Loretta Lynch to Senate: I Won’t Always Agree With Obama

The administration’s nominee for attorney general appeared before the Senate Judiciary Committee on Wednesday.

National Journal
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Marina Koren
Jan. 28, 2015, 6:12 a.m.

It’s the first day of Lor­etta Lynch’s con­firm­a­tion hear­ing, and Demo­crats want to make sure their Re­pub­lic­an col­leagues don’t make it about something else.

“I hope we all re­mem­ber that she is the nom­in­ee for at­tor­ney gen­er­al,” said Sen. Patrick Leahy of Ver­mont dur­ing the Sen­ate Ju­di­ciary Com­mit­tee hear­ing Wed­nes­day. “And that’s why I’m fo­cus­ing on her.”

Sen. Chuck Schu­mer of New York offered a sim­il­ar sen­ti­ment. “The pres­id­ent’s im­mig­ra­tion policies are not seek­ing con­firm­a­tion today,” he said. “Lor­etta Lynch is.”

Leahy, Schu­mer, and oth­er Demo­crats knew what to ex­pect from the GOP. Lynch faced tough ques­tions from Re­pub­lic­ans on the com­mit­tee, who wondered wheth­er she would be a stand-in for Pres­id­ent Obama’s policies, such as his ex­ec­ut­ive ac­tion on im­mig­ra­tion, or for the man she hopes to suc­ceed: Eric Hold­er.

At the start of the hear­ing, Sen­ate Ju­di­ciary Com­mit­tee Chair­man Chuck Grass­ley, a Re­pub­lic­an from Iowa, said that the Justice De­part­ment is “deeply politi­cized” right now. “But that’s what hap­pens when the at­tor­ney gen­er­al of the United States views him­self, in his own words, as the pres­id­ent’s ‘wing­man,’ ” he said, re­fer­ring to Hold­er. “I don’t ex­pect Ms. Lynch and I will agree on every is­sue. But I, for one, need to be per­suaded Ms. Lynch will be an in­de­pend­ent at­tor­ney gen­er­al­.”

Sen. John Cornyn, R-Texas, wondered wheth­er Lynch would fol­low in Hold­er’s foot­steps. “Let me for Sen. Schu­mer’s be­ne­fit—you’re not Eric Hold­er, are you?” he said, draw­ing laughter from the people in the room.

“No, I’m not,” Lynch said.

Cornyn con­tin­ued: “But At­tor­ney Gen­er­al Hold­er’s re­cord is heavy on our minds now. I agree with the chair­man about his con­cerns when the at­tor­ney gen­er­al refers to him­self as the pres­id­ent’s wing­man, sug­gest­ing that he does not ex­er­cise in­de­pend­ent leg­al judg­ment, as the chief law-en­force­ment of­ficer for the coun­try. You wouldn’t con­sider your­self to be a polit­ic­al arm of the White House as at­tor­ney gen­er­al, would you?”

“No, sen­at­or, that would be an in­ap­pro­pri­ate use of the—”

“I’m sorry, you’d be will­ing to tell your friends ‘no’ if, in your judg­ment, the law re­quired that?” Cornyn said.

“I think I have to be will­ing to tell not just my friends but col­leagues ‘no’ if the law re­quires it,” Lynch replied. “That would in­clude the pres­id­ent of the United States.” When Cornyn asked how Lynch would be dif­fer­ent than Hold­er, she said, “I will be my­self. Lor­etta Lynch.”

Lynch is look­ing to of­fer a fresh start to a GOP-con­trolled Con­gress, cast­ing her­self as an al­tern­at­ive to Hold­er, whose lib­er­al policies and out­spoken per­son­al­ity have led to dra­mat­ic clashes with Re­pub­lic­ans, cul­min­at­ing in Hold­er be­ing the first DOJ head to be held in con­tempt of Con­gress. “I look for­ward to fos­ter­ing a new and im­proved re­la­tion­ship with this com­mit­tee, the United States Sen­ate, and the en­tire United States Con­gress—a re­la­tion­ship based on mu­tu­al re­spect and con­sti­tu­tion­al bal­ance,” she said dur­ing her open­ing re­marks.

If con­firmed, her top pri­or­it­ies, Lynch said, would be strength­en­ing re­la­tion­ships between the pub­lic and law en­force­ment, in­vest­ig­at­ing and pro­sec­ut­ing ter­ror­ists, and en­han­cing the na­tion’s de­fenses against cy­ber­at­tacks.

In his ques­tion­ing, Grass­ley wondered wheth­er Lynch be­lieved that Obama has the leg­al au­thor­ity to stop de­port­a­tions for mil­lions of un­doc­u­mented im­mig­rants. Her an­swer was a meas­ured, round­about yes.

“I have had oc­ca­sion to look at the Of­fice of Leg­al Coun­sel opin­ion through which the De­part­ment of Home­land Se­cur­ity sought leg­al guid­ance there, as well as some of the let­ters from con­sti­tu­tion­al schol­ars who’ve looked at the sim­il­ar is­sue. And cer­tainly it seems to be a reas­on­able dis­cus­sion of leg­al pre­ced­ent. … I don’t see any reas­on to doubt the reas­on­able­ness of those views,” Lynch said.

However, she said, “I found it in­ter­est­ing, as I was read­ing the leg­al coun­sel opin­ion that some of the pro­pos­als that were set forth, and asked about, the Of­fice of Leg­al Coun­sel opin­ion did not, in fact, have a leg­al frame­work. And I don’t be­lieve that those were ac­tu­ally im­ple­men­ted. So I do think it is very im­port­ant that as the De­part­ment of Justice, through any of its agen­cies, the Of­fice of Leg­al Coun­sel, or in a dir­ect con­ver­sa­tion with the pres­id­ent, or any oth­er mem­ber of  the Cab­in­et, al­ways en­sure that they are op­er­at­ing from a po­s­i­tion of wheth­er or not there’s a leg­al frame­work that sup­ports the re­ques­ted ac­tion.”

Leahy men­tioned in­ter­rog­a­tion tac­tics in his line of ques­tion­ing. “The ef­forts to con­front acts of tor­ture car­ried out in our coun­try’s name—do you agree that wa­ter­board­ing is tor­ture?”

“Wa­ter­board­ing is tor­ture, sen­at­or,” Lynch replied.

“And thus il­leg­al?” Leahy fol­lowed up.

“And thus il­leg­al,” Lynch replied.

Sen. Jeff Ses­sions, R-Ala., wanted to know wheth­er Lynch would emu­late Hold­er’s close re­la­tion­ship with Obama. “Just so you un­der­stand that your role is such that on oc­ca­sion you have to say no to the per­son who ac­tu­ally ap­poin­ted you to the job and who you sup­port?”

“Sen­at­or, I do un­der­stand that that is, in fact, the role and the re­spons­ib­il­ity of the at­tor­ney gen­er­al,” Lynch said. “In fact, a ne­ces­sary ob­lig­a­tion on their part.”

On Obama’s new im­mig­ra­tion policy, Ses­sions said, “I un­der­stand that you sup­port the ex­ec­ut­ive or­der. Is that cor­rect?”

“I don’t be­lieve my role at this point is to sup­port or not sup­port it,” Lynch re­spon­ded. “My re­view was to see wheth­er or not it did out­line a leg­al frame­work for some of the ac­tions that were re­ques­ted. As noted, it in­dic­ated there was not a leg­al frame­work for oth­er ac­tions that were re­ques­ted.”

Sen. Lind­sey Gra­ham, R-S.C., asked about Lynch’s opin­ion on the death pen­alty. “Do you sup­port the death pen­alty?”

“I be­lieve the death pen­alty is an ef­fect­ive pen­alty,” Lynch said. “My of­fice was able to achieve a death ver­dict there—”

“How about yes?” 

“So, we have sought it, yes,” Lynch replied.

Lynch called the Na­tion­al Se­cur­ity Agency’s sur­veil­lance pro­grams “con­sti­tu­tion­al and ef­fect­ive.” She said marijuana is “still a crim­in­al sub­stance un­der fed­er­al law,” des­pite its leg­al­iz­a­tion in sev­er­al states. In re­sponse to a ques­tion from Ses­sions about Obama’s view of marijuana as a “bad habit and a vice,” Lynch spoke more force­fully.

“I can tell you that not only do I not sup­port leg­al­iz­a­tion of marijuana, it is not the po­s­i­tion of the De­part­ment of Justice cur­rently to sup­port the leg­al­iz­a­tion nor would it be the po­s­i­tion should I be­come con­firmed as at­tor­ney gen­er­al,” she said.

On Wall Street, Lynch said, “No in­di­vidu­al is too big to jail.”

Lynch cur­rently serves as the U.S. At­tor­ney in Brook­lyn. If con­firmed, she would be the first black fe­male at­tor­ney gen­er­al.

As law­makers ex­ited the room for a brief lunch re­cess, Leahy could be heard on his mi­cro­phone say­ing, “I don’t know that I’ve been so moved by any nom­in­ee on any­thing.”

Sev­en hours in­to the hear­ing, Grass­ley cracked a joke. “I hope when we’re done here that you don’t get this at­ti­tude that the way this chaot­ic place is run, why should you be work­ing with the Con­gress of the United States? It doesn’t al­ways work this way. Little tongue in cheek.”

“Well, sen­at­or, it’s been a priv­ilege to watch the peace­ful trans­fer of power that’s go­ing on this af­ter­noon,” Lynch joked back.

This story has been up­dated with more in­form­a­tion.

Contributions by Priscilla Alvarez