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At This Hour

Continuing Coverage of Sen. Jeff Session's Senate Confirmation Hearing. Aired 11-11:30a ET

Aired January 10, 2017 - 11:00   ET


[11:00:002] SEN. ORRIN HATCH (R), UTAH: Senator Sessions has provided this committee with more than 150,000 pages of material relevant to his nomination. That is 100 times what Attorney General Lynch produced and almost 30 times what Attorney General Holder provided.

This material comes from someone we know, someone many of us have served with in the Senate and on this very committee, yet some on the far left will stop at nothing to defeat this nomination. They oppose this nomination precisely because Senator Session (sic) will not politicize the Justice Department or use its resources to further a political agenda. They make up one thing after another to create a caricature that bears no resemblance to the nominee, who is actually before us here today.

Now, I've been on this committee for a long time and I've seen these dirty tactics used before, and they're not gonna work this time.

Senator Sessions, it sounds a little strange to say this, but welcome to the Senate, the Senate Judiciary Committee. I'm sure there will be some need to address false claims and fabricated charges during this hearing. Believe it or not, however, I actually have some questions about issues and policies that you will be addressing when you become attorney general.

The first is one I have raised with every incoming attorney general nominee for nearly 25 years, and it concerns enforcement of federal laws prohibiting obscenity. In the 108th Congress, you introduced Senate Concurrent Resolution 77, expressing the sense of the Congress that federal obscenity laws should be vigorously enforced throughout the United States.

It plays the Senate -- or excuse me, it passed the Senate unanimously, pleased it too. In fact, it is the only resolution on this subject ever passed by either the Senate or the House.

Now, Senator Sessions, with your permission, I want to share with you that resolution adopted last year by the Utah legislature, outlining why pornography should be viewed as a public health problem as well as some of the latest research into the -- into the arms of obscenity.

Is it still your view that federal laws prohibiting adult obscenity should be vigorously enhanced?

SEN. JEFF SESSIONS (R), ALABAMA: Mr. Chairman, those laws are clear and they are being prosecuted today and should be continued to be effectively and vigorously prosecuted in the cases that are appropriate.

HATCH: And making this a priority for the Justice Department, would you consider reestablishing a specific unit dedicated to prosecuting this category of crime?

SESSIONS: So that unit has been disbanded. I'm not sure I knew that, but it was a part of the Department of Justice for a long time and I would consider that.


For several years now, Senator Chris Coons and Representative Tom Marino and Suzan DelBene and I have raised the importance of safeguarding data privacy on an international scale from unauthorized government access. That is why we continue to push forward the International Communications Privacy Act, which establishes a legal standard for accessing extraterritorial communications.

The need for a legislative solution was reinforced in July when the U.S. Court of Appeals for the 2nd Circuit held in Microsoft v. United States that current law does not authorize U.S. law enforcement officials to access electronic communications stored outside the United States.

If confirmed, will you and your staff work with us to strike the needed balance to strengthen privacy and -- and promote trust in the United States technologies worldwide, while enabling law enforcement to fulfill its important public safety mission?

SESSIONS: That'll be a high responsibility, Senator. I know you've worked hard on that for a number of years, as have others, members of this committee, Senator Coons and others. So working that out, understanding the new technology.

But the great principles of the right to privacy, the ability of individuals to protect data that they believe is private and should be protected, all of those are great issues in this new technological world we're in. And I would be pleased to work with you on that and I do not have firm and fast opinions on the subject.

HATCH: Well, thank you so much.

Now, I'd like to turn now to rapid DNA technology that will allow law enforcement officials to speedily process DNA samples in 90 minutes or less. FBI Director Comey told this committee that rapid DNA would help law enforcement, quote, "change the world in a very, very exciting way, " unquote.

Legislating -- legislation authorizing law enforcement to use this technology, which you co-sponsored, passed the Senate last year.


I was disappointed, however, that it got tied up with criminal justice reform efforts in the House. And I have two questions.

First, do you -- do you agree with director -- with FBI Director Comey and with law enforcement leaders across the country that rapid DNA legislation is important and will help law enforcement to do their jobs better and faster?

And secondly, do you agree with me that we should work to pass this legislation sooner rather than later and should avoid tying it to efforts on other legislative issues whose path forward is unclear?

SESSIONS: Mr. Chairman, rapid DNA analysis is a hugely important issue for the whole American criminal justice system. It presents tremendous opportunities to solve crimes in an effective way and can be -- produce justice because it's a kind of thing that you can't fake or mislead. So I am very strongly in favor of that.

And my personal view, after many years in the law enforcement community, is that one of the biggest bottleneck colleagues (ph) of all of our laws involving prosecution of criminal activity, is the bottleneck of the scientific analysis, the forensic sciences, where we fail sometimes to get DNA back, fail to get back fingerprint analysis, fail to get back drug analysis, chemical analysis and all of this slows down and stops cases that should long since have been brought forward and disposed of.

HATCH: OK. I'd rather some Democratic senators accuse you of opposing the Violence Against Women Act. Now, that caught my attention because like I did, you actually voted to reauthorize it.

As I recall, in 2013, there were not one, but two bills to reauthorize VAWA, the Violence Against Women Act. One had controversial provisions that had never been received in a hearing, the other did not. Am I right that you supported reauthorizing the Violence Against Women Act?

SESSIONS: Absolutely. I supported it in 2000 when it passed, I supported it in 2005 when the bill -- both of those bills I supported became law. And then in this cycle, Senator Grassley had a bill that I thought was preferable and I supported his bill that actually had tougher penalties than the other bill.

And it is kind of frustrating to be accused of opposing VAWA, the Violence Against Women Act, when I have voted if for it in the past. There were some specific add-on provision (ph) in the bill that caused my concern and I think other people's concern.

HATCH: And Mr. Chairman, I ask consent to place in the record, an op- ed published in USA Today on this subject by Penny Nance, president of Concerned Women for America, the nation's largest public policy women's organization, if you can.

SEN. CHUCK GRASSLEY (R), IOWA: Without objection, it will be included.

HATCH: Now, I have a question about the Justice Department's Civil Right Division. The division enforces the religious land use and Institutionalized Persons Act which protects the right of prison inmates to worship and protect churches and religious institutions from burdensome zoning and other restrictions. So I introduced this legislation in 2000, it passed without objection in both the Senate and the House.

I would note for the record that next Monday, January 16th, is Religious Freedom Day. I hope that you will make the religious freedom of all Americans a priority under your leadership.

The civil rights division also has a unit dedicated to combating human trafficking. It was created in 2007 and one of my former Judiciary Committee counsels, Grace Chung Becker, was its first head.

Perhaps, you could comment on the significance of issues such as religious freedom and human trafficking and why it's important to include them within the civil rights agenda of the department.

SESSIONS: Mr. Chairman, religious freedom is a great heritage of America. We respect people's religion. We encourage them to express themselves and to develop their relationships with the higher power as they choose. We respect that. It's mandated in the Constitution.

But there are situations in which I believe we can reach accommodations that would allow the religious beliefs of persons to be honored in some fashion as opposed to just dictating everything under a single provision or policy.

So I believe you're correct.


We should recognize our religious freedom. It will be a very high priority of mine.

HATCH: Well, let me (inaudible).

Now, Mr. Chairman, let me close by asking consent to place in the record letters from the National Center for Missing and Exploited Children and the Boys and Girls Clubs of America. They attest to Senator Sessions work on behalf of the vulnerable children and young people.

And I also ask consent to place in the record a letter supporting this nomination from nearly two dozen men and women who have served as assistant attorneys general in 10 different offices and divisions.

They say that as both U.S. Senator and U.S. Attorney, quote, "Senator Sessions has demonstrated a commitment to the rule of law and to the even-handed administration of justice." I could not agree more.

GRASSLEY: Without objection...

HATCH: Thank you.

GRASSLEY: ... those will be included.

SESSIONS: Thank you.

SEN. PATRICK LEAHY (D), VERMONT: Thank you Mr. Chairman and welcome Senator Sessions and Mrs. Sessions.

Let me just follow up, you were just asked about Violence Against Women Act and your -- your support. Let's deal with the facts. Let's deal with what was actually quoted on. Let's deal with the Violence Against Women Act that you voted against.

You strongly oppose the Violence Against Women Reauthorization Act of 2013. Spoke against it -- you voted against it. That law expanded protections for some of the most vulnerable groups of domestic violence and sexual assault survivors, students, immigrants, LGBTQ victims and those on tribal lands.

Now the Justice Department, by all accounts, has done an excellent job implementing and enforcing it over the last three years. I believe -- we were both prosecutors. I went to a lot of domestic violence scenes -- crime scenes -- as a young prosecutor. I believe that all victims of domestic and sexual violence deserve protection.

Why did you vote against expanding protections for LGBT victims, students, immigrants and tribal victims of domestic violence and sexual assault? Why did you vote no?

SESSIONS: Mr. Chairman, I did indeed support the bill in 2000 and in...

LEAHY: I'm talking about the bill that is the law today.

SESSIONS: I understand.

LEAHY: The law today it's passed in 2013 by an overwhelming margin in the Senate and by an overwhelming margin, in the Republican controlled House, signed into law by President Obama.

I'm asking about that, why did you oppose it?

SESSIONS: Mr. Chairman, a number of people opposed some of the provisions in that bill. Not the entire bill.

LEAHY: I'm just asking about you.

SESSIONS: I'm trying to answer.

LEAHY: Go ahead.

SESSIONS: So when we voted in the committee eight of the nine Republicans voted against the bill. One of the more concerning provisions was a provision that gave tribal courts jurisdiction to try persons who were not tribal members.

That's contrary -- I believe the only time that's ever happened. That was the big concern that I raised, I believe primarily, on the legislation. So I voted with the -- the chairman and the legislation he had that I thought did the job for protecting women, to reauthorize the Violence Against Women Act, but at the same time did not have other things attached to it that I -- thought were concerning. LEAHY: Well, on the tribal courts, those have now been prosecuted, very carefully, defendants receive due process rights -- they have to. None of the non-Indian defendants that have been prosecuted have appealed to federal courts.

Many feel it's made victims on tribal lands safer. Do you agree with that? Do you agree with the way the Justice Department has handled such cases?

SESSIONS: Mr. Chairman, I do believe that the law has been passed by Congress, I'm interested to see how it plays out in the real world and I will do my best to make my judgment about how to enforce that as attorney general.

Certainly the law itself has many powerful provisions that I'm glad was passed and that is in law and provides protections to women as victims against -- of victims of violence.

LEAHY: On the tribal lands it's been used and prosecuted for three years. Do you feel it's been handled correctly?

SESSIONS: Mr. Chairman I have no understanding of that. But in the -- the results of it so far -- I'm interested -- first time I've heard it -- commented on.

Let me say this to you directly.


In meeting with senators prior to this hearing, I've had a quite a number, perhaps more than any other issue, that I learned a lot about, and that is that non-Indians that have been going onto tribal lands and committing crimes, including rape, have not been effectively prosecuted.

Now, under current law and historically, they would have been prosecuted in the federal government by the United States attorneys and that has not been happening sufficiently, I am now convinced. So I do think the FBI, particularly maybe the Bureau of Indian Affairs investigators, should be beefed up and the U.S. attorneys need to do probably a better job of prosecuting cases that need to be prosecuted in federal court.

LEAHY: Those are -- those are facts that came out pretty clearly in the hearings before you voted against that provision. That is why Senator Crapo and I and others included it in the bill.

But let me -- there maybe -- there have not been any test (ph) to that, nobody's -- nobody's appealed this, nobody's objected to it. But would you be able to, if -- if somebody does, would you be able to defend it in court?

SESSIONS: I would defend the statute if it's reasonably defensible, yes. If passed by Congress, it would be the duty of the attorney general whether they voted for it or support it, to defend it. And now, did I call you Mr. Chairman, Mr. Chairman, a while ago? I think I did. So.

LEAHY: That's OK.

SESSIONS: You've been my chairman for many years.

LEAHY: I've spent 20 years back and forth, and I've delighted to turn it over to Senator Feinstein and Senator Grassley. But..

SESSIONS: Well, you'll be handling all the money of the United States I understand in your new position.

LEAHY: The -- in 2009, I offered to Matthew Shepherd and James Byrd Hate Crimes Prevention Act as an amendment to the Defense Bill. It extended hate crimes protections to LGBT individuals, women and individuals with disabilities. It passed the Senate overwhelmingly.

You opposed it. You stated at a hearing that you're not sure women or people with different sexual orientations face that kind of discrimination. And then you said, "I just don't see it." Do you still believe that women and LGBT individuals do not face the kind of discrimination that the hate crimes legislation was passed to prevent?

SESSIONS: Mr. Chairman -- Senator Leahy, having discussed that issue at some length, it -- I -- that does not sound like something I said or intended to say. What I did intend...

LEAHY: You did say it.

SESSIONS: Well, I understand, but I've seen things taken out of context and not give an accurate picture.

My view is and was a concern that it appeared that these cases were being prosecuted effectively in state courts, where they would normally be expected to be prosecuted. I asked Attorney General Holder to list cases that he had that indicated that they were not being properly prosecuted. I noted that Mr. Byrd was given the death penalty in Texas for his offense and Mr. Shepherd, there were two life sentences imposed as a result of the situation in his state.

So, the question simply was, do we have a problem that requires an expansion of federal law into an area that the federal government has not been historically involved. Senator Hatch had a -- a proposal that we do a study to see the extent of the problem and that we should have evidence of that -- that indicates a shortage of prosecutions and a lack of willingness...


SESSIONS: ... for adding this law.

LEAHY: As far as the study last year, the FBI said that LGBT individuals were more and likely to be targeted for hate crimes than any other minority group in the country. I mean, we can study this forever, but that's a pretty strong fact.

SESSIONS: Well, I will tell you, Senator... LEAHY: And in 2010, you stated expanding hate crime protections to LGBT individuals was unwarranted, possibly unconstitutional. You said the bill had been sent to cheapen the civil rights movement. Especially considering what the FBI has found, do you still feel that way?

SESSIONS: Mr. Chairman, the law has been passed. The Congress has spoken. You can be sure I will enforce it.


LEAHY: Thank you.

When you were -- well, let me -- I don't want to go as much over -- over time as -- as Senator Hatch did, but I'll ask you one question.


The president-elect has repeatedly asserted his intention to institute a ban on Muslim immigrants to the United States. December 2015, you voted against a resolution that I offered in this committee that expressed a sense of (inaudible) that the United States must not bar individuals from entering into the United States based on their religion. All Democrats, most Republicans, including the chairman, were in support of my resolution.

Do you agree with the president-elect that the United States can or should deny entry to members of a particular religion, based on their religion? We do background checks for terrorism, but based on their religion. Do you believe -- do you agree with the president-elect the United States can or should deny entry to all members of a particular religion?

SESSIONS: Senator Leahy, I believe the president-elect has subsequent to that statement made clear that he believes the focus should be on individuals coming from countries that have history of terrorism. And he's also indicated that his policy and what he suggests is a strong vetting of people from those countries before they're admitted to the United States.

LEAHY: Then why did you vote against the resolution?

SESSIONS: Mister -- I almost called you Mr. Chairman again.

Senator Leahy, the -- my view and concern was, in the resolution, it was suggesting that you could not seriously consider a person's religious views even and often sometimes, at least, not in a majority, but many people do have religious views that are inimical to the public safety of the United States. I did not want to have a resolution that suggested that that could not be a factor in the vetting process before someone is admitted.

But I have no belief and do not support the idea that Muslims, as a religious group, should be denied admission to the United States. We have great Muslim citizens who've contributed in so many different ways, and America, as I said in my remarks, at the occasion that we discussed it in committee, are great believers in religious freedom and the right of people to exercise their religious beliefs.

LEAHY: Thank you.

GRASSLEY: Before I turn to...


GRASSLEY: Yes. Without objection, your inserts will be included.

I have a letter from Solicitor General Ted Olson in support of Senator Sessions. Quoting in part with respect to civil rights, he says, quote "As a lawyer who has devoted years of effort to litigating and vindicating the civil rights of our fellow gay, lesbian and transgender citizens, I recognize that people of good faith can disagree on legal issues. Such honest disagreement should not qualify -- disqualify them from holding public office. In particular, I have no reservations about Senator Sessions' ability to handle these issues fairly and in accordance with law and to protect the civil rights of these and all of our citizens."

I'd like to include that in the record without objection.

Senator Graham.


We're about to get an answer to the age-old question, can you be confirmed attorney general of the United States over the objection of 1,400 law professors?


I don't know what the betting line in Vegas is, but I like your chances.


Speaking of football...


I want to congratulate the University of Alabama for one heck of a streak. One of the most dominate football teams in the history of college football. And I want to acknowledge the Clemson Tigers, where I live five miles from the stadium, that that was the finest college football game I think I've ever seen. Dabo Swinney and the Tigers represent everything good about college athletics.

And while we were on different teams, early this morning, I want to let the good people of Alabama know that in terms of their senator, Jeff Sessions, he is a fine man, an outstanding fellow, who I often disagree with, I've traveled the world with. I've gotten to know him and his family and I will enthusiastically support you for the next attorney general of the United States.

[11:25:08] Now, let's talk about issues. Some people believe that the only way you can get justice in this world is for the federal government to administer it. Have you heard such thoughts?

SESSIONS: Well, I have.


SESSIONS: I think I know what you're talking about.

GRAHAM: Yeah, I think I do too.


I think the whole point is for the federal government to take over an area of law, there should be a good reason. Do you agree with that?


GRAHAM: If a state's not prosecuting crimes against people based on their sex, their race, whatever reason, then it's proper for the federal government to come in and provide justice, do you agree with that?


GRAHAM: When the state's doing its job, the federal government should let the states do their job.

SESSIONS: That is correct. That's a general principle...

GRAHAM: That's the way...

SESSIONS: ... and is not a general federal crime -- federal statute that federalizes all crime in America.

GRAHAM: For the people who are listening, that's just the way we think. You may not agree with that, but we think that way. And I think we've really got a good reason to think that way. Think that's the way they set up the whole system.

Muslims, as you know, me and the president-elect have had our differences about religious test. Would you support a law that says you can't come to America because you're Muslim?


GRAHAM: Would you support a law that says that if you're a Muslim, you say you're a Muslim and when we ask you, what does that mean to you? Well, that means I got to kill everybody that's different from me, it's OK to say they can't come.

SESSIONS: I think that would be a prudent decision.

GRAHAM: I hope we can keep people out of the country who want to kill everybody because of their religion. I hope we're smart enough to know that's not what most people in the Muslim faith believe.

SESSIONS: But it can be the religion of that person.

GRAHAM: That's right. That's the point we're trying to make here. About the Wire Act, what's your view of the -- Obama's administration's interpretation of the Wire Act to law, to allow online video poker or poker gambling.

SESSIONS: Senator Graham, I was shocked at the memorandum, I guess the enforcement memorandum that the Department of Justice issued with regard to the Wire Act and criticized it. Apparently there is some justification or argument that can be made to support the Department of Justice's position, but I did oppose it when it happened and it seemed to me to be an unusual...

GRAHAM: Would you revisit it?

SESSIONS: I -- I would revisit it and I would make a decision about it based on careful study rather than -- and I haven't reached -- gone that far to give you an opinion today.

GRAHAM: Immigration, you've said that the executive order of President Obama you believe is unconstitutional, the DACA law. You still have that position?

SESSIONS: I did for a number of reasons.

GRAHAM: I'm not, I mean...


GRAHAM: I agree with you. Now, we've got 800,000 people have come out of the shadows, have been signed up. Will you advise the next president -- President Trump, to repeal that executive order?

SESSIONS: There will be decision that needs to be studied and he would need to agree to, but it's an executive order, really a memorandum of the Department of Homeland Security. It would certainly be constitutional, I believe, to -- end that order. And I would -- Department of Justice I think would have no objection to a decision to abandon that order because it is very questionable, in my opinion, constitutionally.

GRAHAM: Once we repeal it and I agree that I believe it is an overreach, what do we do with the 800,000 kids who've come out of the shadows?

SESSIONS: Senator Graham, fundamentally we need to fix this immigration system. Colleagues, it's not been working right. We've entered more and more millions of people illegally into the country. Each one of them produces some sort of humanitarian concern, but it is particularly true for children. So, we've been placed in a bad situation. I really would urge us all to work together.

I would try to be supportive...

GRAHAM: Would you prefer...

SESSIONS: ... to end the illegality and put us in a position where we can wrestle with how to handle these difficult, compassionate decisions.

GRAHAM: Right. And the best way to do it is for Congress and the administration to work together and pass a law, not an executive order.

SESSIONS: Exactly.

GRAHAM: OK. When it comes to the law of war, do you believe that people who join Al Qaida or affiliated groups are subject to being captured or killed under the law of war?

SESSIONS: I do, Senator. Just -- I don't see how we could see it otherwise.


And it's a responsibility of the military to protect the United States from people who attack us.