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Inside Politics

Senate Confirmation Hearings. 12-12:30p ET

Aired January 10, 2017 - 12:00   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

[12:00:00]

SEN. CHUCK GRASSLEY (R), IOWA: OK. Thank you, Senator.

So then, now Senator Whitehouse?

SEN. SHELDON WHITEHOUSE (D), RHODE ISLAND: Senator Sessions, hello.

SEN. JEFF SESSIONS (R-AL), NOMINEE FOR ATTORNEY GENERAL: Thank you, Senator Whitehouse.

WHITEHOUSE: When we met, I told you that I was going to ask you a particular question. So I'm going to lead off with that particular question.

Following the Gonzales scandals at the Department of Justice; the department adopted procedures, governing communications between the White House and the Department of Justice; consistent with constraints that were outlined years ago in correspondence between Senator Hatch and the Reno Justice Department. Limiting contacts between a very small number of officials at the White House and a very small number of officials at the Department of Justice.

Will you honor and maintain those procedures at the Department of Justice?

SESSIONS: I will, Senator Whitehouse. You, as an honorable and effective United States attorney yourself, know how that works and why it's important. Attorney General Mukasey issued a firm, very...

(CROSSTALK).

WHITEHOUSE: Yes.

SESSIONS: ... may be still pending. And I would say to you, well that's the appropriate way to do it. I read -- after you and I talked I read Reno memorandum, the Gorelick (ph) memorandum. And I think I would maintain the -- those rules.

WHITEHOUSE: On the subject of honorable prosecutions, when is it appropriate for a prosecutor to disclose derogatory investigative information about a subject who was not charged?

SESSIONS: That's a very dangerous thing and it's a pretty broad question as you've ask it. But you need to be very careful about that and there are certain rules like grand jury rules that are very significant.

WHITEHOUSE: And isn't it also true that it is customary practice, because of the concern about the improper release of derogatory investigative information; that the department customarily limits its factual assertions, even after an individual has been charged, to the facts that were charged in the information or the indictment.

SESSIONS: I believe that's correct, yes. That's a standard operating policy in most offices. Now there may be some exceptions, but I think that's standard operating procedure in the United States attorney's offices like you and I had.

WHITEHOUSE: As a question of law, does waterboarding constituted torture?

SESSIONS: Well, there was a dispute about that when we had had the torture definition in our law. The Department of Justice memorandum concluded it did not necessarily prohibit that. But Congress has taken an action now that makes it absolute improper and illegal to use waterboarding or any other form of torture in the United States by our military and by all our other departments and agencies.

WHITEHOUSE: Consistent with the wishes of the United States military.

SESSIONS: They have been supportive of that. And in fact, I'll just take a moment to defend the military. The military never...

(CROSSTALK)

WHITEHOUSE: You don't need to defend them from me, I'm all for our military.

SESSIONS: I know, but I just -- most -- so many people, I truly believe, think that the military conducted waterboarding. They never conducted any waterboarding, that was by intelligence agencies. Their rules were maintained. I just to teach the Geneva conventions and the rules of warfare as an Army Reservist to my personnel, and the military did not that.

WHITEHOUSE: And General Petraeus sent a military wide letter disavowing the value of -- of torture, as we -- as we both know. Another question -- another question as a matter of law; is fraudulent speech protected by the First Amendment?

SESSIONS: Well, fraudulent speech, if it amounts to an attempt to obtain a thing of value for the person the fraudulent speech is directing...

WHITEHOUSE: Which is an element of fraud...

SESSIONS: ... absolutely -- fraud and can be prosecuted. And I think we see too much of that. We see these phone calls at night to elderly people, we see mail -- mailings go out that seem to be to be awfully far from truth and seducing people to probably make unwise decisions. WHITEHOUSE: So fraudulent corporate speech would also not be protected by the First Amendment.

SESSIONS: That is correct. And it's subject to civil and/or criminal complaint.

WHITEHOUSE: And speaking of civil complaints; was the Department of Justice wrong when brought and won the civil RICO action against the tobacco industry?

SESSIONS: Well, Senator, they won those cases. They took them to court and eventually won a monumental victory, that is correct. And it's part of the law...

[12:05:06]

WHITEHOUSE: Hard to say that...

SESSIONS: ... and firmly established.

WHITEHOUSE: Hard to say they were wrong if they won, right?

SESSIONS: That's correct.

WHITEHOUSE: As you know, the United States has retaliated against Russia for its interference with the 2016 elections. In Europe, Baltic States, Germany and Italy have raised concerns of Russia meddling in their country's elections.

I know this has been touched on before, but I want to make sure it's clear. Will the Department of Justice and the FBI under your administration be allowed to continue to investigate the Russian connection, even if it leads to the Trump campaign and Trump interests and associates?

And can you assure us that in any conflict between the political interests of the president and the interests of justice, you will follow the interests of justice, even if your duties require the investigation and even prosecution of the president, his family and associates?

SESSIONS: Well, Senator, why ask? If the laws violated and they can be prosecuted then of course you'll have to handle that in an appropriate way.

I would say that they problem may turn out be, as in the Chinese hacking of our -- hundreds of thousands of -- maybe millions of records, has to be handled at a political level. And I do think it's appropriate for a nation who feels that they've been hacked and that information has been improperly used to retaliate against those actions.

It's just a...

WHITEHOUSE: And I know we share a common interest in advancing the cybersecurity of this nation and I look forward to continuing to work with you on that.

Let me ask you a factual question. During the course of this boisterous political campaign, did you ever chant, "lock her up?"

SESSIONS: No I did not. I don't think. I heard it in rallies and so forth, sometimes I think humorously done. But it was a matter that I -- have said a few things -- a special prosecutor, I favored that. I think that probably is one of the reasons I believe that I should not make any decision about any such case.

WHITEHOUSE: And you understand that the good guy law man in the movies is the one who sits on the jailhouse porch and doesn't let the mob in?

SESSIONS: Exactly. Exactly.

WHITEHOUSE: So I'm from Rhode Island, as you know Senator. We have NAACP and ACLU members who've heard you call their organization -- who've heard that you called their organizations un-American.

We have a vibrant Dominican community who look at Big Papi, David Ortiz, swinging his bat for the Red Socks and wonder why you said, quote, "almost no one coming from the Dominican Republic to the United States is coming here because they have a provable skill that would benefit us."

I represent a lot of Latinos who worry about modern day Palmer Raids breaking up parents from their kids. And Muslims who worry about so called patrols of Muslim homes and neighborhoods.

And I've heard from police chiefs who worry that you, as attorney general, will disrupt law enforcement priorities that they have set out. And disrupt the community relations that they have worked hard over years of community engagement to achieve.

Time is short, but I noticed that in your prepared remarks these are not unforeseeable concerns. And your prepared remarks did very little to allay the concerns of those people.

Is there anything you'd like to add now in our closing minute?

SESSIONS: Well, thank you. The -- my comment about the NAACP arose from a discussion that I had where I expressed concern about their statements that were favoring, as I saw it, Sandinista efforts and communist guerrilla efforts in Central America.

And so I said they could be perceived as un-American and weaken their moral authority to achieve the great things they had been accomplished in -- in integration, in moving forward for reconciliation throughout the country.

And I believe that, clearly. And I never said and accused them of that. Number two, with regards...

WHITEHOUSE: So what would you tell (inaudible) of the NAACP in Rhode Island right now? He's head of the NAACP. SESSIONS: Well, I would say, please, look at what I've said about that and how that came about and it was not in that context, it was not correct. I said in 1986 that NAACP represents one of the greatest forces for reconciliation and racial advancement of any entity in the country, probably number one. That's what I said then, I believed it and I believe it now and it's an organization that has done tremendous good for us.

[12:10:19]

With regard to the Dominican Republic, I had gone on a CODEL with Senator Specter. We came through the Dominican Republic. We visited public service housing projects that seemed to be working and did other things of that nature. And I went and spent some time with the consular official there, just ask him about things. And what I learned was, that there's a good bit of fraud in it and he was somewhat discouraged in his ability to -- he felt to do his job.

And we also understood and discussed that the immigration flow is not on a basis of skills. Immigration flow from almost all of our countries, frankly, is based on a family connection and other visas rather than a skilled-based program more like Canada has today, and that's all I intended to be saying there.

I -- I -- it's -- tell anybody that heard that statement, please don't see that as a diminishment or a -- a criticism of the people of the Dominican Republic. It was designed to just discuss, in my remarks, the reality of our immigration system today. I'd like to see it more skilled-based and I think that would be helpful.

WHITEHOUSE: Mr. Chairman, my time's expired. Thank you for your patience.

GRASSLEY: Thank you, Senator Whitehouse.

Before I go to Senator Lee, there's an evaluation of the work of Senator Sessions during his time as U.S. attorney that I speak -- I think speaks to his outstanding record. I'm made aware of this because Senator Feinstein requested an evaluation of Senator Sessions' office from the Department of Justice and I'd note just a few points from their evaluation back in 1992, a couple of short sentences.

"All members of the judiciary praise the U.S. attorney for his advocacy, skills, integrity, leadership of the office and accessibility." And the second quote, "The USAO for the Southern District of Alabama is an excellent office with outstanding leadership, personnel and morale. The district is representing the United States in a most capable and professional manner."

Without objection, we'll put that in the record.

Senator Lee.

(UNKNOWN): Mr. Chairman, while we're putting things into the record, could I join...

GRASSLEY: Yes, please do that.

(UNKNOWN): ... and ask unanimous consent that a December 5, 2016 letter from leaders of the U.S. Environmental Movement and a January 5, 2017 letter from the National Task Force to End Sexual Violence and Domestic Violence Against Women be added to the record?

GRASSLEY: Yes. And those will be included without objection.

Senator Lee.

SEN. MIKE LEE (R), UTAH: Hello, Senator Sessions.

SESSIONS: Hello.

LEE: I've enjoyed working with you over the last six years and always found you to be someone who treats colleagues, regardless of differing viewpoints, with dignity and respect. You've taught me a great deal in the six years I've been here and I've appreciated the opportunity to work with you. I think a lot of this has to do with the fact that we're both lawyers, although being a lawyer around here, certainly having a law degree, is not unusual.

One of the things that sets you apart and makes you different, I get the sense from you that you think of yourself not so much as a senator who used to be a lawyer, but as a lawyer who is currently serving as a senator. And I think that's an important thing, especially for someone who's been named to be the next attorney general of the United States.

Even though you and I have never had the opportunity to discuss the intricacies of the rule against perpetuities or the difference between the doctrine of worthier title (ph) in the rule in Shelly's (ph) case, I get the sense that you would eagerly engage in such banter when the occasion arises. So maybe in a subsequent round, we'll have the opportunity to do that.

But this does raise a -- a discussion that I'd like to have with you about the role of the lawyer. As you know, a -- a lawyer understands who his or her client is. Anytime you are acting as a lawyer, you -- you've got a client. This is a simple thing if you're representing an individual because in almost every instance, unless the client is incapacitated, you know who the client is. The client has one mouthpiece, one voice, and you know what the interests of that client are and you can evaluate those based on the interests expressed by the client.

I gets a little more complicated when you're representing a corporate entity. Typically, you'll interact either with a general counsel or the chief executive officer. The bigger an entity gets, the it gets. There might be some ripples in this relationship between the lawyer and the client.

[12:15:06]

In the case of the U.S. government and the attorney general's representation of that client, this is a particularly big and powerful client, and that client has many interests. In a sense, the client is, of course, the United States of America, but at the same time the attorney general is there, put in place by the president of the United States and serves at the pleasure of the president of the United States.

And so, in that respect, the attorney general has several interests to balance and must at once regard him or herself as a member of the president's Cabinet, remembering how the attorney general got there and can be removed at any moment by the president. And at the same time, the attorney general has the obligation to be independent, to provide an independent source of analysis for the president and for the president's team and Cabinet.

How do you understand these things as a former U.S. attorney, as a former line prosecutor and as a senator who served on the Judiciary Committee? You've had a lot of opportunities to observe this process. How do you see the proper balancing between all these interests from the standpoint of the attorney general?

SESSIONS: That's a very insightful or probing question, and it touches on a lot of important issues that we, as attorney general, would need to deal with.

There are even sometimes these government agencies, like foreign countries, they negotiate memorandums of understanding that are akin to a treaty actually. They can't seem to work together, often times, in an effective way, and so the attorney general is required to provide opinions on that. The attorney general ultimately owes his loyalty to the integrity of the American people and to the fidelity to the Constitution and the legitimate laws of the country. That's what he's ultimately required to do.

However, every attorney general has been appointed by a president, or they wouldn't become attorney general. And they've been confirmed by the Senate or they wouldn't be made attorney general. And so, they do understand, I think, that if a president wants to accomplish a goal that he or she believes in deeply, then you should help them do it in a lawful way, but make clear and object if it's an unlawful action. That helps the president avoid difficulty. It's the ultimately loyalty to him.

And you hope that a president -- and I hope President-elect Trump has confidence in me so that if I give him advice, that something can be done or can't be done, that he would respect that. That's an important relationship too. But ultimately, you are bound by the laws of the country.

LEE: Some of that, I assume, could come into play when you're dealing with a politically sensitive case or a case that is politically sensitive because it relates to a member of the administration or to the interplay between the executive branch and the legislative branch for example.

In some of those instances, there could be calls for a special prosecutor. On the one hand, this is a way of taking the attorney general out of the equation so that it can be handled in a manner that reflects a degree of separation between the administration and -- and the case. On the other hand, there are constitutional questions that are sometimes raised and sometimes people argue that this place is too much of a presumption that a special prosecutor will seek an indictment in order to justify the expense and the time put into appointing a special prosecutor.

For reasons that relate to the complexity of these considerations, there are of course guidelines in place that can help guide the determination to be made by the attorney general as to when, whether, how to put in place a special prosecutor. But even within these guidelines, there's a lot of flexibility, a lot of discretion at the hands of the attorney general in deciding how to do that.

Do you have anything you -- that you would follow? What can you tell us about what considerations you would -- would consider in deciding whether or not to appoint a special prosecutor?

SESSIONS: Well, it is a -- not a little matter. It is a matter that's created controversy over the years.

I don't think it's appropriate for the attorney general just to willy nilly create special prosecutors. History has not shown that has always been a smart thing to do. But there are times when objectivity is required and the absolute appearance of objectivity is required, and perhaps, a special prosecutor is appropriate.

[12:20:05]

SESSIONS: It -- the -- Attorney General Lynch, for example, did not appoint a special prosecutor on the Clinton matter and I did criticize that.

I was a politician. We had a campaign on. I didn't research the law in depth; it was just the reaction as a senator of a concern.

But there are -- should be -- great care should be taken in deciding how to make the appointment or if an appointment of a special prosecutor is required.

The Department of Justice, you're not required to be a judge, to be a prosecutor. One judge said there's nothing wrong with a prosecutor who likes his work and doesn't think laws should be violated. Is that a bias? I don't think so, I think that's strength. So I just would say that's kind of the way -- the best I can give you at this point, Senator Lee.

LEE: Thank you. That's helpful.

Another challenging issue that relates to this duty of independence that attorneys general have relates to the Office of Legal Counsel. You know, it's of course -- the job of the Office of Legal Counsel, or OLC, as it's sometimes known, to issue opinions within the executive branch in a wide array of subjects. Some are subjects that a lot of people would find interesting.

Others are subjects that only a lawyer could love. And sometimes only a lawyer specializing in something esoteric or specific. There's -- one recent OLC opinion entitled "Completive Bidding Requirements Under the Federal Highway Aid Program," there aren't perhaps that many people who would find that interesting, but there are a lot of others that would capture immediately the public's interest.

What's significant about all of these though, no matter how broad or narrow the topic, no matter how politically sexy or dull the topic might be, they, in many instances almost conclusively resolve a legal question within the executive branch of government. And in many instances they're doing so on the basis of constitutional determinations that may or may not ever be litigated.

Such that the broaching of a constitutional topic might opened, studied and resolved entirely within the executive branch, largely as a result of how the lawyers within the Office of Legal Counsel decide to do their jobs.

What -- what can you tell me about what you would do, if confirmed, to ensure that the Office of Legal Counsel maintains degree of professional and independence requisite for this task?

SESSIONS: Senator Lee, that office is important. It does adjudicate or actually opine on important issues related to conflicts of disputes within the great executive branch of the American government. Like you said, what kind of competition is required before you get a highway grant? There may be disagreement about that. OLC has asked to review it, and -- and stayed at one position. The government of the United States is wanting to. It's not a multiple government. These departments are not independent agencies.

And so that does -- that office is so exceedingly important as you indicate, because many times those opinions hold and they set policy and they effect things. Sometimes it also has the power and I'm sure you would be sensitive to, to expand or constrict the bureaucracies in their ability to execute under statutes.

In other words, is this within their power or is it not within their power? So there's some of the things like that that can impact the American people overtime in a significant way.

LEE: Thank you.

GRASSLEY: Senator Klobuchar?

SEN. AMY KLOBUCHAR (D), MINNESOTA: Thank you very much, Mr. Chairman.

Good to see you Senator Sessions. You and I have worked together on a number of bills, including leading the International Adoption Simplification Act, which I believe made a big difference to a lot of families in keeping their siblings together when they were adopted.

Senator Cornyn and I led the sex trafficking bill that passed last year and you have some important provisions in that. And then we worked together on law enforcement issues and I appreciate your respect and support that you have from the community and I also thank you for your work on drug courts. It's something we both share as former prosecutors and believe in the purpose of those courts. KLOBUCHAR: But I wanted to lead first with another part of the Justice

Department's jobs and that's protecting civil rights and the right to vote. My state has the highest voter turnout in the last election of any state. We're pretty proud of that. And as county attorney for eight years, from Minnesota's biggest county, I played a major role in making sure that the election laws were enforced and that people who were able to vote could vote and that people who shouldn't vote, didn't vote.

[12:25:18]

Since the Voting Rights Act became law more than 50 years ago, we've made progress, but I've been very concerned about some of the movement by states to restrict access to voting in recent years. We haven't been able to pass the bipartisan Voting Rights Advancement Act forward last Congress and I just think it's an area that's going to be ripe for a lot of work going forward.

You and I talked about how at one point, you previously called the Voting Rights Act an intrusive piece of legislation and I wondered if you could explain that as well as talk about how you will actively enforce the remaining pieces of the act. That would be section two which prohibits voting practices or procedures that discriminate on the basis of race and section three, bail in (ph) provision through which most states can be subject to preclearance.

And you don't have to go into great detail on those two sections, you could do it later. But if you could just explain your views of the Voting Rights Act moving forward and what would happen in terms of enforcement if you were attorney general?

SESSIONS: The Voting Rights Act passed in 1965 was one of the most important acts to deal with racial difficulties that we face and it changed the whole course of history, particularly in the south. There was a clear finding that there was discriminatory activities in the south, that a number of states was systematically denying individuals the right to vote. And you go back into the history and you can see it plainly.

Actions and rules and procedures were adopted in a number of states with the specific purpose of blocking African-Americans from voting and it was just wrong. And the Voting Rights Act confronted that and it in effect targeted certain states and required any -- even the most minor changes in voting procedure, like moving a precinct across...

KLOBUCHAR: So how would you -- how would you approach this going forward? For instance, the fifth circuits decision that the Texas voter ID law discriminates against minority voters. That was written by a Bush appointee. Do you agree with that decision? How would you handle this moving forward?

SESSIONS: Well, I have not studied that. There's going to be a debate about it. Courts are ruling on it now and that is voter ID and whether or not that is an improper restriction on voting that adversely impacts disproportionally minority citizens. So that's a matter that's got to be decided. On the surface of it, it doesn't appear to me to be that. I have publicly said I think voter ID laws properly drafted are OK. But as attorney general, it will be my duty to study the facts in more depth, to analyze the law. But fundamentally, that will -- can be decided by Congress and the courts as they interpret the existing law.

I did vote to extend the Voting Rights Act several years ago. I thought -- and it included section five, but later section five was eliminated by the Supreme Court on the basis that...

KLOBUCHAR: And how about the...

SESSIONS: ... progress had been made and this -- and our intrusive question, let me answer that.

It is intrusive. The Supreme Court on more than one occasion has described it legally as an intrusive act because it only focused on a certain number of states. And normally, when Congress passes a law, it applies to the whole country. So it's a very unusual thing for a law to be passed that targets only a few states. But they had a factual basis. They were able to show that it was justified in this fashion.

So that's the foundation for it and that's why I supported it -- its renewal.

KLOBUCHAR: And I think you'll understand as you look at this issue that there are many voters, people who are trying to vote that view some of these rules that are put in place as intrusive for them because it makes it harder for them to vote. And I think that is the balance that you're going to need.

(CROSSTALK)

KLOBUCHAR: And I just -- I hope -- I just -- coming from a state that has such high voter turnout, that has same day registration, very good turnout in Iowa as well, right below us, states that have put in place some really expansive voter laws and it doesn't mean Democrats always get elected. We've had Republican governors in Minnesota. We have a Republican governor in Iowa. And I just point out that I think the more that we can do to encourage people to vote, the better democracy we have.

KLOBUCHAR: And I want to turn to another quick question on a democratic issue as in (ph) a democracy issue that was raised by Senator Graham, and as Senator Whitehouse, I just returned with Senator's McCain and Graham from a trip to Ukraine, Baltics, Georgia, and learned there about how these intrusive cyber attacks are not just unique to our country, not just unique to one party, not just unique to one election. And they've seen that movie before in those countries.

And do you have any reason to doubt the accuracy of the conclusion reached by our 17 intelligence agencies that in fact Russia used cyber attacks to attempt to influence this last election? I'm not asking if you believe it influenced it, just if you believe the report of our intelligence agencies. SESSIONS: I have no reason to doubt that and have no evidence that

would indicate otherwise.

KLOBUCHAR: Thank you.

Violence Against Women Act, Senator Leahy asked some of those questions really important to me. You and I discussed it. I just have one question there. If confirmed, will you continue to support the lifesaving work being done by the Office on Violence Against Women?

SESSIONS: Yes.

KLOBUCHAR: OK. Thank you.

Immigration, you and I have some different views on this and I often focus on the economic benefits of immigration, the fact that we have 70 of our Fortune 500 companies headed by immigrants. At one point, 200 of our Fortune 500 companies were either formed by immigrants or kids of immigrants. Roughly 25 percent of all U.S. Nobel laureates were foreign born.

And just to understand in a state like mine where we have entry level workers in dairies (ph) are immigrants, major doctors at the Mayo Clinic, police officers who are Somali, if you see that economic of immigrants in our society.

SESSIONS: Well, immigration has been a high priority for the United States. We've been a leading country in the world in accepting immigration. I don't think American people want to end immigration.

I do think that if you bring in a larger flow of labor than we have jobs for, it does impact adversely the wage prospects and the jobs prospects of American citizens. I think as a nation, we should evaluate immigration on whether or not it serves and advances the nation interests, not the corporate interests.

It has to be the peoples interests first and I do think too often we've -- Congress has been complacent in supporting legislation that might make businesses happy, but it also may have had the impact of pulling wages down. Dr. Borjas at Harvard has written about that. I think he's the world's perhaps most effective and knowledgeable scholar and he says that does happen, wages can be diminished.

And one of the big cultural problems we have today is middle class and lower class Americans have not -- lower class (ph) economically -- are not having the wage increases that we'd like to see them have. In fact, since 2000, wages are still down from what they were in 2000.

KLOBUCHAR: I just see that we can do a mix of making sure that we have jobs for people here and then understanding that we're a country of immigrants.

SESSIONS: On that subject, you're familiar with Canada.

PROTESTER: (OFF-MIKE)

KLOBUCHAR: OK.

PROTESTER: And we are people of America. You have (inaudible). You are supported by hate groups (inaudible).

KLOBUCHAR: Mr. Chairman, if I could just have another 30 seconds here, I had one -- one last question.

SESSIONS: Maybe 45 seconds, Mr. Chairman.

I would just that you've come up close to the Canadian system, I think maybe some of those policies ought to be considered by the United States.

PROTESTER: (OFF-MIKE)

KLOBUCHAR: My last question, Mr. Chairman, is on the reporters issue. Free press, I believe, is essential to our democracy and I've always fought to ensure that those rights aren't compromised. My dad was a reporter, a newspaper reporter for years, and I'm especially sensitive to the role of the press as a watchdog.

You've raised concerns in the past about protecting journalists from revealing their sources. You did not support the Free Flow of Information Act. In 2015, the attorney general revised the Justice Department rules for when federal prosecutors can subpoena journalists or their records and he also committed to releasing an annual report on any subpoenas issues or charges made against journalists and committed not to put reporters in jail for doing their job.

If confirmed, will you commit to following the standards already in place at the Justice Department? And will you make that commitment not to put reporters in jail for doing their jobs?

[12:30:00]