exceptionally well qualified and a very good person. i especially want to recognize david barlow, who's here today that served as a u.s. attorney in my home state of utah for three years, and before that worked on this committee as chief attorney for my companion here in the senate, senator lee. professor turley welcome back. >> thank you senators. >> yesterday, i asked ms. lynch whether the attorney general has the duty to defend the constitutionality of duly enacted laws, if there are reasonable arguments to do so. you discussed this in your prepared statement and i want your comment on one specific issue that i raised. attorney general holder did not decide never to defend the constitutionality of the defense of marriage act but to stop defending its constitutionality. his own justice department lawyers had already been making reasonable amendments defending

doma or this bill, and mr. holder decided to stop making them. and that is what made me say he's abandoned his duty. do you agree? >> i agree. i thought that the decision was wrong. i happen to agree with the president. i was a critical of doma. but i thought that the abandonment of the defense of doma was to the rule of law. i thought it violated a long-standing understanding with this body. you know, there's history here, as you know. you're a student of the constitution. and you know that there's always been this tension between the congress and the justice department as to who can be in court defending things of this kind. the justice department's always insisted they're the exclusive representative. >> huh been attorney general you would not have stopped that. >> absolutely. i would have defended that law. >> even though you didn't agree with doma, the defense of marriage act. >> there's no definition in the attorney general's position as to when they will abandon a federal law. i happen to agree with the

criticism of the law. but there were plenty of people with good faith arguments that it was constitutional, including people on the supreme court. if this is the standard for abandoning a federal statute, i could see a president doing this in a host of different statutes. >> you're right about that. i appreciate your comments. i'm also glad that you're prepared statement discussed the controversy over a recess appointments. the idea that the president has the authority to tell the senate when it is in or out of this or that sort of recess is astounding. i'm glad the supreme court unanimously rejected the administration's position on that matter. and yesterday's discussion of prosecutorial discretion, the administration's defenders repeatedly said that this is really only about wisely using limited resources. you refer in your statement to the, quote ill-conceived litigation strategy of the justice department, unquote defending this bizarre position on recess appointments.

i wonder how many resources the department uses pursuing these extreme positions in court that is, i said yesterday, got shot down over and over again. some 20 times. do you agree? >> absolutely. i testified before the litigation after the appointments were made and i said in my view even though i thought very highly of the nominee that the appointments were flagrantly unconstitutional. there are close questions in the constitution. this is not one of them. >> this is one of the reason i admire you. you are wrong on so many reasons but you stand up. i got a lot of respect for you. professor legomosky, your prepared statement refers to a november 2014, letter from immigration law scholars. it states that president's action establishing the deferred action for parental accountability program is, quote, one the legal authority of the executive branch of the united states, unquote. but didn't the justice department's own office of legal counsel in its opinion

issued a week earlier conclude that, quote, the proposed deferred action program for parents would not be a permissible exercise of enforcement discretion unquote, even though office of legal counsel which seems to be into advocacy rather than analysis these days, disagrees with these scholars on this issue? >> senator, the l.l.c. memo distinguished between granting deferred action to those children who arrived at an early age on the one hand and in addition granting it to the parents of u.s. citizens and lawful permanent residents while at the same time suggesting it might not be legal to extend deferred action to the parents of the daca recipients themselves and -- i do personally disagree with that latter suggestion of o.l.c. but oice i thought the memo was -- otherwise i thought the memo was very thoroughly

and well articulated. >> ok. sheriff clarke, i want to personally thank you had a for your advocacy for police people for this country and coming here today and giving your testimony. as i observed the reactions to those like ferguson, missouri, i -- the rhetoric and broad brush picture that was developing about you a all law enforcement. we heard elected officials that police officers across the country were indiscriminantly shooting black men simply out of fear. those indents happened at the local level and local law enforcement. how much do you think the attorney general of the united states could affect the situation negatively or positively? >> thank you senator. a lot. the attorney general of the united states is a big stage and when he or she talks, people listen all across the country and it gives the

impression that that is the policy of the united states department of justice and they have to choose their words carefully. >> well, thank you. >> ms. attkisson, i don't know what your politics are, but i admire you greatly. you're what an investigative reporter ought to be. and frankly, your testimony here today has been very profound, very strong and it ought to wake everybody up at the justice department and in the administration and in all administrations both this one and anyone in the future. so you're doing a great public service here and having the guts to stand up and take the positions that you have. i have a lot the admiration for you. professor rosenkranz, during the hearing yesterday i acknowledged that prosecutorial discretion obviously involves enforcement or resource allocation decisions in

individual cases but i said, quote, applying that discretion to entire categories of individuals has the same effect of changing the law itself, unquote. do you agree with that? >> yes i do, senator. it's not a clear line that one can draw but when you start to talk about exempting millions and millions of people from act of congress, this looks like legislation than enforcement discretion. >> professor legomosky offers the supreme court's decision in arizona v. the united states, to justify using prosecutorial discretion in a categorical fashion. the court in its opinion uses the word individual. more than a dozen times. for example, it discusses, quote, the power to bring criminal charges against individuals, unquote. and whether, quote an officer has probable cause to believe that an individual is

removable, unquote. in fact, one of the quotes from the court's opinion that professor legomosky includes in his prepared statement says, quote, the equities of an individual case may turn on many factors, end quote. does that decision support using discretion for individual enforcement decisions in a categorical way which has the effect of changing the underlying statute itself? >> i quite agree with you, senator. i think the traditional conception of prosecutorial discretion has always been case by case. >> ok. your prepared statement says that the most important dimension of the attorney general's function quote, is to advise the president on the scope of his executive powers and duties, unquote. does that function happen on a blank slate or do the essential principles of our system of government actually counsel special attention to the limits of presidential power? >> quite right, senator. i think the core of that

responsibility is for the department of justice and the attorney general, in particular, to think hard about the meaning of faithful execution of the laws. and to counsel the president when he is close to the line of unfaithful execution. >> in other words, is the attorney general there to find some plausible theoretical justification for whatever the president wants to do orp is she there to enforce the power that sness for all of our liberty? >> the attorney general should help the president to find legal ways to do what he wants to do, but at the end of the day it's essential for the attorney general to be able to say, no, mr. president, that's something you cannot do. >> my time is up. >> thanks very much, mr. chairman. i'm going to be very brief. this is really a hearing to discuss the qualifications of a nominee. in this case a very distinguished, very exceptionally well-qualified

nominee on virtually any area that one can state. i really don't want to see that diminished by a critique by various people of the administration. and to me, loretta lynch is an outstanding role model, not only for women but for all of us in this arena because, as you can see, so much of this arena has become so partisan that uses a hearing of the qualifications of a nominee to be used to criticize the administration and areas that loretta lynch had nothing to do with. i guess that's the coin of our realm here, but i mean, i remember other nominations where if the issue was independent, where nominees

fully admitted and the ranking member mentioned this, that they were a wing of the staff to the president. so i think we have a very special nominee in front of us. very skilled, very determined, but most importantly i think she's used her life so well to be that combination of what was said by one newspaper combination of velvet and steel, and to see the impact of that on the strong support that she has for all of us in this arena i think is a kind of role model as to -- there are a lot of people that know how to separate everybody. there are very few people that know how to bring people together again and really develop a kind of consensus that can lead us forward.

and because this institution is so split, the role of loretta lynch in this day and age i don't think can be underestimated. so the fact that when senator leahy asked the question -- i forget how he put it. which of you is in opposition to loretta lynch, no one raised their hand. and i think it's that way throughout the nation. i think we should get on with the business. we should see this woman confirmed as quick as possible. thank you very much. that's my statement. senator whitehouse. >> before i start claiming my time let me say where we stand in terms of what's going on here because the chairman has just had to leave for a vote and he has left me instructed that if senator lee arrives or if another republican arrives at the conclusion of my time,

then they will be recognized, but if no one else is here, then we'll recess at that point until 1:00 p.m. is that correct? ok. good. let me take my time to sort of review the bidding where wrer. no witness present today opposes ms. lynch as the nominee for attorney general. ms. attkisson is here as a litigant against the united states with her lawyer sitting beside her. her testimony never mentions the nominee. and i would ask, actually, unanimous consent that the redacted version of the i.g. report related to her claims which she now has, be made a matter of record which without objection it will be. mr. barlow supports the nominee

enthusiastically. reverend newsome supports the nominee enthusiastically. ms. fedarcyk, to use her words, wholeheartedly supports her nominee. mr. legomosky's testimony does not make clear whether he or does not support the nominee. do you? >> i certainly do. thank you for asking senator. >> that's made clear. mr. turley says that his interest today is not to discuss ms. lynch as much as the department she wishes to lead. but he goes on to say he has no reason to doubt the integrity and intentions of ms. lynch who displays obvious leadership and strength of character. sheriff clarke is here and wishes the nominee well.

but he goes on in his testimony to say, i want to spend some time critiquing eric holder's tenure. professor rosenkranz takes no position on the nominee but comments on the tenure of eric holder. is that correct, professor? and ms. engelbrecht -- did i say that right? ms. engelbrecht is an advocate for voter identification laws who would like ms. lynch to agree that voter identification laws are not efforts to suppress voting but took no specific position on the nominee, is that correct? >> most specific positions, iffer all the hope in the world it will work out. >> so let me say two things. one, some many years ago george

washington set for himself what he called his rules of civility and decent behavior. he wrote 110 rules of civility and decent behavior to help him guide his own conduct in upright and honorable ways. i think it was rule 89 of those rules of civility and decent behavior that george washington kept that said the following -- speak not evil of the absent for it is unjust. there are plenty of forums where the attorney general would have an opportunity to

defend himself. this is not one. there is no forum here. there is no opportunity here for attorney general holder to answer these various charges that have been made. i think that is fundamentally unjust and i think it is frankly beneath the dignity of this committee at a time when we have a very significant and solemn charge before us to determine the fitness of a specific individual to be attorney general of the united states, to launch a series of unanswerable attacks. i have no problem with the attacks. my problem is the choosing this forum for them where the other -- the individual in question has no chance to answer. i think fails president washington's test that one speak not evil of the absent

for it is unjust. with respect to the other issues, i think we will have plenty of time to ventilate those in other forums. i'm sure we'll have plenty of time to address immigration, address voter i.d. and voter suppression, address surveillance, address all of those things but once again in this forum there's no opportunity for another side to be presented. and i regret that this hearing and this solemn occasion has been part of that extent and turned into what appears for a sound bite factory for fox news and conspiracy theorists everywhere. we actually have a nominee in front of us. she appears, by all measures, to be a terrific person. i think we should get about the business of confirming her and get about the business of voting on her. and if people have this strength of view that attorney

general holder is not a good leader of the department of justice, the very best way to act on that would be to confirm ms. lynch as quickly as possible. i happen to disagree with that view. i am proud of what attorney general holder has done. and i would once again reference that he did not inherit a department of justice that was in good order. the office of legal counsel had written opinions that were so bad and so discreditable that even that administration was forced to withdraw them once they saw the light of day and received peer criticism. u.s. attorneys of republican and democratic persuasions and appointments alike rose in irritation and anger about the effort to manipulate the united states attorneys that exploded into a scandal.

there was that rather creepy midnight assault on a sick attorney general in the hospital when white house lawyers came over to try to get his signature on a document and thankfully now f.b.i. director put a stop to that norn sense and ultimately the attorney general of the united states was forced to resign from that office. so stepping into that mess, and there were plenty of other features i could add, i think that attorney general holder is entitled to great credit for putting that department back on its feet. i understand that he made decisions that people disagree with. i for one believe that those decisions are within the bounds of legitimate debate. i'm not suggesting that my colleagues need to agree with them, but i think to personalize them so much as to say that it shows a moral or personal defect on his part

reflects really more the narrowness of a specific ideology than a true judgment about the merit of a man who has served his country as a united states attorney, as the deputy attorney general, as a judge and as attorney general with what i consider to be great distinction. so with that i'll conclude my remarks. i see my friend and former attorney general colleague senator cornyn here as well so under the chairman's direction as i yield my time it will go, as i understand it, to senator cornyn. ok. i yield my time. >> thank you. i would thank you my colleague and who i work with on a number of important matters. we're working on some important prison reform legislation, demonstrating that dysfunction hasn't taken over everything here in washington that we can actually work on things even though we have other

differences. but i just have to -- i just have to disagree with him. and i guess he disagrees with himself. while he criticized the criticism of attorney general holder, he seemed to recall with great clarity the problems with the bush justice department that he -- or at least things he disagreed with. so -- but that's the great thing about the united states senate and about our great country. where all of us ought to be free to express our views without fear certainly of government intimidation and, ms. engelbrecht, i'm glad to see you personally. i find your testimony once again chilling and i admire your courage. and it can't be easy for a citizen to fight their government with all the vast resources array against you.

i assure you are not alone. and senator hatch, who's chairman of the finance committee, which has jurisdiction over the internal revenue service, he's an honorable man and i know you can count on his commitment as well to get to the bottom of some of the matters that you referred to. particular regard with the internal revenue service. so thank you for your courage and your willingness to stand up to and i would say also, inspire a lot of americans who feel like government's gotten too big and too intrusive and is crushing the spirit and the voice of a lot of individual citizens. so thank you for being here. and ms. attkisson, i have to tell you how much -- i'm chilled by what you have to say . when i was in college i was a journalism student before i lapsed into the law and became a lawyer. but the idea that you would be

targeted and surveiled intimidated or attempt to intimidate you from doing your job. and i know you are a skewer of power on an equal opportunity basis. i can tell from your testimony you are not picking sides but you are trying to do your job. it's repugnant to me that government should try to array its power against the freedom of the press to intimidate people like you. and i appreciate the fact you are not intimidated. and i told senator leahy, who i partnered with on a number of information reform -- he and i are the odd couples, who are book ends, but who agree in the public's right to know and certainly we want to work with anybody who's got a good idea how we can make the system

better. i welcome that opportunity. i just want to say, ms. lynch appears to be an outstanding example of the american dream and somebody who's got a distinguished career as a united states attorney. the challenge is for her and for everybody who takes on a job as a member of the president's cabinet is you are no longer just a prosecutor. you are somebody who is responsible for implementing policies, implementing policies of this president. that has been the subject of a lot of discussion here today, and as i told ms. lynch privately, you got two choices. you can take the job and implement the policies or you can say, mr. president, i think what you're trying to do is

improper, even illegal, unconstitutional and quit or not take the job in the first place. i don't see any middle ground on any of that. and while i have the same reaction to ms. lynch's testimony that i had to sara saldana's testimony, who was a united states attorney from dallas texas who senator kay hutchison and i respected for appointment who is now the director of immigration and customs enforcement, i told her the same thing. you were a prosecutor. you did an outstanding job. now you're going to be in policy position where you're going to be asked to implement policies that i disagree with and you may in fact disagree with. so you'll be left with that hobson's choice. so while i hear some of my colleagues talk about the independence of the attorney general well, it's perhaps

some independence but it really is the independence of one's personal conviction not to cross that line and to be able to tell even some of these powerful -- someone that's powerful even as president to say he's gone too far. professor rosenkranz, i would be interested in your view of whether the attorney general can be truly independent. >> i don't think independence is quite the right word. the executive power is vested in the president which it should be. but the president is delegated to the attorney general to advise him on legal issues. that's delegated, again to the office of legal counsel. and it's crucial for that function to be performed with as much integrity and independence as possible. at the end of the day, the president can disagree with the attorney general, can overrule the attorney general, can even fire the attorney general. it's esernings for the attorney general to -- essential for the

attorney general to say no if necessary. mr. president, i explored every legal option and this is something you cannot do, this violates the constitution. >> professor turley, i know that senator grassley asked you questions about your representation of the united states house of representatives in a lawsuit. as you probably know there's also a lawsuit pending in brownsville, texas brought by 26 different states challenging the president's executive action that we've been discussing here this morning. obviously any lawsuit that's been -- that is brought, the plaintiff has to establish standing to sue a claim of harm to them and not to the public generally. i remember that much in my law school. but my point is, the policies of the federal government have a direct and very negative impact on state and local governments and on citizens who

live, particularly in border states like mine, where just not that long ago we had what the president himself called a humanitarian crisis. tens of thousands of unaccompanied children coming from central america drawn by the magnet of a promise if you can make it here you're going to be able to stay here. something that a lot of people would like to do. so i'm not going to ask you to opine about the merits of that particular lawsuit. the judge there will probably make a decision here in the coming weeks. but do you see anything inappropriate about people who are agrieved or suffering harm as a result of the actions by the president of the united states going to court and asking the court to make a decision? >> no, i don't. but i've long been a critic of the current standing doctrines that have been developing over the years. i think walter dallinger put it

best. he and i testified together. he spent his career as a standing hawk. i spent my career as a standing dove in that sense. i believe it's important to give access to courts, particularly for states. i think it's rather >> i think it's rather absurd to say states have effectively no skin in the game, that they have no injury when you have these federal pronouncements essentially coming down and imposing considerable costs upon them. i think that you really see sharp relief when these states have trouble even being heard on the merits. so when we look at all of these cases in terms of the ert to -- the effort to keep the merits from being heard, i think that has a really dysfunctional effect. i think that's one of the reasons we are seeing so much chaos is the lack of definition , in the separation of powers and these constitutional rules. that can be rectified if we give greater access in the courts. >> well, of course, from my perspective, coming from texas

i see the policies of the federal government, particularly with regard to immigration, as having a very direct and real impact on taxpayers and citizens who are forced to pay the price in terms of health care, education, law enforcement, the like and they really have no recourse because they don't have the ability to do that for ourselves, something that is committed in the constitution to the federal government's responsibility. and when the federal government doesn't do its job, the federal government doesn't necessarily feel the negative impacts. it's people who live in those places like texas where it's very real. i want to maybe just ask one last question, not to get too far down in the legalese, but ms. attkisson, as a result of the investigations that have been done here in congress on the fast and furious gunwalking debacle, we were met with a claim of executive privilege by

the attorney general that was then embraced by the president of the united states even though there was no indication whatsoever that the president or high level people at the white house were actually involved in, but could you just describe this sort of obstacles that you ran into in the course of your investigation of the fast and furious scandal? >> guelphs alone this, which is already in the public record, when i began covering the story, and the justice employees put out internal e-mails that said the story was false and they were not telling the truth. which we now know were and they were telling the truth. they put out a series of false implications of information along the way. they launched a campaign in my view of calling superiors

bosses, college, social media using the blogs to cooperate with them and work with them in some cases, directly. it was not true, repeating the false talking points of many cases. it was in all out effort to stop the reporting and anybody who was pursuing it. you can see the e-mails that have recently been released after a lawsuit filed that were held under executive privilege. the extent of the links to which public affairs officials inside the government went to try and stop this line of reporting on a story that they clearly thought was proving to be very damaging for the. >> to. i'm advised another boat has been called for a series of vote that we are having on the floor of the senate. at the request of the chairman, the committee will stand in recess until 1:30. to i. -- thank you.

>> the senator takes his turn, i want to thank everybody for understanding the chaotic way the senate is run when we have all these boats and we have this

important issue before us of who should be the next attorney general. i just want to thank you all for your flexibility, as well as my members. before we turn back to questions, i want to take a moment to comment on some criticism that we heard this morning from one member of the democratic side about some of the witnesses who are here today in this hearing. i won't speak for any other member of the committee but i for one find it absolutely disgraceful how our government has treated some of our fellow citizens and the department of justice under its current leadership has failed. really failed to meet some of its most a sick response abilities. every single one of these witnesses, everyone of them speaks directly to mrs. lynch's nomination. because the question in my mind is, as i stated yesterday, will she take these flaws seriously?

will she fix them? and i note that it was not too long ago that democratics -- that democrats agreed that it was appropriate to call witnesses to address what they viewed as problems at the department. so i would note to the naysayer, on the other side that i'll that it was not beneath the dignity of the committee when they were in charge, so why would it be now? and i would make reference to judgment casey's hearing before he was approved to be attorney general. the other side called witness after witness who testified regarding issues that occurred at the department while he was serving as a federal judge in the southern district of new york. so for instance, maybe it does not bother you that the irs targeting conservatives and that the department doesn't seem to have taken the issue seriously but it bothers me a great deal.

i want to know if miss lynch is committed to tackling this problem and a range of others. >> thank you, mr. chairman. i think attorney general is a big deal of many people who are able to take questions. the department is entitled to be criticized, they are not perfect and and i love the department of justice. i served and 15 years. i was an assistant attorney for over two, and the united states attorney for 12. i love that job and i love the people in it. i have so admired this department. as i told miss lynch and private conversation, you might understand the reputation of this great department is being eroded. the situation is not good in this country. it has got to be reestablished. we are not going to allow this to become a political body that just conducts its work in

haphazard political reactive ways. and i think the senator race one of the question that still calls me. that is the failure to defend. i was a defensible act and everybody who has ever been an attorney general or a office knows you have a duty to defend the laws passed by congress. that is the attorney general's duty. eric holder and president obama failed to do so, and it was shameful and disgraceful. it was an abandonment of the rule of law. i've not happy about what has happened in my department of justice. -- i am not happy about what happened in my department of justice. i think they should be investigating these matters. they have not contacted people in alabama. i specifically requested it. is this politics? why not?

don't you go to the victims first? that is my experience. and get their story. well, professor turley, i thank you for your comments on what is happening with regard to executive overreach and congressional weakness. i think -- i know we all, i do not deny that i'm a republican conservative, but i believe that this is a partisan manner. this is a huge erosion of constitutional powers of the united states congress when the president of the united states in contradiction to law gives lawful status of people who are here unlawfully under the law. not only that, it creates a social security number for them a photo id, and an authorization to work, and a right to

participate in social security and medicare. this is a stunning event. we are in denial here. a lot of people about the seriousness of it. i wanted to ask you about your testimony in the house. you say that, "the center of gravity is shifting and that makes it unstable." you are talking about the separation of powers. "and within that system, you have the rise of a president. that could be no greater danger for individual liberty, and i really think that the framers would be horrified by that shift because everything they dedicated themselves to was creating an orbital balance. we have lost it. it is not persecutory of discretion to go into a lot and saying our category of people would no longer be subject to the law. that is a legislative decision."

you go on -- that is just a portion of your, i think, correct dissection of the fundamental issues at stake. i guess you stand by that? do you have any further, as you would like to make on that subject? >> well, i certainly do stand by it. the interesting thing about the madisonian system that we have is that the three branches are essentially locked in an orbit of three bodies. i'm by noon and the way that bodies would interact. our system reflects that. -- i am fascinated by the way the bodies would interact and newton. it creates a very dangerous circumstance. there are very legitimate questions that come out of the constitutional convention, but the one thing that returns over

and over again is the collective view of the framers. federalists and the inside that are us. nothing that we have to fear most in the system is the rise of the concentration of power in one individual. they knew a lot about it because they had just gotten rid of a person who had that type of concentrated power. king george. exactly. i have a congressional research service look at that, as a matter of fact. >> they concluded that king george the third -- king george roman 3rd was unable to enact or appeal any laws without the approval. this is what we have from the british, and that was what part of the revolution was about. it was a fundamental principle in the formation of our government. well i appreciate that.

briefly, if you do not mind, do you agree with that -- i think professor turley one said, at a tipping point? it is a matter of a great importance to the republic. >> i think it is certainly a matter of great importance. and i think we have seen a dramatic examples of executive overreach in the last several years. etc. unprecedented and things we have never seen before. >> do you agree with professor turley that one of the most significant overreaches is the president's executive actions with regard to amnesty? >> yes, i absolutely do. i think it is inconsistent with his obligation to make sure that laws are carefully executed, in particular the immigration and nationality act. >> it seems to me that there arguing that the loss being executed means yes, do the best to enforce the laws under the circumstances, which has some legal basis, but in truth, don't

they go well beyond that and create: new laws that are not even on the books and they are not authorized to do that, are they? >> you are quite right. this action was a lot more like a legislative action than like executive discretion. >> we have heard a lot of broad and general statements to the effect of separation of powers is important. of course it is. that the president is not above the law, and of course he is not. i have yet to hear any specific rebuttals to the point of that i was making earlier about the specific sources of authority that the congress has provided. we do have this legislation, what specifically says it is the responsibility of the homeland security to establish "national immigration enforcement policies and priorities, and not only that, but congress has specifically directed administration to prioritize three things -- border security,

national security, and the removal of criminal offenders. those are precisely the orders that were reflected in executive actions. >> i appreciate that, but i do not agree. congress laid out 500 pages of detailed law, involving immigration. many of them are mandatory. and they are not being followed. yesterday, professor rosenkranz, i asked ms. lynch who has more right to a job in this country? lawful immigrant who is here, a citizen, or someone who was entered the country unlawfully? her answer, i believe the right and obligation to work is one that is shared by everyone in the country, regardless of how they can hear. and certainly if someone is here regardless of status, i would prefer that they would be participating in the workplace.

do you think that contradicts immigration law of the united states? >> i do think that this work authorization aspect of the president's action is perhaps the most troubling aspect of it. the traditional view of discretion is an action. the president deciding not to do something to someone. but this affirmative action of giving folks permit -- that is something that is unheard of to traditional passive tutorial discretion. >> i know what that is. everybody that has to deal in the real world has to use that on a case-by-case basis. i further ask her, i want to have a clear answer to this question. ms. lynch, do you believe executive action announced by the president on november 20 is illegal and constitutional -- yes or no?

and miss lynch said, as i have read, i believe it is. >> so, we are being asked to consider her nomination. when we decided to vote for in the united states senate to confirm someone to the nice if congress, we think it would be improper for the voting body or united states senate to consider whether or not that person will be an advocate for and supporter of laws we think are unconstitutional and defend the policies congress has established question mark should be considered that when we decided to vote for? >> i think that is absolutely the thing you should be considering. >> i do, to i believe congress has a duty to defend this legitimate constitutional power. it has several powers of its own. one of them is the power

confirmation. i do not see any need for this congress to confirm someone to be at the chief law enforcement officer of this nation who is at that table, insisting that she intends to execute something that is contrary to law and what congress desires, and what the american people desire. so what you're unlawfully -- and someone who says who is unlawfully is as much of how to a job as some unlawfully, that is behind my comp -- that is beyond my comprehension. are we through the looking glass? everyone wants to talk about politics -- the president is doing this, all these complaints, but the real question is fundamental. what are we going to do to defend our constitutional heritage and what would this congress be able to say to subsequent congresses if we act in these kind of activities? i think it has permanent

ramifications for the relationships of the branches of government. mr. chairman, you have a mediocre ride there. i'm impressed. i have got to say, no one can handle it better. i am proud of you. i'm over my time, thank you very much. >> thank you much. thank you for all of you joining us today. i have enjoyed your testimonies of morning before we had to go and vote. thank you for being here and sharing with us your opinions which are helpful and informative. i want to begin my remarks just by commenting on some concerns that i have heard and express for my college on the other side of the aisle. some have suggested that what we really ought to be doing here should be almost exclusively on

miss lynch is impeccable service record service. she has served her country well, her clients well. that her resume is not just amazing, but it is extraordinary. it absolutely is. we have to be focused on those kinds of qualifications and that we ought not be focused on the department of justice absolutely the way wrong with it. i have a somewhat different view of that. and i think both are relevant. for example, if they were running a company, business and were looking for a new ceo looking perhaps more appropriately for a general counsel, we would probably want to know what some of the view of the organization as it existed. we would probably want to know whether that person acknowledged problems within the company.

whether there were legal problems or other types of problems of the company faced. so i think we're kidding ourselves if we suggest that we shouldn't ask nominee -- someone who is been nominated to be the attorney general of the united states about problems existing within the u.s. department of justice. i think that is absolutely essential. previous hearings of committee have for that out. this committee reviewed michael mukasey after he was nominated to be the attorney general and the last evisceration. i think those hearings for that out. -- bore that out. yesterday, we heard from his lunch. i am impressed with her analytical abilities and her resume and her strong record of public service. i was however, very disappointed yesterday in the fact that in

response to many hypothetical questions are asked for, we did not get a straightforward response. particularly when it comes to excessive executive power. particularly when it came to prosecutorial discretion. for those of you who may be watching this without a law degree, hypothetical questions are the bread and butter of the american legal education system. for a very significant degree, they are the bread and butter of the practice of law. one thing that all of us were taught in law school, even when you do not want to answer hypothetical question and even when it does not have an easy answer, you need to try and answer the question. if you don't, the judge will be very unhappy. i was disappointed yesterday that when i asked some questions of miss lynch, she refused to give me a direct answer. in an attempt to try to elicit

an answer from her, i made the hypothetical increasingly simpler and clear during asking questions like the following -- imagine hypothetical state in which there was a 55 mile-per-hour speed limit. imagine that the public has a pretty wide agreement that the law -- that the speed limit should go up. in the legislature there is widespread support but they cannot agree on the exact speed limit to which it ought to be increased. so the governor seen an opportunity says, well, i'm going to come out with any policy. my policy will say if you want to exceed the 55 mile-per-hour speed, are you have to do is write to the governor's office and i will send you back a permit that says for the next three years while i am the governor, i will give you a ticket if you drive faster than 55 miles an hour, as long as you do not go faster than 75. i asked ms. lynch, without the appropriate? would that be consistent with the roadblock?

would that be inappropriate exercise of prosecutorial discretion? i did not get a one-word answer out of that. i got up i would answer. i did not get an answer that i thought was satisfactory. what i didn't get was a response that i said i would really need to know more about that. the more assumptions or back i added to the hypothetical, it did not seem to make a difference. let me start by asking two of our professors who we have got here, professor trillium professor rosenkranz, -- professor turley and professor rosenkranz, is that in your opinion a difficult hypothetical question, such that if a student in either of your classes refuse to answer the hypothetical or said it was too hard, would that be an answer you would accept in your class? >> no, i would not accept it. it is a straightforward question. the question of what the rule would be for the defense of federal statute yesterday was also a question that someone should be able to answer. i also commend you, senator, on your view of confirmation

hearings. too often people talk about these hearings as john interviews. -- as job interviews. these hearings have a very significant role for separation of powers, as agencies become more independent. this is the moments that congress tends to get answers to questions, is when you're looking at someone who will head the agency. as i said in my academic writings, it is not often enough that senators use these hearings to try to rebalance or at least get answers from agencies, particularly one like the department of justice, which has been so difficult to get material answers from. >> i appreciate your thoughtful response to that, and i went to get back to that in a moment. i just been informed of and error. no sooner had i taken the contemporary gavel in this hearing can i discovered senator blumenthal was supposed to be next at-bat. we are going to push pause on my questioning, and as soon as senator blumenthal is ready, we will turn the floor over to him and then resume with me in a moment. senator blumenthal?

>> i appreciate that, mr. chairman. >> my apologies for the air. quite like my congressional session said i approve your , meteoric ride. thank you for your courtesy and deference. i would like to ask professor look on ski -- laganski to explain why the examples involving enforcement of the speed limit may not be an exact or valid comparison to what we have here. >> thank you, senator. i think it is a fair hypothetical to throw out, but i definitely feel there is no simple answer. mainly because there are two pieces of information we would certainly need trade every statutory structure is different.

the first thing i would want to know is what does the state statute say? how much discretion does it give the executive branch to set highway safety priorities? in the case of the executive actions, where we are comparing the two -- congress is very specific, and gave the secretary the explicit authority to establish national priorities and policies, and in addition, even indicated what those policies and priorities are. in addition to that, the other point i would make is it matters what the particular priorities are. they have to be rational in one way or another. i think most americans, if asked, would say the priorities look like common sense to me. the president is prioritizing national security, border security, and removal of criminal offenders over the destruction of american families, the destruction of long-term community ties, people who have otherwise lived useful -- live peaceful and productive

lives in the united states, and since he can't do everything these strike me as reasonable priorities,. >> may be the comparison would be more like the governor of utah deciding that on a flat straightaway in the middle of the state that going over the 65 mile an hour speed limits would not be enforced unless a person was doing something in addition dangerously, like weaving back and forth, but in more congested areas, that the 65 speed limit would be enforced rigorously. in other words if finding other , characteristics, not just saying we are not enforcing that law. >> that is an excellent point. that is very analogous to what the president has done with his recent executive actions. because as you know, both the prosecutorial discretion m.o. and the recent top memo find

gradations. i think that accommodates the point you were just making. >> just to clarify, there is been a suggestion that the president's exercise of discretion does not permit case-by-case decision-making, in other words, that it is a broad, across the board exception for all cases, but in fact, what the president is doing is really an exercise of delegation of discretion, prosecutorial discretion, for case-by-case decision-making. >> that's a fair characterization. i'm thrilled to have the opportunity to answer that question. because that has concerned me a great deal about the criticisms that have been offered trade the secretary's memo says not once not twice, but over and over again that officers on the ground are instructed to look at the facts of each individual case, to evaluate them on an individualized basis, and to

-- and specifically to exercise their discretion. not only that, but the form that the adjudicators are required to use when they deny a daca case lists the possible reasons for denial. specifically with the exercise of discretion. there was one other thing i was going to mention. if anybody doubts that these instructions are being obeyed, more than 32,000 denials have already occurred on the merits. this does not count things that were rejected. i hope this doesn't sound snarky. these are actual denials on the merits. i really do not mean it that way. i worked at uscis. the uscis adjudicators are not a core of open borders advocates who are looking for ways to -- to systematically disobey the secretary's explicit

instructions. they take their job seriously, and they do exercise the discretion the secretary has told them to. >> i appreciate that clarification. of course i would invite any of , the other panel members to disagree if they wish to do so but i would just like to clarify a point that was made earlier by my colleague and friend, senator sessions. loretta lynch i think yesterday clarified that she does not believe there is a federal right to work for immigrants who are not in a lawful status. i believe the record will show that she did clarify that point. with that, if any of the other panelists want to comment on the question i raised earlier, i would invite you to do so.

and thank you for your explanation, professor. quite well, senator i would just say, the proof will be in the pudding. people have looked at the structure of the proposed policy. it appears that the case-by-case discretion as built into this policy may well prove to be largely illusory. >> i think you have just really hit it on the head. you have just really hit it on the head. that the proof will be in the pudding as to what actually is done, as it is for every prosecutor. as u.s. attorney, as a u.s. attorney general, if i had decided i was not going to enforce any law, rightly, i would have been criticized, and the proof will be in the putting in the same way as i had to make prosecutorial decisions as every former prosecutor is a member of this panel. at least one is here now. it will be in what the record shows.

we don't disagree if the result is to make an across-the-board wholesale, unexceptional rule, that would be wrong. if the president decides as a matter of his discussion -- discretion that these laws will not be enforced, i agree with you. when you say illusory, it will be the proof will be in the putting. -- pudding. >> do you think we can try to evaluate the proposed policy just on the terms of the proposal. there's reason for skepticism even as the policy has been proposed. you're right, the facts will develop on the ground. >> thank you. >> thank you very much, senator blumenthal. let's pick up where we left off. i want to respond to a couple of the points that i think are relevant.

with respect to the trade away in utah, this is somewhat familiar to us. we have salt flats in utah where we take cars out that can go hundreds of miles an hour. i assume he means a straightaway on an actual state road, but there is a difference between deciding not to post a police officer there in issuing a permit saying you may exceed the speed limit and if you are caught going up to 75 miles an hour, you will not get a ticket. there is a distinction there. there is, moreover, the fact that another hypothetical question i brought up that i was disappointed that she did not agree to address head-on was one involving a hypothetical future president, somebody who decides, i don't like our top marginal tax rates and i think it's morally wrong to enforce a marginal tax rate above 25% at

the top marginal rate. so i'm going to issue a series , of letters to people saying you can pay at the 25% rate and no hire, and nothing will happen to you. i agree, professor, that something more like the answer you provided would have been helpful. i did not have even that and had she provided the answer, we could have gotten into a deeper discussion about whether or not congress did in fact a stone analysis of the text create -- in fact, based on an analysis of the text create something that could create an exception to allow many, many millions out of the 11 million or 12 million people estimated to be inside the united states illegally. the congress really create something that could create an exception to potentially swallow the rule? or something very close to it?

let's turn to professor rosencrantz. what would you do if someone in your class refused to answer it? >> i think your tax hypothetical is right and indistinguishable from the current situation. i do not understand a principled way on which to distinguish those two cases. i would think a republican president would be within his rights to cite this president -- precedent. and to do as you suggest, if it were constitutional. i think it is not. >> there were more demanding at g.w. and georgetown in terms of how -- than georgetown in terms of how they answered questions. >> help you put that -- make that clear on applications for law school. [laughter] another point that deserves to be mentioned here is within this framework, there has been discussion about the fact that there remain some discretion on the part of our immigration enforcement authorities in this

country, even after the november memorandum, after daca and so forth. it is different from the way prosecutorial discussion -- discretion usually works. normally you say, we have finite resources. we will sometimes not do it because perhaps we think the circumstances of the case don't trigger any kind of moral outrage. so we will not prosecute everybody. there's also the practical reality that says, you will not be able to get everybody. that operates as an exception to the normal rule that says you break the law, you can expect the prosecution is at least some possibility. whereas here, even to the extent you can say there might be some discretion to decide not to enforce the law, they still make clear these executive decisions, still make relatively clear that they intend, as long as these

criteria are satisfied, to not enforce the law, that they're not going to enforce the law and they do issue documents saying they may work. i refuse to accept this as an act of ordinary, garden-variety prosecutorial discretion, and i refuse to accept as an article of faith the fact that congress would ever or did in this circumstance is so much -- give so much discretion to the president of the united states, attorney general secretary of homeland security so as to create a loophole that could swallow a very substantial chunk of the entire rule. this is not consistent with the way the constitution of the united states has historically functioned. getting back to how i opened, i do think these are relevant questions. yes, they are different in kind

than the kinds of questions a deal with someone's resume or someone's professional golf -- professional qualifications, but we are looking at a very specific kind of job, someone taking the role of attorney general of the united states. we have heard testimony from several of you today that this is a department that has some real, serious problems right now. problems that really make the hair stand up on the back of my neck sometimes. that was reiterated today with some of the testimony i heard. i walked into that hearing yesterday wanting, hoping, frankly expecting to like ms. lynch, and i do like her. an issue that with me in my office before the hearing, and i liked her. i expected i might be able to go either way on this, i might end up supporting her. i did not feel comfortable at the end of the day yesterday with the idea that i could vote for her because of the fact that i did not get answers to

questions that i find very troubling. i found it somewhat cavalier to -- cavalier answer or response suggest that she needed more facts, when some of these were very basic questions. i see my time has expired. do we have any democrats -- just making sure we don't have anybody in the interim. i'm told the center -- senator cruz is next at bat. >> thank you mr. chairman. i would like to think in each of the members of this panel, a very distinguished panel to come together and address some very important issues facing this country. i want to at the outset extend my apology that earlier in the hearing, the senator from rhode island characterized the testimony that we have heard

from witnesses on this panel as quote, conspiracy theories, and soundbites for fox news. i do not think that is an accurate characterization of the learned testimony that this panel of witnesses has given to this panel, and i apologize that you are subjected to having your character impudent -- impuned in that manner by a united states senator. i think this panel has focused on some very important issues that need to be highlighted. i would note the constituent of -- that ms. engelbrecht is a constituent of mine and a friend, i have long thought highly of your commitment to public engagement, your volunteer efforts to make a difference in our political discourse, and i wanted to ask you as a citizen who engaged in the political process, how did it make you feel to be covered

-- targeted by the government for persecution? >> it takes your breath away when you don't know quite where true north is, and it begs the bigger question, what mrs. -- what is this country really? and where am i raising my children, where is their safe harbor? that's why think in this panel and the questions we are discussing today, are critical. we have to understand what we have just come through. i hope we want to head in a decidedly different direction. >> you know, it was just a couple of days ago that president nixon attended to use the irs to target his political enemies. he did not succeed, but he was roundly decried in a bipartisan manner. in this instance, the attempt sadly bore fruit.

it has been well over a year since the news broke. let me ask you ms. engelbrecht do you feel in the over a year that has transpired, do you feel that the truth has been uncovered and justice has been served? >> oh, no. absolutely not. just the fact alone that i have still not been interviewed or met with, nor have any of the other group signoff that were >> how you can continue on under this improves -- under this ruse that that is ever going to arrive at any kind of conclusion is mystifying to me. we seem to continue to find more and more evidence, and he continues to get further and further. until they hope evil just -- until they hope we just forget. that's why i keep showing up.

i hope they don't forget. >> yesterday i asked ms. lynch if she thought it was appropriate to have the department of justice investigation into the irs targeting an abuse of power led by a major obama donor and democratic donor who has given over $6,000 to president obama democratic party. she said she found nothing objectionable about that, and she flat out refused to appoint a special prosecutor, much as eric holder has refused to appoint a special process your. -- prosecutor. let me ask you as a citizen do , you have faith in the impartial administration of justice with an investigation being led by a major democratic donor? >> i take so much exception to that appointment and to the way that division has conducted itself that i don't even know where to begin. yes i think there's an awful lot , wrong with it and it is sad they are not held to account to explain their actions.

>> senator, i might just mention the constitutional dimension of this particular scandal. discriminatory enforcement would have horrified the framers, and this kind of discrimination would have fortified the more than any other, discrimination on the basis of politics. the single most erosive thing -- most corrosive thing that can happen is for incumbents to use the levers of power to stifle their adversaries, and to entrench themselves, it casts doubt on everything that follows. it would have been their deepest deepest concern constitutionally. >> thank you, professor rosencrantz. i agree with that observation. i would note that discriminatory prosecution is often intended to have the fact and has the effect of stifling further speech. ms. engelbrecht, have you heard concerns of citizen activists

that they too might be targeted? >> absolutely. the irs is arguably the most feared agency and possibly the world, and there are an awful lot of folks who just packed up their tents and stop their community organizations because they did not want to be a party to what they saw unfolding. >> it was disappointing yesterday that ms. lynch also expressed no concern about the first amendment rights of citizens, the effect of the irs targeting citizen speech, and the effect of bias and conflict of interest and the appearance of bias and conflict of interest on the impartial administration of justice. i want to shift to a different set of issues, the pattern of which is lawlessness of this

administration. i want to focus on a line of inquiry we had yesterday with ms. lynch regarding prosecutorial discretion. i want to address this question to professor turley. i commend you for having the courage to speak out about your concerns about the constitutional dimensions of the conduct of the executive. i recognize that that has not been easy for you to speak out and i suspect you have heard more than a little grief in the faculty lounge for having done so. so let me say thank you for having the courage of your convictions. i wish we saw a lot more members of this body with similar courage of convictions. yesterday i asked ms. lynch if she agreed with the reasoning of the legal counsel -- council that under the theory of prosecutorial discretion, the

administration could decline to enforce immigration laws against 4 million to 5 millino people -- million people and could print documents that purport to authorize them to violate federal law. ms. lynch said that she found that olc reasoning persuasive. do you agree with that assessment? >> i have serious problems with the reasoning for a couple of reasons of my own. first, much of what we do when we look at separation of powers is to look for limiting principles. we're in a system of government shared unlimited in its nature. part of the problem i have with the administration's position on things like immigration is it lacks that type of limiting principle. to respond to my colleague, i'm not sure if it does mean what my

friend said, why they bothered even saying it. because that would make it a standard prosecutorial discretion of people who are boots on the ground. i don't know why you would even issue this, if it meant what my friend has said. second, if you look at that letter from immigration faculty as i did, and once again it raised issue, what is the limiting principle? the letters seem to suggest that as long as you are deporting one person, everything before that point is a matter of discretion. i can't believe that could possibly be true. if that were true, any law could be shut down except for one case, in which you could argue you are executing discretion. -- exercising discretion. i think if i want to prosecutor and said, i would like you to give my guy a walk because this whole category he's a member of really should not be subject to this type of enforcement, i think most would look at me like i had two heads.

they certainly would not give me much help on that. there is a legitimate question of prosecutorial discretion, but this is not one i recognize. my concern as a constitutional scholar is if this is prosecutorial discretion, i don't know what would not be prosecutorial discretion, and this notion that has developed from prosecutors would swallow the obligations of the president. any discussion that my friend talked about in terms of setting policies and priorities has to be defined within the context given to the administration by congress. >> professor turley, i agree but i want to ask one final question. i agree with you that the question is where do you draw the line, if the president discretion simply refuse to enforce a major portion of

immigration laws is a concerns millions of individuals, what other laws can the president unilaterally refuse to enforce? yesterday i asked ms. lynch about a couple of examples. one, but a subsequent president is struck the secretary of the treasury, did not collect taxes in excess of 25%, and two, did a subsequent president instructed department of labor, you should not enforce any of the federal labor laws on the books against the state of texas? the state of texas is hereby him -- immune from every federal labor law ever passed. to both of those hypotheticals ms. lynch refused to answer, refused to say what i think is the obvious constitutional answer, which is of course a president cannot do that. the question i would to ask mr. turley and i want to give an opportunity for anyone on this panel who wants to engage -- does anyone on this panel disagree that it would be unconstitutional for the president to refuse to enforce the tax laws or the labor laws or the environmental laws, and

if you think that would be unconstitutional, does that not necessarily lead one to the conclusion that the president's executive amnesty is likewise unconstitutional? professor turley, we will start with you. >> i believe those examples would be unconstitutional if the president claimed that authority. >> i agree with both senator cruz and senator lee, but there's a difference between saying we simply will refrain from prosecuting and saying we will give you different action and a work permit. on the specific question you asked just now, i do think a decision to not enforce the entire immigration laws are not enforce the entire tax laws would clearly exceed the president's legal authority, but that's not close to what we have here. as i mentioned a moment ago even , after these new policies are fully operational, there will still remain in this country 6

million to 7 million undocumented immigrants to which these laws will not apply, and the president will only have so many resources to go after fewer than 400,000 of them. which means nothing in these policies would have to president to enforce the law to occur in extent -- >> let me ask clarification on your example. the reason you said the executive amnesty is constitutional is because there exists some substantial subset of people against whom the laws are enforced. well let's take the labor law , example. if texas were exempt, there would be 49 states, whole bunch of people you could enforce labor laws against. would that satisfy the test you put forth? >> in the interest of time, we will have to turn this over to frank. >> i want to make sure i understood the hypothetical correctly. the president enforcing the law in one state but not in the other state, and vice versa. one of the limitations is that the particular priorities have

to be rational, and discrimination against the president for one state would fail that test. along similar lines my friend mr. turley says that the law professor's letter was making the claim that as long as even one person is deported, it is ok. there was no such claim in the letter. there was certainly no implication in a letter that all you would have to do is deport one. the president is fully spending all the enforcement resources congress has provided. the president is not a magician. he can't spend resources he doesn't have, and that is why that example is very different from the ones that have been hypothesized. >> thank you very much. mr. franken? >> thank you. i want to thank all the witnesses for being here today and for your testimony and your patients. -- patience.

i want to talk to some of you who know ms. lynch. mr. barlow, thank you for your service to the justice department, and for coming here today to speak on behalf of ms. lynch. the attorney general must be both an excellent leader and open-minded collaborator. the attorney general must develop and coordinate policies among the various components of the justice department with other agencies. based on your experience serving with ms. lynch, the attorney general's advisory committee how would you characterize her leadership style? >> she's a leader among leaders senator. i would describe her style as being inclusive, thoughtful, careful, deliberative, and she is someone who is seeking consensus wherever it may be found. i have also seen her recognize that occasionally consensus cannot be reached, and when he could not be reached, making sure there was space for dissent so all parts of the issue could

be fully examined. >> thank you. thank you for your service to the fbi and for being here today. you served with the fbi's new york office for 25 years, and have worked with many u.s. attorneys. in your testimony you noted a wide range of cases that you worked on with ms. lynch, and the window that this gave you into her legal acumen, her leadership style, her character -- how would you rate ms. lynch's performance as u.s. attorney, and can you elaborate on the skills that you have observed that would speak to her ability to serve in the role of attorney general? >> thank you, senator.

and just by way of clarification i was in new york for two years , before i returned. i had the opportunity to work with loretta in her capacity as the united states attorney. we undertook any range of significant and complex investigations ranging from national security to the complex financial frauds all the way through the criminal violations that include a violent gangs and other types of violent offenders. i had a very close opportunity to observe loretta during the course of these investigations but also beyond the conduct of making decisions about cases and timelines for takedowns and the operational considerations although those were extraordinarily important, clearly, because the symbiotic relationship is such that the new york office, and the fbi cannot do its job without that kind of symbiotic relationships with the u.s. attorneys.

my observation of loretta in that role was that she led from the front, she instilled qualities within her office, gave them the resources, the opportunities to take on and grow themselves as leaders within the office, but she was not afraid to become intimately involved because she wanted to know what was going on with the cases and not to micromanage. that is one quality of a true leader, to empower her people to do a great job by backing off a little bit but still staying involved with the cases and knowing what is going on within her office. i think one of the other characteristics i noticed that i don't think i see a lot in executives is her ability to understand vertical organization, but at the same time develop horizontal

relationships, particularly within the community. so in a very structured , environment, she was very comfortable, whether she was talking with an executive or all the way down to a brick agent or line police officer, the ability to talk to individuals, make them feel at ease, make them feel they are contributing and she is listening to what she's talking about and what they are talking about. likewise, when we talk about a horizontal view across the community, she was very engaged with not just the law enforcement community from local, state, tribal, federal, but also the communities we were serving. that leadership, leading her office to understand the concerns of these communities was integral to supporting the successes of the offices. so i think she brings a lot of -- >> let me ask you about that.

that's about community engagement. let me ask you about that style. that's very important with the u.s. attorney. what was her style of engagement in terms of the community? >> very engaged, and someone who was not afraid to engage many different community groups and have very frank discussions about concerns and issues, giving everybody an opportunity to provide input, and that's is incredibly important because understanding the community you serve is part and parcel of representing the system of justice and making sure that if there are disparities in those communities, if there are issues in those communities, that you understand what they are so you can help drive change to make the system of justice better in

addressing those concerns. with respect to the law-enforcement community, she was actively involved in many of the task forces, very supportive of them as a concept that brought departments and agencies large and small together to tackle entrenched crime issues terrorism, and would personally attend executive briefings, and her philosophy was that we were all in this together, that it was incumbent on law enforcement across the board to work shoulder to shoulder to really protect this country and tackle issues that no one agency could do by themselves. i personally thought her leadership skills were outstanding. i viewed her as somebody i could go to for sound judgment as a sounding board, and receive advice in return.

>> i'm getting the picture of a very impressive leader with those kinds of impressive skills, but you came and testified today on where that comes from in a moral sense. can you speak to where that comes from in terms -- >> thank you, senator, for the opportunity. let me try to be as succinct about this as i can. we worked on a project when i was dean of the howard school of divinity. the word impressive doesn't get it. she is a rare individual. i study people from the standpoint of a religious biographical perspective so that when you begin to look at what i might call the genius of

character, it has come down through the generations. i mentioned in my written statement that her grandfather was a baptist minister, but three grandfathers before then. they served their congregations and their communities with daring, with distinction, and above all, wisdom, and that wisdom was born of a depth of insight into human nature as to how leaders should best behave and be effective in garnering a following, and leading them in a way that works for the good of all. loretta -- i have seen this throughout the years -- is a kind of person who can relate

transparently enough to inspire trust and confidence so that you don't have to work a long time wondering if what you are seeing is truly honest. this place on its way out in the sense that she is a due diligence kind of person. i understand the hypothetical kinds of issues and questions, but my own background as a scholar would say at best a hypothetical only approximates a real-life situation. in a real life situation character really comes forth when you do the kind of due diligence that puts you in a position to make the quality of judgments that makes for a positive difference. this is in her bloodline. this is in her spiritual dna. i don't know if her father is still in the room, but i can tell you that it has played out in the way that he has provided leadership in north carolina whether he had to stand alone or stand with 1000, it was the

truth, the right thing, and the right thing, and character, and character, and character all over again. i don't want to trivialize this process by using a sports metaphor, but i am an old, broken down football player who played at duke when we were still winning games. >> that was quite a while -- >> quite a while ago. [laughter] but we tend to think in terms of a franchise kind of player. she is an exceptional human being, and i cannot avoid the sense of passion i feel right now for the good that would come to our nation in having a person who would be good, absolutely superb, and even healing our nation through the responsible discharge of her duties as the u.s. attorney general. >> so you would be for her? [laughter] >> i would be for her. >> that was very powerful testimony. thank you.

thank you, mr. chairman. >> thank you, senator franken, senator sessions. [inaudible] >> thank you for recalling for us that a lot of people we have disagreements with can be wonderful people. i do sense that about her. she was raised right. i can tell that. sometimes you just get caught up in things. issues become a big, and an individual becomes the focus of a controversy. sheriff, -- sheriff clark, thank you for your leadership. i have a piece put out saying

there were 36,000 convicted criminal aliens in detention the they were released, and a group of people were convicted of crimes such as homicide, sexual assault, kidnapping, and aggravated assault. i noticed one individual was just arrested for murdering a 21-year-old convenience store clerk in mesa, arizona on january 22 of this year after having been in custody on a drug and gang related felony burglary conviction, but was released on bond after a few days.

if you release 36,000 people who have been convicted of crimes, based on your experience in law enforcement, can't we expect that group is likely to commit the kinds of crimes i just mentioned? isn't that predictable? >> thank you, senator. yes, if for no other reason because of the recidivist nature of crime, regardless of what demographic is involved with that. i would say releasing 3600 into communities that don't have the support structures is at best dangerous policy. they don't have the support structures in place. we start talking about criminal aliens, the first thing they will do is flee. my experience in working with

ice -- we do cooperate with federal agencies in the pursuit of justice, like we do any other federal agency -- they come with many aliases, difficult, and it takes a long time to identify them, but they realize the individual released on bail, they realize it is in their best interest to flee. then they turn up in another community. we have had those same horror type stories, individuals who have been brought to ice's attention, and for what ever reason, they decided not to put a detainer on the more had a detainer and released it. it goes on to engage in even more heinous acts. the easy ones are the ones who are involved with murder, sexual assault.

those folks are probably not going to get out on bail. we don't have to worry too much about them. >> well, this report indicated a number of them, like 193 of the 36,000 that were released were homicide convictions. you are right to assume that serious crimes would be almost unbelievable if they were being released, but data shows that a lot of them are the most serious crimes that are being released. >> sometimes some of the reports or some of the rhetoric used in the discussion is on the lenient side. they call the low-level offenders, but some of the stuff that i see are not literally low-level offenders. >> you're responsible for protection of people in milwaukee and that area. the federal statute says someone convicted of a serious felony

shall be deported. it doesn't say ice has an opinion about this. it says they shall be deported. does it make your lives more difficult? does it place the people of milwaukee at greater risk of the officials are not following the law and deporting people who have been convicted of serious crimes? >> sure it does. in my limited knowledge of legal language shall is not discretionary. i find it problematic when that happens. >> you think it is common sense and just that if a person is in the country illegally and they commit a serious crime, they should be deported? >> yes. it's beyond common sense. we have a duty to protect people. >> and the law requires that.

>> senator, i think sheriff clark just made one of the strongest arguments in favor of the president's executive actions. the main point of the new prosecutorial priorities is to be able to focus resources on precisely the individuals whom he is describing, and hopefully it will have that effect. i don't know why in this case the state authorities released a person while the person was pending trial. they must've thought it safe to release them. i'm not sure why the onus is shifting to ice. this is what the administration is trying to accomplish. >> this isn't a matter of discretion. i know you served with the uscis. this part is mandatory, the point i am raising. nothing congress passes, apparently, has the ability to

be effectuated in reality. that is a problem. congress will pass things, and they don't happened. we mandated a fence 700 miles. it did not happen. we said there should be an exit-entry visa. it still hasn't been completed. are you aware that the group that you work with, the federation of government employees who represent ucsis, has opposed this bill vigorously and say it will not work, and is not helpful? >> this is the very same group whom some people are suggesting will refuse to obey the secretary's instruction to exercise discretion and will instead rubberstamp these cases.

>> let me ask you about discretion. professor eastman in his testimony before the house on discretion says there is nothing in the memo to suggest that immigration officials can do anything other than grant deferred action to those meeting the defined eligibility criteria. indeed, the overpowering tone of the memo is one of woe to align immigration officers who do not act as a memo tells them they should, a point that has been admitted by the department of homeland security officials in testimony before the house. in the house, chairman goodlatte of the house judiciary committee said, quote, dhs has admitted to the judiciary committee if an alien applies and meets the daca eligibility criteria, they will received deferred action. in reality, the immigration

officials do not have discretion to deny daca applications if the applicants meet these criteria. professor rosencrantz, you indicated it might be an illusory thing here. isn't that proof that it really is illusory discretion, in fact, it is mandatory? >> absolutely. >> the memo says the opposite. it says these are cases that quote, present no other factors that, in the exercise of discretion make the granting of deferred action appropriate. the ultimate judgment as to whether an immigrant is granted deferred action will be determined on a case-by-case basis. the memo refers explicitly to discretion. >> we said we will do and exit-entry visa. the truth is, the officials are going to approve the people if it meets the memorandum standards. >> the important thing to notice

is it flips a presumption. the presumption is that the law will not be enforced, and somebody might have discretion to enforce the law in a particular case, but this is turning prosecutorial discretion on its head. presumption is that the law will be enforced, and discretion will be used to exempt some to create an exemption to the rule. here the enforcement will clearly be exception to the rule if it happens at all. >> this memo lays out an exception. if you meet the following criteria, uscis has the discretion on a case-by-case basis -- >> if the people don't meet the standards, and someone does get turned down -- the projection is less than half the people, 5 million out of 11 million -- what if somebody is turned down? are they going to be deported? >> generally, i would think,

yes. if they bring their presence to the attention of the enforcement authorities, and if it fits within the prosecutorial discretion priorities, i can't think of any reason -- >> they are not going to be deported. the only ones being deported today are people who commit serious crimes and we found that even they are not being deported. we reached a lawless stage in immigration. the american people are not happy about it. they have a right to demand that their laws be enforced, and the president's actions are some of the most dramatic steps to violate plain law that i've ever seen in my experience. thank you, mr. chairman. my time is over. >> as we were preparing for yesterday's hearing, i found a

quote i would like to talk about in a minute, a quote from a speech given by ms. lynch about a year ago in which she made the following statement that caught my attention, because it raises some alarm bells. it says, 50 years after the march on washington, 50 years after the civil rights movement, we stand in this country at a time when we see people trying to take back so much of what dr. king fought for. we stand in this country, and people try and take over the statehouse and reverse the goals that have been made in voting in this country, but i'm proud to tell you that the department of justice has looked at these laws and looked at what is happening in the deep south and in my home state of north carolina, has brought lawsuits against those voting rights changes. close quote. when i read this, i became concerned. i was wondering what was she was talking about, what laws were out there, what legacy of the

civil rights era that was trying to be overturned. ms. engelbrecht, can you guess as to what she might have been talking about, referring specifically to her home state of north carolina? >> i can't. i reviewed the same comments that you referred to, which i think was taken from a speech in february in los angeles. what continues to boggle the mind is that the vast majority of americans want, understand, and appreciate the need to try to safeguard our elections. the thought that asking a voter to prove they are who they say they are is somehow discriminatory -- it seems to me to be more about pushing a political agenda than protecting the people. >> i wondered about this, so i asked one of my colleagues on this committee with me, senator thom tillis, who at the time she

gave this speech, was the speaker of the house in north carolina. i asked him what she was referring to. these are pretty bold statements, and if someone is going to accuse a state legislative body of moving to undo the legacy of dr. martin luther king and trying to deliberately diminish voting rights in this country, i feel like we need to know what that is. he suggested to me that it might have been directed towards a voter id law passed by the state of north carolina at the time to senator tillis was the speaker of the north carolina house of representatives. i asked him about this law and he told me that when it came forward, there was concern about voter fraud, the risk of voter fraud in north carolina. he said, i want to find the most fair statute that there is on the books anywhere in this country, and i want to make it that much fairer. i want to put the belt and suspenders and another belt and another set of suspenders on it, make sure no one's voting rights

are diminished at all. they started with the model of an indiana statute, a model that was itself quite cautious. it continues to allow no excused absentee voting without an id. it pays for an id issued by the department of motor vehicles without any charge to the voter. they started with that as the model, then they added additional protections that neither indiana nor any other state that is adapted and evolved like this has had. a two-year ramp-up period, a special north carolina program designed to allow homebound individuals to vote, but also allows for documents for a register of deeds or the department of health and human services that can be used to verify id. it establishes a $1 million

trust fund to reach out to those people who might not have id's. the list goes on and on. this is the most cautious, carefully protective statutory scheme i can imagine in this area. if this was the target of this description, do you think it's fair to describe this legislation this way, as an attempt to undo the gains of the civil rights movement and the gains of martin luther king and those who fought with him valiantly to protect voter rights in america? >> absolutely not. i don't think it is appropriate or fair. if that is truly the believe that is held, we need to understand what's behind that. it belies anything you have just read in making sense. >> with your involvement in efforts to prevent voter fraud what would you say to those who have made the argument that there is no such thing as voter

fraud and therefore we need not be concerned about it, and the only reason somebody could push for it would be because they subjectively want to undermine voting rights? what would your response to that be? >> i think our history is replete with examples of voter fraud. it is something we should take very seriously. you don't need a whole lot of fraud, you just need a little bit in the right places. the less that you create a system that secures everyone's vote, the more open it is to these kinds of manipulations that further divide our country in ways that serve no purpose. >> thank you. >> sheriff clark, i wanted to talk you about the relationship between the department of justice and law enforcement right now. how would you describe the relationship between law enforcement and the department of justice?

>> thank you, senator. i am not going to engage in hyperbole or exaggerate, but we cannot have a frayed relationship. the mission statement i cited early on, talked about partnerships and, from the milwaukee experience, we need the help of the u.s. attorneys office in the eastern district of wisconsin to deal with instances of the violent crime, the repeat offender. not talking about first time offenders. not talking about people who may deserve some sort of remedy for transgressions they made. i talked about the 10 year old both of those individuals convicted felons.

the prohibition of not being able to be armed as a convicted felon means nothing to them. the state has not shown a willingness at the state level, it is a legitimate question, what are they doing at the state level with some of these cases? i will tell you one thing, from a deterrent standpoint, criminals fear the federal system. they just do. if we what have cases of -- a very creative, legally, case in the walkie where the assistant u.s. attorney, who we have a great relationship with, use the hobbs act to charge career hold up man who had gone on a robbery spree, one of them received a 15 year sentence.

plus, they used a firearm in a commission of the crimes. i heard about the prosecutor ial discretion. if we take this elephant and try to eat at one spoonful at a time, establishing urban centers . if we take the worst offenders subject them to federal sanctions, that is going to ensure -- we have a better chance at a conviction, a better chance of a lengthy sentence. for the person who has not cared about any state sanctions. that is the help we need from the federal prosecutor's office in milwaukee.

i won't wrap the u.s. attorneys with straw purchases. law enforcement is not bringing in the cases. the ones they are, they are dealing with very well. the armed violent offenders is one i would like to go see the federal route. >> today we have heard from a number of witnesses, who have testified to miss ledges qualifications, which are impressive. it is great to see my friend david barlow, i do not know a greater human being. each of you have put thought into her testimony. i appreciate your written testimonies and what you have spoken about today. the record what is hearing will remain open for one week. the hearing will be adjourned. >> thank you.

>> keep track of the republican-led congress and follow its new members through its first session. new congress, best access on c-span, c-span two, c-span radio and c-span.org. >> shiite rebels have seized a number of military facilities in recent days. coming up, i not take on the situation from the woodrow wilson center. live coverage at 12:15 p.m. eastern on c-span three.

washington journal is next, live taking your phone calls. later, c-span coverage of democrats meeting in philadelphia for a policy treats. vice president biden will speak. democratic leaders will hold a news conference laying out their strategy for the next 2 years. looking ahead to between 16 elections at noon eastern. -- at the 2016 elections. as the transpacific hardship nears agreement, we will hear with linda density, the national association of manufacturers and robert sod of the economic policy institute. then rob morrison with the national association of alcohol and drug abuse directors. a look at the well-being of young adults today, compared to

the 1980's with jonathan vespa at the u.s. census bureau. we will be taking your comments through facebook and twitter. ♪ host: in the year 2000, measles were declared eradicated in the u.s. yesterday, the cdc is reporting 84 new cases of measles in the u.s. much of it centered on the disneyland outbreak. here is the washington post this morning. january measles cases soaring in the u.s.. the measles outbreak has spread to 84 people, more cases that health officials typically see and an entire year. most of the case