, as I was thinking about this old saying we have in our household that the obstacles on life’s path are not just obstacles, they are 

the path. And no one represents that better than you, Loretta 

Lynch. 

When I read about the story of you scoring so well on a test in 

elementary school that they did not believe that you had taken that 

test and then you took it again and scored even higher. The obstacles are the path. Or the time that you became the valedictorian 

of your class and the school officials said that it would be too controversial if you were the only valedictorian, and so they added 

some other students to be valedictorian. 

I was thinking of all the Senators in this building: We may have 

more than a few valedictorians and I do not think that ever happened to them. 

So I thank you for your courage and your perseverance and your 

parents’ courage and perseverance that brought you to us today. 

I was going to start with a question. I know you touched on it 

with Senator Schumer. As you know, I am a former prosecutor. My 

office had about 400 people. We worked really well with the U.S. 

Attorney’s Office. Some of the U.S. Attorneys you know that I 

worked with, Todd Jones, who is now the head of our Bureau of 

Alcohol, Tobacco and Firearms, and then also Tom Heffelfinger, 

who was the U.S. Attorney under Bush, and now we have a guy 

named Andy Luger, who you are also aware of. And it has been 

very important, that relationship that we have had with local prosecutors and the U.S. Attorney’s Office. 

I wondered if you would talk a little bit more about how you 

would view that as the Attorney General in terms of how you 

would like your U.S. Attorneys to work with the local prosecutors, 

who, as you know, can be very inundated with a lot of cases. And 

sometimes we would view the U.S. Attorney’s Office as getting the 

luxury to spend a lot of time on cases while we would be handling 

literally tens of thousands of cases coming in our doors. 

Ms. LYNCH. Thank you, Senator. You touch upon an important 

part of my practice. One of the benefits of being the U.S. Attorney, 

as you have noted, is getting to know the other prosecutors, not 

just my fellow U.S. Attorneys, but also the numerous State and 

local prosecutors with whom we work so well. 

I am so privileged in Brooklyn to have a strong relationship with 

the District Attorneys in my district, in all five counties, but also 

even outside of my district into Manhattan, into the Bronx and beyond. 

We talk often on issues affecting our community. We talk often 

on issues affecting the entire district. I was privileged to be able 

to share starting my prescription drug initiative with the Brooklyn 

District Attorney’s Office and also work closely with District Attorneys in Nassau and Suffolk County in handling the problem of prescription drug abuse, which has spiked, unfortunately, and led to 

violence and, in fact, deaths on Long Island. 
50 

Senator KLOBUCHAR. I think you know that the stats lately are 

that four out of five of heroin users started with prescription drugs 

and then they turned to heroin. I think people are shocked by that, 

but you see that connection with the heroin, as well. 

Ms. LYNCH. We do, indeed, because of the opioid substance of 

both drugs and we are, in fact, seeing a resurgence in heroin not 

just in my district, but, unfortunately, across the country. 

This problem, like so many others, is one that must be dealt with 

in a cooperative and collaborative manner and I am incredibly 

proud to say that all of my United States Attorneys colleagues take 

very seriously the opportunity and the privilege to work with our 

State and local counterparts in crafting prescription drug initiatives, heroin initiatives, along with our violent crime initiatives. 

We work closely with our State and local counterparts to determine where is the best place for a case to be brought. We look at 

things like the type of sentence that can be achieved or the type 

of evidence that is admissible in the different proceedings, and we 

cannot have those discussions without building on a positive working relationship, and it has really been a hallmark of this U.S. Attorney community. 

Should I be confirmed as Attorney General, I intend to draw 

upon that strength of my U.S. Attorney colleagues, as well as my 

State and local counterparts throughout the country. People who 

are at the ground zero of these problems often come up with the 

best solutions. They pull in the healthcare community. They pull 

in parents. They pull in community leaders and they come up with 

a solution that works that can often be replicated in other places. 

I have seen that happen with my U.S. Attorney colleagues particularly in the area of heroin abuse and some of the initiatives 

that they are working on, as well. 

So if confirmed as Attorney General, I intend to rely very heavily 

on my prosecutorial colleagues. 

Senator KLOBUCHAR. Well, thank you very much for that answer. 

At some point, I think we have talked about this before, but Senator Cornyn and I did the drug take-back bill and we have finally 

gotten the rules out from DEA on that and we look forward to 

working with you on that. 

Something else I was—I think I will talk to you later about your 

work in Rwanda, but the fact that you have done some very important international work, as well, but you have also done prosecution of international terrorists here at home. And what lessons 

have you taken from those cases? 

I will tell you why this is important from a home State perspective. As you know, our U.S. Attorney’s Office in Minnesota indicted 

and successfully prosecuted a number of Al-Shabaab members who 

had gone over to Somalia. We also had the first person killed in 

Syria fighting with ISIS was actually a Minnesotan. And our U.S. 

Attorney recently issued some indictments against others that have 

been recruited to fight over in Syria. 

There is a pilot program that the Justice Department has involving three cities—L.A., Boston, and Minneapolis-St. Paul. There is 

going to be an extremism conference coming up. 

But, could you, one, talk about your experience with these kinds 

of cases, and two, how you think that this pilot program should be 
51 

funded? We are concerned because it is coming out of general 

funds, and if you would support some kind of specific funding for 

the program? 

Thank you. 

Ms. LYNCH. Certainly, just talking initially on the subject of combating violent extremism, one of the most difficult things are young 

men and, increasingly, young women, many of them American citizens, who are turning to this radical brand of terror and being recruited to go overseas and become trained and are being sent back 

to perpetrate threats against the homeland. 

And the sources of this and the reasons for this are debated endlessly and I think we need further discussion about that, but we 

must take steps to combat this. We must take steps to understand 

the level of disaffection that these individuals are feeling with their 

current society and also help them and their families understand 

the risks that they are facing. 

Some of the most difficult conversations I have had have been 

when I have visited the mosques in my district and had, frankly, 

wonderful interaction with the participants there and wonderful 

interaction with the residents there, but we have talked about violent extremism and I have talked to parents who have said to me, 

‘‘You know, I just don’t understand why the Government is targeting my youth.’’ 

And we have had very frank discussions about how it is difficult 

for any parent to know what their children are seeing on the Internet and how they are responding to what is being put forth on the 

Internet and the harm that it does not just to our society, but also 

to those families, because they lose their children. They absolutely 

lose them when they are sucked up by this radical extremism and 

only to come back to be dealt with, as they will, by American justice. 

Certainly, with respect to the number—the types of cases that 

my office has seen, we have seen individuals who started off as relatively peaceful individuals, from what we could tell, but were 

brought—were dragged into radical extremism, did travel overseas, 

were recruited to then return to the U.S. and perpetrate attacks 

there. We have seen that on more than one occasion. 

Senator KLOBUCHAR. And the funding, are you aware of the pilot 

program that we have going in the Twin Cities? 

Ms. LYNCH. Yes. Yes. A very important program. 

Given the nature of the problems that have emanated from that 

community and how it—the devastation that it has essentially 

wrought within those families and within that community, I think 

those issues are very important. 

Certainly, I look forward to working with you on finding the most 

effective way to fund those programs, because they have a lot to 

teach all of us who are working in this issue. 

Senator KLOBUCHAR. Thank you. And the last thing I am going 

to ask about is sex trafficking. And I know you have done an impressive job of prioritizing the investigation and the prosecution of 

trafficking cases. 

This is something Senator Cornyn and I again have a bill on sex 

trafficking, which is called the Safe Harbor bill, which is supported 

by a lot of the groups, which creates incentives for States to enact 
52 

laws which treat the victims of sex trafficking, the children, as true 

victims and not as perpetrators themselves. 

We think we can build better cases that way so people will come 

and testify against those that are running the sex rings. 

Could you talk about your work in this area and how you view 

these safe harbor laws? 

Ms. LYNCH. Certainly, I think these safe harbor laws are an essential next step in helping the victims of this horrible scourge. 

My office has been privileged to lead the way in prosecuting numerous individuals who have essentially tricked women through 

lies, deceit, also coercion and duress, even rape, before they are 

brought to this country and forced to work here as sexual slaves. 

It is a tremendously degrading process to these women and one 

in which they find it difficult to escape because of either a language 

barrier or the fact that, sadly, often their children are being held 

in their home country to force them to behave and to force them 

to continue this activity. 

And certainly some of the work that I am most proud of has been 

the efforts my office has undertaken with a number of the organizations that help victims of human trafficking and also with other 

governments to reunite these children with their mothers after the 

cases are over. 

Senator KLOBUCHAR. Thank you. And I also look forward to 

working with you. We also have a number of domestic victims, I 

think 80 percent of the victims actually are from the U.S. as well. 

Ms. LYNCH. Absolutely. 

Senator KLOBUCHAR. Especially when you get to the oil patch of 

North Dakota and those kinds of places where the U.S. Attorney’s 

Office has played a major role. 

So thank you very much. Thank you for your grace under pressure today, and I hope the Chairman will let you get some lunch. 

Thank you. 

Ms. LYNCH. Thank you, Senator. 

Chairman GRASSLEY. Are things going okay for you, Ms. Lynch? 

Ms. LYNCH. Yes, and thank you for inquiring, Mr. Chairman. 

Chairman GRASSLEY. We will now adjourn until 1:35. 

[Whereupon, at 12:46 p.m., the Committee was recessed.] 

[Whereupon, at 1:40 p.m., the Committee reconvened.] 

Chairman GRASSLEY. Welcome back, Ms. Lynch. Hope you are 

ready to continue. 

Ms. LYNCH. Thank you, Senator. 

Chairman GRASSLEY. Okay. And according to the seniority arrangements that we are doing, Senator Cruz of Texas is next. 

Senator CRUZ. Thank you, Mr. Chairman. 

Good afternoon, Ms. Lynch. 

Ms. LYNCH. Good afternoon, Senator. 

Senator CRUZ. And congratulations on your nomination. 

Congratulations to your family, who I know are justifiably proud 

of you for being nominated to this post. 

Ms. LYNCH. Thank you, sir. 

Senator CRUZ. You know, I will note a number of my friends and 

colleagues who practice law in New York have reached out to me 

with words of praise for you, describing your tenure as U.S. Attorney there as that of a no-nonsense prosecutor and as a U.S. Attor-
53 

ney who honored and respected the law. And so for that, I congratulate you. 

You began your remarks by describing how, with new attorneys 

in your office, you remind them that they take an oath not to the 

Attorney General, but to the Constitution. 

That same thing is true for the Attorney General of the United 

States, and I have long expressed my very deep concerns with the 

conduct of the current Attorney General, Eric Holder. 

The Attorney General has a long and distinguished history, a bipartisan history, of being willing to stand up to the Presidents who 

appointed them. Attorneys General in both parties have demonstrated fidelity to law and to the Constitution, even when it 

meant telling the President of their own party ‘‘no.’’ 

Now, that is never easy to do, but part of what has made the Department of Justice special is that Attorneys General, both Democrat and Republican, have honored that commitment, as you noted 

to your young lawyers, to the Constitution, not to the President 

who has appointed them. My single greatest concern with the tenure of Attorney General Eric Holder is that I do not believe he has 

upheld that tradition. I believe that the Department of Justice has 

behaved more like a partisan operation for the President than an 

impartial law enforcement agency. 

And so I want to ask you at the outset the simple question of, 

if confirmed, how would your tenure as Attorney General differ 

from that of Eric Holder’s? 

Ms. LYNCH. Well, Senator, I think you have raised an important 

issue of the role of the Attorney General. As we have discussed, it 

is an incredibly important Cabinet member, but the Attorney General is a Cabinet member unlike other Cabinet members in that 

the obligation of the Attorney General is first and foremost to represent the American people, to protect and defend the Constitution, 

and to faithfully execute the laws as passed by this body. 

In interacting with the White House or any agency, if confirmed 

as Attorney General, I would do so in the manner in which I have 

conducted myself as United States Attorney—with a full and fair 

evaluation of every matter brought before me, with a full and fair 

review of all of the relevant laws, with discussion with career prosecutors as well as even the most junior people, whom I have found 

to often have the best insight into matters. And only then will I 

make a determination as to the step to be taken. 

Going forward, every Attorney General creates their own path. 

You have asked how I will be different from Eric Holder. I will be 

Loretta Lynch. I will be the person that I have always been as I 

have led my office through two terms as United States Attorney, 

focusing solely on the protection of the people of my district—— 

Senator CRUZ. Excellent. 

Ms. LYNCH. And, if confirmed as Attorney General, on the protection of all of the American people. 

One thing I do wish to say, Senator, is that with respect to the 

issues that you raise, I greatly appreciate your sharing them with 

me, both now and during the discussion that we had in your office. 

I look forward to more discussions with you and your colleagues, 

and I want to pledge to you now that I will always listen to your 

concerns. I will consult with this body where appropriate, because 
54 

there is a great collective wisdom here and experience, both prosecutorial and legal. And I look forward to having a dialogue with 

you and, frankly, crafting a positive relationship, not just with this 

Committee, but with Congress. 

Senator CRUZ. Well, Ms. Lynch, I thank you for that. 

That commitment is welcome and would mark a sharp break 

from the practices of the current Department of Justice. 

One of the frustrations of a number of Members of this Committee is that the Department has not been responsive to this Committee’s requests and indeed, that—were that to change, that 

would be highly welcome. 

Let me focus on one and, if time allows, two specific areas where 

I believe the Department has gone with partisan politics instead of 

upholding the law. And let us start with immigration, which has 

been a topic of much discussion already. 

You mentioned in your opening statement that you had now 

taken the opportunity to review carefully the OLC opinion on the 

President’s Executive amnesty. Do you agree with the legal analysis in the OLC opinion? 

Ms. LYNCH. Senator, I have had occasion to review the OLC opinion that dealt with the Department of Homeland Security’s request 

for a legal framework in how to prioritize removal of certain undocumented immigrants—or really, all the undocumented immigrants under their jurisdiction. 

I did not see a grant of amnesty there or a pathway to citizenship. Certainly, as I reviewed the opinion as well as the letters 

from some scholars who wrote in support of it, it seemed to be a 

way to look for the legal framework based up on case law precedent, prior action of Congress, as well as the discretionary authority of the Department of Homeland Security to prioritize this removal. 

And certainly, placing those most dangerous of the undocumented immigrants at the top of that list seemed to me to be a 

very reasonable exercise. Certainly I would want to hope—I would 

hope that the protection of those communities where undocumented 

immigrants involved in, for example, violent crime, gang activity, 

terrorism, would be at the top of the list. 

Senator CRUZ. Ms. Lynch, you said now and before in your opening statement that you found the legal analysis reasonable. OLC 

operates in the place of the Attorney General of the United States, 

and an OLC opinion operates as the legal judgment of the Attorney 

General as the chief legal officer for the United States. 

And so my question is quite simply do you agree with the legal 

analysis in that memorandum? Would it have been your legal analysis, had you been asked the same question? 

Ms. LYNCH. Well, Senator, I certainly am not able to say at this 

point what my—if my legal analysis would have taken the same 

pathway and the same steps, because I have not reviewed all of the 

cases and reviewed all of the memoranda that I am sure went into 

that. 

But what I can say is that, again, as the opinion seeks to talk 

about the exercise of Executive discretion, it seemed to be looking 

at precedent, actions of Congress, as well as the immigration laws, 

to see if there was a legal framework for the requested actions. 
55 

And what I noted was that for some of the actions, the Office of 

Legal Counsel found that there was a legal framework for some of 

the actions that the Department of Homeland Security wanted to 

set in place, but for some of the requested actions, the Office of 

Legal Counsel found that there was not the appropriate legal 

framework for some of those actions and said—and my understanding is advised the Department of Homeland Security that 

they should not proceed along certain ways. And my understanding 

is that that advice was taken. So I do believe that the Office of 

Legal Counsel has the important obligation to look at the law, look 

at the facts, look at the action that is being brought before it and 

say where there is an appropriate legal framework, as well as 

where there is not an appropriate legal framework. 

Senator CRUZ. Ms. Lynch, I would note that I have twice asked 

you if you agree with the analysis, and you are a very talented lawyer and so I suspect it is not an accident that twice you have not 

answered that question. You have described what OLC did, but 

have not given a simple answer. 

Do you agree with that analysis or not? 

Ms. LYNCH. Senator, I have told you that I did find the analysis 

to be reasonable. I did find it to recognize the issues and it did 

seem to provide a reasonable basis. 

Senator CRUZ. Well, in 2011, before the last election, President 

Obama said, ‘‘With respect to the notion that I can just suspend 

deportations through Executive order, that is just not the case, because there are laws on the books that Congress has passed.’’ Now, 

do you agree with what President Obama said in 2011? 

Ms. LYNCH. Senator, I do not know what legal opinion he was relying on at the time. Certainly the subsequent legal opinion talks 

about the temporary deferral of deportation in a way that does provide a legal framework for it, but I do not know if the President 

was speaking of this exact same issue or not. I simply could not 

provide a legal opinion about the President’s comments at this 

time. 

Senator CRUZ. Now, the Executive action—in my view, the OLC 

opinion has no legal basis whatsoever. It hinges upon the notion of 

prosecutorial discretion, and you rightly described how any prosecutor will prioritize some cases over others, for example, focusing 

on more violent criminals. 

In your office, as U.S. Attorney, you have certainly exercised 

prosecutorial discretion. Was it your practice for any category of 

crimes to suggest to those who may have violated the criminal laws 

that they can come into your office and seek a written authorization exonerating them of their past crimes and authorizing them to 

continue carrying out crimes for a large categorical group of offenders? 

Ms. LYNCH. Senator, we would not have that type of direct dealing with offenders. They would come to our attention as part of an 

investigation or part of an issue where they would already be 

under suspicion of some sort of wrongdoing. So we would not have 

that type of discussion with someone who might be represented or 

might have other rights. We would not have that type of discussion 

with someone. 

Senator CRUZ. So that is not anything you ever did? 
56 

Ms. LYNCH. No. We do have priorities within my office. We do 

have guidelines within my office. Those are shared with our law 

enforcement colleagues. We also share them with many of our 

State and local colleagues as we discuss where to best place certain 

types of cases. 

Senator CRUZ. Thank you very much, and we will continue later 

on in the day. 

Chairman GRASSLEY. Thank you, Senator Cruz. 

Senator Franken now. 

Senator FRANKEN. Thank you, Mr. Chairman, and congratulations on being the Chairman. 

Chairman GRASSLEY. Thank you. I am glad to be Chairman, I 

can tell you that. 

Senator FRANKEN. Yes, I know. I know you are. 

[Laughter.] 

Senator FRANKEN. Ms. Lynch, congratulations on your nomination. 

Ms. LYNCH. Thank you, Senator. 

Senator FRANKEN. I was very—it was great meeting with you. 

Your reputation for being smart and tough precedes you. 

And you did not disappoint in our meeting, and thank you for the 

wide-ranging conversation we had—how was lunch? 

[Laughter.] 

Ms. LYNCH. Excellent. Thank you, sir. 

Senator FRANKEN. Yes. You enjoyed lunch? 

Ms. LYNCH. Yes, sir. 

Senator FRANKEN. Good. 

I discussed a couple of things, or a number of things, when you 

were in my office, and I want to bring them up again and talk 

about them. One is our prison system. We have—— 

Ms. LYNCH. I am sorry. 

Senator FRANKEN. Our prison system, I want to talk about our 

prison system. The United States has 5 percent of the world’s population, 25 percent of the prison population, and I think one of the 

biggest problems is that we have used our criminal justice system 

as a substitute for a well-functioning mental health system. We 

have a lot of people in prison, in jails in this country who should 

not be—probably should not be there, and who—it is not serving 

anybody any purpose. 

We have young people and others with mental illness who are in 

solitary confinement and it just makes their mental health worse. 

What I want to do to address that is something called the Justice 

and Mental Health Collaboration Act. It is a reauthorization of 

MIOTCRA, which is the Mentally Ill Offender Treatment and 

Crime Reduction Act, which has been very bipartisan in the past 

and should be—in fact, it is bipartisan. It has been carried by a Republican in the House. 

And I just want to ask you for your support, as we go forward, 

in making sure that our criminal justice system is not just wasting 

money, but wasting lives, and that you will work together with me 

on that. 

Ms. LYNCH. Senator, I look forward to working together with you 

on that as well as other important issues. 
57 

I think you have highlighted—one of the most important developments in criminal justice research and literature has been the ongoing research that has been done into the root causes of so much 

of our criminal activity. In particular, where the mentally ill are 

involved, we continue to learn more and more about how that illness impacts them as they make their way through the criminal 

justice system. And I look forward to taking advantage of that new 

knowledge with you and working with you on that and other important issues. 

Senator FRANKEN. Some of this involves—I do not know if you 

have heard of crisis intervention training, but crisis intervention 

training is teaching both police on the ground and corrections officials in prisons to recognize when they are seeing someone with a 

mental health problem, and to deal with it in the correct way. 

Ms. LYNCH. Certainly. Certainly, because I think the research 

has shown—and certainly anyone with experience with a family 

member or friend who has a mental illness knows—that sometimes 

conditions may manifest themselves in ways that appear to be disruptive but are, in fact, a reflection of the illness. 

Senator FRANKEN. And so what I will be doing with this is doing 

mental health courts so that if a prosecutor and an arresting officer 

and the defense attorney and the judge say this person belongs in 

a mental health court so that they can be treated and not go to 

prison, where it is going to clog up the prison system and make 

this person’s condition worse, then we will do that. 

And also, to do veterans courts, because we have so many veterans that are coming back with invisible wounds. 

Ms. LYNCH. Yes. 

Senator FRANKEN. And sometimes those invisible wounds will be 

medicated by drugs or by alcohol, and instead of going to prison, 

maybe it is time we can go to a veterans court. 

Ms. LYNCH. Certainly, Senator. I know that some of my U.S. Attorney colleagues have been instrumental in working on the concept of veterans courts in particular as part of the Department’s 

strong commitment to protecting all of the rights of veterans. 

You are so correct. We ask so much of our men and women in 

uniform, and they come back to us often different from how they 

left, with wounds that we can see and wounds that we often cannot 

see. And I believe we have an obligation to provide them the best 

treatment, to thank them for their service to our country. 

Senator FRANKEN. Fabulous. I look forward to working with you 

on that, should you be confirmed, which I hope you will. 

Let me move on to something kind of specific. I was Chair and 

now will be Ranking Member of the Privacy, Technology and the 

Law Subcommittee. And there is a lot of technology out there that 

is new, that we are learning about some unforeseen consequences 

of it. There is a thing called stalking apps; I do not know if you 

know about it. Yes, we discussed this. 

And—incredible. When I first did a location Privacy Subcommittee hearing, my first hearing, I got some testimony from the 

Minnesota Coalition for Battered Women. And they told us a story 

about a woman who had an abusive partner, and she went to a 

county building in St. Louis County in Northern Minnesota. And 

while she was there, on her phone she got a text from her abuser, 
58 

‘‘Why are you in the county building? Are you going to the domestic 

violence place?’’ Well, it scared her so much they took her to the 

courthouse to file an order against him. While she is there, she gets 

this text from him saying, ‘‘Why are you at the courthouse? Are you 

getting a restraining order against me?’’ This terrified her. And it 

turns out—and we have had testimony on this—this is very common. 

Now, DOJ does have the authority under existing wiretap laws 

to prosecute the creator of apps that allow stalkers to listen to 

their victims’ phone calls, intercept text messages or otherwise 

intercept content from victims’ phones. And DOJ has prosecuted 

one app developer who created an app to do this thing, and I would 

ask that you continue to do that. 

But looking ahead, would you work with me? I have a bill to stop 

these things, to stop the marketing—the manufacturing of stalking 

apps. And also would ask that DOJ keep data on this. Because the 

last real data we have on this is, like, from 2006. And I do not 

know how much you keep up with technology, but since then, a lot 

more people have these smart phones, and this is a real problem. 

Ms. LYNCH. Senator, you have outlined a very important issue as 

it relates to the victims of domestic violence or anyone who fears 

that someone that they thought was close to them might turn on 

them instead. And certainly I look forward to working with you 

and keeping you apprised not only of the Department’s efforts in 

the continued prosecution of these matters, but to look at this statute with you and provide whatever assistance we can. 

Senator FRANKEN. Thank you. I look forward to that as well. 

And one last thing; I have about two minutes. I am very concerned about the telecommunications industry consolidating, and I 

am specifically concerned about Comcast’s proposed acquisition of 

Time Warner Cable. This is the largest cable provider and the second-largest cable provider. It is the largest broadband Internet provider and the third-largest broadband Internet provider. 

To me, this is just too big, and they would have unprecedented 

power in the telecommunications industry. I have—there has been 

a lot of comment on this, including my comment on this to the 

Antitrust Division. Will you commit to reviewing the serious concerns about the proposed Comcast-Time Warner deal that I and so 

many others have raised? And just do all that you can to ensure 

that the Antitrust Division is empowered to stand up to telecommunications giants like Comcast, if that is what it deems necessary? 

Ms. LYNCH. Certainly, Senator. The Antitrust Division plays an 

extremely important role in keeping our markets competitive and 

open for everyone, and I look forward to learning more about this 

case, to reviewing those issues and to working with you to make 

sure that all of the concerns about this are brought to our attention 

so that they can be dealt with by the Antitrust Division as we 

move forward. 

Senator FRANKEN. Okay, then, I will probably vote for you. 

[Laughter.] 

Senator FRANKEN. Thank you. Thank you, Mr. Chairman. 

Chairman GRASSLEY. Thank you, Senator from Minnesota. 

Now we go to Senator Flake. 
59 

Senator FLAKE. Thank you, Mr. Chairman. 

And thank you, Ms. Lynch. I appreciated hearing your life story 

and seeing your family here, and appreciated the meeting we had 

in my office a few months ago as well. 

I brought something up there and I will bring it up to you again 

with regard to the border situation in Arizona. 

We have had, obviously, ongoing problems on the border; we 

share such a large border with Mexico. But there have been some 

considerable successes, and one of the successes over the past several years has been in the so-called Yuma Sector, where we have 

seen apprehensions go from about 140,000 in fiscal year 2005 to 

about 6,000 last year. And so, considerable success. 

That contrasts with the Tucson Sector, which has seen a drop, 

I think, because of the economy; we have seen a drop anyway, but 

not nearly as significant. In fact, there were about 87,000 apprehensions in the Tucson Sector. 

One of the things that I think just about everybody attributes 

success in the Yuma Sector to is something called Operation 

Streamline, and it allows a so-called consequences program to be 

implemented where first-time crossers are met with consequences. 

And it is pointed to by certainly law enforcement organizations in 

Yuma and along that sector, and just about everyone else recognizes it has been successful. 

The problem is just last year it looks like DOJ has said that they 

are no longer going to implement parts of that, and that first-time 

offenders, unless there is some other circumstance, they will not be 

prosecuted. 

What are the specifics of this new policy, as you understand it, 

with Operation Streamline? 

Ms. LYNCH. Certainly, Senator. I have had the opportunity to 

know somewhat about this matter from my discussions with my 

colleagues, the U.S. Attorneys, not just along the Arizona border, 

but also in Texas and California. 

And they work hard every day to keep our border safe and essentially to protect the people in their districts, but also to deal with 

this ever-growing problem. 

And I believe that—again, I am not familiar with the current 

status of Operation Streamline, but as it relates to first-time prosecutions of individuals. 

Individuals are still being prosecuted, and to the extent that a 

first-time crosser would not be prosecuted, they still would be subject to just pure removal without there being a criminal case involved. 

And I believe that the issues in managing the program had a 

great deal to do with resources, particularly with the budget constraints that offices have found themselves under in recent years. 

But I can assure you, Senator, that the commitment to protect the 

border is strong, not only among the U.S. Attorneys who work on 

the border, but throughout the U.S. Attorney community and the 

Department, and would be one of my priorities also, as Attorney 

General. 

Senator FLAKE. As I mentioned, this is what distinguishes the 

Yuma Sector from the others—it is the success with this program. 

If you are saying now that it is a budget issue, why haven’t we 
60 

seen concern about the budget or those budget aspects? Why hasn’t 

DOJ come to Congress and said, we are having issues here, and so 

in order to continue with this program, we are going to need additional funding? To your knowledge, has that happened? 

Ms. LYNCH. I am not aware of what has gone into the specifics 

of the Department’s budget. I am generally aware of the budget as 

it relates to U.S. Attorneys, but not the Department as a whole or 

as it relates to specific programs, so I am not able to provide that 

information to you. 

Certainly, this is certainly something that I would be working 

closely on, should I be confirmed as Attorney General. 

Senator FLAKE. I guess I will put it this way. Barring budget 

issues, is this a program that you are committed to, or do you have 

other issues with it? 

Ms. LYNCH. Certainly it is a program that I think has been effective. I think there have been concerns raised about resources and 

about the way the program has been managed, from the judiciary 

and others. We are always trying to be responsive to all of the parties involved in these. 

But with respect to the issue itself, I am certainly committed to 

working on that issue with you and the Members of this Committee, be it through Operation Streamline, if it can be maintained, 

or in an equally effective program. 

Senator FLAKE. Okay. Well, the record—we have not, to my 

knowledge, received any concerns about budget issues with regard 

to Operation Streamline. It seems to have been another decision 

that was made. And I will be following up with you. 

We want to make sure that—let me just step back. I believe we 

need to do a lot with regard to immigration policy. I am a sponsor 

of the comprehensive bill that went through the Congress two 

years ago, through the Senate, and did not get through the House. 

So this is not all we need to do, but it is a significant part of what 

we need to do. 

And Arizonans have paid the price, a disproportionate price, for 

a long time for the Federal Government’s failure to have a secure 

border. And so when we have programs like this that work and we 

see success in one sector, and everybody can point to that, then it 

is very disturbing when DOJ pulls back on that. And we fear that 

the Yuma Sector, as the economy kicks up again and the crossings 

are more frequent, that we are going to have the same problems 

that we had a few years ago. And we cannot go on with that. 

Secretary Johnson is in Arizona, or just visited Arizona and visited the border. He’s done that a few times, met with the ranchers, 

with some of their concerns, particularly in the Tucson Sector. And 

there is still a lot that needs to be done, and it is going to require 

a real partnership between a lot of people to make sure that it 

works. 

Switching gears, some of my colleagues have mentioned trade secrets and economic espionage. But just to focus specifically on the 

theft of trade secrets and foreign governments, last May the Department of Justice announced the indictments of five Chinese 

military hackers for foreign theft of trade secrets and economic espionage, among other crimes. 
61 

When announcing these charges, Attorney General Holder said 

that the administration will not tolerate actions by any nation that 

seeks to illegally sabotage American companies and undermine the 

integrity of fair competition and free markets. This case will serve 

as a wake-up call to the seriousness of ongoing cyberthreats, he 

said. Would you agree with Attorney General Holder’s statement, 

as well as other statements by the executive branch that this is a 

growing and persistent threat? 

Ms. LYNCH. Senator, I would agree with those statements, and 

I would add that I have seen through cases in my own district that 

this is a growing and increasing threat. My office has also worked 

on matters involving foreign nations attempting to obtain technology under false pretenses. We have worked closely with our colleagues in other agencies to bring these cases to fruition. I am very 

proud of the work that we have done. 

And it is an ever-growing concern, certainly, and has also been 

expressed by the FBI, not only under the current director, but 

under former Director Mueller. So I look forward to working closely 

with our law enforcement partners and with this body to deal with 

the numerous ways that we have to fight this problem. 

Senator FLAKE. Last Congress I introduced the Future of America Innovation and Research Act, or the FAIR Act, that provides 

companies with a legal remedy when their trade secrets are stolen 

from abroad. 

The concern is that since the Economic Espionage Act was enacted in 1996, I think there have only been 10 convictions under 

Section 1831. That is a lot of time for just a few convictions. Since 

the FBI cannot investigate and DOJ cannot prosecute every single 

theft of trade secrets, does it make sense that there might be a 

Federal civil action, cause of action that could help these companies 

through another remedy? Does that make any sense? 

Ms. LYNCH. Well, certainly, Senator. From my experience in advising companies, boards, and general counsel, I understand the 

importance of corporations being empowered to act on their own behalf and protect their intellectual property and their trade secrets. 

I have not had the opportunity to study the bill that you discuss, 

but I certainly look forward to doing so and having further discussions with you. 

Senator FLAKE. Well, I appreciate that. 

Victims services, another area that has been of some concern. 

Last year Congress passed the Victim of Child Abuse Act Reauthorization and I was pleased that the sponsors of the bill agreed to 

include an important provision that clarified Congress’ intent that 

the money from the crime victims’ fund should only be used to assist victims of crime. Will you commit to follow that new law and 

direct the victim advocates in the U.S. Attorney’s Offices that this 

money only be used for victims? In the past we have seen it used 

for witness travel and other administrative duties and not actually 

focus on the victims. 

Ms. LYNCH. Certainly the management of the issue of how to provide not only restitution but support to victims is an important one 

to the Department and to me as a United States Attorney. And I 

think that we would have to work to implement the law that you 

have discussed. My understanding is that it is being implemented, 
62 

certainly that guidance has gone out to ensure that the victim advocates and offices are being appropriately focused. 

I know in my own office we have victim advocates who work 

closely with the victims of crimes—families who have suffered incredible loss—and provide great support to them. 

And I fully support empowering those professionals. 

So, yes, Senator, I believe that the law that you mention is one 

that is being implemented. I certainly will commit to ensuring that 

it is so. 

Senator FLAKE. Okay. Thank you and should you be confirmed, 

I look forward to working with you. 

Ms. LYNCH. Thank you, sir. 

Chairman GRASSLEY. The next person is Senator Blumenthal 

and when Senator Coons comes back, obviously we skipped over 

him, I will call on him as the next Democrat. 

Senator BLUMENTHAL. Thank you, Mr. Chairman. And thank you 

for your courtesy and thoughtfulness in the way that you have conducted this hearing and I am proud to serve under you as Chairman. 

Chairman GRASSLEY. Thank you. 

Senator BLUMENTHAL. And thank you, U.S. Attorney Lynch, for 

being here today and also for having your family here. Welcome to 

your husband, Stephen, and your dad, Lorenzo. The two most common words, I think, that have been used to describe you are 

‘‘smart’’ and ‘‘tough.’’ And I can see from your dad and I am sure 

it is true of your mom, that you come by those qualities honestly. 

Ms. LYNCH. Yes. 

Senator BLUMENTHAL. In the best sense of the word. And you 

should be very proud of your daughter. Your testimony has been 

among the most accomplished and impressive that I have seen as 

a Member of this Committee. 

And I am sure you have done yourself a lot of good today, not 

that you necessarily needed it, but thank you for your very forthright and erudite answers. 

I want to begin by focusing on human trafficking. You have a 

great record on human trafficking. I count 10 major prosecutions 

that you have done while United States Attorney, focusing particularly on targeted sex trafficking while also pursuing labor trafficking. 

And in a case that you brought against the 7-Eleven franchisees, 

you stated publicly that the defendants were running a modern-day 

plantation system and the system looked a lot like modern-day 

slavery. 

You brought the case relying on statutes relating to immigration 

enforcement and identity theft and wire fraud, not on the statutes 

that specifically focus on criminalizing human trafficking. I wonder 

whether you could relate to us whether you think those statutes 

need to be strengthened? 

If you could not, in a sense, rely on them, to bring those cases 

based on human trafficking, whether we should perhaps strengthen 

them. And in particular, the Trafficking Victims Protection Act of 

2000 provided mandatory restitution for trafficking victims, a provision that is unfortunately more unenforced than enforced, in fact 

rarely enforced, I think, to provide for restitution. 
63 

A recent study by the Human Trafficking Pro Bono Legal Center 

took a look at how this requirement works in practice and they 

found that in only about 36.6 percent of the cases did prosecutors 

bother to request restitution. So my question is really two-fold. 

Number one, do the statutes need to be strengthened, and number two, can you and would you do more to make sure that restitution is provided to the victims of human trafficking? 

Ms. LYNCH. Certainly, Senator. The issue of restitution for the 

victims of human trafficking is an important one, particularly as 

we do increase the number of cases that we bring. 

Certainly sometimes there are situations where a court may not 

impose restitution because the funds are not there, or for other 

legal reasons. But where we can, we always do seek a restitution 

order for the victims. 

We, in particular, have worked with other governments to provide them information where we have found, for example, that certain small cities in Mexico have been a prime source of those who 

would traffic women into the United States, into the Eastern District of New York. We have worked with the Mexican government 

to provide them information so that they could possibly effect asset 

seizures that we could not, under our particular asset forfeiture 

laws. 

So it is a very, very important issue to me as United States Attorney, and should I be confirmed as Attorney General, it would be 

one that I would look forward to working with you on to make sure 

that all of the laws involving victim protection are as strong as possible. 

With respect to the 7-Eleven case, we did not have the evidence 

that the workers had been moved across State lines to effectuate 

the crime. And so, therefore, we would not have been able to use 

the trafficking laws per se. But as with that case, with every case, 

we look at the relevant facts and the laws and bring the strongest 

case that we can. And certainly where we have seen numerous, numerous incidences of children and women being trafficked from 

within the United States, sometimes even simply just crossing one 

State border as well as from overseas, we have never hesitated to 

act. And, should I become Attorney General, it will be one of my 

priorities. 

Senator BLUMENTHAL. I would welcome that priority very much 

as the Co-Chairman of the Human Trafficking Caucus in the Senate. It is a very bipartisan one; the Co-Chairman is Senator Rob 

Portman of Ohio. So I look forward to working with you on it. 

First of all, I welcome your comments about the invisible wounds 

of war. Thank you to your uncles and cousins for their service in 

Vietnam. 

Ms. LYNCH. Yes. 

Senator BLUMENTHAL. And to your brother for his service as a 

Navy SEAL. I say that as a dad of a Marine Corps Reserve veteran 

who served in Afghanistan and another son who is currently in the 

Navy. And I would hope that you will continue to focus on those 

issues relating to post-traumatic stress and traumatic brain injury 

as they may be a cause of certain kinds of conduct that may be unwelcome, may even be criminal, because what we found is that a 

better understanding of those invisible wounds of war and the 
64 

inner demons that many of our veterans bring back with them can 

lead to more thoughtful and humane treatment through our criminal justice system. 

I want to ask you, finally, in the time that I have, about one of 

the criticisms that has been made of the Department of Justice in 

its allegedly too-lenient treatment of certain corporate defendants 

as being too big to jail, so to speak. 

In remarks that you made after the Department of Justice entered into a settlement with HSBC for money laundering—I am 

sure you recall it—you said that the settlement had deterred that 

company, but you were not sure that it would deter other companies. So my question is whether more can be done to more aggressively prosecute white-collar crime, corporate crime, to dispel at 

least the widespread impression or perception that perhaps the Department of Justice has been too lenient, and in particular would 

you work with me on a bill that I have offered that would make 

certain corporate officers criminally liable if they are aware of the 

significant, potentially deadly risk to workers—workplace safety 

problems—and fail to act or make it public? 

So this bill is called Hide No Harm. It is a bill that is designed 

to protect workers on their jobs and it focuses on that part of the 

potential wrongdoing that may be committed by corporate officers. 

But also, again, a two-part question. Would you consider pursuing 

more aggressively criminal laws that may be applied to corporate 

officers who are involved in malfeasance or violations of Federal 

criminal laws generally? 

Ms. LYNCH. Certainly, Senator. When it comes to white-collar 

crime or any kind of crime, as a career prosecutor and as U.S. Attorney, I have been very aggressive in pursuing those types of 

cases. 

With respect to should I become confirmed as Attorney General, 

I would continue that and direct that the Department of Justice 

continue its focus on examining the facts of every case following 

the law wherever it took us. 

At the outset, no individual is too big to jail. No one is above the 

law. 

There are certain situations where we come to a different resolution or may decide that a civil resolution is appropriate, but that 

is only after a full and fair analysis of all of the facts and the law 

and the relevant burdens under the criminal justice system or the 

civil system. 

But that being said, Senator, I believe if you look at the record 

of the Eastern District of New York, we have prosecuted a number 

of corporate officers for insider trading with respect to the Brooks 

case, and corporate malfeasance in other cases, as well as for violations of the FCPA. We have struck significant—wrung significant 

concessions from corporations and made major changes in the way 

in which corporations and financial institutions are structured and 

operate that act as deterrent. And we have been very clear with respect to the industries within which we are looking that, should a 

corporation not engage in preventive behavior or should they not 

take seriously the type of investigation that we bring, that criminal 

charges will be brought. 
65 

Senator BLUMENTHAL. Thank you. And I know of your very aggressive and distinguished record in this area and it is one of the 

reasons why I strongly support you and I look forward to voting for 

you and working with you on all of these topics and also reform of 

the Foreign Intelligence Surveillance Court. 

Ms. LYNCH. Yes. 

Senator BLUMENTHAL. As you know, I have advocated a public 

advocate to defend and advocate constitutional liberties in the 

course of this secret proceeding, the Foreign Intelligence Surveillance Court. I am not going to ask you to commit on that issue, but 

I hope that you will work with me on it as well as these other 

issues. And I very much appreciate your being here today and your 

public service and your family’s service. Thank you very much. 

Thanks, Mr. Chairman. 

Chairman GRASSLEY. Thank you. 

Ms. LYNCH. Thank you, Senator. 

Chairman GRASSLEY. Thank you, Senator Blumenthal. 

Now I go to Senator Vitter. 

Senator VITTER. Thank you, Mr. Chairman and thank you 

Madam U.S. Attorney and thank you for the meeting in my office. 

As I told you at the time, I was very disappointed and frustrated 

because you did not respond directly to any of my big topics. And 

you said you would look into these matters and consider them. And 

as I promised, I restated the big questions in writing and I was further disappointed when yesterday I got a letter saying there would 

be no response to that. But maybe the third time is a charm for 

me asking them. So we will try here. 

As I told you in my office, like many, many citizens and Members 

of the Senate, I have a huge concern regarding what I think is the 

President’s illegal, unconstitutional Executive amnesty. And I have 

a huge concern of the fact that you think it is within the law. And 

we were talking about that. 

So I am going to put up what is the central statutory argument 

that the President’s lawyers point to in terms of his allegedly having authority for this Executive amnesty. 

And it talks about granting parole only on a case-by-case basis. 

So I guess one of my key questions which we talked about in my 

office is do you really think his granting this amnesty, this new 

status, to about 5 million illegal aliens is acting on a case-by-case 

basis as mandated by the statute? 

Ms. LYNCH. Senator, I greatly appreciate the question as well as 

the opportunity that we had to discuss the matters in your office. 

With respect, again, to my review of the opinion supporting the Department of Homeland Security’s request for a legal basis for taking certain actions and prioritizing removal, as indicated, I did find 

it to be reasonable that we would prioritize removal of the most 

dangerous undocumented immigrants with our limited resources. 

Particularly those who were involved in violent crime, terrorism, 

recent crossers, those with criminal records—that seemed to me to 

be acting in the interest of public safety and appropriate. 

With respect to other individuals who may not be as high on that 

priority list, my understanding is that that is a status that they 

will have for a brief period of time. 
66 

And certainly as you look at the issue of Executive discretion or 

prosecutorial discretion, you always want to have the ability to still 

look at individuals and make a determination as to whether or not 

they should be in that lower priority. And I did not see anything 

in the—— 

Senator VITTER. Ms. Lynch, as we talked about in my office 

though, his action goes well beyond setting prosecutorial priorities, 

does it not? Apart from that, he goes further in granting this broad 

category of folks a certain status for three years at a time. And 

then he takes another affirmative step in giving them a work permit. So those two steps are going beyond setting priorities for prosecution, are they not? 

Ms. LYNCH. Well, certainly, Senator, as relates to how the Department of Homeland Security manages the removal process for 

those in the low-priority category, however they may be determined 

to be, again, I am not aware if those regulations have been set 

forth yet, so I cannot comment on how they will be implemented. 

But I am—— 

Senator VITTER. Does his plan go beyond setting priorities for 

prosecution or not? Doesn’t it in fact go beyond that by granting 

these folks a parole status and giving them a work permit? Isn’t 

that something additional to simply setting internal priorities for 

prosecution of these cases? 

Ms. LYNCH. Well, Senator, just one minor point at the outset. I 

believe that the Department of Homeland Security’s action refers 

to removal and not necessarily prosecution. Certainly, with respect 

to prosecution, there is still robust prosecution under the immigration laws and in my own district they are a tool that I use frequently. 

With respect also to what would happen to those individuals who 

would be in a lower priority status, for lack of a better word, again, 

I am not sure how the Department will go about implementing 

that. My understanding is that the issue was: Was there a legal 

framework for establishing such a program? And the opinion indicated that there was. 

Senator VITTER. Do you agree with that opinion? 

Ms. LYNCH. I believe individuals still have to apply, at which 

point there would have to be a review of their eligibility and the 

like. 

Senator VITTER. Fundamentally, do you agree with the legal 

opinion we are talking about? 

Ms. LYNCH. I thought that the opinion was reasonable. 

I also thought that it made distinctions. 

Senator VITTER. Again, going back to that legal opinion, put that 

back up, this is a key element of it. So do you think that action 

that is applying to about 5 million illegal aliens is operating on a 

case-by-case basis? 

Ms. LYNCH. Senator, again, I am not familiar with how the Department of Homeland Security will be actually implementing the 

orders that it will be reviewing, and the applications that it will 

be reviewing. So I am not able to provide you with the specifics. 

Senator VITTER. But you have read the orders. Do you think that 

lays out a system that is operated on a case-by-case basis? 
67 

Ms. LYNCH. With respect to my review of the Office of Legal 

Counsel opinion, it did provide a reasonable basis both for the removal and for the prioritization of certain people as it came to removal. When it came to the issue of whether or not there could be 

a program for deferral, it seemed to refer to legal precedent, to the 

statute itself, and to actions by this body, among others. So it certainly seemed to provide a legal framework for that. 

And I believe, also, what I thought was noteworthy was that 

with respect to the opinion, some of the requested actions by the 

Department of Homeland Security the Office of Legal Counsel 

found did not have the appropriate legal framework that would 

have made them something that could be carried out under the 

current legal system. And so the advice was not to go forward with 

certain—— 

Senator VITTER. Okay. Well, I will take it as a yes, that this is 

operating on a case-by-case basis. And I just think that is really 

a clear obvious stretch to say that this action that is going to affect 

5 million people is following the law on a case-by-case basis. 

The law also says—in fact, this same specific citation—it says, 

this decision on a case-by-case basis has to be made by the Attorney General. Now, is it your understanding, under the President’s 

plan, that if you are the Attorney General, you are going to be in 

the middle of that process making those decisions? 

Ms. LYNCH. Well, Senator, I am not aware of the regulatory 

framework and the rules that have come out around this statute 

as to how that authority is either delegated or exercised. So I am 

not able to give you an exact answer right now as to how that 

would specifically be implemented—— 

Senator VITTER. Well, I have read the plan, and the plan as I 

read it, is for all of that to be done in the Department of Homeland 

Security. So my question would be, what is the statutory basis to 

allow that when under the statute, not some order, not some legal 

opinion, the statute, the law, word-by-word, it says the Attorney 

General is in the middle of that decision on a case-by-case basis. 

Ms. LYNCH. So, again, Senator, as presented to me by you, today, 

and thank you for that information, again, I am not familiar with 

the ways in which that particular authority has been exercised by 

the Attorney General—whether it has been delegated or how it is 

shared with the Department of Homeland Security—so I am not 

able to provide you with the specifics at this point as to how I 

would exercise that authority. 

Senator VITTER. Well, again, I will have to be following up for 

the fourth time, but that will be a central question. The plan is not 

for the Attorney General to be in the middle of this at all. The statute says that the Attorney General is. Why aren’t we following the 

statute? 

Let me go to another case that goes to following the law which 

Senator Hatch brought up earlier, which is, your comments regarding the Department of Justice’s initiative, Smart on Crime initiative. Now, as I read it, and based on what I know, this is just a 

way to clearly ignore mandatory minimums. And there are crimes 

that have mandatory minimums. We can have a good debate about 

whether those should be lowered in some cases or not, but they are 
68 

what they are. They are in the statute. So why aren’t we following 

the statute with regard to crimes with mandatory minimums? 

Ms. LYNCH. Well, Senator, with respect to enforcement of the 

narcotics laws that contain those mandatory minimums, laws 

which I have had occasion to use on numerous occasions as an Assistant U.S. Attorney, as a career prosecutor, and as U.S. Attorney, 

those laws are being followed, not just by my office, but throughout 

the U.S. Attorney community as well as by a number of offices who 

have sought to prioritize how to handle those cases in an era of 

limited resources. The issue with Smart on Crime is focused on 

when is it best to use the mandatory minimums and when do we 

not necessarily have to use them? But every office still retains and 

in fact exercises the discretion to impose a mandatory minimum 

sentence should someone who may not on the fact of the policy fall 

into that category, but upon review of the case clearly does. And 

that has and is being done. 

Senator VITTER. So when is it best to use the mandatory minimums? So the mandatory minimums are not mandatory? 

Chairman GRASSLEY. When you get done with that answer, then 

I will call on Senator Coons. 

Ms. LYNCH. Surely. 

Chairman GRASSLEY. Go ahead. 

Ms. LYNCH. Senator, with respect to the narcotics policy, certainly as we handle these cases in the Eastern District of New 

York, we rely heavily on the mandatory minimum statutes when 

dealing with numerous drug kingpins that we have built significant 

trafficking cases against, many of whom have been extradited from 

foreign countries, or have been operating within our district. 

My fellow U.S. Attorneys use the mandatory minimum statutes 

in a similar way. We all look, however, at the nature of the crime 

problem in our district and the nature of the narcotics problem in 

particular in our district. And the case that may require a mandatory minimum in my district may not occur in another part of the 

country. Another part of the country may have a different type of 

narcotics problem and would have a different population of defendants than you would find in Brooklyn subject to the mandatory 

minimum statutes. But they are still being utilized, Senator. 

Senator VITTER. Mr. Chairman, just in closing, I just observed 

that—I mean, that is taking all meaning out of the word ‘‘mandatory.’’ It is replacing your and your colleagues’ judgment for the 

judgment of folks who wrote the law. And that is what this whole 

discussion and debate is about. Thank you. 

Chairman GRASSLEY. [Off microphone.] 

And for the witness, if there is nobody here and you want to take 

a break, take a break. 

Ms. LYNCH. Thank you, sir. 

Chairman GRASSLEY. But as soon as somebody gets here, I hope 

you can come back right away. 

Senator Coons. 

Senator COONS. Thank you, Chairman Grassley. 

Ms. Lynch, congratulations on your historic nomination and your 

very fine conduct in this hearing today. 

The Attorney General of the United States is one of the most important offices for which this Committee has oversight responsi-
69 

bility and consent responsibility. The current Attorney General 

Eric Holder has served in that office with distinction under very 

trying circumstances. 

For better or worse, the Attorney General often serves as a lightning rod for those in this body with complaints about the administration. And I think it takes special mettle to deal with that kind 

of constant incoming fire while remaining composed and focused on 

a constructive and forward-looking agenda. 

I am interested in hearing from you about how you plan to carry 

forward progress on some of the issues that the Department of Justice faces with respect to privacy, collaboration with State and local 

law enforcement, IT protection, and important civil rights issues 

such as sentencing reform, voting rights, and racial profiling. 

As successful as Attorney General Holder has been, there remains important progress to make and just two years in this administration to make it. 

First, if I could, about State and local law enforcement, given my 

previous experience, I am thrilled that someone with your seasoned 

and senior experience in law enforcement has been nominated for 

this position. I serve as Co-Chair, with Senator Roy Blunt, of the 

Senate Law Enforcement Caucus. And the Department of Justice 

plays a central role in supporting State and local law enforcement. 

Can you just comment for me, if confirmed, on the importance you 

would place on the partnership between Federal, State, and local 

law enforcement, including such programs as the bulletproof vest 

program, the justice reinvestment initiative, the violence reduction 

network, which is particularly important to me, and the information sharing? 

And then second, Senator Flake asked about this previously, but 

could you just talk about the victims of child abuse and programs 

and comment on what experiences you have had with child advocacy centers and how they function as one of the partnership undertakings between Federal, State, and local law enforcement? 

Ms. LYNCH. Certainly, Senator. With respect to the important 

partnership between the Department of Justice and our State and 

local law enforcement counterparts, it will be one of my highest priorities to ensure that there is not only collaboration and cooperation, but active and ongoing discussion about the needs that we can 

help fulfill, but also, Senator, what we can learn from our State 

and local counterparts. 

It has been my experience having had the benefit of frankly 

learning from some of the best law enforcement agents and police 

officers around that no one knows the crime problem like the cop 

on the beat. No one really understands what is going on in a community like the officer who walks those streets every night and 

knows those residents and understands those issues. 

Similarly, our Federal law enforcement agency partners have 

outstanding background effort and ability to manage complex 

cases. And when we combine those two, we have been able to 

achieve tremendous results for victims of violent crime, of terrorism, of cybercrime, along with the cases that you mentioned involving vulnerable victims of child abuse. So certainly I feel that 

there has to be a collaborative relationship. But I want to essentially assure you that in my view it would be one where we would 
70 

not just provide assistance in training and grants. That is very, 

very important. But we would also listen and learn as well from 

our local law enforcement partners. 

Senator COONS. Well, thank you, that is both a good answer and 

a great attitude and I look forward to working with you in this 

area going forward. 

The USA PATRIOT Act and in particular its Section 215 authority is often thought of as a spying program, which in some ways 

it essentially is. But it also is and can be a tool the DOJ and FBI 

routinely use in the course of domestic law enforcement and its investigative missions. Does the DOJ use Section 215 as a bulk collection tool? And could the Department continue to make effective 

use of Section 215 if the enhanced privacy protections, the limitations on bulk collection set forth in the USA Freedom Act, were to 

be adopted? 

Ms. LYNCH. Well, Senator, Section 215, as I understand it, is not 

a bulk collection tool in and of itself but a way in which the Government using court authority can obtain information already gathered that might be useful in ongoing national security investigations. 

But certainly I understand that as we work to protect our country from terrorists who seek to attack us here and abroad, that we 

have to be mindful of our civil liberties and the privacy rights of 

anyone who may be impacted by our collection procedures. And certainly I look forward to, as the renewal of Section 215 comes up, 

I look forward to discussions with you and the other Members of 

this Committee about the best way in which to keep that useful 

tool and also reassure this body and the American people that it 

is being used in the most effective way. 

Senator COONS. I am also concerned about IP—intellectual property protections as we talked about previously, and trade secrets. 

Ms. LYNCH. Yes. 

Senator COONS. My understanding is several other Senators have 

also asked about this issue. So I will try to be brief. I am concerned 

about the huge transfer of wealth going on through trade secret 

theft and the Federal crime under the Economic Espionage Act is 

estimated to be responsible for up to $500 billion annually in terms 

of losses to the United States, yet there is only one or two cases 

a month federally brought by prosecutors. 

As the U.S. Attorney for the Eastern District, what has been 

your experience in investigating or prosecuting trade secret theft? 

And would you be interested in working together to strengthen the 

resources and strengthen the legal authorities for protecting America and our inventions and innovations and ensuring that we stem 

the tide of loss through trade secret theft? 

Ms. LYNCH. Certainly, Senator. In my experience as the U.S. Attorney for the Eastern District of New York, I do not believe we 

have any specific indictments under the Trade Secrets Act. We do, 

however, have a number of cases where we have intercepted foreign actors trying to obtain U.S. information and we have prosecuted them under other statutes. So we deal with very, very similar issues. 

I will note that these cases tend to be complex and long term. 

They do require an investment of resources, the devotion of time 
71 

on the part of prosecutors, but also technological resources on the 

part of our law enforcement agencies. So I would look forward to, 

should I be confirmed, working with you and this Committee to ensure that we have the appropriate resources we need to handle 

these cases. 

Senator COONS. Well, as a Member of the Appropriations Subcommittee responsible, I look forward to working with you on that. 

I think it is vital that we strengthen the protections for America’s 

inventions and inventors. 

Let me last ask about criminal justice reform, an issue that I 

think is front and center and important for our country and for our 

justice system. 

We have seen in a number of ways in the last year that our 

criminal justice system is broken in terms of how it deals with 

mass incarceration and its impact, in particular, on drug offenders 

and on the African-American population of our country. 

It is not just a civil rights problem, but also a fiscal problem and 

a social problem. And if you look at the numbers of who is incarcerated and for how long and under what charges, I think there is a 

significant inequality that needs to be addressed. 

I think we need legislation through this Committee and in this 

body that will help rationalize mandatory, overly long drug sentences for non-violent offenders. 

Attorney General Holder took an important step forward 2 years 

ago when he issued revised guidance to the field directing that 

prosecutors not automatically charge the most serious mandatory 

minimum triggering levels of drug possession against low-level, 

non-violent offenders. I wondered whether it is your intention to 

keep in place Attorney General Holder’s 2013 memorandum or 

whether you would look for other or additional ways within the 

law, within the Constitution, to promote the equal and just application of our criminal laws to every person regardless of background, 

of sex, of gender, of sexual orientation, race, religion and nationality. 

Ms. LYNCH. Senator, you touch on the important issue of making 

sure that our criminal justice system protects the American people, 

but does so in a way that is fair and effective and also protects the 

individual rights of everyone who has to pass through it. 

It is the responsibility of a prosecutor not just to win convictions, 

but to bring justice to every case, no matter what the result. 

Certainly, with respect to Smart on Crime, I have found it similar to many ways in which my own district has had to manage an 

ever-increasing problem of narcotics prosecutions of low-level offenders and work with an ever-growing docket of larger narcotics 

cases, also, and I found it to be a reasonable approach to do so and 

look forward to continuing that particular initiative. 

But I also look forward to further discussions with you and your 

colleagues on these issues as to how we can ensure that our criminal justice system is effective and yet also protects the people who 

have to go through it. 

That is the dual responsibility of the prosecutor. It is one that 

I have taken seriously all of my professional career and, should I 

be confirmed as Attorney General, I look forward to working with 

you as we explore that issue together. 
72 

Senator COONS. Thank you, Ms. Lynch. As he said at the outset, 

Senator Leahy remarked that nearly a third of the Department’s 

budget at this point is dedicated to the Bureau of Prisons. 

I think we have a pressing civil rights issue nationally for us in 

terms of our criminal justice system, but I have also long been a 

supporter of law enforcement and believe that you are uniquely positioned, qualified, and prepared to help us balance these twin obligations of ensuring that our communities are safer and stronger 

and ensuring that our justice system delivers on justice. 

Thank you. 

Ms. LYNCH. Thank you, Senator. 

Senator PERDUE [presiding]. U.S. Attorney, this is David Perdue. 

We met the other day. 

Ms. LYNCH. Yes. 

Senator PERDUE. I am a Senator from Georgia. 

Ms. LYNCH. Yes. Thank you for your time. 

Senator PERDUE. I want to thank you for your perseverance and 

patience with us today. I hope it was not anything that I said that 

cleared the room for you. 

[Laughter.] 

Senator PERDUE. I hope you are doing well. 

Ms. LYNCH. I hope it was not anything I said. 

[Laughter.] 

Senator PERDUE. Well, thank you so much for, again, your perseverance. I just want to join my colleagues and welcome you before 

the Judiciary Committee and also to thank you for your years of 

public service. 

As we talked the other day, I am very impressed with your career and want to thank you for upholding the law in your career. 

I congratulate you on this nomination. You spoke this morning 

about your oath and the required commitment to the Constitution. 

I applaud that. You have demonstrated that in your career. 

You were just talking about mandatory minimums, if I am correct. I just have a quick question. Relative to a case that you had 

in your jurisdiction recently, I want to ask about a defendant who 

was convicted by your office in the late 1990s. His name was Francois Holloway, I believe. I hope you remember him. 

There was a lot of press coverage on this case during your current tenure as U.S. Attorney. 

In 1995, Mr. Holloway rejected a 10-year plea and was convicted 

after a trial on three counts of armed carjacking and possessing a 

gun during a violent crime. Those offenses subjected him to consecutive mandatory minimum sentences and he received a total of, 

I think, 57 years. 

In 2013, Judge Gleeson, the District Judge in Brooklyn who sentenced Mr. Holloway, began what The New York Times called a 

campaign on Mr. Holloway’s behalf and wrote to you asking that 

you consent to an order vacating two of Mr. Holloway’s convictions 

for armed carjacking. 

No one argued that Holloway was innocent or that he was 

wrongfully convicted or that his sentence was unlawful. No one 

claimed that there was a problem with the trial. All of Mr. 

Holloway’s appeals were rejected. 
73 

The case went to the Supreme Court which upheld the convictions. In fact, everyone agreed that the sentence he received was 

lawful under Title 18 of the sentencing guidelines. 

Judge Gleeson did not agree with the sentence the law required 

him to impose and was asking you to help him reduce it. 

In February 2013, to your credit, you refused to vacate the 

carjacking convictions. You suggested to Judge Gleeson that Mr. 

Holloway could contact the Office of the Pardon Attorney and submit a petition for commutation of his sentence. 

I personally think that that was the appropriate response. I congratulate you on that. I think every prosecutor would have responded that way. 

In May of 2014, however, Judge Gleeson again urged you to vacate two of Mr. Holloway’s armed carjacking convictions. He said 

your suggestion that Mr. Holloway seek clemency was not a realistic avenue of relief because the fact that Holloway committed 

crimes of violence will disqualify him. 

The judge was definitely a passionate advocate for this defendant. This time, however, you backed down and you consented to the 

judge’s order to vacate the carjacking convictions. 

I want to note that he was a violent offender; along with an accomplice, stole three cars at gunpoint. 

As the top law enforcement officer, I have a couple of questions 

relative to that case and your prospective tenure as Attorney General. 

My first question is, what caused you to change your earlier position in that case? 

Ms. LYNCH. Senator, with respect to the Holloway case, it was 

a matter that had been of longstanding—it was a longstanding case 

from the office. It did predate my tenure my first time as U.S.— 

my second time, but not my first time as U.S. Attorney, I should 

say. And it was a case in which it was the defendant who had 

made a motion to allow the judge to revisit his sentence. 

So there was, in fact, a judicial proceeding before the court at 

that time and the court wanted us to take a second look at it. We 

did consider it numerous times. 

Ultimately, the matter was before the court and while the judge 

indicated he would like to have the opportunity to review that, our 

view was that we had to look at the case consistent with many of 

the initiatives that were being put in place now by the Department 

of Justice certainly with respect to clemency and with respect to 

how we look at offenders who have served a significant time and 

whether or not they would be eligible for that. 

Of note to me as I reviewed the matter was that Mr. Holloway 

was the second person in that carjacking incident and, in fact, was 

not the individual with the gun, but was, of course, legally liable 

for that. And while he received the sentence of 57 years, shall we 

say the main actor in that received a sentence shortly under 2 

years. 

So there was an incredible disparity in the sentence there. But 

the real issue for us, was there a legal proceeding in place, and 

there was, and essentially, did we have the ability to let the judge 

review the sentence again by keeping it in the court system, and 

we felt that we did. 
74 

But before we did that, it was important to me to consult with 

every victim in that case and certainly we found all of the victims 

but one after extensive research, all the victims who also felt that 

the judge should have the opportunity to reconsider Mr. Holloway’s 

sentence, without a guarantee of what that sentence would be. 

Based on that information, based upon Mr. Holloway’s record in 

prison, based upon his role in the offense, we looked at how we 

would have handled the case under current times. And, again, 

given that there was a court proceeding, we were able to go to 

court and tell the judge that we would not stand in the way of him 

reviewing the sentence again, which Judge Gleeson did. 

Mr. Holloway was re-sentenced. He then went into State custody 

to finish a matter and so I do not know his current status. But we 

did essentially allow the judge to take another look at that and 

through the judicial process the judge imposed a different sentence. 

That sentence was still significant and it was still, I would say, 

twice as long as what Mr. Holloway would have gotten had he accepted a plea deal. 

Senator PERDUE. Thank you. As the Attorney General, you will 

have great discretion, just as you did as District Attorney, and the 

question I would—as illustrated by that case, I think—is where do 

you draw the line? How do you see this balance between the law 

and your personal position in a case, your personal opinion in a 

case? 

Ms. LYNCH. Senator, I do not believe that my personal opinion 

is the governing factor in a case, be it Mr. Holloway’s case or be 

it any case in which I would review, either as U.S. Attorney now 

or should I be confirmed as Attorney General. 

I will take a look at every case and I will commit to you that I 

will review every matter brought to me with a full and fair examination of the facts and an application of the law, but also with a 

view towards, as in Mr. Holloway’s case, whether or not there is 

a judicial proceeding there and the current status of that. 

But we will take every effort and I will make every effort, should 

I be confirmed, to always act consistent with the law. 

Senator PERDUE. Thank you. Just one last question in this vein. 

There are probably hundreds, if not thousands of violent offenders 

in our Federal custody who are serving sentences based on consecutive mandatory minimums that you just spoke about, like those imposed on Mr. Holloway. 

If you are confirmed and during your tenure as Attorney General 

it comes to your attention there are cases like Mr. Holloway’s, 

would you consent to early release of those offenders? 

Ms. LYNCH. Senator, it would not be my place to consent to an 

early release nor was it our place in the Eastern District of New 

York in the Holloway case. 

Our posture was to consent to allow the judge to revisit the sentence and impose the sentence that, as a judicial officer, he felt appropriate. 

So as U.S. Attorney, I would not be making the decisions as to 

whether someone should literally be released. Should I be confirmed as Attorney General, I would not be making those decisions 

either, except as people go through the clemency process or the 
75 

pardon office and those matters come under review by the Department of Justice. 

We would then apply our best judgment to the situation, but ultimately, the ultimate decision on release would not be made, I believe, by me. 

Senator PERDUE. Well, since I am the only one up here, I guess 

I am the presiding officer. 

[Laughter.] 

Senator PERDUE. My time is almost up, but I have just one other 

question for you. I would like to move on to national security, if I 

might. 

And I will remind the Chairman that I did not go over on my 

allotted time, just in case. 

The DOJ announced last week that two Yemeni nationals 

charged with conspiring to murder American citizens abroad and 

providing material support to Al-Qaeda will be prosecuted by your 

office in the Eastern District of New York. 

I would like to ask you about your views on transferring terrorists to U.S. soil who have been captured abroad. Terrorists have 

been tried successfully in civilian courts before, but I would like to 

know your opinion about what role you think military tribunals 

play in handling terrorism cases. 

Is there any role for military tribunals or should civilian courts 

be used exclusively for these prosecutions, in your opinion? 

Ms. LYNCH. Senator, thank you for that question. The case that 

you mention is being handled by my office. And at the outset, I 

would note that throughout the process of reviewing that case and 

deciding how to best prosecute it and where to appropriately venue 

it, we consulted extensively with the Office of Military Commissions, as we do with all of the cases involving national security defendants who may be brought to U.S. shores and may be brought 

to the Eastern District of New York. 

Certainly, I would say at the outset that my position is if terrorists threaten Americans here or abroad, they will face American 

justice. We have done that successfully in the Eastern District of 

New York and I look forward, should I be confirmed as Attorney 

General, to continuing that strong practice, utilizing all of the tools 

in our arsenal, and that includes the military commission process. 

Essentially, Senator, should I be confirmed as Attorney General, 

I look forward to working with the military and the other executive 

branch divisions in Government to make the best determination 

about where each case should be brought. 

Should that determination be an Article III Court, I anticipate 

that the receiving U.S. Attorney’s Office would handle it with the 

skill and dedication that my prosecutors do every day. 

Similarly, should it be a military commission, they will also handle it with the skill and dedication that they have also shown. 

I have been honored to have hosted General Martins on more 

than one occasion in my office and have a positive relationship with 

him and, should I be confirmed as Attorney General, look forward 

to continuing that relationship with him and all of our partners in 

the war on terror. 
76 

Senator PERDUE. Well, I would like to thank you for your patience, perseverance, professionalism, and your graciousness today. 

You have run out of Senators almost. 

Ms. LYNCH. I seem to have. 

[Laughter.] 

Senator PERDUE. In the absence of our Chair, there is only one 

other Senator I think that is potentially available for questioning. 

I know that they are on the floor right now voting. I ran over to 

get a few questions in. 

So what I would suggest is that we take a 10-minute recess, if 

you are amenable, and we will find from the Chairman if Senator 

Tillis is the last remaining person to ask questions, and we will see 

where we go from there. 

So I think we will stand in recess for 10 minutes, and thank you 

again for your graciousness and perseverance today. 

Ms. LYNCH. Thank you, Senator. 

Senator PERDUE. Thank you. 

[Whereupon, at 2:55 p.m. the Committee was recessed.] 

[Whereupon, at 3:13 p.m., the Committee reconvened.] 

Chairman GRASSLEY. Just as soon as the room quiets, I am going 

to recognize Senator Tillis. I think it is quiet enough. 

Senator Tillis, would you proceed? 

Senator TILLIS. Thank you, Mr. Chair. 

Ms. Lynch, congratulations. It is quite an honor to be in the 

place that you are today. I want to compliment you on your distinguished career. 

I have also noted over the course of your testimony just how 

much pride is in the eyes of your friends and supporters here. So, 

congratulations. 

I had a question for you and it stems from—I also want to thank 

you for dealing with last week when we had to move the venue and 

the time around for the meeting. I appreciate your graciousness 

and spending some time with me last week. 

And I really want to maybe start where we left off with some of 

the discussions and I think that Senator Flake and Senator Lee 

and Senator Schumer have also echoed the concerns about the limited resources and how you would prioritize things within your future prospective new responsibilities. 

I guess something that strikes home for me has to do with certain elections laws. In North Carolina—I do not know how familiar 

you are with some of the elections laws that have been passed over 

the past couple of years, but in the context of at least one case that 

was brought against the State of North Carolina by Mr. Holder, 

where the law was—more or less, the foundation of that law was 

the Indiana law which has been upheld by the Supreme Court 6– 

3. 

Given the limited resources within the AG’s Office and the Department of Justice, what are your thoughts on pursuing laws that 

are likely to end up in the same state, particularly laws like North 

Carolina that went much further than the Indiana law that was 

upheld? 

Ms. LYNCH. Certainly, sir. I believe that the right to vote obviously is the cornerstone of our democracy. 

Senator TILLIS. As do I. 
77 

Ms. LYNCH. And certainly I think that States obviously have an 

interest in protecting that right to vote, also, as well as regulating 

it and making it safe and free and open for everyone, and I believe 

many States are acting with exactly that view in mind. 

Certainly with respect to the North Carolina statute and case, I 

know that it is under litigation now. I believe there will be a trial 

at some point in time. I am not familiar with the status of the case 

now. 

So I cannot comment on that specific case or that specific statute, 

but what I can say is that with respect to how the Department will 

look at voting rights issues is with a view toward protecting the 

right to vote and hopefully working with the States to ensure that 

all the interests are met. 

Certainly all voter ID laws are not problematic. As you have 

noted, the Court has outlined situations in which they are useful 

and serve a fundamentally important purpose, and the Department 

has, under the previously utilized doctrine of preclearance, actually 

approved voter ID laws. 

So I do not think that we can at this point, without knowing how 

a case will be presented, say which way the Department will go in 

viewing it. But given the fundamental importance of the right to 

vote, should an issue be raised? 

It is something that the Department of Justice has an obligation 

to review and consider whether or not it should get involved. 

Senator TILLIS. In the example of the law that was passed by 

North Carolina and the case that was brought against North Carolina—in fact, I was named in the case because at the time I was 

Speaker of the House. I am just curious how, as you go forward 

and you are dealing with the challenges in this office of, as I believe Senator Schumer said, trying to focus your resources on the 

bad actors, the hardened criminals, the difficult challenges that the 

Department faces, in a case that has some 10 attorneys on it focused on—no less than 10, I believe—focused on that, I would hope 

that there would be some focus on: Is that the best and highest use 

if, given the merits of the case and other laws that have gone to 

the Supreme Court, that it is likely to end in a situation where it 

is going to rule in favor of the State and at the expense of those 

resources that could be used for other purposes. 

What is your thought on going into this role and taking a look 

at cases like that and maybe determining priorities based on the 

likely outcome? Have you given any thought to that? 

Ms. LYNCH. Certainly, Senator, as we review a case, both 

throughout my career as a prosecutor and as U.S. Attorney, we always look to the possibility of how a court will view a particular 

matter. 

But first and foremost, whether the case involves voting or any 

other important right, is the issue of what is the evidence that is 

presented and what is the relevant law, what is the interest being 

protected. And if it relates to a core function of the Department of 

Justice, such as protecting the rights of citizens, keeping our citizens safe, or protecting the right to vote, it is a matter that we 

would be obligated to look into. 

Whether or not a matter would result in litigation would, of 

course, depend upon a variety of factors, which are not in front of 
78 

me today, about the nature of the law and how it was written and 

essentially whether it comported with those laws that were previously approved both by the Department and by courts. 

Certainly, with respect to the North Carolina case, I believe the 

matter is in litigation. It is not something that I am intimately familiar with. I have not been involved in the management of that 

case to date. I look forward to learning more about it, should I be 

confirmed, and I believe the matter will proceed to court and we 

will await the results there. 

Senator TILLIS. Ms. Lynch, I do have a question just based on the 

final comment that you made there with respect to the case, because it gives me some sense of whether or not we can look at this 

objectively and make sure that we are using the resources of DOJ 

in the most effective way. 

I think in January of 2014, you said that people try and take 

over the Statehouse and reverse the goals that have been made in 

voting in this country. I presume since I was the person that took 

over the Statehouse, I would be included by reference. 

And you go on to say, ‘‘And in my home State of North Carolina, 

has brought lawsuits against those voting rights changes to seek 

to limit our ability to stand up and exercise our rights as citizens.’’ 

So in my limited time—I know that I will have another opportunity to ask questions—I had some sense that maybe perhaps you 

were somewhat familiar with what had been done in North Carolina. And again, with the backdrop of other laws that seem to have 

disposed of whether or not what North Carolina has done, I took 

great care to make sure that we made heroic efforts to preserve everyone’s right to vote. 

I may come back around and ask you a few more questions to 

this effect, but I want to move on to something that is completely 

out of there and it has to do with something that is very important 

to me. One of the reasons I ran was on veterans’ issues and on taking care of those who have taken care of us. 

One question that I have—I hope that you will look at and perhaps consider in my follow-up questions giving me a response, if 

you have time to speak with others, but the Public Safety Officers’ 

Benefits program is a problem. 

We have people who are making claims there who are not getting 

their claims resolved on a timely basis and I have heard a number 

of reports where—and this is in the event of a death—that I would 

like to think that we would place a priority on resolving these 

claims and clearing the backlog. 

If you have an opportunity, and you will not have a lot because 

you will be sitting right there, but if I could get some sense of what 

that will be as a priority, if you are confirmed as Attorney General. 

It is something personally important to me. I think it is the least 

we can do for the families. 

The one other thing I will tell you that I think we are going to 

find a lot of common ground, should you be confirmed, is on the 

issue of cybersecurity. I consider this to be something that the Attorney General, all law enforcement, all prosecutorial districts 

across this Nation need the tools to make sure that we get control 

of this quickly. 
79 

I would like some idea, based on your knowledge of how we are 

currently doing, if you have any sense of where you would go as 

a priority, should you be confirmed. 

Ms. LYNCH. Certainly, Senator. With respect to cybersecurity, 

there are a number of areas which would be my focus, should I become confirmed as Attorney General. 

Within our law enforcement community, I would work to ensure 

that they have the technological resources needed to stay ahead of 

this threat both from a human resources perspective, as well as 

computers and the like. 

With respect to the U.S. Attorney community and the Department of Justice community, I would make sure that our prosecutors receive the appropriate training to manage this important 

issue. 

As I have seen in my practice as U.S. Attorney, cyberissues are 

now in every area of practice that we have. That will continue to 

be the case and I am sure that, should I become confirmed as Attorney General, I will see that throughout the Department of Justice. 

So I will work to strengthen the resources in the Criminal Division and the National Security Division that deal with these cases. 

But, Senator, another thing that I think is very important as we 

combat cyberattacks and deal with cybersecurity is the relationship 

between Government and private industry. 

I believe that there is a very, very important collaborative relationship to be built there. It is being built. I have seen it. I have 

participated in conferences with both financial sector parties, as 

well as pharmaceutical industry parties on this important issue 

and we have had very, very good, positive, collaborative results involving the reporting of cyberattacks, as well as law enforcement’s 

ability to work with private industry to gain knowledge of their 

systems to prevent attacks, as well. 

So I think we also—should I become Attorney General, one of my 

priorities would be strengthening this connection between Government and private industry, as well. 

Senator TILLIS. Thank you very much. 

Senator Schumer mentioned earlier—I meant to mention in my 

opening comments, that we have a number of very capable basketball teams in North Carolina beyond the Blue Devils and the Tar 

Heels, many of whom I think this year could beat the Knicks. 

[Laughter.] 

Ms. LYNCH. Well, Senator, as an early Carolina fan, I have to say 

that that is likely true. 

[Laughter.] 

Chairman GRASSLEY. I would like to have the various staff of 

both Republican and Democrat give us some inventory of the number of people that want a second round, and the second round will 

be 8 minutes. I am going to take about 5 minutes of that 8 minutes 

and then go vote and I will have to recess if nobody else is back 

here. So you can do what you want to do during that period of 

time. 

Ms. LYNCH. Thank you, Senator. 
80 

Chairman GRASSLEY. The first question was going to be a question. Now it is just going to be a statement. So I would appreciate 

it if you would listen to my point of view. 

You suggested earlier that prosecutorial discretion allows the administration to prioritize removal of criminal aliens from the country. Yet, in fiscal year 2013, the administration released from its 

custody 36,000 aliens who had been convicted of a crime instead of 

removing them. According to the Department of Homeland Security, 1,000 of these aliens have already been convicted of another 

crime since their release. 

Just today I received a 38-page document from the Department 

of Homeland Security that lists each of the offenses underlying 

those 1,000 post-release convictions, including things like assault 

with a deadly weapon, terrorist threats, failure to register as a sex 

offender, lewd acts with child under 14, aggravated assaults, robbery, hit and run, criminal street gang, rape spouse by force, child 

cruelty, possible injury, death. 

So I am going to put this in the record. 

[The information appears as a submission for the record.] 

Chairman GRASSLEY. So my statement is this for you to consider. 

You do not have to respond to it now. I could go on, but for the 

sake of time, that copy is in the record, so anybody can review it. 

This suggests the administration is not prioritizing the removal 

of criminal aliens very well. So 1,000 out of 36,000 have committed 

further crimes, and, who knows, maybe others. 

So, if confirmed, my statement to you would be simply: You need 

to take a look at that policy. 

I had two points in my second question. But Senator Tillis asked 

about the public safety officers’ benefits. So he has heard the same 

thing that I have heard from my constituents. In Iowa alone, there 

are three families who have been waiting for over three years, and 

another that has been waiting since 2013 to receive benefits. 

Two weeks ago, I wrote the Department about the delays and requested a reply by this Friday. Obviously, you will not be in a position that you can request that or answer that by Friday, but I hope 

to get an answer because way back in 2004 the Attorney General 

at that time made a decision that these claims should be processed 

within 90 days of receiving all the necessary information. So then 

I would go to the second one, which is just—well, let me go to it 

and then I will ask you the question. 

There is a Brandon Ellingson of Iowa. You would not know about 

this because it is an Iowa person, and a college student, who 

drowned while handcuffed in the custody of Missouri State troopers 

after they arrested him on Lake of the Ozarks, May 2014. 

I have discussed the case with Attorney General Holder, had a 

couple of telephone conversations. I am very satisfied with his personally looking at it. It has gotten his personal attention. He has 

assured me that the Department will look into the unanswered 

questions in this case carefully to see if there are any Federal laws 

involved. 

So all I am asking you to do, if and when you are approved, will 

you be able to talk to Attorney General Holder and if he does not 

make a decision by then, that you would personally examine Brandon Ellingson’s case? 
81 

Ms. LYNCH. I will certainly continue that resolve, Senator. 

Chairman GRASSLEY. Thank you. Now, I am going to go and I 

will recess for a while, then I will come back and finish my second 

round. Thank you. 

Ms. LYNCH. Thank you, Senator. 

[Whereupon, at 3:30 p.m., the Committee was recessed.] 

[Whereupon, at 3:33 p.m., the Committee reconvened.] 

Senator SESSIONS [presiding]. Thank you all. Sorry that we are 

in this unfortunate circumstance of having our hearing interrupted 

rather repeatedly. It is not the best way to do business. Ms. Lynch, 

I am sorry that that has occurred. We have been working hard in 

the Senate. Thursday, more votes were cast in one day than in the 

entire year last year. 

Senator McConnell promised that Members would be able to 

offer votes, so there are 18 more, I think, going to be cast today. 

Maybe that will come close to bringing an end to the legislation 

that is out there. 

But I think it is part of our heritage as a Congress to have individual Senators be able to offer an amendment and then vote on 

it. So I think it is the right thing. This hearing, I wish, could have 

been conducted more respectfully, so I am sorry about that. 

I have to have a clear answer to this question, Ms. Lynch: Do 

you believe the Executive action announced by President Obama on 

November 20 is legal and constitutional, just yes or no? 

Ms. LYNCH. As I have read the opinion, I do believe it is, Senator. 

Senator SESSIONS. Well, this is very troubling to me because it 

goes way beyond prosecutorial discretion, I think. It goes clearly to 

allowing someone to work who is unlawfully in America, to take 

jobs that the statutes say they are not entitled to take. It gives people the right to participate in Social Security and gives them a 

number and is part of their work authorization and to participate 

in other actions, like Medicare. 

I believe this is a fundamental question. It has been a part of the 

national debate and the American people are very concerned about 

it. The polling number is very high. They do not believe—in fact, 

the American people are shocked that we are seeing this action 

from the President after Congress was asked to pass legislation to 

this effect and Congress rejected it. 

Do you believe that the President has a right to take action in 

violation of law just because Congress refused to pass a law he 

asked them to pass? 

Ms. LYNCH. I believe, Senator, that the President is as limited 

by law as every citizen and it is certainly the responsibility of both 

the President and the Department of Justice to follow the laws as 

passed by this body. 

With respect to other actions the President may take, depending 

upon the action taken, there may be a basis for certain actions or 

there may not be a basis for legal actions. And that is where I believe that the Department of Justice must apply its own independent, thorough legal analysis and, as with this particular opinion, ascertain whether or not there was a legal framework for some 

action and, as I saw in the opinion, indicate that there was not a 
82 

legal framework for some of the action that was requested and decline to provide a legal basis for that. 

Senator SESSIONS. Well, what it did approve, I think, clearly goes 

beyond the law. Congress authorized—has passed certain laws that 

control entry into the United States. We expect you as the chief 

law enforcement officer, the President, who takes an oath to see 

that laws are faithfully executed, to execute those. I have read the 

opinion and it suggests that ‘‘faithfully execute’’ means you use 

your resources as best you have to carry out the intent of Congress. 

Is that fundamentally—— 

Ms. LYNCH. Certainly, sir. 

Senator SESSIONS. So it goes beyond just enforcing every single 

law. If you do not have the resources, you should try to use the resources you have to effectively carry out the law. 

Ms. LYNCH. Certainly, sir. 

Senator SESSIONS. Well, what I would contend is absolutely 

plain. I would contend that you have gone far beyond that. You 

have actually created a new system of law, a new system of qualification, a new standard for who can work in America, a new 

standard for who can have Social Security and Medicare. This is 

a fundamental matter of great importance. I have just got to tell 

you, I am worried about it. 

In the Wall Street Journal, Mr. Rivkin, who served two White 

House counsels, and law Professor Foley concluded their piece this 

way: ‘‘The OLC,’’ that is the Office of Legal Counsel who reports 

to Mr. Holder and would report to you, that you are now affirming, 

rendered a valid opinion, which you associate yourself with. This 

is what they said: ‘‘The OLC’s memo endorses a view of presidential power that has never been advanced by even the boldest 

presidential advocates. If this view holds, future Presidents can 

unilaterally gut tax, environmental, labor or securities laws by enforcing only those portions with which they agree. This is a dangerous precedent that cannot be allowed to stand.’’ 

Frankly, the Attorney General of the United States should have 

told President Obama that, urged him to back off. Presidents get 

headstrong. He did not do it, and now you are here defending this. 

I believe it is indefensible. 

So, I am worried. I just want to tell you, that is a big, big problem with me. 

Now, do you believe and do you support legalization of marijuana? 

Ms. LYNCH. Senator, I do not. 

Senator SESSIONS. I know the head of the DEA, who is a little 

bit out of step with some in the administration, I think, agreed 

with you on that. The President said this in January of last year: 

‘‘I smoked pot as a kid and I view it as a bad habit and a vice, not 

very different from the cigarettes I smoked as a young person up 

through a big chunk of my adult life. I don’t think it is more dangerous than alcohol.’’ Do you agree with that? 

Ms. LYNCH. Well, Senator, I certainly do not hold that view and 

do not agree with that view of marijuana as a substance. I certainly think that the President was speaking from his personal experience and personal opinion, neither of which I am able to share. 

But I can tell you that not only do I not support legalization of 
83 

marijuana, it is not the position of the Department of Justice currently to support the legalization, nor would it be the position 

should I become confirmed as Attorney General. 

Senator SESSIONS. I do think there has been a lot of silence 

there. I know the head of the DEA did push back and testified here 

pretty aggressively, but I think she felt like she was out of step 

within the administration. I hope that you will cease to be silent 

because if the law enforcement officers do not do this, I do not 

know who will. In the past, Attorneys Generals and other Government officials have spoken out and, I think, kept bad decisions 

from being made. 

It is good to see Senator Leahy here. How many Attorneys General have you presided over? More than a few. How about a rough 

number? 

Senator LEAHY. Since President Ford’s—go back to there. Not 

presided, but been part of it. 

Senator SESSIONS. Well, it has been a pleasure to work with you 

on this Committee over a number of years. 

Ms. Lynch, this is a big issue, this immigration, because it represents, in my view, a presidential brute decision that was rejected 

in Congress. I do not believe, and totally reject the idea that if Congress fails to act, then the President is entitled to act, any more 

than I think if Congress fails to act, judges can just act. Because 

Congress, by not agreeing to pass a certain piece of legislation, has 

acted. It has made a decision. That is where we are. There are still 

opportunities and still legislation moving that will be considered in 

the years to come on all questions relating to immigration. There 

will be a lot of debate and that kind of thing. But under our system, it is not justified, in my view. 

Just one more thing I would say to you. I do hear a lot of talk, 

a lot of loss of confidence in the Justice Department, a belief from 

professionals, prosecutors, and citizens that there is too much politics and not enough law. 

I do think, if you achieve this office, you need to know that. I 

shared that with you, I think, in our meeting. You need to make 

it a central part of what you do to reverse that trend and restore 

confidence that this Attorney General’s Office serves the law and 

the people objectively and not a political agenda. 

Thank you. I will recognize Senator Leahy. 

Senator LEAHY. I will be brief. But when I was a young law student I was invited in to the Attorney General’s Office. He was recruiting me to come to the Department of Justice. I asked the Attorney General how independent they were. 

I said, for example, suppose you had a prosecution that you knew 

was justified, but the White House, you know, might take a different view? He said, I would have to prosecute because that is my 

job. That Attorney General was Robert Kennedy. He later prosecuted a man who was critical to his brother getting elected President. 

I contrast that to another Attorney General in the last administration who testified here that he’s a member of the President’s 

staff, so therefore in effect took orders from the White House. I 

kind of exploded on that. I said it is not the Secretary of Justice, 
84 

it is the Attorney General of the United States—not for the Republicans, not for the Democrats, but the United States. 

I think from what you told us, you would be that kind of an independent Attorney General. I also heard somebody criticize here this 

morning on the prosecution of Ted Stevens. I happen to feel he 

should not have been prosecuted. They neglected to mention that 

the conviction was during the last administration and it was Attorney General Holder who got it removed from Senator Stevens. 

We are concerned in Vermont about the increase of opiates and 

heroin. I assume from things you said before that you would continue to work with communities, as the Justice Department does 

now. I mean, communities, not just at the Federal level, but the 

State and local level, to combat this problem that is facing so many 

parts of the United States, not just my own State of Vermont. 

Ms. LYNCH. Senator, should I be confirmed as Attorney General, 

certainly the issue of the growing numbers and amount of heroin 

abuse is a grave concern to me. I have seen it happen in my own 

district. In talking with my colleagues in the U.S. Attorney community across the country, they have expressed similar concerns. 

As you point out, however, we are most effective when we work 

in partnership with our State and local law enforcement partners, 

and often when dealing with the issue of opioid addictions and 

working with our public health community as well, to find treatment for the offenders and possibly break the cycle of addiction. 

Many of my colleagues have in fact been engaged in efforts of exactly that type that have been very effective in lowering the addiction rates and, in fact, lowering the crime rate associated with heroin abuse. 

These are efforts that we can study and that we can share. We 

have to have a strong law enforcement response also but we must 

involve State and local counterparts. We must involve families, we 

must involve treatment centers as well in dealing with this seemingly intractable problem. 

Senator LEAHY. Thank you. I would, if there is no objection, reserve the 4 minutes and 46 seconds left in my round of questions 

because, as everybody knows, the roll call has started. 

Senator SESSIONS. That will be fine. We will save that 4 minutes 

and 46 seconds and we will stand in recess until somebody returns. 

Ms. LYNCH. Thank you, sir. 

[Whereupon, at 3:47 p.m. the Committee was recessed.] 

[Whereupon, at 3:54 p.m., the Committee reconvened.] 

Senator SCHUMER [presiding]. The hearing will come to order. 

First, I would like to thank my Republican colleagues for the 

courtesy here. We are all going back and forth, voting. It would be 

rare to have the third-ranking Democrat chair the Committee, but 

we are all going and voting and I appreciate that. I will try to be 

as quick as I can because of my need to vote. 

So first, Ms. Lynch, I read this morning that—on the news—you 

have something special from your late brother, who was a Navy 

SEAL, with you today. Tell us a little about that. 

Ms. LYNCH. Well, Senator, I have with me my late brother’s trident, the insignia of the Navy SEAL. It is something that I usually 

have with me in my office, but I often bring with me when I come 

down to the Department of Justice and I had it with me here 
85 

today. It ensures that I have both of my brothers with me here 

today. 

Senator SCHUMER. Yes. Well, having read and seen and met the 

SEALs, it is an amazingly difficult thing to achieve. 

Then like you, in a different way, he was defending our country 

in one of the best ways you can, so we really appreciate that and 

appreciate your thoughts about your brother. Okay. 

Now, I would like to go to the next area. This morning, both you 

and Senator Sessions and I talked about a topic, it seems like a 

long time ago this morning. So I would like to just talk a little 

more about that. 

Absent appropriate authorization from DHS, I just want to ask, 

is there any Federal right for an immigrant who is not in lawful 

status to work? 

Ms. LYNCH. No, there is not, to my knowledge. 

Senator SCHUMER. Okay. Thanks. I think earlier you said you 

had a preference that all individuals here in the United States 

work, regardless of status. I think a lot of us would share that preference. I think this is confusing for people because there literally 

are nearly 100 categories of statuses, of stati, whatever the right 

word is—— 

[Laughter]. 

Senator SCHUMER. They did not teach that at James Madison 

High School—for people because you have got to count green cards, 

non-immigrant visas, spouses of individuals on certain visas, parole, asylum, applicants for green cards, non-immigrant visas, immigration visas. Many people who are not U.S. citizens have a legal 

right to work. For example, green card holders’ work visas. We 

admit people to work on a work visa. 

So let me ask you, just what did you mean when you said you 

think everyone should work regardless of status? 

Ms. LYNCH. Well, certainly, Senator, when I made that comment 

I was really making more of a personal observation. 

I must admit, I have to be careful here because my father is here 

and my mother is watching. But certainly in my family, as we grew 

up, we were all expected to try and find employment as part of becoming a responsible adult and as part of becoming a responsible 

member of society. So I was making a personal observation based 

on the work ethic that has been passed down to me by my family, 

not a legal observation. 

Senator SCHUMER. Right. So again, to reiterate, you do not believe that there is a Federal right for an immigrant who is not lawful here to work? 

Ms. LYNCH. No, sir. Not at all. 

Senator SCHUMER. Okay. I just wanted to clarify that. I wish 

Senator Sessions were here. He was not certain about what you 

said. I think now the record is 100 percent clear. Okay. 

One final question. This is about a myth—another of the myths 

that are out there—a generally deferred action policy eliminates 

case-by-case consideration and is therefore illegal. That is what 

some people are saying. 

Deferred action actually, like many Federal policies, sets eligibility criteria but then requires case-by-case consideration. So only 

a limited set of individuals, those with deep ties to this country and 
86 

without a criminal record, can apply for deferred action under the 

President’s proposal. 

But that is not all. After they register, pay a fee, undergo criminal background and national security checks, the President requires DHS officers to scrutinize every single case individually to 

make absolutely sure the person is not someone we should 

prioritize for deportation. 

So I have two questions in regard to that. Doesn’t it make eminent sense for a program to set out guidelines at the front end and 

then still require careful individual consideration at the back end 

before anyone is approved? 

Ms. LYNCH. Certainly, sir. That would make eminent sense and 

would provide for a careful review of every applicant. 

Senator SCHUMER. And I believe that is what the President is intending to do. We have not seen all the regulations yet, but that 

seems to me what he said. 

Couldn’t one argue that other discretionary guidelines and programs like Federal contract bids take a similar approach? We lay 

out broad criteria, but then they review each contract, contract-bycontract. 

Ms. LYNCH. Contract-by-contract and with vigorous application 

and screening. 

Senator SCHUMER. Right. Okay. I want to thank, again, my colleagues for deferring. I will pass not only the questioning, but the 

gavel, to Senator Graham. 

Senator GRAHAM [presiding]. A dream come true. 

[Laughter]. 

Senator GRAHAM. It will only last for eight minutes, so I am 

going to enjoy it while I can. 

Your brother was a Navy SEAL. That has got to be—that is a 

major accomplishment. It is probably the hardest thing to be in all 

the military, so I know your family is proud of him and what you 

have accomplished. 

Do you agree with me that one of the worst possible outcomes 

is for the United States to release somebody from Guantanamo Bay 

to go back to the fight to kill an American SEAL, or anyone else? 

That we should really make sure we do not do that unless we absolutely have to? 

Ms. LYNCH. I certainly think that anyone coming from either 

Guantanamo Bay or any of our facilities, we should take appropriate steps to make certain they do not place Americans in harm’s 

way. 

Senator GRAHAM. I could not agree with you more. 

We have got a 30 percent release rate, and from a SEAL point 

of view, they are usually the guys capturing these folks. 

It has got to be bad for morale if one of the guys that you captured wind up killing your buddy down the road. So I really do believe that the policy we have at Guantanamo Bay needs to be reviewed, and reviewed closely for not just all SEALs, but for all who 

have been fighting. 

Now, about being at war. Do you believe we are at war? 

Ms. LYNCH. We are at war, Senator. 

Senator GRAHAM. Okay. Now, I have been a military lawyer for 

30-something years. You have been a prosecutor for a very long 
87 

time. I believe in an all-of-the-above approach, that military commissions have a place in this war and Article III Courts have a 

place in this war. Do you agree with that? 

Ms. LYNCH. I do, Senator. I do agree with that, by principle. 

Senator GRAHAM. Now, under military law the main objective 

when you capture an enemy combatant is to gather intelligence, it 

is not prosecution. Does that make sense to you? 

Ms. LYNCH. That is certainly one of the important objectives 

under military law. I would add, however, though, that with respect to the Article III prosecutions that I have been involved in 

through my office, a primary goal is also to obtain cooperation, and 

thereby valuable intelligence. 

Senator GRAHAM. Here is what I would suggest to you, ma’am. 

This is the Army Field Manual. It is over 300 pages. I helped write 

the Detainee Treatment Act with Senator McCain to make sure 

that we did not torture people. I believe waterboarding is torture 

and it is illegal. But in this Army Field Manual, which sets the parameters for detaining people and interrogating them, not one time 

does it suggest that you should read the enemy combatant their 

Miranda rights. Do you know why that would be? 

Ms. LYNCH. Well, I certainly think the Army Field Manual has 

proven to be a very effective way of handling high-target detainees. 

Senator GRAHAM. All I would suggest, ma’am, that anybody in 

the military would reject out of hand that it is a good way to gather 

intelligence by providing the enemy combatant a lawyer. In World 

War II, even though Miranda did not exist, and all the wars since 

then, no one has ever suggested to our military that once you capture an enemy combatant, that you give them a lawyer as a better 

way to gather intelligence versus holding them under the law of 

war. 

So here is my recommendation to you. We have caught several 

high-value targets in the last year or two. We have read them their 

Miranda rights within days or hours of capture. You will never convince me criminalizing the war is the best way to gather intelligence. 

I want to talk to you about this. I want to have more flexibility 

than we have with the current system. If we do not hold some of 

these people under the law of war for questioning as an enemy 

combatant, then we are going to lose the ability to gather intelligence. The only way you can protect this Nation is to interrupt 

the next attack because the people who are fighting do not mind 

being killed. 

Can an American citizen be held as an enemy combatant? 

Ms. LYNCH. Senator, with respect to an American citizen, I believe there would be a prohibition against holding them, against us 

holding them, as an enemy combatant. 

Senator GRAHAM. Ma’am, that is not true. We have held several 

American citizens for a multiple period of years as enemy combatants: Hamdi v. Rumsfeld. Before I vote on your nomination, I want 

you to read Hamdi v. Rumsfeld and Ex Parte Quirin, where American citizens, collaborating with the Nazis, landed at Long Island 

and tried to attack the country. They were tried by a military commission. Military commission trials are not available to American 

citizens. They have to go under Article III. But we have under our 
88 

law in Hamdi v. Rumsfeld the idea there is no bar to this Nation 

holding one of its own citizens as an enemy combatant. 

What recommendation—I want you to read those two cases and 

get back with me and see if that changes your mind. 

What recommendation would you give an American citizen when 

it comes to joining ISOL or Al-Qaeda? What would you tell them 

to do? 

Ms. LYNCH. Senator, with respect to an American citizen, or anyone who seeks my opinion on joining ISOL or Al-Qaeda, my recommendation would be, do not do it or you will face American justice. 

Senator GRAHAM. Well, not so much you will face American justice. You are going to get killed if we can find you. 

Ms. LYNCH. You may get killed before we can find you. 

Senator GRAHAM. That is right. But if we find you, we can kill 

you. Anwar al-Awlaki. Do you know that guy? 

Ms. LYNCH. Yes. He was—— 

Senator GRAHAM. Do you think the President acted within his 

constitutional authority to use a drone against him? 

Ms. LYNCH. So with respect to Anwar al-Awlaki, I am familiar 

with him as he has figured in the radicalization of some of the defendants who have come before the Eastern District of New York, 

as well as a very active Al-Qaeda leader. I am not familiar with 

the ways in which the decision was made to use the drones against 

him. 

Senator GRAHAM. Let me say—let me tell you how it was made. 

There is an executive process where there are executive agencies 

that evaluate the threat that every individual presents to the country. In the case of an American citizen, there are very strict criteria. But if they meet those criteria, the President can order the 

use of lethal force. I promise you, in every war we have been in 

American citizens for some reason have decided to side with the 

enemy and they have been viewed as an enemy combatant, not a 

common criminal. 

The President of the United States, I think correctly, authorized 

a drone attack against Anwar al-Awlaki, who was the head of AlQaeda in Yemen. Would you want to look at that before you give 

me the answer? Are you comfortable with that process? Would you 

like to look at that process and get back to me? 

Ms. LYNCH. Well, Senator, I am comfortable with the process as 

you describe it. What I think it illustrates, however, is the need 

to—as you put so eloquently at the beginning of our discussion— 

use all of the tools available to combat this war. 

Senator GRAHAM. And I just want to make sure that, as the Attorney General of the United States, you understand one of the 

tools to combat this war is to use lethal force against an American 

citizen who our Government has determined to be part of the 

enemy force. 

The second tool is to hold an American citizen, or a non-citizen, 

under the law of war for the purposes of intelligence gathering. 

Those are two tools in our toolbox that have been used for decades. 

I want to make sure, as Attorney General, you recognize those tools 

are available to us in this war as we go forward. Read these cases 

and get back with me, if you could. 
89 

Ms. LYNCH. Absolutely, Senator. 

Senator GRAHAM. Thank you very much. 

Online gaming. Are you familiar with the decision by the Office 

of Legal Counsel in 2011 to basically say that the prohibition in the 

Wire Act was limited to sporting events and contests? 

Ms. LYNCH. I am generally familiar with the results of that. 

Senator GRAHAM. Do you agree with that decision? 

Ms. LYNCH. I have not read that decision, Senator, so I am not 

able to really analyze it for you. Certainly I think it was one interpretation of the Wire Act that was considered in the past. 

Senator GRAHAM. Would you agree with me that one of the best 

ways for a terrorist organization or criminal enterprise to be able 

to enrich themselves is to have online gaming that would be very 

hard to regulate? 

Ms. LYNCH. I think certainly that what we have seen with respect to those who provide material support and financing to terrorist organizations, they will use any means to finance those organizations. 

Senator GRAHAM. I am going to send you some information from 

law enforcement officers and other people who have been involved 

in this fight and their concern about where online gaming is going 

under this interpretation. Thank you very much. From my point of 

view you have acquitted yourself very well. But I do appreciate if 

you would look and be able to answer my questions about enemy 

combatant status for American citizens and the use of lethal force. 

Ms. LYNCH. Thank you, Senator. 

Senator GRAHAM. Thank you very, very much. 

And now I will turn it over to Senator Lee. You are now the 

Chair. 

Senator LEE [presiding]. Thank you, Mr. Chairman. 

Thank you for staying with us, and even through the hectic vote 

schedule. 

I would like to go back to civil forfeiture, if that is all right, 

which is the topic we were discussing earlier before I left for the 

last vote. 

First of all, I want to get back to the question I asked at the outset. Do you think it is fair, is it fundamentally just, that someone 

can have their property taken from them by the Government without any evidence that they have committed wrongdoing, based solely on a showing by the Government based on a probable cause 

standard that their property might have been involved in the commission of a crime, perhaps without their own knowledge, their 

own consent, their own awareness on any level? Do you think that 

is fair? 

Ms. LYNCH. Senator, I think that we have a very robust asset 

forfeiture program, both criminal and civil. With respect to civil 

forfeiture, I have looked at the program in general. Again, the Department is conducting a review of the forfeiture program. 

With respect to civil forfeiture, there are legal safeguards at 

every step of the process, certainly as instituted or implemented by 

my office and my understanding by my U.S. Attorney colleagues, 

so there will be judicial review before there can be attachment or 

seizure, for example, as well as an opportunity to be heard. But 
90 

that standard must be met before the seizure warrant can be 

issued. 

Senator LEE. I understand. I understand. A lot of Americans do 

not believe that that is fundamentally fair. 

Again, that is why in many States there have been laws enacted 

that restrict the use of civil forfeiture under those circumstances 

and impose additional requirements, which is why I raised the concern about the process by which the Department of Justice has, on 

occasion in the past, used something known as adoption, whereby 

they will take something that could not be forfeited under State 

law in State court and they will utilize the resources of the U.S. 

Department of Justice to assist in the forfeiture. 

The U.S. Department of Justice retains 20 percent and then 

yields back 80 percent to the State and local law enforcement agencies. This is troubling. You appeared to be aware when I asked you 

about this. You appeared to be aware about an order that Attorney 

General Holder issued just about a week and a half or two weeks 

ago—I believe it was on January 16—restricting that. So I assume 

you are familiar with that order? 

Ms. LYNCH. There was an order or policy directive from the Attorney General to the field, and as U.S. Attorney I did receive that, 

and it essentially ends the adoption program. As you point out, 

Senator, a number of States now do have a robust asset forfeiture 

program on their own. 

When the Federal program was being instituted, at least the research shows, many States did not have this program. 

So a lot of the local law enforcement agencies that have been 

used in the adoption program initially did not have a venue to effectuate legal seizure of property that had been used in a crime. 

The adoption program began several years ago, primarily as a response to that. That has changed. That legal landscape is very different, and that certainly was one of the reasons set forth in our 

discussions when the policy change was made. 

Senator LEE. Okay. So this order that the Attorney General 

issued on January 16th, you referred to it as essentially ending 

this adoption program—again, the program by which the Federal 

Government can assist State and local law enforcement agencies in 

circumventing their own State law restrictions on civil forfeiture. 

But when you read the order, you see that it is subject to several 

exceptions. One exception applies with respect—I think you referred to this briefly before when you and I spoke a few hours ago. 

One exception relates to property that directly relates to public 

safety concerns. Fair enough. 

Then you turn to the next page and you look at the second-tolast paragraph, which contains some additional carve-outs. This 

order does not apply to: (1) seizures by State and local authorities 

working together with Federal authorities in a joint task force; (2) 

seizures by State and local authorities that are the result of joint 

Federal/State investigations or that are coordinated with Federal 

authorities as part of ongoing Federal investigations; or (3) seizures 

pursuant to Federal seizure warrants obtained from Federal courts 

to take custody of assets originally seized under State law. 

As I see it, Ms. Lynch, this order, while purporting to end this 

adoption program, as you say, is riddled with loopholes. It is rid-
91 

dled with loopholes that effectively swallow the rule, which seems 

to be a recurring theme today, which is something that concerns 

me greatly with this Department. 

Now, I understand that this order was issued, has been issued 

prior to your confirmation—after your nomination, prior to any confirmation vote on your nomination. But I would just ask you to 

take into account these concerns and to work with me moving forward on making sure that our civil forfeiture programs do not get 

out of control. 

But would you agree with me that we really ought to find ways 

to stop Federal law enforcement agencies from helping State governments to circumvent their own State law restrictions on civil 

forfeiture? 

Ms. LYNCH. Senator, I believe that the policy change that ended 

the adoption program certainly ends that as the problem that had 

been raised. As you pointed out, these were situations where local 

law enforcement made an initial stop or seizure, so the seizure was 

not essentially begun by a Federal agent or partner, and then the 

matter was brought to a Federal agent for adoption and processing 

through the Asset Forfeiture–Equitable Sharing system therein. 

The other situations to which you refer where there is either a 

Federal/State task force or a joint investigation really are situations where there is actually a Federal case from the outset and 

there would not be the issue of having to review the State laws and 

they would not be an option in that case, because again the case 

would be under Federal jurisdiction from the very beginning. 

So as you have pointed out, the initial adoption program did 

raise concerns. I understand that those have been discussed in the 

public discussion venue, as well as in law enforcement circles as 

well, about the issue where the State has a robust system of asset 

forfeiture but that system is not being used and the Federal system 

is being used instead. The adoption program ends that practice. 

Senator LEE. It ends it but subjects it to some very large loopholes. So I would just ask you to be aware of that, and I would like 

to discuss that with you more moving forward. 

Before my time expires, I want to get back to another question 

I asked earlier. Indulge me in this hypothetical scenario. We did 

not have time to fully explore it previously. But imagine you are 

in a State in which there is a 55-mile-an-hour speed limit. There 

are a lot of people who want that speed limit raised. Imagine that 

the Chief Executive of that State, the governor, really wants it 

raised to, say, 75 miles an hour. There is a lot of support within 

the legislature and among the public at large that there needs to 

be some reform to the speed limit law, but they cannot get to any 

one proposal that gets enough votes and so nothing happens. 

The governor at that point decides that he will announce that 

anyone who wants to drive faster than 55 will not be ticketed and 

they can apply for certification that they will not be ticketed if they 

want to drive up to 75 miles an hour. He says I cannot guarantee 

this forever, but I can guarantee it for the next three years, I will 

not be enforcing that. 

Would that, under that hypothetical scenario, not be tantamount 

to a usurpation of the legislative role that belongs to the legislative 

branch? 
92 

Ms. LYNCH. Well, Senator, with respect to your hypothetical, before I could provide a response I would certainly want to understand not just the factual framework that you have outlined, but 

the relevant laws governing the situation, as well as any prior 

State action, any actions that had been sanctioned, all the types of 

things that would go into rendering a legal opinion. And certainly, 

as I am sure you can appreciate, I am a careful lawyer and I would 

want to have all of that information before I could really give you 

a legal opinion as to your hypothetical situation. 

Senator LEE. Okay. I understand. I respect the great care that 

you devote to answering questions. But I would respectfully submit 

that at some point there is a limit to what a Chief Executive can 

do, whether we are talking about a Chief Executive in the form of 

a Governor at a State level or whether we are talking about a 

Chief Executive who is the President of the United States. At some 

point I would hope you could agree with me that there are limits 

to what a Chief Executive can do. 

At some point, when saying I am not going to enforce this law— 

suppose it is not speed limits, let us say it is taxes. A future President of the United States, whether a Republican or Democrat, says 

I do not think we ought to have any tax rate above 25 percent and 

at some point that President cannot get Congress to agree, so that 

President says I am not going to enforce any tax rate above a 25 

percent marginal rate. 

We can think of lots of examples. At some point there is a limit 

and I hope that you will recognize that and hope that moving forward, should you be confirmed, that you be one who is willing to 

point out to the President of the United States that you do have 

a client. Your client is the United States of America. 

The chief spokesperson for that client might be the President 

himself, but your client is the United States. Embodied within that 

are the constitutional restraints that fall upon every officer sworn 

to uphold, protect, and defend that Constitution, including the 

President himself. 

I see that my time has expired. I recognize Mr. Blumenthal. 

Senator BLUMENTHAL. Thank you, Senator Lee. As a careful lawyer, which I know you are, I want to try to perhaps set your mind 

a little bit at ease about a question that you were asked earlier. 

The question related to a statute that purportedly, according to the 

questioner, made the Attorney General responsible for determining 

who can take deferred action. 

One of my colleagues suggested that the President’s Executive 

order is illegal because it is being implemented by the Department 

of Homeland Security and not the Attorney General, as the law he 

quoted seemed to suggest. 

Just to clarify, the statute that was quoted to you actually was 

amended in 2002. It no longer assigns responsibility for immigration policy to the Attorney General. The provision that he quoted, 

and another provision which more directly authorizes what President Obama has done, are to be implemented by the Secretary of 

Homeland Security. 

So, good news: the President has done nothing wrong and you do 

not have to run home and look up the statute and get ready to im-
93 

plement a whole new area of law. You have enough to do, or will 

have enough to do already. 

I want to personally say that I appreciate that my colleagues are 

not making immigration policy the kind of turning point for their 

decision, or to put it a different way, they are not making this nomination a referendum on the merits of the President’s immigration 

policy and decisions. 

I must say I agree with the President’s action and support him, 

and so do sheriffs and chiefs of police across the country. 

I am going to ask, if there is no objection, that letters that I have 

from towns as varied as Marshalltown, Iowa; Salt Lake City, Utah; 

South Bend, Indiana; be made a part of the record, and also a letter from the National Task Force to End Sexual and Domestic Violence Against Women. 

Both letters—all these letters make the case that the President’s 

Executive action not only helps immigration officials target their 

scarce resources, but it also helps State and local law enforcement 

to secure cooperation with immigrant communities and identify potential criminals within their jurisdiction. So the beneficiaries of 

the President’s policies are not just the immigrants, but also law 

enforcement officials and people who are better protected by virtue 

of the activities of those law enforcement officials. If there is no objection, I ask that these materials be entered into the record. 

Senator LEE. Without objection. 

[The letters appear as submissions for the record.] 

Senator BLUMENTHAL. Thank you. 

I want to turn, briefly, to another area where you have some 

very profoundly valuable experience. In the wake of the events in 

Ferguson, Missouri, and New York City of last year, many of us on 

the Committee and many around the country who have backgrounds in law enforcement are deeply concerned with making sure 

the public understands the vital role that our police and our law 

enforcers in general play, as well as proper training and discipline 

that should be provided to those police and law enforcers. 

I wonder if you could talk about your experience in addressing 

the concerns about law enforcement in the wake of the Abner 

Louima case, where you had a professional involvement. I think 

how you feel, that that experience and new policies at the Department of Justice might better help the Department of Justice and 

State and local police. 

I would mention that I led an effort to pass during the last session a statute relating to death in custody. It is the Death in Custody Reporting Act. It requires local and State police to report 

deaths in custody, along with correction officials. It is actually a reauthorization of a law that expired in 2006, just a modest step toward gaining more facts. But I think there are obviously two sides 

to this kind of issue and I would very much appreciate your perspective on it. 

Ms. LYNCH. Certainly. Thank you, Senator. With respect to my 

work on the Louima case, I was certainly privileged to be a part 

of the trial team that handled that case. I think what often is not 

commented on, and perhaps it is not even widely known, is how essential the support and contributions and the actual work of the 
94 

NYPD was to both the investigation and the prosecution of that 

case. 

Our investigative team was comprised of both FBI agents and 

New York City police officers who knew that unless we held each 

other accountable, that unless law enforcement acted to hold bad 

actors accountable, all of law enforcement would suffer. And certainly one of the most painful things to watch during that case 

was, as is often happening now, the understandable anger and tension over it, but the backlash against larger groups of police officers. 

That is, in fact, one of the dangers of not addressing police misconduct, is that not only are the officers who work hard every day 

and work to not only follow the rules, but to enhance the relationship between law enforcement and the community. Those officers 

are not rewarded, but they often get painted with the same brush 

as officers who may cross the line. 

That is one of the greatest harms that we see from these types 

of cases. I have been privileged to work with dedicated police and 

agents my entire career and I think that there are no greater 

teachers and no greater instructors for a young prosecutor than an 

experienced police officer. 

One of the things that we found most useful after the Louima 

case was encouraging community policing, which the NYPD was 

doing on its own, and a number of officers did very, very well. I 

have seen situations where, when I was handing out awards to officers and agents for working on a case in a mostly minority area, 

cleaning out a housing project of a violent crack organization, the 

residents asked if they could also come and hand out plaques to 

those same officers and agents, and they did so with plaques that 

said, basically, thank you for giving us back our safety, our security, and our houses, because there was a collaboration there. 

There was a recognition that this is a joint effort. This is a shared 

project that we all have between law enforcement and all the communities that we serve to keep all of us safe. 

We also have to work more, and certainly, if confirmed as Attorney General, one of my priorities will be to ensure that our police 

officers have the tools that they need to do their jobs and to do 

them safely. Senator, I spent several weekends this past month attending the funerals of Detectives Ramos and Liu in New York 

City. To use the word ‘‘heart-wrenching’’ is, frankly, an understatement. The sense of loss and grief with this crime that has really 

touched the heart of New York City was palpable on every street 

corner. We cannot allow our law enforcement officers to be targets 

like this. We must provide them the protections they need to do 

their jobs as well. 

So certainly it is a priority of mine. I look forward to working 

with you to address the legislation that you described as well because the more we can get adequate information about these 

deaths in custody, the more we can put effective regulations, rules, 

and training in place to prevent them. 

Senator BLUMENTHAL. Thank you. Thank you for that excellent 

answer. I can tell you that the grief over the loss, the assassination 

of those two brave and dedicated police officers, was shared in Connecticut. As a former United States Attorney, as well as a State At-
95 

torney General, my own experience has been that some of the 

strongest condemnation of improper conduct or impropriety on the 

part of police officers comes from the police and other law enforcement themselves, and they have the toughest job—one of the 

toughest jobs, in my view—that exists in public service. 

I hope that the public appreciates it and that, as Attorney General, you will work with Congress to try to educate and make the 

public aware about the tremendous challenges they face day in and 

day out and the courage and strength that they demonstrate. So 

I thank you for that answer, and thank you again for being here 

today. 

Thank you, Mr. Chairman, whoever the Chairman is. 

[Laughter]. 

Senator LEE. It is a flexible answer. 

Senator BLUMENTHAL. Well, I know that the Chairman is the 

Senator from Texas. 

[Laughter]. 

Senator BLUMENTHAL. That is a nice answer to that question. 

Senator CRUZ [presiding]. Ms. Lynch, thank you for your endurance in what has been a long, extended hearing. I would ask in this 

round of questions if you could try to keep your answers brief because we have got to return to votes on the floor. 

In the prior round, you and I had a conversation about the OLC 

opinion and the President’s Executive amnesty. You stated your 

agreement with the legal reasoning in that OLC opinion. I would 

like to explore the limits of that reasoning. As you know, any legal 

theory that is being put forth to justify Government power naturally raises the question, What are the limits of that power? One 

of my greatest concerns about the Holder Justice Department is 

that at every turn, when asked, ‘‘What are the limits on Government power?’’ the answer has been, ‘‘There are none, there are 

none, there are none.’’ 

So let us talk about the limits of the prosecutorial discretion 

power. The OLC memorandum justifies Executive amnesty, in part 

based on prosecutorial discretion. 

Initially that was limited to some 800,000 people in the original 

DACA, then in the subsequent Executive amnesty that expanded 

to 4 or 5 million people. 

My first question to you is, in your understanding of prosecutorial discretion, is there anything to prevent that from being expanded from 4 or 5 million people to all 11 or 12 million people 

who are currently here illegally? 

Ms. LYNCH. Well, Senator, as I read the legal opinion, it was focusing on how the Department of Homeland Security could best 

execute its Executive discretion in prioritizing removals of the most 

dangerous of the undocumented immigrants among us. 

Then with respect to those who would be a low priority, it focused on the legal framework for setting up a deferral program. As 

I also read the opinion, it went through a legal analysis that indicated that part of the request did not have the requisite legal 

framework and should not be implemented. My understanding is 

that that particular part of the request was not implemented. 

So I think that with respect to any action, certainly, should I become confirmed as Attorney General, I would undertake a very 
96 

careful legal analysis based on all of the facts presented to me by 

either the White House or whatever agency raises the issue. 

We would look at all of the precedent, congressional action, the 

relevant statutes, and carefully explore whether or not the requested action did have a legal framework. If there was, in fact, a 

reasonable basis for it, as was outlined in the opinion that I read, 

that information would be provided. But as also was outlined in the 

opinion that I read, where the legal framework did not exist to support the request or the proposed action, that would have to be told 

to the requesting Department. 

Senator CRUZ. Ms. Lynch, let me try again because you described 

the memorandum, but I asked a pretty straightforward question: 

Would prosecutorial discretion allow the President to decline to enforce immigration laws against all 11 to 12 million people here illegally? 

Ms. LYNCH. Senator, prosecutorial discretion, as a tool, certainly 

as I have used it as a career prosecutor and U.S. Attorney, would 

focus on which cases to prosecute and which types of charges to 

bring. It would not apply to the situation that you have outlined, 

so I am sorry if I am not able to answer your hypothetical in the 

way in which you are requesting. 

As I have utilized prosecutorial discretion throughout my career, 

it has been with the presentation of cases before me and determining the best way to focus limited resources. 

Senator CRUZ. Well, and of course this is not simply prosecutorial 

discretion because in addition to stating that Federal immigration 

law would not be enforced with respect to somewhere between 4 

and 5 million people, the President also announced that the administration would be printing work authorizations in direct contravention of Federal law. 

Now, are you familiar in your practice as U.S. Attorney, when 

you have declined—when you have used prosecutorial discretion to 

prioritize prosecuting one crime versus another, have you ever engaged in printing up authorizations for one set of individuals to 

violate the law, to affirmatively violate the law, which is what 

these work authorizations consist of? 

Ms. LYNCH. Senator, in my practice as a career prosecutor and 

U.S. Attorney I have focused on bringing the strongest, most effective cases based on the facts and the law that have been presented 

to me, also when referring those cases to other law enforcement 

agencies should my venue not be the most appropriate one there. 

With respect to—— 

Senator CRUZ. Ms. Lynch, I am sorry to interrupt but we are on 

limited time. What I asked is if, in your practice, you ever issued 

authorizations to violate the law. That—I am certain the answer is 

‘‘no.’’ But am I correct in that? 

Ms. LYNCH. Senator, in my practice I focus on building the most 

strongest, most effective cases against the perpetrators who come 

before me and referring them to other jurisdictions if I am not the 

appropriate venue. It would not be a part of my responsibility—— 

Senator CRUZ. Ms. Lynch, you are—— 

Ms. LYNCH. To make a determination in the matter you are referring to. 
97 

Senator CRUZ. Ms. Lynch, you are a very experienced prosecutor. 

You have asked questions and had witnesses decline to answer. 

This is a simple question: Has your office issued authorizations for 

individuals to violate Federal law? 

Ms. LYNCH. Senator, as the U.S. Attorney, our office is not involved in issuing authorizations for anyone to work or not work, or 

to engage in various activities. We are not a licensing authority so 

I am just not able, unfortunately, to answer the question as put to 

me. 

Senator CRUZ. So your office has not. Are you aware of a precedent for the Federal Government doing what the administration is 

doing right now, which, it has hired over 1,000 people, it is printing 

millions of authorizations for individuals to violate Federal law. 

That is a remarkable step and it is a step that goes much further 

than simply prosecutorial discretion. Are you aware of any precedent for hiring over 1,000 people to issue authorizations for individuals to violate Federal law? 

Ms. LYNCH. Senator, I am not aware of the practices that you are 

referring to now, nor am I aware of how the particular remaining 

portions of the Executive action are being implemented. So I am 

simply not able to comment on the hypothetical as presented to me, 

or the particulars that you have given to me. So I am sorry I do 

not have the information to answer your question. 

Senator CRUZ. Well, then let me understand the limits of the 

legal theory you are putting forth because you, in prior questioning, 

embraced the prosecutorial discretion argument. So Senator Lee 

asked you a minute ago—let us take the hypothetical Senator Lee 

asked you about. If a subsequent President, let us say President 

Cornyn, is sworn in in January of 2017, and if President Cornyn 

decided that he was going to instruct the Secretary of Treasury not 

to collect any taxes in excess of 25 percent, to exercise prosecutorial 

discretion and not collect the taxes. In your legal opinion, would 

that be consistent with the Constitution? 

Ms. LYNCH. Senator, before I could render a legal opinion on the 

hypothetical as presented to me I would want to know the entire 

scope of the action, but also have the time to gather all of the legal 

precedent, the cases, congressional actions, any other similar or 

dissimilar actions where that particular type of action might have 

been considered. 

So I would certainly want to have all of that before I provided 

a legal opinion in terms of the hypothetical that you have presented to me. 

Senator CRUZ. So you are unable to give any legal judgment to 

this Committee today on whether a subsequent President could decline to enforce the tax laws as they are written? 

Ms. LYNCH. I think with respect to current or subsequent presidential action there would have to be, as in every case, a thorough 

review of the relevant law, the precedent, congressional precedent, 

the statues in issue, in conjunction with whatever action was being 

proposed, to see if there was in fact a legal basis or whether there 

was not a legal basis for the action being proposed. 

Senator CRUZ. Well, and let me ask—and this will be my final 

question—your understanding of prosecutorial discretion. Would it 

allow a subsequent President, President Cornyn, to state that there 
98 

are other laws that the administration will not enforce? Labor 

laws, environmental laws. Would it allow a President Cornyn to 

say, every existing Federal labor law shall heretofore not apply to 

the State of Texas because I am using my prosecutorial discretion 

to refuse to enforce those laws? In your judgment, would that be 

constitutional? 

Ms. LYNCH. Well, I certainly cannot imagine President Cornyn 

taking that step. 

[Laughter]. 

Ms. LYNCH. But with respect to the hypothetical that you 

present, again, Senator, I would have to know what legal basis was 

being proposed for that and certainly I would review that law, and 

if I were the person providing advice to future President Cornyn, 

advise him as to whether or not there was a legal framework for 

it or whether there was not a legal framework for it. If there was 

not, that would be the advice that I would provide to him. 

Senator CRUZ. I must say, I find it remarkable that you are unable to answer that question. I can answer it straightforward: It 

would be patently unconstitutional for any subsequent President to 

refuse to enforce the tax laws, or the labor laws, or the immigration laws for the very same reason that President Obama’s actions 

refusing to enforce immigration laws are unconstitutional. It is discouraging that a nominee who hopes to serve as Attorney General 

either will not—will not give a straightforward answer to that 

question. 

My time at this point has expired, so I recognize Senator 

Franken. 

Senator FRANKEN. Thank you, Senator, Mr. Chairman. 

I am sorry, I am just a little shook up about this President 

Cornyn thing. 

[Laughter]. 

Senator CORNYN. It is your worst nightmare. 

Senator FRANKEN. Okay. I got here and suddenly Cornyn was 

President and my world had changed. 

[Laughter]. 

Senator FRANKEN. I would like to ask you, Ms. Lynch, about 

something that has been a focus of mine since I first got to the Senate. I got there a little early. It took me a while to get seated. It 

is about the financial meltdown and how it happened and how it 

caused the Great Recession. 

And it is about the credit rating agencies and their business 

model. And basically what happened in the lead-up to the meltdown was that banks would put out structured financial products, 

subprime mortgaged-backed securities, say. And then they would 

pay—or I am sorry, yes, they would choose a rating agency like 

Standard & Poor’s or Moody’s or Fitch to rate it and give them a 

rating. 

And they would pay them, but they would choose them and it 

turned out that a lot of junk got triple-A ratings. And this is all 

kinds of—not just subprime mortgage-backed securities, but then 

bets on those derivatives and then bets on the bets and then bets 

on the bets on the bets. So the reason you had a house of cards 

collapse is because you had all these bets based on the original 

piece of junk and there was an incentive, a total conflict of interest, 
99 

which is: The credit rating agencies knew that if they gave a tripleA rating, they would get the next gig. So that is what they did. And 

then Chairman Levin of the Permanent Subcommittee on Investigations subpoenaed some emails from within S&P and they basically were emailing each other, we have got to give these things 

that are not good—the financial products—better ratings so we can 

keep our share of the business. 

And I have been fighting to get the—I had actually a bipartisan 

piece in the Senate side of what is now called Dodd–Frank, the 

Wall Street reform bill, to fix this. It has not totally been fixed and 

I am on the SEC to do it. But this is what I am getting to: the Department of Justice has a big lawsuit against S&P. And I think it 

is for about $5 billion or $6 billion and my understanding is, it may 

be being settled. But, I just do not want this to stop with S&P, 

with the one agency. 

And actually SEC just did a settlement also with S&P on this 

same practice that still exists. So what I want to know is, will you 

take an aggressive approach to holding these rating agencies—including, but not limited to, S&P—accountable for their role in the 

financial crisis from before, and their current role in what they are 

doing? 

Ms. LYNCH. Senator, certainly with respect to the financial institutions, including the ratings agencies, if I am fortunate enough to 

be confirmed as Attorney General, I do look forward to taking a 

very aggressive stance in reviewing their conduct. As you indicated, 

not just past conduct, but current and prospective so that we can 

prevent these types of harms from occurring again. 

Senator FRANKEN. Because Minnesotans lost their homes, they 

lost their savings, they lost their jobs, and millions of Americans 

did this because of these guys. And I do not think they have 

learned their lesson, and I do not think they have been incentivized 

to learn their lesson. 

Okay. I am told I have to leave in two minutes. So I just want 

to talk a little bit about transparency in NSA. I have one minute. 

That took a minute, what I did. 

Well, I just want to encourage us to work together if you should 

be Attorney General on transparency in Government surveillance 

because I think that Americans have the right to know to the extent that it is not harmful, obviously, what surveillance is like. For 

example, how many Americans’ data was captured, say, in the 

metadata, but how much was actually accessed. And I think that 

had we done that, and I voted against these two programs, 215 and 

702, originally, because they did not have enough transparency, 

and I think it is absolutely essential that Americans know to the 

greatest degree possible without jeopardizing our safety what is 

going on. So just your commitment to work together on that. 

Ms. LYNCH. Absolutely, Senator. 

Senator FRANKEN. Okay. Thank you, Ms. Lynch. 

Ms. LYNCH. Thank you, sir. 

Senator FRANKEN. Mr. President. 

[Laughter.] 

Senator CORNYN. How are you holding up? 

Ms. LYNCH. I am fine, sir. 

Senator CORNYN. Hanging in there? Good. 
100 

Forgive me for jumping around a little bit, but there are a number—I know there have been a lot of different areas that you have 

taken questions on and I just want to fill in some of the gaps. 

First of all, do you recognize the Second Amendment right to 

keep and bear arms as an individual right? 

Ms. LYNCH. Yes, Senator. And I believe that has also been decided by the Supreme Court as well. 

Senator CORNYN. The Attorney General—the current Attorney 

General and the Department of Justice had been involved in a program known as Operation Choke Point that you are probably familiar with to some extent. But this is a collaboration by the Department of Justice and the Federal Deposit Insurance Corporation, 

who have partnered to discourage banks and other financial institutions from doing business with certain types of businesses including lawful firearms dealers. Documents from Operation Choke 

Point obtained by the House Oversight Committee showed that the 

DOJ and FDIC used intimidation tactics and categorized licensed 

and law-abiding gun dealers as having engaged in ‘‘high-risk activity’’ similar to financial scams, prostitution services, pornography, 

racist materials, gambling, and drug paraphernalia. 

I would just like to ask you, do you agree that it was inappropriate for the Department of Justice and the FDIC to associate licensed and law-abiding businesses with these types of other obviously illicit activities? 

Ms. LYNCH. Senator, I appreciate your concern over any Department initiative. My familiarity with the Choke Point Initiative is 

based upon my understanding that it focuses on payment processing companies that are involved in defrauding consumers. And 

I am not aware enough of the underlying types of businesses that 

the consumers themselves may have been patronizing to know 

about the fact that you raise. 

Certainly with respect to any initiative that the Department of 

Justice engages in, should I be confirmed as Attorney General, 

there is no room for improper bias or even personal views. We must 

follow the law where it leads us. And I certainly hope that should 

you have concerns about this program or any other, that you would 

feel free to share them with me and that I would look forward to 

working to provide you with as much information as we could 

about them. 

Senator CORNYN. I appreciate that. I have heard from constituents back home in Texas from financial institutions that they have 

been unable to continue long-standing banking relationships with 

their own lenders because of some of these tactics. And I will take 

you up on your offer to visit with you more about those, the specifics of those cases, as well as the topic I mentioned earlier at a 

later date. I appreciate that. 

Senator Leahy, who just arrived, and I have joined in an unlikely 

partnership on freedom of information areas. He and I both agree 

that it is absolutely critical to the functioning of our democratic 

form of Government that the people have access to as much information as they can possibly get, so they can make their consent to 

the laws that are passed informed consent. 

And so I want to ask you, in the Department of Justice’s evaluation of the Eastern District of New York under your management, 
101 

compliance with the Freedom of Information Act was one of the few 

areas to receive criticism. In fairness to you, it is one of the few 

areas in which there have been critical comments. But do you believe that the Government should operate under a presumption 

that information should be open to the public unless otherwise precluded by law? 

Ms. LYNCH. Senator, I share your concern and your view that the 

Freedom of Information Act is an important tool for the American 

people to know about the functioning of all Government agencies, 

including the Department of Justice. 

With respect to my tenure as U.S. Attorney, during the evaluation system which I found very, very helpful, I specifically asked 

the evaluator to look at our management systems and our support 

staff systems to make sure that we were in compliance and to bring 

any issues to our attention. 

They raised this issue, which was of great concern to me. We immediately took steps to rectify the issues that we found within our 

own office functioning. We have added increased personnel to handle Freedom of Information Act requests. We work closely with the 

Department of Justice to ensure that they are handled as expeditiously as possible. 

And so I actually found it a very helpful evaluation process. And 

I find that I have learned the most when someone has pointed out 

to me an area in which I might improve. 

Senator CORNYN. And you took corrective action? 

Ms. LYNCH. Absolutely, immediately. 

Senator CORNYN. President Obama in 2009 mandated that Government agencies—executive branch agencies should operate under 

the presumption that information should be open unless otherwise 

prevented by some rule or some other law. 

The current Department of Justice has taken the position that 

information should be withheld if release of the information will 

cause foreseeable harm. In other words, they articulated a different 

standard than the President himself called for in 2009, which is 

this presumption of openness absent some legal prohibition against 

disclosure. 

Senator Leahy and I have been working on some legislation 

which would actually codify the President’s mandate, the presumption of openness. Is that a standard that you could support, and 

would you work with us in your administration, if confirmed, to 

make sure that this presumption of openness applies across Government agencies and that information would only be withheld 

from the public if some law or other rule or regulation precluded? 

Ms. LYNCH. Senator, I share your view in the importance of the 

Freedom of Information Act and in transparency. And certainly I 

look forward to working with both you and Senator Leahy to review that type of legislation. And I hope that in the full and fair 

exchange that I believe we will have, as we have had over the past 

few weeks, we can discuss ways in which to make as much information available as possible while protecting vital interests. 

I certainly feel that with respect to the Department of Justice, 

should I be confirmed as Attorney General, one of the areas that 

we always have to be concerned about are ongoing investigations 
102 

and witness safety and security. But I feel that through discussing 

these issues, it is something that we could work together on. 

Senator CORNYN. And finally, I know the Chairman alluded to 

the gunwalking program known as Fast and Furious, which was 

the subject of a lot of oversight efforts by this Committee and others in the House, and then to our surprise Attorney General Holder 

claimed executive privilege as to certain communications and documents, even though the documents in question did not involve the 

President or his staff, and the President himself confirmed that 

claim of executive privilege. 

As you may know, that claim is currently in litigation and I 

would ask your commitment to take a look at that with a fresh set 

of eyes to see whether you believe that the Department’s defense 

and continued refusal to deny Congress access to these documents 

is justified under a claim of executive privilege. Would you pledge 

to take a fresh look at that and render your own independent judgment about that? 

Ms. LYNCH. Well, certainly, Senator, with respect to that matter, 

it is the subject of ongoing litigation and I really do not know when 

it is likely to be resolved. So I do not know what stage it will be 

in should I be so fortunate as to be confirmed. Certainly, however, 

I look forward to learning more about it once I am able to, again, 

should I be confirmed, and in reviewing that as well as any other 

matters. 

Senator CORNYN. Just so we understand each other and this will 

be my last question, if you are the next Attorney General, you can 

decide to settle that case if you decide that the claim of executive 

privilege was not well taken. In other words, if there is no legal impediment based on a claim of executive privilege to disclosing those 

documents, you, as the next Attorney General could resolve that, 

couldn’t you? 

Ms. LYNCH. Certainly. I believe that the ability to resolve any 

number of cases would rest within me should I be confirmed as the 

next Attorney General. 

Senator CORNYN. Thank you. 

Ms. LYNCH. Thank you, Senator. 

Chairman GRASSLEY. I hope that when we are done here that 

you do not get this attitude that the way this chaotic place is run, 

why should you be working with a Congress of the United States 

that does not always work this way. So I am just—it is a little 

tongue in cheek. But—— 

Senator LEAHY. It does not always work this way. 

Ms. LYNCH. Well, Senator, it has been a privilege to watch the 

peaceful transfer of power that has gone on this afternoon. 

[Laughter.] 

Senator LEAHY. I did not give him the great big gavel. 

[Laughter.] 

Chairman GRASSLEY. Okay. Here we go. Before I read my question, I want to kind of tell you, my view is, that there is a very 

legitimate reason for between a counsel that is advising the President for that to have a very tight counsel/client relationship. Then 

we get into Fast and Furious and then 64,000 pages, and I will go 

into some detail here that I want you to comment on that is maybe 

an argument that was privileged, but is it really privileged? 
103 

So let me go to where you maybe had not a direct role, but you 

were Chair—you chaired the Attorney General’s Advisory Committee. So you had a chance to watch your predecessor closely in 

the job that you are now seeking. And I assume that you learned 

lessons from that experience. 

What is the biggest mistake that Attorney General Holder made 

in the handling of the Fast and Furious controversy which involved 

this privileged information that we are talking about? And what 

would you have done differently? 

Ms. LYNCH. With respect to the privileged litigation which is ongoing, as a Chair of the Attorney General’s Advisory Committee 

and a member before that, I was given general information about 

the nature of the investigation itself and the problems that lay 

therein. Simply put, Senator, the focus in terms of providing information to the U.S. Attorney community was more on the problems 

with the actual underlying firearms investigation. And so I was not 

privy and have not been privy to any of the decisions or discussions 

or rationale behind the litigation over documents or privilege. That 

is something that has not been shared with the U.S. Attorney community. So I am not able to really categorically answer one way or 

the other as to how that has been managed. 

I certainly think that the Attorney General himself has said that 

he’s made mistakes in general. And he’s been very open and frank 

about that. With respect to that litigation, I simply do not have information about that. You are correct, I did receive general information about the underlying case because it did represent an investigation that certainly the review—the Inspector General’s report—indicated was not handled in the best way and was not the 

way in which those of us in the U.S. Attorney community would 

have wanted to see that case operate at all. 

Chairman GRASSLEY. Okay. Well, then you have probably have 

answered half of that in this sense. Would you have done anything 

differently? 

Ms. LYNCH. With respect to the firearms investigation? 

Chairman GRASSLEY. No, the way that the Attorney General 

handled it? 

Ms. LYNCH. Well, with respect—certainly I think that having the 

Inspector General review the firearms investigation itself and come 

up with the issues that occurred within the office and the handling 

of the case was something that I think will be useful to the Department of Justice as it seeks to prevent similar mistakes being made 

and improved training and the like. With respect to the litigation 

over the documents, again, I simply have not been involved in 

those decisions. And so I am not able to say what the options were 

that the Attorney General had that I would have chosen in a different manner. So I am sorry for not being able to provide you with 

a direct response to that question. 

Chairman GRASSLEY. Let me go back to the privilege and you 

may have answered this, but I want to read my question anyway. 

In my opinion, one of the Attorney General’s biggest mistakes was 

not following through on the President’s promise to be the most 

transparent administration in history. Instead, he became the first 

Attorney General in the history to be held in contempt of Congress 

with a bipartisan vote that included 17 Democrats. 
104 

Attorney General Holder finally delivered 64,000 pages of documents to the House three years after the House subpoenaed, two 

years after the contempt vote, and only after the House went to 

court. So when push came to shove, he did not even try to argue 

to the judge that those 64,000 pages were privileged. 

Now, do you think it is appropriate to withhold so many documents for so long, especially even if the Justice Department admits 

that there was no valid privileged claim? And if so, why? And if 

not, please explain why you would do it differently? 

Ms. LYNCH. With respect to any issue where this body seeks information from the Department of Justice, certainly in documentary form, should I be confirmed as Attorney General, I would carefully review the request and work to provide as much information 

as could be provided consistent with our law enforcement investigative responsibilities. 

That would be my pledge to you going forward, Senator. 

With respect to every issue of oversight that you would bring to 

my attention, I certainly hope that you would bring those issues to 

my attention. 

Chairman GRASSLEY. Can I ask the same question in my own 

way in the sense of the way you might talk about it at a town 

meeting? So people are mad about, you know, a lot of things the 

President might do that you call Executive edicts or in this case 

withholding information. In this case, the Attorney General decided 

to withhold it. 

Okay. If somebody asks me about Fast and Furious at a town 

meeting, then I get into the fact that as far as I know the President 

knew nothing about it and that this is between me and the attorney—or the Attorney General and the Congress, I should say. I 

only say ‘‘me’’ because I started this investigation before the House 

took it over. 

Then when they withhold 64,000 pages as opposed to a few pages 

where maybe the President really knows something about something that you can legitimately withhold it. Then I say to my town 

meeting, you know, when 64,000 pages are supposedly privileged, 

then I wonder, what does the President know about it if they can 

be protected that way? 

Well, now the Attorney General did not argue that they were 

privileged. They were just given up. So you see the problem it 

causes for me. And how far does executive privilege go? And it 

surely does not go to 64,000 pages; if it does not, can’t you assume 

that the President knew a lot about Fast and Furious when he says 

he did not know anything about it? Do you see the problem that 

I have? 

Ms. LYNCH. I certainly can understand the frustration when any 

party is seeking discovery or seeking information and another 

party is not able to provide it, based upon the claim of privilege or 

whatever that claim may be. Particularly a body that has oversight 

responsibility over the Department of Justice and is seeking to fulfill that obligation and that mandate. 

Certainly, with respect to the volume of documents, not knowing 

the documents, I am not able to comment on how appropriate or 

not that would be. And certainly, fortunately, it was not civil litiga-
105 

tion when it might have been a larger number of documents was 

my experience as a young attorney. 

Chairman GRASSLEY. But I hope you at least understand why it 

is frustrating to me the way this whole thing was handled. 

Let me move on. As Senator Graham mentioned: in 2006, you cosigned a Supreme Court brief on partial-birth abortion. I believe 

you told him your primary concern was the impact the law would 

have on law enforcement more broadly if upheld. That brief argued 

the Federal Partial-Birth Abortion Ban Act was unconstitutional 

and that partial-birth abortion ‘‘procedures are sometimes the best 

means to preserve a woman’s health.’’ The Supreme Court, along 

with a majority of Americans, disagreed with any position taken in 

opposition of that legislation, I assume as well as your position. 

The Supreme Court held there is ‘‘uncertainty (in the medical community) over whether the barred procedure is ever necessary to 

preserve a woman’s health.’’ Just one question. Judging by your 

questionnaire, it does not look like you have added your name to 

a lot of Supreme Court briefs. Of all the cases that you could have 

become personally involved in, why did you pick this particular 

case? Was that the only case that raised the concerns you mentioned to Senator Graham? And I would like to get this on record, 

because I assume you read the brief, otherwise you would not have 

signed it; would that be right? 

Ms. LYNCH. Yes, Senator, that would be correct. 

Chairman GRASSLEY. So then can you say why did you pick this 

particular case if you have not done it very often? And was this the 

only case that raised concerns that you mentioned to Senator 

Graham. 

Ms. LYNCH. Thank you, Senator. With respect to the amicus 

brief, I joined a group of former Department of Justice personnel, 

former United States Attorneys, as well as former Assistant Attorneys General. And our focus was on our concern that the way in 

which the law would be implemented might put prosecutors at 

variance with doctors and their medical treatment and might raise 

an issue that prosecutorial discretion had been constrained in some 

way by the political debate. 

We were not focused on the actual issue involving the procedure 

itself. In fact it was our concern that as lawyers we did not have 

medical information or the medical capability to evaluate that procedure and could be dealing with a situation where a doctor may 

say something different from what the law might require us to do. 

And that was the concern that was being raised in that brief. 

The Supreme Court did resolve the issue on the part of the statute itself and certainly that is the law of the land now. 

Chairman GRASSLEY. Okay. Senator Leahy. 

Senator LEAHY. Thank you very much. 

Chairman GRASSLEY. And for both your benefit and for the nominee’s benefit, I have been told that I have two additional Members 

that want to come over to ask a second round. 

Senator LEAHY. Are they going to come today? 

Chairman GRASSLEY. They are going to come just as soon—yes. 

I am going to make sure they come today, just as soon as the vote 

is over, I have been told. And you and I will have to go vote, too. 
106 

Senator LEAHY. Okay. Why don’t we just recess and we will go 

vote and then we will come back? 

Chairman GRASSLEY. We will recess. Thank you for being patient. 

[Whereupon, at 5:06 p.m., the Committee was recessed.] 

[Whereupon, at 5:12 p.m., the Committee reconvened.] 

Senator CRUZ [presiding]. Welcome back. 

Ms. LYNCH. Thank you, Senator. 

Senator CRUZ. In an exchange we just had earlier this afternoon, 

you detailed a very broad understanding of the President’s potential authority and, try as I might, I could not find a hypothetical 

that you consider to be beyond the power of the President. 

I would like to ask you now a question that I have asked Attorney General Holder and that he repeatedly declined to answer, and 

it is in a different context. It concerns the civil liberties and privacy 

rights of Americans and drone policy. 

My question to you is, in your legal judgment, is it constitutional 

for the Federal Government to utilize a drone strike against an 

American citizen on U.S. soil if that individual does not pose an imminent threat? 

Ms. LYNCH. Senator, certainly, I am not aware of legal authority 

that would have authorized that nor am I aware of a policy seeking 

authorization to do that. If you could, share more information with 

me. 

Senator CRUZ. My question is about the constitutional limits on 

the Federal Government’s power. Attorney General Holder repeatedly declined to answer the question about whether it is constitutional for a drone to use lethal force against an American citizen 

on U.S. soil if that individual does not pose an imminent threat. 

Now, let me be clear. I think the answer to this is very easy. My 

question to you is, is it constitutional for the Federal Government 

to do so? 

Ms. LYNCH. Senator, I think with respect to the use of lethal 

force by any means, one would always want to look at the law enforcement issues involved there. And certainly, if you could provide 

more context there, I could place it in the scope of either a case 

or an issue that I might have familiarity with. 

Senator CRUZ. Ms. Lynch, it is in the nature of a hypothetical. 

But you are certainly aware that the Federal Government is currently using drone strikes overseas. 

The Federal Government also maintains drone surveillance domestically here at home. This Senate had an extended debate on 

the limits of Federal Government authority with respect to the privacy and civil rights of American citizens. 

And I am asking you, in your view, does the Constitution give 

any protection to American citizens? Does the Constitution allow 

the Federal Government to do what it has done overseas, utilized 

lethal force from a drone, could it do so against an American citizen here at home if that individual did not pose an imminent 

threat? 

Ms. LYNCH. Senator, with respect to the use of, as I said before, 

of lethal force by any means, be it drone or someone on the street, 

the use of lethal force is generally regulated by either police guidance or by the nature of the interaction. 
107 

Based on what you were describing to me, I do not see interaction between the American citizen that you are referring to and 

anyone to generate the type of lethal force that you are referring 

to. 

Senator CRUZ. I am disappointed that like Attorney General 

Holder, you are declining to give a simple, straightforward answer 

and, in fact, what I think is the obvious answer of ‘‘no,’’ the Federal 

Government cannot use lethal force from a drone to kill an American citizen on American soil if that individual does not pose an imminent threat. 

I do not view that as a difficult legal question and, indeed, it 

demonstrates what I think has been the consistent failing of this 

administration’s approach to constitutional law is that it always, 

always, always opts in favor of Government power. 

Let me ask you a different question. This administration’s Department of Justice went before the United States Supreme Court 

and argued that law enforcement could place a GPS on any American citizen’s automobile with no probable cause and no articulable 

suspicion. 

In your legal judgment, is placing a GPS on the automobile of 

the men and women gathered here with no probable cause or 

articulable suspicion, is that consistent with the Fourth Amendment’s protections of American citizens? 

Ms. LYNCH. I believe the Supreme Court has resolved that issue, 

Senator, and I believe that law enforcement agencies seeking to use 

that type of technique would need to obtain a warrant. 

Senator CRUZ. You are correct. The Supreme Court resolved that 

issue. It resolved it unanimously, 9-0. It rejected the Holder Justice 

Department’s position. 

My question is, if you were Attorney General at the time, would 

you have agreed with that argument that law enforcement can 

place GPSs on any American citizen’s car? 

Ms. LYNCH. Well, certainly, Senator, I was not involved in the 

legal analysis or discussion then. Based upon the practice prior to 

the Supreme Court argument and the fact that law enforcement 

had used various techniques, this was a new technique that was 

being evaluated and had been used in a variety of ways. 

So my understanding was that after a careful consideration of 

precedent and practice, the Department made a strong argument. 

The Supreme Court has reasoned and has ruled that a warrant is 

required, and certainly that is the law of the land. 

Should I be confirmed as Attorney General, that is certainly the 

practice that I would follow. 

Senator CRUZ. The Obama Justice Department 22 times has gone 

before the Supreme Court arguing for broader Government authority and 22 times it has been unanimously rejected, 9-0, the Court 

has rejected those claims. 

Another case was a case called Hosanna-Tabor, where the 

Obama Justice Department argued before the Supreme Court that 

the First Amendment has no relevance, says nothing about whether a church may select its own ministers or pastors. 

Do you agree with that position that was put forth by this Justice Department? 
108 

Ms. LYNCH. Well, Senator, I have not read the briefs on that, so 

certainly I am not aware of the full articulation of that position. 

But I believe the Supreme Court has spoken and has resolved that 

issue. 

Certainly, should I be confirmed as Attorney General, I would 

follow that precedent. 

Senator CRUZ. You are correct again. The Supreme Court resolved that 9-0, rejecting the opinion. And I would note Justice 

Elena Kagan, an appointee of this President, said from the bench 

in that argument to the Department of Justice’s lawyer, ‘‘I find 

your position amazing that the Justice Department would argue 

the First Amendment does nothing, says nothing about a church’s 

ability to appoint its own ministers and pastors.’’ 

Let me ask you. If you are confirmed as Attorney General, will 

you commit to this Committee to provide greater scrutiny to the positions the Justice Department takes before the Supreme Court 

and, in particular, to stop the practice over and over again of advocating for broad Government power, which has resulted in 22 times 

the Supreme Court unanimously rejecting that argument? 

Ms. LYNCH. Senator, should I be so fortunate as to be confirmed 

as Attorney General, I will take every case that comes before the 

Department of Justice seriously. I will consult with the career prosecutors there, also within the Solicitor General’s Office, on the facts 

of the case, the relevant law, and, in conjunction with them, provide my best judgment as to the approach to take. 

Senator CRUZ. Is it your understanding of the role of the Attorney General that the Department of Justice should always advocate greater Government power? 

Ms. LYNCH. Senator, my view is that the Department of Justice 

advocates to defend statutes as passed by Congress and that its 

greatest function is to represent the American people. 

With respect to specific cases, again, I will always do as I have 

done throughout my career as a lawyer, I will carefully examine 

the facts of the case, the relevant law, precedent, and make the 

best reasoned argument that there is to support the position that 

is being advocated. 

Senator CRUZ. Let us shift to another area where this Department of Justice has not been, in my view, faithfully enforcing the 

law. 

In May of 2013, the Inspector General of the Treasury Department concluded that the IRS had wrongfully targeted citizen 

groups for their political views. 

When that news broke, President Obama publicly said he was 

outraged. He said he was angry and he said the American people 

had a right to be angry. 

Ms. Lynch, do you agree with what President Obama said then, 

that the American people have a right to be angry at the IRS targeting citizens for their political views? 

Ms. LYNCH. Senator, my view is that political views or bias have 

no place in the way in which not only the Department of Justice, 

but all agencies carry out their duties. And, certainly, when people 

hear of something that raises that issue, I can understand their 

concerns. 
109 

Senator CRUZ. In the nearly 2 years that have transpired, the individual who led the IRS office in question, Ms. Lois Lerner, has 

testified twice before Congress and has pleaded the Fifth, which, 

as you are well aware, means she raised her hand and said, ‘‘If I 

answer your questions, it means I may incriminate myself in criminal conduct.’’ 

In the nearly 2 years since that time has transpired, not a single 

person has been indicted. In the nearly 2 years since that time has 

transpired, many of the victims of the illegal targeting have yet to 

be interviewed by the FBI or the Department of Justice. And in the 

nearly 2 years that have transpired, we have discovered that the 

Department of Justice appointed to lead the investigation a partisan Democrat who has been a major donor to President Obama 

and the Democratic Party. Indeed, she has given over $6,000 to 

President Obama and the Democratic Party. 

In your view, is it consistent with fairly and impartially enforcing the law to have an investigation into the abuse of power by the 

IRS headed by a major Democratic donor? 

Ms. LYNCH. Senator, my understanding of that investigation is 

really from public records. I am not familiar with the specifics of 

it. 

I can certainly tell you that complex investigations often do take 

several months, if not a year or more to resolve, and I do not know 

the status of the witness interviews at this point. So I am not able 

to provide you information on that point that you raise. 

With respect to how an investigation is staffed, again, I believe 

that while I am not familiar with the details of this, certainly my 

view is that the Department has career prosecutors who are devoted to the Constitution and to the fair and effective exercise of 

their judgment and that the Department has made the decision as 

to how to best staff the case and make the case. 

I am just not able to comment on the length of time or other 

issues that you raise. Certainly, should I be confirmed, I look forward to learning more about the matter and as I have said before, 

Senator, I appreciate your raising concerns with me and I hope 

that you will continue to do so, should I have the opportunity to 

work with you in the future. 

Senator CRUZ. One of the terrific things about the Department 

of Justice is that it has a long and bipartisan tradition of remaining above the fray from partisan politics, of demonstrating a fidelity to law. So that when serious accusations of abuse of power and, 

in fact, of abusing the IRS were raised against Richard Nixon, his 

Attorney General, Elliot Richardson, a Republican, appointed an 

independent counsel to investigate those allegations free of any 

tainted propriety or partisan bias. 

Likewise, when serious allegations of wrongdoing against William Clinton were raised, his Attorney General, Janet Reno, a 

Democrat, made the same determination to appoint an independent 

counsel, Robert Fiske, to investigate the matter free of partisan, 

bias, or taint. 

The question I would ask you, if you were confirmed as Attorney 

General, would you commit to this Committee to appoint a special 

prosecutor to investigate the IRS abuse of power who, at a very 

minimum, is not a major Obama donor and who can be counted on 
110 

to actually investigate the facts and follow them wherever they 

may lead? 

Ms. LYNCH. Senator, again, I am not familiar with the investigation in great detail at this point. My understanding is that that 

matter has been considered and that the matter has been resolved 

to continue with the investigation as currently set forth. 

Should I be confirmed as Attorney General, I can commit to you 

that I will take seriously every allegation of abuse of power brought 

to my attention and, in conjunction with career prosecutors and 

this body, where appropriate, make the best decision about how to 

handle that investigation. 

Senator CRUZ. Ms. Lynch, you are correct that the matter has 

been considered. Indeed, I sent a letter to Attorney General Holder 

laying out the facts and asking him to follow the bipartisan tradition of his predecessors and uphold the rule of law, and he responded in writing that he was declining to appoint a special prosecutor and the basis of his declining to do so as the ‘‘discretion of 

the Attorney General.’’ 

So despite the internal DOJ rules that require recusal if there 

is even an appearance of bias, the Attorney General refused to appoint a special prosecutor. 

You have stated you are not familiar with this investigation. I 

think that is unfortunate, because when you and I visited over a 

month ago in my office, we talked about this investigation. I told 

you it was a very serious concern of mine and I asked before your 

hearing if you would take the time to familiarize yourself with 

what had occurred. And yet your answer today is that you are not 

aware of what is happening. 

Let me ask a more general question. Would you trust John 

Mitchell to investigate Richard Nixon? 

Ms. LYNCH. You are referring to former Attorney General Mitchell? 

Senator CRUZ. Yes. 

Ms. LYNCH. Again, Senator—again, based on that hypothetical, I 

would have to know what the issue was and what you were requesting him to do. 

Senator CRUZ. Would you trust John Mitchell to investigate the 

allegations of wrongdoing in the break-in at Watergate against 

Richard Nixon? Would you trust John Mitchell, who had run Richard Nixon’s campaign, to investigate the allegations that ultimately 

led to Richard Nixon resigning the presidency? 

Ms. LYNCH. Well, I think that matter has been resolved. 

Senator CRUZ. Indeed. 

[Laughter.] 

Ms. LYNCH. And certainly with respect to how that matter should 

have been handled and Attorney General Mitchell’s involvement in 

it, I believe his role in it has been resolved, as well. 

So I am sorry, I am just not able—I do not think I am understanding the basis of your question, sir. 

Senator CRUZ. Ms. Lynch, there are many of us who are alumni 

of the Department of Justice, who have most respected the Department when it demonstrated independence from the President, 

when the Department was willing to stand up to the President, 

when the Attorney General behaved not as if he or she were the 
111 

personal lawyer for the President who appointed them, but rather 

when the Attorneys General in both parties have behaved as independent, impartial law enforcement officers who owe a fidelity to 

the Constitution and the laws. 

Prior to becoming Attorney General, Eric Holder had a reputation as a U.S. Attorney of upholding the law, and I was hopeful 

when he was appointed that he would carry that reputation forward as Attorney General. It has saddened me greatly that he has 

not done so. 

And I will say it is disappointing in this hearing that, try as I 

might, there has been nothing I have been able to ask you that has 

yielded any answer suggesting any limitations whatsoever on the 

authority of the President. That does not auger well for this Committee’s assessment of your willingness to stand up to the President when the Constitution and the laws so require. 

Do you agree with that characterization? 

Ms. LYNCH. Senator, as I have indicated before, I believe that the 

role of the Attorney General is to provide their most objective, wellresearched, independent legal advice to the President or any agency who may come before them with a request for an opinion and 

where there is a legal basis for the request being made, to indicate 

so; but where there is not, to also tell the President or any other 

executive agency that what they are asking for is not within the 

framework of the law. 

I believe that that is the role of the Attorney General. I believe 

the Attorney General must represent the people of the United 

States and, should I be so fortunate as to be confirmed, they will 

be my client and they will be my first thought. 

Senator CRUZ. The ‘‘they’’ that you refer to as your client, just 

for clarification, to whom did the ‘‘they’’ refer? I am sorry. 

Ms. LYNCH. ‘‘They’’ refers to the American people. 

Senator CRUZ. And yet, and I will ask again, can you articulate 

any limitations on the authority of the President that, as Attorney 

General, you would be prepared to stand up and tell the President 

‘‘no, there is some modicum of power you do not have’’? 

Ms. LYNCH. Senator, I believe that the role of the Attorney General does encompass the role of advising the President of when actions do not have the appropriate legal framework and when they 

may not be undertaken. That is something that I believe is an important part of the functions of the Attorney General and, certainly, should I be so fortunate as to be confirmed, is something 

that I would not hesitate to do. 

It is part of the function of the Attorney General, even though 

a Cabinet member, to be independent of the President and to provide their best independent legal judgment on any issue presented 

to them. 

Senator CRUZ. Well, I hope that you will very much carry 

through on that. It is discouraging that in the course of this hearing you have been unwilling to say that the President lacks the authority to refuse to enforce tax laws, labor laws, environmental 

laws, immigration laws; that you have declined to say that the 

President cannot order a drone strike on an American citizen on 

U.S. soil; and that you have refused to commit to a fair and impartial investigation of the IRS abuse of power by a special prosecutor. 
112 

I hope, if you are confirmed, that your conduct in office differs 

from the answers you have given at this hearing. 

My time has now expired. I see Senator Leahy is here. So I recognize Senator Leahy. 

Senator LEAHY. I see Senator Tillis here, too. I will withhold my 

time. 

Senator TILLIS. Thank you, Senator. 

Ms. Lynch, I wanted to go back to—and I do apologize for all of 

this cycling. If you saw all the activity over in the Senate chamber, 

you know what we are going through. It is certainly not for a lack 

of interest in this important topic. 

But I want to go back to the idea of the limited resources within 

the DOJ and some matters. I would like to get some sense that, 

if you should be confirmed, that you would take a look at and potentially reconsider some of the priorities of the current Attorney 

General, and I will give you one example. 

In North Carolina, we did change the election law, early voting. 

We went from 17 days to 10 days. In that law, though, we made 

it, by law, you could never offer fewer hours of early voting than 

the highest number that you ever offered in that particular county. 

And what that had the effect of, in this last election cycle, is historic turnout even among minorities. So we have got a lawsuit filed 

by this Department of Justice, where I am named in it, questioning 

that, but then we have 12 States that have no early voting whatsoever, and I am wondering why. 

It seems to be inconsistent when you have one State that is preserving the most that it has ever had before, other States that have 

never offered it, and in a time of limited prosecutorial resources, 

that we would actually allocate that way. 

Given all that has been said today about the limits of resources 

and the need to allocate them to their best and highest use, can 

you give some sense of your thinking on that? 

Ms. LYNCH. Well, Senator, with respect to the current litigation 

that has been filed, I have not been involved it in to date. I do 

know that it is proceeding through the courts and I believe there 

will be further action this summer. There may be a trial, I am not 

sure. 

And so I think we will have to wait and see the judicial determination on the impact of the changes in the North Carolina State 

law. 

As I indicated earlier, States obviously have grave interest and 

a great interest in both preserving the right to vote and protecting 

the integrity of the vote, and many of them do so in ways that are 

effective throughout several States. 

The Department of Justice will always have a concern if the matter is raised as to whether or not there is a negative impact, that 

is to say, a foreclosing of the right to vote, and certainly people can 

differ on the impact that will be had and that will always be the 

issue in a case to be brought along those lines. And certainly nothing—I do not believe anything would have been personally aimed 

at you, sir. 

So with respect to that, when the issue is whether or not a 

change in statutes somehow infringes up on this, our most important right, it is something that the Department of Justice will al-
113 

ways review. But certainly, sir, I look forward to having discussions with you about the nature of not this case that is under litigation, but other matters in which the Department is taking an interest and getting views of you and others on this Committee on 

them. 

Senator TILLIS. I think it is very important, because should you 

be confirmed, I think, again, I think we will always be in this state 

of not enough resources for all the things that we want to do and 

it just seems to me that this may be one example where, if you 

looked objectively at the Supreme Court case—States that are 

doing everything that they can to respect and promote a citizen’s 

right to vote—that to spend our additional time and resources reprosecuting laws does not seem to be the best use of resources in 

the context of the limited resources that we have discussed and 

several Members on this panel have discussed today. 

And I would look forward, should you be confirmed, to having a 

discussion with you about how we can be sure that we are putting 

it to the best purposes for the good of the American people that you 

are trying to serve or that you will try to serve. 

Ms. LYNCH. Thank you, sir. 

Senator TILLIS. Thank you. 

Chairman GRASSLEY. Senator Sessions. 

Senator SESSIONS. Thank you, Mr. Chairman. It is an honor to 

serve with you and also to serve with our former Chairman, and 

I appreciate the opportunity today. 

I just want to pursue, to me, some legal rights here. It seems to 

me that if there are two people applying for a job as a truck driver, 

one is a lawful immigrant or a citizen and another is not, under 

the President’s order, the person unlawfully here magically, at this 

moment, becomes eligible to compete against an unemployed American truck driver, and I think that is bizarre. 

And the idea that there are rights that might attach to someone 

who is here unlawfully to take jobs from Americans under difficult 

working conditions, as we are today, is antithetical to common 

sense. 

So I think that we—somebody needs to be asking themselves 

who is protecting the American worker, the people who are paying 

the salaries of you, the President and all of us, and, as a matter 

of law, the people who elect us or the people we are most directly 

accountable for, and that is the citizens of the United States. 

So I am worried about that. What kind of lawsuit, what kind of 

claim—have you thought about this—that might somebody who 

loses out to a person who claims that they are legal to work now 

because of the President’s order and they did not become a truck 

driver and the person that was recently legalized did get the job? 

Ms. LYNCH. Well, Senator, at the outset, I do want to state that 

it is my understanding that—and there is no right to work for an 

undocumented immigrant in the country. So they would not have 

the right to work. 

Senator SESSIONS. Well, they would under the President’s order, 

would they not? 

Ms. LYNCH. For those people who can obtain documentation, be 

it a green card or a visa or other cards, they would have the ability 

to apply for positions. 
114 

With respect to—— 

Senator SESSIONS. Could I ask you about that? The President is 

going to give work permits to 5 million. They would be, under his 

theory, entitled to work. He would have created 5 million persons 

to compete against 5 million Americans for a limited number of 

jobs, right? 

Ms. LYNCH. Senator, I believe that if the process were to be implemented, as what I reviewed, there would be criteria set up for 

people to apply for work permits. They would apply. There would 

have to be a decision as to whether or not they would receive them 

and then I do not know what level of employment they would be 

able to apply for, but assume they could apply for positions. 

Senator SESSIONS. Well, the estimates are, I think, from the 

White House, it would be as many as a total of 5 million and they 

would be given work authorization, photo IDs, Social Security numbers, and the ability to participate in Social Security and Medicare. 

Are you aware—and to me, I find no lawful basis for this. And 

as the Attorney General and the person who supervises the Office 

of Legal Counsel, whose opinion you have basically affirmed here 

today, then you become, in a sense, the point person for this effort. 

And some have suggested, well, it is Homeland Security, but 

Homeland Security asked your Department, Attorney General 

Holder’s Department, the Office of Legal Counsel for an opinion 

that would allow them to do so. 

So in effect, had the Department of Justice said no, that this is 

not appropriate and cannot be justified, Homeland Security would 

have been bound by that rejection, would it not? 

Ms. LYNCH. Homeland Security would have been bound by that 

opinion, as I believe they were with respect to the portion of their 

proposal to which the Office of Legal Counsel did say no, there was 

not a legal basis for another portion that they sought to implement, 

and I believe they did not implement that. 

With respect to the deferral—— 

Senator SESSIONS. I am only talking about what they did agree 

to. That apparently would be to create this new number of workers. 

Well, are there plans to—what if somebody not in the 5 million 

is arrested for speeding next week, would they be deported? 

Ms. LYNCH. Well, Senator, I do not know how the Department 

of Homeland Security would manage the removal. Certainly, a 

criminal record, if, were there to be an arrest and a conviction, 

would place someone in jeopardy of losing their deferral status if 

that is what they initially had. 

Senator SESSIONS. Well, the point is that you are not going to deport any of the 7 million either. That is the policy that has become 

clear in the last few years. And so the administration, I would suggest, quite plainly is nullifying American immigration law to a degree that is breathtaking, in effect. 

For example, you are saying that not only will we not find the 

resources, ask for the resources, nobody has asked for more resources to enforce the law if they need them; the President is not 

asking for it because he has no intention, if it were given to him, 

to use that money for that effect. 

So that is the problem we have got. That is why the American 

people are wondering who is going to defend them, who is going to 
115 

defend their children who are out trying to find a job. African 

Americans, who have the highest unemployment rate among young 

people, the data is clear. 

This large flow of immigration at this time of lower employment 

is hurting the poor the most. 

So I would say to you that I am not raising this just to make 

an argument about what kind of immigration policy we need. I am 

raising this as a constitutional and legal question of incredible importance. 

As I read to you, professors have said this is perhaps the greatest 

presidential overreach in history. The Congress refused to pass 

what the President wanted to do. 

I am not saying that you made that decision, you did not. But 

your Department gave the legal opinion that justified it after he 28 

times said he did not have authority to do it. Really an amazing 

event. 

So, Mr. Chairman, I respect the nominee. She has got a good 

family I know was raised right, and I appreciate that. 

Maybe you are just in a difficult position that is not necessarily 

your fault, but I am not satisfied that we at this point in history 

can just slide by and let this go. 

I think we need to confront this issue as a Congress that needs 

to use the powers that it has to defend its legitimate rights under 

the Constitution, and that is why I have difficulties with your nomination. 

I respect you and appreciate your appearance today and your 

willingness to answer questions. 

Chairman GRASSLEY. Let me, before I go back to Senator Tillis 

for 3 or 4 minutes, call on Senator Hatch. But let me assure everybody that Senator Tillis, Senator Leahy, I have got a couple requests of you, and then I think we are done. 

Senator LEAHY. Thank you. And another roll call vote has started and I will be leaving soon. I am sorry there have been so many 

questions that really have nothing to do with your qualifications. 

You were shown a book and told it is terrible what is happening, 

the implication being something this administration did. The prosecution of Ted Stevens, of course, the last administration did that. 

This administration exonerated him. 

Be that as it may, we talk about immigration, we have had millions of people here but every administration knows you cannot 

just remove 10 or 12 million people. President Reagan and both 

President Bushes, they have all taken that same position. 

As far as jobs are concerned, the Chamber of Commerce strongly 

supported the immigration bill that this Committee passed two 

years ago and that the Senate passed by a bipartisan majority. 

Grover Norquist, a very conservative economist, said it would add 

billions of dollars, hundreds of billions of dollars to our economy 

and would increase jobs—not decrease them. 

I wish the Speaker of the House had allowed it to come to a vote 

over in the other body; it would have passed. But that is not an 

issue for you. The issue is: Are you qualified to be Attorney General? I have seen a lot of Attorneys General in the 40—now going 

on to my 41st—years that I have been here. Some were very good, 

in both parties. 
116 

I think of Ed Levy, for example, in Gerald Ford’s administration—I remember one, that all my Republican colleagues voted for 

him. But when he was here before this Committee and asked questions, we gave him 50 or 60 of the questions in advance, and he 

answered 70 to 75 times, ‘‘I do not know the answer,’’ or, ‘‘I am not 

sure, I cannot answer that,’’ even though he had had the questions 

weeks in advance. They voted for him. 

I must say that I cannot think of anybody in all these years I 

have been here that struck me so much as being qualified to be Attorney General as yourself. I said earlier you are a prosecutor’s 

prosecutor. 

I think of the Attorney General as the Attorney General of the 

United States, there for all of us. I referred to my days as a young 

law student being recruited by then-Attorney General Robert Kennedy, but I was just too homesick for Vermont so did not stay. I 

am not going to ask further questions because I am satisfied with 

what you said so far. 

You will have my vote, you have my strong support, and I hope 

in the remaining part of this administration that you will be there 

to enforce the laws of the United States. 

Thank you, Mr. Chairman. I have nothing further to say. I will 

put the rest of my statement in the record. 

Ms. LYNCH. Thank you, Senator. 

Chairman GRASSLEY. Senator Tillis. 

Senator TILLIS. Thank you, Senator. I apologize, I should have 

taken care of this question. But my final question, Ms. Lynch, is 

really around the philosophy that you may bring to the Department of Justice. In December 2014, the Government Accountability 

Office issued a report that was titled, ‘‘The Department of Justice 

Could Strengthen Procedures for Disciplining Its Attorneys.’’ 

There were a couple of examples, going back to even, I think, the 

handling of New Orleans police officers related to the Hurricane 

Katrina, where there was either misconduct or they had perjured 

themselves. Would you agree with me that the Department of Justice employees who had engaged in this sort of activity, either 

through prosecutorial misconduct or through perjuring themselves 

in court, are they the kind of personnel that you would allow to 

continue to be employed in the DOJ? 

Ms. LYNCH. Certainly, Senator, with respect to personnel issues, 

I take very seriously the integrity of every member of my staff, and 

if confirmed as Attorney General would also take very seriously the 

professionalism of the members of all the staff of the Department 

of Justice, all of whom I have found it to have been a privilege and 

a pleasure to work with and to be dedicated career professionals 

and dedicated to not just improving their skills, but the highest 

standards of professional conduct. 

When they cross a line, they are dealt with and that will continue to happen, should I be confirmed as Attorney General. But 

I will say that with respect to the staff and the attorneys at the 

Department of Justice, they are some of the most effective and professional individuals that I have had the pleasure to be affiliated 

with. 

Senator TILLIS. Well, should you be confirmed, since this report 

was just dated last month, I hope that it is something that you 
117 

would take into account as you go into the organization and look 

at the resources that you have inherited responsibility for. 

Ms. LYNCH. Yes. 

Senator TILLIS. Thank you. Thank you very much. And thanks 

to the family, in particular. I know it is a long day and those seats 

are not that comfortable, so thank you all. 

And again, congratulations on the honor that you have from the 

President’s nomination. Thank you very much. 

Ms. LYNCH. Thank you, Senator. 

Chairman GRASSLEY. I have changed my mind. I am not going 

to ask you two questions, I am going to submit them, along with 

some other questions, for you to answer in writing. I thank you 

very much for being patient today. 

It has been a long day and I suspect some Members of the Committee were more impressed with your answers than others. 

We are going to recess for the day and have our second panel tomorrow. I hope you will count yourself lucky, let us say, compared 

to Judge Mukasey. When he testified, he was forced to come back 

for a second day of questions. 

Finally, I would like to note that after tomorrow’s panel I am 

going to give everyone one week to submit questions for the record. 

That is standard practice in this Committee. Once again, thank you 

for being so patient and putting up with the chaos that I formerly 

referred to. 

Thank you. We are recessed now. Thank you. 

Ms. LYNCH. Thank you, Senator. 

[Whereupon, at 5:50 p.m., the Committee was recessed, to reconvene at 10:00 a.m., Thursday, January 29, 2015.] 

[Additional material submitted for the record for Day 1 follows 

Day 2 of the hearing.] 

(119) 

CONFIRMATION HEARING ON THE 

NOMINATION OF HON. LORETTA E. LYNCH 

TO BE ATTORNEY GENERAL 

OF THE UNITED STATES 

THURSDAY, JANUARY 29, 2015 

UNITED STATES SENATE, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC. 

The Committee met, pursuant to notice, at 10:05 a.m., in Room 

SH–216, Hart Senate Office Building, Hon. Charles E. Grassley, 

Chairman of the Committee, presiding. 

Present: Senators Grassley, Hatch, Sessions, Graham, Cornyn, 

Lee, Cruz, Flake, Vitter, Perdue, Tillis, Leahy, Feinstein, Schumer, 

Durbin, Whitehouse, Klobuchar, Franken, Coons, and Blumenthal. 

OPENING STATEMENT OF HON. CHARLES E. GRASSLEY, 

A U.S. SENATOR FROM THE STATE OF IOWA 

Chairman GRASSLEY. For the Members who are present, except 

for the ones that were here already, it will be on seniority, and 

then other people that come in, you will be called on according to 

how our respective staffs keep track of you in the order of your appearance. 

Before Chairman Leahy and I give our opening statements, I 

would like to go over some things that I said yesterday. 

First of all, we welcome everybody back to this second day of the 

hearing on Ms. Lynch’s nomination to be Attorney General. As I 

said yesterday—and everybody abided by this, and I want to thank 

everybody that was here yesterday for their courtesy—I want everyone to be able to watch the hearing without obstruction. And if 

people stand up and block the view of those behind them or speak 

out of turn, it is not fair or considerate to the others. So officers 

would remove those individuals, and that is what I want to thank, 

because we did not have any of those incidents yesterday. 

Before we begin the opening statements, I will take care of a couple of housekeeping items and explain the process. 

First of all, I want to thank everyone for their patience yesterday. It looks like we are going to have more floor votes today, so, 

again, I am asking for your flexibility. 

After opening statements, the plan is to start the first round of 

questions, then recess so Members can vote. We would then return 

after the first series of stacked votes, and I am assuming that is 

going to be around 12:45. But you folks that are answering questions for us, you cannot necessarily count on that. But then we will 
120 

keep going through the—there are four votes this afternoon. We 

will not adjourn at that particular time. We will do like we did yesterday. We will take turns going and voting. 

Senator Leahy and I will now give our opening statements. Then 

we will turn to our witnesses for their opening statements. Following their statements, we will begin with the first round of questions in which each Senator will have 10 minutes. After the first 

round, then we will go to 8 minutes of questions. And so then I will 

give my opening statement. 

Obviously I welcome everybody, the audience as well as witnesses, to our second day of hearings on Ms. Lynch’s nomination 

to be Attorney General. Yesterday we heard from the nominee. I 

thought she was very engaging, very confident. There is no question about her competence from what she has done as far as her 

legal background and her work as U.S. Attorney. 

We appreciated her willingness to stay here through it all so we 

could get done with her in one day and everybody that wanted to 

ask questions verbally could do it. Of course, there are going to be 

a lot of questions in writing for her to answer in time. 

She is clearly a skilled and competent lawyer. We asked questions yesterday, but I have to say, at least from my standpoint— 

I am not speaking for any other Member—it seemed like indirect 

answers. So I suspect that those will be followed up with questions 

for the record. 

Today we will hear this second panel in front of us right now. 

Many of these will speak to the many ways the Department of Justice, under its current leadership, has failed to fulfill some of the 

most basic aspects of its mission. The question for me and lot of 

Members on this side is whether Ms. Lynch is committed to leading 

the Department of Justice in a new direction. There are obviously 

people here that are going to speak about the direction of the Department in a different way, and we will listen courteously to that 

as well. 

We will hear from Sharyl Attkisson, as one example of a person 

who was an investigative journalist who has been bullied, threatened, and literally blocked from entering the Department of Justice, because she had the guts to report on issues like Fast and Furious and Benghazi. That is one example of something we would 

like to have a new Attorney General fix. 

We will also hear from Catherine Engelbrecht who was targeted 

by the IRS simply because she is a conservative who has had the 

courage to stand up in defense of freedom and the Constitution. 

The Department has paid lip service to the investigation that it is 

supposedly leading. So I would like to know how Ms. Lynch will 

take seriously the targeting of fellow citizens based on their political views. 

Then we have Sheriff David Clarke, from Milwaukee, who will 

testify about how thousands of local law enforcement officers across 

this country feel as though the current leadership does not fully appreciate the work that law enforcement does every day. So that is 

important to see how Ms. Lynch might mend the broken relationship. 

And then we will hear from Professors Turley and Rosenkranz, 

who will address how the Department of Justice under Eric Holder 
121 

has rubberstamped the President’s lawless actions—from the unlawful recess appointments to the unlawful Executive action specifically on immigration. 

So those people will bring up points that we have made not quite 

as directly as they have or personally as they have in hopes that 

Ms. Lynch will restore the Office of Legal Counsel to the impartial 

role it used to play as a check on the President’s authority. 

So I look forward to the hearing today, and now it is Senator 

Leahy’s turn to give his opening statement. 

OPENING STATEMENT OF HON. PATRICK J. LEAHY, 

A U.S. SENATOR FROM THE STATE OF VERMONT 

Senator LEAHY. Well, thank you, Mr. Chairman. This is the second day of the Committee’s consideration of Loretta Lynch to serve 

as our Nation’s Attorney General. We had a long day here yesterday. Today we will hear testimony from outside witnesses about 

Ms. Lynch. I would especially be interested in the testimony from 

those who actually know her. 

Yesterday we heard directly from her. Over nearly 8 hours of testimony, she testified about the values and independence she would 

bring to the office of the Attorney General. She testified how she 

would make as priorities national security and public safety but 

still preserve the values that we Americans, I hope all of us, hold 

dear. 

I was encouraged when Republican Senators on the Committee 

agreed with me that the key question for voting for a nominee to 

be Attorney General is independence. Some of us remember a past 

Attorney General who told us he was a member of the President’s 

staff, and we all had to remind him, no, he is not; he is not like 

the Secretary of Justice. He is the Attorney General of the United 

States and is supposed to be independent. Responding to questions 

on issue after issue, it was clear that Ms. Lynch is an independent 

lawyer of strong character, balanced demeanor, and obvious abilities. 

I also want to take a moment to thank Chairman Grassley for 

his handling of yesterday’s hearing. It was no easy feat, especially 

when we had 18 votes, I believe it was, yesterday afternoon. He 

kept it going. He made sure that every Senator who had a question 

on either side of the aisle was given the time to ask their questions 

and be heard, and I commend him for that. I appreciate the tone 

of this hearing. 

Chairman GRASSLEY. Thank you. 

Senator LEAHY. But I was not surprised at the fairness. We have 

been friends for decades, and I know you well. 

We are going to hear from law enforcement officials who actually 

worked with Ms. Lynch. These are the people who have the best 

knowledge of her. They strongly support her nomination. Their 

presence today will speak to the support Ms. Lynch has among 

both Republicans and Democrats. Similarly, one of the finest FBI 

Directors we have ever had, Louis Freeh, has submitted a letter of 

support on her behalf. 

Now, Barack Obama is not the nominee. That may come as a 

surprise to some who heard some of the questions. Eric Holder is 

not the nominee. Loretta Lynch, the daughter of Lorine and the 
122 

Reverend Lorenzo Lynch, a U.S. Attorney twice unanimously confirmed by the United States Senate, one who has been applauded 

for her law enforcement work, that is who we are being called upon 

to consider. I am confident that, after hearing her testimony before 

this Committee and after reviewing her record, no one in good faith 

could question her integrity or her ability. 

She said yesterday she looks forward to working with Congress 

to confront the many issues facing Americans today, and she has 

met with over 50 Senators in both parties. So I hope we can come 

together in the Senate and support this historic confirmation of an 

outstanding public servant and to move quickly in doing it. 

Thank you. 

Chairman GRASSLEY. Can I ask you, there is no reason to make 

these people stand for an oath, is there? Can’t they do it sitting 

down? 

Senator LEAHY. Sure. 

Chairman GRASSLEY. Okay. I would like to—— 

Senator LEAHY. Do whatever you wish. 

Chairman GRASSLEY. Well, I want to know what is legal. 

Senator LEAHY. It is okay with me. 

Chairman GRASSLEY. Do you affirm that the testimony— would 

you raise your hand, please? Do you affirm that the testimony you 

are about to give before the Committee will be the truth, the whole 

truth, and nothing but the truth, so help you God? 

Ms. ATTKISSON. I do. 

Mr. BARLOW. I do. 

Reverend NEWSOME. I do. 

Ms. FEDARCYK. I do. 

Professor LEGOMSKY. I do. 

Professor TURLEY. I do. 

Sheriff CLARKE. I do. 

Professor ROSENKRANZ. I do. 

Ms. ENGELBRECHT. I do. 

Chairman GRASSLEY. Thank you. 

Now I am going to introduce everybody at the table all at once 

instead of separately when one person gets done speaking, so be 

patient with me. 

Sharyl Attkisson is an investigative journalist and author. For 

over 20 years, she worked for CBS News, winning multiple Emmy 

awards for her investigative journalism pieces, including her reporting on the 2012 Benghazi report and Fast and Furious. 

Next we have David Barlow, whom we know well. Mr. Barlow 

served as U.S. Attorney for the District of Utah, 2011–2014. Prior 

to his tenure as U.S. Attorney, Mr. Barlow served on this Committee as Senator Lee’s chief counsel. He is now a partner of Sidley 

Austin, Washington, DC. 

Next is Reverend Newsome. Reverend Clarence Newsome is 

president of the National Underground Railroad Freedom Center in 

Cincinnati, Ohio. 

Next is Janice Fedarcyk. Ms. Fedarcyk served as Assistant Director in Charge of FBI’s New York Division, 2010–2012. Ms. 

Fedarcyk currently runs Fedarcyk Consulting, Washington, DC. I 

know I pronounced it wrong. 
123 

Next we have Stephen Legomsky, John S. Lehmann University 

Professor at Washington University School of Law. 

Next we have Jonathan Turley, J.B. and Maurice C. Shapiro Professor of Public Interest Law, George Washington University Law 

School. 

David Clarke is sheriff, Milwaukee County, and has served for 

over 36 years as a law enforcement professional. 

Next, Nicholas Rosenkranz is a professor of community law and 

Federal jurisdiction, Georgetown University Law Center, and a 

senior fellow at the Cato Institute. 

Finally, we have Catherine Engelbrecht. Ms. Engelbrecht is the 

founder and chairwoman of True The Vote, an election integrity organization; the founder of King Street Patriots, a citizen-led liberty 

group; and the co-owner of Engelbrecht Manufacturing, a small 

business she owns with her husband in her home State of Texas. 

Now we will start with Ms. Attkisson. 

STATEMENT OF SHARYL ATTKISSON, INVESTIGATIVE 

JOURNALIST, LEESBURG, VIRGINIA 

Ms. ATTKISSON. Thank you. 

Chairman GRASSLEY. Oh, if I did not, maybe I should say—I 

think you have all been informed, but we would like to have 5 minutes. 

Ms. ATTKISSON. Yes. 

Chairman GRASSLEY. Okay. Go ahead. 

Ms. ATTKISSON. I have been a reporter for 30 years at CBS 

News, PBS, CNN, and in local news. My producers and I have 

probed countless political, corporate, charitable, and financial stories ranging from Iraq contract waste and fraud under Bush to 

green energy waste under Obama to consumer stories relating to 

the drug industry. 

Some of these reports have been recognized for excellence in journalism—most recently, investigative Emmy nominations and 

awards for reporting on TARP, Benghazi, green energy spending, 

Fast and Furious, and a group of stories including an undercover 

investigation into Republican fundraising. 

The job of getting at the truth has never been more difficult. 

Facets of Federal Government have isolated themselves from the 

public they serve. They covet and withhold public information that 

we as citizens own. They bully and threaten access of journalists 

who do their jobs, news organizations that publish stories they do 

not like, and whistleblowers who dare to tell the truth. 

When I reported on factual contradictions in the administration’s 

accounts regarding Fast and Furious, pushback included a frenzied 

campaign with White House officials trying to chill the reporting 

by calling and emailing my superiors and colleagues, using surrogate bloggers to advance false claims. One White House official got 

so mad, he angrily cussed me out. 

The Justice Department used its authority over building security 

to handpick reporters allowed to attend a Fast and Furious briefing, refusing to clear me into the public Justice Department building. 

Advocates had to file a lawsuit to obtain public information about 

Fast and Furious improperly withheld under executive privilege. 
124 

Documents recently released show emails in which taxpayer-paid 

White House and Justice Department press officials complained 

that I was ‘‘out of control’’ and vowed to call my bosses to try to 

stop my reporting. 

Let me emphasize that my reporting was factually indisputable. 

Government officials were not angry because I was doing my job 

poorly. They were panicked because I was doing my job well. 

Many journalists have provided their own accounts. 

The White House made good on its threat to punish C–SPAN 

after C–SPAN dared to defy a White House demand to delay airing 

a potentially embarrassing interview with the President. 

Fifty news organizations, including CBS and The Washington 

Post, wrote the White House objecting to unprecedented restrictions on the press that raise constitutional concerns. 

A New York Times photographer likened the White House practices to the Soviet news agency TASS. 

Former Washington Post Executive Editor Len Downie called the 

Obama War on Leaks ‘‘by far the most aggressive’’ he has seen 

since Nixon. 

David Sanger of The New York Times called this ‘‘the most 

closed, control freak administration’’ he has ever covered. 

New York Times public editor Margaret Sullivan said it is ‘‘the 

administration of unprecedented secrecy and unprecedented attacks on a free press.’’ 

Months before we knew that the Justice Department had secretly 

seized AP phone records and surveilled Fox News’ James Rosen, 

before Director of National Intelligence James Clapper incorrectly 

testified under oath that Americans were not subject to mass data 

collection, I was tipped off that the Government was likely secretly 

monitoring me due to my reporting. 

Three forensics exams confirmed the intrusive, long-term remote 

surveillance. That included keystroke monitoring, password capture, use of Skype to listen into audio and exfiltrate files, and 

more. 

Getting to the bottom of it has not been easy. It is unclear what, 

if anything, the FBI has done to investigate. 

The Justice Department has refused to answer simple, direct, 

written congressional questions about its knowledge of the case. It 

has stonewalled my Freedom of Information requests—first saying 

it had no responsive documents, then admitting to 2,500 of them 

but never providing any of them. 

In 2013, Reporters Without Borders downgraded America’s 

standing in the global free press rankings, rating the Obama administration as worse than Bush’s. 

It matters not that, when caught, the Government promises to 

dial back or that James Rosen gets an apology. 

The message has already been received: If you cross this administration with perfectly accurate reporting they do not like, you will 

be attacked and punished. You and your sources may be subjected 

to the kind of surveillance devised for enemies of the state. 

For much of history, the United States has held itself out as a 

model of freedom, democracy, and open, accountable Government. 

Freedoms of expression and association are, of course, protected by 

the Constitution. 
125 

Today those freedoms are under assault due to Government policies of secrecy, leak prevention, and officials’ contact with the 

media, combined with large-scale surveillance programs. 

The nominee, if confirmed, should chart a new path and reject 

the damaging policies and practices that have been used by others 

in the past. 

If we are not brave enough to confront these concerns, it could 

do serious, long-term damage to a supposedly free press. 

Thank you. 

[The prepared statement of Ms. Attkisson appears as a submission for the record.] 

Chairman GRASSLEY. Thank you, Ms. Attkisson. 

If I am accurate, Professor Rosenkranz, you have recently had a 

back operation and if you need to stand, we would not object. So 

whatever you have to do. 

Now, Mr. Barlow. 

Senator LEAHY. And I would echo that sitting here—recovering 

from two fractured vertebrae, I know how important it is to be able 

to stand. 

Chairman GRASSLEY. Yes, okay. Mr. Barlow. 

STATEMENT OF DAVID B. BARLOW, PARTNER, 

SIDLEY AUSTIN LLP, WASHINGTON, DC 

Mr. BARLOW. Thank you, Chairman Grassley, Ranking Member 

Leahy, Members of the Judiciary Committee. It is my privilege to 

appear before you here today in support of the nomination of my 

former colleague, Loretta Lynch, to serve as Attorney General of 

the United States. 

I would be remiss if I did not first thank this Committee for the 

strong support I received in 2011 when my own nomination to 

serve as United States Attorney was before you. It was a tremendous honor to serve as U.S. Attorney in the Department of Justice. 

I always will be grateful for the trust that you reposed in me when 

you supported my nomination. 

And it is now my privilege to recommend Ms. Lynch to you. You 

already have heard and read much about her storied 30-year legal 

career. So instead of elaborating on her many credentials, I want 

to take just a few minutes to share a couple of personal observations about my former colleague. 

I first met Loretta at a conference of United States Attorneys 

several months after I was sworn in. And what I remember most 

vividly about her was the way she handled a portion of the program where U.S. Attorneys were asking questions of the Executive 

Office of United States Attorneys. Loretta moderated the session. 

Some of the discussion regarding budgets, resource allocation, hiring authority, and other issues understandably became intense as 

my colleagues and I argued our various views and articulated the 

many needs that our districts had during lean budgetary times. 

But Loretta was calm and unruffled. She asked hard questions, 

but she did so in an unfailingly dignified and respectful way. 

Where strong feelings created the risk of bringing more heat than 

light to the conversation, Loretta brought only light. She was clearly tough, but also fair and gracious. 
126 

That impression of Loretta was confirmed and deepened as I 

served with her on the Attorney General’s Advisory Committee, the 

AGAC. As you know, the AGAC is a committee of roughly a dozen 

United States Attorneys who serve as a voice of their colleagues to 

the Department of Justice and provide counsel to Department leadership on various management, policy, and operational issues. Loretta was the chair of the AGAC during the time that I served as 

a member of it. 

You already know that United States Attorneys are not a timid 

group. All are accustomed to being in charge. All are used to expressing their views. And all are, at least in part, the products of 

very different backgrounds, experiences, and places. If you put 

twelve or so United States Attorneys together in a room, as the 

AGAC does, you will get a wide variety of ideas and perspectives, 

often very strongly held. 

It takes someone very special to lead that kind of group. For the 

AGAC to work well, to work as it is intended, that someone needs 

to be smart, insightful, organized, articulate, inclusive, and experienced. Loretta was and is all those things and more. She was always well prepared. She made sure that all points of view were 

fairly and fully considered. She listened far more than she talked. 

She facilitated consensus wherever possible and made space for 

dissent when consensus could not be reached. And by her example 

and her conduct, she elevated the discourse and refined the exchange of ideas in our committee. Through these experiences, my 

initial impressions of Loretta Lynch were fully confirmed: She is 

tough, fair, gracious, smart, and independent. 

In conclusion, during my time as United States Attorney, I had 

the privilege of serving with a truly outstanding group of U.S. Attorneys throughout the Nation. I learned much from them. I was 

inspired by their service and their commitment. But of all of these 

dedicated and talented public servants, the Honorable Loretta 

Lynch truly stood out. If confirmed by the Senate, I am sure she 

will make an excellent Attorney General of the United States. 

Thank you. 

[The prepared statement of Mr. Barlow appears as a submission 

for the record.] 

Chairman GRASSLEY. I will turn to Reverend Newsome. 

STATEMENT OF REV. DR. CLARENCE G. NEWSOME, 

CINCINNATI, OHIO 

Reverend NEWSOME. Mr. Chairman and Mr. Ranking Member 

and Members of the Judiciary Committee, it is my pleasure and 

honor to appear before you to support the nomination of Attorney 

Loretta Elizabeth Lynch for the position of United States Attorney 

General. 

I have known Loretta virtually all of her life. Our family relationships cover a period of 40 or more years. Her family has been 

associated with several branches of my family by way of the Baptist Church connection and the network of educators in the great 

State of North Carolina. Her grandfather was a highly regarded 

and respected clergyman; the same can be said of her father and 

her brother, both of whom have been distinguished leaders at the 

State and the national level for some time. For many years her fa-
127 

ther was a key leader in the life of the General Baptist State Convention of North Carolina and the National Baptist Convention, 

USA. Her brother continues in that tradition of leadership even 

now. 

Her father and I have been ministerial colleagues since the 

1970s. It was my privilege to teach her brother during the years 

that I served on the Duke Divinity School faculty. I have been able 

to maintain a warm personal association with her mother, an esteemed church leader and educator in her own right, for decades. 

Through her father, brother, and mother and mutual family 

friends, I have been able to stay abreast of Loretta’s impressive 

and remarkable rise to a position of preeminent leadership in the 

life of our Nation. 

Loretta is the product of one of the most outstanding families in 

the State of North Carolina. To the degree that virtue counts in our 

society, I am bold to say that she is the product of one of the most 

outstanding families in the United States of America. The members 

of the Lynch family are known for their exemplary character, integrity, excellent achievement, civic-mindedness, commitment to the 

common good, and deep and compelling sensitivity to the well-being 

of all people. 

Over the years it has been my privilege to witness the development and emergence of the best of who we are as a Nation in the 

person of Loretta. In the religious, educational, and social circles in 

which our families have moved, she has had a reputation for being 

stellar in everything she has done. As a teenager, she drew the admiration of adults and, more significantly, her peers as well. She 

stood out among them without alienating herself from them. She 

stood out in many, many ways. She was as approachable then as 

she is now. Even then she enjoyed a reputation for being levelheaded, balanced in her thinking, and wise in her judgments. She 

evidenced a level of maturity that was out of the ordinary but only 

in those ways that garner the respect of young and old alike. 

As a teenager, Loretta was the daughter every parent would love 

to have. Early in life, the quality of her character was evident, and 

this is why the cities of Greensboro, where she was born, and Durham, where she graduated from high school with valedictory honors, claim her as a daughter who has made them proud. All the 

more proud we North Carolinians will be if she is appointed the 

first U.S. Attorney General in the State’s history. 

As a student during her pre-college years, she performed at such 

a high level that it only seemed natural that she would attend and 

graduate from Harvard University and Harvard Law School. In 

fact, her career trajectory is consistent with the extraordinary intellectual ability and prowess, discipline, and even courage she 

demonstrated during her youth. Early on she dared to dream to become the best of the best, and she has accomplished this in the 

field of law and jurisprudence. As her professional record shows, 

she has become the best of the best without qualification. 

In the way that her career has taken shape, I can discern several 

attributes that are worth noting at a time such as this. 

First of all, she is an informed, independent thinker who listens 

well and studies hard. 
128 

Second, she has the capacity to maintain the strength of her own 

convictions. 

Third, she is morally grounded and highly principled. 

Fourth, she acts decisively and judiciously. 

And, fifth, she is a public servant of the highest order, the type 

that works well with others to bring about good results with positive outcomes. 

Thank you very, very much. 

[The prepared statement of Rev. Dr. Newsome appears as a submission for the record.] 

Chairman GRASSLEY. Thank you very much, Reverend. 

Ms. Fedarcyk. 

STATEMENT OF JANICE K. FEDARCYK, FEDARCYK 

CONSULTING LLC, CROWNSVILLE, MARYLAND 

Ms. FEDARCYK. Chairman Grassley, Ranking Member Leahy, and 

Members of the Committee, it is my pleasure to appear before you 

this morning to speak about my association with the Attorney General nominee, Loretta Lynch. I wholeheartedly endorse her confirmation from the vantage point of someone who worked closely 

alongside Loretta in her role as United States Attorney of the Eastern District of New York during my 2 years as the Assistant Director in Charge of the FBI’s New York office. I served in that capacity for 2 years, retiring in 2012 after 25 years of service in the FBI. 

As the Assistant Director in Charge, I was responsible for the 

largest field office in the FBI, and inherent to that are the most 

complex and sensitive investigations in all of this Nation’s law enforcement. New York was and will remain the target for the terrorism activities of individuals and groups that espouse their violent agenda. From the World Trade Center 1 in 1993 to the terrorist attacks of 9/11 and beyond, we continue to see this terrorist 

agenda manifested against New York. As a result, the FBI’s resources and the considerable talents of the United States Attorneys 

in both the Eastern and Southern Districts of New York are almost 

in a daily undertaking to protect this Nation’s security. 

I think it is also important that the Committee appreciate the 

magnitude of the criminal violations the New York office worked. 

These violations ranged from the complicated and pervasive financial crimes, the insidious and debilitating effects of organized crime 

and public corruption, and the violence associated with national 

gangs and other violent offenders. 

Given this challenging environment, it was a necessity to establish a substantial and seamless partnership with Loretta and her 

office. Over the course of the next 2 years, we formed an effective 

partnership to address not only the national security and criminal 

threats but also to engage in outreach and liaison to make a positive impact in the community. 

The basis for my unquestioned support for Loretta’s nomination 

is founded upon the numerous successes our offices achieved, the 

close professional and personal relationship that provided me extraordinary insight into Loretta both as a United States Attorney 

and as a person. I was privileged to observe her commitment to 

mission, her personal involvement in issues that invariably arose 

in our work, as well as those within the broader law enforcement 
129 

community. In supporting Loretta’s nomination as the next Attorney General of the United States, I would like to comment on three 

areas that form the foundation of my recommendation:sound judgment, legal acumen, and independence. 

In all of my interactions with Loretta, her approach to addressing and resolving issues invariably involved gathering information 

to understand the issue, obtaining inputs from affected stakeholders, and making a decision based upon the facts and the law. 

As you heard Ms. Lynch yesterday commit to a collaborative and 

deliberative approach, I can assure you based on my experience 

that she will follow through. 

While not an attorney, I do recognize that Loretta was nominated and confirmed twice as a United States Attorney in the Eastern District of New York; served on the Attorney General’s Advisory Committee and was named as chair of the committee in 2013; 

and received favorable reviews by the Executive Office for United 

States Attorneys which called her ‘‘exceptionally well qualified.’’ 

Lastly, I have never known Loretta to make a decision based 

upon politics or outside influences. She consistently demonstrated 

fairness, respect for others, and a deep sense of duty. Under her 

leadership, her office embraced those qualities in their work. 

As I previously stated, our offices pursued a multitude of national security and criminal investigations, including the arrest of 

approximately 138 Mafia figures that represented the largest single-day operation against the Mafia in history. But other notable 

accomplishments spanned the spectrum of the national priorities 

and are examples of her successes in the Eastern District, including international terrorism, public corruption, gang violations, violent offenders, etc. 

Ms. Lynch’s recognition that task forces brought the best of interagency investigative resources to bear on entrenched crime problems was integral to broader and deeper successes than would have 

been the case for any one agency or department to achieve alone. 

These task forces included the Nation’s largest Joint Terrorism 

Task Force, the Violent Gang Task Forces, the Long Island Gang 

Task Force, the Health Care Task Force, and the Financial Fraud 

Enforcement Task Force, to name just a few. 

In closing, Abraham Lincoln said, ‘‘Character is like a tree and 

reputation like a shadow. The shadow is what we think of it; the 

tree is the real thing.’’ Ms. Lynch is the real thing. 

Thank you. 

[The prepared statement of Ms. Fedarcyk appears as a submission for the record.] 

Chairman GRASSLEY. Thank you very much. 

Now, Professor Legomsky. 

STATEMENT OF STEPHEN H. LEGOMSKY, JOHN S. LEHMANN 

UNIVERSITY PROFESSOR, SCHOOL OF LAW AT WASHINGTON 

UNIVERSITY, ST. LOUIS, MISSOURI 

Professor LEGOMSKY. Thank you, Mr. Chairman and honorable 

Members of the Committee. Thank you for the privilege of testifying this morning. I am here to focus on the concerns that some 

have expressed about the President’s recent Executive actions on 

immigration. I do sincerely appreciate that reasonable minds can 
130 

and do differ about the policy decision as to precisely what the enforcement priorities are to be. 

But I want to respectfully share my opinion that the President’s 

actions are clearly within his legal authority. That is not just my 

opinion: 135 immigration law professors and scholars signed a letter just this past November expressing that same view in strong 

terms. This is the mainstream view from those of us who have 

spent our careers teaching and researching immigration law. 

The President has not just one but multiple sources of legal authority for these actions, and I have submitted a detailed written 

statement that documents each of these. The written statement 

also identifies every legal objection I could think of that the President’s critics have offered and it explains why, in my view, none 

of them can withstand scrutiny. So, with limited time, I will hit 

just a few key points and refer you please to the written statement 

for all the other points. 

First, I think all now agree that in a world of limited resources 

prosecutorial discretion is unavoidable. You cannot go after everyone so you have to prioritize. 

In the case of immigration, Congress has made this explicit. It 

charged the Secretary of Homeland Security with ‘‘establishing national immigration enforcement policies and priorities’’—priorities. 

That alone would seem to suffice. But, in addition, year after year 

Congress knowingly gives the administration only enough money to 

pursue less than 4 percent of the undocumented population. That 

to me is the clearest evidence possible that Congress intends for 

DHS to decide how those limited resources can be most effectively 

deployed. 

In fact, Congress has specifically required DHS to prioritize three 

things: national security, border security, and the removal of criminal offenders. And those are exactly the three priorities that these 

recent Executive action memos incorporate. 

On top of all that, we have the 2012 Supreme Court decision in 

Arizona v. U.S. where the Court struck down most of Arizona’s immigration enforcement statute precisely because it would interfere 

with the Federal Government’s immigration enforcement discretion, which the Court went on at some length to emphasize the 

breadth of. 

Now some critics claim that if the recent Executive actions are 

legal, then that would mean there are no limits at all and therefore 

some future President could suspend enforcement of some other 

law. 

But DACA and DAPA do not even approach the sort of hypothetical non-enforcement that that argument conjures up. If the 

President were to refuse to substantially spend the resources Congress has appropriated, then I believe we would have a serious 

legal issue. But that is not even close to the present reality, because even after DACA and DAPA are fully operational, the President still will have only enough resources to go after a small percentage. And so as long as he continues to use those enforcement 

resources that Congress has given him, it is hard for me to see how 

that could be called an abdication. 

As for deferred action specifically, the program has been around 

for more than 50 years. Not only has Congress never acted to pro-
131 

hibit it or even restrict it, Congress has affirmatively recognized it 

by name in several provisions. The formal agency regulations also 

recognize it by name. A long line of courts, including the Supreme 

Court, have recognized it by name. Not one of these legal authorities, not one, says or even intimates that it is legal if there is a 

small number of people but otherwise not. 

The same is true for work permits. The statute authorizes DHS 

to grant permission to work, and the regulations specifically make 

deferred action recipients eligible for them. 

Now, some have said deferred action is okay on an individual 

basis, but not for a whole class. First of all, nothing in the law actually says that. And in fact, almost every modern President has 

granted reprieves from removal and work permits to large, specifically defined classes of undocumented immigrants. 

At any rate, the Secretary’s November memo is filled with clear, 

careful, repeated instructions to officers that, even if the general 

criteria in the memo are all satisfied, they still have to make individualized, case-by-case discretionary judgments. And in fact, the 

very form that USCIS officers are required to use when they deny 

deferred action—and they have denied it more than 32,000 times 

on the merits—contains a list of the reasons, and one of those specific reasons listed is discretion. 

I think this is the way an agency should work. It articulates general criteria and then expects its officers to use some judgment in 

applying those criteria to individual cases. 

Thank you very much for your time. 

[The prepared statement of Professor Legomsky appears as a 

submission for the record.] 

Chairman GRASSLEY. Thank you. Professor Turley. 

STATEMENT OF JONATHAN TURLEY, J.B. AND MAURICE C. 

SHAPIRO PROFESSOR OF PUBLIC INTEREST LAW, GEORGE 

WASHINGTON UNIVERSITY LAW SCHOOL, WASHINGTON, DC 

Professor TURLEY. Thank you, Chairman Grassley, Ranking 

Member Leahy, Members of the Senate Judiciary Committee, I 

thank you for the honor of appearing before you at this historic moment in looking for the confirmation of the 83rd Attorney General 

of the United States. 

I want to begin by saying I have great respect for Ms. Lynch. As 

I have said before, her extraordinary career as a prosecutor pays 

great credit to her and to her nomination. Indeed, if confirmed, and 

I hope she is, I believe that she could be a truly great Attorney 

General. 

If great leaders are shaped at great moments in history, this 

could be such a moment for Loretta Lynch. 

The Justice Department is at the epicenter of a constitutional 

crisis. A crisis that consumed her predecessor and his Department. 

My focus, therefore, of my written testimony and my oral testimony today is less on Ms. Lynch than on the Department she wishes to lead. As my academic writings indicate, I have been concerned about the erosion of lines of separation of powers for many 

years and particularly the erosion of legislative authority of this 

body and of the House of Representatives. That concern has grown 

to alarm in the last few years under President Obama, someone 
132 

that I voted for, someone with whom I happen to agree on many 

issues, including some of the issues involved in these controversies. 

We are watching a fundamental change in our constitutional system. It is changing in the very way that the Framers warned us 

to avoid. The Justice Department has played a central and troubling role in those changes. In my view, Attorney General Holder 

has moved his Department outside of the navigational beacons of 

the First and Second Articles of our Constitution. In that sense, 

Ms. Lynch could be inheriting a Department that is floundering. 

The question is whether she can or will tack back to calmer constitutional waters. 

As discussed in my written testimony, the Framers focused on 

one defining single danger in our system and that is the aggrandizement of power in any one branch or in anyone’s hands. They 

sought to deny every branch the power to govern alone. 

Our system requires consent and compromise. It goes without 

saying that when we are politically divided as a Nation as we are 

today, less things get done. But that division is no license to go it 

alone as the President has suggested. You have only two choices 

in the Madisonian system. You can either seek to convince your adversaries, or you can seek to replace them. You do not get to go 

it alone. 

And there is nothing noble about circumventing the United 

States Congress, because it means you are circumventing the 

United States Constitution. And any person who claims that they 

can get the job done alone is giving the very siren’s call that the 

Framers warned us against, and one that I hope this body resists. 

In my testimony I have laid out examples of how this change is 

occurring. I have divided it between obstruction of legislative authority and the usurpation of legislative authority. The obstruction 

of legislative authority includes the blocking of the contempt citation, the non-defense of Federal statutes. Usurpation includes 

many of the legislative changes that we will be talking about today 

and has been discussed by others. 

The American people, in my view, have been poorly served in recent years by the Justice Department. The balance that has been 

sought in recent years has been lost precisely as the Framers have 

feared, the rise of a dominant Executive within our system, a type 

of ‘‘u ̈ ber-presidency.’’ 

It is certainly true that the Framers expected much from us, but 

no more than they demanded from themselves. They expected this 

institution to fight jealously over its own authority. They gave you 

that authority not to protect your power; the separation of power 

is designed to protect liberty from the concentration of power. It 

does not matter what party we are from and it does not matter if 

we agree with what the President has done. In my view he has 

worthy ends, but he has chosen unworthy means under the Constitution, and the Justice Department has been a catalyst for that. 

In exercising the power of confirmation, this body has an undeniable interest in confirming that a nominee will address these relational breaches, these unconstitutional actions. 

I can only imagine the pride that Ms. Lynch’s family will have 

when she raises her hand to take the oath of office. When that moment comes, however, there should be a clear understanding as to 
133 

what she is swearing true faith and allegiance to as the 83rd Attorney General of the United States of America. 

The Department that she leads should be the embodiment, not 

the enemy, of the separation of powers. It is a covenant of faith 

that we have with each other. And I sincerely hope that she regains that faith as she takes over, as she may, the Department of 

Justice. 

[The prepared statement of Professor Turley appears as a submission for the record.] 

STATEMENT OF DAVID A. CLARKE, JR., SHERIFF, 

MILWAUKEE COUNTY, MILWAUKEE, WISCONSIN 

Sheriff CLARKE. Good morning, Chairman Grassley, Members of 

the Senate Judiciary Committee, and Ranking Member Leahy. I 

am honored to address you this morning about a frequent news 

topic, American policing at the local level. 

These hearings are focusing on the confirmation of possibly the 

next Attorney General of the United States, Ms. Loretta Lynch, 

and I wish her well. 

I want to spend some time critiquing outgoing Attorney General 

Eric Holder’s tenure at the United States Department of Justice 

and use it as the framework as a way forward. 

The mission statement of the U.S. Department of Justice says, 

‘‘To enforce the law and defend the interests of the United States 

according to the law’’—let me repeat that—‘‘according to the law; 

to ensure public safety against threats foreign and domestic; to provide federal leadership in preventing and controlling crime; to seek 

just punishment for those guilty of unlawful behavior; and to ensure impartial administration of justice for all Americans.’’ 

In my 36 years in law enforcement I have viewed the United 

States Department of Justice as an ally in pursuit of justice. Local 

law enforcement has always been on the front lines in preventing 

and controlling crime and seeking just punishment for those guilty 

of unlawful behavior, as the mission statement of the DOJ implies. 

What I have witnessed from the Department of Justice under the 

leadership of Attorney General Eric Holder has been almost hostility toward local law enforcement. I have seen this in both public 

statements made about the profession and some of the policy decisions that treat police officers as adversaries instead of allies in the 

pursuit of justice. 

Partnering with local law enforcement agencies and ensuring the 

fair treatment of all Americans in the pursuit of justice are not mutually exclusive. What we all witnessed in Ferguson, Missouri, back 

in August, was a tragedy, an unfortunate incident for Officer 

Darren Wilson and citizen Mike Brown. What followed, however, 

compounded that tragic situation as people across the United 

States converged on Ferguson to exploit the situation for self-serving purposes. 

Suffice it to say that was not America’s finest hour. In the days 

and weeks that followed in Ferguson, Missouri, the police-related 

use of force was forefront in the national news. There was call for— 

at that moment when the U.S. DOJ inserted itself early into the 

process—an appeal to reasonableness, responsible rhetoric, and 
134 

cautioning against a rush to judgment. Instead, some very powerful 

people made statements that only heightened rising tensions. 

Unfortunately, race is, has been, and will always be an explosive 

issue in America. The incendiary rhetoric used by Eric Holder created a pathway for a false narrative that then became the rallying 

cry for cop haters across America. It sparked unjustified hatred toward America’s law enforcement agencies and its officers. 

Without a shred of evidence, a broad brush has been used to unfairly malign the reputation of the profession of policing in the 

United States. The accusation has been made that our community’s 

finest systematically engage in the practice of targeting young 

Black men because of the color of their skin. That claim is patently 

false and I reject out of hand the mere suggestion of it. If I am 

wrong, then someone needs to show me the evidence. 

Officers at the local level put on their uniforms and go out every 

day to make their communities better and safer places to live. 

Without them, our communities would collapse into utter chaos. 

The world that our officers operate in is complex, dynamic, uncertain, and one where unfortunately things can and do go wrong. 

When that happens, the American law enforcement officer needs to 

know that after a thorough and transparent investigation the facts 

and evidence of a particular case will be applied to the rule-of-law 

standard for a decision about their actions. 

After putting their lives on the line, they do not deserve a standard of false narrative, preconceptions, misconceptions, emotional 

rhetoric, or racial demagoguery. Author and scholar Thomas Sowell 

said in a thought-provoking piece on the rule of law, ‘‘If people who 

are told that they are under arrest, and who refuse to come with 

the police, cannot be forcibly taken into custody, then we do not 

have the rule of law, when the law itself is downgraded to suggestions that no one has the power to enforce.’’ So where do we go 

from here? How do we get beyond this damaged or frayed relationship between local policing and the U.S. DOJ? 

My suggestion is for the next U.S. Attorney General to articulate 

clearly a renewed commitment to rebuilding trust with local law 

enforcement. That involves open lines of communication with an 

emphasis on listening to the suggestion of law enforcement executives, and for the Nation’s sake, please stop undermining the character and integrity of the American law enforcement officer. 

Next, resist at the Federal level to interfere with local police 

training standards. Are cops perfect? No. In fact, far from it. But 

they are our community’s finest. Every community is unique in 

what will work and what will not work. We already have State 

standards for training. 

Finally, I want to speak on two emerging issues on the radar 

screen in criminal justice: sentencing and prison reform. Any discussion about reform in these two areas that does not include a 

counterview about the consequences of this short-term technical fix 

and its impact on crime victims will have a catastrophic consequence in already stressed Black and Hispanic communities. 

The recidivist nature of criminals will cause more minorities to 

be victimized by violence similar to what happened this past summer in Milwaukee to Sierra Guyton, a 10-year-old girl shot in the 
135 

head and killed while on a school playground. The shooters were 

career criminals. 

The Black community does not have the support structures in 

place for an influx of career criminals sent back into the community or to deal with the habitual criminals who currently rain terror on neighbors. Adding more crime and violence to that mix will 

only bring more misery to the overwhelming number of decent 

Black, law-abiding citizens just trying to get through life against 

already great odds. Reform that simply lowers the bar is nothing 

more than normalizing criminal behavior. 

Thank you very much. 

[The prepared statement of Sheriff Clarke appears as a submission for the record.] 

Chairman GRASSLEY. Thank you, Sheriff. 

STATEMENT OF NICHOLAS QUINN ROSENKRANZ, PROFESSOR 

OF LAW, GEORGETOWN UNIVERSITY LAW CENTER, AND 

SENIOR FELLOW IN CONSTITUTIONAL STUDIES, THE 

CATO INSTITUTE, WASHINGTON, DC 

Professor ROSENKRANZ. Thank you, Mr. Chairman, Ranking 

Member Leahy, Members of the Committee. I thank you for the opportunity to testify at this momentous hearing. The Committee has 

rightly decided to explore not just the qualifications of the nominee, 

but also the proper role of the office. 

I myself take no position on the ultimate question of whether the 

nominee should be confirmed. Rather, I offer some observations 

about the proper role of the Attorney General, and some comments, 

alas, on the ways in which the current administration has fallen 

short of its constitutional obligations. 

You have explored at length the Attorney General’s weighty responsibility to supervise the various components of the Department 

of Justice. But, as you know, the most important responsibility of 

the Attorney General is not the supervision of the tens of thousands who work beneath her; it is the solemn counsel that she 

gives to the one who works above. 

Her most important job is to give sound legal advice to the President of the United States. And perhaps the most important dimension of this function is to advise the President on the scope of his 

Executive powers and duties. 

The Attorney General should rightly explore all legal options for 

the President to achieve his goals. But at the end of the day, if no 

legal options are available, the Attorney General must be prepared 

to say, ‘‘No, Mr. President, you have no constitutional power to do 

that.’’ 

The fortitude—the rectitude—required to say ‘‘no’’ to the President is perhaps the single most important job criterion for Attorney 

General of the United States. I am afraid that it is particularly important now, in an administration that is inclined to press the 

outer bounds of Executive power and to skirt the obligation to take 

care that the laws be faithfully executed. 

I hope that the Committee will thoroughly explore the nominee’s 

conception of faithful execution of the laws, and her resolve to advise the President when he risks running afoul of this constitutional obligation. 
136 

The Constitution provides that, ‘‘The President . . . shall take care 

that the Laws be faithfully executed.’’ 

First, notice that this is not a grant of power, it is the imposition 

of a duty: ‘‘the President . . . shall take care . . . ’’ This is not optional; it is mandatory. 

Second, note that the duty is personal. Execution of the laws may 

be delegated, but the duty to ‘‘take care that the Laws be faithfully 

executed’’ is the President’s alone. 

Third, notice that the President is not required to take care that 

the laws be completely executed; that would be impossible. So the 

President does have power to make enforcement choices, but he 

must make them faithfully. And finally, it is important to remember the historical context of the clause: English kings had claimed 

the power to suspend laws unilaterally. The Framers rejected this 

practice. 

With these principles in mind, we can turn to three recent examples. Alas, there are many more one could choose. 

First, the Obamacare suspension. On July 2nd, 2013, just before 

the long weekend, the Obama administration announced via blog 

post that the President would unilaterally suspend the employer 

mandate of Obamacare, notwithstanding the unambiguous command of the law. The statute is perfectly clear: It provides that 

these provisions become effective on January 1st, 2014. This blog 

post—written under the breezy Orwellian title, ‘‘Continuing to Implement the ACA in a Careful Thoughtful Manner’’—makes no 

mention of the statutory deadline. Now, whatever it may mean ‘‘to 

take care that the Laws be faithfully executed,’’ it simply cannot 

mean declining to execute a law at all. 

Our second example, immigration, is almost an exact mirror of 

the first. In this context, rather than declining to comply with a 

duly enacted statute, the President has decided to comply meticulously—but with a bill that never became law. 

Congress has repeatedly considered a statute called the DREAM 

Act, which would have exempted a broad category of aliens from 

the INA, but Congress declined to pass it. So on June 15th, 2012, 

the President announced that he would simply not enforce the INA 

against the precise category of aliens described in the DREAM Act. 

He announced, in effect, that he would act as though the DREAM 

Act had been enacted into law, though it had not. 

Now, this is clearly not an effort to conserve resources. After all, 

the Solicitor General went to the Supreme Court to forbid Arizona 

from helping to enforce the INA. Exempting more than 1.76 million 

people from the immigration laws goes far beyond the traditional 

conception of prosecutorial discretion. 

Now, Professor Legomsky cited an unsurprising consensus of liberal immigration law professors approving the most recent action. 

I will cite just one authority, the President of the United States, 

just a few years ago: ‘‘America is a nation of laws, which means 

I, as the President, am obligated to enforce the law . . . . With respect to the notion that I can just suspend deportations through 

Executive order, that’s just not the case, because there are laws on 

the books that Congress has passed . . . . There are enough laws on 

the books by Congress that are very clear in terms of how we have 

to enforce our immigration system that for me to simply through 
137 

Executive order ignore those congressional mandates would not 

conform with my appropriate role as President.’’ I would hope that 

the nominee would agree with this statement. 

My final example is IRS targeting. I believe the witness to my 

left is going to talk about that. I would be happy to answer constitutional questions on that topic as well. 

Thank you. 

[The prepared statement of Professor Rosenkranz appears as a 

submission for the record.] 

STATEMENT OF CATHERINE ENGELBRECHT, FOUNDER, 

TRUE THE VOTE, HOUSTON, TEXAS 

Ms. ENGELBRECHT. Good morning, Mr. Chairman, Members of 

the Committee. I am the founder of True The Vote, a national, nonprofit initiative to protect voters’ rights and promote election integrity. 

I am here today because I was targeted by this Government for 

daring to speak out. I am one of the thousands of Americans who 

have become, sadly, living examples of this kind of trickle-down 

tyranny that is actively endorsed by the current administration 

and rigorously enforced by the Department of Justice. 

Over these past few years, the Department of Justice has made 

their presence very well known in both my personal and professional life. Since filing for tax exemption with the IRS in 2010, my 

private businesses, my non-profit organizations, and I personally 

have been subjected to more than 15 instances of audit, inquiry, or 

investigation by Federal agencies, including the IRS, OSHA, ATF, 

and the FBI. All of these inquisitions began only after filing applications for tax exemption. There is no other remarkable event or 

rationale to explain how through decades I went unnoticed by the 

Federal Government but now find myself on the receiving end of 

interagency coordination into and against all facets of my life. 

I shared that same timeline as a part of testimony given in February of 2014 at a hearing before the House Oversight and Government Reform Committee. Time did not permit then, nor does it 

now, to give a full account of the cast of characters and confluence 

of events that fill a binder with over 800 pages worth of Government subterfuge. But in one way or another, the Department of 

Justice has found its way into almost every aspect of my story. 

In my attorney’s testimony at last year’s House hearing, she 

spelled out for the Committee why we believed that the Department of Justice investigation into the IRS targeting scandal was in 

fact a sham. Within hours of her filing, she received a phone call 

from the Department of Justice now suddenly wanting to interview 

me. It was the first time we had been contacted in approximately 

nine months after the investigation had purportedly commenced. 

An arrangement was made with the Department of Justice Public Integrity Section, but we were then told that the Civil Rights 

Division would also be participating in my interview. Now, this is 

significant because, at the time, that same Civil Rights Division 

was fighting against True The Vote in the courtroom back in 

Texas, trying to prevent us from becoming an intervening party for 

the State in voter ID litigation that the Department of Justice had 

brought against them. 
138 

The DOJ told my attorney that unless I was willing to waive my 

rights and obligations to the involvement of the Civil Rights Division that they would not interview me at all. And to date they still 

have not. 

A handful of months later we met the Department of Justice in 

court again, this time as they represented the Internal Revenue 

Service in a lawsuit True The Vote filed against the IRS in 2013. 

The DOJ assured the judge that there was no more evidence that 

could be recovered from any of the hard-drive crashes that had befallen IRS employees named in our suit. All of the contents from 

all of the hard drives was certainly and irrevocably lost. This purported dead end in discovery went on to become a factor in the 

judge’s ultimate decision to dismiss our case. 

Yet just one month later, the Treasury Inspector General’s investigation turned up an additional 2.5 million emails, of which 30,000 

were Lois Lerner’s. Is there the will to ever get to the truth behind 

this nightmare of citizen targeting? 

For six years, the Department of Justice has operated as an increasingly rogue agency where preservation of personal liberties 

runs a distant second to preservation of political power. Will this 

new leadership be any different? As the leader of a voter rights organization, I was extremely disappointed to hear Mrs. Lynch’s comments in a speech she made in Los Angeles last February when she 

said that voter ID laws were passed in the Deep South so that ‘‘minority voters would be disenfranchised.’’ And, further, that she applauded DOJ’s lawsuits filed against those States having ID programs and promised that those lawsuits would continue. 

Seventy percent of Americans believe that showing photo identification in order to vote is a common-sense safeguard to our electoral process. Should we count on continued resistance from the 

Department of Justice led by Loretta Lynch? 

In fact, the most significant voter disenfranchisement threat currently facing our country was made possible by the President’s recent order of Executive amnesty. States are not prepared to deal 

with the coming influx of illegal aliens wanting social service programs like Medicaid, welfare, and, of course, driver’s licenses. Federal law requires that these programs offer voter registration opportunities, which is a wonderful thing for American citizens. But 

these programs were not designed to verify citizenship, leaving 

many States without the necessary firewalls to ensure that noncitizens do not end up as registered voters. And every vote cast by 

a non-citizen disenfranchises the vote of a citizen. 

We know Mr. Holder is a proponent of amnesty. Where will Ms. 

Lynch stand on the issue? 

In a 2009 speech, General Holder called America a ‘‘Nation of 

Cowards.’’ Well, if you remember nothing else from my comments, 

please remember this: I am not a coward and I am not a victim. 

I am a messenger for all of those Americans who love our country, 

love our fellow countrymen, and pray for a better tomorrow. 

And I am here to say our country, right now, is at a tipping 

point. We have replaced rule of law with mere relativism. We have 

replaced truth with political correctness and, in all of the double 

speak and double think, we have become increasingly unsteady 

about how we the people factor into a future left in the hands of 
139 

our current leaders. So please be bold, please choose wisely, because America is watching. Thank you. 

[The prepared statement of Ms. Engelbrecht appears as a submission for the record.] 

Chairman GRASSLEY. Thank you to all the witnesses and now 

Ms. Engelbrecht. 

I am going to call in just a minute—or in just 30 seconds—I am 

going to call on Chairman Leahy to ask the first questions because 

he cannot come back this afternoon, but would you go ahead, Senator Hatch? You said you wanted to say something. 

Senator HATCH. Well, I just want to mention to you, Ms. 

Engelbrecht, that we are thoroughly investigating this. The only 

reason we have not issued a report so far is that, as you mentioned, there were 30,000 more emails finally discovered. TIGTA, 

the investigative arm of the IRS, has not yet released those to us, 

and we are going to have to go through those before we issue a 

final report. But you have my total sympathy for what you have 

gone through. 

Ms. ENGELBRECHT. Thank you, Senator. 

Chairman GRASSLEY. And he is speaking as Chairman of the Finance Committee. 

Senator Leahy. 

Senator LEAHY. Well, thank you, Mr. Chairman. I appreciate 

your courtesy. 

I would ask consent that I put in the record—— 

Chairman GRASSLEY. Without objection. 

Senator LEAHY. I just mentioned a number of the letters I will 

submit—former FBI Director Louis Freeh, whom we all know very 

well, is supportive of Loretta Lynch, and Congressman John Lewis, 

a number of Justice Department officials both in the Bush administration and various Democratic administrations, the FBI Agents 

Association. I will not list all of them, but if they could all just be 

part of the record. 

Chairman GRASSLEY. They will be, Senator Leahy. 

[The letters appear as submissions for the record.] 

Senator LEAHY. We have nine witnesses here today. Would those 

who oppose Loretta Lynch as Attorney General please raise their 

hand? 

Let the record show no hands were raised. 

Ms. Fedarcyk, you know, it is amazing, your record. You started 

off as a beat cop in Nevada, joined the FBI, and 23 years later, you 

were heading up the FBI’s largest field office. And like many here, 

I was briefed during that time on some of the investigations you 

had underway, especially in the terrorist area. They were remarkable in their complexities. 

You also dealt, as you said, with Loretta Lynch during that time. 

Do you believe that she has the temperament and the demeanor to 

be an Attorney General? 

Ms. FEDARCYK. Senator, my 2 years’ exposure working alongside 

Loretta—and I say ‘‘alongside’’ because it was truly a seamless 

partnership—I think gives me a little bit of background and experience to be able to say that I firmly believe that Loretta Lynch possesses all of the necessary attributes that the Nation should de-
140 

mand of an independent Attorney General. And I wholeheartedly 

support her nomination and confirmation. 

Senator LEAHY. I do not want to put words in your mouth, but 

do you find that she would make independent judgments? 

Ms. FEDARCYK. Yes, sir. And, in fact, that was part of my opening statement, the fact that one of the three attributes that I wanted to touch upon was the fact that she operated independently, did 

not bow to outside influences, looked at the facts, looked at the 

issues. When she was confronted with an issue, she gathered input 

from stakeholders, solicited their input, took a look at the law, 

made sure that her decisions were wholly based on the facts and 

the law and independently arrived at. 

Senator LEAHY. Your career in law enforcement was a lot longer 

than my career in law enforcement, but I know during my years 

in law enforcement what we wanted was independence, and I appreciate that. 

Mr. Barlow, nice to have you back here. I usually would see you 

in the other Committee room. Do you believe that Loretta Lynch 

has the independence to stand up to others in the executive branch, 

including the President, if she feels she is in the right and has to 

stand up to do her job as Attorney General? 

Mr. BARLOW. Yes, Senator, I do. In my experience working with 

her and working through any number of different issues, seeing her 

in a variety of different circumstances, I have always known her 

to be thoughtful, well prepared, and someone who is interested in 

the facts and the law. I do not believe the President or anyone on 

this Earth could get her to make a decision that she did not believe 

was right and had a firm basis in where her duty was at that moment. 

Senator LEAHY. In Louis Freeh’s letter, he talks about her being 

part of the group that went to Italy for the funeral of one of the 

top Mafia fighters, somebody that both Director Freeh and I had 

known, and he said that she was there with him on that because 

of her attitude about organized crime. So I have known her peripherally over the years and more since the nomination. 

But, Dr. Newsome, you have known her longer than all the rest 

of us. Do you believe she would stand up for what she believes is 

right no matter who she might be getting pressure from—the President, me, Senator Grassley, or you? 

[Laughter.] 

Reverend NEWSOME. Absolutely, Senator. She would demonstrate 

independence in the most constructive of ways. One of her greatest 

attributes, as has already been noted, is her ability to hold forth 

with the strength of her own convictions, having prepared herself 

thoroughly, thought through matters very, very comprehensively, 

having identified the issues in a way that she could communicate 

her position in a way that would garner nothing but the highest 

of respect. 

Senator LEAHY. I talked yesterday about as a young law student 

being recruited by the then-Attorney General of the United States 

to come to work for him, and I had asked him whether he would 

stand up to the President of the United States if need be. He assured me he would. Later he did when he prosecuted a man who 

was essential to the election of the President. And when I asked 
141 

him later about that, I said, ‘‘Attorney General Robert Kennedy, 

what was the reaction?’’ He said, ‘‘I stayed away from family gatherings for a little while.’’ 

[Laughter.] 

Senator LEAHY. Professor Turley, many of us have seen you 

many, many times. The House Republicans have hired you to sue 

the administration in another area, and the taxpayers will pay 

your fee. It was said that this could cost as much as $3 million. 

They are not paying you $3 million, are they? 

[Laughter.] 

Professor TURLEY. I am certainly open to that, Senator Leahy. But, no, no one has offered me $3 million. 

Senator LEAHY. What is the hourly rate you do charge? 

Professor TURLEY. I think the hourly rate is set by the contract, 

not by me, I think at a top of $500. But I seem to recall that. 

I want to correct something. I am actually working not for the 

House Republicans but for the House of Representatives. They 

voted to approve the—— 

Senator LEAHY. It was a Republican vote. It was a partisan vote, 

as you know. Not to spin it too closely. But do you get paid for your 

testimony here today? 

Professor TURLEY. Oh, no, of course not. 

Senator LEAHY. Thank you. I thought I would ask that out of 

fairness to you. 

I appreciated the answer when no hands went up to the first 

question I asked, and I hope we can move on. Many of you have 

questions about the past operations of the Department of Justice. 

I have some disagreements with that, but I think we are talking 

about the remaining time of this administration and the Department of Justice. And, frankly, as one American and as a former 

prosecutor and as the longest-serving Member of the Senate and 

one who has voted on a lot of Attorneys General, both for Republicans and Democrats, I feel very, very confident in voting for Loretta Lynch as Attorney General. 

And, again, I thank you, Mr. Chairman, for your courtesy. 

Chairman GRASSLEY. You bet. 

I am going to start out with Ms. Attkisson. In your testimony, 

you say that you have a long career of investigative reporting. I am 

sure you have dealt with pushback from powerful people before. 

What makes the last few years different? 

Ms. ATTKISSON. I defer somewhat to some of my colleagues that 

I quoted in my opening statement who said this was in their experience, which is longer than mine, the most difficult administration 

they had dealt with. Ann Compton, another correspondent, said 

this was the most closed President she has dealt with in seven 

Presidents she has covered. And I see it as a high point on a trajectory and a continuum, meaning every administration seems to be 

worse than the last. Although they come in promising openness 

and transparency, they seem to pick up where the last one left off. 

And there has not been as much pushback, I think, from Congress 

and the media in some cases to keep that balance because, of 

course, the Government tends to, for whatever reason, covet information, separate itself from the public, and treat itself kind of as 

one and apart. 
142 

But we are supposed to help create a balance so it does not get 

out of whack, and I think we have not done a very good job at that 

in the last couple of years. 

Additionally, this administration has employed very aggressive 

techniques that are available to it that were not available years 

ago, such as using social media and surrogate bloggers to put out 

false information to controversialize any reporters who dare to do 

the normal oversight reporting that we have done on other administrations. And I think that has been somewhat successful. 

Chairman GRASSLEY. You say in your testimony that you were 

once barred from attending a briefing in the Justice Department. 

What reasons were you given? 

Ms. ATTKISSON. A briefing was called on Fast and Furious, and 

I was sent over to the office, but Tracy Schmaler, the press officer, 

called back immediately and said do not bother to come, that she 

would not clear me in the building, although I have a press pass, 

I have been cleared, you know, through the FBI to walk up to the 

President of the United States, but she was not going to clear me 

through building security. She did not give a reason other than to 

just say they only wanted the normal beat reporters to attend. I 

cannot tell you how improper that is, in my view, how improper it 

is that Government officials who control public assets would misuse 

their authority to, in essence, hand-pick the reporters who get to 

cover the story, I think, in essence, the way they would rather it 

be covered and keep out in some cases more knowledgeable reporters who have been covering that particular issue. That had never 

happened to me before. I never tried to go there afterwards. It did 

not happen to me afterwards. But I think that was a very important thing that was done, and I think it was very improper. 

Chairman GRASSLEY. Do you think any of your colleagues and 

fellow journalists pulled punches because they thought they might 

be barred? 

Ms. ATTKISSON. I do not personally know. I think the reporters 

on the ground do a great job, but I do know there are managers 

and editors—and I have spoken to executives from three networks—who have given instances in which they have been specifically threatened with loss of some sort of access if the news organization takes a particular news course. So that threat of access is 

definitely felt. 

Chairman GRASSLEY. My next question gets to the fact that we 

are not here to talk about her qualifications—I do not think anybody questions that—but whether she can make changes in the Department of Justice. What do you think needs to be done to correct 

the chilling effect on the press over the last few years? 

Ms. ATTKISSON. Sometimes I think it is more than just the physical steps that are taken. It is an action that is seen and a message 

that is perceived. Right now, regardless of steps that have been 

taken to mitigate damage that has been done, there is still a large 

distrust of the Justice Department, and in some cases Government 

in general. 

There are Members of Congress and staff and whistleblowers and 

other journalists who commonly talk about the idea that they believe—whether it is true or not—that they believe they are being 

monitored on their phones and/or computers. How you get past 
143 

that suspicion that has been created by the actions that we have 

seen, it is going to be difficult. 

One very tangible thing that could be done and I think needs to 

be done—and I will not belabor it, but it has to do with freedom 

of information law, which is pretty much pointless and senseless 

now in its application at the Federal level. It does no good. It has 

been used—instead of to facilitate the timely release of public information, it has been used as a tool to obstruct and delay the release 

of public information. It is no good, you know, if you even do go 

to court to get your public documents, that is at taxpayer expense. 

It still serves the purpose of delay that the bureaucracy wishes to 

serve. And at the end, even if they have to pay the plaintiff’s fees, 

that is done with our tax dollars, and basically the Federal agency 

gets rewarded for a job well done because they have been able to 

obscure and delay the release of these public documents. So FOIA 

is extremely broken at the Federal level. 

Chairman GRASSLEY. You just describe my last question, so you 

will not have to answer it, but just to make it clear, you felt your 

computer was hacked, you filed for information on it, and you still 

do not have an answer. Is that right? 

Ms. ATTKISSON. That is right. The FBI, I think something like— 

I filed a request just in general for information 540 days ago. A response is due in something like 20 business days. But this is very 

typical of FOIA responses. 

I got a very partial, incomplete response last night to a FOIA request that I made with the Department of Justice Inspector General, which did not include the forensics that supposedly came 

along with some conclusions and summaries they made, so that 

will be a process that—who knows if I will ever get the documents 

I have been asking for for months. But this is very typical, reporters will tell you, and citizens and consumers, of their efforts to try 

to obtain easily accessible public information or information that 

should be easily accessible. 

Chairman GRASSLEY. Ms. Engelbrecht, in May 2013, General 

Holder announced that he had ordered the Department of Justice 

to conduct a criminal investigation into the IRS for targeting conservatives. At the time, the Attorney General called the IRS practices ‘‘outrageous and unacceptable.’’ 

When did the Department of Justice first reach out to you or 

your lawyer to learn the details of your ordeal? 

Ms. ENGELBRECHT. We had heard nothing from the Department 

of Justice right up until the day before we were to testify before 

the House Committee. My attorney and I were both prepared to 

testify. My attorney filed her testimony in which we were very critical of what had happened to that point, and it was not hours later 

that the Department of Justice called for the first time to ask to 

speak with us, so 9 months approximately. 

Chairman GRASSLEY. So after 9 months, General Holder ordered 

the investigation, reached out to you, and what prompted them to 

do so? Do you have any idea? 

Ms. ENGELBRECHT. I think it was that testimony that was filed 

that left no stone unturned about what we already experienced. 

Chairman GRASSLEY. So let me get this straight. Attorney General Holder announces an investigation into the IRS’ targeting of 
144 

tax-exempt groups like yours, and 9 months later it takes a congressional hearing for you to be contacted by the attorneys at the 

Department of Justice. You just said ‘‘yes’’ to that. 

Ms. ENGELBRECHT. Yes, sir. 

Chairman GRASSLEY. That is disgraceful. To your knowledge, 

who did they talk to before they reached out to you? 

Ms. ENGELBRECHT. Certainly we saw all over the news that they 

were talking to Lois Lerner and others inside the Department. I 

was in very regular contact with lots of other leaders of other organizations that had been targeted. To the best of my knowledge, no 

one has been contacted still by the Department of Justice. 

Senator SESSIONS. Mr. Chairman, I would note that the Alabama 

Tea Party leader who was victimized has still not been investigated, been interviewed, even though I directly asked the FBI Director to do so a long time ago. 

Chairman GRASSLEY. Yes. Then so to date you have not been 

interviewed by the FBI? 

Ms. ENGELBRECHT. No, sir. They did ask about 9 months ago, but 

it was upon the contention that they would be allowed to have the 

Civil Rights Division in, and I was not willing to do that because 

the Civil Rights Division had already been on record opposing my 

organization. 

Chairman GRASSLEY. Okay. Well, I do not blame you for declining to speak to the Department of Justice. If I had been subjected 

to 15 audits and inquiries from four different Federal agencies in 

less than 3 years, I would only want to meet with neutral and fair 

investigators and certainly not a person who had been appointed 

to do this investigation and who also had an outstanding record as 

President Obama’s campaign donor. 

One final question. Has the Department of Justice, or anyone 

else for that matter, advised you why four powerful Federal agencies descended on your doorstep? 

Ms. ENGELBRECHT. No, sir. But I would sure like to know. 

Chairman GRASSLEY. Okay. Let me check with my staff whether 

I call on Feinstein or Hatch first. 

Okay, Senator Hatch. 

Senator HATCH. Well, thank you, Mr. Chairman. 

I really appreciate what you have gone through. I cannot say 

much about it because of 6103 Authority, but we are going to get 

to the bottom of it. 

Ms. ENGELBRECHT. Thank you, sir. 

Senator HATCH. We have already gotten quite a bit to the bottom 

of it. 

I want to come back for a least a few minutes to thank this panel 

of witnesses for contributing to the confirmation process regarding 

Ms. Lynch’s nomination. I am going to be a strong supporter of her 

nomination, and I believe she is not only qualified but exceptionally 

well qualified and a very good person to boot. 

I especially want to recognize David Barlow who is here today, 

who served as a U.S. Attorney in my home State of Utah for 3 

years and before that worked on this Committee as chief attorney 

for my companion here in the Senate, Senator Lee. 

Professor Turley, welcome back to the Judiciary Committee. 

Professor TURLEY. Thank you, Senator. 
145 

Senator HATCH. Yesterday I asked Ms. Lynch whether the Attorney General has the duty to defend the constitutionality of duly enacted laws if there are reasonable arguments to do so. You discussed this in your prepared statement, and I would like your comment on one specific issue that I raised. 

Attorney General Holder did not decide never to defend the constitutionality of the Defense of Marriage Act but to stop defending 

its constitutionality. His own Justice Department lawyers had already been making reasonable amendments defending DOMA or 

this bill, and Mr. Holder decided to stop making them. And that 

is what made me say that he has abandoned his duty. Do you 

agree? 

Professor TURLEY. I agree. I thought that the decision was 

wrong. I happen to agree with the President. I was a critic of 

DOMA. But I thought that the abandonment of the defense of 

DOMA was inimicable to the rule of law. I thought it violated a 

longstanding understanding with this body. You know, there is history here, as you know. You are a student of the Constitution, and 

you know that there has always been this tension between the 

Congress and the Justice Department as to who can be in court defending things of this kind. The Justice Department has always insisted they are the exclusive representative—— 

Senator HATCH. Had you been Attorney General, you would not 

have stopped that. 

Professor TURLEY. Oh, absolutely not. I would have defended 

that law. 

Senator HATCH. Even though you did not agree with DOMA. 

Professor TURLEY. That is right. What is really—— 

Senator HATCH. The Defense of Marriage Act. 

Professor TURLEY. And what is also troubling is that there is no 

definition in the Attorney General’s position as to when they will 

abandon a Federal law. I happen to agree with the criticism of the 

law, but there were plenty of people with good faith arguments 

that it is constitutional, including people on the Supreme Court. 

And if this is the standard for abandoning a Federal statute, I 

could see a President doing this in a host of different statutes. 

Senator HATCH. You are right about that. I appreciate your comments. I am also glad that your prepared statement discussed the 

controversy over recess appointments. The idea that a President 

has the authority to tell the Senate when it is in or out of this or 

that sort of recess is astounding, and I am glad the Supreme Court 

unanimously rejected the administration’s position on that matter. 

In yesterday’s discussion of prosecutorial discretion, the administration’s defenders repeatedly said that this is really only about 

wisely using limited resources. You refer in your statement to the 

‘‘ill-conceived litigation strategy of the Justice Department’’ defending this bizarre position on recess appointments. I wonder how 

many resources the Department uses pursuing these extreme positions in court that, as I said yesterday, got shot down over and over 

again, some 20 times. Do you agree? 

Professor TURLEY. Absolutely. I testified before the litigation, 

after the appointments were made, and I said that, in my view, 

even though I thought very highly of the nominee, the appoint-
146 

ments were flagrantly unconstitutional. There are close questions 

in the Constitution, in my view. This was not one of them. 

Senator HATCH. That is one of the reasons I admire you. I mean, 

you are wrong on so many things, but you stand up—— 

[Laughter.] 

Senator HATCH. And you are right on a lot of things, too. I have 

got a lot of respect for you. 

Professor Legomsky, your prepared statement refers to a November 2014 letter from immigration law scholars. It states that the 

President’s action establishing the Deferred Action for Parental Accountability program is ‘‘within the legal authority of the executive 

branch of the United States.’’ But didn’t the Justice Department’s 

own Office of Legal Counsel in its opinion issued a week earlier 

conclude that, ‘‘The proposed deferred action program for parents 

would not be a permissible exercise of enforcement discretion’’? 

Even OLC, the Office of Legal Counsel, which seems to be into efficacy rather than analysis these days, disagrees with these scholars 

on this issue. 

Professor LEGOMSKY. Senator, the OLC memo distinguished between granting deferred action to those children who had arrived 

at an early age on the one hand, and in addition granting it to the 

parents of U.S. citizens and lawful permanent residents, while at 

the same time suggesting that it might not be legal to extend deferred action to the parents of the DACA recipients themselves 

and—— 

Senator HATCH. All right. 

Professor LEGOMSKY. I do personally disagree with that latter 

suggestion of OLC, but otherwise, I thought the memo was very 

thoroughly and well articulated. 

Senator HATCH. Okay. Sheriff Clarke, I want to personally thank 

you for your advocacy and leadership for police people all over this 

country and coming here today and giving your testimony. As I observed the reactions to the incidents like that in Ferguson, Missouri, I, too, became concerned about this rhetoric and the broadbrush picture that seemed to be developing about all law enforcement. 

We heard elected officials claim that police officers across the 

country were indiscriminately shooting Black men, simply out of 

fear. Those incidents happened at the local level and involved local 

law enforcement. How much do you think that the Attorney General of the United States can affect the situation, negatively or 

positively? 

Sheriff CLARKE. Thank you, Senator. A lot. The Attorney General 

of the United States has a big stage, and when he or she talks, people listen all across the country. And it gives the impression that 

that is the policy of the United States Department of Justice, and 

they have to choose their words carefully. 

Senator HATCH. Well, thank you. 

Ms. Attkisson, I do not know what your politics are, but I admire 

you greatly. You are what an investigative reporter ought to be. 

And, frankly, your testimony here today has been very profound, 

very strong, and it ought to wake everybody up at the Justice Department and in the administration, and in all administrations, 

both this one and any in the future. 
147 

So you are doing a great public service here and having the guts 

to stand up and take the positions that you have. I have a lot of 

admiration for you. 

Professor Rosenkranz, during the hearing yesterday, I acknowledged that prosecutorial discretion obviously involves enforcement 

of resource allocation decisions in individual cases. But I said, ‘‘Applying that discretion across the board to entire categories of individuals has the same effect of changing the law itself.’’ Do you 

agree with that? 

Professor ROSENKRANZ. Yes, I do, Senator. It is not a clear line 

that one can draw, but when you start to talk about exempting millions and millions of people from Acts of Congress, this looks a lot 

more like legislation than like enforcement discretion. 

Senator HATCH. Professor Legomsky offers the Supreme Court’s 

decision in Arizona v. United States to justify using enforcement 

discretion in a categorical fashion. But the Court’s opinion uses the 

word ‘‘individual’’ more than a dozen times. 

For example, it discusses ‘‘the power to bring criminal charges 

against individuals’’ and whether ‘‘an officer has probable cause to 

believe that an individual is removable.’’ 

In fact, one of the quotes from the Court’s opinion that Professor 

Legomsky includes in his prepared statement says, ‘‘The equities of 

an individual case may turn on many factors.’’ Does that support 

using discretion for individual enforcement decisions in a categorical way which has the effect of changing the underlying statute 

itself? 

Professor ROSENKRANZ. I quite agree with you, Senator. I think 

the traditional conception of prosecutorial discretion has always 

been case by case. 

Senator HATCH. Okay. Your prepared statement says that the 

most important dimension of the Attorney General’s function ‘‘is to 

advise the President on the scope of his Executive powers and duties.’’ Does that function happen on a blank slate? Or do the essential principles of our system of Government actually counsel special 

attention to the limits of presidential power? 

Professor ROSENKRANZ. Quite right, Senator. I think the core of 

that responsibility is for the Department of Justice and the Attorney General in particular to think hard about the meaning of faithful execution of the laws and to counsel the President when he is 

close to the line of unfaithful execution. 

Senator HATCH. In other words, is the Attorney General there to 

find some plausible, theoretical justification for whatever the President wants to do? Or is she there to enforce the real, substantive 

limits on power that are necessary for all of our livery? 

Professor ROSENKRANZ. The Attorney General should help the 

President to find legal ways to do what he wants to do, but at the 

end of the day, it is essential for the Attorney General to be able 

to say, ‘‘No, Mr. President, that is something you cannot do.’’ 

Senator HATCH. My time is up. Thank you. 

Chairman GRASSLEY. Senator Feinstein. 

Senator FEINSTEIN. Thanks very much, Mr. Chairman. I am 

going to be very brief. 

This is really a hearing to discuss the qualifications of a nominee—in this case, a very distinguished, very exceptionally well- 
148 

qualified nominee, on virtually any area that one can state. I really 

do not want to see that diminished by a critique by various people 

of the administration, and to me, Loretta Lynch is an outstanding 

role model, not only for women but for all of us in this arena, because as you can see, so much of this arena has become so partisan 

that here is the use of a hearing on the qualifications of a nominee 

to be used to criticize the administration in areas that Loretta 

Lynch had nothing to do with. I guess that is the coin of our realm 

here, but I remember other nominations where, if the issue was 

independence, where nominees fully admitted—and the Ranking 

Member mentioned this—that they were a wing of the staff to the 

President. 

So I think we have a very special nominee in front of us, very 

skilled, very determined, but most importantly, I think she has 

used her life so well to be that combination of, what was said by 

one newspaper, combination of velvet and steel, and to see the impact of that on the strong support that she has for all of us in this 

arena I think is a kind of role model as how you—there are a lot 

of people that know how to separate everybody. There are very few 

people that know how to bring people together again and really develop a kind of consensus that can lead us forward. And because 

this institution is so split, the role of Loretta Lynch in this day and 

age I do not think can be underestimated. 

So the fact that when Senator Leahy asked the question—and I 

forget how he put it—you know, which of you is in opposition to 

Loretta Lynch, no one raised their hand. And I think it is that way 

throughout the Nation. I think we should get on with the business. 

We should see this woman confirmed as quick as possible. Thank 

you very much. That is my statement, Senator Whitehouse. 

Senator WHITEHOUSE [presiding]. Before I start claiming my 

time, let me say where we stand in terms of what is going on here, 

because the Chairman has just had to leave for a vote and he has 

left me instructed that if Senator Lee arrives or if another Republican arrives at the conclusion of my time, then they will be recognized. But if no one else is here, then we will recess at that point 

until 1:00 p.m.; is that correct? 

Okay. Good. 

Let me take my time to review the bidding where we are. No witness present today opposes Ms. Lynch as the nominee for Attorney 

General. Ms. Attkisson is here as a litigant against the United 

States with her lawyer sitting beside her. Her testimony never 

mentions the nominee. And I would ask, actually, unanimous consent that the redacted version of the IG report related to her claims 

be made a matter of record, which without objection it will be. 

Mr. Barlow supports the nominee enthusiastically. Reverend 

Newsome supports the nominee enthusiastically. Ms. Fedarcyk, to 

use her phrase, whole-heartedly endorses the nominee. Professor 

Legomsky is here mostly to talk about immigration. His testimony 

does not make clear whether he does or does not support the nominee. May I ask you if you do? 

Professor LEGOMSKY. I certainly do. Thank you for asking, Senator. 

Senator WHITEHOUSE. Very well. That is now clear. 
149 

Mr. Turley says that his interest today is not to discuss Ms. 

Lynch as much as the Department she wishes to lead. But he goes 

on to say that he has no reason to doubt the integrity and intentions of Ms. Lynch, who displays obvious leadership and strength 

of character. 

Sheriff Clarke is here and wishes the nominee well. But he goes 

on in his testimony to say, ‘‘I want to spend some time critiquing 

Eric Holder’s tenure.’’ 

Professor Rosenkranz takes no position on the nominee, but comments on the tenure of Eric Holder; is that correct, Professor? 

Professor ROSENKRANZ. [No audible response.] 

Senator WHITEHOUSE. And Ms. Engelbrecht, have I said that 

right? Ms. Engelbrecht is an advocate for voter identification laws 

who would like Ms. Lynch to agree that voter identification laws 

are not efforts to suppress voting but took no specific position on 

the nominee; is that correct? 

Ms. ENGELBRECHT. No specific position, sir. I have all the hope 

in the world that—— 

Senator WHITEHOUSE. Very good. 

Ms. ENGELBRECHT. It will work out. 

Senator WHITEHOUSE. So let me say two things: one, some many 

years ago George Washington set for himself what he called his 

Rules of Civility and Decent Behavior. He wrote 110 Rules of Civility and Decent Behavior to help him guide his own conduct in upright and honorable ways. I think it was Rule 89 of those Rules of 

Civility and Decent Behavior that George Washington kept that 

said the following: ‘‘Speak not evil of the absent for it is unjust.’’ 

There are plenty of forums where the Attorney General would 

have an opportunity to defend himself. This is not one. There is no 

forum here, there is no opportunity here for Attorney General 

Holder to answer these various charges that have been made. I 

think that is fundamentally unjust. And I think it is frankly beneath the dignity of this Committee at a time when we have a very 

significant and solemn charge before us to determine the fitness of 

a specific individual to be Attorney General of the United States 

to launch a series of unanswerable attacks. 

I have no problem with the attacks. My problem is that choosing 

this forum for them where the individual in question has no chance 

to answer I think fails President Washington’s test that one ‘‘speak 

not evil of the absent for it is unjust.’’ 

With respect to the other issues, I think we will have plenty of 

time to ventilate those in other forums. I am sure we will have 

plenty of time to address immigration, address voter ID and voter 

suppression, address surveillance, address all of those things. But, 

once again, in this forum, there is no opportunity for another side 

to be presented. And I regret that this hearing and this solemn occasion has been corrupted to that extent and turned into what appears to be a sound bite factory for Fox News and conspiracy theorists everywhere. 

We actually have a nominee in front of us. She appears by all 

measure to be a terrific person. I think we should get about the 

business of confirming her and get about the business of voting on 

her. And if people have the strength of view that Attorney General 

Holder is not a good leader of the Department of Justice, the very 
150 

best way to act on that would be to confirm Ms. Lynch as quickly 

as possible. 

Now, I happen to disagree with that view. I am proud of what 

Attorney General Holder has done and I would once again reference that he did not inherit a Department of Justice that was in 

good order. 

The Office of Legal Counsel had written opinions that were so 

bad and so discreditable that even that administration was forced 

to withdraw them once they saw the light of day and received peer 

criticism. 

U.S. Attorneys of Republican and Democratic persuasions and 

appointments alike rose in irritation and anger about the effort to 

manipulate the United States Attorneys that exploded into a scandal. There was that other creepy, midnight assault on a sick Attorney General in the hospital when White House lawyers came over 

to try to get his signature on a document and thankfully now-FBI 

Director Comey put a stop to that nonsense and ultimately the Attorney General of the United States was forced to resign from that 

office. 

So stepping into that mess—and there were plenty of other features I could add—I think that Attorney General Holder is entitled 

to great credit for having put that Department back on its feet. I 

understand that he made decisions that people disagree with. I, for 

one, believe that those decisions are within the bounds of legitimate debate. I am not suggesting that my colleagues need to agree 

with them, but I think to personalize them so much as to say that 

it shows a moral or personal defect on his part reflects really more 

the narrowness of a specific ideology than any true judgment about 

the merit of a man who has served his country as a United States 

Attorney, as the Deputy Attorney General, as a Judge, and as Attorney General with what I consider to be great distinction. 

So with that I will conclude my remarks. I see my friend and 

former Attorney General colleague, Senator Cornyn, is here as well. 

So under the Chairman’s direction, as I yield my time it will go, 

as I understand it, to Senator Cornyn. Okay. I yield my time. 

Senator CORNYN [presiding]. Thank you. I would thank my colleague whom I work with on a number of important matters. We 

are working on some important prison reform legislation, demonstrating that dysfunction has not taken over everything here in 

Washington—that we can actually work on things even though we 

have other differences. 

But I just have to disagree with him, and I guess he disagrees 

with himself, because while he criticized the criticism of Attorney 

General Holder, he seemed to recall with great clarity the problems 

with the Bush Justice Department, or at least the things that he 

disagreed with. But that is the great thing about the United States 

Senate and about our great country, where all of us ought to be 

free to express our views without fear, certainly of Government intimidation. 

And, Ms. Engelbrecht, I am glad to see you personally, but I find 

your testimony, once again, chilling and I admire your courage. 

And it cannot be easy for a citizen to fight their government with 

all the vast resources arrayed against you. And I just want to assure you, you are not alone. And Senator Hatch, who is Chairman 
151 

of the Finance Committee which has jurisdiction over the Internal 

Revenue Service, he’s an honorable man and I know you can count 

on his commitment as well to get to the bottom of some of the matters that you refer to, but particularly regarding the Internal Revenue Service. So thank you again for your courage and your willingness to stand up to, and I would say also, inspire a lot of Americans who feel like Government has gotten too big and too intrusive 

and is crushing the spirit and the voice of a lot of individual citizens. So thank you for being here. 

And, Ms. Attkisson, I have to tell you how much I am chilled by 

what you have to say. When I was in college, I was a journalism 

student before I lapsed into the law and became a lawyer. But the 

idea that you would be targeted and surveilled, intimidated, or attempt to intimidate you from doing your job, and I know you are 

a skewer of power on an equal opportunity basis. I can tell, from 

some of your testimony, you are not picking sides, but you are trying to do your job and it is repugnant to me that Government 

should try to array its power against the freedom of the press to 

intimidate people like you. And I appreciate the fact that you are 

not intimidated. 

I told Senator Leahy, whom I partnered with on a number of 

Freedom of Information reforms, he and I are the Senate’s odd couple when it comes to that, people who ideologically are bookends, 

but who agree in the public’s right to know, and certainly we want 

to work with anybody who has got a good idea how we can make 

the system better. So I welcome that opportunity. 

I just want to say that Ms. Lynch appears to be an outstanding 

example of the American dream and somebody who has got a distinguished career as a United States Attorney. The challenge is— 

for her and for everybody who takes on a job as a member of the 

President’s Cabinet—is you are no longer just a prosecutor, you are 

somebody who is responsible for implementing policies, implementing policies of this President. And that has been the subject 

of a lot of discussion here today. And as I told Ms. Lynch privately, 

you have got two choices. You can take the job and implement the 

policies, or you can say, ‘‘Mr. President, I think what you are trying 

to do is improper, even illegal, unconstitutional’’ and quit, or not 

take the job in the first place. I do not see any middle ground on 

any of that. 

And while I have the same reaction to Ms. Lynch’s testimony 

that I had to Sarah Saldan ̃ a’s testimony, who was a United States 

Attorney from Dallas, Texas, whom Senator Kay Hutchison and I 

recommended to the President for appointment, and who is now 

the Director of Immigration and Customs Enforcement, I told her 

the same thing: You were a prosecutor, you have done an outstanding job, but now you are going to be in a policy position where 

you are going to be asked to implement policies that I disagree 

with and you may in fact disagree with. So you will be left with 

that Hobson’s Choice. 

So while I hear some of my colleagues talk about the independence of the Attorney General, well, it is perhaps some independence, but it really is the independence of one’s personal conviction 

not to cross that line and to be able to tell even somebody as powerful as the President of the United States ‘‘no’’ when he’s gone too 
152 

far. Professor Rosenkranz, I would be interested in your views on 

whether you think the Attorney General can truly be independent. 

Professor ROSENKRANZ. Well, I do not think ‘‘independence’’ is 

quite the right word. The Executive power is all vested in the 

President and that is as it should be. But the President has delegated to the Attorney General the function of advising him on legal 

issues. And that gets delegated again to the Office of Legal Counsel. And it is crucial for that function to be performed with as much 

integrity and independence as possible. 

At the end of the day, the President can disagree with the Attorney General, can overrule the Attorney General, can even fire the 

Attorney General. But it is essential for the Attorney General to 

say ‘‘no,’’ if necessary, to say, ‘‘Mr. President, I have explored every 

legal option, and this is something you cannot do. This violates the 

Constitution.’’ 

Senator CORNYN. Professor Turley, I know that Senator Grassley 

asked you questions about your representation of the United States 

House of Representative in a lawsuit. As you probably know, there 

is also a lawsuit pending in Brownsville, Texas, brought by 26 different States challenging the President’s Executive action that we 

have been discussing here this morning. And obviously, any lawsuit 

that is brought, the plaintiff has to establish standing to sue a 

claim of harm to them and not to the public generally. I remember 

that much of my law school. 

But my point is, the policies of the Federal Government have a 

direct and very negative impact on State and local governments 

and on citizens who live—particularly in border States like mine— 

where just not that long ago we had what the President himself 

called a humanitarian crisis. Tens of thousands of unaccompanied 

children coming from Central America drawn by the magnet of a 

promise that if you can make it here, you are going to be able to 

stay here, something that a lot of people would like to do. 

So I am not going to ask you to opine about the merits of that 

particular lawsuit. The judge there will probably make a decision 

here in the coming weeks, but do you see anything inappropriate 

about people who are aggrieved or suffering harm as a result of the 

actions by the President of the United States going to court and 

asking the court to make a decision? 

Professor TURLEY. No, I do not. But I have long been a critic of 

the current standing doctrines that have been developing over the 

years. I think Walter Dellinger put it best when we testified in the 

House recently together and he said that he had spent his career 

as a standing hawk. And I have spent my career as a standing 

dove in that sense. I actually believe that it is important to give 

access to the courts, particularly for States. I think it is rather absurd to say that States have effectively no skin in the game, that 

they have no injury when you have these Federal pronouncements 

essentially coming down and imposing considerable costs upon 

them. And I think that you really see it in a sharp relief when 

these States have trouble even being heard on the merits. 

And so when we look at all of these cases in terms of the effort 

to keep the merits from being heard, I think that has a really dysfunctional effect. I think that is one of the reasons we are seeing 

so much chaos—is the lack of definition in the separation of powers 
153 

and these constitutional rules. That can be rectified if we give 

greater access in the courts. 

Senator CORNYN. Well, of course, from my perspective, coming 

from Texas, I see the policies of the Federal Government particularly with regard to immigration as having a very direct and real 

impact on taxpayers and citizens who are forced to pay the price 

in terms of healthcare, education, law enforcement, and the like, 

and they really have no recourse because they do not have the ability to do that for ourselves, something that is committed in the 

Constitution to the Federal Government’s responsibility. And when 

the Federal Government does not do its job, the Federal Government does not necessarily feel the negative impacts; it is people 

who live in those places like Texas where it is very real. 

I want to just maybe ask one last question and not to get too far 

down in the legalese, but Ms. Attkisson, as a result of the investigations that have been done here in Congress on the Fast and Furious gunwalking debacle, we were met with a claim of executive 

privilege by the Attorney General that was then embraced by the 

President of the United States even though there was no indication 

whatsoever that the President or higher level people at the White 

House were actually involved in this. But, could you just describe 

the sort of obstacles that you have run into in the course of your 

investigation of the Fast and Furious scandal? 

Ms. ATTKISSON. Well, some of this, which is already sort of in the 

public record, when I began covering this story, the Justice Department employees put out internal emails that said the story was 

false and the whistleblowers were not telling the truth, which we 

now know it has been proven they were and the Justice Department has admitted it. But they put out a series of false implications and information along the way. They launched a campaign in 

my view of calling superiors, bosses, colleagues, social media using 

the bloggers that cooperate with them and work with them, in 

some cases directly, to disparage the reporting as if it were not 

true, repeating the false talking points in many cases. 

And it was, you know, an all-out effort to try to chill the reporting and to stop other reporters that might be pursuing it. You can 

see from internal emails that have recently been released—after a 

lawsuit has been filed—that were withheld under executive privilege, the extent of the lengths to which public affairs officials inside 

the Government went to try to stop this line of reporting on a story 

that they clearly thought was proving to be very damaging for 

them. 

Senator CORNYN. Thank you. I am advised that another roll call 

vote has been called on a series of votes that we are having on the 

floor of the Senate. So at the request of the Chairman, the Committee will stand in recess until 1:30. 

Thank you. 

[Whereupon, at 12:02 p.m., the Committee was recessed.] 

[Whereupon, at 1:41 p.m., the Committee reconvened.] 

Chairman GRASSLEY. I want to thank everybody for understanding the chaotic way the Senate is run when we have all these 

votes and we have this important issue before us of who should be 

the next Attorney General. So thank you all for your flexibility, as 

well as my Members. 
154 

Before we turn back to questions, I want to take a moment to 

comment on some criticism that we heard this morning from one 

Member on the Democratic side about some of the witnesses who 

are here today in this hearing. 

I will not speak for any other Member of the Committee, but I, 

for one, find it absolutely disgraceful how our Government has 

treated some of our fellow citizens; and the Department of Justice, 

under its current leadership, has failed—really failed—to meet 

some of its most basic responsibilities. 

Every single one of these witnesses, every one of them, speaks 

directly to Ms. Lynch’s nomination, because the question in my 

mind is, as I stated yesterday, will she take these flaws seriously? 

Will she fix them? And I note that it was not too long ago that 

Democrats agreed that it was perfectly appropriate to call witnesses to address what they viewed as problems at the Department. 

So I would note to the naysayer on the other side of the aisle, 

it was not beneath the dignity of the Committee when they were 

in charge, so why would it be now? And I would make reference 

to Judge Mukasey’s hearing before he was approved to be Attorney 

General. The other side called witness after witness who testified 

regarding issues that occurred at the debarment while he was serving as a Federal judge in the Southern District of New York. 

So, for instance, maybe it does not bother you that the IRS targeted conservatives and the Department does not seem to have 

taken the issues seriously, but it bothers me a great deal, and I 

want to know if Ms. Lynch is committed to tackling this problem 

and a range of others. 

Senator Sessions. 

Senator SESSIONS. Thank you, Mr. Chairman. 

And the Office of Attorney General is a big deal, and we need 

people who are able to take questions. The Department is entitled 

to be criticized and they are not perfect. 

And I love the Department of Justice. I served in it 15 years. I 

was an Assistant United States Attorney for over two, and United 

States Attorney for 12, and I loved that job and I loved the people 

in it, and I so admired this Department. And as I told Ms. Lynch 

in private conversation, you have to understand the reputation of 

this great Department is being eroded. The situation is not good in 

this country. It has got to be re-established. We are not going to 

allow this to become a political body that just conducts its work in 

haphazard, political, reactive ways. 

And I think Senator Hatch raised one of the questions that still 

galls me, and that is the failure to defend DOMA, the Defense of 

Marriage Act. That was a defensible act, and everybody that has 

ever been Attorney General or in such an office knows you have a 

duty to defend the laws passed by Congress. That is the Attorney 

General’s duty. 

Eric Holder and President Obama failed to do so, and it was 

shameful and disgraceful, an abandonment of the rule of law. And 

more and more people understand that. So I am not happy about 

what has happened to my Department of Justice. 

And Ms. Englebrecht, I think it should be investigating these 

matters. They have not yet contacted people in Alabama, and I spe-
155 

cifically requested it. Is this politics? Why not? Do you not go to 

the victims first—that is my experience—and get their story? 

Well, Professor Turley, I thank you for your comments on what 

is happening with regard to executive overreach and congressional 

weakness. I think it is a—I know we all—you know, I do not deny 

that I am a Republican conservative, but I believe this is not a— 

just a partisan matter. 

I mean, this is a huge erosion of constitutional powers of the 

United States Congress when the President of the United States, 

in contradiction to law, gives lawful status to people who are here 

unlawfully under the law, and not only that, creates a Social Security number for them, a photo ID, and an authorization to work 

and a right to participate in Social Security and Medicare. I mean, 

this is a stunning event, and we are in denial here, a lot of people, 

about the seriousness of it. 

So I wanted to ask you about your testimony in the House. You 

say this: ‘‘The center of gravity is shifting and that makes it unstable’’—and you are talking about the separation of powers—‘‘and 

within that system you have the rise of an u ̈ ber-presidency. There 

could be no greater danger for individual liberty, and I really think 

that the Framers would be horrified by that shift, because everything they have dedicated themselves to was creating this orbital 

balance, and we have lost it. It is not prosecutorial discretion to go 

into a law and say an entire category of people will no longer be 

subject to the law. That’s a legislative decision.’’ And you go on at 

great—that is just a portion of your—I think, correct dissection of 

the fundamental issues at stake. 

Would you—I guess you stand by that? Do you have any further 

comments you would like to make on that subject? 

Professor TURLEY. Well, I certainly do stand by it. The interesting thing about the Madisonian system that we have is that— 

is the three branches are effectively locked in an orbit, like three 

bodies. In fact, the interesting thing about Madison is he was fascinated by Newton and the types of ways that bodies would interact. And our system reflects that. 

And what happens is, if you have a tripartite system that is 

based on a principle of balance and then you introduce a dominant 

branch, it does not just fall out of kilter, it creates a very dangerous circumstance. 

There are many legitimate questions that come out of the Constitutional Convention, but the one thing that returns over and 

over again is the collective view of the Framers—federalist and 

anti-federalist—that the thing we have to fear most in this system 

is the rise of a concentration of power in one individual. And they 

knew a lot about it, because they had just gotten rid of a person 

who had that type of concentrated power. 

Senator SESSIONS. King George. 

Professor TURLEY. Exactly. 

Senator SESSIONS. And I had the Congressional Research Service 

look at that matter of fact, and they concluded that King George 

III—at the time of the American Revolution—was unable to enact 

or repeal any laws without the approval of Parliament. And this 

was the heritage we had from the British, and that is what part 

of the Revolution was about. It is a fundamental principle of the 
156 

formation of our Government that the Executive does not get to 

make laws. And I appreciate that. 

Professor Rosenkranz, briefly if you do not mind, do you agree 

with that, that we are at—I think Professor Turley once said—a 

tipping point in the question of Executive and legislative power, 

and it is a matter of grave importance to the republic? 

Professor ROSENKRANZ. I think it is certainly a matter of grave 

importance, and I think we have seen dramatic examples of executive overreach in the last several years, things that are unprecedented, things we have never seen before. 

Senator SESSIONS. Well, and do you agree with Professor Turley 

that one of the most significant overreaches is the President’s Executive actions with regard to amnesty? 

Professor ROSENKRANZ. Yes, I absolutely do. I think it is inconsistent with his obligation to ‘‘take care that the Laws be faithfully 

executed,’’ in particular, the Immigration and Nationality Act. 

Senator SESSIONS. Well, it seems to me that they are arguing 

that ‘‘take care that the laws be executed’’ means you have to do 

the best you can to enforce the laws under the circumstances, 

which has some legal basis. But in truth, don’t they go well beyond 

that and create whole new laws that are not even on the books? 

They are not authorized to do that, are they? 

Professor ROSENKRANZ. You are quite right. This action looks a 

lot more like a legislative action than like Executive discretion. 

Professor LEGOMSKY. Senator, may I jump in and comment on 

that, please? 

Senator SESSIONS. Yes. 

Professor LEGOMSKY. Thank you. We have heard a lot of very 

broad, general statements to the effect that separation of powers is 

important, which of course it is. That the President is not above 

the law, and of course he is not. But I have yet to hear any specific 

rebuttals to the points that I was making earlier about the specific 

sources of authority that Congress has provided. 

We do have this legislation which specifically says it is the responsibility of the Secretary of Homeland Security to establish ‘‘national immigration enforcement policies and priorities.’’ And not 

only that, but Congress has specifically directed the administration 

to prioritize three things: border security, national security, and 

the removal of criminal offenders—and those are precisely the priorities reflected in the recent Executive actions. 

Senator SESSIONS. Well, I appreciate that, but I do not agree. 

Congress laid out 500 pages of detailed law involving immigration. 

Many of them are mandatory, and they are not being followed. And 

we had the—yesterday, Professor Rosenkranz, I asked Ms. Lynch 

who has more right to a job in this country, a lawful immigrant 

who is here, a citizen, or someone who entered the country unlawfully? And her answer: I believe that the right and obligation to 

work is one that is shared by everyone in the country, regardless 

of how they came here. And certainly if someone is here, regardless 

of status, I would prefer they would be participating in the workplace. 

Do you think that contradicts immigration law of the United 

States? 
157 

Professor ROSENKRANZ. I do think this work authorization aspect 

of the President’s action is perhaps the most troubling aspect of it. 

The traditional view of prosecutorial discretion is inaction; it is the 

President deciding not to do something to someone. But this affirmative action of giving folks permits, that is something that is unheard of in traditional prosecutorial discretion. 

Senator SESSIONS. I agree with that. As a prosecutor, I know 

what prosecutorial discretion is. Everybody that has to deal in the 

real world uses that on a case-by-case basis. 

And I further asked her: I want to have a clear answer to this 

question, Ms. Lynch, do you believe the Executive action announced by the President on November 20th is legal and constitutional, yes or no? And Ms. Lynch said: As I have read the opinion, 

I believe it is, Senator. 

So we are being asked here to consider her nomination. Mr. 

Rosenkranz, when we decide who to vote for in the United States 

Senate to confirm somebody to the United States Cabinet, do you 

think it would be improper for the voting body, the United States 

Senate, to consider whether or not we believe that person will be 

an advocate for and a supporter of laws we think are unconstitutional and offend the policies Congress has established? Should we 

consider that when we decide who to vote for? 

Professor ROSENKRANZ. I think that is absolutely the sort of 

thing that you should be considering, yes. 

Senator SESSIONS. Well, I do too. And I believe Congress has a 

duty to defend its legitimate constitutional powers. It has several 

powers of its own. One of them is the power of the purse; one of 

them is the power of confirmations. 

I do not see any need for this Congress to confirm somebody to 

be the chief law enforcement officer of this Nation who is at that 

table insisting that she intends to execute a policy that is contrary 

to law and to what Congress desires and what the American people 

desire, and says that someone here unlawfully is as much entitled 

to a job in this country as somebody who is here lawfully. It is just 

beyond my comprehension. Are we through the looking glass? Can’t 

we see plain fact? 

So everybody wants to talk about the politics. Well, the President 

can do this; he’s shutting down Homeland Security. All these complaints. But the real question is fundamental: What are we going 

to do to defend our constitutional heritage? And what will this Congress be able to say to subsequent Congresses if we acquiesce in 

these kind of activities? I think it has permanent ramifications for 

the relationships of the branches of government. 

Mr. Chairman, you have got a meteoric rise there, I see. I am 

impressed. 

[Laughter.] 

Senator SESSIONS. But I have got to say, no one could handle it 

better. I am proud of you. 

[Laughter.] 

Senator SESSIONS. I am over my time. Thank you very much. 

Senator LEE [presiding]. Thank you very much, Senator Sessions. 

And thanks to all of you for joining us today. I deeply enjoyed your 

testimonies this morning before we had to go and vote, so thank 
158 

you for being here. Thank you for sharing with us your opinions, 

which are helpful and informative. 

I want to begin my remarks just by commenting on some concerns that I have heard expressed from my colleagues on the other 

side of the aisle. Some have suggested that what we really ought 

to be doing here should be focused almost exclusively on Ms. 

Lynch’s impeccable public service record and on the fact that she 

has served her country well, has served her clients well, that her 

re ́sume ́ is not just amazing, but that it is extraordinary—and it absolutely is; that we ought to be focused on those kinds of qualifications and that we ought not be focused on the Department of Justice and on some of the things that are going wrong with it. 

I have a somewhat different view of that in that I think both are 

relevant. For example, if we were running a company, if we were 

running a business and we were looking for a new CEO, if we were 

looking perhaps more appropriately for a general counsel, we would 

probably want to know what someone’s view of the organization as 

it existed might be. We would probably want to know whether that 

person acknowledged the problems within the company, whether 

they were legal problems or other types of problems that the company faced. 

So I think we are kidding ourselves if we suggest that we should 

not ask a nominee, someone who has been nominated to be the Attorney General of the United States, about problems existing within the U.S. Department of Justice. I think that is absolutely essential. And previous hearings in this Committee have borne that 

out—previous hearings in this Committee where, for example, this 

Committee reviewed Michael Mukasey after he was nominated to 

be the Attorney General of the United States in the last presidential administration. I think those hearings bore that out. 

Now, yesterday we heard from Ms. Lynch. I am very impressed 

with her legal abilities, with her analytical abilities. Very impressed with her re ́sume ́ and her strong record of public service. I 

was, however, very disappointed yesterday in the fact that in response to many hypothetical questions that were asked of her, we 

did not get a straightforward response, particularly when it comes 

to excesses of Executive power, particularly when it came to questions about prosecutorial discretion and so forth. 

For those of you who may be watching this hearing who are not 

burdened with a law degree, hypothetical questions are the bread 

and butter of the American legal education system. To a very significant degree, especially in appellate litigation, they are the bread 

and butter of the practice of law. 

One thing that I think all of us were taught in law school is that 

even when you do not want to answer a hypothetical question, even 

when it does not have an easy answer, you need to try to answer 

the question. If you do not, the judge will be very unhappy. I was 

disappointed yesterday that when I asked some questions of Ms. 

Lynch, she refused to give me a direct answer. 

In an attempt to try to elicit an answer from her, I made the hypothetical increasingly simpler, increasingly clearer, asking questions like the following: Imagine a hypothetical State in which 

there is a 55-mile-an-hour speed limit. Imagine that the public is 

crying out for relief from that law; there is pretty widespread 
159 

agreement that the speed limit ought to go up at least to 65, maybe 

to 75, and that within the legislature there is also widespread support for that. But the legislature cannot agree on the exact speed 

limit to which it ought to be increased. So the governor, seeing an 

opportunity, then says, well, I am just going to come out with a 

new policy, and my policy is going to say if you want to exceed the 

55-mile-an-hour speed limit, all you need to do is write to the governor’s office and I will send you back a permit, a permit that says 

for the next three years, while I am the governor, I will not give 

you a ticket if you drive faster than 55 miles an hour, as long as 

you do not go faster than 75. 

And I asked Ms. Lynch: Would that be appropriate? Would that 

be consistent with the rule of law? Would that be an appropriate 

exercise of prosecutorial discretion? 

I did not get what I perceived to be a direct, one-word answer 

out of that, nor did I get a five-word answer out of it. I did not get 

an answer that I thought was satisfactory. What I did get was a 

response that said: I would really need to know more about that. 

But the more facts I added to the hypothetical, the more assumptions I added to it, it did not seem to make a difference. 

So let me start by asking two of our professors who we have got 

here, Professor Turley and Professor Rosenkranz, is that, in your 

opinion, a difficult hypothetical question, such that if a student in 

either of your classes refused to answer that hypothetical or said 

it was too hard, would that be an appropriate answer that you 

would accept in your class? 

Professor TURLEY. No, I would not accept it. I think that it is a 

straightforward question. I also think the question of whether—or, 

what the rule would be for the defense of Federal statutes yesterday was also a question that should be able—that someone should 

be able to answer. 

I also commend you, Senator, on your view of confirmation hearings. Too often people talk about these hearings as sort of job interviews where you just look at the credentials. These hearings have 

a very significant role for separation of powers. As agencies become 

more independent, this is the moment that Congress tends to get 

answers to questions—is when you are looking at someone who will 

head the agency. And as I have said in my academic writings, it 

is not often enough that Senators use these hearings to try to rebalance or at least get answers from agencies, particularly one like 

the Department of Justice that has been so difficult to get material 

or answers from. 

Senator LEE. I appreciate your thoughtful response to that, and 

I want to get back to that in a moment. I have just been informed 

of an error. No sooner had I taken the temporary gavel in this 

Committee hearing than I discovered that Senator Blumenthal was 

actually supposed to be next at bat. So my apologies for the error. 

We are going to push pause on my questioning, and as soon as Senator Blumenthal is ready, we will turn the floor over to him, then 

we will resume with me in a moment. 

Senator Blumenthal. 

Senator BLUMENTHAL. I really appreciate that, Mr. Chairman, 

and—— 

Senator LEE. My apologies for the error. 
160 

Senator BLUMENTHAL [continuing]. Like our friend Senator Sessions, I applaud your meteoric rise—within limits. 

[Laughter.] 

Senator LEE. Thanks for the clarification. 

Senator BLUMENTHAL. But thank you for your courtesy and your 

deference. 

I would like to ask Professor Legomsky to expand, or explain a 

little bit, why the examples involving enforcement of the speed 

limit may not be really an exact or valid comparison to what we 

have here. 

Professor LEGOMSKY. Thank you, Senator. I think it was a fair 

hypothetical to throw out, but I definitely feel that there is no simple answer, mainly because there are two pieces of information we 

would certainly need. The big thing is that every statutory structure is different, and so the first thing I would want to know is 

what does the State statute say? How much discretion does it actually give the executive branch to set highway safety priorities? 

In the case of the Executive actions we are comparing it to, for 

example, again, as I mentioned earlier, Congress was very specific. 

It gave the Secretary the explicit authority to establish national 

priorities and policies, and in addition even indicated what those 

policies and priorities are. 

In addition to that, the other point I would make is that it matters what the particular priorities are. They have to be rational in 

one way or another. I think most Americans, if asked, would say 

the President’s priorities look like pretty much common sense to 

me. 

He’s prioritizing national security, border security, and the removal of criminal offenders over the destruction of American families, the destruction of long-term community ties by people who 

have otherwise lived peaceful and productive lives in the United 

States. And since you cannot do everything, because the resources 

are limited, those strike me as reasonable priorities. I would ask 

the same question with respect to the speed limits. It has the—— 

Senator BLUMENTHAL. So maybe the comparison would be more 

like the governor of Utah deciding that on a flat straightaway in 

the middle of the State that going over the 65-mile-an-hour speed 

limit would not be enforced unless the person was doing something 

in addition dangerously, like weaving back and forth, but in more 

congested areas, that the 65 speed limit would be enforced rigorously. 

In other words, defining other characteristics, not just saying we 

are not enforcing this law. 

Professor LEGOMSKY. I think that is an excellent point, Senator, 

with all respect. And that is very analogous to what the President 

has done with his recent Executive actions because, as you know, 

both the prosecutorial discretion memo and the recent DAPA memo 

draw all kinds of fine gradations. And that I think accommodates 

the point that you were just making. 

Senator BLUMENTHAL. And just to clarify, there has been a suggestion that the President’s exercise of discretion does not permit 

case-by-case decision-making. In other words, that it is a broad, 

across-the-board exception for all cases. But in fact, what the President’s doing is really an exercise of delegation of discretion, pros-
161 

ecutorial discretion, for case-by-case decision-making. Is that a fair 

characterization? 

Professor LEGOMSKY. I think that is a very fair characterization. 

I am thrilled to have the opportunity to answer that question, because that is something that has concerned me a great deal about 

some of the criticisms that have been offered. 

The Secretary’s memo says not once, not twice, but over and over 

again, that officers on the ground are instructed to look at the facts 

of each individual case, to evaluate them on an individualized 

basis, and specifically to exercise their discretion. Not only that, 

but as I mentioned this morning, the form that the USCIS adjudicators are required to use when they deny a DACA case lists the 

possible reasons for denial and it specifically lists exercise of discretion. 

There was one other thing I was going to mention, and that is 

that if anybody doubts that these instructions are actually being 

obeyed, more than 32,000 denials have already occurred on the 

merits. This does not count things that are rejected at the lockbox 

for a failure to pay a fee. These are actual denials on the merits. 

And I must say—and I hope this does not sound snarky, because 

I really do not mean it that way—that I worked at USCIS for two 

years, and I can assure everyone in this room that the USCIS adjudicators are not a corps of open-borders advocates who are looking 

for ways to systematically disobey the Secretary’s explicit instructions. They take their job seriously, and they do exercise the discretion the Secretary has told them to. 

Senator BLUMENTHAL. I appreciate that clarification. Of course, 

I would invite any of the other panel members to disagree if they 

wish to do so. But before my time expires, I would just like to clarify a point that was made earlier by my colleague and friend, Senator Sessions. 

Loretta Lynch, I think yesterday, clarified that she does not believe there is a Federal right to work for immigrants who are not 

in a lawful status. I believe that the record will show that she did 

clarify that point. 

And with that, if any of the other panelists want to comment on 

the question that I raised earlier, I would invite you to do so. 

And thank you for your explanation, Professor. 

Professor ROSENKRANZ. Well, Senator, I guess I would just say 

I think the proof is going to be in the pudding. But people who 

have looked at this, at the structure of the proposed policy—it appears that the case-by-case discretion that is built into this policy 

may well prove to be largely illusory. 

Senator BLUMENTHAL. And I think you have just really hit it on 

the head. You just really hit it on the head, that the proof will be 

in the pudding as to what actually is done—as it is for every prosecutor. As a U.S. Attorney, as a State Attorney General, if I had 

decided I was not going to enforce any law, rightly I would have 

been criticized. And the proof will be in the pudding. In the same 

way as I had to make prosecutorial decisions, as every former prosecutor, as a member of this panel—and at least one is here now— 

it will be in what the record shows. 

And we do not disagree if, in fact, the result is to make an 

across-the-board, wholesale, unexceptional rule; that would be 
162 

wrong. If the President decides as a matter of his discretion that 

across the board this—these laws are not going to be enforced, I 

agree with you. And when you say it is illusory, it will be—the 

proof will be in the pudding. 

Professor ROSENKRANZ. Well, Senator, I do think we can try to 

evaluate the proposed policy just on the terms of the proposal, and 

I think there is reason for skepticism, even as the policy has been 

proposed. But you are quite right; the facts will develop on the 

ground. 

Senator BLUMENTHAL. Thank you. Thank you, Mr. Chairman. 

Senator LEE. Thank you very much, Senator Blumenthal. 

Let us sort of pick up where we left off. I want to respond, first 

of all, to a couple of those points that I think are relevant. 

With respect to the straightaway in Utah, this is somewhat familiar to us. We have these salt flats in Utah where they take cars 

out that can go hundreds of miles an hour. I assume he means a 

straightaway on a national or State road. 

But there is a difference between deciding not to post a police officer there and issuing a permit saying you may exceed the speed 

limit and if you are caught going up to 75 miles an hour, even 

though that is in excess of the lawful posted speed limit, you will 

not get a ticket. There is a distinction there. 

There is, moreover, the fact that another hypothetical question 

that I brought up that I was disappointed that she did not agree 

to address head-on was one involving a hypothetical future President, maybe a Republican, maybe a Democrat, I do not know, but 

somebody who decides, you know what, I do not like our top marginal tax rates and I think it is morally wrong to enforce a marginal tax rate above 25 percent at the top marginal rate. So I am 

going to issue a series of letters to people, request them, saying you 

can pay at the 25 percent rate and no higher and nothing is going 

to happen to you. 

I agree, moreover, Professor Legomsky, that something more like 

the answer that you provided would have been helpful. I did not 

have even that and had she provided that answer, we could have 

then gotten into a deeper discussion about whether or not Congress 

has, in fact, done this or whether or not Congress did, in fact, 

based on analysis of the text, create something that could create 

an exception to allow many, many millions out of the, I do not 

know, 11 million or 12 million people who are estimated to be inside the United States illegally—did Congress really create something that could create an exception that potentially swallowed the 

rule or comes very, very close to it. 

Let us turn now to Professor Rosenkranz. You have not had a 

chance to chime in on this issue. Tell me what you think about my 

hypotheticals. What would you do if somebody in your class refused 

to answer it? 

Professor ROSENKRANZ. I was just going to say, Senator, I think 

your tax hypothetical is exactly right and indistinguishable from 

the current situation. I do not understand a principled way on 

which to distinguish those two cases. 

I would think a Republican President would be absolutely within 

his rights to cite this precedent and do as you suggest, if this were 

constitutional. I think it is not. 
163 

Professor TURLEY. Senator, I should clarify that we are more demanding at GW than at Georgetown in terms of how our students 

answer questions. 

[Laughter.] 

Professor TURLEY. So you have to put that into your consideration. 

Senator LEE. Good. Good. I hope you make that clear on your applications to law school, too, about how demanding you are. 

[Laughter.] 

Senator LEE. Everybody hates, especially in their first year of 

law school, to get called upon in class. Another point that I think 

deserves to be mentioned here is that within this framework there 

has been discussion of the fact that there remains some discretion 

on the part of our immigration enforcement authorities in this 

country, even after the November memorandum, even after DACA 

and DAPA and so forth. 

It is different than the way prosecutorial discretion normally 

works. The way prosecutorial discretion normally works is that you 

say we have got finite resources, we are not going to prosecute everybody. We are going to sometimes not do it because perhaps we 

think the circumstances of the case do not trigger any kind of 

moral outrage and we are just not going to go in that direction. 

There is also just the practical reality effect. You are not going 

to be able to get everybody. But that operates as an exception to 

the normal rule that if you break the law, you can expect that prosecution is at least some possibility. 

Whereas here, even to the extent you can say that there might 

be some discretion to decide not to enforce the law, they still make 

clear, these presidential—these Executive decisions still make relatively clear that they intend, as long as these criteria are satisfied, to not enforce the law, that they are not going to enforce the 

law, and they do issue documents saying you may work. 

So I refuse to accept this as just an act of either ordinary garden 

variety prosecutorial discretion and I also refuse to accept as an article of faith the fact that Congress would have ever—would ever 

or did, in fact, in this circumstance give so much discretion to the 

President of the United States, to the Attorney General, to the Secretary of Homeland Security so as to create a loophole that could 

swallow a very substantial chunk of the entire rule. 

This is just not consistent with the way the Constitution of the 

United States has historically functioned. 

I am getting back to how I opened. I do think that these are relevant questions. Yes, they are different in kind than the kinds of 

questions that deal with someone’s re ́sume ́ or someone’s professional qualifications, but we are looking here at a very specific kind 

of job, someone who is taking the role as Attorney General of the 

United States. 

We have seen—we have heard testimony from several of you 

today that this is a Department that has some real serious problems right now, problems that really make the hair stand up on the 

back of my neck sometimes, and that was reiterated today with 

some of the testimony that I heard. 

So I walked into that hearing yesterday wanting, hoping, frankly 

expecting to really like Ms. Lynch, and I do like her, and she met 
164 

with me in my office before the hearing and I liked her. I expected 

that I might be able to go either way on this, that I might well end 

up supporting her. 

I did not feel comfortable at the end of the day yesterday with 

the idea that I could vote for her because of the fact that I did not 

get answers to questions that I find very troubling. And I found it 

a somewhat cavalier answer, a somewhat cavalier response to suggest that she needed more facts when some of these were very 

basic questions. 

I see my time has expired. Do we have any Democrats here? Just 

making sure we did not have anybody in the anteroom. I am told 

that Senator Cruz is next at bat. 

Senator CRUZ. Thank you, Mr. Chairman. I want to thank each 

of the members of this panel, a very distinguished panel to come 

together and address some very important issues facing this country. 

I want to, at the outset, extend my apology that earlier in the 

hearing, the Senator from Rhode Island characterized the testimony that we have heard from witnesses on this panel as ‘‘conspiracy theories and sound bites for Fox News.’’ 

I do not think that is an accurate characterization of the learned 

testimony that this panel of witnesses has given to this panel and 

I apologize that you are subjected to having your character impugned in that manner by a United States Senator. 

I think this panel has focused on some very important issues, 

issues that need to be highlighted. I would note that Ms. 

Engelbrecht is a constituent of mine and a friend. I have long 

thought highly of your commitment to public engagement, your volunteer efforts to make a difference in our political discourse. 

I wanted to ask you, as a citizen who engaged in the political 

process, how did it make you feel to be targeted by the Government 

for persecution? 

Ms. ENGELBRECHT. It takes your breath away when you do not 

know quite where true north is and it begs the bigger question of 

what is this country really and where am I raising my children, 

where is their safe harbor. And that is why I think that this panel 

and these questions that we are discussing here today are critical. 

We have to understand what we have just come through, what we 

are still in, if we know where we want to head, and I hope we want 

to head in a decidedly different direction. 

Senator CRUZ. It was some decades ago that President Richard 

Nixon attempted to use the IRS to target his political enemies. He 

did not succeed in those attempts, but he was nonetheless roundly 

decried in a bipartisan manner. 

In this instance, the attempt, sadly, bore fruit and it has been 

well over a year since the news broke. 

Let me ask you, Ms. Engelbrecht. Do you feel, in the over a year 

that has transpired, do you feel that the truth has been uncovered 

and that justice has been served? 

Ms. ENGELBRECHT. Oh, no, absolutely not. Just the fact alone 

that I have still not been interviewed or met with nor have any of 

the other groups that I know of that were part of this targeting 

scandal, how you can continue on under this ruse that that is ever 

going to arrive at any kind of conclusion is mystifying to me. 
165 

We seem to continue to find more and more evidence and it continues to get further and further buried until I guess they hope 

people just forget, and that is why I keep showing up. I hope they 

do not forget. 

Senator CRUZ. Yesterday I asked Ms. Lynch if she thought it was 

appropriate to have the Department of Justice investigation into 

the IRS targeting and abuse of power led by a major Obama donor 

and Democratic donor who has given over $6,000 to President 

Obama and the Democratic Party, and she said she found nothing 

objectionable about that and she flat out refused to appoint a special prosecutor, much as Eric Holder has refused to appoint a special prosecutor. 

Let me ask you, as a citizen, do you have faith in the impartial 

administration of justice with an investigation being led by a major 

Democratic donor? 

Ms. ENGELBRECHT. I take so much exception to that appointment 

and to the way that that division has conducted itself that I, quite 

frankly, do not even know where to begin. 

Yes, I think that there is an awful lot wrong with it and it is 

just sad that they are not held to account to explain their actions. 

Professor ROSENKRANZ. Senator, I might just mention a constitutional dimension of this particular scandal. Discriminatory enforcement would have horrified the Framers, and this kind of discrimination would have horrified them more than any other: discrimination on the basis of politics. 

The single most corrosive thing that can happen in a democracy 

is for incumbents to use the levers of power to stifle their adversaries and entrench themselves. It casts doubt on everything that 

follows. 

So it really would have been their deepest, deepest concern constitutionally. 

Senator CRUZ. Thank you, Professor Rosenkranz. I certainly 

agree with that observation and I would note that discriminatory 

prosecution is often intended to have the effect and, in fact, has the 

effect of stifling further speech. 

Ms. Engelbrecht, have you heard concerns of other citizen activists that perhaps they should not speak out or get involved because 

they, too, might be targeted? 

Ms. ENGELBRECHT. Absolutely. The IRS is arguably the most 

feared agency in possibly the world and there are an awful lot of 

folks out there that just packed up their tent and stopped their little community organizations because they did not want to be a 

party to what they saw unfolding. 

Senator CRUZ. I have to say it was disappointing yesterday that 

Ms. Lynch also expressed no concern about the First Amendment 

rights of citizens, about the effect of the IRS targeting citizen 

speech, and about the effect of both bias and conflict of interest and 

the appearance of bias and conflict of interest on the impartial administration of justice. 

I want to shift to a different set of issues, which is the pattern 

of lawlessness of this administration, and I want to focus on a line 

of inquiry that we had yesterday with Ms. Lynch concerning prosecutorial discretion. I want to address this question to Professor 

Turley. 
166 

Let me say, Professor Turley, I commend you for having the 

courage to speak out about your concerns about the constitutional 

dimensions of the conduct of the Executive. I recognize that that 

has not been easy for you to speak out and I suspect you have 

heard more than a little grief in the faculty lounge for having done 

so. 

So let me say thank you for having the courage of your convictions. I wish we saw a lot more Members of this body with similar 

courage of convictions. 

Yesterday I asked Ms. Lynch if she agreed with the reasoning of 

the Office of Legal Counsel that under the theory of prosecutorial 

discretion, the administration could decline to enforce immigration 

laws against 4 million to 5 million people in a categorical manner 

and, beyond that, could affirmatively issue work authorizations, 

print documents that purport to authorize them to violate Federal 

law and work in direct contravention to Federal law. 

Ms. Lynch said that she found that OLC reasoning persuasive. 

Do you agree with that assessment? 

Professor TURLEY. I have serious problems with the reasoning for 

a couple of reasons of my own. First of all, much of what we do 

when we look at separation of powers is to look for limiting principles. We are in a system of government that is shared and limited in its nature. 

And part of the problem that I have with the administration’s position on things like immigration is that it lacks that type of limiting principle. 

To respond to my colleague, whom I have a great deal of respect 

for, I do not see this as a matter of discretion. First of all, I am 

not too sure if it really does mean what my friend said, why they 

bothered even saying it, because that would make it just a standard prosecutorial discretion of people who are boots on the ground. 

I do not know why you would even issue this if it meant what my 

friend has said. 

But, second, if you look at that letter from immigration faculty, 

as I did, once again, it raised this issue—what is the limiting principle? The letter seemed to suggest that as long as you are deporting one person, everything before that point is a matter of discretion. I cannot believe that could possibly be true. 

If that were true, then virtually any law could be shut down except for one case and you could claim you are just exercising discretion. 

I do criminal defense work when I am not teaching and I think 

if I went to a prosecutor and said, look, I would like you to basically give my guy a walk because this whole category that he is a 

member of really should not be subject to this type of enforcement, 

I think most would look at me like I had two heads. They certainly 

would not give me much help on that. 

There is a legitimate question of prosecutorial discretion, but this 

is not one that I recognize. But my concern really, as a constitutional scholar, is if this is prosecutorial discretion, I do not know 

what would not be prosecutorial discretion. 

And this notion that is developed from prosecutors, is not, obviously, in the Constitution, would swallow the obligations of the 

President. Any discretion that my friend talked about in terms of 
167 

setting policies and priorities has to be defined within the context 

given to the administration by Congress. 

Senator CRUZ. Professor Turley, I very much agree. And my time 

is expiring, but I want to ask one final question, which is I agree 

with you that the question is where do you draw the line. 

If the President can, through discretion, simply refuse to enforce 

a major portion of immigration laws as it concerns millions of individuals, what other laws can the President unilaterally refuse to 

enforce? 

And yesterday I asked Ms. Lynch about a couple of examples. 

Number one, could a subsequent President instruct the Secretary 

of the Treasury: ‘‘Do not collect taxes in excess of 25 percent’’; and, 

number two, I asked could a subsequent President instruct the Department of Labor: ‘‘You shall not enforce any of the Federal labor 

laws on the books against the State of Texas; the State of Texas 

is hereby immune from every Federal labor law that has ever been 

passed.’’ 

To both of those hypotheticals, Ms. Lynch refused to answer, refused to say what I think is the obvious constitutional answer, 

which is, of course, a President cannot do that. 

So the question I want to ask Professor Turley and I want to give 

an opportunity for everyone on this panel, anyone on this panel 

who wants to engage: Does anyone on this panel disagree that it 

would be unconstitutional for the President to refuse to enforce the 

tax laws or the labor laws or the environmental laws? And if you 

think that would be unconstitutional, does that not necessarily lead 

one to the conclusion that the President’s Executive amnesty is 

likewise unconstitutional? 

Professor Turley, we will start with you. 

Professor TURLEY. I believe those examples would be unconstitutional if the President claimed that authority. 

Professor LEGOMSKY. I actually agree with both Senator Cruz 

and Senator Lee that there is a difference between saying we simply will refrain from prosecuting and saying we will give you deferred action and a work permit. 

But on the specific question that you have asked just now, I do 

think that a decision to not enforce the entire immigration laws or 

not enforce the entire tax laws would clearly exceed the President’s 

legal authority. 

But that is not even close to what we have here. As I mentioned 

a moment ago, even after these new policies are fully operational, 

there will still remain in this country at least—and this is a conservative estimate— 6 million to 7 million undocumented immigrants to whom these policies do not apply, and the President still 

will have only enough resources to go after fewer than 400,000 of 

them, which means that nothing in these policies will prevent the 

President from continuing to enforce the law to the full extent that 

the resources that Congress provided him will allow. 

Senator CRUZ. Let me briefly ask a clarification on your example. 

The reason you said the Executive amnesty is constitutional is because there exists some substantial subset of people against whom 

the laws are enforced. Well, let us take the labor law example. If 

Texas were exempted, there would be 49 States, a whole bunch of 
168 

people you could enforce the labor laws against. So would that satisfy the test you have just put forth? 

Professor LEGOMSKY. If I understood the hypothetical correctly—— 

Senator CRUZ. Hang on one second. In the interest of time, after 

he answers this one, we are going to have to turn to Senator 

Franken. We have got votes coming up, so we have got to keep 

moving. Thank you. 

Professor LEGOMSKY. I just wanted to make sure I understood 

the hypothetical correctly. And your hypothetical is the President 

enforcing the law in one State, but not in the other States or vice 

versa. 

One of the limitations I think is that the particular priorities 

have to be rational. I think the discrimination against the residents 

of one State would fail that test. 

Along similar lines, my friend, Mr. Turley, says that the law professor’s letter was making the claim that as long as even one person is deported, then it is okay. There was no such claim in the 

letter, which I know very well. 

There was certainly no implication in the letter that all you 

would have to do is deport one. The point the letter makes is that 

the President is fully spending all the enforcement resources that 

Congress has provided. The President is not a magician. He cannot 

spend resources he does not have, and that is why that example 

is very different from the ones that have been hypothesized. 

Senator CRUZ. Thank you very much. 

Mr. Franken. 

Senator FRANKEN. Thank you. I want to thank all the witnesses 

for being here today and for your testimony and your patience. 

I just want to talk to some of you who know Ms. Lynch. Mr. Barlow, thank you for your service to the Justice Department and for 

coming here today to speak on behalf of Ms. Lynch. 

As you know, the Attorney General must be both an excellent 

leader and an open-minded collaborator. The Attorney General 

must develop and coordinate policies among the various components of the Justice Department with other agencies. 

Based on your experience serving with Ms. Lynch on the Attorney General’s Advisory Committee, how would you characterize her 

leadership style? 

Mr. BARLOW. She is a leader among leaders, Senator. I would describe her style as being inclusive, thoughtful, careful, deliberative, 

and she is someone who is seeking consensus wherever it may be 

found. 

I have also seen her recognize that occasionally the consensus 

cannot be reached and, when it could not be reached, making sure 

that there was space for dissent so that all parts of the issue could 

be fully examined. 

Senator FRANKEN. Thank you. 

Ms. Fedarcyk, thank you for your service to the FBI and for 

being here today. You served with the FBI’s New York office for 25 

years and have worked with many U.S. Attorneys. In your testimony, you noted a wide range of cases that you worked on with 

Ms. Lynch and the window that this gave you into her legal acumen, her leadership style, her character. 
169 

How would you rate Ms. Lynch’s performance as U.S. Attorney 

and could you elaborate on the skills that you have observed that 

would speak to her ability to serve in the role of Attorney General? 

Ms. FEDARCYK. Thank you, Senator. And just by way of clarification, I was in New York for 2 years before I retired and during 

those 2 years had the opportunity to work with Loretta in her capacity as the United States Attorney. 

Senator FRANKEN. Oh, sorry. 

Ms. FEDARCYK. We undertook any range of significant and complex investigations ranging from national security through the complex financial frauds, all the way through the panoply of the criminal violations that include violent gangs and other types of violent 

offenders. 

I had a very close opportunity to observe Loretta during the 

course of these investigations, but also beyond the conduct of making decisions about cases and timelines for take downs and the 

operational considerations, although those were extraordinarily important, clearly, because the symbiotic relationship is such that the 

New York office and, I would argue, the FBI writ large cannot do 

its job without that kind of symbiotic relationship with the U.S. Attorneys. 

So my observation of Loretta in that role was that she led from 

the front. She instilled qualities within her office, gave them the 

resources, the opportunities to take on and grow themselves as 

leaders within the office. But she was not afraid to become intimately involved because she wanted to know what was going on 

with the cases and not to micromanage. 

And I think that is one quality of a true leader, to empower her 

people to do a great job by backing off a little bit, but still staying 

involved with the cases and knowing what is going on within her 

office. 

I think one of the other characteristics that I noticed that I do 

not think I see a lot in executives is her ability to understand 

vertical organization, but at the same time develop horizontal relationships, particularly within the community. 

So in a very structured environment, she was very comfortable 

whether she was talking with an executive or all the way down to, 

let us say, a brick agent or a line police officer; the ability to talk 

to individuals, make them feel immediately at ease, make them 

feel that they are actually contributing and that she is listening to 

what she is talking about and what they are talking about. 

Likewise, when we talk about the horizontal view across a community, she was very engaged with not just the law enforcement 

community from local, State, Tribal, Federal, but also the communities that we were serving. And, again, that leadership of leading 

her office to understand the concerns of these communities was integral to supporting the successes of the offices. 

So I think she brings a lot of—— 

Senator FRANKEN. Let me ask you about that, because that is 

about community engagement. So let me ask you about that style. 

I think that is very important with the U.S. Attorney. I see how 

important it is in Minnesota. 

What was her style of engagement in terms of the community? 
170 

Ms. FEDARCYK. Very engaged and someone who was not afraid 

to engage many different community groups and have very frank 

discussions about concerns and issues, giving everybody an opportunity to provide input, and that I think is incredibly important because understanding the community you serve is part and parcel 

of representing the system of justice and making sure that if there 

are disparities in those communities, if there are issues in those 

communities, that you understand what they are so that you can 

help drive a change to make the system of justice better in addressing those concerns. 

With respect to the law enforcement community, she was actively 

involved in many of the task forces, very supportive of them as a 

concept that brought departments and agencies, large and small, 

together to tackle entrenched crime issues, terrorism, and would 

personally attend executive briefings. 

And her philosophy was that we were all in this together, that 

it was incumbent on law enforcement across the board to work 

shoulder-to-shoulder to really protect this country and to tackle 

issues that no one agency could do by themselves. 

So I personally thought that her leadership skills were outstanding. I viewed her as somebody that I could go to for sound 

judgment, as a sounding board, and receive sage and reasoned advice in return. 

Senator FRANKEN. Reverend Newsome, I am getting the picture 

of a very impressive leader with those kinds of impressive skills. 

But you came to testify today I think on where that comes from 

in a moral sense. 

Can you speak to where that comes from in terms of her compassion and—— 

Reverend NEWSOME. Well, I think I can, Senator. Thank you, 

Senator, for the opportunity. Let me try to be as succinct about this 

as I possibly can. 

Senator Sessions, glad to be reunited with you. We worked on a 

church-burning project some years ago when I was Dean of the 

Howard School of Divinity, very effectively. Thank you. 

But the word impressive does not get it. She is a rare individual. 

I study people from the standpoint of a religious biographical perspective. So that when you begin to look at what I might call at 

this point in time the genius of character, you try to sense if it has 

come down through the generations. 

I mentioned in my written statement that her grandfather was 

a Baptist minister, but three grandfathers before then, and they 

served their congregations and their communities with daring, with 

distinction, and, above all, wisdom, and that wisdom was borne of 

a depth of insight into human nature as to how leaders should best 

behave and be effective in garnering the following, and leading in 

a way that works for the good of all. 

Loretta, and I have seen this throughout the years, is the kind 

of person who can relate transparently enough to inspire trust and 

confidence. So that you do not have to work a long time wondering 

if what you are seeing is truly honest. 

And this plays its way out in the sense that she is a due-diligence kind of person. I understand the hypothetical kinds of issues 

and questions, but my own background as a scholar would say, 
171 

well, at best, a hypothetical only approximates a real-life situation 

and in a real-life situation, character really comes forth when you 

do the kind of due diligence that puts you in a position to make 

the quality of judgments that makes for a positive difference. 

This is in her bloodline. This is in her spiritual DNA. I do not 

know if her father is still in the room, but I can tell you that it 

has played out in the way that he has provided leadership in North 

Carolina. Whether he had to stand alone or stand with 1,000, it 

was the truth, the truth, the right thing and the right thing, and 

character and character and character over again. 

I do not want to trivialize this process by using a sports metaphor, but I am an old broken-down football player that played at 

Duke when we were still winning games. 

Senator FRANKEN. That was quite a while ago. 

[Laughter.] 

Reverend NEWSOME. Quite a while ago. But we tend to think in 

terms of a franchise kind of player. She is an exceptional human 

being and I cannot avoid the sense of passion I feel right now for 

the good that would come to our Nation in having a person who 

would be good, absolutely superb, and even healing our Nation 

through the responsible discharge of her duties as the U.S. Attorney General. 

Senator FRANKEN. So you would be for her being confirmed. 

[Laughter.] 

Reverend NEWSOME. I will be mildly for her, yes. 

Senator FRANKEN. Although you cheapened it with a sports metaphor, it was powerful testimony. 

[Laughter.] 

Senator FRANKEN. Thank you. Thank you, Mr. Chairman. 

Senator CRUZ. Thank you, Senator Franken. 

Senator Sessions. 

Senator SESSIONS. Thank you for calling for us. A lot of people 

we have disagreements with can be wonderful people and I do 

sense that about her and I told her that—well, I was talking about 

her, I believe—but she was raised right, I can tell that. 

So sometimes you just get caught up in things. Issues become big 

and an individual becomes a focus of the controversy. 

Sheriff Clarke, thank you for your leadership. Now, I had here 

right in front of me—and I have it now—a piece put out just some 

time ago saying that there were 36,000 convicted criminal aliens in 

detention that were released and that group of people convicted 

were convicted of crimes such as homicide, sexual assault, kidnaping, and aggravated assault. 

And I notice one individual was just arrested for murdering a 21- 

year-old convenience store clerk in Mesa, Arizona, on January 22nd 

of this year after having been in ICE custody on a drug and gangrelated felony burglary conviction, but was released on bond after 

a few days. 

If you release 36,000 people who have been convicted of crimes, 

based on your experience in law enforcement, can’t we expect that 

that group is likely to commit the kind of crimes I just mentioned? 

Isn’t that pretty predictable? 

Sheriff CLARKE. Thank you, Senator. Yes, if for no other reason 

because of the recidivist nature of crime regardless of what demo-
172 

graphic is involved with it. I would say releasing 3,600 into communities that do not have the support structures is, at best, dangerous policy. 

Like I said, they do not have the support structures in place. And 

then the thing about the—when we start talking about the criminal aliens, the first thing they are going to do is flee. That is the 

first thing they are going to do. 

My experience in working with ICE—we do not enforce immigration law, but we do cooperate with Federal agencies in the pursuit 

of justice like we do any other Federal agency. But they come with 

many aliases, difficult and it takes a long time to identify them, 

but they realize, the individual that is released on bail, they realize 

that it is in their best interest to flee. And then they turn up in 

another community—I will just speak to Milwaukee County. 

We have had those same horror-type stories of individuals who 

have been brought to ICE’s attention and, for whatever reason, 

they decided not to put a detainer on them or had a detainer and 

released it; the individual is let out on bail and then goes on to engage in an even more heinous act. 

And, sure, the easy ones, Senator, are the ones who are involved 

with murder, sexual assault. Those folks are probably not going to 

get out on bail. We do not have to worry too much about them. 

Senator SESSIONS. Well, as this report indicated, a number of 

them, like 193 of the 36,000 that were released included—were 

homicide convictions. So you are right to assume that serious 

crimes—it would be almost unbelievable that they were being released, but data shows that a lot of them are the most serious 

crimes—are being released. 

Sheriff CLARKE. Yes. I think sometimes some of the reports or 

some of the rhetoric used in a discussion is on the lenient side. 

They call them low-level offenders, but some of the stuff that I see 

that they have been involved with are not literally low-level offenders. 

Senator SESSIONS. Well, Sheriff Clarke, let me just say you are 

responsible for protection of people in Milwaukee and that area and 

the Federal statute says someone convicted of a serious felony shall 

be deported. It does not say that ICE has an opinion about this, 

it says they shall be deported. Does it make your life more difficult, 

does it place the people of Milwaukee at greater risk if the officials 

are not following the law and deporting people who have been convicted of serious crimes? 

Sheriff CLARKE. Sure it does. In my limited knowledge of legal 

language, ‘‘shall’’ is not discretionary. So I find that problematic 

when that happens. 

Senator SESSIONS. So do you not think it is common sense and 

just that if a person’s in the country illegally and on top of that 

they commit a serious crime, they should be deported? 

Sheriff CLARKE. Yes. I think it is beyond common sense. I think 

we have a duty, a duty to protect people. 

Senator SESSIONS. And the law, of course, requires that. It is just 

too often not being followed in an effective way. 

Professor LEGOMSKY. Senator, may I just add that I think—— 

Senator SESSIONS. Yes. 
173 

Professor LEGOMSKY. Sheriff Clarke has just made one of the 

strongest arguments in favor of the President’s Executive actions. 

The main point of the new prosecutorial priorities is to be able to 

focus resources on precisely the individuals whom he is describing, 

and hopefully it will have that effect. 

I do not know in this case why the State authorities released a 

person. If it was while the person was pending trial, they must 

have thought that it is safe to release them. So I am not sure why 

the onus is shifting to ICE, but that aside, this is what the administration is trying to accomplish. 

Senator SESSIONS. Well, this is not a matter of discretion, Mr. 

Legomsky. I know you served with the USCIS. This part of it is 

mandatory, the point I am raising. We are entering into an utterly 

lawless system here. Nothing Congress passes, apparently, has the 

ability to be effectuated in reality. That is the problem. 

Congress will pass things and they do not happen. We mandated 

a fence, 700 miles. It has not happened. We said there should be 

an exit/entry visa, which the 9/11 Commission has hammered us 

for not completing as law required, and it still has not been completed. 

Are you aware that the group that you worked with, the Federation of Government Employees, who represent USCIS, has opposed 

this bill vigorously? 

Professor LEGOMSKY. Yes. 

Senator SESSIONS. And say it will not work and is not helpful. 

Professor LEGOMSKY. Well, this is the very same group whom 

some people are suggesting will refuse to obey the Secretary’s instruction to exercise discretion and will instead rubberstamp these 

cases. So I think—— 

Senator SESSIONS. Well, let me ask you about discretion. That is 

Professor Eastman. In his testimony before the House on discretion, he says there is nothing in the memo to suggest that immigration officials can do anything other than grant deferred action to 

those meeting the defined eligibility criteria. 

Indeed, the overpowering tone of the memo is one of woe to line 

immigration officers who do not act as the memo tells them they 

should, a point that has been admitted by the Department of 

Homeland Security officials in testimony before the House. 

In the House, Chairman Goodlatte of the House Judiciary Committee, said, ‘‘DHS has admitted to the Judiciary Committee if an 

alien applies and meets the DACA eligibility criteria, they will receive deferred action. In reality, the immigration officials do not 

have discretion to deny DACA applications if the applicants meet 

these criteria.’’ I think, Professor Rosenkranz, you indicated it 

might be an illusory thing here. Isn’t that proof that really it is illusory discretion? In fact, it is mandatory. 

Professor ROSENKRANZ. Absolutely. 

Professor LEGOMSKY. Well, the memo says precisely the opposite, 

Senator, with respect. It says that these are cases that ‘‘present no 

other factors that, in the exercise of discretion, make the grant of 

deferred action inappropriate.’’ At the very end there is even more 

explicit wording: ‘‘the ultimate judgment as to whether an immigrant is granted deferred action will be determined on a case-bycase basis.’’ So the memo refers explicitly to discretion. 
174 

Professor ROSENKRANZ. Senator—— 

Senator SESSIONS. Well, we said we are going to do an exit/entry 

visa and it is not. The truth is that officials are going to approve 

the people if it meets the DACA—meets the memorandum standards. 

Professor ROSENKRANZ. The important thing to notice is that it 

flips the presumption, right? The presumption is that the law will 

not be enforced and somebody might have discretion to enforce the 

law in a particular case, but this is turning prosecutorial discretion 

on its head. The presumption in general is that law will be enforced and discretion will be used to create an exception to the rule. 

Here, the enforcement is clearly going to be the exception to the 

rule, if it happens at all. 

Professor LEGOMSKY. Except that the entire deferred action 

memo is the exception, right? The norm is that you do get deported 

if you fall within one of the deportability grounds. This memo lays 

out an exception: If you meet the following criteria, then USCIS officials would have the discretion, on a case-by-case basis, to defer 

your—— 

Senator SESSIONS. Well, just briefly, if the people do not meet the 

standards and somebody does get turned down—well, the projection is a little less than half the people, 5 million out of 11. What 

if somebody is turned down, are they going to be deported? 

Professor LEGOMSKY. Generally, I would think, yes. If they bring 

their presence to the attention of the enforcement authorities and 

if it fits within the prosecutorial discretion priorities, then I cannot 

think of any reason that ICE would not—— 

Senator SESSIONS. Well, they are not going to be deported. The 

only ones that are being deported today is, as I think you know, 

people who commit serious crimes, and we find out even they are 

not being deported. We have reached a lawless stage in immigration and the American people are not happy about it. They have 

a right to demand that their laws be enforced and the President’s 

actions are some of the most dramatic steps to violate plain law 

that I have ever seen in my experience. 

Thank you, Mr. Chairman. My time is over. You are kind. 

Senator LEE. Thank you, Senator Sessions. 

As we were preparing for yesterday’s hearing, I found a quote 

that I would like to talk about in a minute for a moment, a quote 

from a speech given by Ms. Lynch about a year ago in which she 

made the following statement. It caught my attention because it 

raises some alarm bells. 

It says: ‘‘Fifty years after the March on Washington, 50 years 

after the civil rights movement, we stand in this country at a time 

when we see people trying to take back so much of what Dr. King 

fought for. We stand in this country. People try and take over the 

Statehouse and reverse the goals that have been made in voting in 

this country. But I’m proud to tell you that the Department of Justice has looked at these laws and looked at what’s happening in the 

Deep South, and in my home state of North Carolina, has brought 

lawsuits against those voting rights changes that seek to limit our 

ability to stand up and exercise our rights as citizens.’’ 

When I read this, for obvious reasons, I immediately became concerned. I was wondering what it was that she was talking about, 
175 

what laws there were out there, what legacy of the civil rights era 

that was trying to be overturned. Ms. Engelbrecht, can you guess 

as to what she might have been talking about referring specifically 

to her home State of North Carolina? 

Ms. ENGELBRECHT. I cannot. And I reviewed the same comments 

that you referred to, which was, I think, taken from a speech in 

February out in Los Angeles. What continues to boggle the mind 

is that the vast majority of Americans want, understand, and appreciate the need to try to safeguard our elections. The thought 

that asking a voter to prove they are who they say they are is 

somehow discriminatory just—you know, it seems to me to be much 

more about pushing a political agenda than protecting the people. 

Senator LEE. You know, I wondered about this so I asked one of 

my colleagues who was on this Committee with me, Senator Thom 

Tillis from North Carolina, who as it turns out at the time she gave 

this speech was the Speaker of the House in North Carolina. 

I asked him what this was about, what she was referring to. 

These are pretty bold statements and if someone is going to accuse 

a State legislative body of moving to undo the legacy of Dr. Martin 

Luther King, of trying deliberately to diminish voting rights in this 

country, I feel like we need to know what that is. 

He suggested to me that it might have been directed toward a 

voter ID law that was passed by the State of North Carolina at the 

time that Senator Tillis was the Speaker of the North Carolina 

House of Representatives. I asked him about this law a little bit 

and he told me that when it came forward there was concern about 

voter fraud, about the risk of voter fraud in North Carolina. 

He said, look, I want to find the most fair statute that there is 

on the books anywhere in this country and I want to make it that 

much fairer. I want to put the belt and the suspenders, and another belt and another set of suspenders, on it to make sure that 

no one’s voting rights are diminished at all. 

So they started with the model of an Indiana statute, a model 

that was itself quite cautious. It continues to allow no-excuse absentee voting without an ID, it accommodates individuals with religious objections to photography, providing them with a way, an alternative means, of proving their identity, pays for an ID issued by 

the Department of Motor Vehicles without any charge to the voter. 

So they started with that as the model and then they added a 

whole bunch of additional protections that neither Indiana, nor any 

other State that has adopted any law like this; it had a two-year 

ramp-up period, a special North Carolina program designed to 

allow home-bound individuals to get a photo ID, another Government program that not only pays for the Government-issued ID, 

but also allows for documents for a register of deeds or the Department of Health and Human Services that can be used to verify ID. 

It establishes a million-dollar trust fund to reach out to those people who might not have IDs, and this list goes on and on and on. 

This is the most cautious, carefully protective statutory scheme 

that I can imagine in this area. 

If in fact this was the target of this description, do you think it 

is fair to describe this legislation that way, as an attempt to undo 

the gains of the civil rights movement and the gains of Martin Lu-
176 

ther King and those who fought with him valiantly to protect voter 

rights in America? 

Ms. ENGELBRECHT. Absolutely not. I do not think that it is appropriate or fair, and if that is truly the belief that is held, we need 

to understand what is behind that because it belies anything that 

you have just read in making sense. 

Senator LEE. With your involvement in efforts to prevent voter 

fraud, what would you say to those who have made the argument 

that there is no such thing as voter fraud and therefore we need 

not be concerned about it, and that the only reason somebody could 

push for it would be because they subjectively want to undermine 

voting rights? What would you response to that be? 

Ms. ENGELBRECHT. I mean, I think that our history is replete 

with examples of voter fraud and I think that it is something that 

we should take very seriously because you do not need a whole lot 

of fraud. You just need a little bit in the right places. And the less 

that you create a system that secures everyone’s vote, the more 

open it is, obviously, to these kinds of manipulations that just further divide our country in ways that serve no purpose. 

Senator LEE. Thank you. 

Sheriff Clarke, I wanted to talk to you a minute about the relationship between the Department of Justice and law enforcement 

right now. How would you describe the relationship between law 

enforcement and the Department of Justice? 

Sheriff CLARKE. Thank you, Senator. Frayed. I am not going to 

engage in hyperbole or exaggerate, but we cannot have even a 

frayed relationship. The mission statement that I cited early on, 

you know, talks about partnerships and, just from the Milwaukee 

experience, anyway, we need the help of the U.S. Attorneys’ Office 

in the Eastern District of Wisconsin to deal with instances of the 

violent crime, the repeat offender. 

We are not talking about the first-time offender, we are not talking about people who may deserve some sort of remedy for some 

transgression they made. I talked about the 10-year-old, Sierra 

Guyton. Both of those individuals, felons, convicted felons. The prohibition of not being able to be armed—or a firearm anyway—as 

a convicted felon, means nothing to them. 

The State has not shown a willingness at the State level. I think 

it is a legitimate question to ask, What are they doing at the State 

level with some of these cases? Too much leniency. I will tell you 

one thing from a deterrent standpoint, Senator: Criminals fear the 

Federal system; they just do. 

So if we were to have, for instance, cases of—it was very creative 

legally, a case in Milwaukee where the—Jim Santelle, the Assistant U.S. Attorney, who we do have a great relationship with, used 

the Hobbs Act to charge career hold-up men who have gone on a 

robbery spree. One of them I believe recently received a 15-year 

sentence. Plus, they used a firearm in the commission of those 

crimes. 

But they do not have to charge all of them. I know they do not 

have—I heard about the prosecutorial discretion. But I think if we 

take this elephant and try to eat it one spoonful at a time—the elephant being violent crime that is ravaging all kinds of urban centers in America—but if we take the worst offenders and subject 
177 

them to Federal sanctions, that is going to first of all ensure—get 

a better chance at a conviction and you have got a better chance 

at a more lengthy sentence for the person who just has not cared, 

if you will, about any State sanctions that have been applied. 

So that is the sort of help we need from the Federal prosecutor’s 

office in Milwaukee. Straw purchases is another one. I will not 

really rap the U.S. Attorney’s Office for straw purchases, but law 

enforcement is really not bringing in the cases. The ones they are, 

they are dealing with very well. But the armed violent offender is 

the one I would like to see go the Federal route. 

Senator LEE. Thank you. 

Today we have heard from a number of witnesses who have testified as to Ms. Lynch’s qualifications, which are themselves impressive. It is great in particular to see my friend David Barlow. I know 

of no finer lawyer or human being any more than David, so it is 

always great to see you. Each of you have put a lot of thought into 

your testimonies. I appreciate both your written testimonies and 

what you have spoken to us today. 

The record for this hearing will remain open for one week for 

Members to submit written questions for the record. 

The hearing will be adjourned. Thank you. 

[Whereupon, at 3:04 p.m., the hearing was adjourned.] 

[Additional material submitted for the record for Day 1 and for 

Day 2 follows.] 

(179) 

A P P E N D I X 

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PREPARED STATEMENT OF REV. DR. CLARENCE G. NEWSOME
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ADDITIONAL SUBMISSIONS FOR THE RECORD

A list of material and links can be found below for Submissions for the Record 

not printed due to voluminous nature, previously printed by an agency of the 

Federal Government, or other criteria determined by the Committee: 

Attorney General’s Advisory Committee, December 19, 2014, working draft 

agenda—redacted, 

Part 1: 

https://www.judiciary.senate.gov/imo/media/doc/AGAC%20(12-19- 

2014)lPart1.pdf 

Part 2: 

https://www.judiciary.senate.gov/imo/media/doc/AGAC%20(12-19- 

2014)lPart2.pdf 

Part 3: 

https://www.judiciary.senate.gov/imo/media/doc/AGAC%20(12-19- 

2014)lPart3.pdf 

Part 4: 

https://www.judiciary.senate.gov/imo/media/doc/AGAC%20(12-19- 

2014)lPart4.pdf 

Part 5: 

https://www.judiciary.senate.gov/imo/media/doc/AGAC%20(12-19- 

2014)lPart5.pdf 

Legal and Administrative Management Evaluation, United States Attorney’s 

Office, Eastern District of New York, January 23, 2015, draft report— 

redacted: 

https://www.judiciary.senate.gov/imo/media/doc/EARSlRedacted 

%20FINAL.pdf 

Æ