a problem. you should not charge, i think, it is problematic and difficult to justify a prosecutor charging 5 kilos of heroin went when the actual amount was ten to get a lower sentence. there may be circumstances where somehow proof and other issues could justify that, but i would say as a principal, you have to be careful about it. finally, senator guidelines are in the breadth of the congress, they are mandated by law. i was concerned about what we were beginning to see a rising with the rise in crime at the same time a decline in sentences peer they are down 19% already based on changes, so that is a matter of interest. i felt we should slow down a bit before we go further.

making sure we are not making a mistake. >> it is my hope that if you are confirmed and we do make progress on bipartisan criminal justice reform that as attorney general, you will carry out whatever legislative decisions might be made by this body. last, let me just say in my six years here, in addition to not working with us on a number of bipartisan proposals on criminal justice reform, you have been one of the few senators to the president were to attempt to overriled that, what actions would you take? >> on your previous question, i would note that federal prison population has already dropped 10 or more per krenltd and will

drop another 10,000 this year. what is happening is reducing the federal population. this law only dealt with the federal prison population. and that represents the most serious on finders. our federal dea and u.s. attorneys are prbting more serious cases. prbting more serious cases. with regard to the torture issues, i watched them for some time. and have been concerned about what we should do about it. this bill that passed last time, was a major step. i thought it was really not the right step. senator graham, i know, has been an opponent of torture, supported a lot of different things o posed it. basically took what i was teaching the young soldiers at the army reserve unit as a lecturer, teacher the army field manual.

it made that the law for the entire government including the intelligent agencies and other departments. i thought that was an unwise step to take something that directs even the lowest private to do, to make that the rule for higher-ups. it is the law. and it needs to be enforced. >> as we both know there was a by part sab effort to review -- bipartisan over to review enhanced interrogation techniques and it was not officer. >> yes, and senator graham was a jag officer, as i was for a bit. >> thank you. senator sessions congratulation ocean your nomination. >> thank you. >> you are a friend, man of integrity, we have worked closely together on the armed svlss commit i and i have every confidence are you going to make a superb attorney general. this has been an interesting day at this hearing.

listening to democratic senator after democratic senator give praise about the law. i am heartened for that. for eight years it's been absence. for eight years we have seen a department of justice con sis tempbtly disregarding the rule -- consistently disregarding the rule of law. when eric holder's department of justice allowed illegally sold guns to mexican gun traffickers as part of "fast and furious" guns that were used to kill brian terry, border patrol agent, the members of this committee were silent. when eric holder was found in contempt of congress for refusing to cooperate with congress' investigation into "fast and furious" once again the democratic members of this committee were silent. when the irs illegally targeted united states citizens for exercising the first amendment views for exercising their roles

in the political process, them cattic members of this committee were silent. when the department of justice refused to fairly investigate the irs targeting citizens and indeed assign the investigation to a liberal partisan democrat who had given over $6,000 to president obama and democrats, democrats on this committee were silent. when numerous members of this committee called on the attorney jinl to appoint a special prosecutor to ensure that jugs advertise was done in the irs, democrats on this committee were silent. when the justice department began using operation choke point to target law-abiding citizens they disagreed with politically prenl crowd noise shouting ] [ crowd noise shouting ]

[ audience member shouting ] [ inaudible crowd shouting ] >> free speech is a wonderful thing. [ chuckling ] when the department of justice used operation choke point to target legal businesses because they disaagreed politically when those businesses the democrats on this committee were silent. when the obama justice department sent millions of dollars to taxpayer monies to sanctuary cities, the committee

was silent. when the obama administration un loot rally rewrote laws the democratic on this committee were silent. when the obama administration released rapeists and murderers into the general population, democrats on this committee were silent. when the department of justice signed off on the obama administration paying a nearly 2 billion ransom to iran contrary to federal law, the democrats on this committee were silent. when the obama administration ignored and rewrote provision after provision of obamacare contrary to the text of the day the democrats were silent. when the obama administration signed off on illegal recess appointments what the supreme koerpt had to strike down unanimously, the democrats on this committee were silent. and when the obamaed a mshgs released five guantanamo terrorists without the required notification of congress, the democrats on this committee were

silent. that pattern has been dismaying for eight years. i take today as a moment of celebration. if once again this committee has a bipartisan commitment to rule of law to following the law that is a wonderful thing and it is consistent with the tradition of this committee going back century. now, if we were to play a game of tit for tat, if what was good for the goose were good for the gander, then a republican republican tone jurn should disregard the law, should advance political preferences favored by the republican party. senator sessions do you believe that would be appropriate for an attorney general to do? >> no, i do not. i believe, and i think we do of to be aware that when something like this is done, and some of the things i'm familiar with enough to agree with you, that i thought were improper, i do believe it has a corrosive effect on public confidence and

the constitutional republic of when we were sworn to uphold. >> i think you are exactly right. you and i are both alum night department of justice and -- alumni of the department of justice and it has a long by tart san position of staying outside politics, simply and fairly enforcing the law. i will say right now if i believed that you would implement policies, even policies i agreed with contrary to law, i would vote against your confirmation. and the reason i am so enthusiastically supporting your confirmation is i have every degree of confidence you will follow the law faithfully and honestly. and that is the first and most important obligation of the attorney general. now, earlier in the hearing, senator franken engaged you in a discussion that i think was intended to try and undermine your character and integrity. and in particular senator franken suggested that you had

somehow misrepresented your record. it is unfortunate to see members of this body impugn the integrity of a fellow senator with whom we have served for years. it is particularly unfortunate when that attack is not backed up by the facts. senator franken based his attack primarily on an op-ed written by an attorney, gerald hebert. there is irony, in 1986, during your confirmation hearing, mr. hebert attacked you then, making false charges against you, and indeed i would note in the 1986 hearing two days later mr. hebert was forced to recant his testimony to say that he had given false testimony to this committee and indeed to say, quite, i apologize for any inconvenience caused mr. sessions or this committee by my prior testimony. so an individual who testified

falsely once before this committee, his op-ed is the basis for senator franken's attack on you. the base yirs of senator franken's attack, he claims you were uninvolved in several civil rights cases listed on your question air n1986, mr. hebert testified, a quote from him, i have needed mr. sessions' help in those cases and he has provided that help every step of the way. is that correct, that that's what mr. hebert testified? >> yes, that's correct. >> in the four cases senator franken referred to, you reported all four of them in your supplement to the judiciary committee, is that right? >> that is correct. >> mr. franken didn't mention. that and let me point out here's how you describe your involvement in your written submission to this committee. quote, for the cases described in 2, 4, 8 and 9 my role, like most u.s. attorneys with noncriminal civil rights cases

was to provide support for the department of justice, civil rights divisions attorneys. i reviewed, co-signed clients, motions and pleadings and briefs filed during high tenure as u.s. attorney i provide aid assistant and guidance, had an open-door policy and cooperated with civil rights attorneys on these cases. for the cases described in 6 i supervised litigation and signed the pleadings. now that is consistent with the 1986 testimony that you provided help every stecht way, is that correct? >> well, i think so, yes. >> there's no question you've been forthright with this committee and i would note members of this committee don't have to search far and wide to know who jeff sessions is. we've known every day sitting at this bench alongside you. i want to shift to a different topic, a topic i opened with, the plitization of the department of justice. the office of legal counsel has a critical role proef vieding sound legal and constitutional

advice to the attorney general and the president. we have seen in eight years a highly politicized olc. olc that's given politically convenient rulings, whether on recess appointments, on executive amnesty, and early on perhaps that was started by 2009 attorney general holder overruling olc concerning legislation trying to grant the distribute of columbia representation in congress. it may well be that that sent a message to olc its opinions were to be political and not legal in nature. what will you do as attorney general to restore professionalism and if i department to the office of legal counsel? >> senator cruz, i think any short term political agenda gains that come from the abuse of the law making processes and requirements of the department of justice, just don't make sejs. it will always, in the long run,

be more damaging than short-term gain that one might have. the office of legal counsel all of us who served in the department know is a big-time position. you need a mature, smart, sperjsed person who understands this government, who understands the laws and is principled and consistent in their application of the law. that will help the president, it will help the congress, it will help the american people. i do believe we need to work hard to have that, and i will do my best to ensure we have it. >> one final question. in the last eight years, the department of justice solicitor's general office has also, i believe, been unfortunately politicized and it sustained an unprecedented number of in a than mouse losses before the united states supreme court. indeed, president obama's justice department won less than half of its total cases before the supreme court which is the lowest presidential win rate since harry true map.

the average historically for the last 50 years has been 70%. numerous of those cases were unanimous with, indeed, both obama supreme court appointees voting against the lawless positions of this justice department. including their assertion that the government has the authority to supervise and direct the appointment, the hiring and firing of clergy in the church. what will you do as attorney general to ensure the integrity of the office of solicitor general that, it is faithful to the law and not advancing extreme political positions like the obamaartment did that have been rejected over and over again by the supreme court? >> i think the problem there is on a desire to achieve a result sometimes that joeferd overrides the commitment to the law. in the long run the country will be stronger if we adhere to the law even though somebody might be frustrated in the short term of not achieving an agenda. the solicitor general should not advocate to alter the meaning of

words to advance an agenda. that is an abuse of office and i would try to solicit to have the slestor general who is faithful to the constitution, serve under the constitution, dogs not feel the power to rise above it and make it say what it wants it to say. >> thank you senator sessions. >> bloomen that will. i think we have votes scheduled for 2:45, it's my idea that we would continue this going, i'll go at the end of the first vote and vote and come back and i hope other people will preside and keep asking questions while the two votes are going on. so we can finish at a roinl time today -- reasonable time today. >> he's not voting. >> what? >> he's not voting. >> did we get a decision, you can stay here during that voting. senator blumenthal.

>> thank you, and thank you for conducting this hearing in such a fair-minded and deliberate way. i want to join you in thanking senator sessions for his public service over so many years. and his family who have shared in the sacrifices that you have made. so i am sure that my colleaguesing and i appreciate your service and your friendship. this experience for us is a difficult one. not only because you're a colleague but i consider you to be a friend and some one who is well liked and respected in this body, understandably. nd i know if you were sitting here, you would be pretty tough on me. maybe tougher than i'm going to be on you. but it's not personal, you understand, we have an obligation to advise and con stoent ask those kinds of tough

questions. you and i have shared some experiences, we've both been united states attorneys and attorneys general of our state. and i want to thank you as well, for thanking our law enforcement community which is so important to this nation. and it makes sacrifices. and those sacrifices often are not only in time and forgone income, but also in looifses. and i join -- in lives. i join you in respecting the law enforcement officers who were victims most recently of gun violence. i want to begin just by asking you a question which i asked in a letter. will you recuse yourself from voting on your own nomination and the nominations of other cabinet secretaries? >> i do not have plans to vote on my nomination. i will have a not thoroughly examined all of the issues. but i think there could be a conflict of interest or

violation of the ethics rules and i would comply with the rules. >> i believe it would be a conflict of interest for you to vote on other cabinet secretaries as they are nominated by the president who is also your boss and i think that, i hope you will consider recusing yourself from those votes as well. because i think it will set a tone for what you do in cases of conflicts of interest. and i want to talk a little bit about conflicts of interest. i think that the attorney general of the united states has a unique and special role, especially at this point, in our history. he should be a champion, a zealous advocate of rights and liberties that are increasingly under threat in this country. and he's not just another

government lawyer or another cabinet secretary. he is the nation's lawyer. and so, any appearance of kwon flikt of interest or -- conflict of interest or compromising positions because of political involvement, i think, is a real danger to the rule of law and respect and credibility. of the rule of law. i would hope that you would consider appointing special counsel in cases where there may be a conflict of interest involving the president. one of those cases involves deutsche bank. the president of the united states owes deutsche bank several hundreds of millions of dollars, it's ongoing investigation. will you appoint an independent counsel to continue the investigation of deutsche bank? >> senator blumenthal, i'm not aware of that case, i'm not, in

anyway, have not researched it or read some of the public articles about it. so i'm totally uninformed about the merits or lack of it of the case. i don't know that the president is implications simply because he borrowed from a bank. but i would say that as senator lee, i think, raised in his questioning, you just want -- you don't want to be in a position where every time an issue comes up the attorney general recuses himself. but at the same time, serious questions when they arise, attorney general should recuse himself, on the appropriate circumstances. and i guess that goes with the -- or the appointment of a special counsel, which is somewhat different issue. i think it's a useful tool under the appropriate circumstance. >> would you free with me that the elument clause applies? >> it applies, i guess the

dispute is, and discussion is, what extent does the emolument clause apply. >> if there's evidence that the president of the united states has violated or may be violating the elu. s clause will you appoint a special counsel? >> we would have to examine. that i would not xwhit at this time, appointing a special counsel when i'm not allow of the precise factual situation that would be in play. >> if there is a violation by the president's family of the stock act which prohibits the use of private or insider information for personal gain, will you apply special counsel? >> well, we will have to evaluate if such a circumstance occurs. and i would do my duty as i believe i should do it at the time.

>> i would suggest that in those cases, an independent counsel is not only advisable but required to avoid conflict of interest. i would hope that you would be sensitive to those concerns. >> well, there are reasonable arguments to be made for that. i suggested that attorney general lynch should appoint a special counsel in the clinton matter. i don't know whether you supported that or not. >> one reason i'm asking the question, is that you have advocated a special counsel in other instances where, in fact, the argument for it was weaker than it would be in these cases. nd i think it would be appropriate. >> i will suggest that during the campaign sometimes we get excited. but as attorney general you have to follow the law, you have to be consistent, and you have to be honorable in your decisionmaking. i respect the question you're raising.

>> let me ask you about another group. i welcome your condemnation of the ku klux klan. you may be familiar with a group called "operation rescue." and "operation rescue" endorsed you, in fact, troy newman, the head of operation rescue, said, quote we could not be happier about the selection of senator jeff sessions as the next attorney general. operation rescue has, in fact, advocated, quote, execution, end quote, of abortion providers. and as an example of its work, this poster was circulated widely in the 1990s and early 2000s about a dr. , george tiller, who consequently was murdered. after his murder, operation

rescue said that his alleged murderer should be treated as a political prisoner. dr. tiller was murdered in 2009. i'm sure you're tam with this case. will you disavoi their endorsement of you? >> i disavow any activity like that, absolutely. and a group that would even suggest that is unacceptable. and i will even force the laws that make clear that a person who wants to receive a lawful abortion cannot be blocked by protesters and disruption of the doctor's practice. i might not savor that, i am pro-life as you know, we've settled on this laws that are clearly effective. as attorney general you can be sure that we would follow them. >> you would use the face statute, the freedom of access

to clinic entrances act, to empower and mobilize the fbi, the federal marshall sfls, or bureau of alcohol alcohol, tobacco and tire arms if there were harassment or intimidation. >> i would use the appropriate federal agencies and i believe it is in violation of the law to excessively or improperly hinder, even, the access to an abortion clinic. >> will you rigorously even force statutes that prohibit purchase of guns by felons or domestic abusers or drug addicts and use the statutes that exist right now on the books to ban those individuals from purchasing guns? >> well, congress has passed those laws, they remain the bread and butter enforcement mechanisms throughout our country today, to enforce gun laws. the first and foremost goal i

think of law enforcement would be to identify persons who are dangerous, who have a tendency or have been proven to be law breakers and have been convicted, and those who are caught carrying guns during the commission of a crime. both of those require mandatory sentences. as united states attorney, in alabama with a high priority of mine, i calculated a number of years, we were one of the top, even though a small office, in the percentage basis, we are one of the top prosecutors of those cases. i think it saves lives, senator blementhal. my judgment, at least, and experience tells me, it can help make -- create a more peaceful community. >> will you support laws necessary to effectively apply those ploo lays including universal background checks that are necessary to know whether the person is a felon, drug addict, domestic abuser?

>> i believe in background check las and many of them -- laws and many of them are appropriate. in every instance, there's some instances when it's not practical, somebody inherited a gun from their grandfather, those transactions, i'm not sure should require that kind of universal background check. >> senator, welcome to the committee, you may proceed. >> thank you mr. chair. and -- mr. chairman. and i want to thank you for the way you're handling this hearing. and appreciate your service in the committee. and senator sessions, i also want to join those who have congratulated you on your nomination to be the attorney general of the united states. i am one of those who has had the opportunity to work with you for years. and know you very well. i consider you well qualified and look forward to your service as attorney general of the united states. if you are confirmed and i expect you will be.

irknow you to be a man of your word, are you committed to the constitution of the united states of america and committed to enforcing the law of the country as you have said multiple times in the commit i. i thank you for that. beyond just the notion of just the enforcement of the law, the manner in which the department of justice even forces the law. one, the abuse of the power or discriminatory enforcement of the law. two, regulatory overreach that we're seeing across the country. and what role the department of justice plays in trying to deal with that. and then, finally, cooperation with the states. we live in union of 50 states. under our kwons tugs, there are appropriate rules -- constitution, there are appropriate rules for the states

and the department of justice has a powerful influence on that. the first one, i'll use as an example of the kind of abecause of power that you hope you will stop and prevent from continuing to happen. this example, one that was referenced by senator cruz, operation "choke point." operation choke point, those who aren't familiar with it, the only appropriate thing about it in my opinion is its name. it was -- it was a program designed by the department of justice to help choke financing away from businesses and industries that were politically unacceptable, for whatever reason, unacceptable to theed managers. administration. the justice working with, and i think perhaps pressuring some of our financial hegtry agencies, created this program to give additional scrutiny, such additional scrutiny that it pressured them out of their access to financing to serpt

industries. i don't know how these industries got on the list but i'll read you several on the list. ammunition sales, coin dealers, firearm sales, installment loans, tobacco sales. this list is a list of 30 that was put out by the fdc when they actually realized they shouldn't have put the list out they quickly took it back. the head of the fdic says they're not pursuing this program any more. but when we tried to defund it earlier, the administration fought aggressively to make sure we didn't get the votes to defund it. this program is one where the justification is, well, the businesses who operate in these industries haven't done anything wrong. but these are industries that might do things wrong more than other industries. and therefore we're going to pressure people out of these industries. reminds me of the 2002 movie

called "minority report," tom cruise movie, an advanced police force in the future that had determined, had developed the ability to know if you're going to commit a crime before you commit the crime. and then their jo be was to arrest you. it was really good at stopping crime, they arrest you before you committee. and then one of them came up on the list and that's the story of that movie. my point is, we can't really tell for sure whether operation choke point is still operating although we still have people in these industries who can't get financing. if that kind of thing is going on in the department of justice will you assure that it ends? >> i will. at least as you framed this issue, and as i understand the issue, from what little i know about it. fundamentally, a lawful business should not be attacked by having other lawful businesses

pressured not to do business with the first business. to me, that would be hard to justify. i guess maybe they've got some arguments that would be worth listening to. fundamentally, that seems to me, senator crapo, you're a great lawyer, seems that goes beyond what would be legitimate in a great economy like ours. >> well, i hope the department of justice would not be a partner with any of our federal agencies. in this kind of conduct. another one i'll throw out as an example is the national instant criminal background checklist, being utilized by the veteran's administration and by the social security administration to put people's names on the list so that they can be denied access to owning or purchasing a firearm. the way they pame on the list is to say that they are mentally deficient f they need a little help on their social security benefits, if they're a veteran who put their life on the line for us and goes to war

and receives a head injury, so they need a little bit of assistance, then they get their name often put on the list. i know that these are not the agencies that you supervise but i know the department of justice supervises the nix list. i would encourage your help, whether it's here or anywhere else in the government, as we see agencies using their power to achieve political purposes. our some other discriminatory purpose of the administration. i hope you stand solidly against it. >> thank you, senator crapo, i know you worked on that issue. i would be sympathetic and willing to receive any information that i know you've gathered on to a form your views about it. >> i appreciate that. let me move on, to the question of regulatory overreach. i'll use one example there. i'm one who believes that, today, we have gone -- we talked a lot in the hearing about the rule of law.

in america, statutes are passed by congress and signed into law by a willing president. but now we have multiple agencies that are doing rule makings, that in my opinion are going far beyond the legal authority of the laws under which they operate. i'll use one example, the waters of the united states rule that has been implemented or seeking to be implemented by the epa and army corps of engineers. that is totally unfounded in law in my opinion. often, the department of justice is partnered up these agenciesing a they try to defend their activities in court. and i am not sure i know the proper role. does the department of justice simply to have litigate on behalf of these agencies, or does it have the ability to advise these agencies they are pursuing activities beyond the bounds of the law? >> it can be that an agency would ask an opinion of the office of legal counsel, the department of justice. as to whether their

interpretation is sound or not. that opinion until reversed at some point stands for the entire government. but basically, these agencies are often times, set about their own agendas without asking for an opinion. and often, they are narrow minded or they're focused only on what they feel the goals of their agency, and don't give sufficient respect to the rule of law, and the pro pry ty of what they're doing in particular, did the congress really intend this, does this law really cover interest or is it something you want to accomplish in your twisting the law to justify your actions. those are the kind of things that we do need to guard against. >> well, i appreciate that. and i hope that under your leadership, we will have a justice department that will give strong advice where it can. and have strong influence where it can.

across the united states system. across our agencies in this country. to help encourage and advise that they stay within the bounds of the law. the last thing, and i'll just finish with this, and you can give a quick answer, i'm running out of time, cooperation with the states. as i said earlier, our system of government is comprised of 50 states in a union under a constitution that establishes a federal government. and you and i both know well the tenth amendment says those rights and powers that are not specifically granted to the federal government in the constitution are reserved to the states and to the people. respectively. many of our states feel that that proper respect for their sovereignty is being accuse becaused, again, by federal agencies, not just the department of justice. but the justice department often gets involved in this through providing the legal services that it does to our agencies.

and i could go through a ton of more examples and lists of litigation that is ongoing right now with my state and other states around the country. where if we simply had a better level of respect for the role of states in this union, and under our constitution, we could work out a lot more of these issues rather than k the heavy hand of the federal litigation come into play rather than forcing compliance by states. i won't go into specific details but ask your feelings about that importance of respecting the role of states in this country. >> there is no general, federal, criminal fines. so many things like larceny, even murder, unconnected to some civil rights connection, these things have traditionally been totally the responsibility of the states. as a young prosecutor, in the

1970s, i remember almost all of the cases at an interstate commerce nexus, it wasn't the theft of an automobile that you prosecuted, it was interstate transportation of a stolen vehicle. >> yes. a lot of -- >> lot of that is just, now, we've forgotten that distinction, that limitation on federal power. >> we have. a lot of what i'm talking about happens in the environment in natural resource division, or in others. a lot of litigation out. there i encourage, i see i am out of time. >> let me make a suggestion before i suggest senator ronald, who's been off for two years. when she's done, it would be senator kennedy's turn but you probably have to go vote f there's somebody back here that can start the second round, do it. and then we'll call on senator kennedy to finish the first round. senator hurano?

>> thank you mr. chairman. it's good to be back on this committee. and aloha to you, senator sessions. >> aloha. >> i will do my best to be nice to you. [ chuckling ] >> that won't be hard for you. >> thank you very much. i know that the attorney general has prosecutorial discretion. we noted in some of your responses to questions from senator durbin around the issue of what would happen to the 800,000daka registered people if the president-elect rescinds that program. and you indicated that i think at that point that the ag's office has only so many resources and that may not be a high priority for you. you indicated that's why we needed immigration reform. my series of questions will center around how you would exercise your prosecutorial discretion, which i think you

would acknowledge is wide. as attorney general. wouldn't you? >> in many cases, you do the federal prosecutor sets discretionary limits. but you have to be careful that it does not exceed a reasonable judgment about discretion. >> i agree. it's not totally unfettered. wide prosecutorial discretion. my questions will center around how you would exercise prosecutorial discretion with regard to some specific issues. you probably know i am an imgrant. you indicated, in one response, that you would want immigration reform to center around skill spaced immigration reform. if that were the case my mother who brought me to this country to escape an abusive marriage would not have been able to come to this country. she acquired her skills later. i want to let you know that it's one of the reasons that issues relating to immigration are very

important. not just to me but to millions of people in the country. ifer heard from them. i have heard from immigrants, lgbt, women and religious minorities who are terrified they will have no place in president-elect trump's vision of america. and based on what i've heard, since the election, i am deep buy concerned that their fees are well founded. i'm hope thaug can address some of these concerns today. i mentioned the exercise of prosecutorial discretion. when you came to see me, we talked about whether or not you would support a ban on muslims coming to the country based on the fact that they were muslims. you said you would not support that. but you also indicated that you would support basically what would be considered enhanced vetting of people with extreme views. what would characterize an

extreme view to you? how would you go about searching out people with extreme sues? there are millions of people legally coming into our country. and also related question, the fact that you would consider vetting of people with extreme views to be a proper use of your governmental authority, there must be a connection in your mind that people with extreme views, which i hope you will describe what you mean by, will do something that would compromise the safety of americans. could you respond to my series of questions relating to extreme views? >> well, i do think -- first of all the vetting process is in the hands of the state department. the con su lar offices, those offices meeting people abroad and evaluating them for administration to the united states. the department of justice really does not dictate that as long as

it's, perhaps, as long as it's within constitutional order. the approach that's preferable is the approach that would be based on areas where we have an unusually high risk of terrorist coming in, people who could be clearly violent criminals. and those are certainly justify higher intensity of vetting. i think that's maybe response to your question. but, again, the ultimate decision about that would be done through the state department and by the president. >> i'm sure they would ask for the attorney general's opinion as to the limits of the constitution and requiring these kinds of questions to be asked of people who come to our country. you did indicate that one, rujous views would be a factor in determining whether some one has extreme views. >> their religious views,

exfreemism. >> not in and of itself. >> right. if their interpretation of their religious views encompasses a dangerous doctrine andtristic attacks -- and terroristic attacks they deserve more careful scrutiny than some one whose religious views are less problematic. >> you did say that one's religious views would be a factor in determine whether one has extreme views that would not enable them to come to our country. let me turn to the question of abortion. roev. wade you said i firmly believe that roe wade and its descendants represent one of the worst supreme court decisions much all time. it was an activist decision. my question is, you still hold that view? i believe you answered question

to some one who asked you that question previously, you believe that roe v. wade was a bad decision. do you still believe that? >> i guess i've said that before. i'm pro-life -- >> thank you. >> advocate. fundamentally, the problem as i see it, with roe versus wade is that it denies the people the right to make laws that they might feel appropriate. did the supreme court have that power, i concluded they didn't. because the constitution didn't wants that question. >> senator session dashes dash. >> i respect -- >> i hate interest to rupt you, but i have less than two minutes. i don't want to get into the substance of roev. wade, i know you believe that was a bad decision, it was based on constitutional privacy protections. we can expect the makeup of the supreme court to change. we can could end up with a supreme court that will be very open to overturning roe v. wade.

should you be attorney general would you direct or advise your solicitor general to weigh in before that supreme court, which has an opportunity to overturn roe v. wade, would your solicitor general weigh in to repeal or overturn, i should say, roe v. wade. >> it is firmly e skonsed as the law of the land and i don't know if we would see a change in that. you're asking a hypothetical question. those cases seldom come up on such a clear issue. they come up at the margins. i just would not be able to predict what well life researched, thoughtful response to be to matters that could happen in the future. >> i think most of us know that the next opportunity for the supreme court to weigh in on whether or not to change roe v. wade would be a close decision.

likely possibly 5-4 decision. it's not just a hype net cal but a real concern to a lot of people. let me turn to the voting rights act. the supreme court did eliminate parts of the voting rights act, it still retained section. which poibtses states from enacting laws that would have a discriminatory impact. the attorney general's office was a party to challenging two state laws, i believe it was texas and there was another state, that the supreme court ultimately agreed with the attorney general's position that these laws violated the voting rights act, section 2. would you, should you become attorney general, just as vigorously prosecute those state laws that have a discriminatory voting impact? >> this administration's attorney general has intervened when it felt it was appropriate

and not enter veenld when it did not feel appropriate. my responsibility would be to ensure that there is no discriminatory problems with a voting rights act of a state. if there is, if it violates the voting rights act or the constitution, i think the attorney general may well have a responsibility and a duty to intervene. you cannot allow improper erosion of the right of americans to vote. >> well, we know that since the supreme court's decision that did away with major parts of the voting rights act, that numerous states, perhaps 13 states, have enacted laws that could be deemed contrary to the voting rights act. i would hope that as attorney general you would vigorously review those kinds of laws and to prosecute and to seek to overturn those state laws, just as your predecessors have done.

i want to turn to vowa. i know that you voted against the most recent iteration, you had concerns about how the nonindians would be prosecuted under tribal law. you indicated that you do acknowledge that nonindians do go on tribal lands, commit crimes, and these crimes should be prosecuted at the federal level. i would expect should you become attorney general you will do that. but at the same time, my question is, would you then seek to overturn that part of vowa that allows the tribal courts to proceed? >> that would be a strictly legal decision. we should give respect to the laws of congress that have been passed. as a member of congress i was uneasy with it, did not think it was good approach. i believe 8 out of 9 republicans on the committee shared that concern and did vote against it.

i voted for the violence against women act, in 2000, 2010, and i voted for the grassley version of the violence against women act this past time, even though i did vote against -- >> so, as the attorney general would you not do anything to challenge that part of vowa that allows for tribal courts to proceed. >> i would have to make a legal decision on that. i'm not able to do so today. >> thank you mr. chairman. >> thank you. senator sessions, as you're aware, many instances congress when enacting a law will choose to issue a broad sort of mandate. a broad aspirational statement, leaving the details of the actual lawmaking process to a regulatory system but then it has to follow certain procedures in turn, effectively make laws. we call those regulations, typically.

sometimes an executive branch agency goes to step further. outside the process that has to be followed when promulgating a new regulation, they reissue a guidance document a guidance document outlining what the agency feels is the status of the law in this area. guidance documents have received a lot of criticism from members of the public who point out that they are bereft of any kind of safeguard, in that they haven't gone through a legislative process, they haven't gone through any review process that would normally accompany the regulatory rule-making cycle. as a matter of policymaking, will the department of justice under your leadership, assuming you are confirmed, use guidance documents as a matter of course in promulgating legal interpretations? >> senator lee, a guidance document clearly within the

intent of congress and the laws' plain words can be beneficial. i think normal they're issued by the department or agency that administered, health and human services, homeland security, department of commerce. they often, sometimes, they ask the office of legal counsel for their opinion about what the proper interpretation of the sfat out is. but i do think you raise a valid concern a guidance document cannot amount to an amendment of a law. brewer brewer owe drats do not have, department and agency attorneys and members don't have the ability to rewrite the law to make it say what they want to it say f we get away from that principle, we've roded respect for law in the whole constitutional structure. where congress makes the laws not the executive branch. >> what about in the context of litigation where you're

litigating a case involving one of these guidance documents and you're representing the federal agency in question, will the department under your leadership assuming are you confirmed to this position, ask courts to deer if to nonbinding guidance documents in the same way courts are routinely asked to defer to regulations? >> well that,'s a good question from a good lawyer, i have to say. in other words the question, you're suggesting to establish law of the land or the courts is that they give certain deference to well-established, properly-established regulations issued pursuant to statute. but what if the secretary just issues a guidance document. does the court, is the court entitled to give full deference to that. i would first of all, i don't know. i haven't researched it. but i think that would be a bold step on go that far, it would be dubious. >> thank you. as you know from time to time,

the department of justice receives subpoenas, one of the entities being represented by the department of justice might receive requests from members of congress, from committees in congress, including some committees that have the power to issue subpoenas. other instances, just letters, or other types of requests from congress for documents. i suspect that there may be a number of outstanding requests of this nature that are left pending at the end of this administration. requests that were issued during the 114th congress, congress previous to this one. but that will still need to be handled. within the department after you're confirmed, assuming you are confirmed. will you commit to reviewing any of those that remain pending and doing so in a manner that's timely and showing the respect

for a branch of government? >> senator lee, if you would, repeat the kind of -- >> pending requests for documents that might be left over from the previous congress. >> request for documents in what kind of proceeding? >> request for documents either from the department itself or in matters where the department is involved rresenting an entity within the federal government. i just want to make sure that those don't get left behind, they don't get ignored because they haven't been dealt with by the previous administration. >> well, i do think they're entitled to be evaluated, proper requests, i would assume, would continue to be valid.we would t the law requires in that regard. >> thank you, i appreciate that. i want to talk about the use of the attorney-client privilege. by members of the executive branch, executive branch officials. in the 1998 opinion the u.s.

court or appeals for the d.c. circuit reached the conclusion that executive branch officials do not enjoy the same common law attorney-client privilege as order lawyers, lawyers who are not executive branch officials. justice scalia, while he was serving as attorney general, said executive branch officials do not enjoy the privilege unless they're dispensing with personal legal advice. instead, in that view, executive branch officials need to exert the executive privilege rather than the traditional common law attorney-client privilege. yet executive branch agencies routinely can be observed asserting the attorney-client privilege instead of the -- in of the same way they would in the traditional context rather

than invoking the executive privilege. would you agree with that, that that might raise some questions? >> senator lee, i've not studied that opinion of justice ska lee a i would be reluctant to comment except i would say if it's probably good for the american republic that the department and agency officials seek legal advice before they act. in the long run that's probably better. i think having some expectation that they can have a candid comment with their attorney is of value. i hadn't thought about and never given stuldy to the question of whether it should be on the executive privilege or attorney-client. although i can understand the -- imagine the difficulties. >> yes. now, i appreciate your candor on that point and gives you comfort in thoughing you are aware of the situation, you will look at those. i'd like to talk about some

antitrust issues, in the moments i have remaining. perhaps we'll get back to these during a subsequent round. antitrust regulators when they're reviewing potentially anti-competitive harms, that might arise as a result of a merger, will sometimes impose conditions, conditions on the merger moving forward. saying unless you do a, b and c this merger can't go forward f you do a, b and c in order to address the concerns the anti-twist coordinators have, then the merger can be consummated. it is my view that there is a temptation for antitrust regulators sometimes to impose conditions that don't involve anti-competitive concerns. and that that raises some red

flags this, because the role of the antitrust regulator to is to look out for anti-competitive concerns arising out of the merger, that's where they're inquirying to focus and conditions ought to be focused. do you disafree with that? >> i would agree with that. as you formulated, i believe, i agree with that. it would be wrong to further some other separate, discreet agenda, that is not reasonably connected to the merger itself. i think we should ensure that we have the highest integrity in antitrust adjudications because they can have great impact. the law is not crystal clear about what is lawful and what's not lawful and what antitrust division is required to do. and it leaves dangers of if not politicalization of it, it remains --