number of americans voted than ever before, there was a big number, a third, that did not vote. i think it's important that every american has the opportunity to vote. voting is the central facet, the fulcrum of our democracy. so anything that can -- any legislation that will encourage more voting, i strongly support. specifically you're referring to the supreme court's decision in the shelby county case, which the coverage formula for preclearance couldn't be used as unconstitutional because of the then state of the congressional record. but the court indicated a different and stronger record might support preclearance and i would be in favor, if i'm confirmed, in working with the committee and the senate and the house to try to develop that

record that would allow that important tool to be used. the department still does have other tools. it has section 2, which remains enforce as the supreme court clearly said in shelby county, and it prevents interference with voting practices and procedures that, you know, that interfere with minorities' ability to vote. and it is something the department has always looked to as an important tool. there are plenty of other tools to increase the ability of americans to vote, which i was supportive of. >> thank you. thank you. i snow senator lee has always raised this. you're watching the merrick garland hearing before the senate judiciary committee. at any moment, president biden will be delivering his reforms for the covid small business loans. i'm andrea mitchell in washington, and we will continue with the merrick garland hearing

until the president arrives, and then we will bring that to you live. in the bush administration, the last bush administration, they put a moratorium in certain cases for that, and that moratorium lasted or did last from 2003 during the bush administration and then suddenly in the last six months, the justice department under the last president rushed to execute more people -- and this is what's stunning -- in six months had been executed in the past 60 years. many of us feel that was nothing

short of being a killing spree. it worries me because we know the disproportionate deaths by minorities and the poor. i prosecuted many death cases. i was a proponent of the death penalty but certainly would rather have someone sitting in a prison cell thinking about what they did wrong. i'm joining with senator booker for the act that would end the federal death penalty. so i ask you this, would you go back to what president bush did and reinstate the federal moratorium, which was lifted in the last few months by the last

administration, have reinstated while senator durbin, senator booker, myself and others work on the legislation eliminating the death penalty? >> as you know, senator, president biden is an opponent of the death penalty. i have to say over those almost 20 years in which the federal death penalty had been paused, i have had a great pause about the death penalty. i am very concerned about the large number of exonerations that have occurred through dna evidence and otherwise, not only in death penalty convictions but also in other convictions. i think a terrible thing occurs when somebody is convicted of a crime that they did not commit, and the most terrible thing happens if someone is executed for a crime they did not commit.

it's also the case that during this pause we've seen fewer and fewer death penalty applications anywhere in the country, not only in the federal government, but among the states and as a consequence, i'm concerned about the increasing almost randomness or arbitrariness of its application when you have so few number of cases. finally and very importantly, as the other matter that you raised, which is its disparate impacts. the data is clear it has an enormously disparate impact on black americans and members of the communities of color and exonerations also that something like half of the exonerations had to do with black men. so all of this has given me pause, and i expect that the president will be given direction in this area.

and if so, i expect it not at all unlikely that we will return to the previous policy. >> thank you. i think my time is just about up, but i would also add as chairman of the appropriations committee, i'm going to be talking to you about the department of justice and grants they had on boca grant and other such things. those had bipartisan support, again, we have to make sure they're done. frankly, i'm very happy you're here. but i will have a feeling we will have a lot of conversations the next few years. >> i hope that's the case. i would be happy to have confirmations even if i am

confirmed but certainly prefer them if i am confirmed. >> you're going to be confirmed. i'll bet my farm in vermont on that. >> never ask anybody to bet that, senator. >> thank you, senator leahy. senator ben sasse. >> thank you, chairman. congratulations, judge, on your nomination and thank you for the time you've spent in this process with those of us who wanted to grill you in private before we met here today in public. you're in the process of moving from article three to article two. were you confirmed to the bench in '96, '97? >> '97. >> in the 23 years, 24 years since you left an executive role, obviously the article 2 branch has grown in power and article 1 seems to be shriveling in lots of ways. do you have a theory of way articles 2 and 3 are gaining more power in american life and article 1 seemingly is weaker?

>> that is i would say a cosmic question of life. i don't have an answer to that. each branch has an obligation by the constitution and it could be this is the case, the congress has not asserted itself as it should with respect to protecting its authorities. to be honest, i'm not enough of a political scientist to know exactly how this balance has changed. i'm sure from a point of view of the congress, its role diminished but sometimes i'm sure the other branches feel the same way. >> well, i think it's a mix of overreach by article 12 and underreach by article 1. so i'm not asking you a question to put you on the defensive to say everything is wrong is chiefly outside the congress, because i think he we're probably chiefly to blame. but you're going to become the most powerful law enforcement

officer in the nation and obviously you will have a lot of prosecutorial discretion. can you help us understand what the line is between prosecutorial discretion, which is understandable in any complex situation, or federal lateralism, which i hope we agree the definition level, is at the constitution level. what is the line? >> it's not easy to outline. gene chain yas case is the best overall description for the country, prosecutors and government agencies have had discretion to make decisions about how they allocate their resources in terms of enforcement priorities, both criminal and civil. and this is either generally been nonreviewable or deferenceably reviewable. the courts, the opposite side of the line is that the executive

branch can't simply decide we're not going to enforce this law at all. now where a particular piece of conduct falls between those two is a difficult thing to say, except in an individual case. >> well, obviously, in our troubled politics, it's easy for each party when they're out of power to say the article 12 2 branch is overreaching but when you're in power, those mostly look like discretion. how do you think, not just the supreme court line of cases, but the level of you being the boss of agaooc, for instance, how will you determine what actions are beyond the pale? >> i will determine when the department makes determinations based on resources on its views about which are the most important matters that it should

go forward with, when it thinks state local governments are in a better position to handle those matters, any of those kinds of factors are all perfectly appropriate for deciding to exercise prosecutorial discretion. a disagreement with a law passed by congress or a decision that the department will simply not enforce regardless of resources or other things, would be impermissible. again, i think no matter how hard i try, i can't put this in perfect words and i'm sure maybe we will disagree in the future if i do get this position. but it will be out of a good faith effort on my part to be sure the executive is only doing what it's supposed to do. >> i want to move on to another topic but one more final point on it, is congressional inaction a legitimate basis for article 2 to decide it must just act because it wishes policy were

different and legislation doesn't move, therefore, you have a pen and a phone, so can you just ask because congress didn't? >> also, you're asking really tough questions of our basic constitutional structure. doing so simply out of upset that congress hasn't done what want obviously not okay, but in the formulation that justice jackson, who i quoted in my opening famously gave in the youngstown steel case, a president does have authorities when he acts con sonant with congress, he's at his highest power. when congress has not acted at all, he's left with only his own power, at which is clearly available under the constitution, depending on the

circumstance we're talking about. and when he acts in counter vepgs of congress, he has only the authorities, minus the authorities the congress has and this is what jackson famously referred to as the lowest ebb of the executive's authority. so inaction is in the middle. you can't do this just because congress didn't act, but you can -- the president can act if it's within his authority and he believes it's something in the public interest. >> thanks. i want to switch gears a little bit -- good day, i'm andrea mitchell in washington. that's president biden's nominee for attorney general merrick garland facing questions about the defining issues of our day. domestic terrorism, white supremacy and racial and social justice. this as the former president is suffering a final blow on keeping his personal and corporate tax records from investigators. supreme court ruling today that donald trump cannot keep his taxes secret from a new york

grand jury investigating his finances. and expect to hear from president biden at any moment on his plan to make the ppp small business loan program for small businesses better target companies in need. but first joining me now on the trump tax decision and merrick garland hearing, nbc justice correspondent pete williams, garrett haake, harry litman, former u.s. attorney and former assistant attorney general in the clinton justice department, and sherrilyn ifill, counsel of the vp education fund. what can you tell us today about the immediate impact on the former president donald trump? >> his goose is cooked in terms of trying to keep his taxes away from manhattan -- >> is that a legal term? >> it means he's out of office. he tried once before when he was in the white house saying i'm president, you can't trust me, i'm immune from this, including

grand jury subpoenas. they were rejected and both members of the supreme court voted with the majority. so they went back to the court and said, okay, the problem with the subpoena is it's too broad. they ask for too much. they lost in the trial court. they lost in the court of appeals. they went to the supreme court last october with an emergency appeal, saying please stop this until we can get up there and argue the case on the merits. so this case has been sitting there since last october, and finally today, the supreme court said nope, we're denying this emergency application. so it's over. the president is out of legal options to try to stop this. remember, what the grand jury wants is about eight or are nine years of president's corporation and personal tax returns from his accountants. the accountants already said we will do whatever the courts say so expect this material to be turned over within a matter of days. we don't know exactly what side

cy vance investigated, whether he understated his assets in order to invade taxes and possible insurance fraud, but now it's over. this material has to be turned over. >> and, harry, briefly, the significance for this, because it's not going to become public. these are secret hearings by cy vance will get his hands for the grand jury on those taxes, both corporate and personal. >> that's right. first, it is out of the hermetically sealed chamber of donald trump. you just have to imagine the likelihood that down the line at some point everyone will see them. but as pete says, in this case, what would have to happen is the grand jury return charges and the taxes be introduced as evidence. if they return charges, it's almost certain they will. basically what's going on here, this is from michael cohen's

report several months back is when he wants to get loans, he makes it seem like -- like properties are valuable. when he wants to pay taxes, he makes them see like they're low. hard individually but if you stack them next to each other, it's a pretty straightforward case for a prosecutor to prove and you must have the tax records to do it. if they charge the public will see the tax records. even if they don't, it's a giant step towards one way or another they're being released. >> and, pete, let's turn back to capitol hill. judge garland was asked by senator feinstein today about the january 6th attacks. here was his response on that. >> i think this was the most heinous attack on the democratic processes that i had ever seen and one that i never expected to see in my lifetime. i intend to give the career prosecutors who are working on this matter 24/7 all of the resources they could possibly

require to do this and at the same time intend to make sure that we look more broadly to look at where this is coming from, what other groups there might be that could raise the same problem in the future. >> and, pete, he also was asked about body cameras and all sorts of other activity, help that they might need. but there's a hearing tomorrow on all of this. he also made it very clear where he stands on being -- not being the president's lawyer and not letting politics interfere with him. >> right. yes, i think a couple of messages here. number one, he wants to make sure that the justice department people understand they should make decisions based on the evidence and the law without any kind of political interference. he said he wouldn't have taken the job if president biden had not given him that assurance,

including on the investigation of the president's son hunter biden. he said the president has given him indications he will be hands off on that. he said on the 16, by the way, the 1-6 investigation, he wants to make sure the justice department looks not only at the people on the grounds that day but trace back and who was involved in encouraging or funding any kind of insurrection at the capitol. a couple other points, he thinks the government will revert to the earlier position and put a moratorium on the federal death penalty. he called the child separation policy under the trump administration shameful. he said he can't think of anything worse. and he will also speak with john durham to look into the fbi's investigation into the trump campaign, how that got started. he said it's appropriate durham is saying and looks forward to getting caught up on that. this is what the confirmation hearing looks like for somebody getting confirmed easily, not

just because the democrats control the senate but there doesn't seem to be much republican opposition. >> lindsey graham and others already weighing in saying they support him. sherrilyn ifill, what did you hear in his opening statements that addressed the concern this has long ben overlooked and there really has to be a revamping of that office? >> andrea, thank you. i think this is so important. think how many years you and others have been covering the department of justice, and how little attention there has been to the origins of the department of justice as having been created precisely to protect the rights of newly freed slaves, black people around the country. personally went to the 13th, 14th and 15th amendments and particularly to protect black voting rights. it was very powerful and important for this attorney general at this moment in our country when voter suppression is such a powerful issue for him

to remind us of those origins at the department of justice. and that's going to be important in the coming weeks, not only through this confirmation hearing and through the confirmation of others in the department that we remember the very department of justice. because at this moment we're facing an 1870 moment sadly. i think that was critically important for him to frame his entire presentation today with that important history. >> and garrett, we see also that other cabinet members -- or at least one certainly, are facing trouble, tendon. he has seven nominations confirmed and the problem with neera tanden for omb, joe manchin, one democrat said he will not vote for her and now two republicans joined in, susan collins and mitt romney. so how does the administration

get to the math of getting 51 votes for her, including, of course, the vice president? >> the short answer is they're going to have to pull a republican out of their hat to vote for neera tanden. this is the reality in a 50/50 senate. if you have a nominee that is controversial, you cannot afford to lose any of your democrats. with joe manchin saying he won't support her, susan collins saying he won't support her, it's hard to see where another republican could be found. mitt romney said he won't support tanden to get him to the 50 votes they need. that's the difference between tanden and merrick garland, who is liable to get 85 or 90 votes for his confirmation. another one this week to watch is xavier becerra. he's another one who republicans criticize as not having relevant experience in health or human services and essentially being a political nominee to this post. democrats will need to stick together on that nomination as well. so part of the delay in getting

the biden cabinet together was just some of the circumstances here. democrats not winning the georgia seats for quite some time and then having to deal with the impeachment trial here in the senate. all of that slows things down. but now we're getting past some of the kind of consensus nominees and into those that might be political battles. in a 50/50 senate, all of these votes are going to count and performance of these nominees in their individual nomination hearings are going to be important too. garland sailing so far. nobody's even tried to lay a glove on him. and actually deb haaland as well later this week, nomination for interior, could face tough questions. grit your teeth week for democrats on pennsylvania avenue watching their picks come up to the senate. >> indeed. i should note for those of us in the washington area, we are seeing incredible negative ads about becerra, public interest

groups taking him down. he's not a doctor, their big complaint. just now an answer to senator blumenthal judge garland said hate crimes are tearing apart our country right now. sherrelen, in the aftermath of all we have seen in black lives matter and all of the issues about police operations, what more do you want to see from merrick garland as he not only looked at enforcement of the civil rights as secretaries and civil rights office, which not been enforced the last four years, as best i can tell, what more do you want to see from him on that and on voting rights? >> well, we certainly want to see the civil rights division stood back up as an enforcement division focused on voting right and all manner of civil rights and we want to seep this department engage the issue of criminal justice reform. we want to see them address policing. you want to return to pattern

and practice investigations of unconstitutional policing. we would like to hear this attorney general put his voice behind the george floyd police in justice act passed last year. the catastrophe, human rights catastrophe happening in our nation's prisons. the department of justice has oversight power on strattory power to be able to investigate unconstitutional conditions in state prisons. we want to see them doing that. we want to see them address issues of educational disparity. we want to see them take another look at some of the affirmative action positions taken by the prior department of justice. it's a huge portfolio. he's got his work cut out for him for sure. fortunately, there are others in the pipeline to be confirmed to assist him with this. that's why it's so important he set the tone today. this is not an area in which merrick garland has experience, either criminal justice reform or civil rights. so hearing him today frame his vision of the department of

justice that way was actually a very important signal. >> thanks to you so much, sherrelen, for being with us today. your perspective, pete williams, garrett haake, all of you. in just a few moments, president biden will be announcing updates to the trump paycheck protection program geared towards helping small businesses and they are employees in greatest need, rather than the large corporations, many of whom did benefit last time when it was passed last winter. and tonight he and the first lady, along with the vice president and her husband, will be leading a memorial service to mark a grim milestone as the nation passes 500,000 americans who died because of covid-19. nbc's white house correspondent geoff bennett joining me now. the stage is set. the podium is ready for the president to be joining right on the white house campus, across from the white house proper. geoff, what is he trying to show here today? certainly greater equity in the way these loans are distributed.

>> that's right, andrea. i think it's worth noting when the paycheck protection program came online last april under the trump administration, it's dwz p $349 billion ran dry in about two weeks and small business owners across the country made the case many of them couldn't access that money. the biden administration took a look at the program and they said, yes, in fact that was the case. now what they're doing -- and we expect president biden to come out any moment now as an aide leaves his prepared remarks on the lectern -- now when they mark this program, they are saying any small business owners with 20 employees or less, those business owners access the money first. this is their way of giving small businesses a leg up, so they're not squeezed out by bigger firms. they also state by doing that it will allow minority-own businesses better access and also allow llcs and sole pro

prioritiers, so people who might own a beauty shop or salon or small day care, those folks can access this money. this is one way thes about is biden administration is changing the covid relief. and this week starts really a three-week sprint now where he will democrat in concert with the biden administration, they will try to push that package through. first in the house, today it goes before the house budget committee before the full house floor for a vote. and then quickly to the senate and the sort of overall deadline hanging over all of this is march 14th. that's the day by which the extended federal unemployment benefits run dry. president biden, his aids and hill democrats have to act within this really tight window. it's especially tight when you consider they're going to do this entire thing with just democratic votes alone through this convoluted and complex process known as reconciliation,

andrea. >> and, geoff, as it goes through the budget committee, what's known as a markup, they can make changes and we're waiting to see what changes they make. different people have different pet projects in there. at one point $9 trillion worth and that is what's costing them a lot of republican support. we also have to see when it does get to the house floor how the parliamentarian votes on raising the minimum wage, whether or not the parliamentarian says it should be in there. well, here comes the president, geoff. we will wait to see what he has to say. >> i just had an opportunity to catch up with two small business owners i met on the road in the last couple of weeks. and the first was a very entrepreneurial woman named pilar guzman zavala, and she's from florida, miami. and pam ikinger, who was in

wisconsin. they have different businesses and live in different places but both shared the same messages when i spoke to them on the road. and that is america's small businesses are hurting and hurting badly and they need help now. and it's in all of our interest to make sure they get help now. small businesses are the engine of our economic progress. they're the glue of the heart and soul of our communities but they're getting crushed. since the beginning of this pandemic, 400,000 small businesses have closed. 400,000. and millions more are hanging by a thread. it's hurting black, latino and asian american communities the hardest. walk down any main street, and you see it. empty storefronts, good-bye signs hanging in the windows. maybe it's the pizza place you used to take your family to dinner or the hardware store

that always had the tool you needed. it's the mom and pop shop that is supported by the community and in turn they support the community. they sponsor little league teams. the barbershop, the first dollar bill he or she earned still taped to the wall, along with their picture of their kids, who are now in college. these small businesses, not the ones with 500 employees, but these small businesses that with a handful of folks, they are 90% of the businesses in america. but when the paycheck protection program was passed, a lot of these mom-and-mop businesses got muscled out of the way by bigger companies who jumped in front of the line. i want to be clear, the paycheck protection program is a bipartisan effort. democrats and republicans helped pass it. but democrats and republicans have also voiced concerns about

improving it. with their input, that's what we're doing in our administration, improving it. in the la month, we've increased a share of funding for small businesses with furor than ten employees by nearly 60%. for business u.s. and rural communities, the share of funding is up almost 30% since we came to office. the share of funding that came through banks that traditionally helped minority-owned businesses is up nearly 40%. and today i'm announcing additional changes to the ppp program that will make sure we look out for the mom-and-pop businesses even more than we already have. as i explained to pilar and tim, the two small business people i spoke to, on wednesday the small business association is going to establish a 14-day exclusive ppp loan application period. for businesses and nonprofits

with fewer than 20 employees. people can go out and find how to get ahold of these loans. people can find out more at the sba.gov. small business administration will always remove barriers that have stopped many businesses from being able to apply for these loans. for example, we're making it so a student loan default or nonfraud criminal related record does not stop someone from applying for the program. we are also making it easier for one-person businesses like home repair contractors, beauticians, small independent retailers to secure forgivable ppp loans. at the same time, we're increasing access by increasing oversight. i invite any inspector general in this program, with jurisdiction over this program, to closely look at these loans

and report -- publicly report on any issues they uncover inconsistent what what i'm saying today. we will ensure every dollar is spent well. these changes will bring much-needed long overdue to help small businesses who really need help staying open. maintaining jobs and making ends meet. and this is a starting point. not the ending point. we need congress to pass my american rescue plan. it deals with the immediate crisis facing our small businesses. critics say the plan is too big. let me ask the rhetorical question. what would you have me cut? what would you have me leave out? it targets $50 million to support the hardest small businesses after this plan ends in march. would you not help invest in them? let them continue to go under? leave them out again like the

previous administration did? one of the things i have heard again and again from small business owners like pilar and tim is knowing about support is one thing, gaining access to it or getting it is another. that's why we propose $175 million to propose individual organizations to serve as navigators to help them through this application process. and a hotline available in multiple languages so folks can pick up a phone and get the help need to stay open and serve their community. again, the critics, it's too big. shall we stop spending money on them? do we need want a return on investment that we make in these businesses to be able to stay open and thrive and pay back? why would we not want to make sure small businesses lack teams of lawyers, bankers, and accountants have an advocate, someone they can rely on to help

them that's help that's for them now, will be there for them? the american rescue plan is a rescue plan for america's small businesses and america's mainstream businesses. and we need congress to pass it right away. i'm grateful for the senate and the house for moving so quickly. i want to be clear, i am prepared to hear ideas how to make the rescue plan better and cheaper. but we have to make clear who we are helping and who we would hurt. i always try to help people like tim and pilar and the country's families and workers and communities that depend on them to survive and recover and grow. and it's my hope, my hope, that as democrats and republicans who have backed the ppp program, that democrats and republicans will back the american rescue plan. the vast majority of american people, more than 70% of the american people, including a

majority of republicans want us to act based on all of the polling data. act big and act quickly. major economists, left, right and center here and abroad say we should focus on smart investments that can make jobs available and focus on the jobs and in the people, prevent long-term economic damage to our nation and to strengthen the economic competitiveness going forward. in fact, an analysis by wall street's firm moody's estimates if we pass by american rescue plan, the economy will create 7 million jobs this year. this year. we also have been in constant contact with the mayors and governors, county officials, members of congress of both parties in every state. that includes a letter i might add for more than 400 mayors from big and small cities,

democrat and republican. they agree we have to act and act now. they understand we're not going to get our economy back in shape and millions of people back to work until we beat this virus. getting our economy back means bringing our small businesses back and that's what we're going to do. that's what i'm doing today. we're going to focus. the program ends at the end of march but for the next two weeks, the only folks who can apply for that ppp money are businesses with fewer than 20 employees. thank you very much. >> vice president biden announcing what he announces are reforms to the ppp program, excuse me, president biden, having called him vice president for eight years, i apologize, president biden. obviously in the white house, back with us now, is nbc correspondent geoff bennett. geoff, president biden

announcing this plan he hopes will have bipartisan support. ppp was very popular but in practice what happened bigger companies who had private bankers, bankers with access to the program, the bankers got in quickly and the small business owners, he said, 400,000 small businesses have been crushed, have been closed during the pandemic. that is so telling given small businesses are the heartbeat, 90% of the businesses in america. >> that's right. you heard the president at the beginning of his remarks invoke this image of main street and he painted this vista of pizzerias and barbershops closed up. these are the things that really support communities, local mom-and-pop shop that support the little league team. and the larger point is the one you just made, these big businesses have teams of lawyers and bankers and accountants to help them access this money. continue it's one thing for

small business owners to know this money exists but different in terms of accessing it. beyond setting out this two-week period where small businesses with plenty employees or less can access this funding before big businesses. he also detailed this plan to have community assistance, help people access the money. there's also going to be a hotline, he says. so this is part of his overall effort to help get money out to small business owners and beyond that, the american people who so desperately need it. this was a two-pronged message. one outlining his plan to change the paycheck protection program to help small business owners. but, two, you heard by now i think is his most sort of forceful speech yet. he was tying together all of the talking points. we heard not just from the president but also from white house advisers in support of his nearly $2 trillion covid relief plan. the president asking those rhetorical questions to his critics, "tell me what i should cut, tell me what we don't

need." he's saying this $1.9 trillion is not a number that exists in the vacuum. the biden administration looked at the scale and breadth and need and came up with solutions and priced it all out. that's how they arrived at the $1.9 trillion. it includes $130 billion to help schools safely reopen, help schools access funding for better ventilation so teachers can have ppp. we also know about the $1,400 direct payment to americans who would qualify and whole host of things, andrea. . >> this comes as numbers of -- first of all, there's economic data that shows the recovery could be a lot stronger than has been predicted but this bounce-back is also coming with new numbers showing the real unemployment rate may be as high as 10% because of people who have given up and no longer trying to find jobs. a lot of these are from the

restaurant sector. this could be a whole lot popular than some of the other proposals in that package, because the way he framed it, middle america, small town america, main street. geoff bennett, thank you very much. thank you for all of that today. meanwhile, powerless has millions of texans continue to live without electricity following last week's winter storm. many getting hit by soaring utility bills they can't afford. that's coming up next. you're watching "andrea mitchell reports" on msnbc. (man) i'm a verizon engineer, part of the team that built 5g right, the only one from america's most reliable network. we designed our 5g to make the things you do every day better. with 5g nationwide, millions of people can now work, listen, and stream in verizon 5g quality. and in parts of many cities

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let's return to the merrick garland hearing because republican senator tom cotton is asking him about his views on the death penalty if timothy mcveigh, or a case like his, which he prosecuted for the justice department were up, because, of course, mcveigh was executed for what he did to oklahoma city. let's watch. >> and nothing inappropriate about it. it's within his authority to require an across-the-board moratorium. this is not -- what i was talking about was not a decision by the president in any particular case or the direction of how any particular case should go forward but of a moratorium which would apply as a policy across the board. the supreme court has held the death policy is constitutional but it's not required and that is within the discretion of the president. >> before i move on from the oklahoma city case, let me commend you again for your work

on it and say i believe timothy mcveigh deserved the death penalty. >> thank you, senator. >> another case involved dylan roof, a white supremacist from south carolina who went into an african-american church and kald nine african-americans in a racially motivated attack. president biden sought the death penalty against him and received it. do you believe that was a mistake? >> i'm sorry? >> do you believe it was a mistake to seek the death penalty against dylann roof for murdering nine african-americanses for murdering people in the church? >> i have a feeling i'm not supposed to be asking you questions but i think this is a still pending matter and cannot speak about that particular case. >> in that case -- >> i apologize for asking you. i know that's not my right. >> let's suppose another white supremacist asks into another african-american church and murders african-americans worshipping christ in cold blood. the u.s. attorney seeks the death penalty in that case. would you approve it? >> senator, it does depend on

what policy adopted going forward. i would not oppose a policy of the president because it's within his authority to put a moratorium on the death penalty in all cases. but instead to seek mandatory life without possibility of parole. without any consideration of the facts of any particular case. >> some on the left are calling for president biden to grant an across-the-board commutation to all federal death row inmates to reduce their sentences to life in prison. would you recommend to president biden he make an across-the-board commutation? >> this is one of the ones i would have to think about, in which i have not thought about. i would have to consult with the administration on such an across-the-board policy. i have not thought about that. >> thank you. i want to turn to racial equity. do you agree the core concept judge of american law that the

government cannot discriminate against a citizen based on their race? >> absolutely, equal justice under the law, written right there on the steps in the impediment above the supreme court. >> not only unlawful but morally wrong as well? >> yes, i think discrimination is morally wrong, absolutely. >> are you aware president biden signed an order that his administration will advance racial equity, not racial equality, but racial equity? >> yes, and i read the opening of that executive order, which defines equity as the fair and impartial treatment of every person without regard to their status, and including the individuals who are in -- who are in underserved communities, where they were not accorded that before. but i don't see any distinction between -- in that regard. that's the definition that was included in that executive order

that you're talking about. >> sir, do you believe racial equity and racial equality are the same thing? >> this is a word that's defined in the executive order as i just said it. so i don't know what else -- i can't give you any more than the way in which the executive >> senator booker. >> thank you, mr. chairman. judge garland, it's really good to see you sitting before the judiciary committee of the united states senate. >> thank you, senator. >> i'm really grateful. if you don't mind me starting with philosophy. there's the mica mandate which i'm not sure that you know. it's do justice, love mercy. >> that mandate, i do know. >> seems like a pretty good plan date for life. this idea of justice to me is fundamental to the ideals of nation founded with a lot of injustice at the time but the

brilliance of the imperfect geniuses of our founders who inspire to create a society that john lewis and others would have called the more beloved community. one of my, an activist i read a lot says what does love look like in public. it looks like justice. you have to, perhaps, one of the more important positions on the planet earth for frying to create a more just society. the issue of race, i was grateful in your opening remarks talked about your agency coming agent to deal with issues of justice in our nation. i want to talk to you about white supremacists violence which has been mentioned a lot. before i get there, i'm concerned with something that i consider pernicious and very difficult to root out, which is the realities of implicit racial bias that lead to larger systemic racism.

the issue of systemic racism is something argued over. if i can walk you through a second. does our justice system treat people equally in this country at this point? >> sadly and it's plain to me that it does not. >> i'm going to stop you there. we have a criminal system that treats you better if you're rich and guilty than if you're poor and innocent because ones finances makes a difference with what kind of justice ones get? >> it's no question there's different treatment in our justice system. massincarceration is a good example of this problem. we're incarcerating almost 25% of the world's pop yu of the world's poplation and we have something like 5% of the world's population. i don't think that's because americans are worse.

what delies that is the desperate the treatment of blacks and communities of color. >> one of the big things driving arrests in our country is marijuana arrests. we had in 2019, more marijuana arrests for possession than all violent crime arrests combined. when you break out that data and put it along racial line, it's shocking that an african-american has no difference in usage or selling than someone who is white in america but their likelihood of being arrested for doing things that two of the last four presidents admitted to doing is three to four times higher than somebody white. is that evidence that within the system there's implicit racial bias? yes or no. >> it's evidence of treatment in the system that does arise out of implicit bias.

understand conscious, maybe. some conscience. >> i think that's fair point. it results in the system. i've had great conversations with people on both sides of the aisle. we still have a system that treats people, every point. the station house adjustment which i know you know what that is which i've seen happened a maize your. people get called in and the police make a decision just leave and your parents come or whatever. station house adjustments to bail to sentencing. every analysis shown that race is still playing a specific influence in the justice that someone gets. you're aware of all of this? >> i am. this is particular part of the reason at this moment i wanted to be the attorney general. i want to do the best i can to stop -- >> i want to get to that. the point that a lot of my folks

are making you just made. it does not mean the people engaged in this are racist, overtly. they have an implicit racial bias that leads them to make difference decisions about different people, that's correct? >> yes. also, marijuana example is that you have given here. here is nonviolent crime that does not require us to incarcerate people. we're incarcerating at significantly different rates of different communities. that is wrong. it's the kind of problem that will then follow a person for the rest of their ever lives. it will make it impossible to get a job. it will lead to a downward economic spiral. >> to you point i cut you off on before. you're in an agency formed deal

with the systemic racism going on at that time. where you see african-americans being churned into the criminal justice system. it's concentrated if certain communities and not in others. where it has as american bar association says 40,000 collateral consequences on the lives of those african-americans where they can't get loans from banks, they can't get jobs, certain business licenses. it's so dramatic that their estimates it cost literally to african-americans in the persistence of a wealth gap in our country where black families have one tenth the wealth of white families. if you look at the impact of the law and the impact on marijuana, it's estimated to cost african-american communities in this country billions of dollars more. my question to you now is, assuming this position where you're called upon for that mica mandate, what are you going to do about this outrageous

injustice that persists and infects our society with such a toll on black and brown communities? >> there are many things that the justice department has to do in this regard. i completely agree. discrimination in health care availability. all of which we see now in the consequences of pandemic which affects communities of color enormously more with respects to infection rate, hospitalizations and to death. one set of things we can do is the mass incarceration kpamplg that i began with. we can focus on attention on violent crimes and other crimes that put great danger in our society and not allocate our resources to something like marijuana possession. we can look at our charging

policies and stop charging the highest possible offense with the highest possible sentence. >> i was taught in law school to never interrupt a judge. forgive me. i would like to end with this question and i my time is up. you talked to me a lot about your thoughts. it get backseat to me to your conviction in this issue. to go down as one of the great leaders when it comes to dealing with the daily, unconsciousable injustices faced by some americans at the hands of law enforcement. one thing you said to me private ly motivated me to believe you. i'm wondering if you can answer the question about your motivation and maybe some of your own family history in

confronting hate and discrimination in american history. >> yes, senator. i come from family where my grandparents fled anti-semitism and persecution. country took us in, and protected us. i feel an obligation to the country to pay back and this is the highest best use of my own set of skills to pay back. i want very much to be the kind of attorney general that you're saying i could become. i'll do my best to try to be that attorney general. >> i believe your heart. i'm grateful that you're living

that micah mandate. >> thank you, senator booker. i'm going to make motion to introduce record letters of support for judge garland's nomination. there are 25 different categories of letters to support. i'm struck immediately by the diversity of support that you have. 150 former attorneys general and top department of justice officials. alberto gonzalez, eric holder, lorretta lynch. dozens of former judge, former states attorney general. to have the national sheriff's soeshs, the fraternal order of police and the leadership conference on civil and human rights is an amazing political achievement. the list goes on.