```

[Senate Hearing 114-771]
[From the U.S. Government Publishing Office]

                                                        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

                 [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
              
              
              
                       U.S. GOVERNMENT PUBLISHING OFFICE
                
25-638 PDF                       WASHINGTON: 2018              
              

         Printed for the use of the Committee on the Judiciary

                       COMMITTEE ON THE JUDICIARY

                  CHARLES E. GRASSLEY, Iowa, Chairman
ORRIN G. HATCH, Utah                 PATRICK J. LEAHY, Vermont,       
JEFF SESSIONS, Alabama                   Ranking Member
LINDSEY O. GRAHAM, South Carolina    DIANNE FEINSTEIN, California
JOHN CORNYN, Texas                   CHARLES E. SCHUMER, New York
MICHAEL S. LEE, Utah                 RICHARD J. DURBIN, Illinois
TED CRUZ, Texas                      SHELDON WHITEHOUSE, Rhode Island
JEFF FLAKE, Arizona                  AMY KLOBUCHAR, Minnesota
DAVID VITTER, Louisiana              AL FRANKEN, Minnesota
DAVID PERDUE, Georgia                CHRISTOPHER A. COONS, Delaware
THOM TILLIS, North Carolina          RICHARD BLUMENTHAL, Connecticut

            Kolan L. Davis, Chief Counsel and Staff Director
      Kristine Lucius, Democratic Chief Counsel and Staff Director
      
      
                            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

                               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

 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 
  Estee 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

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

                 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)_Part1.pdf............................................  1036
  Part 2:
    https://www.judiciary.senate.gov/imo/media/doc/AGAC%20(12-19-
      2014)_Part2.pdf............................................  1036
  Part 3:
    https://www.judiciary.senate.gov/imo/media/doc/AGAC%20(12-19-
      2014)_Part3.pdf............................................  1036
  Part 4:
    https://www.judiciary.senate.gov/imo/media/doc/AGAC%20(12-19-
      2014)_Part4.pdf............................................  1036
  Part 5:
    https://www.judiciary.senate.gov/imo/media/doc/AGAC%20(12-19-
      2014)_Part5.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

 
                      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 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.
    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.
    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 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 
Attorney 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 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.
    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.
    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 America 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 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 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.
    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.
    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 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.
    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.
    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.
    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 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.
    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.
    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 ever-changing 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.
    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 provision 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.
    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?
    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?
    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 seeking 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 preventing 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.
    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 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?
    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 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.
    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 
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 
case-by-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 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 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 finding 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.
    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.
    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.
    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.
    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.
    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, 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 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 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 offense 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 
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 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.
    [Laughter.]
    Senator Klobuchar. I think everyone knows you have an 
impressive resume 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.
    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 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 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. Attorney 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 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.
    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?
    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.
    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, ``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.
    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 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.
    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, 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.
    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 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.
    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.
    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?
    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 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 
responsibility 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 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 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.
    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.
    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.
    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 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.
    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.
    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 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.
    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.
    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?
    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 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 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, 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 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 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-by-contract.
    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 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 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 Al-Qaeda 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.
    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 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-
to-last 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 riddled 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?
    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 implement 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 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 Attorney 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 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.
    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 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, which is: The credit rating 
agencies knew that if they gave a triple-A 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.
    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, 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 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?
    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.
    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 litigation 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.
    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.
    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?
    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.
    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 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 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, well-researched, 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.
    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 always 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 re-prosecuting 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.
    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 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.
    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 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.]

 
                      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 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 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 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.
    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. 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.
    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.
    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 father 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.
    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 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 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 prohibit 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 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 ``uber-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 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 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 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.
    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 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, non-
profit 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.
    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 non-citizens 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 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 demand 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 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.
    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 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 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.
    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 appointments 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 broad-brush 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.
    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-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.
    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 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 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 Saldana'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 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 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.
    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 specifically 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 
uber-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 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?
    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 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 resume 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 resume 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 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.
    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, prosecutorial 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 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.
    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 resume 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 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.
    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.
    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 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 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.
    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?
    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, 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 gang-related 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 demographic 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.
    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-by-case basis.'' 
So the memo refers explicitly to discretion.
    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, 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 Luther 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 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.]

                            A P P E N D I X

              Additional Material Submitted for the Record
              
              

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

               Prepared Statement of Ms. Sharyl Attkisson
               
               
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

           Prepared Statement of Rev. Dr. Clarence G. Newsome
           
           
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

                 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)_Part1.pdf
     Part 2:
        https://www.judiciary.senate.gov/imo/media/doc/AGAC%20(12-19-
         2014)_Part2.pdf
     Part 3:
        https://www.judiciary.senate.gov/imo/media/doc/AGAC%20(12-19-
         2014)_Part3.pdf
     Part 4:
        https://www.judiciary.senate.gov/imo/media/doc/AGAC%20(12-19-
         2014)_Part4.pdf
     Part 5:
        https://www.judiciary.senate.gov/imo/media/doc/AGAC%20(12-19-
         2014)_Part5.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/EARS_Redacted
         %20FINAL.pdf
```