▶ 0:18:02Chair Grassley: Good morning, everybody. We welcome you to today's hearing. We had two panels. The first panel features circuit judge nominees benjamin flowers, six circuit, matthew schwartz, second circuit.
▶ 0:18:22Chair Grassley: Our second panel has one nominee, don richard berthiaume, to serve as inspector general of the department of justice. For months, now, our democratic colleagues have relentlessly attacked nominees about the 2020 election. I think it has been unfair.
▶ 0:18:54Chair Grassley: It's been hypocritical. As I explained a few weeks ago, article two in the 12th amendment of the constitution dictate how presidential elections are one. Under our constitution, the electoral college casts ballots and the vice president certifies the winner at a joint session of congress. So, it's pretty simple.
▶ 0:19:23Chair Grassley: There no other way to win an election. When asked about the 2020 election, recent judicial nominees, and maybe others, have also given legally correct answers. Joe biden was certified as the winner. But democratic colleagues don't accept that.
▶ 0:19:50Chair Grassley: They press, they press again for a soundbite. They don't care about the answers, they just want a clip to go viral. So, my democratic colleagues attacked the nominees. That's the follow-up. Goading them to weigh into politically controversial topics.
▶ 0:20:19Chair Grassley: When the nominees don't bite, my democratic colleagues accuse them of being evasive. Members of this committee have even been called -- have even called the nominees derogatory names like cowards, like monkeys . Like puppets.
▶ 0:20:44Chair Grassley: The progressive media has gleefully reported about "contempt and ridicule" the nominees are subject to at the hearings. Once again, "the new york times" leans into its role as a mouthpiece of the democratic party.
▶ 0:21:10Chair Grassley: These attacks are just beneath our office. They are hypocritical. If you want to talk about evasive answers, let's rewind the clock. Justice jackson's hearing. Senator blackburn asked a simple question. What is a woman?
▶ 0:21:38Chair Grassley: A judge must be able to assess whether a litigant is entitled to protections that the federal law affords women. I think we all agree on that. Well, justice jackson wouldn't answer that question.
▶ 0:21:56Chair Grassley: She simply stated she couldn't because "I'm not a biologist." how can my democratic colleagues criticize nominees for giving indirect legal incorrect answers when their own nominees wouldn't answer a basic factual question that we have understood for the entire 6000 year history of
▶ 0:22:28Chair Grassley: Humankind. We all know why. It's because my democratic colleagues aren't concerned about evasive answers. They want political theater. The democrats don't like our president. They want to poke him. So they are attacking nominees for refusing to comment on matters of political debate. Regarding that 2020 election.
▶ 0:22:58Chair Grassley: If that were not true, then surely my democratic colleagues have always demanded direct and robust answers to questions about the 2020 election. Right? Let's take a that how justice jackson responded when she was asked about the 2020 election. So, I have a poster here. I want everyone to see this.
▶ 0:23:27Chair Grassley: Especially my democratic colleagues, to see this. I want the american people to see this. I want "the new york times" to see it. When asked if she had ever commented on the results of the 2020 election, just inject -- justice jackson stated "it would be inappropriate for me to publicly way into a subject of political debate."
▶ 0:23:58Chair Grassley: Let me say that again, to be very clear. Justice jackson said "it would be inappropriate for me to publicly way in to any subject of political debate." she gave the same answer when asked whether she ever expects or expressed skepticism about the 2016 election results.
▶ 0:24:30Chair Grassley: Isn't that something? Justice jackson, like every nominee to come before this committee, this congress, didn't think it was appropriate for a judicial nominee to weigh in on political debate concerning the results of the 2020 election. I hope "the new york times" gets that.
▶ 0:24:55Chair Grassley: For my democratic colleagues -- were my democratic colleagues enraged by the suggestion that the results of the 2020 election were a matter of political debate? Did they say that her statements were "orwellian" in denial of reality"?
▶ 0:25:16Chair Grassley: Did the partisan progressive scribes at "the new york times" publish an entire article describing her response as "astonishingly"? Of course they didn't. Her answer then, like the answers of judicial nominees recently was entirely prudent and unremarkable.
▶ 0:25:46Chair Grassley: The hypocrisy from the other side and "the new york times" is breathtaking. My democratic colleagues need to stop and reflect why they have created a month-long circus about trump nominees for making the exact same point that justice jackson made during her confirmation hearings.
▶ 0:26:14Chair Grassley: I am satisfied with how recent nominees have answered the questions about the 2020 election. From here on, they should just quote justice jackson. They deserve better than hypocritical attacks. The american people do as well. Mr. birth -- Mr.
▶ 0:26:40Chair Grassley: Berthiaume earned his law degree from a new york university in buffalo, the school of law, 2000. He began his legal career as an assistant district attorney in manhattan.
▶ 0:27:02Chair Grassley: In 2005, he transitioned to private practice, where he advised on civil enforcement matters, as well as government and internal investigations. In 2010, he joined the justice department office of inspector general.
▶ 0:27:22Chair Grassley: Since then, he has been involved in several sensitive investigations to root out misconduct, fraud, waste, and abuse. These include the fbi's partisan crossfire hurricane probe and more recently, in an effort to determine the previous oig's level of invest -- involvement in jack smith's arctic frost witch hunt, as my and senator
▶ 0:27:56Chair Grassley: Johnson's oversight exposed, that partisan investigation secretly sought and obtained the records of many members of this very judicial committee. Briefly serving in the office of the dea of compliance and since 2023 served as an advisor to the inspector general in the department of housing and urban development.
▶ 0:28:24Chair Grassley: In 2025, he returned to the justice department in detail capacity and briefly served as acting inspector general and is currently serving as senior advisor to the deputy inspector general. He brings a wealth of experience and I look forward to hearing him today. Senator durbin?
▶ 0:28:48Sen. Durbin: Thanks, Mr. chairman. Breaking news, yesterday. The department of justice and internal revenue service reached a settlement agreement in trump versus internal revenue service, establishing a $2 billion settlement fund.
▶ 0:29:12Sen. Durbin: This anti-weaponization fund will likely be used to financially benefit the president, his family, his political allies, affiliated individuals, and related companies, as well as individuals that were tried for their crimes against this capital of january 6, 2021.
▶ 0:29:36Sen. Durbin: Moreover, the memorandum in support of the fund establishes that the united states is " forever barred and precluded from prosecuting or pursuing claims against president trump related or affiliated individuals, including without limitation family or others filing jointly, or related companies in trust," stating
▶ 0:30:11Sen. Durbin: That the united states has no liability whatsoever for misuse of funds into the anti-weaponization fund. Thereby facilitating the misuse by individuals who have already shown a complete disregard for the law. Imagine if joe biden went this far. Would we have a hearing in the judiciary committee? I know we would, and so do you.
▶ 0:30:35Sen. Durbin: Will there be a hearing in this committee when it comes to this new slush fund, which "forever bars and precludes from prosecution or pursuing claims against president trump, related individuals, including without limitation family and filing jointly." it's a get out of jail free card forever. That's the word that is used.
▶ 0:31:08Sen. Durbin: Worth a hearing in the judiciary committee? I certainly hope so. Mr. chairman, my congratulations to the nominees and their families. Hearings like the one we are holding today are a crucial part of the senate's advise and consent process. It's never been more important that the senate exercised his constitutional duty given that trip president trump expects his nominees to be loyal first and last, loyal to him, not to the constitution or the rule of law. This is not hyperbole.
▶ 0:31:39Sen. Durbin: It is not conjecture. Just last week, president trump hosted another rant on social media, lambasting judges who had the audacity to follow the law instead of catering to his wins.
▶ 0:31:56Sen. Durbin: After claiming that his supreme court nominees had shown so little respect, "federal judges should be loyal to the person that appointed them." very subtle.
▶ 0:32:10Sen. Durbin: In fact, judges take an oath that they will administer justice without respect to persons, and will "faithfully and impartially discharge any and all duties under the constitution and laws of the united states." nowhere in the oath does it say that judges are beholden to the president who nominates them. Nonetheless, the president continues to nominate his personal attorneys to serve as judges.
▶ 0:32:39Sen. Durbin: Matthew schwartz, who we will hear from this morning, the third personal attorney of the president who he has nominated to the circum--- circuit court seat. For his loyalty to the president, he has been rewarded with a lifetime appointment to the second highest court in the land.
▶ 0:33:00Sen. Durbin: In fact, he continues to represent the president in court in not one but two pending cases while this nomination proceeds, including the appeal of a new york state jury verdict finding the president guilty of 34 felony counts of falsifying business records stemming from $130,000 hush money payment to an adult film star, stormy daniels.
▶ 0:33:30Sen. Durbin: Those who are not lucky enough to become personal attorneys can jockey for the trump support in another way, supporting his legal arguments. Benjamin flowers fits that bill, challenging the pennsylvania administration on the 2020 election. Why? Because president trump claims to -- because he lost the popular vote in pennsylvania and was trying to overturn the results. Earlier this year, Mr.
▶ 0:33:57Sen. Durbin: Flowers filed a supreme court amicus brief supporting the president boss constitutional attempt to limit birthright citizenship. This executive order by the president has been rejected by every judge who has considered it. And appoint -- judge john kuhn are called it blatantly unconstitutional. Mr.
▶ 0:34:23Sen. Durbin: Flowers has shown that his northstar is loyalty to president trump, it's no surprise that his nomination is before us today. President trump was disappointed in the supreme court justices he appointed in his first term, reliable and conservative, they occasionally rule against him in for donald trump, this is an unforgettable -- unforgivable trail and the president is now
▶ 0:34:54Sen. Durbin: Putting forward nominees who have shown they are willing to more the rule of law so long as they follow his agenda. That's in direct conflict of what we require a federal judges throughout the history of this country. We should have confidence that jurists will be neutral arbiters who rule without fear or favor. I am deeply concerned that these nominees were tapped only to be loyal to him. That was his language.
▶ 0:35:25Sen. Durbin: I yield.
▶ 0:35:26Chair Grassley: Since you brought it up, not in difference from what you said, I would like to add my point of view to it. Over the decade, president trump and republican political apparatus have suffered the worst government weaponization in history. I've been involved in the crossfire hurricane and arctic frost oversights.
▶ 0:35:53Chair Grassley: These are just two examples of that. I think we have shown a lot of how wrongly they were handled or shouldn't have been handled at all. So, I think there ought to be accountability where there was wrongdoing.
▶ 0:36:10Chair Grassley: Let's not forget that when the biden justice department paid off disgraced fbi agent peter strzok and lisa page, in one case 1.2 million dollars, in the other case $800,000, if we all agree that they damaged our nation, democrats cheered them on. So, that's a double standard.
▶ 0:36:37Chair Grassley: That said, I understand that there are questions regarding the recent settlement. There are open questions about how this settlement will work and we have asked the justice department for information about this. I expect updates. I will note a few things that we do know from the justice department announcement. First, the president isn't receiving any taxpayer dollars, even though he was the victim of a felony.
▶ 0:37:06Chair Grassley: Second, the fund is designed to process and redress claims of others who suffered weaponization and can prove it. Third, there is no partisan requirements to file a claim. Of course, the questions remain, and I expect that members of this committee and the public will want more information about this fund and how it will work.
▶ 0:37:33Chair Grassley: Members will have an opportunity to ask about this in our oversight hearings that we have yet coming up. At the bottom, though, democrats allow the government to be weaponized against their political opponents. I don't think they have high ground to complain about government weaponization against political opponents.
▶ 0:38:01Chair Grassley: My democratic colleagues didn't lift a finger to hold the obama and biden justice department accountable. Senator husted, then senator lee.
▶ 0:38:14Senator Husted: It is my honor to fellow ohio in, Mr. benjamin flowers. Over the course of his career he has built deserves sterling reputation as a thoughtful and talented attorney. Whether it was during his time in public sector, he has always argued his case with conviction and compassion. Mr.
▶ 0:38:42Senator Husted: Flowers is a second-generation ohio state buckeye, having graduated summa cum laude in 2009, where he then went on to receive his jd from the university of chicago law school and began his career clerking for both circuit judge sandra siegel acuna and supreme court justice antonin scalia. Mr.
▶ 0:39:07Senator Husted: Flowers then spent several years practicing at jones day as an associate before serving the great state of ohio as our solicitor general. During his time as solicitor general of ohio, he took on several cases of enormous consequence, arguing them all with grace and skill.
▶ 0:39:29Senator Husted: He argued national federation of independent business versus the department of labor, leading a multistate challenge to the osha vaccine mandate, ultimately prevailing before the supreme court.
▶ 0:39:45Senator Husted: One particularly notable case that he argued was preterm cleveland versus mcleod, in which he defended the ohio prohibition on the termination of pregnancy based on a down syndrome diagnosis. Not only did he prevail, but he centered much of his argument on the human element of the case. Mr.
▶ 0:40:08Senator Husted: Flowers reached out to parents of children with down syndrome and spoke with them at length, ensuring that his approach was in the best in drift -- best interest of the downs syndrome community. This demonstrates the kind of person that ben flowers is in the kind of judge that he will be.
▶ 0:40:27Senator Husted: He is currently a partner at the law firm of ashbrook and flowers and is a devoted father of three young children who are well behaved, sitting there in the front row today. Mr. flowers also, and his wife and family, happen to be neighbors of mine. They live not far from our family and I drive past their home quite frequently.
▶ 0:40:58Senator Husted: I am certain that Mr. flowers will once again serve the people of ohio with honor and distinction in his new role as a judge for the sixth circuit, should my colleagues confirm him in a confirmation I strongly support. I know this, ben flowers will be loyal to the constitution and the rule of law. Mr. flowers, thank you for being here with your family today. Thank you, Mr. chairman.
▶ 0:41:25Chair Grassley: Thank you, senator he said. You can stay or leave, whatever you want to do. Senator lee?
▶ 0:41:34Senator Lee: It is my distinct honor and pleasure to introduce my friend, matthew schwartz, who president trump has nominated to serve on the U.S. circuit court of appeals. I've known him for decades. When we clerked together for justice alito, I saw him exemplify so many of the qualities that matter most in a judge.
▶ 0:41:54Senator Lee: Raw intellectual horsepower, discipline, and respect for the law and the constitution, understanding that laws have meaning and it is the job of a judge in so many instances to figure out the meaning using the tools available to lawyers to interpret the law.
▶ 0:42:13Senator Lee: He also had a strong appreciation for the difference between state and federal power and an appreciation for the essential and necessarily limited role of the federal judiciary. The role that article three judges play in our system.
▶ 0:42:33Senator Lee: With this nomination, the president continues to cement a lasting legacy of appointing judges who approach the law this way, with the understanding that you need to figure out what the meaning of the law is. To figure out the original public meeting at the time, something was adopted either as federal law or a part of the constitution to get to the right answer.
▶ 0:42:57Senator Lee: For decades yet to come, these judges, these men and women will interpret the law according to its meaning, thereby safeguarding the role. The role of the federal judiciary and the rule of law for many decades to come. Matt schwartz's record reflects the preparation necessary for this solemn responsibility and for this particular physician on the U.S. court of appeals for the second circuit.
▶ 0:43:29Senator Lee: He graduated cum laude from princeton and went on to obtain his law degree from columbia university, where he received the prestigious harlan fiske stone award. He then clerked for judge alito on the third circuit before joining crevasse, swain, and more as an associate. He then clerked for justice alito after he got himself put on the U.S.
▶ 0:43:54Senator Lee: Supreme court and following that clerkship, he joined the law firm of sullivan and cromwell in its new york office. His appellate practice has centered on arbitration and litigation. Matt has expertise in many of the areas of the law that are somewhat uniquely relevant in the second circuit.
▶ 0:44:23Senator Lee: The securities, antitrust, contract disputes, constitutional law, administrative actions, and commercial litigation. He has also advised on and advocated on matters related to legal ethics in the new york legal community.
▶ 0:44:44Senator Lee: But this is only a part of the story, as is career is not limited only to high-stakes commercial litigation. He has maintained a successful, meaningful, substantive pro bono practice through the new look -- new york presbyterian district he executes wills, powers of attorney, and health care proxies for patients suffering from aids and it is an active participant in community health
▶ 0:45:15Senator Lee: Organizations, including the american jewish medical association founded in the aftermath of the october 7 attacks to combat anti-semitism and health care. Judges, lawyers, breast-cancer alert, and organization of legal professionals promoting breast cancer awareness and education in underserved communities. In the alito chambers, matt schwartz was sort of the glue that kept us all together.
▶ 0:45:44Senator Lee: Not only was he someone that you could turn to on any matter for sound advice when drafting a bench memo or helping the justice with an opinion, and he would get the right answer over and over again, he was an enthusiastic and eager participant in making things fun, often having the best ideas . Every nine weeks, each chamber will host a gathering for the other law clerks. The alito chambers hosted the very best events.
▶ 0:46:14Senator Lee: Almost entirely due to the willingness of matt schwartz to do the hard work of setting those up and figuring out ways to make them fun and entertaining. We once got scolded I one of justice alito's assistance after matt schwartz offered to set up the christmas tree and said -- why did you make the jewish guys set up the christmas tree? This is the kind of guy that matt schwartz is. He volunteers to get the job done.
▶ 0:46:41Senator Lee: Makes it always looked seamless and effortless, even though it's not, and he does so with a smile and enthusiasm that's really infectious. Matt is also a devoted husband, a devoted father, and he will be introducing his family and just a moment. I look forward to my colleagues getting to know him.
▶ 0:47:07Senator Lee: In short, I can say with great confidence that he is a truly outstanding, exceptional, unusual, highly qualified nominee who will be a credit to the court of appeals for the second circuit and the judiciary as a whole. He will be faithful to the law and respect its traditional role and judicial oath of office, and he will be committed to the constitution of the united states. I am pleased to support his nomination and I urge my colleagues to do the same.
▶ 0:47:37Chair Grassley: Thank you very much. Would Mr. flowers and Mr. schwartz come forward, please? Please don't sit down until we give the oath. Do you swear that the testimony you are about to give before this committee will be the truth, the whole truth, and nothing but the truth, so help you god? Both have affirmatively said yes. Please.
▶ 0:48:06Chair Grassley: You, each of you can introduce anybody want to and say anything you want to in your opening statement. Then will have questions. Let's start with Mr. flowers.
▶ 0:48:17Mr. Flowers: Thank you, chairman, senators. I want to thank president trump. This is the greatest professional honor of my life. Thank you also to senators hugh stead and marino, for their kind words and support throughout the process. I mentioned this was the greatest professional honor of my life and that would be true of any circuit nomination, but it is especially true because I have been nominated to succeed chief judge jeff sutton.
▶ 0:48:46Mr. Flowers: Chief sutton is one of the greatest, most influential and admired circuit court judges in the history of this country. I've argued in front of them a lot. I've won and lost cases, but on each I left knowing that it would be decided fairly without fear of favor to anyone and if I am fortunate enough to be confirmed, it is my goal that every advocate feels that way about me.
▶ 0:49:12Mr. Flowers: I would like to briefly introduce some of the folks here to support me, beginning of my parents who are in from connecticut, where I was raised. My mom is a retired middle school art teacher and from her I continue to learn what selflessness looks like. My father founded a small business in connecticut and from him I learned what small business -- hard looks like.
▶ 0:49:36Mr. Flowers: He instilled in me a love for the buckeyes, leading me to enroll in ohio state, where are my first day I met my wife, that is here with parents and aunts. We started dating the first month we met and have never looked back. We are a team. Our greatest accomplishments are our three kids sitting on you.
▶ 0:49:59Mr. Flowers: My daughter asked you all to thank you for scheduling hearing today, it's our ninth birthday and she has been lobbying to play hooky, and you gave her the excuse that can be refused. Thank you, senator kennedy. We are also grateful to be joined by some of the friends and fathers down to find some's father daughter bonding for civics education at the same time. I want to conclude by thanking some people who couldn't be here today.
▶ 0:50:29Mr. Flowers: My sister and her family in california, my brothers-in-law in cleveland, my former boss, attorney general yost, and last but not least, justice scalia and justice a cook judge okuda, who passed away with cancer.
▶ 0:50:45Mr. Flowers: One of the few things I regretted about this process is that I was unable to call them and share the news of my nomination but I am utterly grateful for their mentorship in the example they set for anyone who is or aspires to be a judge and I look forward to discussing my nomination with you all.
▶ 0:51:00Chair Grassley: Mr. schwartz?
▶ 0:51:02Mr. Schwartz: Thank you, chairman, ranking member, members of the committee. Thank you for those kind words, senator lee, and I would like to thank president trump for the great honor of this nomination. Let me introduce my family a bit. My wife, amy, who have been married for almost 23 years now. We have raised four wonderful children.
▶ 0:51:27Mr. Schwartz: Amy and my daughter, beatrice, could not be here because of school and soccer commitments, but our three sons are here, as are our brother and sister-in-law, and my niece and nephew, who I thanked for coming up from philadelphia to support me here today.
▶ 0:51:44Mr. Schwartz: At home watching on television, I hope, are my mother, my sister and her family, my mother-in-law , my colleagues at sullivan and cromwell, and lots of friends, with their support throughout the process, it's been tremendous. I would be remiss if I didn't mention my father who we lost to leukemia 30 years ago. He was a wonderful man. Smart, kind, caring, creative.
▶ 0:52:12Mr. Schwartz: He was the life of every party and he knew what to do in every difficult situation and I still think about him every single day , but particularly on days like today. I would also very much like to acknowledge justice alito, who has been my mentor for 20 years now.
▶ 0:52:29Mr. Schwartz: From the moment I walked into his chambers in new jersey, his intelligence, his work ethic, and his basic human decency inspired in me a reference for the judicial branch in the important role it plays in our society. He and Mrs. alito have had a tremendous effect on my life and I thank them both for it. And I would like to thank god for the blessings given to me, my family, and the united states .
▶ 0:52:56Mr. Schwartz: I truly believe that we live in the best time and country in the history of humanity. If given the time and capacity to be confirmed I hope to pay back everything this country has done for me by upholding the rule of law and inspiring confidence in the federal judiciary.
▶ 0:53:14Chair Grassley: Thank you. We will have five-minute rounds of questioning and we will start out with Mr. flowers. Do you have any pout -- problem at all saying that joe thought -- joe biden was certified at all is the 2020 election and served four years as president of the united states?
▶ 0:53:32Mr. Flowers: I do not have any problem saying that.
▶ 0:53:35Chair Grassley: Do you agree with justice jackson's response when she was asked about her commentary regarding who won the 2020 election?
▶ 0:53:46Mr. Flowers: Yes, senator.
▶ 0:53:49Chair Grassley: K. That's very good. I agree with that answer is the correct one. Some of my democratic colleagues have been relentlessly attacking good public servants for answering this question the same way justice jackson did during her confirmation. I'm afraid to say that it's very hypocritical, cloaked as a concern for the truth. Mr.
▶ 0:54:18Chair Grassley: Schwartz, do you have the same answers?
▶ 0:54:23Mr. Schwartz: I have the same answers, senator.
▶ 0:54:27Chair Grassley: That settles it. Let's go to something else. Mr. flowers, you had an impressive legal career when you spent four years as the ohio solicitor general, where you handled the most important cases and appeals facing the state. How did your experience as the solicitor general prepare you for the federal ranch?
▶ 0:54:52Mr. Flowers: I argue the most important cases for the state and argued cases across a wide variety of matters. I was exposed to most any legal issue that comes before the courts. -- from the states. In that capacity, I defended ohio laws regardless of their political balance.
▶ 0:55:12Mr. Flowers: I would defend the state of ohio in environmental cases against pipeline companies and tax laws that could be challenged by business groups, but also any other laws that were passed, so I developed a healthy respect for the states, state laws and federalism, and I had the opportunity to speak with individuals affected by the positions that we took. In the s j q you will see the danny hill cases, one of the most gruesome murders I ever encountered as a lawyer.
▶ 0:55:42Mr. Flowers: I got to know the victim, the mother of the victim, and converse with her about the effect that the case had on her personally, so seeing that actual defense is something I will always carry with me.
▶ 0:55:56Chair Grassley: Mr. schwartz, you already covered how you served justice alito in different ways. Tell us your experience of clerking for justice alito and how it has shaped your legal career and what you learn from him that you intend to take with you to the federal bench.
▶ 0:56:18Mr. Schwartz: When I started working for justice alito in 2003 on the third circuit, I was a relatively young man, young lawyer. I learned from him patients, I learned from him to read everything that comes before you , consider all of the arguments fairly and to do the research and the work, to treat everyone respectfully both in your tone and in your acknowledgment of their arguments as well.
▶ 0:56:47Mr. Schwartz: That is something I have tried to carry with me throughout my legal career.
▶ 0:56:51Chair Grassley: Mr. flowers, you had a great experience with one of the outstanding justices, scully. Would you describe yourself as an original list? In your view, what are the strengths of that doctrine?
▶ 0:57:07Mr. Flowers: I wouldn't -- I would describe myself as an original list in the strength of the doctrine means that american citizens are bound by the written law and no one can be deprived of life, liberty, or property without a law that passes through this chamber and is signed by the president and carried out in a court by the judicial branch.
▶ 0:57:30Chair Grassley: Mr. schwartz, you been involved in banking, financial services, and securities regulations. A dense and complex part of the law. But it is highly relevant to the new york courts and second circuit. What is your most significant lesson that you learned as a practicing attorney? How has your experience in private practice prepared you for your role coming up? If you are approved?
▶ 0:58:07Mr. Schwartz: Thank you, senator. Those are particularly important areas on the second circuit. Many of the judges on the second circuit now are fine judges, but they have more of a prosecutorial background and I hope to be able to bring my experience in those areas, which are crucial to new york, to the bench, to be able to discuss them with my colleagues when I get there in terms of helping them understand statutes and
▶ 0:58:37Mr. Schwartz: Regulations and give the circuit a bit of that experience as well , if I'm confirmed.
▶ 0:58:43Chair Grassley: Senator durbin?
▶ 0:58:46Sen. Durbin: Thank you, Mr. chairman. Thank you, witnesses. Mr. flowers, thanks to public records, certain emails for your time and the attorney general's office in ohio are publicly available. Those emails make it clear that you knew how in your words "disgraceful" the election to nihilism by the president and his allies turned out to be.
▶ 0:59:11Sen. Durbin: In response to an email from the then missouri solicitor general about joining a brief that missouri planned to file as a part of the texas challenge to the results of the 2020 election , you emailed the attorney general of ohio, and here's what you said.
▶ 0:59:30Sen. Durbin: "everyone I've spoken with agrees this suit is a terrible idea and would tarnish the credibility of any office that gets involved." another email you wrote, "arizona's solicitor general was in agreement with me that a new brief would not solve the problem.
▶ 0:59:48Sen. Durbin: The danger stems not from the missouri brief, but from the case itself." in another email you noted, "missouri, arkansas, louisiana, mississippi, south carolina, utah, have moved to intervene, adopting the allegation in the texan bill of complaint." you added, "this is really becoming a disgrace." in reference to the election to nihilism lawsuit.
▶ 1:00:19Sen. Durbin: Do you still believe that the lawsuit challenging the results of the 2020 election was a terrible idea?
▶ 1:00:24Mr. Flowers: Thank you for the chance to address that. I believe that the premise of your question was that election to nihilism was a disgrace. I think I was addressing a particular case. I will point you to the brief I filed in the case, we said the supreme court had a constitutional obligation to hear the case, but that pursuant to the independent state legislature theory, which we had advanced in other cases as the state of ohio, we would not be able to join because of the
▶ 1:00:55Mr. Flowers: Particular relief being sought. I believe it was the relief being sought to which the emails referred.
▶ 1:00:59Chair Grassley: Do you still believe that the attempt to dispute the outcome of the 2020 election was a disgrace?
▶ 1:01:05Mr. Flowers: I don't believe that that is what the emails say. I believe they are referring to the particular relief sought in that case, but I will refer you to the justices comments that it would not be appropriate to weigh in on this as a judicial nominee.
▶ 1:01:20Sen. Durbin: You don't want to answer?
▶ 1:01:22Mr. Flowers: My answer is to follow the lead of justice jackson and declined to say anymore.
▶ 1:01:28Sen. Durbin: Mr. schwartz, on your law firm's website, you take credit for persuading the delaware supreme court to reinstate the $50 billion incentive compensation plan for tesla ceo elon musk. Do you commit that if you are confirmed, you would recuse yourself from all matters relating to elon musk and pending cases related to doge actions?
▶ 1:01:54Mr. Schwartz: I was a member of a team that worked on that case for tesla, not for Mr. musk, but I commit to you that I will follow all the recusal requirements under the judicial codes and I will follow those on a case-by-case basis when it comes to tesla and Mr. musk when it comes to any case that might come before me of confirmed.
▶ 1:02:22Sen. Durbin: You are currently serving as president trump's attorney in two cases on appeals?
▶ 1:02:25Mr. Schwartz: Correct.
▶ 1:02:27Sen. Durbin: Stormy daniels hush money case and a civil suit that resulted in a judgment against the president and his business entities for inflating business assets. You are the third two judicial nominee before the committee who has served as the president's personal attorney.
▶ 1:02:47Sen. Durbin: The president has suggested that his judicial appointees should not will against him, "it's really ok for them to be loyal to the person who appointed them." it's clear that the president expects you to be loyal if confirmed. Why should we trust you given these statements from the president to place the constitution in your -- and your professional obligations ahead of your personal loyalty to the president?
▶ 1:03:17Sen. Durbin: I'm obviously not going to comment on the quotations from the president, but I will commit to you that if confirmed and if I take the oath of office that I will be impartial without -- he and I will rule without fear or favor, an oath I would take extremely seriously.
▶ 1:03:34Sen. Durbin: Will you recuse yourself from all matters which you represented president trump? >> how would you characterize you -- your judicial philosophy or approach to the law.
▶ 1:04:07Sen. Durbin: The same principle applied. Looking for the original meaning of the purpose of the constitution. One of the often underappreciated legal documents relevant to article three judges , particularly court of appeals, but in the district court's, involves article three. Separate but related freestanding doctrines and political questions.
▶ 1:04:38Sen. Durbin: It's a good way to kill the buy that any party. A good way to put people to sleep. A lot of people don't find it interesting. Yet it is very important. Why do these doctrines matter under the constitution?
▶ 1:04:53Mr. Schwartz: Senator, the federalist papers describe it as the least branch. One of the reasons was the restrictions you mentioned. It means that cases and controversies can come before the course.
▶ 1:05:20Mr. Schwartz: Without commenting on the structure of other countries, they have much more power than the courts do in the united states, to keep our system of checks and balances it is important that each branch, especially the judiciary, stays in its own lane and understands its role that it is supposed to be ruling on the law in its judgment without enforcing a personal will on general topics or trying to enforce the law as the executive branch should be doing.
▶ 1:05:50Senator: In a case of standing as a plaintiff in federal court, with injury traceable to the conduct of the defendant capable of being remedied by a court of jurisdiction, these are jurisdictional nonwaivable elements that have to be satisfied.
▶ 1:06:11Senator: In particular, withstanding, why does it matter so much that we have this somewhat rigidly enforced rule, for example, like in the case of standing. He can't assert an injury that doesn't belong to you. That is only tangentially related to you. Has an attenuated impact on your life. Why does that matter so much?
▶ 1:06:41Mr. Schwartz: I can think of two reasons. One, we don't want the courts just pontificating on various issues where there is not actually a dispute in the courts don't actually do get involved. That's much more for the political branches of our government.
▶ 1:07:00Mr. Schwartz: Second, you actually want fair representation on both sides of an issue before a court makes a decision and if you have someone who is bringing a case and they are not really arguing the side they need to argue, it can lead to bad outcomes from the courts. You don't have proper briefing or the incentives of the parties. Those are two reasons that come to the top of my head about why standing is important.
▶ 1:07:24Sen. Lee: If confirmed, you will be hearing appeals from district courts. One of the many scenarios in which you will be reviewing appeals will be in the civil context, appeals for dispositive motions. Motions to dismiss or for summary judgment. In the context of a dispositive motion, do you have any thoughts about which is worse or whether one is worse than the other?
▶ 1:07:55Sen. Lee: In a close case, denying a meritorious dispositive motion or granting a nonmeritorious dispositive motion. It is one worse than the other?
▶ 1:08:08Mr. Schwartz: Senator, I have had the privilege of filing dispositive motions and opposing them. I think that erring on either side is really problematic. In one case you get rid of a valid claim or case and in the other you are subjecting the other party to potentially extraordinary burdensome and costly litigation.
▶ 1:08:30Mr. Schwartz: I think that in general given the federal rules of civil procedure and the standards for 12 motions and rule 56 motions, close cases are usually decided against granting dispositive motions under those standards, but I think that judges need to be careful on those issues and neither one is good.
▶ 1:08:49Sen. Lee: A related point that relates closely to that, sometimes you will have judges at trying to wrap themselves in the flag, declining to grant belief or to act, to grant an injunction or something, where it may be warranted. Like I said, the related question is -- which is worse? Judicial activism where the action is not warranted, or judicial passivity, where the action is warranted?
▶ 1:09:22Mr. Schwartz: I think they are both problematic. Judicial passivity has some attractiveness because it defers more to the elected branches of government, but when you engage in that, you a course might be denying rights to individuals that they have under the constitution or statutes. It is very important for a judge to think about those issues and try to come up with the right decision rather than having a bias towards action or passiveness.
▶ 1:09:52Sen. Lee: To quote rush, if you choose not to decide, you still made a choice.
▶ 1:10:04Senator Whitehouse: In the context of what has recently happened at the treasury and in the department of justice, the setting up of the $1.8 billion cop beating slush fund the very week here in washington, I thought that Mr.
▶ 1:10:21Senator Whitehouse: Schwartz's comments about the merit of standing indicated quite clearly why the self-dealing cop beating slush fund is so deeply, deeply problematic. Without even going to the trump family tax amnesty that it provided with literally one lawyer's signature on the document. Usually if there is a contested matter, there are two parties.
▶ 1:10:51Senator Whitehouse: In this case, one lawyer signed and we don't know if he signed it as the attorney or trump's personal lawyer, but we know it created a one point $2 billion cop beating slush fund and we know it gave the trump family and associated businesses amnesty from any tax mischief or fraud that they may have committed and it's really hard to see how there could be any controversy in that little scheme. I also want to note that Mr.
▶ 1:11:22Senator Whitehouse: Schwartz is here without loose lips from the second circuit state. Just to remind everybody, I warned when we got rid of the circuit court blue slip that this would be unpleasant. I have had colleagues on the other side express their dissatisfaction when they were ignored for blue slips. So, here we are again.
▶ 1:11:46Senator Whitehouse: I don't want to hear a lot of complaining about blue slips in the future after we go through these exercises and ignore senator's writes to have a blue slip. But I'm going to talk about something different that just happened fairly recently. In wyoming, a U.S. was sanctioned by the federal court, nine criminal indictments were thrown out.
▶ 1:12:13Senator Whitehouse: As a result of improper conversations with grand juror's by the U.S. attorney. He called the defendants murderers, even though they were not homicide charges in the proposed indictment. He called them bad guys, not run-of-the-mill criminals.
▶ 1:12:37Senator Whitehouse: He handed out his business cards to the grand jurors and invited them to get in touch with him privately. One l could do issue spotting in the fact pattern and find a massive, massive error and misconduct.
▶ 1:12:58Senator Whitehouse: It was challenged by the lawyers for the defendants, who said this was not an isolated lapse, it had metastasize into systemic institutional favor and been maintained as widespread and continuous and guess what?
▶ 1:13:12Senator Whitehouse: The court agreed, saying that the cumulative effect of many known instances of misconduct, implying that there may be further unknown instances of misconduct, justify dismissing the complaints. The court found that none of the U.S.
▶ 1:13:32Senator Whitehouse: Attorney's excuses carried water when viewed, quoting, when viewed against the volume and flagrant see of the misconduct, concluding that this U.S. attorney had abused his special position of trust. Here's what's interesting about the order and that U.S. attorney. The order was filed on may 15 of this year. Three days later, may 18, that U.S.
▶ 1:14:00Senator Whitehouse: Attorney, who had been voted on in this committee, was slipped into the big unblocked list for confirmation, without anyone in the senate being told about the may 15 order regarding his professional misconduct. I've got to say, I don't think that's the way this committee should operate.
▶ 1:14:25Senator Whitehouse: I think that if there is an order from the federal court challenging the integrity and federal competence of a U.S. attorney who is pending before the U.S. senate, and we are not informed about the order for three days and we don't even get an individual vote on the nominee and instead he's buried into the unblocked route, which I think was 49 different confirmations that day?
▶ 1:14:58Senator Whitehouse: That is not what the senate is supposed to be. This guy should not be a U.S. attorney, and his confirmation should certainly not have been slip then without disclosure of this order into an unblocked confirmation vote. I think the senate was misled by that, and my time is expired.
▶ 1:15:22Chair Grassley: Thank you, Mr. chairman. -- Sen. kennedy: thank you, Mr. chairman. Congratulations, gentlemen. Mr. flowers, I want to ask about an article you wrote last year called "the departmental is him -- the departmentalism in the age of trump."
▶ 1:15:46Mr. Flowers: It was a speech I gave.
▶ 1:15:49Sen. Kennedy: Yes. As I read it, you espoused the view that each department of the federal government has the responsibility to interpret the constitution. Did you mean each department or each branch. Tell me about that article.
▶ 1:16:09Mr. Flowers: They would be synonymous. I was referring to both branches. The theory -- new line Sen.
▶ 1:16:15Kennedy: So you were referring to branches.
▶ 1:16:19Mr. Flowers: Correct. The theory of denmark -- departmentalism, abraham lincoln the most important person to express it, every federal official takes an oath to the constitution and has a duty to abide by it. Sometimes your people say the constitution is what the courts say it is. That is not quite right. Every official has the duty to interpret the constitution. For example, the supreme court -- new line Sen. kennedy: I get it.
▶ 1:16:47Mr. Flowers: So, congress has a right to interpret the constitution, right?
▶ 1:16:53Mr. Flowers: Correct. A duty to.
▶ 1:16:57Sen. Kennedy: What happens of congress interprets the constitution one way and the united states supreme court interpreted another? Who wins?
▶ 1:17:07Mr. Flowers: So, if that law is challenged in court, the court has a duty to say what the law is, and with respect to those parties, they will issue a judgment.
▶ 1:17:17Sen. Kennedy: I get all that, but who wins?
▶ 1:17:19Mr. Flowers: In that case, the court would win with the -- with respect to the parties. Congress would be free to pass the same law again.
▶ 1:17:28Sen. Kennedy: Given the fact that the executive branch and the legislative branch of the federal government both have the authority to interpret the constitution, according to your theory, as well of course is the courts, is there any -- suppose the executive branch interprets the constitution one way and the supreme court interprets it another way, who wins?
▶ 1:17:54Mr. Flowers: So the court will when when the case -- the court will when in the sense that it will interpret the law, and its interpretation of the law will be binding on the parties in the case before it. Not necessarily binding on future parties. The executive would be free to try again with another party.
▶ 1:18:14Sen. Kennedy: So, are you saying that if the president disagrees with an interpretation by the supreme court, that the president is not a party, the president can ignore the supreme court ruling?
▶ 1:18:30Mr. Flowers: He can certainly not ignore the supreme court ruling with respect to the parties with whom the judgment applies. Abraham lincoln --
▶ 1:18:37Sen. Kennedy: I am trying to drill down to understand, counsel, would you really said. Suppose that the supreme court issued -- let's take the count-a decision, can the supreme court rule -- some like it, some don't, the president was not a party. Nor was chairman grassley.
▶ 1:19:06Sen. Kennedy: If they disagreed with that, the president or chairman grassley, can they just ignore it? Is that what you are saying?
▶ 1:19:20Mr. Flowers: No, I would not say ignore it. They're obligated to carry the judgment and effect.
▶ 1:19:26Sen. Kennedy: I am confused. I'm sorry. I agree with you, everybody should pay attention to the constitution.
▶ 1:19:34Mr. Flowers: Can I provide a concrete example from history?
▶ 1:19:37Sen. Kennedy: No, because I'm running out of time. I'm sorry. We will talk about this later. I just don't -- do you think any of us have the right to defy a federal court order?
▶ 1:19:50Mr. Flowers: Generally know, with an exemption, there is an exception for orders in cases where the court lacks jurisdiction. Setting that aside.
▶ 1:19:58Sen. Kennedy: Is that for what?
▶ 1:20:01Mr. Flowers: In which it lacks jurisdiction, then parties are not bound by that order. Generally speaking, they are bound.
▶ 1:20:08Sen. Kennedy: Why don't you appeal?
▶ 1:20:09Mr. Flowers: You can do that.
▶ 1:20:11Sen. Kennedy: So in your opinion, the court did not have jurisdiction, you can ignore it?
▶ 1:20:17Mr. Flowers: Generally know, but there is a long stated exception in the law that courts have recognized firm in the lower court lacked jurisdiction. I would never advise a client to do that, because if you are wrong --
▶ 1:20:28Sen. Kennedy: I hope not. I mean, this business of ignoring a federal court order is nonsense. It is nonsense on stilts. You may not agree with a court order, that is fine, this is america. You don't have to agree with it. That is why god made courts of appeals. You're not suggesting that we don't all have to -- give me an instance -- I'm way over.
▶ 1:20:59Sen. Kennedy: Give me an instance where you think a federal court order can be ignored.
▶ 1:21:05Mr. Flowers: The only one of which I am aware is if the court had no jurisdiction over the case and issues the order anyway and you do not follow it, you cannot later be held in contempt for doing so. Aside from that, parties must follow orders.
▶ 1:21:18Sen. Kennedy: My last question, Mr. chairman. You have been patient. Who gets to determine whether they like jurisdiction?
▶ 1:21:24Mr. Flowers: Effectively, the appeals court. That is why I would never advise it. Because if you are wrong and they lacked jurisdiction, you are held in contempt.
▶ 1:21:33Sen. Kennedy: Thank you, Mr. chairman. I am sorry, Mr. schwartz, I do not get to you.
▶ 1:21:39Chair Grassley: Senator klobuchar.
▶ 1:21:43Sen. Klobuchar: -- Sen.
▶ 1:21:46Klobuchar: Thank you, as ohio's solicitor jenner, you fight amicus brief in supreme court has set us the court to challenge the administration of the 2020 election in pennsylvania. The president has not issued an executive order to overhaul our nation's elections and assert federal control over state run elections in minnesota and 18 other states suit and want a preliminary injunction. Do you agree with much of judge presiding in that case wrote.
▶ 1:22:09Klobuchar: He said or she said, the constitution does not grant the president any specific powers over elections. Quick's senator, I cannot comment on pending litigation. As you describe it, it sounds as though this litigation is pending, so I believe I should not say anything.
▶ 1:22:28Sen. Klobuchar: I will note that you did sign this brief, and I reminded of one of our colleagues, they said when we had a nominee in front of us, caitlin halligan, were questions were raised of a brief, she filed a solicitor general in new york and a colleague said some of our colleagues have argued that we should not consider this aspect of a record because at the time she was working as a solicitor general of new york, but no one forced her to approve and sign the brief.
▶ 1:22:59Sen. Klobuchar: I think we should consider that as we look at your record. Mr. schwartz, president trump has claimed I have an article to where have the right to do whatever I want as president. He has said, I have the right to do anything I wanted to do, I am president of the united states. Do you believe the president is able to do anything he wants to do?
▶ 1:23:18Mr. Schwartz: Senator, without commenting on those specific words and I do not know the context for them, we obviously have a constitutional system of checks and balances here at the exhibit a -- executive branch is very strong in certain areas and has tremendous amounts -- tremendous up ounce of power and discretion. In other areas, the other branches have power and discretion. There is a balance amongst them. Without knowing the context of that, I really cannot comment further on it.
▶ 1:23:46Sen. Klobuchar: Ok. Mr. flowers, as a solicitor general, you defended ohio's law that banned abortion, the foremost women know they are pregnant at just six weeks which included no exceptions for rape or incest.
▶ 1:24:00Sen. Klobuchar: As you know, a 10-year-old girl in ohio got pregnant when she was raped, and she could not get the care she needed at home following the rape, and because she was three days past ohio's six week limit and there was no exception for rape, show head -- she had to travel to indiana to get access to abortion care.
▶ 1:24:20Sen. Klobuchar: You urged the court to lift a trial judge's preliminary injunction of ohio's abortion ban, arguing each day the law was enjoined, it inflicted irreparable harm on the state. Do you believe this girl and other women in the state who were impacted by the law suffered irreparable harm?
▶ 1:24:39Mr. Flowers: Senator, anyone who is raped, particularly a child, suffers irreparable harm, no doubt about that. As solicitor general, my job was to defend the laws. If I had a good faith basis to do so, I would do that. That was true regardless whether the law was liberal or conservative. I defended the moment we had a valid constitutional basis to do so.
▶ 1:25:01Sen. Klobuchar: Given you argued the court should uphold ohio's law a full year after this incident with this 10-year-old ohio girl who was raped, what would you say to litigants who questions that you can be evenhanded in applying the law, including two women trying to dip -- vindicate their rights?
▶ 1:25:21Mr. Flowers: Senator, it will be my top priority to ensure the litigants, as I said about chief judge sutton, recognize I'm fairly considering the cases before me. The case which you are referring, when we argued for outgroup -- irreparable harm, it was a doctor and this is when a state law is enjoined, that is per se irreparable harm. So I was advancing settled legal principles as applied to that case.
▶ 1:25:43Sen. Klobuchar: I think a judge's job is to apply the law to the facts, and I am just looking at the facts of that case. I think most people would believe that it was the girl suffering irreparable harm. Mr. flowers, you have argued that timidly, your words, timidly, following the principles of textualism and judicial restraint, it is unacceptable for the conservative movement of today which seeks to reverse not just arrest our national decline, a movement that wants to kneecap the administrative state will not be satisfied with the court
▶ 1:26:16Sen. Klobuchar: Content merely to erect some hurdles. What agency -- what agencies do you want to kneecap?
▶ 1:26:24Mr. Flowers: Senator, I did not say I would want to kneecap any agencies, and I cannot express views on policy matters anyway. But I was addressing is the supreme supreme court and certain resistance to textualism among some younger attorneys that I was meeting at law schools. I was not saying those are my personal views.
▶ 1:26:43Sen. Klobuchar: But is the quote not a movement that wants to kneecap the administrative state -- what is the administrative state if it is not agencies of the united states government?
▶ 1:26:53Mr. Flowers: Senator, I was not describing my views, I was saying that for the people who wish to curtail administrative powers, they would not be content with a certain approach to textualism, and I was speaking only about the supreme court. As a circuit nominee, I would be bound by precedents at the supreme court and would faithfully abide it.
▶ 1:27:11Sen. Klobuchar: One agency, the ftc, helps enforce antitrust laws, something I care a lot about, as does the chairman. And it has put millions of dollars back in american pocketbooks. In 2024, the ftc returned $337 million to refunds and consumers. It is one example.
▶ 1:27:31Sen. Klobuchar: When I hear the words from a nominee that they want to kneecap the administrative state in that is not to say we do not need reforms and laws passed to make things work better, but to me, that just makes me really concerned of impartiality when it comes to a judge. Thank you.
▶ 1:27:48Chair Grassley: Before I call on senator blumenthal, I want to enter into the record letters supporting Mr. flowers' nomination. A bipartisan group of 39 current and former state solicitor general's have endorsed Mr.
▶ 1:28:05Chair Grassley: Flowers and stated, we worked closely with ben on many important matters, and he displayed incredible leadership and extraordinary legal skills in litigating novel and complex issues of great national significance.
▶ 1:28:24Chair Grassley: The letter went on to state, while we are a bipartisan group, we very and political and judicial views, we all agree that ben is exceptionally qualified and will serve and merrily. Without objection, I will enter the letter in the record. Senator blumenthal.
▶ 1:28:46Sen. Blumenthal: Thanks, Mr. chairman. Thank you both for your willingness to serve and for being here today. Mr. flowers, who won the 2020 election?
▶ 1:28:57Mr. Flowers: Senator blumenthal, I will incorporate the answered that was referred to earlier, it would not be appropriate for me to comment on the outcomes of any election except to say that, legally speaking, joe biden was serving --
▶ 1:29:10Sen. Blumenthal: Ms. jackson said it would be inappropriate for her as a sitting federal judge. You are not a sitting federal judge. Who won the 2020 election?
▶ 1:29:22Mr. Flowers: Senator, it has long been understood the nominee should abide by the same code of ethics that binds sitting judges. I think your example is persuasive.
▶ 1:29:33Sen. Blumenthal: I think your failure to answer that question mocks this committee, and I will just say to you, she declined to answer based on the code of ethics because at the time she was a sitting federal judge. Frankly, I know justice jackson. You are know justice jackson. And I would ask her the same question and insist on her answering it if she were the nominee today.
▶ 1:30:03Sen. Blumenthal: So I will give you one more chance. Who won the 2020 election, sir?
▶ 1:30:08Mr. Flowers: I will again adhere to justice jackson's precedent.
▶ 1:30:14Sen. Blumenthal: Mr. schwartz, who won the 2020 election?
▶ 1:30:17Mr. Schwartz: I think the answer justice jackson gave his legally and ethically correct --
▶ 1:30:23Sen. Blumenthal: You recognize that you not a sitting federal judge.
▶ 1:30:26Mr. Schwartz: The rules for judicial conduct apply to judicial nominees.
▶ 1:30:30Sen. Blumenthal: No, they don't, Mr. schwartz, and you know better. And you are, in fact, fooling, or trying to fool, this committee and the general report -- public. You have appeared before a lot of the second circuit judges, I'm willing to bet you know they would not answer the question this way. Who won the 2020 popular vote, Mr. schwartz, and the election?
▶ 1:31:02Mr. Schwartz: Consistent with the answer that justice jackson --
▶ 1:31:07Sen. Blumenthal: It is a matter of public record. You would not answer the question in this way if you were before a judge, would you?
▶ 1:31:17Mr. Schwartz: Senator, sitting here as a judicial nominee, I am bound by the codes of conduct, and I cannot answer that question in the way you want me to because the only legally and ethically correct answer is the one that prior nominees have given. Which is that joe biden was certified as president in 2020.
▶ 1:31:36Senator Blumenthal: Mr. flowers, this answer that you have given obviously has been rehearsed. Who did you meet with at the white house before you came here in preparing?
▶ 1:31:48Mr. Flowers: Senator, I did practice routes, suppose you would call them, with folks from white house counsel. I did not practice a particular answer, I responded to the question you asked.
▶ 1:32:01Sen. Blumenthal: Sounds to me like you practiced. Mr. schwartz, did you practice, as well?
▶ 1:32:06Mr. Schwartz: Senator, I did roots with Mr. flowers and other people. But this answer is the same answer that has been given by justice jackson and by prior nominees, as well, because it is the correct answer legally, and it is the only ethically acceptable answer.
▶ 1:32:28Sen. Blumenthal: Was the capitol attacked on january 6?
▶ 1:32:32Mr. Schwartz: There was definitely trespass and violence at the capitol on january 6 and obviously violence against law enforcement organs political actors is unacceptable.
▶ 1:32:42Sen. Blumenthal: So the capitol was attacked violently on january 6, correct?
▶ 1:32:48Mr. Schwartz: You're asking me to weigh in on two public characterizations. What I will say is that the capitol, there was trespass and violence at the capitol on january 6.
▶ 1:32:57Senator Blumenthal: You know, what makes me angry is not just the insult to the role of this committee but to our intelligence. Do you really expect us to accept these canned, rehearsed, practiced answers repeated again and again and again by judicial nominees who have an obligation to be truthful and, most important, an obligation to be
▶ 1:33:30Senator Blumenthal: Independent? You both know better. You both have records of litigating. And you both would expect more of nominees in your position because, above all, a federal judge must be independent without fear or favor, and your fear, apparently, of donald trump, so much so that you practiced with the white house before you came here and
▶ 1:34:01Senator Blumenthal: Rehearsed this answer and are repeating by rote wit you have been told to say I'm in my view, is disqualifying. And I'm really disappointed in both of you, because I would have expected better. Thanks, Mr. chair. >> can I make a point of personal privilege?
▶ 1:34:23Senator Blumenthal: On page three on the judicial ethics, it is pretty clear, and it says right here and black and white, the code is designed to provide guidance to judges and nominees for judicial office. Just want to make that clear.
▶ 1:34:42Chair Grassley: I hope my opening statement I meant to make to put an answer or an end to this circus --
▶ 1:34:56Sen. Blumenthal: You need more than they are trying to clean up for you.
▶ 1:34:59Chair Grassley: I think what justice jackson said is very clear. Put that chart up again. And what senator lee just said was the same point that justice jackson was making about the practice before the supreme court. So let me read what jackson said , it would be inappropriate for me to publicly way into any subject of political debate.
▶ 1:35:32Chair Grassley: I don't know what more I could say to put an end to this issue. It brings in a whole lot of hypocrisy and efforts to create sound bites to make qualified people to be on the courts, legitimate versus their efforts to make the appointment illegitimate.
▶ 1:36:00Sen. Blumenthal: And fairness to justice jackson, I wanted to point out that the full quote is, as you have described it, and appropriate to comment as a pending judicial nominee and a sitting federal judge. They are not sitting federal judges. I also want to point out, Mr.
▶ 1:36:27Sen. Blumenthal: Chairman, that justice jackson's response was not sitting here, it was in a written response, so putting her picture there with her right hand raised I think is a bit misleading, but the fact of the matter is, I will rest my case on what I have said here, and I will be voting against these nominees based on their failure to respond to the
▶ 1:36:59Sen. Blumenthal: American people, not just us.
▶ 1:37:00Chair Grassley: Senator hirono.
▶ 1:37:03Sen. Hirono: Thank you, Mr. chairman. We know that president trump expects all of his nominees to be loyal to him and with regard to his judicial nominees, he expects the same thing, so yes, we get these answers to simple questions that are rote. Initial questions of all nominees before any of the committees in which I sit to enter the fitness to serve. So I will ask these initial questions, starting with Mr. flowers and then Mr. schwartz.
▶ 1:37:34Sen. Hirono: 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?
▶ 1:37:45Mr. Flowers: No, senator.
▶ 1:37:47Mr. Schwartz: Know, senator.
▶ 1:37:50Sen. Hirono: Have you faced disciplined or entered a settlement relating to this kind of conduct. Flowers pump never.
▶ 1:37:56Mr. Schwartz: No, senator.
▶ 1:38:02Sen. Hirono: Mr. flowers, you filed an amicus brief when solicitor general and ohio in a case called brandt versus pompo, involving the application of ohio's caps on noneconomic damages to a civil suit by a rape survivor against her rapist. Do you remember doing that?
▶ 1:38:25Mr. Flowers: I have a vague memory of the case, yes.
▶ 1:38:28Sen. Hirono: So you filed that amicus briefs in support of the rapist's position, arguing that ohio's law artificially limiting the amount of the survivors damages for pain-and-suffering was constitutional in the ohio supreme court disagreed with you.
▶ 1:38:44Sen. Hirono: I want to ask you, in your brief, you wrote that the damages cap "protects against the risk that a jury presented with a suffering victim will award more than is necessary to fully compensate that victim." can you explain why the jury verdict in that case of awarding $20 million to the rape victim was more, in your view, than was
▶ 1:39:14Sen. Hirono: Necessary to fully compensate her?
▶ 1:39:17Mr. Flowers: Senator, we never take that position. I filed that brief on part of ohio, in the position was that the law was constitutional.
▶ 1:39:24Sen. Hirono: Can you speak into the microphone.
▶ 1:39:27Mr. Flowers: The position we took was that the law did not violate the ohio constitution. We never argued that the particular award in that case was excessive. All I was doing was my job, which was to defend the constitutionality of the law in question.
▶ 1:39:42Sen. Hirono: You may not have argued that $20 million was excessive, but that was the effect of your argument. Frankly, the state of ohio was not even sued in this case. Yet, you decided that you should present yourself as solicitor general tried to limit the award.
▶ 1:40:01Sen. Hirono: So I can see where the state did not have an economic interest in your position, but the people who did have an interest in it where the big businesses and insurance companies who love the limitations of recovery and these kinds of lawsuits. So you had the option of not weighing in. The state of ohio was not a party to this lawsuit. Yet, you weighed in on behalf of basically the rapist.
▶ 1:40:34Sen. Hirono: To say that you were performing your duty, I think you're using your discretion in ways that basically serve the interest of the business interests and insurance companies who did not want to pay out $20 million. Another question. Last june, you wrote a post on your blog titled "some thoughts on the future of textualism and concerns about its timid application." do you remember that post?
▶ 1:41:02Mr. Flowers: I do, senator.
▶ 1:41:05Sen. Hirono: You adjust text relist judges and wrote, "timid textualism is not useful for those who wish to reverse, not just stop, the degradation of america's constitutional order and traditional western values." Mr. flowers, can you list some of the traditional western values that courts have a role in restoring?
▶ 1:41:31Sen. Hirono: I assume that should you be confirmed, then you will be a judge, you will be a judge that will seek to restore traditional western values in a non-timid textualism. So can you tell me what you consider to be traditional western values?
▶ 1:41:50Mr. Flowers: Senator, one example of that would be freedom of speech. But I was not, to be clear, referring to my views, I was addressing the views of many young lawyers who I have heard expressed these concerns. And based on those concerns, expressed skepticism about textualism. I was not advocating that courts set out to do this, and as a circuit judge, I would faithfully apply the law and abide by supreme court precedent.
▶ 1:42:16Sen. Hirono: You certainly gave the indication that you would become a non-timid judge that would be seeking to restore traditional western culture. I would say, those are words that do not necessarily talk about freedom of speech, which this regime is very busy trying to stifle, by the way. Thank you, Mr. chairman.
▶ 1:42:38Chair Grassley: Senator welch.
▶ 1:42:38Sen. Welch: Thank you very much. Could you define textualism, Mr. flowers?
▶ 1:42:46Mr. Flowers: Absolutely. Textualism is, in my view, it is the same as originalism. Textualism with respect to statutes, originalism constitution. It means words have a fixed meaning into law and courts should apply the law according to that fixed meaning.
▶ 1:43:04Sen. Welch: Does that mean that the judges have to go back to what the meaning of the word was when the constitution was written in order to interpret it in today's situation?
▶ 1:43:17Mr. Flowers: It would depend on the constitutional provision in question. The 27th amendment, for example, was ratified in the 1990's.
▶ 1:43:26Sen. Welch: I am talking about the constitution. You set originalism and textualism are the same thing. Potentially, it says we have to go back to the original document, right?
▶ 1:43:36Mr. Flowers: That is correct. The original public meeting at the time the document was ratified.
▶ 1:43:42Sen. Welch: At the time the document was ratified, was passed, we do not have a guy, did not have the government we have -- we did not have ai. Is that correct?
▶ 1:43:55Mr. Flowers: Correct.
▶ 1:43:56Sen. Welch: There is no way to the people who wrote the document, using the words available to them, had in mind the application of those words to what now exists in the 21st century. Would you agree or not?
▶ 1:44:09Mr. Flowers: But they did agree with broad principles that can be applied to those technologies.
▶ 1:44:15Sen. Welch: How? How did the writers of the constitution have a thought about the internet? Explain that.
▶ 1:44:21Mr. Flowers: Let me give an example of a case. It is one that my former boss justice scalia wrote about thermal imaging of homes and if a thermal imaging device, what didn't -- which did not appear at the founding, could appear in a home by entering, that would constitute a search.
▶ 1:44:40Sen. Welch: Isn't that an interpretation?
▶ 1:44:42Mr. Flowers: Yes, originalism requires interpretation.
▶ 1:44:46Sen. Welch: So there is an application of a theory that textualism, originalism, is founded on words in the meeting that they had at that time, and then the interpreter, a judge, is then applying his or her judgment as to what that author would do with respect to something that did not even exist a couple centuries ago, right?
▶ 1:45:14Mr. Flowers: True, with respect to law, often times --
▶ 1:45:18Sen. Welch: Quite seriously, isn't that pretty weird?
▶ 1:45:21Mr. Flowers: I frankly don't think it is. The majority of today's supreme court is a textual list. The more important point is textualism leaves that sort of updating largely to the political branches, to trust congress.
▶ 1:45:34Sen. Welch: Up to the congress, you argued against the price negotiation that was part of the inflation reduction act to provide better prices for folks who are buying prescription drug medication, right?
▶ 1:45:47Mr. Flowers: Not quite right. We argued that it was a take out. We did not seek to strike down the law.
▶ 1:45:53Sen. Welch: Even though the government provides patent protection so that there is pricing power for the intellectual property, even though the government provides medicare and medicaid and through that prescription drug access, and even though the government provides employer-sponsored health care with tax benefits that provide health insurance through employers and creates a market for the drug companies, it is impermissible, and according to your brief, for the government
▶ 1:46:24Sen. Welch: To try to negotiate a situation where, instead of paying retail when they are buying wholesale, we cannot negotiate on behalf of consumers? That was the text, the thrust of your approach.
▶ 1:46:37Mr. Flowers: The brief was filed on behalf of a client, but the --
▶ 1:46:42Sen. Welch: Your personal position on that.
▶ 1:46:44Mr. Flowers: I cannot state my personal position because it is a matter of pending litigation.
▶ 1:46:49Sen. Welch: Well, it is over. The supreme court said it is ok.
▶ 1:46:53Mr. Flowers: I believe the case is still pending at the supreme court.
▶ 1:46:57Sen. Welch: Alright. I want to go back to what my colleague, senator kennedy, was asking. You said that the federal district courts -- actually, you have said that president trump must abide by the court issued judgments, he may refuse to abide by the reasoning and opinions accompanying those judgments, when the reasoning is contrary to law.
▶ 1:47:27Sen. Welch: I totally do not understand that.
▶ 1:47:29Mr. Flowers: Senator, I see we are short on time. I refer you to the article.
▶ 1:47:34Sen. Welch: No, no. What does that mean, the reasoning? Doesn't the president have to follow the decisions of the court?
▶ 1:47:41Mr. Flowers: The judgments of the court. Dred scott was the example where abraham lincoln said he would be bound by the judgment. With respect to the individual in that case, he would apply the reasoning of the court. But he would not extend it any further because the court egregiously misinterpreted the constitution.
▶ 1:47:58Sen. Welch: So the president is the one who decides which parts of the judgment and which parts of an order he can apply or not?
▶ 1:48:12Mr. Flowers: Absolutely not. The president is bound by orders of the court.
▶ 1:48:13Sen. Welch: In dred scott, the supreme court basically said dred scott had no rights because he was african-american, right?
▶ 1:48:19Mr. Flowers: Correct.
▶ 1:48:21Sen. Welch: That decision, which is a total disgrace to our history, you are saying that if the president could disregard that decision? With respect to anyone else other than dred scott.
▶ 1:48:35Mr. Flowers: That was abraham lincoln's position.
▶ 1:48:38Sen. Welch: I am asking your position.
▶ 1:48:40Mr. Flowers: As a nominee, I do not want to talk about my personal views or foreshadow a particular case. But the position I was advancing in that speech, it is at the other branches are absolutely bound by the orders but do not necessarily have to abide by the reasoning of a particular opinion in future cases.
▶ 1:48:57Sen. Welch: My time is up. I yield back.
▶ 1:49:03Chair Grassley: Senator booker.
▶ 1:49:03Sen. Booker: Thank you very much. Mr. schwartz, the independence of the judiciary is vital. Sacrosanct, I would even say. I have some concerns that right now, today, are you personally representing donald trump in the criminal appeal in new york?
▶ 1:49:26Mr. Schwartz: I am, senator.
▶ 1:49:28Sen. Booker: And the man who has nominated you to a lifetime appointment as your client, he owes -- his pac owes you $400,000? For legal bills.
▶ 1:49:44Mr. Schwartz: Senator, I have no idea what the financial amount is.
▶ 1:49:48Sen. Booker: But he has paid all his bills now?
▶ 1:49:52Mr. Schwartz: Senator, I do not handle that aspect of the relationship. So I really could not confirm what you are saying.
▶ 1:50:00Sen. Booker: So in all american history, one federal appellate nominee in any time in modern history who is actively representing the president who nominated him at the moment of his nomination, can you name any time in modern history that we ever had a situation in a democracy where a president has nominated someone who is representing them, can he?
▶ 1:50:31Mr. Schwartz: As I said earlier, if I am confirmed, I will recuse myself from all cases with which I have represented the president and be very cognizant of my duties. Second, senator, sitting here, yes, there have obviously been two prior nominees in this administration who have been nominated, and then obviously presidents have from time to time nominated justices and judges with whom they are very close, may have worked with previously.
▶ 1:51:01Mr. Schwartz: So it is not an unusual circumstance, senator, and as I said, my oath of office will be sacrosanct and I will recuse myself.
▶ 1:51:10Sen. Booker: So why not disclose any financial obligations to president that he might have to you? Don't you think that is germane to our evaluation of your objectivity if the president of united states owes you 400 thousand dollars?
▶ 1:51:25Mr. Schwartz: Senator, any amount of money the president would pay would be to my forearm, which is obviously a very large firm.
▶ 1:51:31Sen. Booker: A lot of us were involved in your firm, is that some of your compensation based upon the clients you represent? Yes or no? Is your compensation based upon the income your firm receives from the clients you represent, yes or no?
▶ 1:51:46Mr. Schwartz: Yes, senator.
▶ 1:51:47Sen. Booker: So you're telling me that this body of senators should not know about any financial obligations the president has to your firm and the actual financial benefits that you stand to get from this case when that very president has nominated you? Can I ask another question? Yes or no, do you know, does the president pay all of his legal bills to the firms that have represented him in the past?
▶ 1:52:18Sen. Booker: Do you know if he has been in -- a good client in paying his bills?
▶ 1:52:22Mr. Schwartz: Senator, I cannot speak to other --
▶ 1:52:26Sen. Booker: It is well reported, and I am from new jersey, he steps firms constantly. So this president potentially owes your firm money, you have a financial stake in that, and he nominates you to the bench. Objectively, as an objective person, would that not raise questions to this committee, and shouldn't we ask you what is your financial tie to the president to the united states?
▶ 1:52:55Mr. Schwartz: I will be happy to clarify. I have been fortunate, my firm has revenues of almost $2 billion a year. The amount we take in or might taken from president trump, I do not know how much that is, but it would be an extraordinarily small amount.
▶ 1:53:12Sen. Booker: To you it is a small amount. To the average american, 400 thousand dollars -- if somebody has a stake in with the president of $400,000, a president that has personal lawyers all over his administration, we now see that in the justice department, we have his former personal lawyer that has allowed him to set up a slush fund that is paying out people that potentially could have attacked this capitol.
▶ 1:53:43Sen. Booker: America is seeing right now that this president is turning out to be a grifter who uses his financial relationships to appoint people with financial ties to them, and then from the people that are negotiating in the middle east, financial ties to the president. The people in our justice department, financial ties to the president. Don't you think you should be more transparent with your financial ties to this president before we have to vote on you to confirm you?
▶ 1:54:09Mr. Schwartz: Senator, if I am confirmed, I will resign my partnership. I will make no money whatsoever going forward from any representation that the firm has --
▶ 1:54:19Sen. Booker: But you have made money from the president of the united states and representing him now.
▶ 1:54:24Mr. Schwartz: To be clear, the $400,000 you mention, obviously a lot of money for the average american, goes to for my firm. If there is profit at the end of the year with my firm, I received a minuscule amount of that money.
▶ 1:54:37Sen. Booker: Mr. schwartz, if I may finish, in your college magazine a long time ago in 1997 titled married in the eyes of god, you argued against same-sex marriage and criticized the first same-sex wedding held in my state, and princeton chapel, between two university alumnis. Do you still hold those views you represented in that article in 19 97?
▶ 1:55:02Mr. Schwartz: You're asking about personal and religious views. What I will say is the language are used in that article was harsh and unacceptable and reflected my views as a teenager.
▶ 1:55:13Sen. Booker: So you think it is germane for me to ask if you wrote an article that said I hate black people, do you think it is relevant -- relevant for me to know your views today about african-americans, italian americans, catholic americans, or gay americans?
▶ 1:55:26Mr. Schwartz: I think it is a fair question paid what I would say is, throughout my adulthood over the last 20, 30 years and as a professional, I have always treated everybody equally and with respect, whether they are gay or straight. I have a tremendous amount of admiration --
▶ 1:55:42Sen. Booker: I think your views are germane to the job. I would like to ask the chairman right now, and thank you for the latitude, sir, we should know the fullness of his financial entanglements with the president of the united states of america. It is absolutely unconscionable that the senate continues to confirm people that have financial entanglements with the president that goes to their objectivity when it comes to issues regarding the president of the united states and his interests when it comes to
▶ 1:56:13Sen. Booker: Separations of powers and more. And I am hoping that my qfr's will be answered candidly and in detail. Thank you.
▶ 1:56:21Chair Grassley: You folks are dismissed now. Thank you for your service. And thank you for your coming service if you are approved. Thank you very much. Now, will Mr. berthiaume come to the table, please? Before you go -- don't sit down yet.
▶ 1:56:52Chair Grassley: I guess we will wait until it is a little bit quiet in here. Ok.
▶ 1:57:21Chair Grassley: Do you swear that the testimony you are about to give before the committee will be the truth, whole truth, nothing but the truth, so help you god? Thanks for your positive response. You can introduce any family and friends you want to, and then give your opening statement. And we will ask questions.
▶ 1:57:52Mr. Berthiaume: Chairman grassley, ranking member dick durbin, and members of the committee, thank you for the opportunity to appear before you today. I am honored to be considered for inspector general of the united states department of justice. I'm grateful to my family, fiancé jenny, and our three children for their love and support.
▶ 1:58:14Mr. Berthiaume: I am also grateful to the public servants across the department and throughout the inspector general community who serve the american people every day. My career has been shaped by one consistent theme, accountability under the rule of law. I have worked inside the inspector general community, inside the department component responding to oversight, and I have personally seen why whistleblower protections matter.
▶ 1:58:42Mr. Berthiaume: Those experiences taught me that effective oversight requires rigor, fairness, humility, and fidelity to facts. I began my career as an assistant district attorney in manhattan, and later handled red collar criminal manners in private practice. Over the last 15 years, have devoted my career to oversight from multiple perspectives.
▶ 1:59:05Mr. Berthiaume: At the department of justice, office of inspector general, I worked on complex and sensitive matters, including the review examining the fbi's use of fisa authorities in crossfire hurricane. At the drug enforcement administration, served as the agency's liaison to doj oig and gao and created a process that helped close or address one hundred six oversight recommendations in under two years and can personal appreciation for whistleblower protections.
▶ 1:59:35Mr. Berthiaume: I reported misconduct to the oig and later watched other dea employees, some of whom are in this room, come forward with information of their own. I saw the seriousness of those decisions and the fear that can accompany it. Fear about careers, reputations and the relationships, and whether the process itself would be fair.
▶ 1:59:57Mr. Berthiaume: That experience taught me that whistleblowers are not distractions, their public servants often take personal and professional risks to bring forward information the government needs to hear. It also taught me the oig functions best when it is operational independent but not isolated. The oig must have full authority over what it reviews, how it conducts its work, and what conclusions it reaches.
▶ 2:00:27Mr. Berthiaume: Good information sharing, open lines of communication. At hud oig, senior counsel to the inspector general, and acting assistant inspector general for the office of special inquiry, I helped revitalize the division and created more efficient procedures for handling whistleblower retaliation and administrative misconduct matters, from october 20 25 to january 2026, I had the privilege of serving acting
▶ 2:00:58Mr. Berthiaume: Inspector general for the U.S. department of justice. If confirmed, I would bring three commitments for this role. First, protect oig independence calmly and firmly and without hesitation. Independence is not secrecy, hostility, or a license to operate outside the law. It means freedom from improper interference paired with fidelity to the inspector general act, due process, professional standards, and always the facts.
▶ 2:01:26Mr. Berthiaume: Coordination can never become control, and I will not allow improper pressure from any direction to dilute, delay or instructor dictate the oig work. Second, I will and sits on oversight that is rigorous, fair, timely and useful -- useful. The lu -- oig's job is to see what happened, why, and fix it. Oversight should be solution oriented, candid and fair.
▶ 2:01:52Mr. Berthiaume: Timeliness matters because oversight is most valuable when it can still inform decisions, prevent recurrence, and support corrective action. Third, I will prioritize high-impact risks and protect whistleblowers. The department of justice has enormous responsibilities, and all energy resources are finite.
▶ 2:02:09Mr. Berthiaume: If confirmed, I will confirm oig attention on systemic risks, recurring failures, significant misconduct allegations, major program vulnerabilities, and areas were early oversight can prevent problems from becoming entrenched. Finally, I recognized the unique responses of the dot inspector general. The work often intersects with sensitive law enforcement equities, privacy interests, and national security and straights, privilege information, and ongoing prosecutions.
▶ 2:02:40Mr. Berthiaume: If confirmed, I will be transparent to the maximum extent the law allows, careful where restraint is required, and steadfast reporting and bentley to congress and public when appropriate. It confirmed, I will devote myself to an oig that is independent, objective, fair, timely, and effective, focused on integrity, accountability, and the public interest. Thank you. I look forward to your questions.
▶ 2:03:03Chair Grassley: Thank you very much, chairman grassley. -- Sen. durbin: thank you, Mr. berthiaume. For 17 years, the oig office and its annual report of its management performance has the following paragraph included at the end of the report.
▶ 2:03:24Chair Grassley: It is vital that the department and employee strictly inherit policies and procedures designed to protect the department from accusations of political influence or politically motivated application under the law. In the report from the year 2007 to 2024. The 2025 report under the new president, donald trump and his second term, no longer includes that section.
▶ 2:03:54Chair Grassley: You rejoined the justice department as acting inspector general in october 2025. Were you involved in eliminating this section from the oig?
▶ 2:04:05Mr. Berthiaume: I became acting general october 30, 2020 five. That was written before I arrived.
▶ 2:04:12Sen. Durbin: So you have nothing to do with the leading the division that says you should avoid politics?
▶ 2:04:18Mr. Berthiaume: Correct, sir.
▶ 2:04:20Sen. Durbin: Any effort to restore that? Do you consider that a standard you have to live by?
▶ 2:04:25Mr. Berthiaume: I believe it is important and it is something we consider, when we draft the top performance management challenge, we will certainly consider in consultation with my team whether or not that needs to be replaced.
▶ 2:04:38Sen. Durbin: That is good. I do not know why they took it out. We do not want you to be political, we want you to do this honestly and professionally. And I hope you will restore it. Do you plan on answering letters sent by members of congress?
▶ 2:04:53Mr. Berthiaume: It has come to my attention that this committee and senators have not actually been receiving responses --
▶ 2:04:59Sen. Durbin: That is your office.
▶ 2:05:00Mr. Berthiaume: I plan on changing that.
▶ 2:05:02Sen. Durbin: I hope you will. February 11, 2025, I sent a letter to oig involving critical allegations of kash patel head of fbi while still a private citizen was personally directing the purge of career fbi officials. On august 14, 2025, I sent another letter to the office, your office, regarding the continued arbitrary removals and forced retirements of senior personnel.
▶ 2:05:29Sen. Durbin: As far as I am aware, your office has not yet started to work on either of these letters. Will I get a reply anytime soon?
▶ 2:05:37Mr. Berthiaume: If confirmed, we will respond to those letters.
▶ 2:05:41Sen. Durbin: Will be at -- will it be in my lifetime?
▶ 2:05:44Mr. Berthiaume: I would hope that it would be. I will make it a priority.
▶ 2:05:47Sen. Durbin: I know it might not be a long time, but I hope you take advantage peer thank you, Mr. chair.
▶ 2:05:55Chair Grassley: Senator johnson in this committee made 197 special counsel, jack smith, subpoenas public. These subpoenas targeted over 400 republican individuals and entities. The records were obtained to legally protected whistleblower disclosures.
▶ 2:06:19Chair Grassley: According to reports, cooney and gaston, two of smith's partisan prosecutors, filed a complaint with the inspector general. They want your office to investigate and identify the very whistleblowers who I suppose there misconduct, any investigation by inspector general or anyone else identify whistleblowers or investigate them for making legally
▶ 2:06:49Chair Grassley: Protected disclosures to congress as retaliatory. It is also illegal. If confirmed, will you commit that no government funds will be used to take action to identify and investigate whistleblowers for making legally protected disclosures?
▶ 2:07:09Mr. Berthiaume: My personal view is that the government should never use federal funds to try to hunt down whistleblowers. With that in mind, there are certain limitations in the law, specifically with classified information where we sort of dictate how classified information a whistleblower wants to bring it forward needs to follow. Under those circumstances, it is possible that the investigation could be launched.
▶ 2:07:33Mr. Berthiaume: My general view overall as I do not think we should spend money to try to identify whistleblowers.
▶ 2:07:42Chair Grassley: If government employees try to expose the identity of whistleblowers who made it protected disclosures and were -- and retaliate, what steps could you take or would take as inspector general?
▶ 2:08:00Mr. Berthiaume: If someone is identified and retaliated against, I would hope they would file complaint with my office. Under five usc 2302, those generally fall under the jurisdiction of osc, we would have to make the referral. If it is five usc 2303, fbi, those follow under our current stiction and we would conduct an investigation. We would do an initial investigation of retaliatory conduct where they protect disclosure.
▶ 2:08:26Mr. Berthiaume: If we make that determination, we would further that investigation and determine whether there is regional cause to believe. We would do a third step which we would look at the agency's response as to whether or not they could justify by clear and convincing evidence that they would have taken the action against that employee regardless of their protected disclosure. We would then report that information to the office of attorney recruitment and management for decision.
▶ 2:08:55Chair Grassley: Last december, you wrote to me concerning oig's involvement in the extraction of data from congressman scott perry's cell phone. That letter also noted your review of the oig serving a subpoena on the verizon for congressman jordan's tolling records.
▶ 2:09:18Chair Grassley: You informed to be the oig has asked a separate oig to view the matters to ensure an independent assessment. Your december letters said the data from perry fosse phone was subject to court ordered process to protect congressional communications.
▶ 2:09:40Chair Grassley: During a criminal prosecution if the justice department officials fail to identify and segregate privileged material to include congressional information, what would you do as inspector general and explain your process?
▶ 2:09:56Mr. Berthiaume: I think if we received an allegation that attorneys had not properly segregated congressional information, we would have to look into that and assess whether or not it was in oig's jurisdiction. As you know, senator, and I support this, we do not have jurisdiction over the office of professional responsibility which handles attorney misconduct.
▶ 2:10:18Mr. Berthiaume: So that was an attorney action in relation to their function as an attorney, it would fall out of our jurisdiction and you would have to make a referral to that agency.
▶ 2:10:29Chair Grassley: This will be my last question. For nearly half of your career, you have worked in justice department's under both democrat and republican presidents. You have handled several investigations and recently served as acting inspector general. What have you learned from your leadership and experience that best prepares you to serve as -- in this important role?
▶ 2:10:54Mr. Berthiaume: I think we have to be transparent and how we operate as an agency. I think it is important for everyone to understand what factors we look at when we open a case. How do we handle things like assessing credibility or assessing facts? How do we make recommendations? It is not something we have ever been public about in the ig, but I think that information is pertinent for congress to understand, important -- pertinent for the department to understand.
▶ 2:11:22Mr. Berthiaume: When we do that, it will make us a more effective inspector general's office.
▶ 2:11:27Chair Grassley: Thank you. Senator whitehouse.
▶ 2:11:32Sen. Whitehouse: Thank you, chairman. Welcome, Mr. berthiaume. I wanted to follow up a bit on the conversation you and I had in my office about the boundary between the department of justice inspector general's office and the office of professional responsibility.
▶ 2:11:49Sen. Whitehouse: As I understand it, the office of professional responsibility is the office that has oversight over the actual conduct of the department's attorneys as they represent the united states in court, which is an important responsibility, but it is not everything.
▶ 2:12:11Sen. Whitehouse: For instance, if opr were in the business of stealing all the pencils and selling them on ebay or was not showing up for work or was being flagrantly -- engaging in flagrant favoritism about what cases to take or not take rather than applying the rules fairly, that those kinds of questions actually are
▶ 2:12:42Sen. Whitehouse: Inspector general responsibilities because they do not deal with the actual conduct of attorneys, they deal with the administration of the office subject to your office, ig's approval. Have I got that fairly right? If not, clarify what your vision is for what you can look at that touches the pr?
▶ 2:13:02Mr. Berthiaume: Sure, and I think I understand what you are saying. Which is the way you are asking, would it be oig jurisdiction to review how opr itself operates and performs its functions for the department of justice?
▶ 2:13:15Sen. Whitehouse: Yeah, let's say they just don't show up for work.
▶ 2:13:19Mr. Berthiaume: Potentially that comes into oig territory, because we look at the department's programs and functions.
▶ 2:13:24Sen. Whitehouse: If they are not doing their job. If they are stealing furniture and selling it on ebay from the office, clearly in oig problem, right?
▶ 2:13:34Mr. Berthiaume: I believe so, sir.
▶ 2:13:36Sen. Whitehouse: I wanted to make that clear, because I think that the misunderstandings about the responsibilities of opr and responsibilities of oig leaves the risk for a big part of the ballfield where there is nobody to catch the ball.
▶ 2:13:55Sen. Whitehouse: And problems at the department fall in between oig and opr because basically fielder error of people not paying attention or the -- where the boundaries probably are. I will follow up with a question for the record, for you to lay this out more clearly and not put you on the spot here live.
▶ 2:14:16Sen. Whitehouse: But it is important for the department, for you, and for this committee to understand where that boundary falls and that you will not fail to look at misconduct within oprwhetheri at misconduct within oprwhethert at misconduct within oprwhetheri at misconduct within oprwhethers at misconduct within oprwhethers at misconduct within oprwhethers at misconduct within oprwhethero at misconduct within oprwhetherf favoritism or whatever it might be.
▶ 2:14:47Sen. Booker: . You met with my staff one monday, that showed a lot of professionalism and respect. I'm grateful you did that. You did identify opportunities to be more transparent with congress. This department is supposed to serve, I appreciate that.
▶ 2:15:12Sen. Booker: Could I go through those commitments that I think we are really responsible and I want to state them and affirm them. Transparency on oig decision-making, let's be clear you said you were committed to establishing and publicly clarifying whether the oig will open an audit versus the american people and how those decisions were made, yes?
▶ 2:15:39Mr. Berthiaume: That is correct.
▶ 2:15:43Sen. Booker: The oig has opened an audit with the epstein files transparency act. They cannot wait again. Will you wait on the record to completing that audit within one year?
▶ 2:15:58Mr. Berthiaume: I will commit to doing my best and utmost to committing to do it in one year.
▶ 2:16:08Sen. Booker: Survivor center process, it is very important to me. I really want an affirmation here. Will this be survivor center in survivor informed. The oig could re-expose and traumatize survivor information, will you give them notice and a voice and respect, yes or no?
▶ 2:16:33Mr. Berthiaume: I think I'm tracking your question, will you be in contact with them at the closing of this audit to let them know it is coming? We will notify them.
▶ 2:16:48Sen. Booker: You will keep it centered in respect that you will inform them?
▶ 2:16:52Mr. Berthiaume: I think we always respect survivors.
▶ 2:16:59Sen. Booker: That his three yeses with fixed web -- exceptional qualifications. Before I yield back, my team has said extraordinary professionalism with what you met a democratic senator and I appreciate that. I want to speak to those folks who are not in this room. Most of them never get to be with decisions that are made.
▶ 2:17:27Sen. Booker: These survivors, these are women and they were gold -- girls when it started. They were trafficked, they were raped, passed around like property to predators. All organized by perhaps one of the most powerful predators in modern american history. They spent decades being told to be quiet. Being told powerful men were untouchable.
▶ 2:17:58Sen. Booker: The justice system doing wrong and doing the other way. I'm very frustrated by the administration because it has compounded that betrayal. The attorney general stood at the podium and promised the epstein files were on her desk and never delivered them. The deputy attorney general is donald's personal lawyer. Clearly I think is conflicted when it comes to matters with jeffrey epstein.
▶ 2:18:27Sen. Booker: We have an fbi director who promised transparency. One survivors finally got to congress and we passed the epstein files transparency act a law signed by this president, what did they do? It dumped documents in a way that reexpose survivors, how did victims, violated the very law it was supposed to implement.
▶ 2:18:57Sen. Booker: That is not transparency. That is retaliation dressed up as compliance. I want to say the survivors have been lied to, they have been betrayed, victimized not by epstein this time but by people sworn to deliver them justice. In some cases the administration has broken the law to protect powerful men at the expense of the very women and in this case girls that they hurt.
▶ 2:19:28Sen. Booker: An audit is not enough. A process review is not enough. The survivors do not need a flowchart of how they mishandled their files. They need real accountability. If your office discovers as I believe it will that officials violated the law, you must refer those cases for prosecution. The crime scene that it is.
▶ 2:19:56Sen. Booker: The survivors of jeffrey epstein have been waiting their entire adult lives for someone in a position of power to do right by them. For all americans watching this, no one is above the law. There will be accountability. It will restore trust in our american system.
▶ 2:20:23Sen. Booker: I thank you deeply for the professionalism you have shown my office so far. I thank and yield back.
▶ 2:20:40Sen. Grassley: For all the committees and their staff, we have the record open for questions to be submitted by may 27. 5:00 p.m., meeting adjourned.