Return to Transcripts main page

CNN Newsroom

Senate Judiciary Committee Hearing on the Nomination of Merrick Garland to be A.G.; Garland Faces Senate Questions; Garland Slams Jan. 6 Riot: "Attack on the Cornerstone of Democracy". Aired 10:30-11a ET

Aired February 22, 2021 - 10:30   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

[10:30:00]

SEN. DIANNE FEINSTEIN (D-CA): So this is not the first time the Justice Department has been forced to investigate and prosecute white supremacists for an act of terrorism. You received high praise for investigating and supervising the prosecution of the Oklahoma City Bombing perpetrators in 1995.

So here's the question: What steps will you take to ensure that the perpetrators of the attack on our Capitol are brought to justice?

JUDGE MERRICK GARLAND, U.S. ATTORNEY GENERAL NOMINEE: Senator, I think this was the most heinous attack on the democratic processes that I've ever seen, and one that I never expected to see in my lifetime.

One of the very first things I will do is get a briefing on the progress of this investigation. I intend to give the career prosecutors who are working on this matter 24/7 all of the resources they could possibly require to do this.

And at the same time, I intend to make sure that we look more broadly, to look at where this is coming from, what other groups there might be that could raise the same problem in the future, and that we protect the American people. And I know that FBI director has made the same commitment.

FEINSTEIN: Thank you for that answer.

Over the last four years, the independence of the attorney general has been repeatedly attacked. For example, President Trump once told The New York Times, quote, "I have the absolute right to do what I want to do with the Justice Department," end quote.

Do you believe that in fact the president does have the absolute right to do what he wants with the Justice Department?

GARLAND: The president is constrained by the Constitution, as are all government officials. The issue here for us are the set of norms and standards to which this president, President Biden, has agreed that he will not interfere with the Justice Department with respect to its prosecutions and investigations. Those decisions will be made by the department itself and by -- led by the attorney general. And that they will be without respect to partisanship, without respect to the power of the perpetrator or the lack of power, without respect to the influence of the perpetrator or the lack of influence, in all of those respects the department will be independent.

The department is a part of the executive branch. And for that reason on policy manners, we follow the lead of the president of the administration as long as it is consistent with the law. And the role of the department is to advise the president and the administration and the other agencies about what is consistent with the law. That is our obligation and we will do so, objectively, based only on our reading of the law.

FEINSTEIN: Well, thank you for that. I think you have laid it out clearly and directly and it's very much appreciated.

If the president's interest and the public's interest are in conflict, which interest does the attorney general represent?

GARLAND: The attorney general represents the public interest, particularly and specifically as defined by the Constitution and the statues of the United States.

FEINSTEIN: Do you believe that the president has the authority to order the attorney general to open or close an investigation or a prosecution?

GARLAND: This is a hard question of constitutional law, but I do not expect it to be a question for me. As I just said to you, the president has promised that those decisions will only be made by the attorney general. And that is what I plan to do. I do not plan to be interfered with by anyone. I expect the Justice Department will make its own decisions in this regard.

FEINSTEIN: Well, thank you. I'm going to cease at this time. But I just want to say that I think you have had a remarkable career. You have done very special things and always in a very reasonable, sober, penetrating way. So I just want to say thank you for that.

GARLAND: I'm grateful, Senator. Thank you for that.

FEINSTEIN: Thank you, Mr. Chairman.

DURBIN: Thank you, Senator Feinstein.

We hope that Senator Graham, who is next up, is ready? Senator Graham?

GRAHAM: Can you hear me?

DURBIN: We can hear you. You have eight minutes.

GRAHAM: Great. Yes, sir. Congratulations to you.

And, Judge Garland, congratulations on your appointment. I think you are a very good pick for this job. So I'm going to try to go through as much information as I can.

[10:35:00]

Do you promise to defend the Portland Courthouse against anarchists, the federal court building in Portland?

GARLAND: Any attack on a federal building or damage to a federal building violates federal statutes and those who do it will be prosecuted.

GRAHAM: OK. When it comes to the people who attacked the Capitol on January the 6th, will you let the committee know if you need more resources?

GARLAND: Yes, absolutely, Senator. As I said -- I really do think one of my first jobs is to consult with the prosecutors and the agents who are investigating that manner and see what resources they need. And I'm eager to have an invitation...

(CROSSTALK)

GARLAND: I'm eager to have an invitation from the Senate to ask for more resources.

GRAHAM: Thank you. I think all of us want to prosecute every single person that deserves to be prosecuted. So, whatever you need, I'm sure you will get from this committee.

GARLAND: Thank you, Senator.

GRAHAM: Have you read the Horowitz Report?

GARLAND: Senator, in our conversations, you asked me to read it. It's some 400 pages long and I asked you for permission to read only the also very long executive summary.

GRAHAM: That's good.

GARLAND: And I have done that.

GRAHAM: So what is your general take?

GARLAND: Well, my general take is that there were certainly serious problems with respect to FISA applications, particularly for Mr. Page. And in the subsequent report to the way in which FISA applications are documented. The inspector general had a substantial number of recommendations for how this could be fixed and how it must be fixed. I understand that he submitted those to the FBI director. And I understand the FBI director agreed totally, and either has made those changes or is in the course of making them.

I intend, if I am confirmed, to speak more deeply and directly with Mr. Horowitz, the inspector general, about this, and with Director Wray and make sure that these and any other things that are necessary will be done. I am always concerned and have always been concerned that we be very careful about FISA. It is a too that is very useful and important for investigations involving foreign agents.

GRAHAM: That's good to hear.

So, Clinesmith, are you familiar with the fact that a lawyer for the FBI has been prosecuted, pled guilty to altering information to the FISA court?

GARLAND: I did read about that, yes, Senator.

GRAHAM: What would happen to somebody under your charge that did that? How would you feel about that behavior?

GARLAND: Well, somebody who makes a false statement to the FBI or the inspector general during an investigation has violated 18 USC 1001, and I prosecute those myself.

GRAHAM: Do you believe the Durham investigation is a legitimate investigation?

GARLAND: Senator, I don't know anything really about the investigation.

GRAHAM: You've read the Horowitz Report, do you think somebody should look at what happened?

GARLAND: Well, I do think somebody should look at what happened with respect to those FISAs, absolutely. And I believe the inspector general has done that.

GRAHAM: Based on what -- your review of the Horowitz Report, do you think Jim Comey was a good FBI director?

GARLAND: Senator, I really don't want to get into analyzing any of the previous directors and...

GRAHAM: Well, you have been very critical and appropriately so at times. I just find it pretty stunning that you cant say, in my view, that he was a terrible FBI director. But have you ever been to the border? Have you ever been to the U.S.-Mexican border?

GARLAND: No, sir, I haven't.

GRAHAM: So I would like you to go, because I just got back, because I learned that drug cartels are using our solemn laws against us. They will collect people to sort of rush the border. And once they are apprehended, they will claim asylum. And most of these claims, 90 percent, are rejected. And that will take resources away from securing the border and detecting drugs and protecting the nation against terrorism. This is a behavior by the cartels. Will you look into that practice of using asylum claims by drug cartels to weaken border security?

GARLAND: Well, I have not known about this and I will certainly look into this problem. I think the drug cartels are a major menace to our society. And the poison that they put into our streets is damaging communities of every kind. If they have a particular...

(CROSSTALK)

[10:40:00]

GRAHAM: Well, I would ask you to visit the border, I think you will find patriots there and when they make mistakes, they need to be held accountable. But that's one of the toughest jobs in the country. This is...

GARLAND: Senator -- Senator, I apologize for speaking over you just now. But there is a little bit of a lag...

GRAHAM: I'm sorry.

GARLAND: It's not your fault, it's a lag in the technology, I think.

GRAHAM: OK. Well, I did take my -- I have a southern accent, so I...

GARLAND: It's not the accent. I'm familiar with Southern accents.

GRAHAM: OK, it must be the Internet. This is the 20th anniversary of 9/11. Are you concerned that Al Qaida and ISIS types are going to try to hit us again?

GARLAND: I am very concerned that foreign terrorist organizations will try to hit us again, yes. I -- I don't know enough at this point about the capabilities of those two but it really doesn't matter which foreign terrorist that -- that -- that -- the terrible thing is the attack.

And as I said in my opening statement, with all the other things that the Justice Department has to do, it must always keep its eye on the ball with respect to a foreign terrorist attack. I -- I -- I was sitting in -- in my office -- arriving at my office as the first planes -- first plane hit the Trade Center and I was sitting in my office, I could see smoke rising over the Pentagon. I can assure you that this is top of mind for me.

GRAHAM: Well, one of the reasons I am very inclined to support you is I believe what you just said is true. I think you have a very deep understanding of the -- the threats America faces. And to my colleagues on the committee, Al Qaida has been diminished, ISIS' footprint has been greatly diminished but they're out there and they're trying to -- they will, this year, sometime -- I hope I'm wrong -- let us know they're still there. So it's great to hear the -- the potential future Attorney General understanding that our nation is very much still under threat.

So when it comes to interacting with the committee, we're going to be talking about Section 230 reform. What's your impression of Section 230 liability protection for big tech and is it time to revisit that topic?

GARLAND: Senator, I -- I have to be the first to -- to confess when I have relatively limited information about a subject. I have had one case on Section 230, as a very straightforward application of the law, so of course I know what it is. I also know that many members of this committee have ideas for how it should be amended and I -- I would have to have an opportunity, if I'm confirmed, to talk with you about that and to understand all the conflicting concerns and the -- and the complexities of -- of how to alter, if it's to be altered. The devil in these sort of things is always in the details and you -- you, on the committee, know more about this than I do and I look forward, if I'm confirmed, of having the chance to talk about it with you.

GRAHAM: Thank you. Congratulations on your nomination. Thank you, Mr. Chairman.

GARLAND: Thank you, Senator.

DURBIN: Thank you -- thank you, Senator Graham. Senator Whitehouse?

WHITEHOUSE: Thank you, Chairman. And welcome, Judge Garland.

GARLAND: Thank you, Senator.

WHITEHOUSE: People who have been prosecutors understand that it's not the legislature's business to meddle around in a prosecution. At the same time, we have oversight responsibilities. In your view, is it appropriate for Congress to ask the DOJ "give an honest look at investigative matters"?

GARLAND: Senator, I -- I know of your own long experience as a prosecutor, including some of it which overlapped with mine, and I'm deeply respectful of it and appreciative of it. When you ask it that way, it -- it is -- of course, it's always possible for any -- anyone to ask about matters like this.

The department has to be very careful with respect to the Congress, in the same way it has to be respectful -- careful with respect to the White House, that no investigations get started just for partisan -- and I'm not, in any way, suggesting that's what you were asking.

WHITEHOUSE: Nope, I agree with you.

GARLAND: We have to be careful about this.

WHITEHOUSE: And after the fact, once the investigation is closed or concluded, is it appropriate, in the exercise of our oversight, to assure that, in fact, an honest look was taken?

GARLAND: Yes, of course, it is. There are obviously limitations on the department's ability to speak. They include everything from grand jury...

(CROSSTALK)

WHITEHOUSE: Understood. Understood.

[10:45:00]

With respect to January 6th, I'd like to make sure that you are willing to look upstream from the actual occupants who assaulted the building, in the same way that in a drug case, you would look upstream from the street dealers to try to find the kingpins, and that you will not rule out investigation of funders, organizers, ringleaders or aiders and abettors who were not present in the Capitol on January 6th? Fair question?

GARLAND: Fair question, and again, your law enforcement experience is the same as mine. Investigations -- you know, I began as a line Assistant U.S. Attorney, on -- as a supervisor. You know, we begin with the people on the ground and we work our way up to those who are involved and further involved and we will pursue these leads wherever they take us.

WHITEHOUSE: Thank you.

GARLAND: That's the job of a prosecution.

WHITEHOUSE: As Chairman Durbin mentioned, there have been widely reported problems within the department in the last four years -- the -- Judge Gleeson's brief for Judge Sullivan is one pretty stunning reproach of the department, judicial decisions out of the D.C. District Court and the Southern District -- District Court have been pretty damning, and press reports, too many to mention, have raised concerns about problems within the department during that period.

How do you plan to assess the damage that the department sustained so that you can go forward with a clear understanding of what needs repair?

GARLAND: Well, Senator, I -- I -- I am a strong believer in the -- following the processes of the department. That -- that was my experience in the -- all of my experiences at the department, regardless of whatever level I served.

The traditional process is for issues to be raised before either the Inspector General or the Office of Professional Responsibility, in the areas that you're -- that you're talking about, that they conduct investigations and they certainly seem to -- extremely capable of conducting thorough investigations. They then make recommendations.

And that would be the normal procedures in the department and I would suspect, if I'm confirmed, that those would be the kind of procedures I'd want to follow.

WHITEHOUSE: Well, I would submit to you, you may want to take it on more systematically than that, but we can leave that for a later day. On this committee, and particularly on this side of this committee, we have experienced more or less a four-year stonewall of information from the Department of Justice and from the FBI. From 2017 to 2020, we had 25 DOJ and FBI witnesses who failed to answer some or all of the questions for the record that senators asked them. Twenty-one answered none of the questions of the record from either side.

I have sent, during the course of those years, 28 different letters on various subjects that went completely unanswered. It got so bad that Chairman Graham brought the deputy attorney general up to meet with him and me to go through the list and try to figure out why the hell we weren't getting answers, and where the policy came from, the de facto policy of refusing to answer questions of senators. I think we need to understand what happened during that period, why these questions weren't being answered. The base question, the point of entry is, why were these questions not being answered? Upon whose instructions were these questions not being answered? Why? What was behind? What was the motive for refusing to answer these questions? Once we've cleared that up, then I think we've got to go through the backlog of questions that the department refused to answer. As you know, sometimes Congress asks questions that are touchy for a department. Somebody may have misbehaved. There may be wrongful conduct that has taken place. And I hope you will agree that covering up misconduct is never an acceptable reason for refusing to answer questions of Congress.

GARLAND: Well, I certainly agree that covering up anything is never an appropriate reason for not answering a question of -- of Congress. There will be no policy, de facto or otherwise, if I am confirmed that would direct the department to not be responsive to this committee and to its members. I -- I want the -- the department I lead to be as responsible -- responsive as possible, and at the very least, to explain why, if it can't answer a question or can't answer a letter, why it can't do so.

WHITEHOUSE: Correct.

GARLAND: That's the minimum you're entitled to.

WHITEHOUSE: Correct. And I don't want this just going forward; I want to be able to go back and get answers to those backlogged questions that were wrongfully refused. Would you help us make sure that that happens?

[10:50:00]

GARLAND: Yes, Senator. As we talked in our -- in our conversation before, I'm -- would definitely direct that the previous answer -- questions be answered. I -- I only ask you and the other members of the committee as a matter resource and priority allocation, to give us, the department, some sense of the priorities -- which ones still need to be answered, and...

WHITEHOUSE: Correct.

GARLAND: ... perhaps even in what order.

WHITEHOUSE: We will do that.

And last, I have just a few seconds left, so I'll just flag two things. I think that the Office of Legal Counsel has taken a lot of hits, from the torture memos, to the warrantless wiretap memos, to the Southern District decision, to the D.C. court decision, to its extremely self-serving and self-propagating view of presidential investigations. This is a part of the department that I think is in real trouble.

Another role of the department's is the policing and the intermediation of executive privilege for an administration, and I think that is an area that has been in complete collapse, and I look forward -- with my time now expired -- to working with you to figure out what to do about OLC and what to do about the intermediative (ph) role of the Department of Justice when executive privilege is asserted.

GARLAND: Thank you, Senator. I look forward to speaking with you.

DURBIN: Senator Cornyn?

CORNYN: Welcome, Judge. I enjoyed our conversation the other day. Thank you for that.

GARLAND: As did I. Thank you.

CORNYN: Thank you for that.

As I told you, my sole criterion for voting for your confirmation is your pledge to make sure that politics does not affect your job as attorney general, and I believe you told me that you could make that commitment. Is that a commitment you can make here publicly today?

GARLAND: Yeah -- yes, absolutely. I would not have taken this job if I thought that politics would have any influence over prosecutions and investigations.

I do -- I do want to, just to be clear about -- to -- to clarify, so as -- as to not disappoint you, with respect to policies of the -- of the administration, which I assume are driven by politics, although as a judge, I -- I wouldn't know for sure -- I -- it is our obligation to advance the policies of the department as long as they are consistent with the law, and our evaluation of the law has to be based only on the law, and not politics.

CORNYN: Thank you for that clarification. I think being attorney general has got to be the toughest job in the United States government, because you serve at the pleasure of the president, but you also have, as you appropriately point out, a obligation to equal justice and impartial enforcement of the law. If you were asked to do something that you considered to be in violation of the law or unethical, would you resign?

GARLAND: Well, the first thing I would do is to tell the president, or whoever else was asking me to do that, that it was unlawful. I do not expect this to happen with this president, who has made it completely clear publicly and in private that he will not do that. But of course, if I am asked to do something and an alternative is not accepted, I would resign, yes.

CORNYN: OK. Judge Garland, I think one of the biggest problems that the administration of justice has had here in the United States for the last -- particularly, the last couple presidencies, has been the perception that there is a double standard: one that applies to, maybe, one political party or people with -- of wealth, and another one that applies to the opposing political party or people who don't have the resources in order to defend themselves against the awesome investigative and prosecutorial powers of the Department of Justice. Of course, you're acquainted with the -- with the phrase about the Supreme Court, equal justice under the law. Do you agree with me that a double standard -- a perception of a double standard of justice can be a cancer that will eat away at public confidence in the administration of justice and that commitment to equal justice?

GARLAND: Absolutely, Senator. As I said to many people, I think probably including yourself, Ed Levi is my model for the attorney general. His role was to be sure that justice was meted out fairly and impartially, without any special favors for anyone. This is the definition, in my view, of the rule of law: that the powerful and the powerless, one party and another party, one community in the United States and another community in the United States, all are treated equally in the administration of justice.

[10:55:00]

CORNYN: The chairman's recitation of things that he perceives as being inappropriate at the Department of Justice ended with the Trump -- started and ended with the Trump administration. But let me take you back a little further into the Biden-Obama administration.

You're familiar with the press conference of James Comey, the FBI director, had in July of 2016...

I'm...

CORNYN: ... when he discussed the investigation of Hillary Clinton for inappropriate use of her e-mail server?

GARLAND: I remember it, Senator, yes.

CORNYN: According the Justice Department norms and procedures and rules that you're well acquainted with as a result of your experience, is that an appropriate step for an FBI director to take, to talk about derogatory information in a case that they say no reasonable prosecutor would pursue?

GARLAND: Senator, I don't think it's useful for me to comment on specific matters involving specific former officials, but I have no problem at all telling you that the Justice Department's policies make clear that derogatory comments about subjects, targets, even people who have been indicted -- except for what's in the indictment -- are not appropriate.

And if I am confirmed, I will zealously attempt to re-inculcate that spirit. When I was in -- when I was speaking to the press after each court hearing in Oklahoma City, I was assiduous in making sure that I did not say anything about the defendants who had just been before the court, and who had done -- now I know -- we know, after conviction, horrible things, that I would not say anything other than what the charges had been brought against them, what the judge reported. I believe that is an important part of a federal prosecution.

CORNYN: I know you don't want to comment on Mr. Comey's actions, but what you just described strikes me as -- as diametrically opposed to what he actually did.

Senator Graham asked you if you'd read the Horowitz Report on the investigation of Crossfire Hurricane. I understand that your time has been limited up to this point, but do you -- would you pledge to read all 404 pages of that report if you're confirmed?

GARLAND: I will, Senator. It may take me some time, but I have a head start by reading the executive summary, so I think I should be able to get through it.

CORNYN: Well, I think it's really important...

GARLAND: OK.

CORNYN: ... that you do so. Because of the abuse, not only of the FISA process, where an FBI lawyer lied to the FISA court in order to get a warrant to spy on a -- on an American citizen, but the abuse of counterintelligence investigation, a counterintelligence investigation against a presidential candidate and (ph) in the run-up to the election.

Are you familiar with the Steele dossier?

GARLAND: Only what I read in the newspapers, and I have to admit that I've read only conflicting reports about it in the papers.

CORNYN: Well, it's -- it's been revealed that the sources for the Steele dossier, which was used in part in order to get FISA warrants, that the subsources could well be -- could well be Russian intelligence officers using that in order to get -- as part of a Russian active measures campaign. Are you familiar with the practice of the Soviet Union, and now the Russian Federation, to use active measures as part of their intelligence service attacks against the United States?

GARLAND: So not from my experience either as a judge or as a prosecutor, but again, from reading media reports, I know what the words mean and I have a general idea of what you're speaking about, yes.

CORNYN: Judge Garland, my time's about up. But I think we talked about the role of the Judiciary Committee in authorizing the tools, like Section 702 of the Foreign Intelligence Surveillance Act, and the importance of preserving public confidence that those tools will be appropriately used, and there will be appropriate oversight both at the Department of Justice and the FBI as well as the Judiciary Committee and the Intelligence Committees.

Do you agree with me that abuse of those authorities jeopardizes the availability of those tools in a way that is detrimental potentially to the security of the United States?

GARLAND: Absolutely, Senator. My entire career as a Justice Department official was aimed at ensuring that we used FISA only as appropriate under the law as it existed at the time. It's not only that I'm worried about losing a tool that's essential, it's also that I'm worried about transgressing the constitutional rights of Americans. Both of those are important.

[11:00:00]