test for sexual orientation. that's two that have upheld the rational basis, one applied a heightened level of scrutiny. my question is why would you single out the one court of appeals that has applied a higher level of scrutiny, ignoring the two that applied a rational basis test. that strikes me as a political calculation and not a constitutional calculation. >> not a political calculation. i think what we had to do was look at -- the court of appeals make decisions that sometimes the department of justice will disagree with to the extent that court of appeals have taken different views of what the appropriate level of scrutiny is. we think those courts of appeals are wrong. the supreme court will ultimately have to decide against this issue. i want to assure you and everybody else that the decision we made with regard to doma did not have a political determination to it. it was a legal determination. >> i want to believe you. i really do. i mean that earnestly.

but when i was in ausa, there was a court of appeals that said law enforcement officers didn't have to read miranda warnings anymore. it was an unusual opinion and one we didn't follow. it was one court of appeals that ruled that way. heaven knows the night court of appeals is presumptively wrong. we don't change our course of conduct -- i said that, not you. when the ninth circuit court of appeals comes up with something crazy, we don't change our course of action. it is difficult to explain why it's not a political calculation or decision when two courts of appeals post lawrence have said rational basis test is the one that applies and only one that argued for a heightened level of scrutiny. it's tough to see how that's not political. >> i think one example. i might be wrong on this one but my memory serves me correctly, when it came to the dickerson case, the fourth circuit indicated that that statute that was patched that overruled

miranda, the supreme court said that statute wasn't that constitutional. the justice department argued against that statute saying it was unconstitutional before the supreme court. you have the justice department arguing in the supreme court against the statute passed by congress and also taking on a federal court of appeals. there's history to these kinds of actions that we took with regard to doma it's unusual, rare but happens. >> supreme court never applied a heightened level of scrutiny, only one court suggests there's a heightened level of scrutiny and one does not. can i have 30 seconds to have a question? >> without objection. >> thank you, mr. chairman. we'll continue this conversation hopefully at some other point. you said that there were

tactical reasons to try terrorists in civilian court rather than military tribunals. you would agree the evidentiary rules are more relaxed in military tribunals than civil court? >> there are certain rules -- the difference is not as great as some people think. certainly with regard to hearsay, you can get more hearsay in military commission than article 3 courts. >> jury qualification and selection is certainly different. >> yeah, different systems there. >> right. so to the extent you can, what tactical decisions made you believe that it was better to try these defendants in civilian court than in military court? you used the word tactical. as a prosecutor i'm thinking more likely to get a conversation. >> you would be right when it comes to tactical and how i viewed that. what i don't want to do, with

all due respect, because you've asked questions in good faith, i don't think i can answer that question out of concern that what i might say could have a negative impact on the case that is pending now in military commissions, tactical reasons, tactical concerns that i saw were i to reveal might give to the defense, an opportunity to raise issues that otherwise might not exist. >> fair enough. thank you, mr. chairman. >> thank you mr. gowdy. >> i do wan to say i thank you about what you said about the assistance there and i will share with them the good thoughts. >> thank you very much. >> mr. johnson recognized for his questions. >> thank you, mr. chairman. mr. attorney general, i welcome you here today. as head of the justice department you are responsible for among other things enforcing federal criminal laws, defending

the united states against civil actions, and also protecting our national security. now at a time when your department has been adversely impacted by the ravenous budget cutting, i was puzzled by one of my colleagues on the other side questioning you about the allocation of your precious resources to the issue of adult hard core pornography. and i was -- i really would like to know what is adult hard core pornography. but because my time is limited, i will forego that question. but mr. attorney general over the last couple of years, you have successfully prosecuted many terrorists cases.

in fact, under your leadership the justice department has successfully prosecuted more terrorists than any other two-year period in history. the recent military operation, which led to the death of osama bin laden is a testament as to how this administration handles national security in a disciplined fashion using all the tools at its disposal that are available in an effort to protect the american people. i must take this opportunity to recognize the great -- the fabulous success of the mission which was carried out by the cia and joint special operations

command that resulted in the apprehension of osama bin laden over the weekend. and i know that your department is just as effective when it comes to prosecuting terrorists, and i deeply regret the fact that your decision to prosecute khalid sheikh mohammed, the mastermind of 9/11, your decision to prosecute him in the criminal courts of this country, i regret that congress -- politicians in congress usurped your ability to exercise the discretion that you have with respect to where to try that

gentleman, because he'll be tried in a secret military tribunal, many of the things about the case that have not been publicly revealed the not be revealed so the american people will be left without the information which i think would generate true closure for them in this matter. i appreciate all that you've done at justice to protect all americans at home and abroad, and i applaud the justice department's commitment to transparency. under your leadership, the department has processed a record number of freedom of information act requests and you've testified before this committee numerous times and your dedication to state and local law enforcement by

supporting the cops program certainly does not go unnoticed especially in this tight economy. now, general holder, i sent you a letter on march 28th this year requesting information pertaining to three federal intelligence contractors, who collectively refer to themselves. are you familiar with my letter? >> i can't say that i am. >> in that letter, i express concern that the three firms might have broken the law by conspiring to harm american citizens using illegal techniques such as hacking, planting malware, blackmail and fraud. nineteen of my colleagues in the house of representatives echoed those serious concerns in a letter sent to house committee chairs earlier in march, and i

also requested copies of all department of justice contracts with those firms within 10 days. i have great concerns that the law may have been broken and i understand there are many demands on your time and that your staff is busy, but will you commit to look into that matter? >> yeah. we will. -of- great staff, many of whom are behind me and they are undoubtedly making notes about -- i hope they are. >> i hope they are also. >> they are writing. they are writing. >> i'd appreciate you all getting back to me. when additional information arises, i will definitely send it to you on that case. with that i would yield back. thank you. >> thank you, mr. johnson. the gentleman from iowa mr. king recognized for his questions.

>> thank you, mr. chairman. thank you attorney general holder. it's always a challenge when the secretary-general of the united states has to testify before the judiciary. i have a series of statements to examine, perhaps not the depth some of the other have. i recall your testimony here roughly a year ago. we had a discussion and exchange about arizona's sb 1070 law. at that time i had asked you if there was a provision in the constitution that you believe it had violated or if there was federal preemption it had violated or controlling case law it had perhaps crossed the line on. at that point you weren't prepared to respond to that. i don't ask you to do that today but make the point that subsequent to that, justice filed a lawsuit against arizona. and in reading that, i come across this seemed to be something i hadn't encountered

before, careful balance that makes the case that congress has established a careful balance between the various and sometimes competing immigration laws and this job of justice in the other departments to maintain that careful balance just to put that in summary. >> i'm sorry, what kind of balance? >> a careful, careful balance. i've been involved in a lot of immigration debates, and i don't know anyone ald they introduced legislation on immigration that was designed to achieve or enhance a careful balance, so i just ask if that -- i'll call it illegal theory, careful balance theory, does that exist anywhere else in law that you know of? >> the positions that we have tape in that lawsuit have been upheld by both the district court and court of appeals, theories we have brought, theories we have used, which i think are mainstream theories, said by two courts now that we

are in the right. >> your honor -- this is the micro phone. it's not attorney frank's fault. the careful balance theory, however, regardless of the two courts ruling and we're on the way to the supreme court, i presume, do you know that careful balance theory exists anywhere else in law? >> to the extent that we have used particular theories or particular phrases, i'm sure the lawyers that filed those briefs did so carefully, did so with regard to -- >> okay, attorney general, let the record show i think it's a unique theory myself. i'd be interested if there's any other place you could direct my reference. it seems to me that's the one that's convenient for this case. if it's anywhere i'd like to know the answer to that. let me move on. i didn't ask the question whether you'd read 10 b 70. we have another piece of information passed by one of states hb 116, utah's

legislation that i will contend for the sake of simplified vernacular creates utah as an exemplary state. have you read that? >> i have read the utah law. >> have you made a determination whether to bring suit against utah? >> i have not. i think in a prior question what we typically do is try to interact with the state and try to work our way through any disagreements we might have without bringing suit. the statute doesn't go into effect until 2013. we are prepared to bring suit if necessary but that is a decision we would make in about a year or so. >> let me just then make the point that if arizona is preempted, then utah establishing a sanctuary state certainly is preempted, what that point between us today. move on also, you've reviewed since your last testimony before the committee, the sworn

testimony of christian adams and chris coats before the civil rights commission when they had made the point the justice department has a racial component to the equation of whether they will enforce discrimination if it disadvantages a minority, do you review that testimony and accept it as truthful their sworn testimony? >> i've not reviewed the testimony but their characterization is totally inaccurate? >> i just ask for your own benefit, have you looked into the department and evaluated -- done a further investigation, though? you disagree with that. have you done an extra investigation within your party to satisfy yourself. was that your judgment a year ago and your same judgment today? >> if you look at the insertions they have made, seems to me they are inconsistent with the findings the office of professional responsibility made looking at the plaque panthers matter, made the determination

that politics, race, did not play a part both in the filing of the case or in the decision how the case was disposed of, which seems to me is inconsistent with what they are claiming. >> mr. attorney general, i point out i believe thomas perez was less than truthful with the committee when testified they achieved the highest penalty under the law. just ask consent for an additional minute. >> with that objection the gentleman is recognized for an additional 30 seconds. >> thank you, mr. chairman. i also wanted to bring up the issue of bigford farms. can you cite for this committee the authorization you had or may believe you had to open up negotiations for a second round. >> the attorney general has

the -- >> would you cite the farm bill exclusively on pigford 2. >> i'm not sure i understand your question. >> i can understand why. so i'd ask did you negotiate with john boyd on settlement for pigford 2. >> did i? >> yes, or did anyone from your office authorized by you do so. >> i'm not sure i know who mr. boyd is. >> that's instructive to me and i won't push my time limits any further. appreciate it. >> the gentlewoman is recognized. >> thank you, mr. chairman. thank you for being here. two nights ago president obama announced osama bin laden had been killed. as persons around the country rejoiced, president obama also reminded us on that day no matter where we came from, what race we came from, what god we prayed for, we were unitied in

the american family. the hatred in the muslim american community and those thought to be muslim. the committee held hearings that targeted the muslim community. considering the importance intelligence played in finding osama bin laden, how could an antagonistic relationship between the american muslim community and law enforcement hurt our efforts to combat any home grown terrorist threat and what have you been doing to engage the community and maintain their trust? >> i think that's a good question. if there were an antagonistic relationship between law enforcement and those communities, that would have a negative impact on our ability to protect the american people. what we have seen is a pretty consistent level of cooperation and provision of information from the muslimed kmuntd in the united states.

the department of justice has been leading the way in order to dispel myths, make sure there's open lines of communication, make sure our aim is to protect all americans, muslim americans as well as everyone else. to the extent there's inappropriate actions against the community, our law enforcement has tried to step in and take action. >> let me ask you about the guidance the doj has. even ten years after 9/11 there's profiling against south asian and muslim kpluncommuniti. the u.s. attorneys office investigated violence threats, vandalism, arson against muslim

in the united states between march 11, 2007. in 2003 the doj issued guidance for racial profiling. given that it's counter-productive policies that prohibit it are certainly admirable. however, there needs to be much more strength on this kind of guidance. and the guidance doesn't profile -- doesn't ban profiling on the basis of religion or national origin and lacks a meaningful enforcement mechanism what is the progress of the review you're doing right now involving this guidance? where is it? >> i would say first as a general matter, use of profiling techniques is not gemelli good law enforcement -- is not generally good law enforcement. we have under review the policy

that was initiated back i believe in 2003. that review is under way. my hope will be i have recommendations from the group that is looking at that policy. >> and i certainly would urge that you do look at the issues of religion and national origin as well as the enforcement mechanisms. let me also say that the doj has engaged in much needed outreach and i acknowledge that. there certainly is a need to better institutionalize better ad hoc initiatives. would the doj consider initiatives to combat 9/11 discriminatory backlash by designating a special council for post 9/11 discrimination? >> that's an interesting idea. i think that, you know, we have laws that our civil rights division traditionally enforces.

it handles those kinds of issues. we have a community relations service as well in the justice department that can contribute in this regard. i think we have the tools that we need and certainly have the dedication of the people who are career employees and hole be there after i leave as attorney general, who i think will remain dedicated to the enforcement of those regulations and those laws. >> i hope you might consider that. my last question has to do with hate crime statistics. the hate crime statistics act mandates collection of data on hate crimes but lumps together those acts anti-muslim or anti-arab, hence, those acts that are actually committed against are not distinguished. formally tracking those by arabs, hindus, sikh. >> the greater amount of

granularity we have with regard to who are the victims of these kinds of acts, the more effective we can be in our law enforcement efforts. your suggestion is a good one. that's something we can consider and work with you in trying to determine whether that is something we can appropriately do. >> thank you and i yield back. >> thank you. before i recognize the gentleman from arizona mr. quayle for his question, let me say two have been called and we'll need to stand in recess and go vote and return mr. attorney general if that's all right with you. there are still several members who would like to ask questions. gentleman from arizona. >> thank you, mr. chairman, and mr. holder. i want clarification what you talked about with mr. king. the reason there wasn't any action on the utah case based on the fact it's not impblmented to 2013 and you still do see possible supremacy clause violations within that law? >> i think there's certainly

issues we see now. our hope would be now between now and 2013 we can work our way through concerns without bringing a lawsuit. but if we have to, we will. >> working through legislature, passing a different law, making amendments to that law? >> that way interpretations that the attorney general might take -- there are a number of ways we might work our way through it. >> changing gears, i read i think it was last month "the wall street journal" reported doj and ftc resorted to coin flips, sometimes trades and bargains determining which agency would have jurisdiction, which would cost time and expenses. doj antitrust division and congress have conducted investigations into online search engines and online advertising markets. as this area of our economy continues to grow, how do you plan on dividing the work

between the agencies while preserving institutional knowledge and consistency. >> a very good question, something we're trying to work our way through. the ftc and justice department have generally been in a good place dividing up responsibility for any trust enforcement. there have, however, been instances where we've not been on the same page. i think we need to get together to work together. that's what we're trying to do to figure out what the rules of the road will be so we don't end up with coin flips or other ways to decide these matters. >> they are working together to get guidance on who will oversee those matters? what roll do you think the antitrust division has in helping maintain an online marketplace that rewards without necessarily for closing new competition and preventing ideas from reaching consumers? >> i think the antitrust division, it's an interesting

way you phrase it. it's right. we generally -- antitrust generally seen as trying to stop mergers, consolidations. but i think the affect, collateral impact of that word is to make sure things are kept open, things are kept free. that's especially important when one looks at cyber issues, internet, where innovation happens so rapidly, consolidation, intel is not necessarily a good thing. we are constantly looking in that sphere for things that might in exhibit the growth, development. internet. >> in those investigations, have you seen any active and actual bottlenecks or gatekeepers keeping content from consumers? have you seen any actual evidence of that or are we starting to get down to conjecture and it's going to the possibility of the gatekeepers rather than actual factual evidence pointing to that? >> i'm not sure i'm capable of

answering that. we can get you something in writing from the folks at the antitrust division who would be able to tell you more and more complete and contemporary way what concerns they have in that regard. i'm not aware of any but i wouldn't want to -- just because i'm not doesn't mean there aren't things in the antitrust division responsive to your question. >> you don't know anything but you could give me information if there is any. thank you. i yield back. >> we'll stand in recess 20 minutes and be back then. >> thank you. ism.

>> we'll leave this discussion >> thank you for joining us

today. it is nice when the ag takes the time to talk about the many faces -- many issues facing the department of justice. department of justice and how they impact the population here in the united states. i want to start with a couple of quick questions regarding the antitrust division first. as i'm sure the members of the committee are aware, one of the major issues facing the antitrust division is the proposed merger of at&t and t-mobile. i am sure the committee is going to be held to consider the various impacts of this merger. i just want to talk to you really quickly about the doj's investigation into this proposed merger and the questions i have specifically on this issue are, if you can give the committee a sense of how long you expect that review to take and then also what factors you are going to be considering as the review that merger.

>> i'm not sure that i can give you with any degree of certainty how long the review would take. it will be one that would be done thoroughly and expeditiously, and then i think the normal things that would be considered will be the ones that will drive the inquiry, the whole question of what the impact of the merger will have, potential merger, on consumers, on the market. it would be just a traditional i think analysis even though it involves some cutting edge technologies. >> okay. thank you. i want to talk to you a little bit about the state criminal alien assistance program. when i was a new member of congress, law enforcement came to visit me in my office to talk about how a reinterpretation by the department of justice had a

profound impact on their budgets. the scaap program was xpaebl established to help reimburse states housing undocumented criminals. but inty tty 2003, the departmf justice reinterpreted scaap in a way that caused a drastic drop in states' reimdursment and had repercussions in the law enforcement community at a time it can least likely afford. in the state of california, scaap payments have declined to 11million in fiscal year with 2009. as i'm sure you're aware, many states are experiencing budget short falls and havingo scale back on many services. i'm wondering if you would be willing to reexamine the award

criteria for the scaap program and review the reinterpretation and see if that merits continuous. >> continuance. >> you know, when i testified before theudge cmittees way vz very conversant with scaap. to be honest i'mot now. i'll get you something regarding our budget with regard to scaap and also look at that opinion and see how that impacts the -- >> i don't want to get into the weeds of it, but it really is criteria nonsense cal and doesn't make a lot of sense. just asking if you would take the time to sort of review that opinion and figure out if that still makes sense. >> we could do that. >> great. and finely i just want to address an issue -- some of my colleagues earlier asked you some questions about the recent indictments of several online poker web sites.

those have significant impact on many of my constituents because i've heard a lot from them on this matter. as mr. cohen, i believe, stated, it's a game that's gaining in popularity. there are about 10 million americans that currently play poker online and it ends up being about a $16 billion industry in this cntry. now, i know there has been successful regulation of online poker playing in places like europe and australia. i happen to be a strong supporter of legislation that would legalize onlon gambling in this country and allow us to tax it reasonably and efficiently and make sure that people were not being cheated out of their money. i'm sure you can appreciate, again, in challenging economic times when states are experiencing deep budget shortfalls and federal government is trying to find a way to get its fiscal house in

order, that is one area in which we could potentially increase revenue for the ffers. so i'm hoping that's an area that you'll look at again in terms of where you dedicate your precious resources. i think time would probably, in my humble opinion, be better spent dealing with bigger and more impactful, serious, violent crimes, for example, than trying to interrupt this industry which, as i said, has been efficiently regulated in other countries. with that, i will yield back my time. >> thank you, ms. sanchez. the gentle woman from florida, ms. adams. >> thank you, mr. chair. mr. holder i have a few questions and i'm going to go qukly because i only have five minutes and i'd like to have a lot more, to be nest with you.

earlier i listened and you said there were determinations as to why to follow through on enforcing the law or not enforcing the law. and i have a couple of questions. we are a nation of laws, are we not? >> we are. >> and what do you do to make -- what do you go through to determine which laws your agency will enforce or not enforce? >> see, i wouldn't put it that way. i would say we enforce all the laws. the question is -- >> well, we probably disagree on that. i'm just wondering if there's a process you go through to determine which ones you will act offively enforce and which ones you will inactively enforce? >> i think it's a question of prioritizing. that's how i would say it. we look at - >> so you have a process to prioritize the law s in which yu will enforce? >> no. our enforcement efforts.

you look at the pential greatest harm, violent crime, what's the most impact when it comes to financial crime. given the limited resources we have, on those termgszs, that's how we decide to deploy our resources. >> as someone who comes from a law enforcement background, i know that i was task with enforcing the laws that were on the books if there was something wrong with the law or we found there was an issue, we went to our legislative branch to deal with those. i would ask that you would that, you would give us that opportunity. because if they're on the books, the american people expect for us to enforce them. you not agree with that? >> sz as i said, we enforce the laws. we take into accountthe impact -- >> do you agree the american people expect us to enforce the laws we have on our books? >> sure. and we do. >> the other thing is, with the final end to e chapter of bin laden and he's now deceased --

and i commend everyone involved with his capture and ultimate demise -- my question to you is, last year you reauthorized the investation of cia operatives ingitmo. even after they were cleared once by a career department of justice investigators. were any of these cia operatives involved in getting the detainee information that led to osama bin laden's death? >> the inquire require i ordered -- >> were any of them involved? >> the investigation that i ordered last year -- >> were any of those involved in the ultimate information that -- >> ias trying to answer the question. >> just a yes or no. >> i can't answer that way. the investigation i ordered last year was of people who poe leshlly went beyond the loc opinions. >> that were previously cleared. >> well, their information being exined by a special prosecutor

who had been appointed by -- >> i'mot asking exactly that. i was wanting to know if they were involved in getting the information that ultimately caught bin laden. >> i'm- i don't -- i'm not in a position to answer that. i'm not allowed to answer the question. >> okay. maybe in another venue you could answer that for me. >> no. what i'm saying is i was trying to answer the question. you'relooking for yes/no and i don't think i can give you an answer in that way. >> okay. the task force that has been created -- and i'm looking forward to seeing the outcome of that task force -- i know there's a lot of factors playing into what is going on with the price of gas and oil. a lot of people in america want answers and i agree they should be afforded those answers. one of the things i noted was that your central mission of the financial fraud enforcement task force is to enhance the government's effectiveness and

dwat financial fraud. as part of your investigations, will you also be probing into the department of interior for its efforts to restrict trade by closing land and holding our natural rources hostage? >> i'm not sure that i'm familiar with those allegations. >> well, we've had some closed, and permits pulled back. and people are wanting to know and have a right to know the answers to those questions. why? and if that plays in to the cost, the american people would like to know that. also, the value of the dollar, is that playing in to the cost of our oil and gas? those are questions that i would hope that you will answer r the american people since you've created this -- just one other thing, though. i'm curious. does your agency not have the authority to do this without this commission being created? >> sure, we could. but in trying to be an effective task force you bring in to the

task force those agencies that have particular expertise. and by mbiningthat, we make a task force that is better than one we might be able to create -- >> you had already started an investigation prior to the task force being created? >> no. >> thank you. >> thank you, ms. adams. the gentle woman from california, ms. waurters, is recognized. >> thank you very much, mr. chairman. and i thank the attorney general for the time that he's spending here today and the fact that he waited for us to come back from the vote. i wanted to come over here despite the fact that i'm chairing a subcommittee of the financial services committee because i want to talk about -- i want to talk about mergers. i have spent an awful lot of time on the comcast/nbc merger,

as you and a lot of people know, and p ii'm concerned. i'm concern about consolation. mr. holder, it appears across all industries the antitrust enforcement under this acurrent administration, does not appear to be much different from the previous administration, kind of rubber-stamped approvals of rgers and consolidations. the mergers of ticketmaster, lab nation, continental/united, google/ita have all en approved by your antitrust division. it appears that the antitrust division is chartering new territory and sitioning itself as more a regulator than a legal enforcement agency. the consent decrees from the

comcast/nbc mergers attach conditions that allow doj monitoring enforcement actions if breached. in my estimation it takes more resources for doj to regulate through the judiciary rather than block or audit divestiture when appropriate. is reguling in areas such as competition over the industry and tech industry really the most effective, efficient and transparent way to -- i just want to understand where you're going over there. >> well, i think the antitrust division is tough on enforcement where it finds violations of the antitrust laws. and i don't think that those consent decrees, those conditions that were placed on those mergers are insignificant. the antitrust division doesn't gonto this with a notion we want to find aay to make a merger occur. you look at the antitrust laws, apply them and make a decision

as to whether or not a merger can go through or are there ways in which a merger might be constructed that it could. but we don't go into it with a presumption or mindset we want to mak mergers occur. and i think that we have, through the leadership of our assistant taern general, been appropriately aggressive. >>ave you denied a since you have been there? >> let's see. i can probably get back to you with that. i'm not sure. i can tell you -- >> let me just register this. i spent hours upon hours working on the comcast/nbc merger and raised significant, we think, questions about that merger. we understand how they operate now. i mean, we learned an awful lot about some of the agencies and

programs that came in to support them. we learned about how they make contributions to nonprofit organizations. we were not talking about whether or not you contribute to churches and civil rights groups and all of that. we were talking about wether or noyour coany, your business, is diverse, whether or not it's reflted in your management. we talked about whether or not the programmin at nbc, et cetera opened up opportunities for independent operators. we talked about some serious and significant issues. we got outplayed because they were able to roll in a lot of folks who had gotten contributions for their yearly conventions and their churches and all of that, and i'm just wondering whether or not those of us who are concerned about consolidation and mergers should

just stop fighting these things altogether and allow them to come in with the conditions that they think play well and you all just adopt those conditions and let ese mergers go through. i'm really concerned about it. >> well, as i said, the antitrust division is taking its enfoement responsibilities seriously. i think, again, as i've said before we are being appropriately aggressive and handling these matters in a way that's consistent with the law. >> i'm going to ask you something that's very sensitive. at the time that with e were fighting, trying to fight to get people to pay attention to comcast and nbc and how huge this merger was, nbc that's owned by ge, ceo was being considered to head up the presidens business council. are you aware of that? >> i was not aware of it at the

time. i mean, i'm aware of it now. >> was that something that should be taken into consideration, as you made a decision about that merger? >> it should not have been and was not taken into consideration. >> it should not have been taken into consideration? >> and was not. >> why not? >> that is not consistent with what the enforcement responsibilities are of the antitrust division. >> at the time that you were considering the merger, the key player was ge, that owned nbc, and it appears that there was a relationship here with the administration and with ge that would cloud their objectivity about that merger. yodon't think that's worth considering? or you don't think that's in your mandate to consider? >> no, we certainly shouldn't consider it, did not consider it. you have to understand the justice department acts when it

comes to enforcement responsibilities independent of anything the white house might be doing with regard to -- >> oh, the appointees on the fcc act independent of the white house also? i mean, you don't -- the doj and the fcc have nothing to it do with each other when they are considering these mergers. >> i'm talking about the justice department and its responsibilities when it comes to the enforcement of the laws that are our responsibility. we act independently of other executive branch agencies. >> including the fcc? you're not interacting with the fcc? >> i was going to say there are instances where we will interact with other agencies if they have a particularexpertise or if there is a reason for us to interact with them because of a particular statute. but when it comes to our enforcement responsibilities and determinations as to whether or not the antitrust laws were violated, if those are the responsibility of the justice

department, we act in an independent manner. >> we're not talking about whether or not the antitrust laws we violated, past tense. we're talking about consideration of the request or the attempt to get the merger. and looking at all aspects of whether or not this merger is in the best interest of the citizens of this country, the people of this country. that's what i'm talking about. do you, in looking at that merger, interact with the fcc who have appointees by the president and what is going on in the overall discussion? >> well, let's cut to the quick here. the justice department's determinations in that case or any other case is not affected by relationships that exist between the white house and the head of ge or anything like that. that didn't come in to play with the determination the justice

department made in the case. that's the bottom line. and you're saying should not come in to play. >> that's the bottom line. >> the gentle wom's time is expired. >> thank you. >> the gentleman from pennsylvania, mr. marino, is recognized for his questions. >> thank you, mr. chair. general, welcome. i want to thank you and your staff for waiting for us. i know how busy you are. i was a u.s. attorney from 2002 toty t2008 and i was very busy. i multiply that by a thousand for you and your staff. i have to put a plug in for my middle district of pennsylvania staff who i miss dearly and they made me look good. >> well, don't this take off mr. marino's time, but i tried my second and third cases in scranton. i'm an admirer of judge kneel and. he is a great judge and was very good to a yurng lawyoung lawyer '70s. >> i know what you mean.

let ate switch gears and talk about the federal bureau of prisons. we know over the years that we have had officers who have been murdered, killed by inmates. no one knows better than i do the seriousness when we talk about having officers carry guns. just visiting a feder prison last week, i sa down with the inmate inmates and had a chance to talk with them a little bit about how things are operating. and you know some of those inmates stood up and were concerned about the safety of some of the guards, believe it or not. you know, i had to take what they were taken as a truth, but also the guards and i discussed the fact that the guards should not be caring guns, for obvious reasons, at least between us. but do you see any harm in the officers carrying mace, carrying a spray of some type?

there's a situation where a guard was killed, he was stabbed several times by two inmates, got away from them, down into another landing, they came down and finished him of of. i would have to think just the fact of having some mace to fight them off for a few seconds until help got there, it may have saveed his life. i'd ask you to please consider that and let me know what the downside is of that, if you could, because we couldn't come up with anything other than an inmate could grab that. still, there would be time to handle that situation. so if you would. >> i'm not an expert in that field, but i'll more than gladly run your suggestion with the folks at bop and get back to you with their resnse. >> thank you. i want to move on to countrywide financial, particularly the former chair and ceo of

countrywide financial. the sec filed charges against him and others on june 4th of 2009 alleging that they failed to disclose to investigators the significant credit risk that countrywide was taking on as a resultf its efforts to build and maintain market shares. the sec's complaint further alleged that he engaged in insider training while he was aware of material nonpublic information concerning countrywide's increasing credit risk and the risk regarding the poor expected performance of countrywide originated loans. this gentleman received or made from 2001 to 2006 $470 million in salars and stock options and things of that nature. in the federal prosecutor in los angeles dropped the criminal investigations on this man in february 20011. he was assessed civil penalties

to the tune of almost $68 million, and i don't know all the facts. i haven't read any indictments or anything or potential investigative reports, only what i read in the newspaper and catch from other individuals. but i understand this person is still enjoying his yacht out in the mediterranean and based on the limited material that i read i think there's a question there. i think there's a serious question that at least could have been brought before a grand jury to determine whether to indict. i can see why he probably would want to hand over $68 million if he made $470 million and not spending any jail time on that. if you are familiar with that, could you elaborate on it a little bit? and if not, could you have someone look into that, please? >> well, i'm not sure there's an awful lot of information we'd be able to share. i'm not intimately familiar with the case, but niemt sure we'd be

able to share information on a clo closeed matter. that is not something that is typically done. what we try to do, obviously, is to look at these matters, be aggressive. we have are good lawyers, again, as you know, around the country who look at these matters and try to make cases. and that's something that i hope i've conveyed today, that these matters are examined by prosecutors who come to the justice department to try matters, investigate these matters and take these matters to court and then to hold people responsible if determinations are made not to proceed, it's not for lack of trying. it's because they have made a determination that they can't. >> you've made it very clear today, i applaud you for those efforts. my office was involved in prosecuting a case similar to this, and i never would question a u.s. attorne as to why they did or didn't. i'm sure there are reasons. but this is the kind of

situation where my constituent say, how can someone this wealthy get away with that? and you know how they're couching it, in terms of wealth and get away with it. i know that's not case with the justice department. thank you for being here and i yield my time. >> thank you. >> thank you. mr. attorney generali'd like to ask you a few questions just to follow up on some subjects that were raised earlier. my guess is that there are easy answers. does the administration still favor having background checks conducted by those who purchase firearms at gun shows? i couldn't tell from your earlier answer if the administration changed its opinion or not. do you still favor having those background checks conducted? >> i will say that i think, you know, having a system where people who are exercising their second amendment rights and purchasing firearms we would all be better served by having background checks done. we are presently engaged in a

dialogue with a variety of members of the firearms community. we're having working group meetings at the justice department, talked to retailers, a whole variety of people. we're in the process of trying to look at the ste of the law and comp up with proposals about things that we might consider to make the law better and to make the american people more safe. >> but you do favor the background checks being conducted? >> i would say that, as i said, the american people are better served and more safe by having people exercising their rights in a way that when you go to a licensed firearms dealer you have an instant background check done. i think that's a betr way to do it. >> i'm talking about at a gun show, though. you do favor the background checks there? >> i thinkhat having everybody who purchases a gun -- >> everybody including that. okay. i understand. you were asked a question earlier about price fixing by oil companies. are you aware of any oil companies who have engaged in that conduct?

i know you appointed a task force that might or might not discover that. but are you aware of any of that type of activity today? >> i'm not aware of any activity like that today. i have to await the results of the investigation. >> understand. >>hat's what the investigation is for. >> understand. in regard to my question about the utah immigration law, wh i asked why you wren't filing suit against utah as you had arizona, you said, we're trying to work something out with them. what were you referring to when you said trying to work something out with utah? >> it will depend on what utah does. once we have raised the concerns that we have, the legislature might decide to change the law. there might be enforcement -- ways in which the law would be enforced that are consistent with how we view our immigration responsibilities. >> it would seem it's unconstitutional or at least suspect on its face because you have a law that professes give legal status to people in the country who are here

illegally. why wouldn't -- i don't know how you work that out, and it seems to be a clear violation of clear immigration law. >> well, it might be. the law as it exists in 2011, that could be a violation that we would sue by 2013 we may be ain a position that we're in a different place. >> if they would change the law. and do you still favor closing gait m gitmo? i wasn't sure by a previous answer. >> as the president has indicated, we both think the closure of guantanamo would be . mr. attorney general, thank you for being here today and answering our questions. we'll be in touch with you as well. >> thank you. >> before we adjourn, without objection, all members will have five legislative >> attorney general eric holder was the first official to testify on capitol hill since the killing of a osama bin

laden. letter this morning, homeland secretary john a molotov sec -- testifies before -- on border security. that is un cspan 3. also at two o'clock 30 eastern, indiana governor mitch daniels is at the american enterprise institute to talk about public education. in a few moments, today's headlines and your calls live on "washington journal." the house is in session at 10:00 eastern and returning at noon for her legislative work. the agenda includes a bill aimed at permanently prohibiting federal funding of abortions except in certain cases. in about 45 minutes, we'll look at the debate over raising the debt ceiling with republican representative david schweikert of arizona, the member of the financial services committ