for your perseverance and patience with us today. i hope it wasn't anything i said that cleared the room for you. i hope you're doing well. >> i hope it wasn't anything i said. >> thank you so much for again your perseverance. i just want to join my colleagues in welcoming you before the judiciary committee and also thank you for your years of public service, as we talked the other day. am very impressed with your career and thank you for upholding the law in your career. i congratulate you on this nomination. you spoke about, this morning, your oath and the required commitment to the constitution. i applaud that. you've demonstrated that in your career. you were just talking about mandatory minimums if i'm correct. i just have a quick question. relative to a case that you had in your jurisdiction recently, i want to ask about a defendant

who was convicted by your office in the late 1990's, his name was francois holloway, i believe i hope you remember him. there was a lot of press coverage on this case during your current tenure as u.s. attorney. in 1995, mr. holloway rejected a 10-year plea and was convicted after a trial on three counts of armed carjacking and possessing a gun during a violent crime. those subjected him to consecutive mandatory minimum sentences and he received a total ofic 57 years. -- total of, i think, 57 years. in 2013, judge gleason, the district judge in brooklyn, who sentenced mr. holloway, began a campaign on mr. holloway's behalf and sent you a request to vacate two orders of mr. holloway no one argued holloway was innocent or wrongfully convicted or that his sentence was unlawful.

no one claimed there was a problem with the trial. all mr. holloway's appeals were reject the case went to the supreme court which upheld the convictions. in fact, everyone agreed that the sentence he received was lawful under title 18 of the sentencing -- sentencing guidelines. judge gleason didn't agree with the sentence the law required him to impose and was asking you to help him do it. in february 20 13, to your credit you refused to vacate the carjacking convictions. you suggested to judge gleason that mr. holloway could contact the office of the pardon attorney and submit a petition for commutation of the sentence. i think that was the appropriate resons, i -- response, i congratulate you on that i think every prosecutor would have responded that way. in may of 2013, judge gleason again urged you to vacate two of mr. holloway's armed carjacking convictions. he said your suggestion that he seek clemency wasn't realistic

because the fact that he committed crimes of violence would disqualify him. the judge was a passionate advocate for this defendant. this time, however you backed down and consented to the judge's order to vacate the carjacking convictions. i want to note that he was a violent offender -- offender, who along with an accomplice stole three cars at gunpoint. as the top law enforcement officer, i have a couple of questions relative to that case and your perspective. my first question, what caused you to change your earlier position in that case? >> senator, with respect to the holloway case, there was a matter that had been of long standing it was long standing case from the office. it did predate my tenure -- my second time but not first time as u.s. attorney. it was a case in which it was the defendant who had made a

motion to allow the judge to revisit his sentence. so there was in fact a judicial proceeding before the court at that time and think court wanted us to take a second look at it. we did consider it numerous times. ultimately the matter was before the court and while the judge indicated he would like to have the opportunity to review that, our view was that we had to look at the case consistent with many of the initiatives that were being put in place now by the department of justice. certainly with respect to clemency and with respect to how we look at offenders who have served a significant time and whether or not they would be eligible for that. of note to me as i reviewed the matter was that mr. holloway was the second person in that carjacking incident and was not the individual with the gun but was of course legally liable for that and while he received the sentence of 57 years, the main actor received a sentence

shortly under two years. there was incredible disparity in the sentence there. the real issue for us, was there a legal proceeding in place, and there was, essentially, did we have the ability to let the judge review the sentence again by keeping it in the court system and we felt that we did. but before we did that, it was important to me to consult with every victim in that case. and certainly we found all of the victims but one, after extensive research, all the victims also felt that the jubbling should have the opportunity to reconsider mr. holloway's sentence without a guarantee of what that sentence would be. based on that information, based upon mr. holloway's record in prison, based upon his role in the offense, we looked at how we would have handled the case under current times. again, given that there was a court proceeding, we were able to go to court and tell the judge we would not stand in the way of him reviewing the sentence again, which judge

gleason kid. mr. holloway was resentenced, he then went into state custody to finish a matter so i do not know his current status. but we did ecertain rblely allow the judge to take another look at that and through the judicial process the judge imposed a different sentence. that sentence was still significant and it was still, i would say, twice as long as what mr. holloway would have gotten had he accepted a plea deal. >> thank you. you know as the attorney general you have great discretion, just as you did as district attorney. the question i would have is illustrated by the case, i think, is where do you draw the line? how do you see the balance between the law and your personal position in a case? your personal opinion in a case? >> senator, i don't believe that my personal opinion is the governing factor in a case. be it mr. holloway's case or any case in which i would review either as u.s. attorney or should i be confirmed as

attorney general. i will take a look at every case and i will commit to you that i will review every matter brought to me with a full and fair examination of the facts and application of the law but also with a view toward, in mr. holloway's case, whether or not there's a judicial proceeding there and the current status of that. but we will take every effort and i will make every effort should i be confirmed to always act consistent with the law. >> thank you. just one last question in this vein. there are probably hundreds, if not thousands of violent offenders in our federal custody serving sentences based on consecutive mandatory minimums you spoke about, like those imposed on mr. holloway's case. if you're confirmed and during your tenure as attorney general it comes to your attention that there are cases like mr. holloway's would you consent to early release. >> it was not my -- it would not be my place to consent to early release, our posture was to

consent to allow the judge to revisit the sentence and impose the sentence he felt appropriate. as u.s. attorney i would not be making the decisions to whether someone should be released. should i be confirmed as attorney general i would not be making those decisions either except as people go through the clemency process or pardon office and those matters come under review by the department of justice. we would then apply our best judgment to the situation but the ultimate decision on release would not be made, i believe by me. >> since i'm the only one up here, i guess i'm the presiding officer and my time is almost up. i have one other question for you. i'd like to move on to national security if i might. i'll remind the chairman i didn't go over on my allotted time just in case. the d.o.j. announced that two yemeni nationals charged with conspiring to murder american citizens abroad and providing

material support to al qaeda will be prosecuted in your district court in new york. i'd like your thoughts on bringing terrorists onto u.s. soil. is there any rule for military tribunals or should civilian courts be used exclusively for these prosecutions? >> thank you for that question. the case that you mentioned is being handled by my office and at the outset i would note that throughout the process of reviewing that case and deciding how to best prosecute it and where to appropriately venue it, we consulted extensively with the office of military exhibitions as we do with all the cases involving national security defendants who may be brought to u.s. shores and may be brought to the eastern district of new york. certainly i would say at the outset that my position is, if terrorists threaten americans here or abroad, they will face american justice.

we have done that successfully in the eastern district of new york and i look forward, should i be confirmed as attorney general, to continuing that strong practice, utilizing all the tools in our arsnell and that includes the military commission process. essentially, senator, should i be con firled as attorney general, i look forward to working with the military and the other executive branch divisions in government to make the best determination about where each case should be brought. should that determination be in article 3 court, i anticipate that the receiving u.s. attorney's office would handle it with skill and dedication that my prosecutors do every day. similarly should it be a military commission, they will also handle it with the skill and dedication that they have also shown. i have been honored to host general martens in my office and have a positive working relationship with him. should i be confirmed as attorney general i look forward to continuing that relationship

with him. and with all our partners in the war on terror. >> i would like to thank you for your patience, professionalism today. you've run out of senators almost. in the absence of our chair, there's only one other senator available for questioning. i know they're on the floor now voting. i would suggest we take a 10-minute recess if you're amenable, and we'll find out from the chairman, if senator till liss, who is the last remaining person to ask questions and see where we go from there. enge we'll stand in recess for 10 minutes and thank you again for your graciousness and perseverance today. >> thank you, senator. [captioning performed by national captioning institute] [captions copyright national cable satellite corp. 2015]

>> on the next washington journal, we will look at president obama's attorney general nominee and that the latest on her senate confirmation hearings with charles grassley. then a conversation on proposed changes to the criminal justice system with mark mauer. later, we will talk to politico reporter about loretta lynch's confirmation. we will take your phone calls, e-mails and tweets. "washington journal" at 7:00 a.m. eastern on c-span. >> here are some of our featured programs for this weekend. on c-span 2 saturday night at

10:00, after words, white house correspondent for urban radio april ryan on her more than 25 years in journalism and her coverage of three presidential campaigns. a three-hour conversation with it -- whose biography includes ben franklin and outwards einstein. and on american history tv on c-span 3 saturday as his :00 p.m. on the civil war, boston college history professor on how the cowboys during reconstruction became symbolic of a newly unified america. on sunday evening, we will tour the house that was the head orders of the american red cross to learn about the life of its founder, clara barton from find our complete schedule at www.c-span.org and let us know what you think. call us at -- e-mail a -- e-mail us at the -- or send us a tweet at --

join the c-span conversation, like us on facebook, follow us on twitter. >> this sunday neuroscientist dr. francis jensen on the recent discoveries about a teenage parade. >> they do not have the frontal lobes to reason, cause and effect consequences of actions are not very clear to them because the frontal lobe are not at the ready. they have frontal loads not just the connections cannot be made as quickly for split-second decision-making. do not forget a lot about our malls are changing in the body of the young men and women. the brain has not seem these yet in life until you hit teenage years. the brain is trying to learn how to respond to these new hormones rolling around and locking onto receptors, different types.

they are -- and his trial and error. this contributes to health every roller coaster experience -- and this contributes to this very roller coaster experience we witness as parents. >> more from attorney general nominee loretta lynch's confirmation hearing at the senate judiciary committee. she is question of why north carolina senator thom tillis. -- questioned by north carolina senator thom tillis.

>> just as soon as the room quiets, i'm going to recognize the senator. i think it's quite enough. would you proceed? >> thank you, mr. chair. and ms. lynch congratulations. it's quite an honor to be in the place that you are today. i want to compliment you on your distinguished career and i've also noted over the course of your testimony just how much pride is in the eyes of your friends and supporters here. congratulations. i had a question for you and it stems from -- oh i also want to thank you for dealing with last week when we had to move the venue and the time around for the meeting. i appreciate your graciousness and spending some time with me last week. i really want to maybe start where we left off, with some of the discussions. and i think that senator flake and senator lee and senator schumer have also echoed the concerns about the limited

resources and how you would prioritize things within the -- within your future perspective new responsibilities. -- prospective new responsibilities. i guess something that strikes home for me has to do with certain elections laws. and in north carolina, i'm not familiar with how much you know about the elections. the law was more or less the foundation of that law, with the indiana law which was upheld by the supreme court 6-3, but given the limited resources within the a.g.'s office and the department of justice, what are your thoughts on pursuing laws that are likely end to up in the same state, particularly laws like north carolina that went much further than the law that was

upheld? >> certainly, sir. i believe that the right to vote obviously is the corner stone of our democracy. >> as do i. >> certainly i think that states obviously have an interest in protecting that right to vote also, as well as regulating it and making it safe and free and open for everyone. and i believe in many states they're acting with exactly that view in mind. certainly with respect to the north carolina statute and case, i know it's under litigation now. i believe there will be a trial at some point in time. i'm not familiar with the status of the case now. so i can't comment on that specific case. or that specific statute. but what i can say is that with respect to how the department will look at voting rights issues it will on the view toward protectinging the right to vote and hopefully working with the states to ensure that all the interests are met. certainly all voter i.d. laws are not problematic. as you noted, the court has

outlined situations in which they are useful and serve a fundamentaly important purpose. and the department has, under the previously utilized doctrine about free clearance, actually approved voter i.d. laws. so i don't think that we can at this point without knowing how a case will be presented, say which way the department will go in viewing it. but given the fundamental importance of the right to vote should an issue be raised it is something that the department of justice has an obligation to review and consider whether or not it should get involved. >> in the example of the law that was passed by north carolina and the case that was brought against north carolina. in fact i was named in the case because at time i was speaker of the house. i'm just curious how, as you go forward and you're dealing with the challenges in this office, as i believe senator schumer said, trying to focus your

resources on the bad actors, the hardened criminals, the difficult challenges that the department faces, and a case that has 10 attorneys on it, focused on no less than 10, i believe, focused on that, i would hope that there would be some focus on is that the best and highest use? if given the merits of the case and other laws that have gone to the supreme court, that it's likely to end in a situation where it's going to rule in favor of the state and at the expense of those resources could be used for other purposes. i mean, what is your thought on going into this role and taking a look at cases like that and maybe determining priorities based on the likely outcome? have you given any thought to that? >> certainly as we review a case, both throughout my career as a prosecutor and as u.s. attorney, we always look to the possibility of how a court will view a particular matter. but first and foremost, whether the case involves voting or any

other important right, is the issue of what is the evidence that's presented and what is the relevant law, what is the interest being protected. and if it relates to a core function of the department of justice, such as protecting the right to citizens, keeping our citizens safe, or protecting the right to vote, it is a matter that we would be obligated to look into. whether or not a matter would result in litigation would of course depend upon a variety of factors which are not in front of me today. about the nature of the law and how it was written and essentially whether it comported with those laws that were previously approved both by the department and by courts. certainly with respect to the north carolina case, i believe the matter is in litigation. it's not something that i'm intimately familiar with. i have not been involved in the management of that case to date. i look forward to learning more about it should i be confirmed and i believe the matter will proceed to court and we will await the results there. >> ms. lynch, i do have a

question just based on the final comment that you made there. with respect to the case. because it gives me some sense of whether or not we can look at this objectively and make sure that we're using the resources of d.o.g. -- d.o.j. in the most effective way. i think in january of 2014 you said that people try and take over the state house and reverse the goals that have been made and voting in this country. i presume since i was the person who took over the state house i would be included by reference. and you go on to say, and in my home state of north carolina has brought lawsuits against those voting rights changes that seek to limit our ability to stand up and exercise our rights as citizens. so in my limited time, i know i'll have another opportunity to ask questions, i had some sense that maybe perhaps you were somewhat familiar with what had been done in north carolina and, again, with the backdrop of other laws that seem to have disposed of whether or not what north carolina has done, i took great

care to make sure that we made heroic efforts to preserve everyone's right to vote. i may come back around and ask you a few more questions to that -- to this effect. but i want to move on to something that's completely out of there and it has to do with something that's very important to me. one of the reasons i ran was on veterans issues and on taking care of those who have taken care of us. and one question that i have, i hope that you will look at and perhaps consider in my follow-up questions, giving me a response if you have time to speak, but the public safety officers benefits program is a problem. we have people who are making claims there who are not getting their claims resolved on a timely basis. and i've heard a number of reports where -- this is in the event of a death -- that i would like to think that we would place a priority on are resolving these claims and clearing the backlog. if you have an opportunity and you won't have a lot because you'll be sittinging right

there, but if i could get some sense of what that will be as a priority, if you are confirmed as attorney general, that's something that's personally important to me. i think it's the least we can do for the families. one other thing i'll tell you that i think that we're going to find a lot of common ground, should you be confirmed, is on the issue of cybersecurity. i consider this to be something that the attorney general, all law enforcement, all prosecutorial districts across this nation need the tools to make sure that we get control of this quickly. i'd like some idea based on your knowledge of how we're currently doing, if you have any sense of where we would go as a priority should you be confirmed. >> certainly, senator. with respect to cybersecurity, there are a number of areas in which would be my focus should i be confirmed. within our law enforcement commuvente, i would working to -- community, i would work to ensure they have the

technological resources they need to stay ahead of this front. from a human resource perspective as well as computers and the like, with respect to the u.s. attorney community and the department of justice community, i would make sure that our prosecutors receive the appropriate training to manage the this important issue. as i've seen in my practice as u.s. attorney, cyber issues are now in every area of practice that we have. that will continue to be the case. and i'm sure that should i become confirmed as attorney general i will see that throughout the department of justice. i will work to strength the resources in the criminal division and the national security division that deal with these cases. but another thing that i think is very important as we combat cyberattacks and deal with cybersecurity is the relationship between government and private industry. i believe that there's a very, very important collaborative relationship to be built there. it is being built. i've seen it. i've participated in conferences with both financial sector parties as well as pharmaceutical industry parties

on this important issue. and we've had very, very good, positive collaborative results involving the reportinging of cyberattacks as well as law enforcement's ability to work with private industry to gain knowledge of their systems, to prevent attacks as well. so i think we also, should i become attorney general, one of my priorities would be strengthening this connection between government and private industry as well. >> thank you very much. senator schumer mentioned earlier, i meant to mention in my opening comments, that we have a number of very capable basketball teams in north carolina, beyond the blue devils and the tar heels. many of whom i think this year could beat the knicks. [laughter] >> well. as an early carolina fan, i have to say that that is likely true. [laughter] >> the various staff of both

republican and democrat give us some inventory of the number of people that want a second round. and the second round will be eight minutes. i'm going to take about five minutes of that eight minutes and then go vote and i'll have to recess, if nobody else is back here. so you can do what you want to do during that period of time. >> thank you, senator. >> the first question was going to be a question, now it's just going to be a statement. so i'd appreciate if you'd listen to my point of view. you suggested earlier that prosecutorial discretion allows the administration to prioritize removal of criminal aliens from the country. yet in fiscal year 2013 the administration released from its custody $36,000 aliens who had been -- 36,000 aliens who had been convicted of a crime instead of removing them. according to the department of homeland security, 1,000 of these aliens have already been

convicted of another crime since their release. just today i received a 38-page document from the department of homeland security that lists each of the offenses underlining those 1,000 post -release convictions, including things like assault with a deadly weapon, terrorist threats, failure to register as a sex offender, lewd acts with child under -- lude acts with a child under 14, aggravated assaults, robbery, hit and run criminal street gang rape spouse by force, child cruelty, possible injury and death. i'm going to put this in the record. but so my statement is this for you to consider -- you don't have to respond to it now. i could go on but for the sake of time, that copy's in the record so anybody can review it.

this suggests the administration is not prioritizing the removal of criminal aliens very well, so 1,000 out of 36,000 have committed further crimes. and who knows, maybe others. so if confirmed, my statement to you would be simply, you need to take a look at that policy. i had two points in my second question. but senator tillis asked about the public safety officers benefits. he's heard the same thing from my constituents -- the same thing that i've heard from my constituents. in iowa alone, there are three families who have been waiting for over three years and another that's been waiting since 2013 to receive benefits. two weeks ago i wrote the department about the delays and requested a reply by this friday. obviously you won't be in a position that you can request

that or answer that by friday. but i hope to get an answer because way back in 2004 the attorney general at that time made a decision that these claims should be processed within 90 days of receiving all the necessary information. so then i would go to the second one, which is just -- well, let me go to it and then i'll ask you the question. there's a brandon he willington of iowa, you wouldn't know about --elington of iowa, you wouldn't know about this because he's an iowa student and a college student who drowned while handcuffed after state troopers arrested him in may of 2014. i've discussed the case with attorney general holder, had a couple telephone conversations, i'm very satisfied with his personally looking at it. it has gotten his personal attention. he's assured me that the department will look into the

unanswered questions in this case carefully to see if there are any federal laws involved. so all i'm asking you to do, if and when you're approved, will you be able to talk to attorney general holder and if he doesn't make a decision by then that would you personally examine brandon ellington's case? >> i would certainly continue that resolve, senator. >> now i'm going to go and i'll recess for a while and then i'll come back and finish my second round. thank you. >> thank you, senator. [captioning performed by the national captioning institute, which is responsible for its caption content and accuracy. visit ncicap.org] [captions copyright national cable satellite corp. 2015] in.

we'll hold you right there. >> thank you all. sorry that we're in this unfortunate circumstance of having a hearing interrupted rather repeatedly. it's not the best way to do business, ms. lynch. i'm sorry that that's occurred. we have been working hard in the senate. thursday more votes were cast

in one day than the entire year last year. and senator mcconnell promised that members would be able to offer votes and so there's 18 more i think going to be cast today and maybe that will bring -- come close to bringing the end to the legislation that's out there. but i think it's part of our heritage as congress to have individual senators be able to offer an amendment and get a vote on it. so i think it's the right thing but this hearing i wish could have been conducted more respectfully. so i'm sorry about that. i have to have a clear answer to this question, ms. lynch. do you believe the executive action announced by president obama on november 20 is legal and constitutional? yes or no? >> as i've read the opinion, i do believe it is senator. >> this is very troubling to

me. because it goes way beyond prosecutorial discretion, i think. it goes clearly to allowing someone to work who is unlawfully in america. to take jobs that the statutes say they're not entitled to take. it gives people the right to participate in social security and gives them a number as part of their work authorization to participate in other actions like medicare. and i believe this is a fundamental question. it's been a part of the national debate and the american people are very concerned about it. the polling number is very high. they do not believe, in fact the american people are shocked that we are seeing this action from the president. after congress was asked to pass legislation to this effect and congress rejected it. do you believe that the president has a right to take action in violation of law just

because congress refused to pass a law he asked them to pass? >> i believe, senator, that the president is as limited by law as every citizen and it is certainly the responsibility of both the president and the department of justice to follow the laws as passed by this body. with respect to other actions the president may take, depending upon the action taken, there may be a basis for certain actions or they may -- there may not be a basis for legal actions and that's where i believe that the department of justice must apply its own independent, thorough legal analysis and as with this particular opinion, aser dane whether or not there was a legal framework -- ascertain whether whether or not there was a legal framework for action or not. and decline to provide a legal basis for that. >> well, what it did approve i think clearly goes beyond the law. congress authorized -- has

passed certain laws that control entry into the united states. we expect you as a chief law enforcement officer, the president who has taken an oath to see the laws are faithfully executed, to execute those. and i read the opinion. and it suggests that -- it suggests that faithfully executing means you use your resources as best you have to carry out the intent of congress. is that fundamentally -- >> yes, sir. >> it goes beyond just enforcing every single law. if you don't have the resources you should try to use the resources you have to effectively carry out the law. >> certainly sir. >> well, what i would contend is absolutely plain. i would contend that you've gone far beyond that. you've actually created a new system of law. a new system of qualification. a new standard for who can work

in america. a new standard for who can have social security and medicare. this is a fundamental matter of great importance. i just have to tell you, i'm worried about it. the "wall street journal", mr. rifken who served two white house counsels and law professor foley concluded their piece this way. the legal counsel who reports to mr. holder and would report to you, that you're now affirming, rendered a valid opinion which you associate yourself with. this is what he said. the l.l.c.'s memo endorses a view of presidential power that has never been advanced by even the boldest presidential advocates. if this view holds, future presidents can unilaterally gut tax, environmental, labor and

security laws by enforcing only those portions with which they agree. this is a dangerous precedent and cannot be allowed to stand. and thankfully the attorney general of the united states should have told president obama that urged him and -- to back off. the president's got head strong. and he didn't do. it now you're here defending this -- do it. now you're here defending this. i believe it's indefensible. i want to tell you, that's a big problem with me. now, do you believe and do you support legalization of marijuana? >> senator i do not. >> i know the head of the d.e.a. is a little bit out of step with some in the administration i think agreed with you on that. the president said this in january of last year. quote, i smoked pot as a kid

and i view it as a bad habit and a vice, not very difficult from -- different from the cigarettes that i smoked as a young person person up through a big chunk of my adult life. i don't think it is more dangerous than alcohol. closed quote. do you agree with that? >> well, senator, i certainly don't hold that view and don't agree with that view of marijuana as a substance. i certainly think that the president was speaking from his personal experience and personal opinion, neither of which i'm able to share. but i can tell you that not only do i not support legalization of marijuana, it is not the position of the department of justice currently to support the legalization nor would it be the position should i become confirmed as attorney general. >> do i think that there's been a lot of silence there. i know the head of the d.e.a. did push back and testified here pretty aggressively but i think she felt like she was out

of step within the administration. and i hope that you will cease to be silent. because if the law enforcement officers don't do this, i don't know who will. and in the past attorneys general and other government officials have spoken out and i think kept bad decisions from being made. it's good to see senator leahy here. not many attorney generals have you presided over. more than a few -- how about a rough number? >> i'm trying to think who president ford's -- go back to -- not presided but being a part of it. >> it's been a pleasure to work with you on this committee on a number of years. ms. lynch, this is a big issue this immigration. because it represents, in my view a presidential brute

decision that was rejected in congress and i do not believe and totally reject the idea that if congress fails to act, then the president is entitled to act. any more than i think if congress fails to act, judges can just act. because congress, by not agreeinging to pass a certain piece of legislation, has acted. it is made -- it has made a decision. and that's where we are. there's still opportunities and still legislation moving that will be considered as the year's to come on all questions related to immigration. there will be a lot of debate and that kind of thing. but under our system, it is not justified in my view. just one more thing i would say to you. i do hear a lot of talk, a lot of loss of confidence in the justice department, a belief from professionals prosecutors and citizens that there's too

much politics and not enough law. and i do think if you achieve this office, you need to know that. i shared that with you i think in a meeting. you need to make it a central part of what you do, to reverse that trend and restore confidence, that this attorney general's office serves the law and the people objectively. and not a political agenda. thank you and i'll recognize senator leahy. >> let me state i'll be brief, but when i was a young law student, i was invited into the attorney general's office, he was recruiting me to come to the department of justice. i asked the attorney general how independent they were, i said for example, suppose you had a prosecution that you knew was justified but the white house you knew might take a different view. he said, i'd have to prosecute because that's my job. that attorney general was

robert kennedy. he later prosecuted a man who was critical to his brother getting elected president. i contrast that to another attorney general in the last administration who testified here that, he's a member of the president's staff, so therefore he takes order frts white house. i kind of exploded on that. i said, it's not secretary of justice, it's the attorney general of the united states not for the republicans, not for the democrats, but the united states. i think from what you told us, you'd be that kind of an independent attorney general. i heard somebody criticize this morning on the prosecution, ed stevens. i feel he should not have been prosecuted. it was neglected to mention that was during the last administration and it was attorney general holder who got the conviction obtained in the last administration.

i assume from things you said before, we are concerned in vermont about the increase in heroin, that you will continue to work with communities as the justice department does now, i mean communities not just at the federal level but the state and local level, to combat this problem that's facing so many parts of the united states. not just my own state of vermont. >> senator should i be confirmed as attorney general, certainly the issue of the growing numbers and amount of heroin abuse is of grave concern to me. i've seen it happen in my own district and in talking with my colleagues in the u.s. attorney community across the country. they have expressed similar concerns. as you point out however, we are most effective when we work in partnership with our state and local law enforcement partners and often when dealing with the issue of addictions,

in working with our public health community as well to find treatment for the offenders and possibly break the cycle of addiction. many of my colleagues have been engaged in efforts of exactly that type, that have been very effective in lowering the addiction rates and in fact lowering the crime rate associated with heroin abuse. these are efforts that we can study and that we can share. we have to have a strong law enforcement response also but we must involve state and local counterparts. we must involve families. we must involve treatment centers as well. in dealing with this seemingly intractable problem. >> thank you. if there's no objection, i would reserve the four minutes and 46 seconds left in my round of questions because there's another roll call. >> we'll save that and we'll stand in recess.

>> thank you sir. >> until somebody returns. [captioning performed by the national captioning institute, which is responsible for its caption content and accuracy. visit ncicap.org] [captions copyright national cable satellite corp. 2015]

on c-span and c-span radio. . . >> the hear willing come to order. first i want to thank my republican colleagues for the courtesy here. we're all going back and forth voting. it would be rare to have a third ranking democrat chair the committee, but we're all going in voting and i appreciate that. i'll try to be as quick as i can because of my need to vote. so, first ms. lynch, i read this morning that on the news you have something special from your late brother who was a navy s.e.a.l. with you today. tell us a little bit about that. >> i have with me my late brother's trident, the insignia of the navy s.e.a.l. it is something that i usually have with me in my office, but i often bring with me when i come down to the department of justice. and i had it with me here today. it ensures that i have both of my brothers with me here today.

>> yeah. well having read and seen and met the seals, it's an amazingly difficult thing to achieve. and then like you, in a different way, he was defending our country in one of the best ways you can. so we really appreciate that. appreciate your thoughts about your brother. ok, now i'd like to go to the next area. this morning both you and senator sessions and i talked about a topic seems like a long time ago this morning. so i'd like to just talk a little more about that. absent appropriate authorization from d.h.s., i just want to ask, is there any federal right for an immigrant who's not a lawful -- not in lawful stat to us work? >> no, there's not, to my knowledge. >> i think earlier you said you had a preference that all individuals here in the united states work regardless of

status. i think a lot of us would share that preference. i think this is confusing for people because they're literally -- there literally are nearly 100 categories of statuses or stati, whatever the right word, is they didn't teach that at james madison high school. for people because you've got to count green cards nonimmigrant visas spouses of individuals on certain visas, parole asylum, applicants for green cards non-immigrant visas, immigration visas. many people who are not u.s. citizens have a legal right to work for example green cardholders. we admit people to work on a work visa. so let me ask you, just what did you mean by -- when you said you think everyone should work regardless of status? >> well, certainly, senator, when i made that comment i was really making more of a personal observation and i must admit i have to be careful here because my father is here and my mother is watching. but certainly in my family, as

we grew up we were all expected to try and find employment as part of becoming a responsible adult and as part of becoming a responsible member of society. so i was making a personal observation based on the work ethic that's been passed down to me by my family. not a legal observation. >> so again, to reiterate, you don't believe that there's a federal right for an immigrant who is not lawful here to work? >> no, sir, not at all. >> ok. i just want to clarify that. i wish senator sessions were here. i think he wasn't certain about what you said. i think now the record is 100% clear. one final question this is about a myth another of the myths that's outer there. generally deferred action policy eliminates case by case consideration is therefore illegal. that's what some people are saying. deferred action is actually like many federal policies, it sets eligibility criteria but

requires case by case consideration. so only a limited set of individuals, those with deep ties to this country, and without a criminal record can apply for deferred action under the president's proposal. but that's not all. after they register, pay a fee, undergo criminal background and national security check, the president requires d.h.s. officers to scrutinize every single case individually, to make absolutely sure the person is not someone we should prioritize for deportation. so i have two questions in regard to that. doesn't it makem nent sense for a program to set out guidelines at the front end and then still require careful individual consideration at the back end before anyone is approved? >> certainly sir. that would make imminent sense and would provide for a careful review of every applicant. >> and i believe that's what the president is intending to do. we haven't seen all the regulations yet. but that seems to me what he said. couldn't one argue that other

discretionary guidelines and programs like federal contract bids take a similar approach? we lay out broad criteria but then they review each contract, contract by contract. >> contract by contract and with rigorous application and screening. >> ok. i want to thank again my colleagues for deferring and i will pass not only the questioning but the gavel to senator graham. >> a dream come true. [laughter] >> a dream come true. your brother was a navy seal. that is a major accomplishment. probably the hardest thing to be in all the military. do you agree with me that one of the worst possible outcomes is for the united states to release somebody from guantanamo bay to go back to the fight to kill an american seal or anyone else.

we should make sure we don't do that unless which absolutely have to. >> anyone coming from guantanamo bay or any of our facilities, we should take appropriate steps that they do not place americans in harm's way. >> we have a 30% release rate and from the seal point of view, they are usually the guys capturing these folks. has to be bad for morale that ends up killing your buddy down the road. the policy we have at guantanamo bay needs to be reviewed and reviewed closely not just for seals but all who have been fighting. do you believe we are at war? >> we are at war. >> i have a military lawyer and you have been a prosecutor for a long time. i believe that military commissions have a place in this war and article 3 courts have a

place in this war do you agree with that? >> i do agree with that principle. >> under military law the main objective is to gather intelligence. does that make sense to you? >> that is one of the important objectives under military law. i would add with respect to the article 3 prosecutions that i have been involved in through my office, a primary goal is also to obtain cooperation and thereby valuable intelligence. >> here's what i would suggest to you. this is the 300 pages and helped write the detainee act to make sure torture we don't -- we don't torture people. not one time does it suggest that you should read the enemy

combatant miranda rights. >> the manual is an effective way of handling high target detainees. >> all i would suggest that anybody in the military would reject out of hand that it's a good way to gather intelligence by providing the enemy combatant a lawyer. in world war ii, even though miranda didn't exist no one has suggested to our military that once you capture an enemy combatant as a lawyer. here's my recommendation to you that we have caught several high-value targets. we have read them miranda rights within days or hours of capture. i want to talk to you about this

and have more flexibility than we have in the current system. if we do not hold these people for questioning as an enemy combatant, we are going to lose the ability to gather intelligence and only way to protect this nation is to interrupt the next attack because the people we are fighting do not mind being killed. can an american citizen be held as an enemy combatant? >> with respect to an american citizen there would be a prohibition against us holding them an enemy combatant. >> that is not true because we have held several enemy combatants. i want you to read because we have a case where an american citizen col baiting with the nazis landed in long island to try to attack.

they have to go into article 3, but we have under our law in this case, the idea there is no bar this nation holding one of its own citizens as an enemy combatant. what recommendation -- i want you to read those cases and see if that changes your mind. what recommendation would you give an american citizen when it comes to joining al qaeda or isil. >> with respect to anyone who seeks my opinion on joining those groups, my recommendation would be do not do it because you will face american justice. >> you will get killed. >> you may get killed before we find you. >> if we find you, we could kill you. do you think the president acted within his con -- constitutional

authority? >> he figured in the radicalization who have come before the eastern district of new york and active al qaeda leader. i'm not familiar with the ways in which the decision was made to use the drone against him. >> there is an executive process with the executive agencies that evaluate the threat that every individual presents to the country, in the case of an american citizen, there are strict criteria but if they meet those criteria, the president can use the order of lethal force. american citizens have decided to side with the enemy and have been viewed as an enemy combatant. i think the president correctly authorizeded the drone attack. are you comfortable with that process? would you like to look at that process and get back with me?

>> i'm comfortable with the process as you describe it. what i think it illustrates as what you put at the beginning of the discussion use all of the tools available to combat this war. >> as the attorney germ of the united states, you understand what are the tools to combat this war is to use lethal force against an american citizen who our government has determined to be part of the enemy force. the second tool is to hold an american citizen or non-american citizen. those are two tools in our tool box that have been used for decades and as an attorney general, i want you to recognize those tools are available. read these cases and get back with me if you could. >> absolutely. >> online gaming, are you familiar with the decision by the office of legal counsel in 2011 to basically say that the

prohibition in the wire act was limited to sporting events and contests? >> i'm germly familiar. >> you gee with that decision? >> i haven't read that decision so i'm not able to analyze it for you. it was one interpretation of the wire act. >> would you agree with me that one of the best ways for a terrorist organization or criminal enterprise to be able to enrich themselves, as to have online gaming that would be very hard to regulate? >> i think certainly what we have seen with respect to those who provide material support and financing terrorist organizations, they will use any means to finance those organizations. >> i'm going to send you some information from law enforcement officers and other people who have been involved in this fight and their concern where online gaming is undergoing this interpretation. thank you very much. i do appreciate if you would look and be able to answer my questions about enemy combatant

status for american citizens and use of legitimateal force. i will turn it over to senator lee. >> thank you mr. chairman. thank you for staying with us and even through the hectic vote schedule. i would like to go back to civil for at this time tur if that's all right, which was the topic we were discussing earlier before i left for the last vote. first of all, i want to get back to the question i asked at the outset, do you think it's fair, is it fundamentally just that someone can have their property taken from them by the government without any evidence that they have committed wrongdoing based solely on a showing by the government, probable cause standard, that their property might have been

involved in the commission of a crime, perhaps without their own knowledge, own consent or awareness, do you think that's fair? >> we have a very robust asset for at this time tur program both criminal and civil. with respect to civil for at this time tur, i looked -- forfeiture. i conducted a resue and with respect to civil for at this time tur, there are legal safeguards. and my understanding by my u.s. attorney colleagues. there will be judicial review before attachment or seizure as well as an opportunity to be heard. that standard must be met before the seizure warrant can be issued. >> i understand. a lot of americans don't believe that's fundamentally fair and that's why in my states there have been laws enacted that restrict the use of civil forfeiture and impose additional

requirements which is why i raised the concern of the process the department of justice has in occasion in the past used known something as adoption and take something that could not be forfeited under state law in state court and they'll utilize the resources of the u.s. department of justice to assist in the forfeiture, u.s. department of justice retains 20% and 80% back to the law enforcement agency. this is troubling and you appear to be aware when i asked you about this, you appeared to be aware of an order that attorney general holder issued just about a week and a half or two weeks ago, january 16, restricting that. so i assume you are familiar with that order. >> there was an order or a policy directive from the attorney general and to the

field and i did receive that and essentially ends the adoption program. as you point out, senator, a number of states do now have a robust asset forfeiture program on their own. when the federal program was being instituted, many states did not have this program. so a lot of the local law enforcement agencies that have been using the adoption program initially did not have a venue to if he can you tate legal seizure of property that had been used in a crime. the adoption program began several years ago as a response to that. that has changed. that legal landscape is very different and one of the reasons set forth in our discussions when the policy change was made. >> this order that the attorney general issued on january 16 you refer to it as ending the adoption program the program which the federal government can assist state and local law enforcement agencies.

but when you read the order, you see it is subject to several exceptions. one exception applies with respect to and i think you referred to this briefly before when you and i spoke a few hours ago, one exception relates to property that directly relates to public safety concerns. fair enough? then you turn the next page and look at the second to last paragraph which contains some additional carveouts. this order does not apply to seizures by state and local authorities working together with federal authorities in a joint task. two, seizures by state and local authorities that are the result of federal and joint investigations or with federal authorities, or three, seizures pursuant to federal seizure warrants obtained from federal could you tell us to take custody of assets originally seized under state law. so as i see it, ms. lynch, this order while purporting to end

this adoption program as you say is riddled with loopholes and riddled with loopholes that effectively swallow the rule which seems to be a theme today which is something that concerns me greatly. i understand this order was issued. has been issued prior to your conformation -- after your nomination prior to any confirmation vote on your nomination. but take into account these concerns and to work with me moving forward on making sure that our civil forfeiture programs don't get out of control. would you agree with me that we ought to find ways to stop federal law enforcement agencies from helping state governments to circumvent their own state law restrictions on civil

forfeiture? >> i believe the policy change that ended the adoption program is certainly the problem that had been raised. these were situations where local law enforcement made an initial stop or seizure and the seizure wasn't begun by a federal agent or partner and then the -- brought to the process through the sharing system. the other situations which you refer where there is a federal-state task force or joint investigation really are situations where there is a federal case from the outset and there would not be the issue of having to resue the state laws and they would not be an option in that case, because the case would be under federal jurisdiction from the very beginning. so as you pointed out the initial adoption program did raise concerns and i understand that those have been discussed in the public discussion venue as well as law enforcement

circles as well about the issue where the state has a robust system of asset forfeiture, but that system is not being used and the federal system is being used instead. the adoption program ends that practice. >> it ends it, but there are very large loopholes. i ask you to be aware of that. before my time expires, i want to get back to another question i asked earlier. just indulge me in this hypothetical scenario. imagine you are in a state in which there is a 55 mile-an-hour speed limit. there are a lot of people who want that speed limit raised. imagine that the governor really wants it raised to 75 miles an hour. there is a lot of support within the legislature and among the public at large that there needs to be some reform to the speed

limit law. they can't get to any one proposal and then nothing happens. the governor decides that he will announce that anyone who wants to drive faster than 55 will not be ticketted and they can apply for certification that they won't be ticketted if they want to drive up to 75 miles an hour. he says i can't guarantee it forever but the next three years. would that under that hypothetical scenario would not be tanta mount to usurpation? >> i would want to understand not just the factual framework that you outlined but the relevant laws governing the situation as well as any prior state action, any action that had been sampingsed, all the things that would go into rendering a legal opinion. i'm a careful lawyer and i would want to have all of that

information before i could give you a legal opinion as to your hypothetical situation. >> i understand and respect the great care that you devote to answering questions. and i would respectfully submit that at some point, there is a limit to what a chief executive can do whether we are talking about a governor at a state level or chief executive who is the president of the united states. at some point i would hope you would agree with me there are limits to what a chief executive can do. at some point, one thing, i'm not going to enforce this law, let's say it's taxes, a future president of the united states, whether republican or democrat says i don't think we need to have a tax rate above on 25% and at some point the president can't get congress to agree and he says i'm not going to enforce any tax rate above 25%.

at some point there is a limit. and i hope that you'll recognize that and hope that moving forward should you be confirmed that you be one who is willing to point out to the president of the united states that you do have a client, your client is the united states of america. the chief spokesperson might be the president but the people of the united states and the constitutional restraints that fall upon every officer who is sworn to defend and uphold the constitution. i see my time has expired and i recognize mr. blumenthal. >> as a careful lawyer, which i know your i want to try perhaps set your mind a little bit at ease but a question you were asked earlier. the question related to a statute that purchase port he

hadly -- purportedly saying who could take deferred action. one of my colleagues suggest that the president's executive order is illegal because it is being implementeded by the department of homeland security and not the attorney general as the law he quoted seemed to suggest. just to clarify, the statute that was quoted to you actually was amended in 2002. it no longer assigns responsibility for immigration policy to the attorney general, the provision he quoted and another provision which directly authorizes what president obama has done are to be implemented by the secretary of homeland security. so good news, the president has done nothing wrong and you don't have to run home and look up the statute.

and get ready to implement a whole new area of law. you will have enough to do already. i want to personally say that i appreciate that my colleagues are not making immigration policy be kind of turning point for their decision or put it a different way, they're not making this nomination a referendum on the merits of the president's immigration policy and decision. and i must say that i agree with the president's action and support him. and so do sheriffs and chiefs of police across the country and i'm going to ask if there's no objection that letters that i have from march shal town and south bend indiana be made part of the letter and the national

task force to end sexual and domestic violence against women both -- all these letters make the case that the president's executive action not only helps immigration officials target resources but also secure cooperation between immigrant companies and identify potential criminals within their jurisdiction. the beneficiaries of the president's policies are not just the immigrants, but also law enforcement officials and people who are better protected by virtue of the activities that those law enforcement officials take. if there is no objection, i would ask that these materials be entered into the record. >> without objection. >> i want to turn briefly to another area where you have some very profoundly valuable experience in the wake of the

events in ferguson, missouri and new york city of last year. many of us around the country who have backgrounds in law enforcement are deeply concerned with making sure the public understands the vital role that our police and law enforcement officials play as well as proper training and discipline that should be provided to those police and law enforcement. and i wonder if you could talk about your experience in addressing the concerns about law enforcement in the wake of the case where you had a professional involvement and i think how you feel that that experience and new policies at

the department of justice might better help the department of justice and state and local police. i would mention that i led an effort to pass during the last session a statute relating to death in custody. it's a death in custody reporting act that requires local and state police to report deaths in custody. it is a re-authorization of a law that expired in 2006. just a modest step toward imagining more facts. but i think there are obviously two sides to this kind of issue. and i would very much appreciate your perspective on it. >> certainly. thank you, senator. with respect to my work on that case, i was privileged to be part of the trial team that handled that case. and i think what often is not

commented on and perhaps it is not even widely known is how essential the support and contributions and the actual work of the nyd was to the prosecution and investigation of that case. our team was comprised of f.b.i. agents and new york city police officers, who knew that unless we held each other accountable, that unless law enforcement acted to hold bad actors accountable, all of law enforcement would suffer. and one of the most painful things to watch during that case was as is happening now the understandable anger and tension, but the backlash against larger groups of police officers. that is one of the dangers of not addressing police misconduct is not only are the officers who work hard every day and work to not only follow the rules, but to enhance the relationship between law enforcement and the community, those officers are not rewarded, but they often get painted with the same brush as

officers who may cross the line. and that is one of the greatest harms that you see from these types of cases. i have been privileged to work with dedicated agents and police during my career and there are no greater teachers than an experienced police officer. one of the things we found useful was encouraging community policing, which the nypd was doing on its own and a number of officers did very, very well. i have seen situations where when i was handing out awards to officers and agents for working on a case in a mostly minority area cleaning out a housing project, the residents asked if they could also come and hand out plaques to the same officers and agents and they did so with plaques that said thank you for giving us back our safety, security and houses, because there was a collaboration there.

there was a recognition that this is a joint effort. this is a shared project that we all have between law enforcement and all of the communities that we serve to keep all of us safe. we also have to work more and certainly if confirmed as attorney general one of my priorities will be to ensure that police officers have the tools they need to do their jobs and to do them safely. senator, i spent several weekends this past month attending the funerals of the detectives of ram oost and liu and to use the word heart wrenching -- this crime that touched new york city was palpable and can't allow our officers to be targets like this. we must provide them the protection they need to do their jobs as well. it is a priority of mine and look forward to working with you to address the legislation that you describe because the more we

can get adequate information about these deaths in custody the more we can put effective regular like -- regulations and rules in place to effectively address them. >> the grief over the assassination of those two police officers was shared in connecticut. as a former united states attorney and state attorney general, my own experience has been that some of the strongest condemnation of improper conduct or impresentence report on the part -- impropriety of law enforcement comes from officers themselves and they have one of the toughest jobs that exist in public service and i hope the public appreciates it and as attorney general, you will work with congress to try to educate and make the public aware of the

tremendous challenges they face day in and day out and courage strength that they demonstrate. so i thank you for that answer and thank you for being here today. thank you, mr. chairman, whoever the chairman is. [laughter] >> it's a flexible answer. >> i know the chairman -- it's the senator from texas. >> that's a nice answer to that question. ms. lynch, thank you for your endurance in what has been a long extended hearing. i would ask in this round of questions if you could try to keep your answers brief, because we've got to return to votes on the floor. in the prior round, you and i had a conversation about the o.i.c. opinion and the president's executive amnesty and you stated your agreement with the legal reasoning in that

opinion. and i would like to explore the limits of that reasoning. as you know, any legal theory that is being put forth to justify government power naturally raises the question, what are the limits of that power. and one of my greatest concerns about the holder justice department is that at every turn when asked what are the limits on government power, the answer have been there are none there are none there are none. so let's talk about the limits of the prosecutorial power. the memo describes executive amnesty based in part on prosecutorial discretion and that was limited to some 800,000 people in the original daca and in the next one it extended to four, five million people.

in your understanding of prosecutorial discretion is there anything to expand it to 11 million or 12 million people who are here illegally. >> as i read the legal opinion it was focusing on how the department of homeland security could best execute its executive discretion in removing the most dangerous. and with respect to those who would be a low priority, it focused on the legal framework for setting up a did he ferrell program and as i read the opinion, it went through a legal analysis that indicated that part of the request did not have the legal framework and should not be implemented and my understanding is that that particular part of the request was not implemented. so i think with respect to any action certainly should i become confirmed as attorney general, i would undertake a careful legal analysis based on

all of the facts presented to me by the white house or whatever agency raises the issue. we would look at all the precedent, congressional action and relevant action and whether the requested action did have a legal framework. if theres was a reasonable basis for it, that information would be provided. but as was outlined in the opinion that i read where the legal framework did not exist to support the request or the proposed action, that would have to be told to the requesting department. >> ms. lynch, let me try again, because you described the memorandum but i asked a pretty straightforward question. would prosecutorial discretion allow the president to decline to enforce immigration laws against all 11 million to 12 million people here illegally? >> prosecutorial discretion as a

tool certainly as i have used it as a career prosecutor and u.s. attorney, would focus on which cases to prosecute and which types of charges to bring. it would not apply to the situation that you have outlined and i'm sorry if i'm not able to answer your hypothetical question. as i used prosecutorial discretion, it has been with the presentation of cases before me and determining the best way to focus limited resources. >> and of course, this is not simply prosecutorial discretion, because in addition to stating that federal immigration law would not be enforced with respect to somewhere between four million and five million people. the president announced that the administration would be printing work authorizations indirect contravention of federal law. are you familiar in your practice as u.s. attorney, where you have declined and used

prosecutorial discretion to prioritize prosecuting one crime versus another. have you ever engaged in printing up authorization for one set of individuals to affirmatively violate the law which is what these work authorizations consist of? >> in my career as a career prosecutor and u.s. attorney, i have brought the strongest cases based on the facts that have been presented to me. in referring those cases to other law enforcement agencies -- >> ms. lynch, i'm sorry to interrupt but we're on limited time and i asked if you ever issued authorizations to violate the law. and i'm certain the answer is no but am i correct in that? >> certainly, in my practice, i focus on building the most strongest, most effective cases against the perpetrators who come before me and referring them to other jurisdictions if

i'm not the appropriate venue. it is not part of my responsibility to make a determination in the matter you are referring to. >> you are a very experienced prosecutor, you have been asked questions and had witnesses decline to answer. this is a simple question. has your office issued authorizations for individuals to violate federal law? >> senator, as the u.s. attorney, our office is not involved in issuing authorizations for anyone to work or not work or engage in various activities. we are not a licensing authority. i can't answer the question you put to me. >> are you aware of a precedent for the federal government doing what the administration is doing right now, taste hired over 1,000 people and printing authorizations for individuals to violate federal law. that is a remarkable step and it is a step that goes much further than prosecutorial discretion. are you aware of hiring 1,000

people who issue authorizations for individuals to violate federal law? >> i'm not aware of the practices you are referring to now or the particular remaining portion of the executive action are being implemented and i'm not able to comment on the hypothetical or the particulars you have given to me. i'm sorry i don't have the information to answer your question. >> let me understand the limits of the theory you are putting forth. you embraced the prosecutorial discretion argument. senator lee asked you about a hypothetical. if a subsequent president, let's say president cornyn is sworn in in january of 2017 and if president cornyn decided that he was going to instruct the secretary of treasury not to collect any taxes in excess of 25%, to exercise prosecutorial

discretion and not collect the taxes. in your legal opinion, would that be consistent with the constitution? >> senator, before i could render a legal opinion on the hypothetical as presented to me i would want to know the entire scope of the action and also have the time to gather all of the legal precedent, the cases congressional actions, any other similar or dissimilar actions where that particular type of action might have been considered. so i would want to have all of that before i provided a legal opinion in terms of the hypothetical that you presented to me. >> so you are unable to give any legal judgment to this committee today on whether a subsequent president could decline to enforce the tax laws as they're written? >> i think with respect to current or subsequent presidential action, there would have to be as in every case, a thorough review of the relevant law, the precedent, congressional press dent in the

conjunction -- precedent to see if there was a basis or not a legal basis for the action proposed. >> your understanding of prosecutorial discretion, would allow a subsequent president, president cornyn, to state that there are other laws that the administration will not enforce labor lawyers. would it allow a president to say every existing federal labor law shall not apply to the state of texas, because i'm using my prosecutorial discretion to refuse to enforce those laws. in your judgment would that be constitutional? >> i can't imagine president cornyn taking that step, but with respect to the hypothetical you present, i would have to know what legal basis was being proposed for that and i would review that law and if i were the person providing advice to

future president cornyn and advise him as to whether or not there was a legal framework for it or not a legal framework. if there was not, that would be the advice i would provide to him. >> i find it remarkable that you are unable to answer that question. i could answer it, it would patent lr unconsconstutional to refuse to enforce the labor laws and immigration laws. just like the president refusing to enforce the laws. and someone who is about to be confirmed cannot answer that question. senator. >> i'm a little shook up about this president cornyn thing. [laughter]

>> your worst nightmare. >> i got here and suddenly, cornyn was president. [laughter] >> my world had changed. i would like to ask you ms. lynch, about something that's been a focus of mine since i first got to the senate. i got there a little early. it took me a while to get seated. and it's about the financial meltdown of how it happened and how it caused the great recession. and it's about the credit rating agencies and their business model. and basically what happens in the leadup to the meltdown was that banks would put out a

structured financial product subprime-back mortgage securities. and they would choose a rating agency, like standards and poors or moody's or fitch to rate it. and they would pay them. but they would choose them and it turned out that a lot of junk got aaa ratings. and this is all kinds of -- not just subprime mortgage-backed securities but then bets on those, derivatives and then bets on the bets on the bets. the reason you had a house of cards collapse is because you had all these bets based on the original piece of junk. and there was an incentive, a

total conflict of interest which the credit rating agencies knew if they gave a aaa rating, they would get the next gig. so that's what they did. and then chairman levin of the permanent subcommittee on investigations got -- subpoenaed some emails from within s and p and e mailing that we have to give these things that aren't good these financial products, better ratings so we can keep our share of the business. and i have been fighting to get the -- i had actually a bipartisan piece in the senate side of what's now called dodd-frank to fix and it's not

totally fixed, but the department of justice has a big lawsuit against s and p and i think it's for about $5 billion or $6 billion and it's my understanding it may be settled. i don't want it to stop with s and p, with the one agency. so what i'm -- i'm concerned and s.e.c. did a settlement with s and p on the same practice that still exists. will you take an aggressive approach to holding these rating agencies, inclooded but not limit todd s and p accountable for their role in the financial crisis from before and in their current role what they are doing? >> with respect to the financial

institutions including the rating agencies, if i'm fortunate enough to be confirmed, i look forward taking a very aggressive stance in reviewing their conduct not just past conduct but current and prospective so we can prevent these types of harms from occurring again. >> people in minnesota lost their homes, their savings and jobs and millions of americans because of these guys. and i don't think they have learned their lesson and i don't think they have been incentivized in learning their lesson. i want to talk transparency in n.s.a. -- i have one minute. that took a minute what i did. i want to encourage us to work together if you should be attorney general on transparency

in government surveillance, because i think americans have the right to know to the extent that it's not harmful, obviously, what the -- what surveillance is like. for example, how many americans' data was captured and how much was actually accessed. and i think that had we done that and i voted against these two programs, 715 and 702 originally because they didn't have enough transparency and i think it is absolutely essential that americans know to the greatest dre possible without jep diesing our -- jeopardizing our safety. >> absolutely, senator. >> mr. president.

[laughter] >> how are you holding up? >> i'm fine. >> forgive me for jumping around a little bit. but there are a number of areas that you have taken questions on and i want to fill in some of the gaps. first of all do you recognize the second amendment right to keep and bear arms as an individual right? >> yes, senator, and i believe that has been decided by the supreme court as well. >> the current attorney general and department of justice have been involved in a program known as operation choke point that you are probably familiar with to some extent, but this is a collaboration by the department of justice and the federal deposit corporation to discourage banks and other financial institutions from

doing business with certain types of businesses, including lawful firearms dealers. documents from operation choke point obtained by the house oversight committee showed that the d.o.j. and fdic used intimidation tactics and categorized law-abiding gun dealers as having been engaged in high-stakes activity. i would like to ask you do you agree it was inappropriate for the department of justice and fdic to associate license and law-abiding businesses with these types of other obvious illicit activities. >> i appreciate your concerns over any department initiative. my familiarity with the choke point initiative is based on my

ufpk that it focuses on payment processing companies that are defrauding consumers. i don't know what businesses that the consumers may have been buying from. certainly with respect to any initiative that the department of justice engages in should i be confirmed as attorney general, there is no room for improper bias or even personal views. we must follow the law where it leads us. and i certainly hope should you have concerns about this program or any other, that you would feel free to share them with me and i would look forward to working with you to provide information about them. >> i appreciate that. i have heard from constituents back home in texas from financial institutions that they have been unable to continue long standing banking relationships with their own lenders because of some of these tactics and i will take you up on your offer to visit with you

more on the specifics of those cases as well as the topic i mentioned earlier at a later date. i appreciate that. senator leahy who just arrived and i have joined in an unlikely partnership on freedom of information areas. he and i both agree that it is absolutely critical of the functioning of our democratic form of government that the people have access to as much information as they can possibly get so they can make their consent to the laws that are passed by congress, informed consent. and so i want to ask you, in the department of justice's evaluation in the eastern district of new york under your management compliance with the freedom of information act was one of the few areas to receive criticism. in fairness to you, one of the

few areas in which there have been critical comments. do you believe that the government should operate under a present sudges that information should be open to the public unless otherwise precluded by law? >> senator, i am share that the freedom of information act, including the department of justice. with respect to my tenure as u.s. attorney, during the evaluation system which i found very helpful, i specifically asked the evaluators to look at our management system and support staff systems to make sure we were in compliance and bring any issues to our attention. this raised this issue which was great concern to me. we took steps to rectify the issues that we found within our own office functioning. we hired more personnel and work closely with the department of

justice to make sure they are handled as expeditiously as possible. and i find that i have learned the most when someone has pointed out to me an area which i might improve. >> you took corrective action? >> absolutely. immediately. >> president obama in 2009 mandated that government agencies, executive branch agencies should operate under this presumption that information should be open unless otherwise prevented by some rule or some other law. the current department of justice has taken the position that that information should be withheld if released of the information will cause foreseeable harm. they articulated a different standard than the president himself called for in 2009, which is this presumption of openness, absent some legal

prohibition against disclosure. senator leahy and i have been working on legislation that would codify the president's mandate, the presumption of openness. is that a standard that you could support and would you work with us in your administration if confirmed to make sure this presumption of openness applies across government agencies and that information would only be withheld from the public if some law or other rule or regulation precluded? >> i share your view in the importance of the freedom of information act and transparency. certainly, i look forward working with both you and senator leahy to review the legislation. i hope in the exchange that i believe we will have we can discuss ways within which to make as much information available possible while protecting vital interests.

i certainly feel with respect to the department of justice should i be confirmed as attorney general one of the areas we have to be concerned about are ongoing investigation and witness safety and security. but i feel that discussing these issues, it is something we could work together on. >> and finally, i know the chairman alluded to the gun walking program known as fast and furious which was the subject of a lot of oversight efforts by this committee and others in the house. and then to our surprise, the attorney general attorney general holder claimed executive privilege as to certain communications and documents, even though the documents in question did not involve the president or his staff. and the president himself confirmed that claim of executive privilege. as you may know, that claim is currently in litigation and i

would ask your commitment to take a look at that with a pressure set of eyes to see whether you believe -- the department's defense and continued refusal to deny congress access to these documents is justified under a claim of executive privilege. would you pledge to take a fresh look at that and render your own independent judgment about that? >> well, certainly, senator, with respect to that matter, it is the subject of ongoing litigation and i do not know when it will be resolved. i don't know what stage it should be in should i be fortunate to be confirmed. i look forward to learning about it once i'm able to, again should i be confirmed and reviewing that again as well as other matters. >> just so we understand each other, if you are the next attorney general, you can decide to settle that case if you

decide that the claim of executive privilege was not well taken. in other words, if there's no legal impede meant based on the claim of executive privilege, you as the next attorney germ could resolve that couldn't you? >> the abuilt to resolve a number of cases should i be lucky enough to be confirmed the next attorney general. >> i hope when we're done here that you don't get this attitude that the way this chaotic place is run why should you be working with the congress of the united states. it doesn't always work this way. little tongue in cheek. >> senator, it has been a privilege to watch the peaceful transfer of power going on this afternoon.

[laughter] >> here we go. before i read my question, i want to tell you my view is that there's very legitimate reason for between a counsel that's advising the president for that to have a very tight counsel relationship. then we get into fast and furious and then 64,000 pages that i will go into some detail that i want you to comment on, that is maybe an argument that was privileged, but is it really privileged. so let me go to where you maybe not had a direct role, but you chaired the attorney general's advisory committee. so you had a chance to watch your predecessor closely in the job you are now seeking.

and i assume that you learned lessons from that experience. what's the biggest mistake that attorney general holder made in the handling of the fast and furious controversy, which involved this privileged information that we're talking about, and what would you have done differently? >> with respect to the privileged litigation which is ongoing, as the chair of the attorney general's advisory committee and a member before that i was given information about the nature of the investigation itself and the problems that lay therein. the focus in terms of providing information to the u.s. attorney community was more on the problems with the actual underlying firearms investigation. so i was not privy and have not been privy to the decisions, discussion or rationale behind the litigation or documents or privilege. that is something that has not been shared.

so i'm not able to answer one way or the other as to how that's been managed. i think the attorney general himself has said he made mistakes in germ and he has been open and frank about that. with respect to that litigation, i don't have information about that. i did receive information about the underlying case because it involved an investigation, the inspector general's report was not handled in the best way and not the way in which those of us in the community would have wanted to see operate at all. >> you have probably answered half of that in this sense. would you have done anything differently? >> with respect to the firearms investigation? >> the way that the attorney general handled it? >> i think having the inspector general review the firearms

investigation itself and come up with the issues that occurred within the office and the handling of the case was something that i think will be useful to the department of justice as it seeks to prevent similar mistakes being made in improved training and the like. with respect to the litigation over the documents, i have not been involved in those decisions. so i'm not able to say what the options were that the attorney general had that i would have chosen in a different manner. i'm sorry i cannot provide you with a direct response. >> let me go back to the privilege and i want to read my question any way. one of the attorney general's biggest mistakes is not following through on the president's promise to be the transparent. he was the first to be held in contempt of congress that included 17 democrats. attorney general delivered 64,000 pages of documents to the

house three years after the house subpoena, two years after the contempt vote and only after the house went to court. so when push came to shove he didn't even try to argue to the judge that those 64,000 pages were privileged. now, do you think it's appropriate to withhold so many documents for so long, especially even if the justice department admits that there was no valid privileged claim? and if so, why? and if not, please explain why you would do it differently. . >> certainly in documentary form should i be confirmed as attorney general, i would carefully review the request and work to provide as much information as could be provided consistent with our law enforcement and investigative responsibilities. that would be my pledge to you going forward with respect to every issue of oversight that you would bring to my attention

and i certainly hope that you would bring those issues to my attention. >> can i ask the same question if my own way, in the sense of -- in my own way, in the sense of the way it might be talked about at a town meeting? so people are mad about, you know, a lot of things the president might do that you call executive edicts or in this case withholding information. in this case the attorney general decided to withhold it. ok, if somebody asks me about fast and furious at a town meetinging then i get into the fact that as far as i know the president knew nothing about it and this is between me and the attorney -- or the attorney general and the congress, i should say. i only say me because i started this investigation before the house took it over. then when they withhold 64,000 pages, as opposed to a few pages, maybe the president

really knows something about something that you can legitimately withhold it, then i say to my town meeting, you know, when 64,000 pages are supposedly privileged, then i wonder, what does a president know about it? if they can be protected that way. well, now the attorney general didn't argue that they were privileged. they were just given up. so you see the problem it causes for me? and how far does executive privilege go? and it surely doesn't go to 64,000 pages. if it doesn't does, can't you assume -- does, can't you assume the president says he knew a lot about fast and furious when he says he didn't know anything about it? do you see the problem i have? >> i can understand the frustration when any party is seeking to discover or information and another party's not able to provide it, based upon the claim of privilege or whatever that claim may be. particularly a body that has oversight responsibility over the department of justice and is seeking to fulfill that

obligation and that mandate. certainly with respect to the volume of documents, not knowing the documents i'm not able to comment on how appropriate or not that would be, and certainly fortunately it was not civil litigation when it might have been a larger number of documents, as my experience as a young attorney. >> i hope you at least understand why it's frustrating to me. the way this whole thing was handled. let me move on. as senator graham mentioned, in 2006 you co-signed a supreme court brief on partial birth abortion. i believe you told him your primary concern was the impact of the law on law enforcement if up-- law enforcement if upheld. that brief argued the federal partial abortion ban was unconstitutional and the partial birth abortion, quote procedures are sometimes the best means to preserve a

woman's health, end of quote. the supreme court along with a majority of americans disagreed with any position taken in opposition of that legislation. i assume as well as your position. the supreme court held there is quote, uncertainty in the medical community over whether the barred procedures -- procedure's ever necessary to preserve a woman's health. just one question. judging by your question here, it doesn't look like you've added your name to a lot of supreme court briefs. of all the cases that you could have become personally involved in why did you pick this particular case? was that the only case that raised the concern you mentioned to senator graham? i would like to get this on record because i assume you read the brief, otherwise you wouldn't have signed it, would that be right? >> yes, senator, that would be correct. >> ok, then can you say why did

you pick this particular case, if you haven't done it very often, and was in the only case that raised concerns that you mentioned to senator graham? >> thank you, senator. with respect to the brief, i joined a group of former department of justice personnel, former united states attorneys, as well as former assistant attorneys general, and our focus was on our concern that the way in which the law would be implemented might put prosecutors at variance with doctors and their medical treatment. and might raise an issue that prosecutorial discretion had been constrained in some way by the political debate. we were not focused on the actual issue involving the procedure itself. in fact, it was our concern that as lawyers we did not have medical information or the medical capability to evaluate that procedure and could be dealing with a situation where a doctor may say something different from what the law might require us to do.

and that was the concern that was being raised in that brief. the supreme court did resolve the issue on the part of the statute itself and certainly that is the law of the land now. >> ok. senator leahy. >> thank you very much. >> and for your benefit and for the nominee's benefit i've been told that two additional members want to come over to ask a second round. they're going to come just as soon -- yes, i'm going to make sure they come today. just as soon as the vote's over, i've been told. and you and i will have to go vote too. >> ok. why don't we just recess and we'll go vote and then come back. >> ok. we'll recess. thank you for being patient. [captioning performed by the national captioning institute, which is responsible for its caption content and accuracy. visit ncicap.org] [captions copyright national cable satellite corp. 2015]

[captions copyright national cable satellite corp. 2015] >> thank you, senator. >> in the exchange we just had

earlier this afternoon you detailed a very broad understanding of the president's potential authority and that try as i might i could not find a hypothetical that you considered to be beyond the power of the president. i'd like to ask you now a question that i've asked attorney general holder and that he repeatedly declined to answer and it's in a different context. it concerns the civil liberties and privacy rights of americans. and drone policy. and my question to you is, in your legal judgment, is it constitutional for the federal government to utilize a drone strike against an american citizen on u.s. soil if that individual does not pose an imminent threat? >> senator, certainly i'm not