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Jeff Sessions Confirmation Hearing. 12:30-1p ET
Aired January 10, 2017 - 12:30 ET
THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
SEN. AMY KLOBUCHAR (D), MINNESOTA: And I want to turn to another quick question on a democratic issue as in (ph) a democracy issue that was raised by Senator Graham, and as Senator Whitehouse, I just returned with Senator's McCain and Graham from a trip to Ukraine, Baltics, Georgia, and learned there about how these intrusive cyber attacks are not just unique to our country, not just unique to one party, not just unique to one election. And they've seen that movie before in those countries.
And do you have any reason to doubt the accuracy of the conclusion reached by our 17 intelligence agencies that in fact Russia used cyber attacks to attempt to influence this last election? I'm not asking if you believe it influenced it, just if you believe the report of our intelligence agencies.
SEN. JEFF SESSIONS (R-AL), NOMINEE FOR ATTORNEY GENERAL: I have no reason to doubt that and have no evidence that would indicate otherwise.
KLOBUCHAR: Thank you.
Violence Against Women Act, Senator Leahy asked some of those questions really important to me. You and I discussed it. I just have one question there. If confirmed, will you continue to support the lifesaving work being done by the Office on Violence Against Women?
KLOBUCHAR: OK. Thank you.
Immigration, you and I have some different views on this and I often focus on the economic benefits of immigration, the fact that we have 70 of our Fortune 500 companies headed by immigrants. At one point, 200 of our Fortune 500 companies were either formed by immigrants or kids of immigrants. Roughly 25 percent of all U.S. Nobel laureates were foreign born.
And just to understand in a state like mine where we have entry level workers in dairies (ph) are immigrants, major doctors at the Mayo Clinic, police officers who are Somali, if you see that economic of immigrants in our society.
SESSIONS: Well, immigration has been a high priority for the United States. We've been a leading country in the world in accepting immigration. I don't think American people want to end immigration.
I do think that if you bring in a larger flow of labor than we have jobs for, it does impact adversely the wage prospects and the jobs prospects of American citizens. I think as a nation, we should evaluate immigration on whether or not it serves and advances the nation interests, not the corporate interests.
It has to be the peoples interests first and I do think too often we've -- Congress has been complacent in supporting legislation that might make businesses happy, but it also may have had the impact of pulling wages down. Dr. Borjas at Harvard has written about that. I think he's the world's perhaps most effective and knowledgeable scholar and he says that does happen, wages can be diminished.
And one of the big cultural problems we have today is middle class and lower class Americans have not -- lower class (ph) economically -- are not having the wage increases that we'd like to see them have. In fact, since 2000, wages are still down from what they were in 2000.
KLOBUCHAR: I just see that we can do a mix of making sure that we have jobs for people here and then understanding that we're a country of immigrants.
SESSIONS: On that subject, you're familiar with Canada.
PROTESTER: And we are people of America. You have (inaudible). You are supported by hate groups (inaudible).
KLOBUCHAR: Mr. Chairman, if I could just have another 30 seconds here, I had one -- one last question.
SESSIONS: Maybe 45 seconds, Mr. Chairman.
I would just that you've come up close to the Canadian system, I think maybe some of those policies ought to be considered by the United States.
KLOBUCHAR: My last question, Mr. Chairman, is on the reporters issue. Free press, I believe, is essential to our democracy and I've always fought to ensure that those rights aren't compromised. My dad was a reporter, a newspaper reporter for years, and I'm especially sensitive to the role of the press as a watchdog.
You've raised concerns in the past about protecting journalists from revealing their sources. You did not support the Free Flow of Information Act. In 2015, the attorney general revised the Justice Department rules for when federal prosecutors can subpoena journalists or their records and he also committed to releasing an annual report on any subpoenas issues or charges made against journalists and committed not to put reporters in jail for doing their job. If confirmed, will you commit to following the standards already in
place at the Justice Department? And will you make that commitment not to put reporters in jail for doing their jobs?
SESSIONS: Senator Klobuchar, I'm not sure, I have not studied that -- those regulations. I would note that when I was the United States attorney, we knew -- everybody knew that you could not subpoena a witness or push them to be interviewed if they're a member of the media without approval at high levels of the Department of Justice, that was in the 1980s. And so, I do believe the Department of Justice does have sensitivity to this issue.
There have been a few examples where the press and the Department of Justice haven't agreed on these issues, but for the most part, this is a broadly recognized and proper deference to the news media, but you could have a situation in which a media is not really the unbiased media we see today. And they could be a mechanism through which lawful intelligence information is obtained. There are other dangers that could happen with regard to the federal government that normally doesn't happen to the media covering murder cases in the states.
KLOBUCHAR: All right. Well, thank you. And I'll follow-up with that in a written question when you have a chance...
SESSIONS: If you would, I would...
KLOBUCHAR: Thank you, thank you.
SEN. CHUCK GRASSLEY (R), IOWA: I call for the first time on a new member of the committee, Senator Sasse from Nebraska.
SEN. BEN SASSE (R),NEBRASKA: Mr. Chairman, thank you, thank you very having me.
Before I get started, I would like to enter into the record a letter of support from 25 current states attorney general, including Doug Peterson, the attorney general from my state of Nebraska. The letter reads in part "no one is more qualified to fill this role than Senator Sessions." This is obviously an important testimony from the top law enforcement officers of 25 states. I ask unanimous consent, Mr. Chairman to include this into the record.
GRASSLEY: Without objection, it will be included. Precede Senator Sasse.
SASSE: Thank you.
Senator Sessions, when you were introducing your grandkids -- and I'm amazed that they've stay around as long as they did, mine would have been more disruptive earlier. I was thinking about all the time I spend in schools and we have a crisis in this country of civic ignorance. Our kids don't know basic civics and we have a crisis of public trust in this country, in that many Americans presume that people in the city are overwhelmingly motivated by partisan perspectives, rather than the public good.
Tragically, our current president, multiple times over the last three or four years has exacerbated this political polarization, by saying he didn't have legal authority to do things and subsequently doing exactly those things, quite apart, from peoples policy perspectives on these matters.
This is a crisis when kids don't understand the distinction between the legislative and executive branches, and when American voters don't think that people who serve in these offices take their oaths seriously. It's not quite as simple as Schoolhouse Rock jingles on Saturday morning. But could you at lest start by telling us what you think the place for executive orders and executive actions are?
SESSIONS: That's a good question, and a good premise that we should think about. People are taught that Schoolhouse Rock is not a bad basic lesson in how the government is supposed to work. Legislatures pass laws, Congress -- the president executes laws, as does the entire administration, as passed by Congress or follows the Constitution and the judicial branch decides disputes. As a neutral umpire, an unbiased -- un-participant -- any if the sides to the controversy and does it objectively.
So I think every day that we get away from that is really dangerous. And it is true that if a president says I do not have this authority or others say the president doesn't have certain authority and then is done by the president, it confuses people. And it's a -- I think colleagues -- we too little appreciate something that's corrosive happening out in our country.
There is a feeling that judges just vote when they get a big case before them on what their political agenda is and not what the Constitution actually requires. That judges can redefine the meaning of words to advance an agenda they haven that may not be the agenda of the American people and that inevitably is corrosive to respect the law.
SASSE: Thank you, but take it get one step further, because there are going to be many cases, there will be many instances where the administration in which you are likely going to end up serving, will want to do things and they'll want to know what their limits of their executive discretion is.
It's pieces of legislation that have been passed around here in recent years, sometimes are well over a thousand pages, with all sorts of clauses, the secretary shall dot, dot, dot, fill in the law. So this Congress has regularly under reached an invited executive overreach. This Congress has regularly failed to finish writing laws, and then invited the executive branch to do it.
What are some of the markers that you could use to help understand the limits where the executive branch cannot go?
SESSIONS: We really need to reestablish that. Professor Turley, Jonathan Turley has written about this. It's just powerful, it's certainly an objective voice, an American jurisprudence. And he says that Congress is just falling down on his job.
Now, of course there are two ways. One of them is that it writes laws that are too broad and I would urge all of you to be sure that when we pass a law or you pass a law, if I'm confirmed, that that law is clear and sets limits. When it doesn't set limits, then you can have the secretary of this agency or that agency claiming they have certain authorities and you end up with a very muddled litigation maybe resulting from it.
So re-establishing the proper separation of powers and fidelity to law and to limits is an important issue. And I think hopefully -- I think that's what you're suggesting.
SASSE: Could you tell me under what circumstances, if any, you think the Department of Justice can fail to enforce a law?
SESSIONS: Well, it can fail to enforce it by setting prosecutorial policies with regard to declining to prosecute whole chunks of cases, and in fact, eliminate a statute. If a new tax is passed and the Department of Justice says it can't be collected, then the law was not followed.
You also have circumstances in which you can redefine the statute or alter -- if we're talking about improper actions, it could expand the meaning of the words of the statute far beyond what Congress ever intended, and that's an abuse too.
SASSE: Not to interrupt you too soon, but the improper, but also what is proper because this administration has made the case regularly that they need to exercise prosecutorial discretion because of limited resources. And obviously, there aren't infinite recourses in the world.
So what are some proper instances, in your view, when an administration might not enforce a law?
SESSIONS: Well, critics of the immigration enforcement, the DAPA and the DACA laws, said that the prosecutorial discretion argument went too far, it basically just eliminated the laws from the books.
Secondly, with regard to that, the president's realm -- the order came from Homeland Security, not from the Department of Justice. But Homeland Security's order not only said we're not going to enforce the law with regard to certain large classifications of people, but those people who had not been given the legal status under the laws of the United States were given photo IDs, work authorization and Social Security numbers and the right to participate in these government programs that would appear to be contrary to existing law.
So that would me -- to me, suggest an overreach.
SASSE: And in parallel before the courts, what instances would it be legitimate, if any, for the solicitor general to not defend the law in court? SESSIONS: That's a very good question, and sometimes, it becomes a real matter.
In general, the solicitor general as part of the Department of Justice and the executive branch, states the position of the Department of Justice. And it has a duty, the Department of Justice does, to defend the laws passed by this body, by Congress. And they should be defended vigorously, whether or not the solicitor general agrees with them or not, unless it can't be reasonably defended.
And so sometimes, you reach a disagreement about whether or it's reasonably defensible or not. But that's the fundamental question and the Department of Justice should defend laws that Congress passed unless it's -- they're unable do so, in a reasonable way.
SASSE: What is the place of independent agencies in a unified executive branch? And do you envision that you will be making any recommendations to the president to reign in independent agencies in an effort to preserve the constitutional distinction between the powers of the Congress and the administrative responsibilities of an executive branch?
SESSIONS: Senator, that's a good question, kind of a historic question at this point in time because it does appear to me that agencies oftentimes see themselves as independent fiefdoms. And sometimes you even hear the president complain about things clearly under his control.
I remember President Clinton complaining about the death penalty processes of the Department of -- federal government when he appointed the attorney general who had just appointed a committee to make sure the death penalty was properly carried out.
So I mean, like, who's responsibility is this? You're in charge of -- you can remove the attorney general if you're not happy. So those kind of things do continue out there that we need to be careful about and I thank you for raising it.
SASSE: I have less than a minute left, so last question but going back to something that Senator Lee was asking about.
Could you give a top line summary of what you view the responsibilities of the OLC to be and what the relationship would be between the OLC, the Office of the Attorney General, and the White House?
SESSIONS: Well, OLC has statutory duties to make opinions. The OLC team reports to the attorney general, who could reverse I suppose or remove the OLC head, the deputy attorney general, if he thought those -- that department was not following the law.
But essentially, they are given the power as attorney general -- I had an opinions section in Alabama. And they rendered opinions on a whole host of matters when called upon from school boards and highway departments and that sort of thing. So this OLC does represent a key position in the Department of Justice.
They must have extraordinary legal skill. They have to be terrific lawyers. They have to understand the constitutional order of which we are a part and they should render objective decisions day after day, week after week. Ultimately, the responsibility of the president and the attorney general is to ensure that we have that kind of quality at OLC.
SASSE: Thank you.
GRASSLEY: Senator Franken?
SEN. AL FRANKEN (D), MINNESOTA: Thank you, Mr. Chairman.
Senator, congratulations on your nomination.
SESSIONS: Thank you.
FRANKEN: In 2009, when you became the ranking Republican on this committee, you were interviewed about how you would approach the committee's work and nominations specifically. You said that Democrats should expect you to be fair because you had been through this process yourself back in 1986 and you felt that back then, the committee had distorted your record.
You said that moving forward, quote, "we're not going to misrepresent any nominees' record and we're not gonna lie about it," unquote. And we certainly don't wanna do that to our colleague. But I also think it's fair to expect that sitting before us today that you're not going to misrepresent your own record. That's fair to say, right?
SESSIONS: That is fair.
Now, in that same interview, you said, quote, "I filed 20 or 30 civil rights cases to desegregate schools and political organizations and county commissions when I was the United States Attorney." So 20 or 30 desegregation cases. Did I miss read that quote?
SESSIONS: I believe that's what I've been quoted as saying and I suspect I said that.
OK. Now, that was 2009, but in November, your office said, quote, "When Senator Sessions was U.S. attorney, he filed a number of desegregation lawsuits in Alabama," not 20 or 30 this time, but a number. So tell me, did you file 20 or 30 desegregation cases or is it some other number?
SESSIONS: Well, thank you, Senator Franken. It is important for us to be accurate. The records don't show that there were 20 or 30 actually filed cases. Some of the cases involved multiple defendants and multiple parties like a school board and a county commission being sued for racial discrimination, things of that nature. But the number would be less than that, as we've looked at. So I...
FRANKEN: What -- what do you think would've caused you to say...
SESSIONS: I don't know, I...
FRANKEN: ... that you filed 20 or 30 desegregation cases?
SESSIONS: Well, we had cases going throughout my district. And some of them were started before I came and continued after I left. Some of them were brought and then settled promptly.
And so it was extraordinarily difficult to actually I was surprised, to get a record by checking the docket sheets (ph) to find out exactly how many cases were involved. I heard one lawyer from the Department of Justice agreed with that large number...
FRANKEN: Let me move on...
SESSIONS: ... but I don't -- that record doesn't justify it.
FRANKEN: The questionnaire you submitted for today asked you to list and describe the, quote, "10 most significant litigated matters you personally handled" -- personally handled. And among the cases that you listed, that you personally handled, are three voting rights cases and a desegregation case.
Last week, I should note, three attorneys who worked at DOJ and who actually brought three of the four cases wrote an op-ed piece in which they say, quote, "We can state categorically that Sessions had no substantive involvement in any of them." Now, you originally said that you personally handled three of these cases, but these lawyers say that you had no substantive involvement.
Chairman Grassley, I would ask that that op-ed from last Tuesday's Washington Post be entered into the record.
GRASSLEY: Without objection, it will be entered.
FRANKEN: Are they distorting your record here?
SESSIONS: Yes. In fact, one of the writers there, Mr. Hebert, spent a good bit of time in my office. He said I supported him in all the cases he brought; that I was more supportive than almost any other U.S. attorney; and that I provided office space. I signed the complaints that he brought. And as you know, may know, Senator Franken, when a lawyer signs a complaint, he's required to affirm that he believes in that complaint and supports that complaint and supports that legal action, which I did. We sued...
FRANKEN: So that's your -- that's your personal involvement was that your name was on it?
SESSIONS: Well, look, you can dispute the impact or the import of the questionnaire. Another attorney who -- Paul Hancock, who brought cases in our district, said, "Well, the attorney general claimed credit for the cases in the Department of Justice." He saw nothing wrong with my claiming that this was a case that I had handled.
FRANKEN: OK. Two of the...
SESSIONS: So you can disagree with that, but those cases have my signature on -- on the docket sheet. My name is listed number one as the attorney for the case.
FRANKEN: OK. Look, I'm not a lawyer. I'm one of the few members of this committee who didn't go to law school. And usually I get by just fine, but it seems to me that a lawyer -- if a lawyer has just his name added to a document here or a filing there, that lawyer would be misrepresenting his record if he said he personally handled these cases.
Two of the lawyers who wrote the op-ed have also submitted testimony for today's hearing -- Mr. Gerry Hebert and Mr. Joe Rich. Mr. Hebert says, quote -- says he, quote, "litigated personally two of the four cases" you listed. He said, "I can state with absolute certainty that Mr. Sessions did not participate in either." Mr. Rich worked on one of the four cases you listed. He said, quote, "I never met him at that time nor any other time, and he had no input to the case."
These represent three of the four cases that you claimed that were among the top 10 cases that you personally handled.
Now, in your 1986 questionnaire, you used phrases like, quote, "I prepared and tried the case as sole counsel." And quote, "I was the lead prosecutor on this case," assisted by so and so. Why didn't you use the same level of detail in your 2016 questionnaire?
SESSIONS: In looking at this questionnaire, we decided that that was an appropriate response, since it was major historic cases in my office. Let me just reply, Senator Franken, in this fashion. Mr. Hebert in 1986 when he testified at my hearing said, quote, "We have had difficulty with several U.S. attorneys in cases we have wanted to bring. We have not experienced that difficulty in the cases I have handled with Mr. Sessions. In fact, quite the contrary," close quote.
He goes on to say, "I've had occasion numerous times to ask for his assistance and guidance. I have been able to go to him and he has had an open-door policy, and I've taken advantage of that and found him cooperative." And that is an accurate statement.
I don't know Mr. Rich. Perhaps he handled a case that I never worked with. He goes on to say...
SESSIONS: No, I want to -- you've raised this question...
FRANKEN: One of the cases that you listed was a case that Mr. Rich handled. So if you don't know him, it's hard for me to believe that you personally handled it.
SESSIONS: Well, when I found that -- these cases, I had been supportive of them.
FRANKEN: You have filed...
SESSIONS: Here I was, Mr. Hebert says, quote, "And yet I have needed Mr. Sessions's help in those cases and he has provided that help every step of the way. In fact, I would say that my experience with Mr. Sessions has led me to believe that I have received more cooperation from him, more active involvement from him, because I have called upon him," close quote.
Quote, "I have worked side by side with him on some cases in the sense that I have had to go to him for some advice," close quote.
FRANKEN: In some cases -- not necessarily the ones you listed.
SESSIONS: Well, look, it was 30 years ago. And my memory was of this nature and my memory was my support for those cases.
FRANKEN: Your memory. OK. Look, I am not -- I'm one of the few members of this committee who's not a lawyer -- the chairman and the ranking aren't. But when I hear "I filed a case," you know, I -- I don't know some of the parlance. It might have a special meaning in legal parlance, but to me as a layman, it sounds to me like "filed" means "I led the case" or "I supervised the case."
It doesn't mean that my name was on it. And it seems to me -- look, I'll close, Mr. Chairman -- setting aside any political or ideological differences that you or I may have, DOJ is facing real challenges whether it's protecting civil rights or defending national security. And our country needs an attorney general who doesn't misrepresent or inflate their level of involvement on any given issue.
I consider this serious stuff, as I know that you would if you were in my position.
SESSIONS: Well, you are correct, Senator Franken. We need to be accurate in what we say. When this issue was raised, I did do a supplemental that said I "provided assistance and guidance to Civil Rights Division attorneys; had an open-door policy with them; and cooperated with them on these cases," close quote.
I signed them. I supported cases and attempted to be as effective as I could be in helping them be successful in these historic cases. I did feel that they were the kind of cases that were national in scope and deserved to be listed on the form. If I'm in error, I apologize to you. I don't think I was.
FRANKEN: Well, you couldn't find 20 or 30 desegregation cases that you stated you had participated in. And you don't sound like you personally handled cases that you said you personally handled. Thank you.
SESSIONS: Well, I was on a radio interview without any records, and that was my memory at the time.
GRASSLEY: I think you answered the question.
FRANKEN: Thank you.
GRASSLEY: Senator Flake, now it's 12:59, so at 2:09 we will adjourn for lunch. I'll be back here then at 2:39, and whoever is present will start then. But I hope everybody can be back here at least by 2:45. Well, whatever -- I got...
You know what I mean. Go ahead, Senator Flake.
SEN. JEFF FLAKE (R), ARIZONA: Well, thank you.
Are you saying we're adjourned or I'm going?
GRASSLEY: Oh, you go ahead.
FLAKE: OK. All right. Great. It's always nice being the last one standing between lunch.
GRASSLEY: Let's have order for Senator Flake.
FLAKE: I just want to say at the outset how much I've enjoyed working with you and being your colleague. I appreciate having you as a friend.
It's no secret we've had a difference of opinion on immigration legislation that we put forward. You've had different ideas. But I have no doubt that as attorney general, you will faithfully execute the office. And I appreciate the answers that you've given today.
FLAKE: Let me ask unanimous consent to submit a column written by our own attorney general in Arizona, Mark Brnovich, for The Hill newspaper this week, supporting your...
GRASSLEY: Without objection it'll be include.