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Senate Judiciary Committee Hears Testimony From Attorney General Garland; Murdaugh Murder Trial. Aired 10:30-11a ET

Aired March 01, 2023 - 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. LINDSEY GRAHAM (R-SC), RANKING MEMBER, JUDICIARY COMMITTEE: OK. If someone gave a candy-shaped pill full of fentanyl, could they be charged for murder?

MERRICK GARLAND, ATTORNEY GENERAL: Well, they can be charged with drug trafficking leading to death. I don't know -- I don't think the statute says murder.

GRAHAM: OK.

GARLAND: But it does say, specifically aims at that. We have brought prosecutions. I know, having discussed this with the U.S. attorney in Colorado and the U.S. attorney in the Southern District of New York.

GRAHAM: So, Senator Cotton's got a proposal, dramatically increase the penalties associated with fentanyl. I would like to work with you and the chairman if we could to find a bipartisan solution to this problem to create deterrence that doesn't exist. Mexican drug Cartels, should they be designated foreign terrorist organizations under U.S. law?

GARLAND: Yes, I think it's the same answer I gave before. They are already designated in any number of ways and sanctioned by the treasury --

GRAHAM: Would you oppose some of us trying to make them foreign terrorist organizations?

GARLAND: I wouldn't oppose it, but again, I want to point out there are diplomatic concerns. We need the assistance of Mexico in this and designating.

GRAHAM: Is Mexico helping us effectively with our fentanyl problem.

GARLAND: They are helping us but they could do much more, there's no question about that.

GRAHAM: Well, if this is helping, I would hate to see what not helping looks like.

GARLAND: Well, they --

GRAHAM: So, the bottom line for me is they're not helping. And we need to up our game when it comes to fentanyl. Gitmo. you're familiar with how -- with the Gitmo Prison?

GARLAND: I haven't been there, if that's what you're asking.

GRAHAM: No, I believe that. You know that we have foreign terrorists housed there? Is that right?

GARLAND: I certainly do.

GRAHAM: Do you agree with me that under the law of war, an enemy combatant properly designated can be held to the end of hostilities?

GARLAND: Yes, that's the law -- both of the circuit I stood --

GRAHAM: Right.

GARLAND: -- I was on before in the Supreme Court.

GRAHAM: Right. So, do you agree with me that ISIS and AL-Qaeda is still at war with us?

GARLAND: Yes, I do.

GRAHAM: So, do you agree that anybody associated with these organizations could be held indefinitely if they present a risk to the American people.

GARLAND: I think they could. I think that the determination of whether they present a risk and how they should be dealt with is a determination to be made by the Defense Department.

GRAHAM: Yes.

GARLAND: And the Defense Department is making this determination.

GRAHAM: But legally they can be held as long as there are risks and that could be for the rest of their lives, correct?

GARLAND: I think that's right. It, obviously, depends on the facts of the determination of U.S.

GRAHAM: Right, totally agree. Do you believe Russia is committing crimes against humanity?

GARLAND: I do.

GRAHAM: OK. That's a pretty bold statement. Should we create an international court to support charges of crime of aggression? Do you support that idea?

GARLAND: So, the United States supports what is now being developed in The Hague sponsored by Eurojust, looking into the possibility of creating that court. There are concerns that we have to take into account with respect to how the -- might deal with our service own members and other circumstances, that can be sure that the appropriate guardrails are up. But we support any number of different ways in which war crime, crimes against humanity, and the potential for crimes against aggression are investigated.

GRAHAM: I would like to work with you on that regard. I think that's something I would do.

GARLAND: I would be happy to.

GRAHAM: When it comes to federal prisons, are you aware that 1,200 prisons are requesting to be sent from a male prison to a female prison?

GARLAND: I'm not, no.

GRAHAM: OK. What is our policy when it comes to allowing a male prisoner to be transitioned into a female prison?

GARLAND: I think if you're generally asking the question of how trans people are dealt with in the Bureau of Prisons, my understanding is that these are determinations about where they're placed or where people are placed in general. Have to deal with individualized determinations regarding the security of that individual and the management of the prison. These are done on a case-by-case basis, that's my understanding.

GRAHAM: Are you aware of any policy guidelines that they use to make that determination?

GARLAND: I think there is a policy guideline along the lines that I just said that they are --

GRAHAM: I would like for the Bureau of Prisons to send it to us. Are you concerned that if a biological male is sent to a female prison that could be a risk to female prisoners?

GARLAND: I think every person in prison has to be dealt with dignity and respect. That determinations of the safety questions you're talking about have to be made at an individualized basis and not categorically.

GRAHAM: Finally, let's end where we started, fentanyl. If this drug is killing more Americans than car wrecks and gun violence combined, do you believe that the policies we have today in effect are working?

GARLAND: I've been involved in the problem of drug crime and drug trafficking for more than 40 years including --

GRAHAM: That's not my question. It's not how long have you been involved. Are they working?

GARLAND: They are not stopping fentanyl from killing Americans if that's the question you're asking.

[10:35:00]

GRAHAM: Would you say they're woefully inadequate to the task?

GARLAND: We are putting all the resources that Congress provides to us to do this. The DEA is doing -- we are starting at the precursor level when precursors are sent from China to Mexico. We are then working on attacking the labs --

GRAHAM: My time is up. Mr. Attorney, they're not working. And we're going help you if you'll work with us to give you more tools. I hope you will meet us in the middle. Thank you.

GARLAND: Happy to have more tools, Senator.

SEN. DICK DURBIN (D-IL), JUDICIARY COMMITTEE: Before I recognize another colleague, I want to apologize in my reference to the DEA Administrator, her name is Anne Milgram, I mispronounced it, so. I want for the record I wanted to clarify that.

Senator Whitehouse.

SEN. SHELDON WHITEHOUSE (D-RI): Thank you, Chairman. Thank you, Attorney General for being here. I appreciate it. Good to see you.

GARLAND: Thank you.

WHITEHOUSE: Methane is probably one of the -- one of the most dangerous greenhouse gasses. We see plumes of it miles long floating across the United States. It takes multiple levels of enforcement, federal, state, local and private to address these massive leaks. What can you tell me you are doing to assure that there is that coordinated multi-jurisdictional enforcement operation in place.

GARLAND: You are exactly right. And we now have the benefit of overhead commercial satellites which are able to actually see methane with respect to the infrared spectrum. So, we have a -- we are in the process of establishing a working group between our Environment and Natural Resources Division with the Justice Department, the EPA, the Interior Department, and affected U.S. attorneys across the country to make use of the tools, the scientific tools we have, and also, some of the funding that was provided in the Bipartisan Infrastructure Act.

WHITEHOUSE: That is good news. And I hope that that effort will include advisory participation from state law enforcement, from local law enforcement and from private litigant experts in this space.

GARLAND: All of our work in the law enforcement field involves partnering with state and local law enforcement. Always happy to have expertise provided, but law enforcement working groups are confined to law enforcement as a general matter.

WHITEHOUSE: I just got a document from an insurance publication that says -- I'm just reading here, at least 1,375 climate change related lawsuits have already been brought in the United States. These include suits filed by local municipalities and by states, Rhode Island is one of them, as well as shareholder suits. Given all of that government litigation taking place in this space, I would ask you, is there anyone looking at federal DOJ involvement in that area, in the Department of Justice. And if so, who is that person?

GARLAND: So, I really don't -- as a general matter, I want to describe our internal decision-making process. And these I can assure you that the environmental and natural resources division has taken a very close look at this question. But beyond that I really can't say.

WHITEHOUSE: OK. Well, you may recall that the last time the Department of Justice took a really close look at this question, they got the standard of decision wrong applied to criminal standard of view to civil litigation. So, I hope that the seriousness of the look that's been taken, what I would like to call an honest look is actually, in fact, taking place because the record from before your time is not very convincing.

GARLAND: I agree with you, Senator, that the criminal standard beyond a reasonable doubt is not appropriate for fraud cases.

WHITEHOUSE: Yes.

GARLAND: Correct.

WHITEHOUSE: And --

GARLAND: I'm sorry, for civil fraud cases.

WHITEHOUSE: Civil fraud cases, correct. Criminal cases. Congress right now is on the wrong side of a bunch of OLC opinions that relate to executive privilege. And there are some specific ones that relate to so-called absolute immunity that are on the books at OLC that have been specifically rejected in quite forceful language by actual Article III Judges.

And yet those OLC opinions are still on the books. They are still available to other agencies who are making determinations about whether to block congressional oversight based on those OLC opinions. I would like to ask you -- let me go back a step.

[10:40:00]

OLC says that they don't ordinarily review opinions of their own even after they've been discredited by Article III Judges unless they've been asked, and you're one of the people who can ask them. So, I'm asking you, will you ask them to review the OLC opinions that are now publicly on the books of the Department of Justice that have been discredited by specific findings of Article III Judges they relate to absolute immunity.

GARLAND: So, my understanding of the longstanding process at OLC is not to re-evaluate old opinions unless they are now relevant for a current controversy.

WHITEHOUSE: That's the problem.

GARLAND: And I also believe that their process is that if a court of ultimate jurisdiction determines that they are wrong, then they will evaluate it. I -- my understanding of the case is --

WHITEHOUSE: So, Ketanji Brown Jackson was one of the authors of one of the opinions that said the OLC opinions were wrong. She's a pretty credible judge, I think, she is now sitting on the United States Supreme Court. And those OLC opinions hang out there for review by other executive agencies even if there's no direct ask to the department that would trigger that OLC review. It's sort of like executive branch jurisprudence that sits on its own independent from Article III jurisprudence.

And somehow, we've got to figure out how to connect those two things because at the moment you have OLC opinions that appear to be flat-out wrong by the determinations made by those whose job it is to say what the law is, the Article III Judges and there's no effort to ask them in that fairly unique circumstance to go back and fix it.

GARLAND: So, I -- again, I think all of the circumstances you're talking about individual judges. Sometimes single judge on a Court of Appeals, sometimes a judge speaking indicta. But no -- if there was a decision of the United States Supreme Court that was inconsistent, or of a Court Appeals, I believe OLC would re-evaluate. Otherwise, there are lots of judges who criticize OLC opinions and the Justice Department as a former judge, that's perfectly appropriate for Article III Judges to do. But we have to allocate our resources to cases where -- which are active cases and that's what OLC does.

WHITEHOUSE: Well, I will continue to pursue this because I think it is wrong for OLC to insist on developing its own jurisprudence that is separate from and independent from what Article III Judges decide. And if the only way you can change an OLC opinion, which is controlling on the entire executive branch, is to get the Supreme Court to overturn it, then you've created a really lasting obstacle to the proper separation of powers in our constitution. So, to be continued. Attorney General, thank you for being here today.

GARLAND: Thank you.

DURBIN: Thank you, Senator Whitehouse. Senator Grassley?

SEN. CHUCK GRASSLEY (R-IO): Last year's FBI oversight hearing raked (ph) committed to protecting whistleblowers that have approached my office about the wrongdoing at the department and the FBI. Do you commit to me, this committee and the Senate as a whole that any retaliatory conduct against whistle blowers will be disciplined?

GARLAND: I do, Senator. And you know well, more than any other member of this committee, that I've been a staunch supporter of whistleblowers under the False Claims Act during the entire period of my role as a judge as well.

GRASSLEY: I'm going to set up a hypothetical fact pattern for you and ask you to tell me how you would handle it. The Justice Department and the FBI received information from over a dozen sources, that's the first one. Second, those sources provide similar information about potential criminal conduct relating to a single individual. And third, that information was shared with the Department of FBI over a period of years. According to department policy and procedures, what steps would the department take to determine the truth and accuracy of the information provided by those sources?

GARLAND: I'm sorry, these are whistleblowers? So, they're internal sources, is that what you're saying? I'm not sure.

GRASSLEY: It doesn't matter where it comes from, just the fact that I want to know if you got that information, how would you go about handling it?

GARLAND: Yes. So, reports of wrongdoing are normally reported to whatever the appropriate department component is. It might be U.S. attorney's offices in the district in which it allegedly took place. It and might be -- to the -- directly to FBI components and to FBI task forces.

[10:45:00]

In cases involving whistleblowers, of course, there are specific provisions for making complaints to the inspector general's office or the Office of Professional Responsibility or the Inspections Division of the FBI.

GRASSLEY: Recent lawfully protected whistleblower disclosures to my office indicate that the Justice Department and the FBI had, at one time, over a dozen of sources that provided potentially criminal information relating to Hunter Biden. The alleged volume and similarity of the information would demand that the Justice Department investigate the truth and accuracy of the information according to what's -- accordingly, what steps has the Justice Department taken to determine the truth and accuracy of information provided? Congress and the American people, I think, have a right to know.

GARLAND: So, as the committee well knows from my confirmation hearing, I promise to -- I promised to leave the matter of Hunter Biden in the hands of the U.S. attorney for the district of Delaware who was appointed in the previous administration. So, any information like that should have gone -- or should or should have gone to that U.S. attorney's offices and the FBI squad that's working with him. I have pledged not to interfere with that investigation, and I have carried through on my pledge.

GRASSLEY: In April 2022, you testified to Senator Hagerty that the Hunter Biden investigation was insulated from political interference because it was assigned to, as you just now told me, to the Delaware attorney's office. However that could be misleading because without special counsel authority, he could need permission of another U.S. attorney in certain circumstances to bring charges outside the district of Delaware. I would like clarification from you with respect to these concerns.

GARLAND: The U.S. attorney in Delaware has been advised that he has full authority to make those kinds of referrals that you're talking about or to bring cases in other jurisdictions if he feels it's necessary. And I will assure that if he does, he will be able to do that.

GRASSLEY: Does the Delaware U.S. attorney lack independent charging authority over certain criminal allegations against the president's son outside of the district of Delaware? GARLAND: He would have to bring -- if it's in another district, he would have to bring the case in another district. But as I said, I promise to ensure that he's able to carry out his investigation and that he be able to run it. And if he needs to bring it in another jurisdiction, he will have full authority to do that.

GRASSLEY: If you provided to Delaware U.S. attorney with special counsel authority, isn't it true that he would need permission of another U.S. attorney to bring charges?

GARLAND: That's kind of a complicated question. If -- under the regulations, that kind of act he would have to bring to me under -- to the attorney general under the regulations, those kind of charging decisions would have to be brought. I would then have to -- you know, authorize it and permit it to be brought in another jurisdiction. And that is exactly what I promise to do here already, that if he needs to do -- bring a case in another jurisdiction, he will have my full authority to do that.

GRASSLEY: Has the Delaware U.S. attorney sought permission from -- permission of another U.S. attorney's office such as in the district of Columbia and California to bring charges? If so, was it denied?

GARLAND: So, I don't know the answer to that. I do -- and I don't want to get into the internal elements of decision making by the U.S. attorney. But he has been advised that he is not to be denied anything that he needs. And if that were to happen, it should ascend through the department's ranks, and I have not heard anything from that office to suggest that they are not able to do everything that the U.S. attorney wants to do.

GRASSLEY: Well, let me give you my view if Weiss, the U.S. attorney there in Delaware must seek permission from a Biden-appointed U.S. attorney to bring charges, then a Hunter Biden criminal investigation isn't insulated from political interference, as you've publicly proclaimed.

If the Justice Department received information that foreign persons had evidence of the improper or unlawful, financial payment paid to elected officials or other politically exposed persons and those payments may have influenced policy decisions, would that pose a national security concern and demand a full investigation?

[10:50:00]

And when Ray was here, he seemed to answer that question in -- that it was a national security concern. I want your opinion.

GARLAND: In the way that you're -- if I follow the question exactly right, if it's an agent of a foreign government asking someone and paying someone to do things to support that foreign government in secret, yes, I definitely think that would be a national security problem.

GRASSLEY: OK. My last question is to whistleblowers have confidentially asserted that the DOJ's public integrity unit -- I think I'm going to leave that question for another round. Thank you, Mr. Chairman.

GARLAND: Thank you, Senator.

DURBIN: Thanks, Senator Grassley. Senator Klobuchar.

SEN. AMY KLOBUCHAR (D-MN): Thank you very much, Attorney General Garland, for being here.

[10:50:55]

JIM SCIUTTO, CNN ANCHOR: But listen there to the questioning of the attorney general by both Democratic and Republican senators on a number of topics, Erica. Things that stood out were Lindsey Graham's questions on current sentencing for those caught trafficking and fentanyl, given the number of deaths blamed on fentanyl.

But also, the idea of designating (ph) the Wagner group, which Russia is leaning on more and more in Ukraine as a terrorist organization. A step there that -- the talk of declaring Russia itself a terrorist state which seems like a long shot, but that group seemed like the attorney general is at least open to that path so he left it to the State Department.

ERICA HILL, CNN ANCHOR: Right. And important to point out why he's leaving it to the State Department, right? Because of all of the diplomatic concerns there. Our Senior Legal Affairs Correspondent Paula Reid has been listening in with us. And as Jim pointed out, fentanyl, obviously, a major part of this to start off. What do we see coming of that?

PAULA REID, CNN SENIOR LEGAL AFFAIRS CORRESPONDENT: Look, these oversight hearings, when attorneys general appear before committee, in the House, in the Senate, these can get pretty rowdy because while they were just supposed to be about oversight and operations, they tend to gravitate towards the most politically fraud issues of the day.

But it was interesting to see the first few rounds of questions from lawmakers on both sides of the aisle were pretty sober and really focused on some of the most serious issues facing the country today. As you mentioned, fentanyl, we got a lot of questions about that. Gun violence. Also, concerns about social media, whether that helps to increase human trafficking and otherwise puts children in danger.

You know, it was about 45 minutes into this hearing before he got a question, that was very much expected, about President Biden's son, Hunter. And the lawmaker really drilled down on how exactly that question -- how exactly that investigation is being handled. A lot of Republicans are asking, why the Hunter Biden investigation is not being handled by a special counsel. The Justice Department has been pretty consistently clear that they thought it was fully appropriate for a Trump-appointed U.S. attorney to stay on and to continue to oversee that investigation, and that's what we heard the attorney general say here.

But I think as we move through this hear hearing, particularly as you get to some of the younger senators, you're going to hear more questions about these politically charged cases, especially the investigations into President Biden and Former President Biden related to classified materials.

So, I think any attorney general will tell you this is not one of their favorite days on the job but it really is important to ask these questions as the nation's top law enforcement official.

HILL: Yes, and we know you'll continue to monitor it for us and bring us all these updates as well. Paula, appreciate it. Thank you.

SCIUTTO: Well, this just in, we're learning new details about what jurors in the Murdaugh -- Murdaugh trial got to see when they visited the crime scene this morning. Closing arguments expected to begin shortly. We'll be live to South Carolina just ahead.

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[10:55:00]

SCIUTTO: Two jurors in the Alex Murdaugh murder trial will return to court from the remarkable visit, fresh off an in-person tour of the site where Maggie and Paul Murdaugh were killed.

HILL: Then the defense and prosecution are expected to begin their closing arguments. So, deliberations, depending on how long those closing arguments take, well, it could actually begin today. CNN's Dianne Gallagher is outside the courthouse in South Carolina.

So, Dianne, we now know a little bit more about what the jury saw. Share with us what you've learned.

DIANNE GALLAGHER, CNN NATIONAL CORRESPONDENT: So, we've started getting pool notes from those selected members of the media who were allowed to go to the property, as well. They could not be on the Moselle property at the same time as the jury.

But the pooler did note that they caught a glimpse of the jury as they were walking around the dog kennel area, remember, that is where the murder of Paul and Maggie Murdaugh happened. They said they saw one juror standing in the feed room door, sort of, glancing up at it. That feed room door has been the subject of much of the testimony as that is where Paul Murdaugh was shot and killed.

Now, we're told that they did about 30 minutes there on the property. In total and the majority of which will be spent there near the scene of the murders, at the dog kennels, the shed, that part of the property. And at the end of their trip, they went up to the main house area, but did not go inside, just to the exterior part to see it, perhaps get an idea of just how far away it is from the kennel areas.

Now, Judge Newman is there in street clothes, also South Carolina attorney general, as well as two of the defense attorneys on site at the time with them. The closing arguments should begin shortly here if we stay on schedule.

HILL: All right. Dianna, appreciate it. Thank you. And be sure to tune in tonight for the special right here on CNN.

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