▶ 0:14:37>> good morning everybody, I want to welcome all of you folks to this hearing to consider the nominations of john eisenberg to serve as assistant attorney general for national security, brett shumate, and patrick davis who I know quite a bit about to
▶ 0:15:08Serve as assistant attorney general to the office of legislative affairs. Each of the nominees before us today has impressive qualifications and we are looking forward to hearing from all of you. I'd like to thank your family and friends for coming today and I know how proud they are of you for being here in the position you've been appointed to. Mr.
▶ 0:15:33Eisenberg, you have impressive academic qualifications, and degree from stanford in mathematics, yale law school, and you clerked in the fourth circuit and later for justice thomas.
▶ 0:15:53Your academic pedigree is coupled with extensive experience in national security roles from 2004-2009, you served with distinction at the justice department, focusing on national security intelligence and counterterrorism. For your service you receive the attorney general's award for excellence and two intelligence committee legal awards.
▶ 0:16:18You then spent time as a partner of kirkland and ellis and you did that before leaving your successful practice to serve your country again at the white house. You served with legal distinction and received awards for your service as legal advisor to the national security council, assistant to the president and deputy consul to the president for national
▶ 0:16:49Security affairs. So there is little doubt that you will bring great experience and expertise to the national security division. Your nomination has been praised by bipartisan groups, of former assistant attorneys general at the national security commission including matthew olson, who served in the biden administration. Mr. shumate, you are well suited to serve as head of the civil division.
▶ 0:17:21You started your legal career clerking judge jones, fifth circuit, and entered private practice for pursuing civil litigation and administrative law. In 2017 you were appointed deputy assistant attorney general and in that role you vigorously defended the rule of law and litigated issues involving federal agencies and the administration.
▶ 0:17:51After your time at the justice department you returned to private practice for the better part of a decade before returning to the justice department as the acting head of that civil division. I have no doubt that your service and government has prepared you well for the role you have to nominated for. And Mr.
▶ 0:18:15Davis, I just got done saying a little bit of value so I'm going to take this opportunity to introduce you before a couple of my colleagues will introduce the other two. You are no stranger to the relief been nominated to. As I well know you are extremely qualified to serve as head of the office of legislative affairs.
▶ 0:18:37You started your career in private practice, but you soon joined the department of justice to litigate complex cases for most of the obama administration. While there, you gained an understanding of how the justice department works from the litigators perspective, and of course I'm told you met your wife there as well.
▶ 0:19:04A little over six years later you joined my staff is the investigative consul and we worked on a lot together in our search for truth for the american people. We worked tirelessly to combat the weaponization of justice and to defend our nations laws. You were instrumental in my investigation into planned parenthood violating federal law.
▶ 0:19:32Because of your work the public could see the shocking discoveries for what they actually are rather than the false narrative. You also worked with me to show that crossfire hurricane was based on fraudulent, discredited information, actually paid for by the democratic national committee and the clinton campaign.
▶ 0:19:58As a reward for your efforts to uncover the truth, the department of justice secretly subpoenaed your records. You can personally targeted for doing the right thing. When you left my office you went on to serve the first trump administration where you worked on congressional oversight and villages liberty taskforces.
▶ 0:20:20Since then you've gained valuable experience, working hard to uncover the truth about covid-19 pandemic origins and the private sector. But the thread that ties your service together is courage of your convictions. You stand up for liberty, equal application of law, values that I know you will bring in your new role.
▶ 0:20:46I'm happy to see you go back to the department and I know that you are ready for whatever that department throws at you. Indeed, I'm going to throw a thing or two at you now as you are well aware. I'm a rather frequent correspondent with the department of justice and I look forward to you again in the service of the country fulfilling answers to my questions.
▶ 0:21:14The three nominees before us have impressive careers and I look forward to hearing from them today.
▶ 0:21:23Senator Durbin: I want to take a moment to speak about the federal judiciary by president trump his allies. Last week president trump called for the impeachment of a federal judge simply because he ruled against the administration. He characterized that judge as a lunatic. The president was not alone.
▶ 0:21:46Senator Durbin: Elon musk, the unelected copresident and the richest person in the world has demanded the impeachment of federal judges dozens of times and house republicans quickly bend the knee and rushed to introduce articles of impeachment. I understand members of the senate are also cheering on that effort. In response to this unprecedented attack on the fair judiciary, chief justice roberts a rare statement.
▶ 0:22:13Senator Durbin: For more than two centuries it has been established that impeachment is not an appropriate response to disagreement concerning a judicial decision. The normal appellate review process exists for that purpose. We cannot afford to wait and see if this president formally announces he will defy a court order. We must respond to this dangerous attack on airports and judges now.
▶ 0:22:37Senator Durbin: Some right-wing advocates have argued that impeachment is necessary because of the number of injunctions issued against president compared to other presidents. They claim that this is evidence that federal judges are biased against this president. I would suggest there is a simpler and more plausible explanation. The number of injunctions issued against first and second trump administration's is evidence of a president who repeatedly tests or violates the law.
▶ 0:23:08Senator Durbin: The danger posed by the trumpet ministrations attack on the judiciary is not abstract. I recall when there is a demonstration outside the home of a supreme court justice, we heard over and over again that we should never condone violence in the pursuit of political goals. I joined in that chorus on a bipartisan basis and hope to hell that my colleagues on the committee will do that today because we have a series attack on the judiciary taking place. It's not abstract.
▶ 0:23:42Senator Durbin: There been increased threats to the lives of judges and their families. This is unacceptable in a constitutional democracy. We can debate the value of nationwide injunctions and the merits of any particular judiciary decision, but violence or threats of violence whether from the right or the left on the political spectrum are never, never acceptable. I urge all my colleagues on both sides of the aisle to join the in opposing this ongoing attack on the judiciary.
▶ 0:24:11Senator Durbin: Unfortunately attorney general bondi and other officials have repeatedly shown that they will not defend the separation of powers. Their loyalty lies with the president. It should lie with the american people and the constitution. The loss of an independent department of justice is not only a threat to the rule of law, it makes our country less safe. This is especially true of our national security. Since the start of this administration, every senior career national security division official has been removed from that position.
▶ 0:24:42Senator Durbin: Every one of them. Following this purge, one former official said and I quote "there's literally no one at home, the lights are off." that is a disturbing statement that reflects a serious problem that cannot be easily fixed. Among today's nominees is john eisenberg who dropped by my office yesterday. We had an opportunity to discuss his aspiration to be leading the national security division. I hope for the sake of the nation that Mr.
▶ 0:25:11Senator Durbin: Eisenberg is willing to place country above any personal allegiance to any political figure. We are also going to hear from patrick davis, nominee to lead the office of legislative affairs. At our confirmation hearing, attorney general bondi committed to chair grassley that she or her top staff would "personally review oversight requests from all members of the committee and do "everything we can to respond to you." I've sent more than 20 oversight
▶ 0:25:43Senator Durbin: Requests to the trump administration. I've yet to receive a single meaningful response to the vast majority including seven to the justice department. When the shoe was on the other foot and I chaired this committee and they refused to respond to chairman grassley's some requests, I stood up for him and I'm happy to do so. Whether you on one side of the table or the other you are entitled to the dignity of a request and professional treatment. Mr. davis, I hope that you will take that to heart.
▶ 0:26:13Senator Durbin: I'm also concerned about legal arguments Mr. shumate has been nominated to lead since returning to the justice department. While all attorneys have a duty to zealously advocate for their clients which of course includes the U.S. government, they must do so within the confines of the law. Yet in defending president trump executive order, restricting birthright citizenship, Mr. shumate claimed any judicial order blocking it would be "wildly inappropriate," his words.
▶ 0:26:44Senator Durbin: That is an un-acceptable position for a justice department official to take, especially with respect to an order that is patently unconstitutional. As a judge for setting of the case stated, I'm having trouble understanding how a member of the bar could state unequivocally that this order is constitutional. The disintegration of an independent justice department before our very eyes including the removal of key national security and counterterrorism officials should be alarming on both sides of the table.
▶ 0:27:15Senator Durbin: The department is critical to protecting america's public safety and protecting their rights and liberties of all americans. I look forward to their testimony. Thank you, Mr. chairman.
▶ 0:27:28Chair Grassley: Thank you senator durbin. Now to senator graham. >> you must condemn violence directed at the judiciary. I am all for that. Let's make sure that politicians don't create problems for those in that branch of government, and I hope that would include the former majority leader going to the supreme court.
▶ 0:28:00Chair Grassley: Hurricanes coming your way, gorsuch and cavanaugh, I didn't hear much back then. As to john eisenberg, I've dealt with him to the newer members of the committee. He served in the prior trump administration. I am completely confident you are the right person at the right time. When you look at his resume and his experience, you could not have chosen better. The world is literally in a dangerous place.
▶ 0:28:30Chair Grassley: The previous four years has been a disaster. Every conflict zone known basically has gotten worse and we are going to have to clean up this mess that was created, and I think john eisenberg will be a great council not only to pam bondi, but to the president. A little bit about him, he's a national security expert.
▶ 0:29:03Chair Grassley: He's joined by his wife catherine, his son paul, and his daughter sarah. Welcome. He received a bs in mathematics from stanford and a jd which means he's very smart and a bit confused.
▶ 0:29:17Chair Grassley: [laughter] he clerked for justice clarence thomas from 2003-2004, and the first term he served as the legal advisor to the national security council assistant to the president and deputy counsel for the president for national security affairs in a trump 1. That is where I met him, I interacted with him a lot.
▶ 0:29:44Chair Grassley: He is reason, thoughtful, smart, I enthusiastically endorse this man. In recognition of his service, he received the department of defense medal for distinguished public service, and the national intelligence superior service medal. He's held senior positions at the department of justice including associate deputy attorney general with the attack -- deputy attorney general in the office of legal counsel.
▶ 0:30:13Chair Grassley: The service earned him multiple distinctions including the general's award for excellence and furthering the interest of U.S. national security and the assistant attorney general award for special initiative national security division. Long story short, you can't find anybody better qualified than this man. Thank you.
▶ 0:30:34Chair Grassley: I'm going to read senator cruz's introductory remarks on brett shumate, nominee for the assistant attorney general for civil division at the department of justice. Because senator cruz is at another committee meeting. It is a distinct privilege for me, for senator cruz to introduce the nominee for the position of assistant attorney general for the civil division at the department of justice, brett shumate.
▶ 0:31:06Chair Grassley: Before we dive into his impressive professional qualifications, I'd like to take a moment to highlight the personal side of history. Brett is a proud family man. His wife hails from san angelo, texas and together they have four children.
▶ 0:31:31Chair Grassley: Who, by all accounts are the biggest -- is that buccee fans? East of the mississippi. His in-laws are also proud texans. His parents charlie and barbara shumate are here with us today.
▶ 0:31:59Chair Grassley: Charlie, a vietnam veteran recently retired after he distinguished 50 year career practicing law in virginia. It's clear that has strong roots have shaped his dedication to public service and his community. His current role for the civil division is not his first rodeo in public service.
▶ 0:32:26Chair Grassley: In fact, he's had a long and distinguished record of service to the american people. Rhett began his legal career in public service clerking for the distinguished judge edith jones of the fifth circuit where he developed a deep understanding of appellate law and a steadfast commitment to upholding the constitution.
▶ 0:32:51Chair Grassley: He sharpened his litigation skills in private practice for a decade, rising through the ranks to become a partner. His colleagues at his first law firm described him as a skilled litigator with impeccable ethics and integrity.
▶ 0:33:18Chair Grassley: He returned to public service as a deputy assistant attorney general for the civil division federal programs branch 2017-2019, where he was responsible for leading litigation on behalf of federal government in a wide range cases.
▶ 0:33:42Chair Grassley: In his role, he handled some of the most critical and high-profile cases of the time in health care, national security and regulatory enforcement. His experience managing complex litigation and devising senior government officials on litigation risk and strategy in this role makes him well-qualified for this role.
▶ 0:34:13Chair Grassley: Between 20192024, brett returned to private practice as a partner with yet another distinct law firm, jones day where he focused on high-stakes regulatory litigation involving the government, particularly in a telecommunications and technology sectors.
▶ 0:34:36Chair Grassley: Once again, his colleagues, more than 200 of them in fact, commanded him to us -- commended him to us. They wrote he is an intelligent and principled lawyer with unwavering integrity and further quoting, uncompromising commitment to the rule of law. Most recently he served as acting assistant attorney general civil division and doj.
▶ 0:35:08Chair Grassley: In this capacity he quickly took on leadership responsibilities within the division, ensuring that the department of justice remained effective in carrying out its essential duties. His work in this role gives us clear proof of his capability to guide the division through significant legal challenges.
▶ 0:35:33Chair Grassley: It is this exact expertise on the job that led president trump to nominate him to serve as assistant attorney general civil division on a permanent basis. With his unique blend of experience in both private practice in public service, particularly in the civil division of the department of justice, he is exceptionally well-prepared to lead this vital
▶ 0:36:03Chair Grassley: Division. His track record in handling regulatory litigation, providing strategic legal counsel to government officials and defending the administration's legal priorities across multiple sectors demonstrates that he has the expertise and leadership quality needed for this important role.
▶ 0:36:25Chair Grassley: Senator cruz ends by saying I look forward to hearing from brett today and strongly encourage my colleagues to support his nomination to be the next assistant attorney general civil division department of justice. Thank you. Now, you folks that have just been introduced, these rise so I can administer the. -- the.
▶ 0:36:57Chair Grassley: Do you swear that the testimony you are about to giphy for this committee will meet the truth, the whole truth, and nothing but the truth, so help you god? I've got affirmative action answer from each of you and I think we will start out with brett, and you can have your opening statement and introduced family and friends. Same for all of you.
▶ 0:37:22Chair Grassley: >> thank you to the entire committee for extending the privilege of appearing before you today. My wife and our four kids are here today sitting behind me. Merit always be a proud texan no matter how many years we lived in D.C. she has supported me and sacrifice for my career for over 20 years. My mom and dad are here as well. My father charlie retired a few years ago. After practicing law for 50 years and serving his country in vietnam. It's an honor for me to follow in his footsteps.
▶ 0:37:54Chair Grassley: I'd also like to thank president trump and attorney general bondi for this nomination, which comes with the awesome responsibility of running the civil division, the largest litigating component in the department of justice. I've had the great fortune of working with many wonderful mentors throughout my career. My first job out of law school was clerking for judge edith jones in the fifth circuit court of appeals. Though I'm also grateful to somebody friends for the mentor ship in the early years of my career.
▶ 0:38:23Chair Grassley: I had the privilege of working with many outstanding leaders including don mcgahn. I'm grateful to them for their support and guidance during my five years with the firm. I've also been incredibly blessed to work with many outstanding lawyers and staff at the department of justice over the years. In fact, one of the best parts of the civil division is able to side-by-side with career attorneys and half who work incredibly hard and are dedicated to serving the american people.
▶ 0:38:50Chair Grassley: I had the privilege of serving as a deputy of the civil division from 2017-2019. During my time running the federal programs branch I worked for two outstanding leaders. It would be an honor for me to follow in their footsteps if unconfirmed to lead the civil division. Most people are familiar with the civil division because the important work it does defending federal policies in the lower courts. But it does so much more.
▶ 0:39:16Chair Grassley: The civil division also use the false claims act and other enforcement authorities to identify waste, fraud and abuse in federal programs. It also does important work protecting consumers from elder abuse, illegal drugs and fraud schemes. I look forward to doing this important work in the civil division is confirmed. Thank you for considering my nomination. I look forward to answering your questions today.
▶ 0:39:42Chair Grassley: >> thank you, for holding the hearing to consider our nominations. Thank you as well chairman grassley for your kind introduction. I also want to thank president trump for nominating me. It was an honor to serve as an appointee in his first term and I'm eager to contribute to his second. I'm lucky to have my family here supporting me and I'd like to introduce them.
▶ 0:40:04Chair Grassley: My wife catherine who was a judge on the court of federal claims, a little over five years ago she sat here for her own confirmation hearing for the committee. Next is my daughter evelyn in the second grade, and my son henry in the fifth. My parents dave and pam davis have flown in it be here, and my in-laws have driven down from pennsylvania to be with us today. I'm truly blessed to have such a wonderful family and profoundly thankful for their love and support.
▶ 0:40:32Chair Grassley: Having spent years as an oversight attorney for chairman grassley, it's humbng to be in this room once again, this time as a nominee. The lessons I learned during those years along with one from the prior times in the justice department and throughout my career helped prepare me to leave the office of legislative affairs of confirmed.
▶ 0:40:49Chair Grassley: Under the justice department regulations, the assistant attorney general for the office alleges that if affairs is entrusted with the duty of maintaining liaison between the department and congress, reviewing, coordinating and submitting legislative reports and coordinating the preparation and submission of proposed legislation among other responsibilities. I believe my professional experience lends itself well to these tasks and I've seen many related issues from both sides. I've been a career doj attorney and a political appointee.
▶ 0:41:20Chair Grassley: I've been a judiciary can be staff are engaged in oversight of the department and have also been on the receiving end of congressional oversight. On but this committee and the house intelligence committee at examined numerous reports submitted by the department and at the department in the first trump administration I signed off on many such reports. I've also conducted congressional oversight from both the majority and minority on seeing those differences as well.
▶ 0:41:45Chair Grassley: All of this is to say I've worked extensively in both congress and the department of justice and have a deep respect for their respective roles in our system of government. It confirmed I would be honored to be given the responsibility to maintain and hopefully strengthen the working relationship between the two. To that end, I look forward to the opportunity to engage with the committee to advance important legislation to address our nation's ongoing challenges and to benefit the american people.
▶ 0:42:10Chair Grassley: I'm also acutely aware of the importance of the department being responsive to oversight inquiries from the committee, both from the majority and minority. It confirmed I'm committed to being transparent to the full extent consistent with the department. Where the department pierced to have been deficient in its oversight responses, I will seek to review the policies, procedures and decisions that have caused the issues, consult with relevant officials within the department and pursue appropriate corrections.
▶ 0:42:39Chair Grassley: When there are conflicts between the department and congress, the courts have recognized that each has the constitutional mandate to seek optimal accommodation through a realistic evaluation in the particular situation and to work not in a purely adversarial manner, but instead with the spirit of dynamic compromise to promote resolution. I believe my experience in both branches will help me be an honest facilitator of that compromise process. At the gym and often said, sunlight at the best disinfectant. I hope to help let the light in.
▶ 0:43:11Chair Grassley: Members of the committee, I've been privileged to spend nearly all my professional life in government service and I hope you will see fit to confirm me for this next role to continue serving the american people, this time as assistant attorney general. Thank you for your time and consideration.
▶ 0:43:33Mr. Shumate: I like to begin by thanking you, chairman grassley and you ranking member durbin for holding this hearing. I'd also like to thank senator graham for his gracious introduction, and that also like to thank president trump for the honor of this nomination. I have some of my family here today and would like to introduce them. I'm so fortunate to have the love of my life and my best friend here, my wife catherine.
▶ 0:44:09Mr. Shumate: Somehow she manages to have a full-time job and take care of everyone else in the family as well. It's no exaggeration to say I would not be here without her. Her support and encouragement throughout most of my adult life and during the hardest times has made all the good things possible and all the rest livable. My wife is joined by my son paul and my daughter sarah. My youngest daughter can't be with us today.
▶ 0:44:40Mr. Shumate: She has something called 22q, a micro deletion chromosome which causes development delays among a lot of other things. She is an inspiration to everyone who knows her, she doesn't let her disabilities get in the way and she greets just about every day with light. Catherine, paul, sarah and eddie are the joys of my life. Doubt them, life itself would be unimaginable to me.
▶ 0:45:10Mr. Shumate: I learned the importance of family from my mother who at all of five feet tall is the most powerful person I've ever met in my life. No one wanted to mess with her. Because of her, my sister nancy and my brother ethan and I couldn't be closer. We talked virtually every day and try to see each other as much as we can. While my mother passed away more than a decade ago, I'm fortunate to have both a father and a stepfather who are very supportive of me.
▶ 0:45:41Mr. Shumate: I also had a very small number of friends like count as family. They know who they are and I thank them for their support. I'd also like to say something about my colleagues, too many to name here. I've had the privilege of working alongside and they many years and the government and government service and during my private practice times. I'm truly blessed to have worked with so many who are the embodiment of dedication, glazing intelligence and integrity.
▶ 0:46:10Mr. Shumate: Serving with each of them has been an honor and I'm grateful just to know these people. National security is a thread that runs through my professional life. I was in alexandria on september 11, 2001 when terrorists attacked our nation resulting in the deaths of some 3000 people in coordinated attacks on the world trade center and the pentagon. I think it's hard for people who weren't adults and 2001 to understand the effect these attacks had on many of us.
▶ 0:46:38Mr. Shumate: It's easy to forget that follow-up attacks were thought to be very lightly and at times imminent. Indeed our success of fording attacks led many to wonder if the threat was overblown. But for me, I will never forget that day. I heard the explosion coming from the commercial airliner colliding with the pentagon. I saw the smoke rising from that building.
▶ 0:47:03Mr. Shumate: My wife couldn't come home from her office in washington for hours because the necessary metro lines went to the pentagon and the pentagon was still on fire. I saw f-16s trailing commercial airliners and even private aircraft. I suppose escorting them away from anything that they could target. But my country really had become a battlefield.
▶ 0:47:26Mr. Shumate: In my past government jobs I had focused on national security, the events of september 11 instilling in me the need to be part of the response to terrorism. More recent government service a show me the importance of protecting the nation from a myriad of other threats. I am deeply committed to the rule of law and the constitution but I also believe that the government has a solemn obligation to do what it can within those limits to protect the nation and its people.
▶ 0:47:54Mr. Shumate: I was in the department of justice and I was part of the team that helped propose and implement necessary -- to bring nst into the world. It would be a great honor to lead that division with dedicated public servant to go to work every day and who constantly share the vision of which I spoke, that of protecting the nation.
▶ 0:48:18Mr. Shumate: I look forward to working together should I begin armed to protect this great nation and its people from the range of national security threats facing us. I look forward to answering your questions.
▶ 0:48:32Chair Grassley: I'm going to start with Mr. eisenberg. And as he knows and everybody on this committee knows, protecting whistleblowers is very important to me. Want to ask about a 2022 department of defense ig report claiming that you retaliated against eugene vindman for reporting president trump's 2019 call with president zelenskyy.
▶ 0:49:03Chair Grassley: I have serious concerns about the political motivations underlying the whole issue and I have questions about the report itself, but I want to hear from you directly, how do you respond to the charge that you retaliated against Mr. vindman?
▶ 0:49:18Mr. Eisenberg: Thank you for that question. First, I wholeheartedly deny the allegations. I just am not a kind of a person. I would never let anything other than the facts enter into an evaluation. If I had done so, I would not be here seeking this office. Let me note one other thing at the beginning. I was in the white house at the time.
▶ 0:49:49Mr. Eisenberg: All of these events happened within that context. So virtually everything is subject to executive privilege. When the office of the inspector general called my lawyer to say they wanted to interview me, my attorney advised me that we would need the permission of both the current biden ministration and the former trump administration because they were the holders of the privilege of that executive privilege.
▶ 0:50:15Mr. Eisenberg: My attorney called them and sought that permission but we didn't get permission until after the report which came out of the blue to us. We didn't get that permission until after that report dropped. Consequently the office of the inspector general was solely without anybody telling that side of the story. I did not and none of the other people that have allegations against them in that report were able to sit for an interview.
▶ 0:50:43Mr. Eisenberg: Now, that material is in general subject, but I feel like I could give a few examples of why my evaluation of Mr. vindman changed just based on what is in the ig report which is now public. It's clear that I told Mr.
▶ 0:51:00Mr. Eisenberg: Vindman at some point that in order to go to meetings about certain topics, he needed to get permission from either me or --, then we find out that he would add himself to meetings which meant he was trying to get into that meeting even if I had no determination or made a determination that he shouldn't be there. Meetings like this are not standard meetings within the company trying to figure out how much product to make.
▶ 0:51:27Mr. Eisenberg: Those meetings have some of the most sensitive information that the united states government has, and the deliberations in those meetings can often be extraordinarily sensitive in and of itself, so you only send somebody to a meeting if they have something to add to that meeting. Otherwise you are exposing someone to classified information despite the fact that there's no reason for it and we are not supposed to do that. We even found out subsequently that Mr.
▶ 0:51:54Mr. Eisenberg: Vindman went to a meeting after I had told him expressly not to go to that meeting. Another time we found out that he was seeking reimbursement for his brother's travel expenses to ukraine. Both my deputy and I told him that he couldn't do that because there was obvious conflict of interest. Nevertheless we heard that continued that.
▶ 0:52:21Mr. Eisenberg: Relatedly, and this is in the ig report as well, we heard that a particular witness reported that Mr. vindman turned red in the face when he met some resistance to getting money on behalf of his brother. I wouldn't tolerate that in my office if somebody tries to intimidate, yells or anything. It's critically important that especially lawyers act like lawyers.
▶ 0:52:52Mr. Eisenberg: That's not everything by any stretch, this is just stuff gleaned from the public report.
▶ 0:52:55Chair Grassley: Mr. shumate. I've got a statement I'm going to just quote justice kagan on nationwide injunctions. It just can't be right that one judge can stop nationwide policy in its tracks and leavitt stopped for years it takes to go through the normal process.
▶ 0:53:28Chair Grassley: Is there a role for congress to play in ending the practice? >> I agree with that sentiment. We seen an unprecedented number of nationwide or universal injunctions just in the two months of the trump administration. The department's position has been consistent across the ministrations that single district court judges do not have the power to issue nationwide were universal relief.
▶ 0:53:55Chair Grassley: At close of article three of the constitution which limits courts to decide in the case or controversy before them and courts are supposed -- supposed to apply doctrines like standing and scope of relief to award relief to the party before them and redressed that injury, not go beyond the parties. But we seen judges grant relief far beyond the parties to those cases to enjoy the executive branch nationwide or universally.
▶ 0:54:21Chair Grassley: In terms of whether there is a role for congress to play, yes, the constitution creates one supreme court, but invests in congress the authority to ordain and establish lower courts. Over time congress has certainly created and limited courts, created and eliminated jurisdiction, and created special review procedures for review of agency action, whether it is three-judge courts or direct review in the court of appeals. Certainly there is a role for congress to play.
▶ 0:54:51Chair Grassley: >> the justice department's currently defending the tribe administration in a number of lawsuits challenging executive actions taken by the president and officials in the administration. Federal judges, both republican and democratic appointees, have held these actions are illegal or unconstitutional. Alarmingly president trump, his allies and even some nominees before the committee have responded by questioning whether the executive branch must follow court orders.
▶ 0:55:22Chair Grassley: If confirmed, the three of you will hold key positions at the justice department and you will taken over o through uphold and defend the constitution, so I'm going to ask you a question which could merit a yes or no answer. And I hope it will. Do you believe, I will ask each of you, do you believe the litigant including the executive branch or a president can lawfully defy a court order? Mr. shumate?
▶ 0:55:51Mr. Shumate: Thank you for the question. I will always advise a client whether in private practice or in government to comply with court orders and a thick client disagrees with a court order we can appeal, seek a stay, and I think that's exactly whatever the president say. Comply with court orders and appeal if you disagree.
▶ 0:56:12Mr. Davis: Parties to litigation should always follow lawful orders.
▶ 0:56:22Mr. Eisenberg: I agree with both of my colleagues.
▶ 0:56:24Sen Durbin: Mr. eisenberg, earlier this week we learned about a shocking security breach in which the defense secretary hegseth and other cabinet officials discussed highly sensitive military plans over a commercial messaging app known as signal. Classified an otherwise highly sensitive national security information must be handled in accordance with strict security protocol. Including the use of secure facilities and communication channels.
▶ 0:56:54Sen Durbin: Willful or negligent disclosure or mishandling of such information is a criminal violation of the espionage act. Steve agree that the justice department must thoroughly and impartially investigate this breach and if criminal violations have occurred at the department must fairly and impartially prosecute those responsible? >> I degree that the department should take whatever appropriate action there is. I don't know enough about what actually happened to say with an action would be.
▶ 0:57:23Sen. Durbin: I'm asking whether you believe each of the investigated. >> in my view, it depends. If the facts are completely different than has been reported, I don't know what the facts actually are and they wouldn't want to opine on that until I knew what they were.
▶ 0:57:37Sen. Durbin: Mr. shumate, last year you participated in a panel discussion about the president's ability to remove the heads of independent agencies, do you recall that?
▶ 0:57:48Mr. Shumate: I do.
▶ 0:57:49Sen. Durbin: Q argued that nearly all modern independent agencies are unconstitutional. Because of protections dictating that agency heads can only be removed for cause. Do you remember that position?
▶ 0:58:04Mr. Shumate: Yes sir.
▶ 0:58:05Sen. Durbin: You. To suggest a host of independent agencies should be subject to the whims of the white house despite congresses constant constitutional authority to create these bipartisan independent commissions. City you stand by your argument that removal protections render agencies unconstitutional?
▶ 0:58:24Mr. Shumate: Thank you for the question. As I recall I was appearing as a lawyer at a law firm that currently have a case before the courts right was taking a position arguing that removal protections for certain agency protections for certain agen&y constitutional, I was appearing advocating for courts to rule in my favor in that case and advocating for my clients position.
▶ 0:58:48Mr. Shumate: Now in my role at theepartment of justice, represent the interests of the united states pending litigation regarding the removal protections and whether those restrictions are constitutional. So I wouldn't want to go beyond with the part is already said in this asus.
▶ 0:59:01Sen. Durbin: A few you expressed last year directly contradicts the supreme court's decision. A nine-year-old precedent holding that removal protections for independent agency heads are constitutional. In february the trump administration informed me that it will seek to have this precedent overturned. Did you participate in any conversations with any justice department or white house official about this plan to overturn humphreys executive?
▶ 0:59:28Mr. Shumate: In my role as the acting head of the civil division I had many conversations with many folks within the government about many topics but I don't think it would be appropriate for me to discuss who I spoke with or what advice I gave on any particular matter to protect the delivery process and to encourage individuals across the government to reject the civil division and seek era advice on particular matters without fear that those conversations would be discussed.
▶ 0:59:53Sen. Durbin: But I didn't ask you who you spoke with or what you said, I ask if you participated in conversations about this case being overturned.
▶ 1:00:01Mr. Shumate: I don't think it would be appropriate for me to disclose what matters I advised on at the department. I advised on many matters and I want to encourage folks throughout the government to reach out to the civil division without fear that those conversations will be disclosed.
▶ 1:00:17Sen. Durbin: Mass one of the question? Mr. chairman, I would like to ask of Mr. shumate, last night the president was asked as to whether or not the rioters on january 6 should be compensated, a matter that fall in the jurisdiction of your responsibility in the civil section. Do you think the january 6 rioters should be compensated?
▶ 1:00:41Mr. Shumate: I'm not familiar with those comments of the president may or may not have made last night. We had many pending cases in the civil division including tort suits. It wouldn't be appropriate for me to commit to any particular resolution of any of those cases without talking to other folks within the party.
▶ 1:00:58Sen. Durbin: Will I come down on the side of law enforcement officials that keep you and your family safe at this moment who were attacked by these writers and I do not believe they are entitled to any compensation for their action.
▶ 1:01:10Chair Grassley: Senator lee.
▶ 1:01:14Senator Lee: Thanks to the three of you for being here today and for your willingness to serve. Mr. eisenberg, I'd like to start with you if I could. During her confirmation hearing, attorney general bondy and I had a conversation about section 702 and about the use of what I sometimes refer to as de facto warrantless facts or searches, meaning searches of U.S. persons through a U.S.
▶ 1:01:43Senator Lee: Person identifier known to be a U.S. person identifier. To search the databases containing incidentally collected content communications involving U.S. persons, U.S. citizens and others here at the U.S. lawful residents and so forth.
▶ 1:02:07Senator Lee: And I asked attorney general bondy specifically whether she would agree with me that these the factor warrantless facts or searches are concerning in that context. She responded in the affirmative with the word yes. That leads me to my question, would you agree that these backdoor searches of incidentally collected communications involving american citizens are concerning?
▶ 1:02:38Mr. Eisenberg: Thanks for the question. I certainly agree that it does raise issues. I don't at this point know what protections are in place.
▶ 1:02:58Mr. Eisenberg: So if I were confirmed, I would talk to the experts in the nsd about exactly what they do and I would then talk to the attorney general to help come up with perhaps different procedures if those are warranted.
▶ 1:03:18Sen. Lee: I would adhere for the entirety of the 14 years I been a U.S. senator, the entire time I've served on this committee, I and others including people on both sides of the aisle, including senator durbin over the years, we've raised concerns with this. On each occasion, we've had officials from the fbi tell us don't worry, we got procedures in place, we don't need to worry about additional legislation, we've got it covered.
▶ 1:03:46Sen. Lee: In each instance, they usually tell it's ok, but now we've really got it covered. The bottom line is I do believe congress needs to act, we need additional protections, because those internal protections haven't worked. Because we are trying to ram a giant square peg into a round hole. It doesn't work. In my view it is not compatible with the letter or the spirit of the fourth amendment to allow those sorts of things. Mr.
▶ 1:04:15Sen. Lee: Eisenberg, you spent much of your career in national security law. You've got vast experience with the court of review. What reforms if any do you think should be made in the process?
▶ 1:04:33Mr. Eisenberg: I think this is something that I need to study as soon as I get into nfd if in fact I am confirmed. In my view it has to be possible to do better in order to at least assure the american people that the search and privacy protections in place are actually working. But as to the actual details, I think I would need to get in there first.
▶ 1:04:58Sen. Lee: Mr. shumate, let's turn. For a long time I've been troubled with congresses chronic delegation of the lawmaking penalty. Making congress the sole sovereign lawmaking authority within the federal government, making doubly clear by saying you cannot make a federal law without both houses of congress passing the same legislation, followed by resentment of the president for signature, veto or acquiescence.
▶ 1:05:30Sen. Lee: Congress has deviated from that and the courts have been unwilling to enforce that for reasons that escape me, while acknowledging that the nondelegation printable exists, they just refuse to enforce it. Anger seven judiciary questionnaire you listed the case called allstate refractory contractors vs. Sue. You challenged the constitutionality of the osha statute.
▶ 1:05:57Sen. Lee: What can you tell us about your involvement in that case and what your involvement in that case sort of taught you or what you glean from that? As far as congresses ability to delegate its lawmaking power?
▶ 1:06:10Mr. Shumate: Yes, so that case reinforced for me the importance of article one, investing of legislative power in the congress. In that case, we were reticent in the client is a general contractor in ohio and was challenging the osha statute which under the nondelegation doctrine, is a long-standing doctrine that says that congress can't delegate power to the executive branch, and under the osha statute, congress has
▶ 1:06:41Mr. Shumate: Allowed osha to propagate more safety regulations that impacted my client. So in that case we were challenging the statute has a violation of the nondelegation doctrine. We thought we had pretty good arguments, even after the sixth circuit upheld the statute in the supreme court denying us in that case. It reinforced for me the importance of the structural separation of powers, and that each branch stay within their proper role.
▶ 1:07:12Sen. Lee: I see my times expire. 100,000 pages of new regulatory tax issues apply. By some estimates those 100,000 pages put in place entirely by unelected and unaccountable bureaucrats cost the americans $1.5 trillion annually. That's a problem.
▶ 1:07:34Chair Grassley: Senator. >> as part of my responsibility to determine the fitness of our nominees who come before any of my committees, I asked the following two initial questions and if we could start with Mr. shumate and go right down the line. Since you became a legal adult, have you ever made unwanted requests for sexual favors or committed any verbal or physical harassment or assault of a sexual nature?
▶ 1:07:59Mr. Shumate: Nope.
▶ 1:08:01Mr. Davis: No, senator.
▶ 1:08:03Mr. Eisenberg: No senator. >> have you ever faced discipline or entered into a settlement relating to this kind of conduct?
▶ 1:08:11Mr. Shumate: No senator.
▶ 1:08:12Mr. Davis: No senator.
▶ 1:08:13Mr. Eisenberg: No senator. >> Mr. eisenberg, there have been calls including from the office of project 2025 which I think is generally seen as a blueprint for this administration at project 2025 calls for the revival of the national security division of doj to revive the so-called china initiative. If confirmed as head of the national security division, do you plan on reviving the china initiative, yes or no?
▶ 1:08:44Mr. Eisenberg: I plan on looking at whether something like that should be stood up again, but I don't have any concrete plans. >> did you have any concerns about bringing back that initiative? Any awareness of what that initiative meant? In terms of the litigation that arose from the china initiative during the first trump administration? Yes or no if you have any awareness.
▶ 1:09:13Mr. Eisenberg: Let me just state that the program was supposedly about countering chinese government espionage and intellectual property theft, but it drifted far from that purpose. Instead it focused largely on university professors, most of them of chinese heritage who had alleged paperwork errors in great applications in the department of justice which usually has a pretty great track record in convicting defendants, many of whom plead guilty.
▶ 1:09:42Mr. Eisenberg: But in the case of the china initiative, the conviction rate was very low, practically nonexistent. So for the dozens of cases against basically chinese professors that the doj brought, most of them were tossed out for lack of evidence. We know that the china initiative was misguided.
▶ 1:10:07Mr. Eisenberg: A waste of resources, seemingly based more on the ethnicity of defendants whose lives were in many ways just destroyed by doj going after them then on the crimes they supposedly committed. So I would say if you are going to look into reinitiating the china initiative, I would look at the history of this initiative and do not go there. For Mr.
▶ 1:10:33Mr. Eisenberg: Shumate, you defended president trump's birthright citizenship order as though by waving an executive order he can get rid of the provisions of the 14th amendment. You defended that order to get rid of birthright citizenship, and the judge that decided the case called the argument, this order that try made blatantly
▶ 1:11:04Mr. Eisenberg: Unconstitutional. The judge had difficulty understanding how any lawyer could make the argument that you're making. Three courts of appeals have reviewed it doj request to state that there are some pending tros , that the administration then went to the supreme court.
▶ 1:11:27Mr. Eisenberg: The supreme court has not waiting yet and set a leisurely briefing schedule suggesting that the supreme court doesn't consider the government's defense of the order to be worthy of quick consideration, which makes me wonder whether you are prepared to argue before these courts what one court said were blatantly unconstitutional orders. So Mr. shumate, is that what you're are going to keep doing?
▶ 1:11:57Mr. Shumate: Thank you for the question. Since that first hearing that senator durbin referenced earlier today, the department has held many briefs explaining its view of the 14th amendment and the legality of the president's birthright order. Because it is pending litigation it wouldn't be appropriate for me to discuss the merits of litigation.
▶ 1:12:19Sen. Lee: I have to say Mr. shumate that this is one order that, there is just a lot of precedent for birthright citizenship. For you to spend your time and resources going after this as a way for you to make a political point is not the way that I would expect the justice department to conduct itself. Thank you, Mr. chairman.
▶ 1:12:46Chair Grassley: Mr. shumate, what is an universal injunction?
▶ 1:12:51Mr. Shumate: A universal injunction is an order from the court adjoining the government in a way that goes beyond the parties to the case but applies nationwide or in some cases universally.
▶ 1:13:02Chair Grassley: Is it sometimes referred to as a nationwide injunction?
▶ 1:13:07Mr. Shumate: Yes, it is, senator.
▶ 1:13:09Chair Grassley: What is the statutory basis for a federal judge issuing an order that affects people other than the parties before the court? There is no statutory basis, is there?
▶ 1:13:27Mr. Shumate: No, senator.
▶ 1:13:31Sen. Kennedy: What is the supreme court opinion that interprets the constitution in a way that allows the federal district court judge to do this?
▶ 1:13:40Mr. Shumate: I'm not aware of one, senator.
▶ 1:13:44Sen. Kennedy: There is not one, is there?
▶ 1:13:47Mr. Shumate: I am not aware of one, senator.
▶ 1:13:51Sen. Kennedy: You have a plaintiff and you have a defendant. The plaintiff files a lawsuit and goes before a federal judge. The federal judge has certain jurisdiction over the parties, the people, the plaintiff and the defendant. They are the only two people in court.
▶ 1:14:17Sen. Kennedy: How can a judge, a federal judge issue an order that affects everybody else other than those in front of him or her? How is that possible?
▶ 1:14:30Mr. Shumate: It should it be possible, but district courts do it all the time. I think on the theory that the courts need to adjoin a federal policy from going into effect they will often adjoin it as nationwide. All nonparties are protected by that injunction.
▶ 1:14:47Sen. Kennedy: I thought that if you wanted to affect parties and you are not in court you have to to file a class-action? Why don't the federal judges, instead of issuing a universal injunction with no legal basis tell the plaintiff, look, you've got to go file a class action if you want to impact parties who are not subject to my court?
▶ 1:15:18Mr. Shumate: The department of justice makes that argument all the time in our briefs. In many cases, class actions would be inappropriate or the plaintiffs could not satisfy rule 23.
▶ 1:15:27Sen. Kennedy: So, they couldn't?
▶ 1:15:29Mr. Shumate: Correct.
▶ 1:15:31Sen. Kennedy: So they prefer to ask for a universal injunction?
▶ 1:15:35Mr. Shumate: Yes.
▶ 1:15:39Sen. Kennedy: Does this encourage form shopping?
▶ 1:15:48Mr. Shumate: Not only form shopping but different jurisdictions that will -- if you have five lawsuits, only one of those five cases needs to be successful.
▶ 1:16:01Sen. Kennedy: Both sides, all sides, have used this as a way to form shop?
▶ 1:16:10Mr. Shumate: Plaintiffs, regardless of administration will often file cases in the most favorable forum.
▶ 1:16:18Sen. Kennedy: There is no basis in statute or supreme court precedent for universal injunction. How about common law? This is universal injunction and equitable remedy. This exists in common law courts in england on which our law is based?
▶ 1:16:40Mr. Shumate: I don't believe so. I believe cases from the supreme court said that they are not bound by relief back in england before the founding. The courts at that time would great relief to the parties in the case and not far beyond.
▶ 1:16:57Sen. Kennedy: Universal injunction as a remedy is unknown in english common law, is it not?
▶ 1:17:04Mr. Shumate: I haven't done the research that far back, but I'm not aware --
▶ 1:17:08Sen. Kennedy: I have. It's unknown. Only about 28 -- sorry, only 27 universal injunctions were issued in the 20th century. Does that sound about right?
▶ 1:17:35Mr. Shumate: That sounds about right, senator.
▶ 1:17:38Sen. Kennedy: 86 were issued against president trump and first term?
▶ 1:17:43Mr. Shumate: I don't know the specific number, but there were a high number.
▶ 1:17:47Sen. Kennedy: So far, and president trump' a second term, 30 universal injunctions have been issued against him?
▶ 1:17:55Mr. Shumate: I don't have the specific number, but that sounds right.
▶ 1:17:59Sen. Kennedy: The universal injunction has become a weapon against the trump administration, has it not?
▶ 1:18:05Mr. Shumate: Yes.
▶ 1:18:06Sen. Kennedy: Tell me in my last 10 seconds the basis for universal injunction in article three. I have read article three that defines judicial power. Where does it mention universal injunction?
▶ 1:18:24Mr. Shumate: It does not. It says courts are to decide the case or controversy before them which is based on the parties in the case.
▶ 1:18:30Sen. Kennedy: So the congress could act and say, look, federal judges, you rendered a decision to a plaintiff or defendant, but you cannot impact people outside of your courtroom other than through a class-action. That is why god created class actions, isn't it?
▶ 1:18:49Mr. Shumate: Yes, sir.
▶ 1:18:51Sen. Kennedy: Thank you.
▶ 1:18:58Chair Grassley: You know how important oversight is to me. I gave bondi a binder of 144 oversight letters I sent during the biden justice department.
▶ 1:19:15Chair Grassley: I know that's a big job for you to fulfill that, but I would like to give priority for your committing to provide responsive document requests as opposed to just answering any particular letter right now. Because a few of them asked for that. For Mr. shumate -- >> Mr. chairman, I have a question for Mr. davis if we are stalling for time.
▶ 1:19:48Chair Grassley: Ok. The false claims act is important for me because in 1986 I spearheaded legislation to essentially strengthen its civil provisions. It has since brought $78 billion back into the treasury. I think $3.9 billion last year.
▶ 1:20:11Chair Grassley: Recently I introduced false claims amendment act that affects loophole that allows fraudsters to avoid accountability. If confirmed, we pledge to vigorously enforce the false claims act and devote adequate resources to investigating and prosecuting false claims cases?
▶ 1:20:29Mr. Shumate: Yes, senator. The false claims act is an essential tool that the department uses to root out fraud, waste, and abuse. As you know, the department generates billions of dollars of revenue every year for the treasury through the false claims act. If confirmed, I will aggressively enforce the false claims act and work with the outstanding folks in the fraud section.
▶ 1:20:54Chair Grassley: I know after nine years of one case being filed, and it went into discovery, someone in the previous administration just stopped it. We can't let things like that happen. If you are going for nine years and going into discovery, you cannot let some political person step in and stop the claim, just as one example of things that have been wrong. Senator schiff.
▶ 1:21:21Sen. Schiff: Mr. eisenberg, you served during the first administration as a legal advisor. In that capacity you must have participated in dozens if not hundreds of principal leadings organized by the national security advisor. Did you conduct any of those meetings by text chat that involved military strike plans?
▶ 1:21:45Mr. Eisenberg: No, I don't believe so.
▶ 1:21:48Sen. Schiff: The entire first four years of the trump administration you never had a text chat conversation about plans to strike targets using a commercial app?
▶ 1:22:00Mr. Eisenberg: I am not aware of any, senator.
▶ 1:22:05Sen. Schiff: You didn't do that because that would have been a terrible national security breach of protocol?
▶ 1:22:11Mr. Eisenberg: I would have to know more to know if that would be a breach.
▶ 1:22:15Sen. Schiff: Would you really need to know more than a conversation about military targets, the time of the attack, the location of the targets, ordinance being used?
▶ 1:22:28Mr. Eisenberg: Sure, you would want to know if the device is up to a certain level. You might make one that --
▶ 1:22:34Sen. Schiff: We are talking about a commercial app like signal. Would it be appropriate to discuss imminent military strike targets on a commercial app?
▶ 1:22:44Mr. Eisenberg: I still think it's difficult to answer that question in the abstract. I can think of circumstances in which you could, sir.
▶ 1:22:52Sen. Schiff: Give us a circumstance where you can talk about an imminent military attack unknown to the public where it would be appropriate to do so on a commercial app.
▶ 1:23:00Mr. Eisenberg: Something absolutely urgent that happens that needs to go right now and in the normal communication systems don't work. There is an example where you may have to do something like that.
▶ 1:23:11Sen. Schiff: And where you have access to classified facilities? It would be completely inappropriate, wouldn't it?
▶ 1:23:17Mr. Eisenberg: I would still need to know more.
▶ 1:23:20Sen. Schiff: Really? And you want to lead the national security department at the doj and you need to know more?
▶ 1:23:26Mr. Eisenberg: Yes.
▶ 1:23:28Sen. Schiff: Do you fail to believe the nsa and doj when they say that the use of commercial apps like signal is a security threat and inappropriate for confidential or sensitive data?
▶ 1:23:46Mr. Eisenberg: I haven't heard about either of those entities.
▶ 1:23:50Sen. Schiff: You have no idea what the view of the intelligence community is about the use of commercial apps to conduct government business involving classified or sensitive national security information? You have no idea what their position is?
▶ 1:24:09Mr. Eisenberg: I'm sure that their position is that in general that should never happen.
▶ 1:24:11Sen. Schiff: So what happened in this signal chat should never have happened? Do you agree?
▶ 1:24:17Mr. Eisenberg: As I said before, I would need to know more.
▶ 1:24:19Sen. Schiff: Have you read the signal chat?
▶ 1:24:21Mr. Eisenberg: I have not.
▶ 1:24:22Sen. Schiff: Are you desiring to be willfully blind to what just happened?
▶ 1:24:27Mr. Eisenberg: No, I was trying to prepare for this hearing among other things.
▶ 1:24:31Sen. Schiff: You didn't anticipate you would be asked about this? Or because you anticipated you would be asked about this you didn't want to inform yourself about this incredible breach of national security?
▶ 1:24:47Mr. Eisenberg: There are millions of things going on in the world at any particular time. I didn't have to learn -- I didn't happen to learn about this one.
▶ 1:24:51Sen. Schiff: I'm sure there are millions of things going on in the world, but this happens to be probably the biggest national security story of the month, which included a lot of other national security stories. Including a more in the middle east and including capitulation to putin in russia, but you just happened to neglect to read this one? Is that what we are led to believe?
▶ 1:25:13Mr. Eisenberg: I just happened not to read it, that's all.
▶ 1:25:17Sen. Schiff: If you're using a commercial app to discuss the identity of targets, locations, and that information were to become public, it could compromise those operations, couldn't it?
▶ 1:25:30Mr. Eisenberg: It depends on what the operation is and where --
▶ 1:25:33Sen. Schiff: Let's say an operation to strike houthi targets in yemen, a top missile operative, and the location of the building. Those details discussed on a commercial app could justify that -- could jeopardize that operation if it became public?
▶ 1:25:54Mr. Eisenberg: I'm not going to answer a hypothetical question.
▶ 1:25:58Sen. Schiff: It is not hypothetical. I wish to hell it was hypothetical. This just happened. It was shared with a journalist on a commercial app. You need more information than that? How about discussing denigrating our european allies on a commercial app. Could that have diplomatic fallout?
▶ 1:26:19Mr. Eisenberg: I don't know the circumstances.
▶ 1:26:22Sen. Schiff: The vice president's conversations on this app and others joining in in disparaging europe, this is new information to you? You are unaware and cannot comment on if that could interfere with our relationships with our closest allies?
▶ 1:26:36Mr. Eisenberg: At this point I haven't had time to look at it closely. There are layers, sir. Before I make decisions and form opinions, I need to look at the facts carefully.
▶ 1:26:47Sen. Schiff: And you don't hide from the facts as a lawyer? If you want to head the national security division at the department of justice, you don't put your head in the sand so you don't have to answer uncomfortable questions? Mr. chairman, I yield back.
▶ 1:27:04Sen. Schiff: >> I find it interesting my democratic colleagues are so enraged by this non-story and had nothing to say when we had a president who literally could not put two sentences together for two years. President auto pin was the commander-in-chief. No questions about his ability to construct sentences let alone foreign policy, but here we are with a fake story.
▶ 1:27:35Sen. Schiff: This is what happens when you have a party that has reached -- not rock-bottom yet. Not rock-bottom yet, but they've got nothing, zero. No issues, no leader, fringe issues define them so they will glom onto the story of the day. Quite frankly, it's embarrassing for them. Just like these calls to come out against violence. The only thing in the district court rulings, the only thing talked about our political solutions.
▶ 1:28:03Sen. Schiff: The only person I remember standing in front of the supreme court calling for a whirlwind on justice kavanaugh and other supreme court justices that were followed up by assassination attempts of supreme court justices, followed up by violent protests outside of their homes where they had to move out of their homes, was chuck schumer. As long as we are denouncing violence, how about firebombing tesla dealerships?
▶ 1:28:31Sen. Schiff: This anarchic strain runs through the left. For my democrat friends, like a bad for you, because your party has been captured via radical element that is pro-hamas, that is pro-violence, that is firebombing tesla dealerships because they don't like that elon musk has actually found the
▶ 1:29:03Sen. Schiff: Grist out and -- grift out and is cutting it out. Ngos that laundered money for years is coming to an end and they don't know how to handle it. Anyway, as far some of these rulings, I would point out that in the most recent case with the venezuelan thugs who have now been imprisoned in el salvador, the apex of presidential power as justice jackson wrote in the youngstown cases is that the apex when you have congressional delegation or core article two
▶ 1:29:33Sen. Schiff: Powers as commander-in-chief. In the district court, in citing the alien enemies act, whether in wartime, invasion, or predatory incursion, the president is acting within his authority.the district court has no more authority to tell the president that he can't do that than direct troop movements or missile strikes. When we talk about separation of powers, it goes both ways. It goes both ways.
▶ 1:30:02Sen. Schiff: There has been an obsession about getting you on the record about following court orders. The president of the united states has said that he will follow court orders time and time again, but there is a desire to stir up something because they have nothing. That's what's going on here. I did want to ask with the time that I have left, Mr. davis, you have done a lot of great work investigating a lot of things. The origins of covid, I'm curious.
▶ 1:30:31Sen. Schiff: When I was the attorney general of missouri we sued communist, communist -- communist china. When we filed a lawsuit it was interesting, the reaction. You were called a racist if you implied any way that it leaked out of wuhan which was obvious to most people. The intelligence community for some reason resisted that conclusion for such a long time. They basically said that's what happens.
▶ 1:31:01Sen. Schiff: What did you think, as you were investigating this, was behind that, behind the resistance to all of the evidence and obvious nature of the origins of covid?
▶ 1:31:11Mr. Davis: Thank you, senator, for that question. I appreciated speaking with you yesterday. That was great. The report that I authored about the origins of covid is unfortunately still classified, so I can't get into the specifics of what it found. We did an unclassified summary which, given the nature of the underlying information, was not terribly revelatory.
▶ 1:31:35Mr. Davis: I would note that when then-president biden instructed the intelligence community to do a comprehensive review on the covid origins come the subsequent report that they put out and declassified version, there were serious flaws. I think those flaws, you mentioned the individual components have changed their public view, but I think that until there is more transparency about what was going on within those elements of the intelligence community that people won't know the full story, unfortunately.
▶ 1:32:06Sen. Schmitt: It is interesting that Dr. fauci played a very significant role. Maybe we will hear from him and some committee hearing sometime too. Thank you, Mr. chairman. >> Mr. eisenberg, Mr. shumate, Mr. davis, thank you for your testimony and to your family and friends who made the visit.
▶ 1:32:36Sen. Schmitt: It is a momentous day in your lives and we are excited about what's to come. Written and written an -- written questions can be submitted for the record until april 2 at 5:00 p.m.. Written questions for Mr. davis can be submitted until tomorrow, march 27, at 5:00 p.m. I will ask the questions be returned to the committee as soon as possible so we can quickly schedule your confirmation votes. With that, this committee is adjourned. Thank you. [gavel falls]