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Senate Questions Trump's Attorney General Pick. Aired 3-3:30p ET

Aired January 10, 2017 - 15:00   ET




SEN. JEFF SESSIONS (R-AL), ATTORNEY GENERAL NOMINEE: But there are times when objectivity is required and the absolute appearance of objectivity is required, and perhaps a special prosecutor is appropriate.

The -- Attorney General Lynch, for example, did not appoint a special prosecutor on the Clinton matter. And I did criticize that. I was a politician. We had a campaign on. I didn't research the law in depth, just the reaction as a senator of a concern.


WOLF BLITZER, CNN ANCHOR: All right, let's get back to the live coverage, Senator Sessions answering questions now, I think, from Senator Mike Lee of Utah.


SESSIONS: It remains dangerous -- or endangers policy agendas getting embroiled in it. So, it's an important division that requires great integrity and ability, I believe, in the leadership with the Antitrust Division.

SEN. MIKE LEE (R), UTAH: Thank you. Just a moment.

Senator Leahy.

SEN. PATRICK LEAHY (D), VERMONT: Thank you. Thank you, Mr. Chairman.

The -- I listened to Senator Lee asking these questions, it occurred to me that you are one of a very, very small minority of members who oppose the USA Freedom Act that I drafted with Senator Lee. It passed a supermajority in both the House and the Senate.

Even though you voted against it, and this of course topped the bulk collection by NSA that both Senator Lee and I opposed -- do you agree the executive branch has to follow the law, that they cannot reinstate the bulk collection of Americans' phone records without amending federal statutes?

SESSIONS: Senator Leahy, that appears to be so. And I can't swear that that is absolutely, totally always true. But

it appears to be show.

LEAHY: Whoa, whoa, whoa, whoa, wait a minute. Either we passed the law or we didn't pass the law. The supermajority voted for the Lee- Leahy law. The president signed it into law. You voted against it. Will you uphold the law?

SESSIONS: I will follow the law, sir.

LEAHY: And will you commit that you're not going to allow the NSA to engage in bulk collection of Americans' records, in violation of the USA Freedom Act, based on the theory that somehow whoever is president has the power to disregard the statute?

SESSIONS: I do not believe that statute can be disregarded, and it should be followed.

LEAHY: Thank you. I appreciate that.

We had a dust-up in the press, as you recall, when Mr. Trump bragged about how he had grabbed women and so on. You shortly after the tape came out -- and I realize there's an explanation here -- you said: "I don't characterize that as sexual assault."

But then you said later, "'The Weekly Standard''s characterization of comments I made following Sunday's presidential debate is completely inaccurate. My hesitation is based solely on confusion of the content of the 2005 tape, the hypothetical posed by a reporter, which was asked in a chaotic post-environment -- post-debate environment. Of course, it is crystal clear that assault is unacceptable. I would never intentionally suggest otherwise."

That's basically what you said after the confusion on your first comment. Is that correct?

SESSIONS: I believe that's correct.

LEAHY: Thank you.

Is grabbing a woman by her genitals without consent, is that sexual assault?

SESSIONS: Clearly, it would be.

LEAHY: Thank you.

If a sitting president or any other high federal official is accused of committing what the president-elect described in a context in which it could be federally prosecuted, would you be able to prosecute and investigate?

SESSIONS: The president is subject to certain lawful restrictions, and they would be required to be applied by the appropriate law enforcement official if necessary -- if appropriate, yes.

LEAHY: And the conduct described, based on the description, would be sexual assault?


SESSIONS: Well, the confusion about the question was a hypothetical question, and it related to what was said on the tape. I did not remember at the time whether this was suggested to be an unaccepted, unwanted -- it would certainly meet the definition. If that's what the tape said, then that would be...

LEAHY: My question is very simple. Is grabbing a woman by her genitals without consent, is that sexual assault?


LEAHY: Thank you.

Now, you were asked earlier about having call the NAACP and ACLU un- American. You said that was before you were a senator.

But, as a senator, you have committed to -- you have continued to be hostile to them. You have criticized nominees for having what you call ACLU DNA.

Now, I remember, when Republicans led the Justice Department, the inspector general found the Bush administration engaged in unlawful politicized hiring practices. That's the Republican administration's own inspector general.

They said the Ashcroft Justice Department used litmus tests, whether applicants would be sufficiently conservative. If they were ever in the ACLU, they couldn't have a job.

You said in a radio interview Justice has to be saved from secular progressive liberals.

OK. Let me ask you a couple simple questions. Are an individual's religious beliefs relevant to their employment at the Justice Department?

SESSIONS: Not unless it's such that they can't perform their duties in an honorable way, consistent with the law.

LEAHY: What would be an example of that?

SESSIONS: Well, if an individual so strongly believed that abortion should be unlawful that they used their position to block constitutionally approved abortions, I think that would make them not subject to being employed in the Department of Justice.

LEAHY: Are you going to have a litmus test at the Department of Justice for people who have worked at civil rights organizations?


LEAHY: Senator Graham mentioned you have long been a champion of states' rights. And certainly you and I have had enough discussions on that. And I realize those are deeply held beliefs.

But states have also voted on the issue of marijuana and regulation. I believe your own state of Alabama permits the use of a derivative of marijuana known as CBD oil, legal in Alabama, illegal under federal law.

If you are confirmed as the nation's chief law enforcement official, and you know that we have very, very limited federal resources -- in fact, we spend about a third of our budget now just to keep the prisons open because of mandatory minimums and whatnot -- would you use our federal resources to investigate and prosecute sick people who are using marijuana in accordance with their state laws, even though it might violate federal law?

SESSIONS: Well, I won't commit to never enforcing federal law, Senator Leahy.

But, absolutely, it's a problem of resources for the federal government. The Department of Justice under Lynch and Holder set forth some policies that they thought were appropriate to define what cases should be prosecuted in states that have legalized at least in some fashion some parts of marijuana.

LEAHY: Do you agree with those guidelines?

SESSIONS: I think some of them are truly valuable in evaluating cases.

But, fundamentally, the criticism I think that was legitimate is that they may not have been followed. Using good judgment about how to handle these cases will be a responsibility of mine. I know it won't be an easy decision, but I will try to do my duty in a fair and just way.

LEAHY: The only reason I mention it, you have been -- some very strong views. You even mandated the death penalty for anyone convicted of a second drug trafficking offense, including marijuana, even though mandatory death penalties are, of course, unconstitutional.


SESSIONS: Well, I'm not sure under what circumstances I said that. But I don't think that sounds like something I would normally say. I will be glad to look at it.

LEAHY: Would you say that's not your view today?

SESSIONS: It is not my view today.

LEAHY: Thank you very much.

LEE: I perked up when he started talking about federalism. Of course, everything Senator Leahy said was interesting, but the federalism stuff is particularly interesting.


LEAHY: ... praising your legislation.

LEE: Yes, exactly. I appreciated that, too. That was great.

Federalism is an issue that's near and dear to many of us. And I know it's important to you. The notion that our federal government possesses powers that James Madison described as few and defined, and those reserved to the states are numerous and indefinite.

We were supposed to be a different legislative body. Our federal government was always intended as a limited purpose national government, not a general purpose national government, one possessing complete police powers.

We have seen a slow, but steady drift over the last 80 years away from this principle of federalism, such that powers exercised at the federal level today could no longer be described as few and defined, but more appropriately described as numerous and indefinite.

And in light of the Supremacy Clause in the Constitution, any powers we do exercise through the federal government are by definition replaced from the states. In other words, when our action conflicts with state action, it's our action that prevails, in light of the Supremacy Clause.

It's one of the reasons why federalism needs to looked out for so carefully, and one of the reasons why I think a view that I think you and I both share is that U.S. government officials in all three branches of government, whether they wear a black robe or not, are expected when they swear an oath to uphold the Constitution to look out for basic structural protections in the Constitution like federalism, so that we don't have an excessive accumulation of power in the hands of a few.

The founding fathers set up the system in which we have these structural protections. We have the vertical protection we call federalism, which was just described, and the horizontal protection we call separation of powers.

It says, within the federal government, in order to protect us against the risks associated with the excessive accumulation of power in the hands of a few, we have one branch that makes the laws, another branch that enforces the laws and a third branch that interprets the laws.

As long as we keep each branch within the same lane, the people are protected from what happens when one person or a group of people gets too powerful.

But over the last 80 years, just as we have seen a deterioration of federalism, we have also seen a deterioration of separation of powers. You have an interesting set of circumstances with our laws, our controlled substances laws, concerning marijuana, in that for the first time in a very long time, you have seen some attention paid to federalism, but in the limited area associated with marijuana. In other words, there are federal laws prohibiting the use of

marijuana, the sale of marijuana, the production of marijuana that apply regardless of whether a state has independently criminalized that drug, as every state until recently had.

Then you had some states coming along and decriminalizing it, sometimes in the medical context, other times in a broader context. The response by the Department of Justice during the Obama administration has been interesting and it's been different than it has in other areas.

They have been slow to recognize, for instance, federalism elsewhere. They chose to recognize it here. My question to you is, did the way they respond to that federalism concern run afoul of separation of powers? Did what they -- did the department's approach to this issue that they identified as a federalism issue contravene the understanding that we are the lawmaking body, the executive branch is the law-enforcing body?

SESSIONS: Well, I'm not sure I fully understand the point of your question. But are you talking about separation of powers within the federal government, the three branches of federal government?

LEE: Yes. Yes.

SESSIONS: And how does that implicate the marijuana laws?

LEE: Yes. Are there separation of powers concerns arising out of the Department of Justice's current approach to state marijuana laws?

SESSIONS: Well, I think one obvious concern is that the United States Congress has made the possession of marijuana in every state, and distribution of it, an illegal act.


So, if you need -- if that's something that's not desired any longer, Congress should pass a law to change the rule. It's not so much the attorney general's job to decide what laws to enforce. We should do our job and enforce laws effectively as we're able.

LEE: Thank you.

I would like to get back to antitrust issues for a moment. In 2010, you co-sponsored some legislation that extended the Antitrust Division's leniency program and extended it all the way out to 2020. So, it was a 10-year extension at the time you helped move that through.

The legislation provided that members of a cartel could receive reduced penalties if they reported cartel activity to the department and cooperated with any investigation the department had in connection with that antitrust cartel.

Now, the Antitrust Division within the Department of Justice considers this tool -- quote -- "its most important investigative tool for detecting cartel activity" -- close quote, because it creates an incentive for cartel members to self-report, to come forward and to identify things that the Antitrust Division needs to be aware of.

So, I applaud your leadership in this area, because it's been very helpful to the enforcement of our antitrust laws in the department.

So, I have two questions related to this program looking forward. First, given its importance, do you think the program should be made permanent? And, second, are you open to any other ideas that might strengthen the program?

SESSIONS: Senator Lee, I would not commit to use it. I haven't formed an opinion on that. These are very complex areas of the law. I'm not a member of the Antitrust Subcommittee, as a number of members of our committee are, and have achieved levels of expertise, like Senator Klobuchar and you and others.

So, I would just have to commit to you that I'm open to hearing the views of this Congress and that subcommittee, and would try to work with you. But I do understand that antitrust policy is an important issue for America, and we need to get it right. And that would be my goal.

LEE: Thank you.

One important question that sometimes arises in the antitrust context relates to what role the Department of Justice should play in communicating with foreign authorities, authorities in other countries that deal with competition laws, deal with things analogous to our antitrust laws in this country.

The Department of Justice has typically played a leading role. But in recent years, it's also allowed the Federal Trade Commission, the FTC, to become heavily involved.

To my mind, this raises some potential concerns, because the FTC is an independent agency, as compared to the Department of Justice, of course, which is headed by a presidential appointee who with Senate confirmation serves at the pleasure of the president.

Do you have any opinion on this, this point that the Department of Justice, which is more accountable to the president and therefore has some connection to the people, should be more actively involved in communicating with foreign antitrust or competition authorities?

SESSIONS: I really wouldn't attempt to comment today on that. I would be glad to hear your thoughts on it.

I think it can be problematic if U.S. officials encourage foreign officials to join with them to -- against an action of a private company. They could put so much excessive pressure on them, that they're not able to resist, and when they may have a lawful basis to resist.

But -- so, these are big issues. And you have to be sensitive to the power that the Department of Justice has, the Antitrust Division has, and make sure that there is a principled policy and lawful basis for what is done.

LEE: Thank you, Senator Sessions. I see our chairman is back. Oh, he's not back?

Senator Feinstein.

SEN. DIANNE FEINSTEIN (D), CALIFORNIA: It's my understanding that Senator Durbin has not yet had his second round. And so I would like to defer to him.

I'm going to defer to Durbin, because he somehow got missed.


SEN. RICHARD DURBIN (D-IL), MINORITY WHIP: Thank you very much. I want to thank the chairman and my friend Senator Feinstein.

This morning, before the Senate Intelligence Committee, Director Comey of the FBI was testifying on the question of investigating the Russian involvement in this last election. And he was asked if there was any ongoing investigation about context between Moscow, the Russians, and any presidential campaigns.

And he refused to answer, said he wasn't going to discuss any ongoing investigations publicly.

I would like to ask you a question related to recusal. You stated earlier today that you had made the decision -- you haven't given us a real background on it, but made the decision that you would recuse yourself from any prosecutions involving Hillary Clinton or the Clinton campaign and e-mails.

And then I understand -- I wasn't present, but Senator Blumenthal asked you for some other hypotheticals as to whether you would recuse yourself on an emolument question or some other things. And you said you would take it on a case-by-case basis.

What if, hypothetical, same as Hillary Clinton, we are dealing with an investigation that involves the Trump campaign or anyone in the Trump campaign? Would you recuse yourself as attorney general from that prosecution?

SESSIONS: Well, my response to the -- to my recusal issue was because I made public comments about it that could be construed as having an opinion on the final judgment that would have to be rendered.

I don't think I have made any comments on this issue that go to that. But I would review it and try to do the right thing as to whether or not it should stay within the jurisdiction of the attorney general or not.

DURBIN: It would strike me that this is an obvious case for a special prosecutor if it involves the campaign leading to a candidate who selected you as the attorney general. Wouldn't an abundance of caution suggest that you wouldn't want any questions raised about your integrity in that type of prosecution? SESSIONS: Senator Durbin, I think it would be incumbent upon anybody

who is holding the office of attorney general at that time to carefully think his way through that to seek the advice and to follow the normal or appropriate special prosecutor standards.

And so I would intend to do that. But I have not expressed an opinion on the merits of those issues, to my knowledge.

DURBIN: Senator Sessions, there's been a lot of controversy about refugees. The United States had a dubious record on refugees during World War II, refusing to accept Jewish refugees who were then in some cases returned to Europe and the Holocaust and perished.

After World War II, a new policy emerged in the United States, a bipartisan policy. The United States became more open, in some cases generous, to accepting refugees. The numbers -- I have heard various numbers, but 650,000 Cuban refugees who came to the United States during the ascendancy of the Castro regime, 125,000 or more Soviet Jews accepted in the United States, spared from persecution in the Soviet Union, 400,000 from Eastern Europe after World War II, 400,000 from Vietnam, 150,000 from the former Yugoslavia.

In the audience is Omar Muqdad. I don't think if he could please stand here. Mr. Muqdad is a Syrian refugee. His story is the story of a journalist who for more than a decade publicized human rights abuses by the Assad regime, arrested seven times, imprisoned for two years.

When he refused to stop righting after that, the prison guards broke his hands. After his release from prison, he continued to write about the abuses of the Syrian security forces, when he was again pursued by the regime and fled to Turkey. He was resettled in the United States by Catholic Charities after receiving refugee status.

There have been some strong words spoken about Syrian refugees. In fact, during the course of the campaign, there were some who said we should accept none. And many have questioned whether we should accept any refugees from anywhere.

Despite the lengthy vetting process and background checks, some have said no refugees, we're finished with that business.

One of your responsibilities as attorney general will be the involvement of prosecutorial discretion, decisions that have to be made about the fate of men like Alton Mills I introduced earlier, who had served 22 years of a life sentence for the possession of crack cocaine, cases of Oscar Vazquez, a man who was a dreamer and wanted to serve the United States in uniform, in this case involving Omar Al Muqdad.


The American Bar Association standards say the duty of a prosecutor is to seek justice, not merely to convict. It is an important function of a prosecutor to seek to reform and improve the administration of criminal justice. When it comes to cases like these, in your role as the leading

prosecutor in the United States of America, what is your feeling about your discretion to make the decision as to whether or not to spare individuals like those I have described?

SESSIONS: I have been made aware in the last several years how this process works.

It's really the secretary of state, usually through consultation with the president, that decides how many refugees should be admitted to the country. And there's little Congress can do, other than getting into a funding argument with the president, about that.

So, Secretary Kerry met with members of the Judiciary Committee to announce what he planned to do on refugees. That will be how it would be decided. And, legally, the president appears to have that power.

But it would be my responsibility, I think, to make sure that it was exercised within the bounds of law.

DURBIN: But you have a responsibility, too. You oversee the Office of the Pardon Attorney, which recommends the sentences like those of Alton Mills of commuted. You oversee the immigration courts, which are responsible for interpreting how our nation's immigration laws apply to dreamers and refugees like Mr. Muqdad.

So, this isn't another agency. It is the Department of Justice. And you will be the leader of that department. You will have the authority and prosecutorial discretion. You can't point to Congress and you can't point to the State Department. There is a responsibility within your own department.

SESSIONS: Well, a refugee is admitted or not admitted to the United States on the approval or disapproval by the secretary of state and its consular officials. It's not a trial or not a litigation. So, that's how that would be on this determined.

The gentleman from Syria that you mentioned should have -- be able to make a strong case for his acceptance as a refugee because he's been damaged and injured and attacked and at risk for his writings. So that would give him a -- proving that should give them -- put him at a higher level of potential acceptance.

DURBIN: Well, I -- you and I can disagree on this one point and your authority over immigration courts as attorney general.

But I hope that we both agree that there are compelling cases of people who are victims around the world of terrorism, and war, discrimination, and maltreatment, men and women, and many of them look to the United States as the last possible place for them to find safety and security.

I hope, after the heated language of this last election campaign, that we can come back to some of the standards that have guided this nation since World War II. SESSIONS: Well, we will not end the refugee program. I would not

favor that. But we do have a responsibility to be careful and make sure those who are admitted have been properly vetted and are not a danger.

DURBIN: Thank you.

SEN. CHARLES GRASSLEY (R), IOWA: Before I -- this is what I would like to do. The votes kind of made this a convoluted rounds that we're in here. One person has had third rounds. We've got one person with no round.

And then Senator Sessions would like to take a break. So, here is what I would like to do, Senator Sessions, if it's OK with you.

I want to go with Senator Hatch, Senator Feinstein for their second rounds, and then Senator Kennedy for his first round, and give you a short break at that point. Is that OK?

SESSIONS: That would be good. Thank you.


And for the benefit of the rest of you, I kind of got lost out of this, but I have got to be here for the rest of the meeting, where maybe some of you don't have to be. So I will wait and do my second, third and fourth round when everybody else is gone.

FEINSTEIN: Isn't that nice?



GRASSLEY: Now it's Senator...

FEINSTEIN: I think it's Hatch.

GRASSLEY: Senator Hatch, yes.

SEN. ORRIN HATCH (R), UTAH: Senator Sessions, I think you have done a terrific job.

I have known you all your 20 years. I have watched you work diligently on the Judiciary Committee and on your other committees as well. You're an honest, decent man.

And you have tremendous abilities in law enforcement. And you have proven it here today and you're showing it here today.

It's hard for me to understand why anybody would be against you.

Let me ask just a couple questions. I want to emphasize that you have wide support for your