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Confirmation Hearing for Attorney General Nominee Merrick Garland. Aired 11:30a-12p ET

Aired February 22, 2021 - 11:30   ET

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

(JUDGE GARLAND'S CONFIRMATION HEARING)

SEN. MIKE LEE (R-UT): Voted for rehearing en banc with respect to an opinion striking down that same ban on handguns within the District of Columbia.

[11:30:16]

And, of course, later in the same proceedings of the same case, the Supreme Court struck down the ban.

Can you tell us why you voted the way that you did and why you voted to give D.C. another chance to defend its ban on handguns in that case?

MERRICK GARLAND, ATTORNEY GENERAL NOMINEE: Yes, Senator. As I know you know, because you were a law clerk yourself, you know that rehearing en banc is a vote to hear a case, it's not a vote on the merits of case. And in my case, for myself, it is never a vote on the merits, it is a vote to rehear the case.

The panel decision was the first time I think ever a court of appeals had held the individual right to keep and bear arms, which you are exactly right, the Supreme Court did uphold in the end. Every court of appeals had decided to the contrary and the issue was plainly one that would require looking at a deep historical record, as to the meaning of the Second Amendment and it's the way that it had been applied.

And I thought that this was extremely important issue, important enough since it was the very first time that we should hear it en banc. I was not the only judge and other judges, including a judge appointed a president of a different party, also voted and for the same reason so that we would have an opportunity to hear the case.

LEE: Thank you. I appreciate that.

Let's talk a little bit about the meaning of the Second Amendment. How do you view it and do you agree with Justice Thomas' analysis in his dissent in the Rogers Case that the Second Amendment right to bear arms certainly includes the right to carry operable firearms in public for self-defense?

GARLAND: So, my view is totally controlled by the Heller opinion. And in that case, Justice Scalia held that there was an individual right to keep and bear arms for self-defense. In the subsequent McDonald Case, the court said that was a fundamental right, which applied to the states as well. It is a right, as Justice Scalia said in the opinion, like all rights that is subject to some limitations.

The court has not given us much more to work with at this point. And I do think, as I said with respect to my vote en banc, this is a matter that requires careful historical examination, which I have never done and I certainly can't do sitting here for you. So I don't have an opinion on that question.

LEE: Okay. You've been in a judicial role for the last 20, going on 25 years.

GARLAND: Yes, Sir.

LEE: You'll be in a different role if confirmed to this position, one in which you'll have a significant impact on policy. So let's talk about policy as it relates to the Second Amendment briefly. Do you support universal background checks?

GARLAND: Well, I do think that it is very important that we be careful, that people who are entitled to have guns are -- get the background check that allows them to have them, and that those who are not entitled and who we are concerned about, because they're threats, because they're felons or for whatever reason barred by the law that we have -- that there is an opportunity to determine that they not be given a gun.

LEE: Do you support banning specific types of guns?

GARLAND: I'm sorry?

LEE: Do you support banning of certain types of firearms?

GARLAND: Well, as I'm sure you know, the president is a strong supporter of gun control and has been an advocate all of his life, professional life on this question. The role of the Justice Department is to advance the policy program of the administration, as long as it is consistent with the law.

And as I said so far, we have a little indication from the Supreme Court as to what this means but we don't have a complete indication. And where there is room under the law for the president's policies to be pursued, then I think the president is entitled to pursue them.

LEE: What about policies that would support holding firearms manufacturers liable for damage caused by people using firearms they produced to commit a crime?

GARLAND: I don't have a -- I believe that the president may have a position on this question. I have not thought myself deeply about this. I don't think it raises a Second Amendment issue itself, the question of liability protection, but I have not addressed this in any way and I need to think about this considerably more.

[11:35:11] LEE: The other questions I raised potentially implicate the Secondary Amendment, that one raises other policy concerns and I understand that.

Let's talk about FISA briefly. Senator Leahy and I have offered an amendment to reform the FISA process by strengthening the amicus curiae provisions. They're already in there in existing law have been put in there by among other provisions, the USA Freedom Act, which Senator Leahy and I got passed through Congress and signed in law by President Obama in 2015.

And our amendments would also require the government to disclose relevant exculpatory evidence both to the FISA court and to the amici. This was an amendment that ended up passing the Senate last year by a bipartisan super majority of 77-19.

Do you support reforms to FISA, like those I just described in the Leahy Amendment?

GARLAND: So I think FISA is an extremely important tool for the Justice Department and the intelligence community in general to protect the country from foreign agents and foreign terrorists. On the other hand, it is extremely important that everything we do with respect to FISA, and I have felt this way my entire professional life also, that we do so in accordance with the law and with respect for the constitutional rights of citizens.

I don't know very much specifically about your two proposals. I do know the current rules with respect to amicus and I have had the opportunity to discuss those with judges on foreign intelligence surveillance court and everyone seems quite happy with the way that process is going. I don't know what more might be needed. I would have to study that.

LEE: Mr. Chairman, I see my time is expired. I have got one very brief follow-up. Can I just finish that question? Thank you.

On this topic of questions related to FISA, I also wanted to ask you, do you think that the federal government ought to be able to collect American citizens' web browsing or internet search history without a search warrant supported by probable cause?

GARLAND: I know this is a big issue. I don't -- my experience with FISA comes from a slightly different era. I have a lot of experience but it was very different era and I follow this a little bit. I obviously haven't had any cases on it myself. I would have to look at it.

I believe in judicial review and I'm a strong supporter and respectful of judicial review of orders, but I don't know what the practicalities of going for a probable cause warrant in those circumstances would be, if it would be an emergency, et cetera. And I would be eager engage with you and other members of the committee who are concerned about this so that I can understand this problem more fully.

LEE: Thank you very much, Mr. Chairman. SEN. DICK DURBIN (D-IL): Senator Coons.

SEN. CHRIS COONS (D-DE): Thank you, Chairman Durbin and Ranking Member Grassley. Judge Garland, welcome.

GARLAND: Thank you.

COONS: And congratulations on your nomination. And please convey my thanks to Lynn, to Jake, to Becky, to your family for supporting what has been a decades' long career at the bench and bar as someone dedicated to public service, to law enforcement and to upholding the balance between justice and liberty.

I cannot think of a more urgent task before us than restoring the people's faith in our institutions and in the rule law and your opening statement, which, in part, was dedicated to clarifying your view that the attorney general represents the public interest and your enthusiasm for ensuring that the 115,000 career employees of the Department of Justice are appropriately sheltered for partisan or political influence is very encouraging to me after what I think were some harrowing moments in the last few years.

As I'm sure you know, there are quite a few admirers of yours who worked here in this committee, some former clerks of yours who work closely with me and many who have reassured me not just of your professional skill and great insights but also of your personal decency, kindness and thoughtfulness.

I was struck in reading through your background that you've spent 20 years quietly as a tutor in an elementary school here in the District of Columbia, something I think not enough elected or appointed officials on either the bench or in Congress do. So thank you for your willingness to continue your service.

I'm from a small town in Delaware, which like many other cities in America, was torn apart by concerns about racial justice and inequality, a city that has also struggled with longstanding challenges with gun violence and with the insecurity and instability community.

[11:40:03]

Our mayor, Mike Purzycki, our governor, JohnCarney, are doing a great job in working hard to try and address this and striking the right balance between protecting our citizens from gun violence but also developing an environment where law enforcement is more transparent and accountable, it is going to be one of the core challenges which you and the Department of Justice will be involved in, in partnership with state and local law enforcement and with other elected officials.

In Wilmington and Dover, Delaware, we're rolling out body-worn cameras for law enforcement officers. Our governor has committed to having that available for all of our law enforcement officers by 2025, but it is very expensive. It is something that law enforcement has embraced, something that advocates have embraced. I am an appropriator for the Department of Justice as well as a member of this committee. Is that something you could agree to, to be an advocate for the funding and deployment of body-worn cameras to ensure both accountability and improve trust between law enforcement and local communities?

GARLAND: Well, Senator, I'm again always happy to accept more resources for the Department of Justice. I don't know what that might take away from in other areas of the department but I personally think that body cams are a very important tool to protect -- both to protect officers and to protect the citizens.

And just as everyone -- you all are on the inside and I was on the outside watching what happened on January 6th and the fact that we were able to see exactly what was happening to the officers and the way in which they were carrying about their duties in the best way they could is only possible to be captured because of the body cameras. I think it is an important tool for accountability, yes, I do.

COONS: Thank you, your honor. If you might, I do think it is important that we increase investment in a variety of programs. I've long worked for the Victims Child Abuse of Act. COVID-19 has demonstrated a tragic rise in child abuse. And this is a critical tool that allows state and local law enforcement to effectively address child abuse, the Bulletproof Vest Partnership Program, which has helped save 3,000 officers' lives, these and other grant programs I look forward to working with you on.

There is also a much needed legislation that will move us forward in terms of criminal justice reform and protecting communities from violence. Senator Cornyn and I have hoped to soon reintroduce the NICS Denial Notification Act, which just ensures that state and local law enforcement gets notified when a person prohibited lies and tries, they attempt to purchase a gun. That is something that has been discussed in previous Congresses on this committee. We haven't made progress on it. I think we should.

Senator Wicker and are soon going to reintroduce the bipartisan Driving for Opportunity Act, which incentivizes states to stop suspending driver's licenses simply for unpaid fines and fees. It is a cruel, counterproductive way to take away people's ability to get to work and ensures people are trapped in modern day debt prisons. It's something that has strong support from law enforcement and civil rights groups. And I would just be interested in whether you'll work with us here in Congress to move bipartisan bills like these two.

GARLAND: I'm extremely interested if I'm confirmed in working with the members of Congress and particularly on bipartisan legislation. I don't know specifically about those but each of them has the ring of something that is very important and quite reasonable.

COONS: Well, enactable, reasonable, moving the ball forward are the sorts of things I hope we get to work on.

I'll be serving as the chair of the subcommittee on privacy, technology and the law on this Congress, and I look forward to working with Senator Sasse, who will serve as ranking member. One of the core things we'll be looking at is how online misinformation is contributing to domestic terrorism, to division here. You've discussed your own experience with domestic terrorism cases and your plan to prioritize this issue and something the FBI director has said is one of our most pressing threats.

Do you think the DOJ has a role to play in examining the role of misinformation and incitement online to contributing to violence and that the DOJ has a role in working to help us develop reasonable solutions to this challenge?

GARLAND: Well, again, Senator, I think that every opportunity that the Justice Department has to work with members of the Senate, I think about how to solve problems and how to craft legislation is one that we should take.

I don't have in mind particularly legislation in this area. I do think that an important part of the investigation of violent extremist groups is following their activities online and getting an idea of what kind of information and misinformation is being put out.

[11:45:09]

I look forward to talking more about this with you.

COONS: Well, there is increasing regulatory schemes both in Europe and in California and other states being considered. And I look forward to working with you on striking that appropriate balance between protecting data privacy, protecting individual liberty but also protecting the competitiveness of the United States and globally, making sure that we're pushing back on digital authoritarianism.

Last, I'm glad to see the department is prosecuting. I think there's 235 charges so far against rioters who invaded the Capitol and attacked our democracy on January 6th. I've supported calls for 9-11- style independent commission to investigate the bigger picture of what caused this and what we might learn from it.

Do you think an independent commission of that style would help complement the department's work and help the American people better understand the root causes of that riot, that incident and then better help us both protect the Capitol and those of us who serve here but more importantly protect the underpinnings of our democracy?

GARLAND: Well, Senator, I do think the 9/11 commission was very useful and very helpful in understanding what happened then. And, of course, the Congress has full authority to conduct this kind of oversight investigation or to set up an independent commission.

The only thing that I would ask, if I were confirmed, is that care be taken that it not -- that commission's investigation not interfere with our ability to prosecute individuals and entities that caused the Capitol -- the storming of the Capitol.

And as well you know, this is a very sensitive issue about disclosing operations, which are still in progress, disclosing our sources and methods and allowing people to testify in a way that makes it impossible to prosecute them.

So, with those caveats, I certainly could not object to anything that Congress would want to do in this regard.

COONS: Understood. Thank you, Judge. I am encouraged by the broad bipartisan support you've already garnered from this committee and publicly and look forward to supporting your confirmation.

GARLAND: Thank you very much, Senator. I appreciate it.

DURBIN: Thank you, Senator Coons. Senator Cruz.

SEN. TED CRUZ (R-TX): Thank you, Mr. Chairman. Judge Garland, welcome.

GARLAND: Thank you, Senator.

CRUZ: Congratulations on your nomination.

GARLAND: Thank you.

CRUZ: In two-plus decades on the court, you have built a reputation for integrity and for setting aside partisan interests and following the law. The job to which you have been appointed is a very different job. And as I look back over the eight years of the Obama/Biden Justice Department, in my view, the most problematic aspect of that tenure was that the Department of Justice was politicized and weaponized in a way that was directly contrary to over a century of tradition of the Department of Justice of being apolitical and not a partisan tool to target your opponents.

So it is very much my hope, if you're confirmed as attorney general, that you will bring that reputation for integrity to the Department of Justice and demonstrate a willingness to stand up for what will be inevitable political pressure to once again politicize the Department of Justice and use it as a tool to attack the political opponents of the current administration.

Eric Holder, before he was nominated as attorney general, had likewise built a reputation as being relatively non-partisan and a prosecutor with integrity. And, unfortunately, his tenure as attorney general did enormous damage to that reputation. As was previously discussed, Eric Holder described his role as attorney general as being the wing man for President Obama.

Am I right in assuming that you do not view your role as attorney general as being Joe Biden's wing man?

GARLAND: Senator, I said I don't want to comment on any individual's conduct as -- I think my predecessors or FBI director's conduct in any way but I could assure you I do not regard myself as anything other than the lawyer for the people of the United States. And I'm not the president's lawyer, I am the United States' lawyer.

[11:50:04] And I will do everything in my power at which I believe is considerable to fend off any effort by anyone to make prosecutions or investigations partisan or political in any way.

My job is to protect the Department of Justice and it is employees in going about their job in doing the right thing according to the facts and the law.

CRUZ: Under the Obama administration, the IRS targeted the political opponents of the president. It targeted conservatives for their speech, it targeted pro-Israel groups, it targeted tea party groups, it targeted individuals perceived to be on the opposite political side as the administration. Will you commit as attorney general that you will not allow the Department of Justice to target those who are perceived as political opponents because they are political opponents?

GARLAND: Absolutely, I will not.

CRUZ: Also under the Obama administration, Operation Choke Point was used to pressure lawful organizations, lawful institutions, institutions, for example, that sell firearms to constrain their lawful activity and to use regulatory authority to abuse and force them to comply with the administration's stated policies. Do you believe it's appropriate for the administration to use regulatory pressure to force lawful behavior to stop?

GARLAND: Senator, I'm not aware of the specific that you're giving, and I expect you don't expect that I would have been aware of it, but, of course, I do not believe, as a general matter, that regulation should be used to stop people from doing what they're lawfully entitled to do, unless the regulation is pursuant to a statute, obviously, in which Congress has given authority to change the rules.

CRUZ: As you also know, Attorney General Eric Holder was kept held in contempt of Congress, criminal contempt of Congress. That was a bipartisan vote. 18 Democrats voted to hold Attorney General Holder in contempt. They did so because he refused to produce documents to Congress for Congress' investigation of the Fast and Furious Scandal, a major scandal that resulted in the death of two federal law enforcement officers.

You've previously committed to senators on this panel that, under your leadership, the Department of Justice will comply to the extent possible with requests from this committee, and I want to, in the course of this question, associate myself with Senator Whitehouse's comments and questions. He and I disagree on a great many issues, but on this particular issue, we are emphatically in agreement that senators from this committee should get answers, should get candid answers, should get substantive answers, should get real answers from the Department of Justice regardless of the party of the senator asking that question, that is a level of oversight that the American people have a right to expect. Do you agree with that?

GARLAND: I do think that this is a level of oversight the American people have a right to expect. I want the department, if I'm confirmed, to be responsive to the extent it's possible with respect to the Justice Department's appropriate equities to be responsive to the requests for information.

CRUZ: So, previously, you said you've read the executive summary of the Horowitz report. What was your reaction to the Horowitz report?

GARLAND: Well, I thought, as Mr. Horowitz explained, and I don't -- I believe that Director Wray agreed, there were problems with respect to the applications for several FISAs, that those were not -- they were not consistent with the internal regulations of the department, and that those problems had to be corrected.

And I think deeply that we have to be careful about how we use FISA, and that's a reason we have pretty strict regulations internally and policies, and we need to find out why they aren't followed and to be sure they are followed. I understand that was the purpose of his report and his recommendations to Director Wray.

CRUZ: So you describe the report as saying there were problems. That's a fairly anodyne way of characterizing it given the multiple material misstatements the Horowitz report details, including Mr. Klein-Smith's fabrication of evidence and lying to a court, which he has now pleaded guilty to. I think that was yet another example of the deep politicization of the Department of Justice culminating in a meeting of the acting attorney general, President Obama, Vice President Biden in the Oval Office concerning the targeting of their political opponent.

[11:55:10]

Will you commit to this committee that under your leadership, the Department of Justice will not target the political opponents of this administration, that there will be real scrutiny? What that report outlines, among other things, is weaponizing oppo research from the Hillary Clinton campaign and launching a criminal investigation based on that. Will you commit that that conduct will not be acceptable under any Department of Justice you're leading?

GARLAND: So, absolutely, Senator, but without trying to comment specifically on that matter, it's totally inappropriate for the department to target any individual because of their politics or their position in a campaign. The only basis for targeting has to be evidence of the risk of a foreign intelligence problem or of a criminal problem.

And that is a non-partisan issue. That is a question of objective facts and law. And it can never be an effort to help one party or another party. In investigations and prosecutions, there is no party. The department is an independent, non-partisan actor, and that's my job to ensure that that's the case.

CRUZ: Thank you.

DURBIN: Thank you, Senator Cruz. We now understand that Senator Leahy is in Zoom range. Senator Leahy, do you read me?

SEN. PATRICK LEAHY (D-VT): Can you hear me?

DURBIN: I hear the voice.

LEAHY: I assume there is a picture coming in here somewhere.

DURBIN: Is there a way to turn up the volume so we can hear Senator Leahy? There he is.

LEAHY: I'll move this camera around just a little bit.

DURBIN: All right. If you'll --

LEAHY: Okay.

DURBIN: Take it away, Senator.

LEAHY: Thank you very much. And, first off, Mr. Chairman, we're glad you're having these hearings, and, Judge, it's great to see you seated there. I had wished five years ago we would have seen you sitting there for your Supreme Court nomination, but I'm glad you're here today.

The nomination comes at probably the most vulnerable moment in the 151-year history of the department. And you got to restore the integrity and the respect of the department, no small job. I can't think of anybody more qualified to do that.

I know that a number of people stated their support of you. One person I know and respect greatly, former FBI Director Judge Freeh, and I know he sent a letter, and, Mr. Chairman, if you don't mind, can we have that letter go in the record if you haven't already put it there?

DURBIN: Without objection.

LEAHY: Thank you.

A lot of the things have already been covered, and, of course, you and I have talked before. Your experience in the Oklahoma City bombing, anybody who has been a prosecutor knows what a job you did there, and I do appreciate that. We have other things though we have to deal with. The Voting Rights Act that John Lewis, the Voting Rights Act enforcement, we've seen that there has been a scourge of voter suppression, which would be wrong. I don't care who is being suppressed. Unless the Justice Department gets its tools back under the Voting Rights Act, I'm afraid the right to vote is always going to be at risk, especially for minorities and underserved communities.

Do you agree that with legislation like the John Lewis Voting Rights Advancement Act is urgently needed?

GARLAND: So, Senator, I don't know the specifics of the act, although I certainly knew John Lewis well and I was a great admirer. I think that with respect to voting, even in this last election, where a larger percentage of Americans voted than ever before, there was still a huge percentage that did not, at least a third did not vote.

[12:00:00]

I think it's important that every American have the opportunity to vote. Voting is the central facet, the fulcrum of our.