The Senate Judiciary Committee holds a confirmation hearing for nominees for Assistant Attorney General.
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NewsTranscript
00:00:00All of you folks to this hearing,
00:00:03consider the name, nominations of John Eisenberg to serve as Assistant Attorney General,
00:00:12for National Security, Brett Shumate, to serve as Assistant Attorney General, Civil Division, and
00:00:20Patrick Davis, who I know a little bit, quite a bit about,
00:00:24to serve as Assistant Attorney General for the Office of Legislative Affairs.
00:00:30Each of the nominees before us today has impressive qualifications,
00:00:35and we're looking forward to hearing from all of you.
00:00:39I'd like to thank your family and friends for coming today,
00:00:43and I know how proud they are of your being here in the position you've been appointed to.
00:00:50Mr. Eisenberg,
00:00:52you have a
00:00:53impressive
00:00:55academic qualifications,
00:00:57degree from Stanford,
00:00:59Mathematics,
00:01:01Yale Law School, and
00:01:03you clerked in the Fourth Circuit, and later for Justice Thomas.
00:01:08Your academic pedigree is coupled with extensive experience in national security roles.
00:01:15From 04 to 09,
00:01:17you served with distinction at the Justice Department,
00:01:22focusing on national security, intelligence, and counterterrorism.
00:01:25For your service, you received the Attorney General's Award for Excellence and two Intelligence Committee Legal Awards.
00:01:34You then spent time as a partner of Kirkland and Ellis, and
00:01:39you did that before leaving your successful practice to serve your country again at the White House.
00:01:46You served with legal distinction and
00:01:50received
00:01:52awards for your service as Legal Advisor to the National Security Council,
00:01:57Assistant to the President, and Deputy Consul to the President for National Security Affairs.
00:02:05So,
00:02:06there's little doubt that you will bring great experience and expertise
00:02:11to the National Security Division. Your nomination has been praised by
00:02:16bipartisan groups of
00:02:18former Assistant Attorneys General of the National Security Division,
00:02:23including Matthew Olson, who served in the Biden
00:02:29administration.
00:02:30Mr. Shumate,
00:02:32you're well-suited to serve as head of the Civil Division.
00:02:36You started your legal career clerking with Judge
00:02:41Edith Jones, Fifth Circuit,
00:02:44then entered private practice, focusing on civil litigation and administrative law.
00:02:50In
00:02:512017, you were appointed Deputy Assistant Attorney General for Civil Division's Federal Programs Branch. In that role,
00:02:59you vigorously defended the rule of law and litigated issues involving federal agencies and the administration.
00:03:07After your time at the Justice Department, you returned to private practice for a better part of a decade.
00:03:13Before returning to the Justice Department earlier this year as the acting head of that Civil Division,
00:03:21I hope no doubt that your service in government has
00:03:26prepared you well
00:03:27for the role you'll be, have been nominated for.
00:03:32Now, Mr. Davis, I just got done saying I know a little bit about you,
00:03:36so I'm going to take this opportunity to introduce you before a couple of my colleagues will introduce the other two.
00:03:43You're no stranger to the role you've been nominated to.
00:03:47As I well know, you're extremely qualified to serve as head of the Office of Legislative Affairs.
00:03:54You started your career in private practice,
00:03:57but you soon joined the Department of Justice to litigate complex
00:04:02cases in Federal Program Branch for most of the Obama
00:04:07administration. While there, you gained an understanding of how the Justice Department works for from the litigator's
00:04:15perspective, and of course you, I'm told you met your wife there as well. A
00:04:21little over six years later, you joined my staff as an investigative counsel,
00:04:25and we worked on a lot, a lot together on our search for truth for the American people.
00:04:32You worked tirelessly to combat the weaponization of justice and to defend our nation's laws.
00:04:40You were instrumental in my investigation that the Planned Parenthood was violating federal law.
00:04:46Because of your work, the public could see these shocking discoveries
00:04:52for what they actually
00:04:54are rather than the false narrative.
00:04:58You also worked with me to show that Crossfire Hurricane
00:05:03was based on fraudulent,
00:05:06discredited information,
00:05:08actually paid for by the Democratic National Committee and the Clinton campaign. As
00:05:14reward for your efforts to uncover the truth, the Department of Justice secretly subpoenaed your records.
00:05:21You've been personally targeted for doing the right thing.
00:05:27When you left my office, you went on to serve the first Trump administration,
00:05:31where you worked on congressional oversight and the religious liberty task forces. Since then, you've gained valuable
00:05:38experience in the House of Representatives, working hard to uncover truth about
00:05:43COVID-19
00:05:45pandemic origins and the private sector.
00:05:49But the thread that ties your service together is courage of your convictions. You stand up for liberty,
00:05:56equal application of law,
00:05:59values that I know you'll bring in your new role.
00:06:03I'm happy to see you go back to the department, and I know that you're ready for whatever
00:06:09that department throws at you. Indeed, I'm going to throw a thing or two at you now. As you're well aware, I
00:06:17am a rather frequent correspondent with the Department of Justice, and I look forward to you
00:06:23again in the service of the country and maybe fulfilling answers to my questions.
00:06:29The three nominees before us have impressive careers, and I look forward to hearing from them today.
00:06:36Now to Senator Durbin. Thanks, Chairman Grassley. Before we hear from the nominees, I want to take a moment to speak about the
00:06:43ongoing attacks on the federal judiciary by President Trump and his allies.
00:06:49Last week, President Trump called for the impeachment of a federal judge
00:06:53simply because he ruled against the administration. He characterized that judge as a lunatic.
00:07:00The president was not alone.
00:07:02Elon Musk, the unelected co-president and the richest person in the world, has
00:07:08demanded the impeachment of federal judges dozens of times, and
00:07:12House Republicans quickly bent a knee and rushed to introduce articles of impeachment.
00:07:17I understand members of the Senate are also cheering that effort on. In response to this unprecedented attack on the federal judiciary,
00:07:25Chief Justice Roberts issued a rare statement.
00:07:28It read, and I quote, for more than two centuries it has been established that impeachment is not an appropriate response to
00:07:36disagreement concerning a judicial decision. The normal appellate review process exists for that purpose, end of quote.
00:07:43We cannot afford to wait and see if this president formally announces he will defy a court order.
00:07:49We must respond to this dangerous attack on our courts and judges now.
00:07:54Some right-wing
00:07:57activists have argued that impeachment is necessary because of the number of injunctions
00:08:02issued against President Trump compared to other presidents. They claim that this is evidence that federal judges are biased against this president.
00:08:11I would suggest there's a simpler and more plausible explanation.
00:08:15The number of injunctions issued against first and second Trump administrations is evidence of a president who repeatedly
00:08:22tests or violates the law.
00:08:25The danger posed by the Trump administration's attack on the judiciary is not abstract.
00:08:30I recall when there was a demonstration outside the home of a Supreme Court justice,
00:08:36we heard over and over again that we should never condone violence in the pursuit of political goals.
00:08:41I joined in that chorus on a bipartisan basis and
00:08:45hope to hell that my colleagues on the committee will do that today because we have the serious attack on the judiciary taking place.
00:08:53It's not abstract.
00:08:54The recent invective by the president and his allies has resulted in increased threats to the lives of judges and their families.
00:09:02This is unacceptable in a constitutional democracy.
00:09:06We can debate the value of nationwide injunctions and the merits of any particular judicial decision,
00:09:12but violence or threats of violence, whether from the right or the left on the political spectrum, are never, never
00:09:20acceptable. I urge all my colleagues on both sides of the aisles to join me in opposing this ongoing attack on the judiciary.
00:09:28Unfortunately, Attorney General Bondi and other officials at Justice have repeatedly shown that they will not defend the separation of powers.
00:09:35Their loyalty lies with the president. It should lie with the American people and the Constitution.
00:09:41The loss of an independent Department of Justice is not only a threat to the rule of law, it makes our country less safe.
00:09:47This is especially true of our national security.
00:09:51Since the start of this administration, every senior career
00:09:55national security division official has been removed from their position, every one of them.
00:10:01Following this purge, one former Justice Department official said, and I quote, there's literally no one at home. The lights are off.
00:10:09That is a disturbing statement. It reflects a serious problem that cannot be easily fixed.
00:10:15Among today's nominees is John Eisenberg, who dropped by my office yesterday.
00:10:19We had an opportunity to discuss his aspiration to be leading the national security division.
00:10:25I hope for the sake of the action, pardon me, I hope for the sake of the nation, that Mr.
00:10:30Eisenberg is willing to place country above any personal allegiance to any political figure.
00:10:36We're also going to hear from Patrick Davis, nominated to lead the Office of Legislative Affairs.
00:10:42At her confirmation hearing, Attorney General Bondi committed to Chair Grassley that she or her top staff would quote, personally review
00:10:50oversight requests from all members of the committee and do quote, everything we can to respond to you.
00:10:55I have sent more than 20 overnight oversight requests to the Trump administration.
00:11:01I have yet to receive a single meaningful response to the vast majority of them, including seven to the Justice Department.
00:11:08When the shoe was on the other foot, and I chaired this committee, and they refused to respond to Chairman Grassley's
00:11:15similar requests, I stood up for him, and I was happy to do so.
00:11:19Whether you're on one side of the table or the other, you're entitled to the dignity of a request and professional treatment. Mr.
00:11:27Davis, I hope that you'll take that to heart. I'm also concerned about legal arguments. Mr.
00:11:31Shoemate, who's been nominated to lead the civil division, has made
00:11:36since returning to the Justice Department. While all attorneys have a duty to zealously advocate for their clients,
00:11:43which of course includes the U.S. government, they must do so within the confines of the law.
00:11:48Yet, in defending President Trump's executive order restricting birthright citizenship,
00:11:53Mr. Shoemate claimed any judicial order blocking it would be quote,
00:11:58wildly inappropriate, his words.
00:12:01That is an unacceptable position for a Justice Department official to take, especially with respect to an order that is patently
00:12:08unconstitutional. As the judge presiding over the case stated, and I quote,
00:12:12I am having trouble understanding how a member of the bar could state unequivocally that this order is constitutional.
00:12:20The disintegration of an independent Justice Department before our very eyes,
00:12:25including the removal of key national security and counterterrorism officials, should be alarming on both sides of the table.
00:12:31The department is critical to protecting America's public safety and protecting the rights and liberties of all, all
00:12:38Americans. I hope to learn more about these nominees' commitments to these efforts and look forward to their testimony. Thank you, Mr. Chairman.
00:12:45Thank you, Senator Durbin. Now to Senator Graham for introduction. Well, thank you. First, yeah, let's condemn violence
00:12:54directed at the judiciary.
00:12:56I'm all for that. Let's make sure that politicians,
00:13:00that we don't create problems for those in that branch of government, and I hope that would include
00:13:06the former Majority Leader going to the Supreme Court and,
00:13:13you know, hurricanes coming your way, Gorsuch and Kavanaugh.
00:13:17I didn't hear much back then, but yeah, count me in.
00:13:20As to this man, John Eisenberg,
00:13:24I have dealt with him to the newer members of the committee. He served in the prior Trump administration.
00:13:30I am completely confident you're the right person at the right time, John.
00:13:36When you look at his resume and his experience, you could not have chosen better.
00:13:41The world is literally in a dangerous place.
00:13:45The last four previous four years has been a disaster.
00:13:50Every conflict zone
00:13:53known
00:13:55basically has gotten worse,
00:13:58and we're going to have to clean up this mess
00:14:02that was created, and I think John Eisenberg will be a great counsel,
00:14:10not only to Pam Bondi, but to the president. A little bit about him.
00:14:16He's a national security expert.
00:14:19He's joined by his wife, Catherine, his son, Paul, and
00:14:23his daughter, Sarah. Welcome.
00:14:26He received a BS in mathematics from Stanford and a JD from Yale, which means he's very smart and a bit confused.
00:14:37He clerked for
00:14:41Justice Clarence Thomas from 2003 to 2004. In the first term,
00:14:46he served as the legal advisor to the National Security Council, assistant to the president, and
00:14:52deputy counsel to the president for national security affairs, and Trump won. That's where I met John.
00:14:58I interacted with him a lot. He's reasoned. He's thoughtful. He's smart.
00:15:04I enthusiastically endorsed this man.
00:15:07In recognition of his service, he received the Department of Defense Medal for Distinguished Public Service and the National Intelligence
00:15:15Superior Service Medal.
00:15:17He's held senior positions of the Department of Justice,
00:15:21including Associate Deputy Attorney General in the Office of the Deputy Attorney General and Deputy Assistant Attorney General in the Office of Legal Counsel.
00:15:29His service earned him multiple distinctions, including the Eternal General's Award for Excellence and
00:15:35furthering the interest of U.S. national security and the Assistant Attorney General Award for Special
00:15:42Initiative National Security Division. Long story short, you can't find anybody better qualified than this man. Thank you.
00:15:51I'm going to read Senator Cruz's introductory remarks of Brent Shumate,
00:15:58a nominee for Assistant Attorney General for Civil Division at the Department of Justice,
00:16:05because Senator Cruz is at another committee meeting.
00:16:09It is a distinct privilege
00:16:11for me, for Senator Cruz, to introduce the nominee for the position of Assistant Attorney General for the Civil Division at the Department of Justice.
00:16:20Brent Shumate.
00:16:22Before we dive into Brent's impressive professional qualifications,
00:16:27I'd like to take a moment to highlight the personal side story,
00:16:31side of his story. Brent is a proud family man. His wife, Merit,
00:16:38hails from San
00:16:40Angelo, Texas, and together they have four children, Finn, Witt, Everett, and Isley,
00:16:48who by all accounts are the biggest,
00:16:54is that Bucky fans?
00:16:57Okay, east of the Mississippi.
00:17:00Brent's in-laws, Milt and Deb's choirs, are also proud Texans living in
00:17:07Denton. Brent's parents, Charlie and Barbara Shumate, are here with us today.
00:17:13Charlie, a Vietnam
00:17:15veteran, recently retired after a distinguished 50-year career
00:17:21practicing law in Virginia. It's clear that Brent's strong roots have
00:17:27shaped his dedication to public service and to his community.
00:17:32Brent's current role, Acting Assistant Attorney General for the Civil Division, is
00:17:38not his first rodeo in public service. In fact, Brent has had a long and
00:17:45distinguished record of service to the American people.
00:17:49Brent began his legal career in public service,
00:17:53clerking for the distinguished Judge Edith H. Jones of the Fifth Circuit, where Brent developed a deep
00:18:00understanding of appellate law and a steadfast commitment to upholding the Constitution.
00:18:07Brent sharpened his litigation skills in private practice for a decade,
00:18:13rising through the ranks to become a partner. His colleagues at his first law firm, Wiley-Rhein,
00:18:22described him as a
00:18:24skilled litigator, quote-unquote,
00:18:27with, quote,
00:18:29impeccable ethics and
00:18:32integrity, end of quote.
00:18:34Brent
00:18:36returned to public service as the Deputy Assistant Attorney General for the Civil Division, Federal Programs Branch,
00:18:462017 to 19,
00:18:48where he was responsible for leading litigation on behalf of federal government in a wide range, of course,
00:18:56in cases. In his role, he handled some of the most critical and high-profile
00:19:03cases of the time in health care,
00:19:07national security, and regulatory
00:19:10enforcement. His experience managing complex litigation and
00:19:15advising senior government officials on litigation risk and strategy in this role
00:19:22makes him well qualified
00:19:25for
00:19:26this role.
00:19:28Between
00:19:292019 and
00:19:302024, Brent returned to private practice as a partner as yet another
00:19:37prestigious global law firm,
00:19:41Jones Day,
00:19:42where he focused on high-stake
00:19:45regulatory litigation
00:19:47involving the government, particularly in telecommunications and
00:19:51technology sectors.
00:19:53Once again, his colleagues,
00:19:56more than 200 of them, in fact,
00:19:59commended him to us.
00:20:01They wrote,
00:20:03Brent is, quote, an intelligent and
00:20:06principled lawyer with unwavering integrity, and
00:20:11further quoting,
00:20:13uncompromising commitment to the rule of law.
00:20:16Most recently, Brent served as Acting Assistant Attorney General,
00:20:21Civil Division, and DOJ. In this capacity, he quickly took on leadership
00:20:28responsibilities within the division, ensuring that the Department of Justice remained effective in carrying out its
00:20:35essential duties.
00:20:38Brent worked in this role, gives us
00:20:41clear proof of his capability to guide the division through significant legal challenges.
00:20:48It is this exact expertise on the job that led President
00:20:54Trump to nominate him to serve as Assistant Attorney General,
00:20:59Civil Division, on a permanent basis.
00:21:02With his unique blend of experience in both private practice and public service, particularly in
00:21:09the Civil Division of the Department of Justice,
00:21:13Brent is exceptionally well prepared
00:21:16to
00:21:17lead this vital division. His track record in handling regulatory
00:21:23litigation,
00:21:25providing strategic legal counsel to government officials, and
00:21:29defending the administration's legal priorities across
00:21:33multiple sectors, demonstrates that he has the expertise and
00:21:38leadership quality needed for this important role.
00:21:43Senator Cruz ends by saying, I look forward to hearing from Brent today, and
00:21:49strongly encourage my colleagues on the committee to support Brent's nomination to be the next Assistant Attorney General,
00:21:58Civil Division, Department of Justice. Thank you.
00:22:02Now, you folks that have just been introduced, would you please rise so I can administer oath?
00:22:12Do you swear
00:22:14that the testimony you're about to give before this committee will be the truth,
00:22:19the whole truth, and nothing but the truth? So help you God.
00:22:23I've got affirmative
00:22:26answer from each of them, and I think we'll start out with Brett, and you can have your opening statement and
00:22:33introduce family and friends, and that's the same for all of you.
00:22:38Thank you, Chairman Grassley,
00:22:40Ranking Member Durbin, and to the entire committee for extending me the privilege of appearing before you today.
00:22:46My wife, Merritt, and our four kids are here today sitting behind me.
00:22:50Merritt will always be a proud Texan, no matter how many years we live in DC, and she's supported me in sacrifice for my career
00:22:57for over 20 years.
00:22:58My mom and dad are here as well. My father, Charlie, retired a few years ago, as you mentioned, Chairman Grassley,
00:23:04after practicing law for 50 years and serving his country in Vietnam. It's an honor for me to follow in his footsteps.
00:23:11I'd also like to thank President Trump and Attorney General Bondi for this nomination,
00:23:15which comes with the awesome responsibility of running the Civil Division, the largest litigating component at the Department of Justice.
00:23:22I've had the great fortune of working with many wonderful mentors
00:23:26throughout my career. My first job out of law school was clerking for Judge Edith Jones at the Fifth Circuit Court of Appeals.
00:23:33I'm also grateful to so many friends at Wiley-Rhein for the mentorship in the early years of my career.
00:23:40At Jones Day, I had the privilege of working with many outstanding lawyers, including Don McGahn and Noel Francisco.
00:23:45I'm grateful to them for their support and guidance during my five years at the firm.
00:23:50I've also been incredibly blessed to work with many outstanding lawyers and staff at the Department of Justice over the years.
00:23:57In fact, one of the best parts of the Civil Division is being able to work side-by-side with the career attorneys and staff
00:24:03who work incredibly hard and are dedicated to serving the American people.
00:24:08I had the privilege of serving as a deputy in the Civil Division from 2017 to 2019.
00:24:13During my time running the Federal Programs Branch, I worked for two outstanding leaders in Chad Radler and Jody Hunt.
00:24:19It would be an honor for me to follow in their footsteps if I'm confirmed to lead the Civil Division.
00:24:24Most people are familiar with the Civil Division because the important work it does defending federal policies in the lower courts,
00:24:31but it does so much more.
00:24:32The Civil Division also uses the False Claims Act and other enforcement authorities to identify waste, fraud, and abuse in federal programs.
00:24:40It also does important work protecting consumers from elder abuse, illegal drugs, and fraud schemes.
00:24:46I look forward to doing this important work of the Civil Division if I'm confirmed.
00:24:50Thank you for considering my nomination. I look forward to answering your questions today.
00:24:54Thank you, Chairman Grassley, Ranking Member Durbin, and members of the committee for holding this hearing to consider our nominations.
00:25:06Thank you as well, Chairman Grassley, for your kind introduction.
00:25:10I also want to thank President Trump for nominating me.
00:25:12It was an honor to serve as an appointee in his first term, and I'm eager to contribute to his second.
00:25:17I'm lucky to have my family here supporting me, and I'd like to introduce them.
00:25:20First, my wife, Catherine, who is a judge on the Court of Federal Claims.
00:25:24A little over five years ago, she sat here for her own confirmation hearing before the committee.
00:25:29Next is my daughter, Evelyn, who's in the second grade, and my son, Henry, who's in the fifth.
00:25:34My parents, Dave and Pam Davis, have flown in from Nebraska to be here,
00:25:39and my in-laws, Todd and Meg Mason, have driven down from Pennsylvania to be with us today, too.
00:25:44I'm truly blessed to have such a wonderful family, and I am profoundly thankful for their love and support.
00:25:49Having spent years as an oversight attorney for Chairman Grassley,
00:25:52it's humbling to be in this hearing room once again, this time as a nominee.
00:25:56The lessons I learned during those years, along with ones from my prior times in the Justice Department
00:26:00and throughout my career, have helped prepare me to lead the Office of Legislative Affairs, if confirmed.
00:26:06Under the Justice Department's regulations, the Assistant Attorney General for the Office of Legislative Affairs
00:26:12is entrusted with the duty of maintaining liaison between the Department and Congress,
00:26:16reviewing, coordinating, and submitting departmental legislative reports,
00:26:19and coordinating the preparation and submission of proposed departmental legislation,
00:26:24among other responsibilities. I believe my professional experience lends itself well
00:26:28to these tasks, and I've seen many related issues from both sides. I have been a career DOJ line
00:26:34attorney and a political appointee in DOJ's management. I've been a Judiciary Committee
00:26:39staffer engaged in oversight of the Department, and I've also been on the receiving end of
00:26:43congressional oversight. On both this committee and the House Intelligence Committee, I've examined
00:26:48numerous legislative reports submitted by the Department, and at the Department in the first
00:26:52Trump administration, I signed off on submitting many such reports. I've also conducted congressional
00:26:56oversight from both the majority and the minority, and seen those differences as well.
00:27:02All of this is to say, I've worked extensively in both Congress and the Department of Justice,
00:27:06and I have a deep respect for their respective roles in our system of government.
00:27:10If confirmed, I would be honored to be given the responsibility to maintain,
00:27:14and hopefully strengthen, the working relationship between the two.
00:27:18To that end, I look forward to the opportunity to engage with the committee, to advance important
00:27:22legislation to address our nation's ongoing challenges, and to benefit the American people.
00:27:27I'm also acutely aware of the importance of the Department being responsive to oversight inquiries
00:27:32from the committee, both from the majority and the minority. If confirmed, I'm committed to being
00:27:37transparent to the fullest extent consistent with the constitutional and statutory obligations of
00:27:42the Department. Where the Department appears to have been deficient in its oversight responses,
00:27:47I will seek to review the policies, procedures, and decisions that have caused the issues,
00:27:51consult with the relevant officials within the Department, and pursue appropriate corrections.
00:27:56When there are conflicts between the Department and Congress, the courts have recognized that
00:27:59each has an implicit constitutional mandate to seek optimal accommodation through a realistic
00:28:04evaluation of the needs of the conflicting branches in the particular situation, and to
00:28:09work not in a purely adversarial manner, but instead with a spirit of dynamic compromise
00:28:14to promote a resolution. I believe my experience in both branches will help me be an honest
00:28:19facilitator of that compromise process. As the Chairman has often said, sunlight is the best
00:28:24disinfectant. I hope to help let the light in. Chairman Grassley, Ranking Member Durbin, and
00:28:29members of the committee, I have been privileged to spend nearly all my professional life in
00:28:33government service, and I hope you will see fit to confirm me for this next role to continue serving
00:28:38the American people, this time as an Assistant Attorney General. Thank you for your time and
00:28:42your consideration. I would like to begin by thanking you, Chairman Grassley, and you,
00:28:55Ranking Member Durbin, for holding this hearing. I'd also like to thank Senator Graham, who's now
00:29:01invisible, unfortunately, for his gracious introduction, especially since my family was here.
00:29:07I would also like to thank President Trump for the honor of this nomination.
00:29:12I have some of my family here today, and I'd like to introduce them.
00:29:15I'm so fortunate to have the love of my life and my best friend here, my wife, Catherine.
00:29:26Somehow, she manages to have a full-time job and take care of everyone else in the family as
00:29:31well. It's no exaggeration to say I would not be here without her. Her support and encouragement
00:29:38throughout most of my adult life and during the hardest times has made all the good things
00:29:43possible and all the rest livable. My wife is joined by my son, Paul, and my daughter, Sarah.
00:29:54My youngest daughter, Evie, can't be with us today. She has something called 22Q. It's a
00:29:59micro-deletion on chromosome 22, which causes developmental delays, among a lot of other things.
00:30:06Evie is an inspiration to everyone who knows her, though. She doesn't let her disabilities
00:30:10get in the way, and she greets just about every day with delight. Paul and Sarah are not bad either.
00:30:19Catherine, Paul, Sarah, and Evie are the joys of my life. Without them, life itself would be
00:30:24unimaginable to me. I learned the importance of family from my mother, who, at all of five feet
00:30:30tall, was the most powerful person I had ever met in my life, and I think that still holds. No one
00:30:36wanted to mess with Rhoda. Because of her, my sister, Nancy, and my brother, Ethan, and I couldn't be
00:30:43closer. We talked virtually every day. We try to see each other as much as we can. While my mother
00:30:49passed away more than a decade ago, I'm fortunate to have both a father and a stepfather who are
00:30:56very supportive of me. I also know, I also have a very small number of friends who I count as family.
00:31:02They know who they are, and I thank them for their support. I would also like to say something about
00:31:08the colleagues. Too many to name here. I have had the privilege of working alongside in my many years
00:31:15in the government, in government service, and during my private practice times. I am truly
00:31:20blessed to have worked with so many who are the embodiment of dedication, blazing intelligence,
00:31:25and integrity. Serving with each of them has been an honor, and I am grateful just to
00:31:30know these people. National security is the thread that runs through my professional life.
00:31:36I was in Alexandria on September 11, 2001, when terrorists attacked our nation, resulting in
00:31:42the deaths of some 3,000 people in coordinated attacks on the World Trade Center and the Pentagon.
00:31:49I think it's hard for people who weren't adults in 2001 to understand the effect these attacks
00:31:54had on many of us. It's easy to forget that follow-on attacks were thought to be very likely
00:32:01and at times imminent. Indeed, our success in thwarting other attacks of that magnitude led
00:32:07many to wonder if the threat was overblown. But for me, I will never forget that day.
00:32:13I heard the explosion coming from a commercial airliner colliding with the Pentagon. I saw the
00:32:18smoke rising from that building. My wife couldn't come home from her office in Washington for hours
00:32:25because the necessary metro lines went through the Pentagon, and the Pentagon was still on fire.
00:32:30I saw F-16s trailing commercial airliners and even private aircraft, I suppose escorting them
00:32:37away from anything that they considered a target. But my country really had become a battlefield.
00:32:43In my past government jobs, I have focused on national security. The events of September 11
00:32:48instilled in me the need to be part of a response to terrorism. My more recent government service
00:32:54has shown me the importance of protecting the nation from myriad other threats.
00:32:59I am deeply committed to the rule of law and the Constitution, but I also believe that the
00:33:04government has a solemn obligation to do what it can within those limits to protect the nation
00:33:09and its people. I was in the Department of Justice when it stood up the National Security Division,
00:33:15and I was part of a team that helped propose and implement necessary changes to bring NSD
00:33:20into the world. It would be a great honor to lead that division and the dedicated public servants
00:33:26who go to work every day in NSD and who do so because they share the vision of which I spoke,
00:33:32that of protecting the nation. To everyone in NSD, I look forward to working together,
00:33:37should I be confirmed, to protect this great nation and its people from the range of national
00:33:42security threats facing them. I look forward to answering your questions.
00:33:46Thank you all.
00:33:51To answer questions, I'm going to start with Mr. Eisenberg. As he knows and everybody on
00:33:58this committee knows, protecting whistleblowers is very important to me. I want to ask about a
00:34:032022 Department of Defense IG report claiming that you retaliated against Eugene Vindman
00:34:11for reporting President Trump's 2019 call with President Zelensky. I have serious concerns about
00:34:21the political motivations underlying the whole issue, and I have questions about the report
00:34:26itself, but I want to hear from you directly. How do you respond to the charge that you retaliated
00:34:33against Mr. Vindman? Thank you, Mr. Chairman, for that question. First,
00:34:40I wholeheartedly deny the allegations. I'm just not that kind of a person. I would never let
00:34:46anything other than the facts of how someone's performing enter into an evaluation. If I had
00:34:54done so, I would not be here seeking this office. Let me note one other thing at the beginning.
00:35:03I was in the White House at the time. All of these events happened within that confines,
00:35:08and so virtually everything is subject to executive privilege. When the Office of the
00:35:14Inspector General called my lawyer to say that they wanted to interview me, my attorney advised
00:35:20me that we would need the permission of both the then-current Biden administration and the
00:35:26former Trump administration. That's because they were the holders of that executive privilege.
00:35:32My attorney called them and sought that permission, but we didn't get permission
00:35:36until after the report, which sort of came out of the blue to us. We didn't get that permission
00:35:41until after that report dropped. Consequently, the Office of the Inspector General was wholly
00:35:46without anybody telling that side of the story. I did not, and none of the other people that
00:35:53had allegations against them in that report were able to sit for an interview. Now, that material
00:36:01is in general subject to executive privilege, but I feel like I could give a few examples
00:36:06of why my evaluation of Mr. Vindman changed just based on what's in the IG report, which is now
00:36:12public. As an initial matter, it's clear that I told Mr. Vindman at some point that in order to
00:36:19go to meetings over a certain level or about certain topics, he needed to get permission
00:36:24from either me or my deputy. But then we find out that Mr. Vindman would add himself to meetings,
00:36:29which means he was trying to get into that meeting, even if I had made no determination
00:36:35or actually a determination that he shouldn't be there. Meetings like this aren't like standard
00:36:40meetings within a company trying to figure out how much product to make this year. Those meetings
00:36:45have some of the most sensitive information that the United States government has, and the
00:36:50deliberations in those meetings can often be extraordinarily sensitive in and of itself.
00:36:55So you only send somebody to a meeting if they have something to add to that meeting.
00:37:00Otherwise, you're exposing someone to classified information despite the fact that there's no
00:37:04reason for it, and we're not supposed to do that. We even found out subsequently that Mr. Vindman
00:37:12went to a meeting after I had told him expressly not to go to that meeting. At another time,
00:37:19we found out that Mr. Vindman was seeking reimbursement for his brother's travel expenses
00:37:24to Ukraine. Both my deputy and I told Mr. Vindman that he couldn't do that,
00:37:30that there was an obvious conflict of interest. Nevertheless, we heard that Mr. Vindman continued
00:37:35to do that. Relatedly, we heard that, and this is in the IG report as well, we heard that Mr. Vindman,
00:37:42that a particular witness reported that Mr. Vindman turned red in the face when he met some
00:37:49resistance to getting money on behalf of his brother. I wouldn't tolerate that in my office
00:37:56if someone goes and tries to intimidate, yells, or anything. It's critically important that
00:38:02especially lawyers in the NSC act like lawyers. That's not everything by any stretch,
00:38:10but it's the stuff I can glean from the public report.
00:38:13Mr. Shumate, I've got an opening statement. I'm going to just quote Justice Kagan on
00:38:27nationwide injunctions, quote, it just can't be right that one district judge can stop
00:38:33nationwide policy in its tracks and leave it stopped for years. It takes to go through the
00:38:39normal process, end of quote. What is your perspective on the use of nationwide injunctions,
00:38:45and is there a role for Congress to play in ending the practice?
00:38:50Thank you, Mr. Chairman, for that question. I agree with that sentiment. We've seen an
00:38:53unprecedented number of nationwide or universal injunctions just in the first two months of the
00:38:59Trump administration. The department's position has been consistent across administrations that
00:39:06single district court judges do not have the power to issue nationwide or universal relief.
00:39:11Our position flows from Article III of the Constitution, which limits courts to deciding
00:39:16the case or controversy before them. Courts are supposed to apply doctrines like standing
00:39:21and reviewability and scope of relief to award relief to the party before them and redress that
00:39:26injury, not go beyond the parties. We've seen district court judges grant relief far beyond
00:39:31the parties to those cases to enjoin the executive branch nationwide or universally.
00:39:38And in terms of whether there's a role for Congress to play, yes, Senator, the Constitution
00:39:42creates one Supreme Court, but vests in Congress the authority to ordain and establish the lower
00:39:48courts. And over time, Congress has certainly created courts, eliminated courts, created
00:39:53jurisdiction, limited jurisdiction, and created special review procedures for review of agency
00:39:59action, whether it's three-judge courts or direct review in the courts of appeals. So
00:40:04certainly there is a role for Congress to play, Senator.
00:40:06Senator Durbin.
00:40:08Thank you, Mr. Chairman. The Justice Department is currently defending the Trump administration
00:40:13in a number of lawsuits challenging executive actions taken by the president and officials
00:40:18of the administration. Federal judges, both Republican and Democratic appointees,
00:40:24have enjoined some of these actions, holding they are illegal or unconstitutional.
00:40:29Alarmingly, President Trump, his allies, and even some nominees before the committee
00:40:34have responded by questioning whether the executive branch must follow court orders.
00:40:39If confirmed, the three of you will hold key positions at the Justice Department,
00:40:44and you will take an oath to uphold and defend the Constitution. So I'm going to ask a question
00:40:50which could merit a yes or no answer, and I hope it will. Do you believe, I'll ask each of you,
00:40:57do you believe a litigant, including the executive branch or president, can lawfully
00:41:03defy a court order? Mr. Shumate. You want to turn now?
00:41:10Thank you for the question. I will always advise a client, whether in private practice
00:41:14or in government, to comply with court orders. And if our client disagrees with the court order,
00:41:18we can appeal, seek a stay. And I think that's exactly what I've heard the president say,
00:41:23comply with court orders and appeal if we disagree with them. Mr. Davis.
00:41:28Thank you, Member Durbin. Yes, I would say parties to litigation should always follow
00:41:33lawful orders that bind them. Mr. Eisenberg.
00:41:38I agree with both of my colleagues. Thank you. Mr. Eisenberg, earlier this week,
00:41:45we learned about a shocking security breach in which the Defense Secretary Hegseth and other
00:41:50cabinet officials discussed highly sensitive military plans over a commercial messaging app
00:41:56known as Signal. Classified and otherwise highly sensitive national security information must be
00:42:03handled in accordance with strict security protocol, including the use of secure facilities
00:42:08and communication channel. Willful or negligent disclosure of mishandling of such information
00:42:14is a criminal violation of the Espionage Act. Do you agree that the Justice Department must
00:42:20thoroughly and impartially investigate this breach? And if criminal violations have occurred,
00:42:24that the department must fairly and impartially prosecute those responsible?
00:42:31I agree that the department should take whatever appropriate action there is. I don't know enough
00:42:36about what actually happened to say what that action would be. I'm asking whether you believe
00:42:40it should be investigated by the Justice Department. In my view, it depends on the facts.
00:42:45Like if the facts are completely different than has been reported, it's just I don't know what
00:42:50the facts actually are. And I wouldn't want to opine on that until I knew what they were.
00:42:56Mr. Shoemade, last year, you participated in a Federalist Society panel discussion about
00:43:00the president's ability to remove heads of independent agencies. Do you recall that?
00:43:06Yes, I do, Senator. During that discussion, you argued that, quote,
00:43:09nearly all modern independent agencies are unconstitutional because of protections
00:43:15dictating that agency heads can only be removed for cause. Do you remember that position?
00:43:22Yes, Senator. You appear to suggest that a host of independent agencies should be subject to the
00:43:27whims of the White House, despite Congress's constitutional authority to create these
00:43:34bipartisan independent commissions. So do you stand by your argument that removal protections
00:43:39render independent agencies unconstitutional? Thank you for the question, Senator. As I recall,
00:43:45I was appearing as a lawyer at a law firm who currently had a case before the courts
00:43:51where I was taking a position arguing that removal protections for a certain agency were
00:43:56unconstitutional. And I was appearing, advocating for the courts to rule in my favor in that case
00:44:02and advocating for my client's position. Now in my role at the Department of Justice,
00:44:07I represent the interests of the United States. There is pending litigation regarding removal
00:44:12protections and whether those restrictions are constitutional. So I wouldn't want to go beyond
00:44:16what the department has already said in those cases, Senator. The view you expressed last year
00:44:21directly contradicts the Supreme Court's decision in Humphrey's executor. A 90-year-old precedent
00:44:27holding that removal protections for independent agency heads are constitutional. In February,
00:44:33the Trump administration informed me that it will seek to have this precedent overturned.
00:44:38Did you participate in any conversations with any Justice Department or White House official
00:44:43about this plan to overturn Humphrey's executor? Senator, in my role as the acting head of the
00:44:49Civil Division, I had many conversations with many folks within the government about many topics,
00:44:53but I don't think it'd be appropriate for me to discuss who I spoke with or what advice I gave
00:44:58on any particular matter to protect the deliberative process and to encourage
00:45:02individuals across the government to reach out to the Civil Division and seek our advice on
00:45:08particular matters without fear that those conversations will be disclosed. But I didn't
00:45:12ask you that. I didn't ask you who you spoke with or what you said. I asked if you participated
00:45:16in conversations about this case being overturned. Senator, again, I don't think it'd be appropriate
00:45:21for me to disclose what matters I advised on at the department. I advised on many matters.
00:45:26I want to encourage folks throughout the government to reach out to the Civil Division
00:45:31to solicit our opinions without fear that those conversations will be disclosed.
00:45:35Mr. Chairman, may I ask one other question? Yeah.
00:45:39Mr. Chairman, I'd like to ask Mr. Shumate, last night the president was asked as to whether or
00:45:45not the rioters on January 6th should be compensated. That's a matter that would fall
00:45:50in the jurisdiction, I believe, of your responsibility in the civil section. Do you
00:45:56think the January 6th rioters should be compensated? Senator, I'm not familiar with those comments that
00:46:01the president may or may not have made last night. We have many pending cases in the Civil Division,
00:46:07including tort suits. It wouldn't be appropriate for me to commit to any particular resolution of
00:46:13any of those cases without talking to other folks within the department. Well, I come down on the
00:46:17side of the law enforcement officials that keep you and me safe, and your family as well at this
00:46:22moment, who were attacked by these rioters, and I do not believe they are entitled to any
00:46:26compensation for their action. Thank you, Mr. Chairman. Senator Lee. Thank you, Mr. Chairman.
00:46:32Thanks to the three of you for being here today and for your willingness to serve.
00:46:35Mr. Eisenberg, I'd like to start with you, if I could. During her confirmation hearing,
00:46:42Attorney General Bondi and I had a conversation about FISA Section 702 and about the use of what
00:46:51I sometimes refer to, for lack of a better word, as de facto warrantless backdoor searches, meaning
00:46:58searches of U.S. persons through a U.S. person identifier known to be a U.S. person identifier
00:47:06to search the databases containing incidentally collected content communications involving U.S.
00:47:15persons, U.S. citizens, and others here in the United States, lawful permanent residents, and
00:47:20so forth. And I asked Attorney General Bondi specifically whether she would agree with me
00:47:28that these de facto warrantless backdoor searches are concerning in that context. She responded in
00:47:36the affirmative with the word yes. That leads me to my question. Would you agree that these
00:47:44backdoor searches of incidentally collected communications involving American citizens
00:47:51are concerning?
00:47:55Thanks for the question, Senator Lee. I certainly agree that it does raise issues that the, you know,
00:48:04if you search a database, substantially large database. I don't at this point, however, know
00:48:11what protections are in place since I'm not currently in NSD. So if I were confirmed, I would
00:48:17talk to the experts in the NSD about exactly what they do, and I would then talk to the
00:48:23Attorney General and help come up with, you know, perhaps different procedures if those are warranted.
00:48:28I appreciate that, and I would add here that for the entirety of the 14 years that I've been a
00:48:35United States Senator, the whole time I've served on this committee, I and others, including people
00:48:42on both sides of the aisle, including Senator Durbin over the years, we've raised concerns
00:48:50with this. On each occasion, we've had officials from the FBI tell us, don't worry, we've got
00:48:58procedures in place. You don't need to worry about additional legislation. We've got it covered,
00:49:02and in each instance, when they come back, they usually tell us, okay, yeah, we discovered there
00:49:08have been some abuses, but now we've really got it covered. The bottom line is I do believe
00:49:14Congress needs to act here. I think we need additional protections because those internal
00:49:19protections haven't worked. Because we're trying to ram a giant square peg into a round hole,
00:49:25it doesn't work. In my view, it is not compatible with the letter or the spirit of the Fourth
00:49:29Amendment to allow those sorts of things. Now, Mr. Eisenberg, you've spent much of your career
00:49:35in national security law. With that, you've got vast experience with the FISA court and the FISA
00:49:42Court of Review. What reforms, if any, do you think perhaps ought to be made to the FISA court
00:49:48or the FISA process? Thanks for the question, Senator. I think this is something that I need
00:49:55to study as soon as I get into NSD, if in fact I'm confirmed. In my view, it has to be possible
00:50:05to do better in order to at least assure the American people that the sorts of privacy
00:50:10protections that are in place are actually working. But as to the actual details,
00:50:14I think I need to get in there first if I'm confirmed. Gotcha. Mr. Shoemake, let's turn to
00:50:18you. For a long time, I've been troubled with Congress's chronic delegation of the lawmaking
00:50:24power. As you know, Article 1, Section 1, makes Congress the sole sovereign lawmaking authority
00:50:30within the federal government. Article 1, Section 7, makes that doubly clear by saying you cannot
00:50:34make a federal law without both houses of Congress passing the same legislation,
00:50:40bicameral passage, followed by presentment to the president for signature, veto, or acquiescence.
00:50:47Congress has deviated from that, and the courts have been unwilling to enforce that part of
00:50:52Article 1, Section 7, for reasons that escape me. While acknowledging that the non-delegation
00:50:56principle exists, they just refuse to enforce it. Now, in your Senate Judiciary Questionnaire,
00:51:02you listed a case that you worked on called the All-State Refractory Contractors versus
00:51:07Sue. In that case, you challenged the constitutionality of the OSHA statute.
00:51:14What can you tell us about your involvement in that case and what your involvement in that case
00:51:18sort of taught you or what you gleaned from that as far as Congress's ability to delegate
00:51:25its lawmaking power? Thank you for the question, Senator. Yes, so that case reinforced for me the
00:51:32importance of Article 1, the vesting of legislative power in the Congress. And in that case, we were
00:51:38representing a client, All-States, which is a general contractor in Toledo, Ohio, that was
00:51:42challenging OSHA's statute, which under the non-delegation doctrine, which is a long-standing
00:51:49doctrine in Supreme Court precedent that says that Congress can't delegate its legislative power
00:51:53to the executive branch. And under the OSHA statute, Congress has allowed OSHA to promulgate
00:52:01numerous safety regulations that impacted my client. And so in that case, we were challenging
00:52:05the statute on its face as a violation of the non-delegation doctrine. We thought we had
00:52:11pretty good arguments. We went out to the Sixth Circuit. The Sixth Circuit upheld the statute
00:52:15in a 2-1 decision, and the Supreme Court denied cert in that case. So reinforced for me, Senator,
00:52:21the importance of the structural separation of powers and that each branch stay within their
00:52:26proper rule. Indeed. I see my time's expired, and I'll note as you say that this is not merely
00:52:32a hypothetical problem. 100,000 pages of new regulatory text issued last year. By some estimates,
00:52:38those 100,000 pages of new regulatory text put in place entirely by unelected, unaccountable
00:52:43bureaucrats cost the American economy $1.5 trillion annually. Think about that. That's a problem.
00:52:49Thank you, Mr. Chairman. Senator Arano. Thank you, Mr. Chairman.
00:52:55As part of my responsibility to determine the fitness of all nominees who come before any of
00:53:00my committees, I ask the following two initial questions, and if we can start with Mr. Shumate
00:53:05and go right down the line. Since you became a legal adult, have you ever made unwanted requests
00:53:11for sexual favors or committed any verbal or physical harassment or assault of a sexual nature?
00:53:18No. No, Senator. No, Senator. Have you ever faced discipline or entered into a settlement
00:53:25relating to this kind of conduct? No, Senator. No, Senator. No, Senator.
00:53:32This is for Mr. Eisenberg. There have been calls, including from the authors of Project 2025, which
00:53:39I think is generally seen as a blueprint for this administration,
00:53:43but Project 2025 calls for the revival of the National Security Division of DOJ to revive the
00:53:52so-called China Initiative. If confirmed as head of the National Security Division,
00:53:58do you plan on reviving the China Initiative, yes or no? I plan on looking at whether something
00:54:04like that should be stood up again, but I don't have any concrete plans about that. Do you have
00:54:09any concerns about bringing back that initiative? Do you have any awareness of what that initiative
00:54:14led to in terms of the litigation that arose from the China Initiative during the first Trump
00:54:23administration? Just tell me yes or no if you have an awareness. I did hear some of it, yeah.
00:54:29Okay, let me just say that the program was supposedly about countering Chinese government
00:54:35espionage and intellectual property theft, but it drifted far from that purpose. Instead,
00:54:41it focused largely on university professors, most of them of Chinese heritage, who had alleged
00:54:47paperwork errors in grant applications in the Department of Justice, which usually has a really
00:54:53great track record in convicting the defendants, many of whom plead guilty. But in the case of the
00:55:00China Initiative, the conviction rate was very low, practically non-existent. So for the dozens
00:55:09of cases against basically Chinese professors that the DOJ brought, most of them were tossed
00:55:16out for lack of evidence. And we know that the China Initiative was misguided, a waste of resources,
00:55:25and seemingly based more on the ethnicity of defendants whose lives were in many ways just
00:55:33destroyed by DOJ going after them than on the crimes they supposedly committed. So I would say
00:55:40that if you're going to look into re-initiating the China Initiative, I would look at the history
00:55:47of this initiative and do not go there. For Mr. Shumate, you defended President Trump's birthright
00:55:55citizenship order as though by waiving an executive order, he could get rid of the
00:56:00provisions of the 14th Amendment. You defended that order to get rid of birthright citizenship,
00:56:08and the judge that decided the case called the argument that this order that Trump made
00:56:20blatantly unconstitutional, and the judge had difficulty understanding how any lawyer could
00:56:29make the argument that you were making. And three courts of appeals have refused DOJ's request
00:56:36to stay, so there are some pending TROs. The administration then went to the Supreme Court,
00:56:44and the Supreme Court has not weighed in yet and set a leisurely briefing schedule,
00:56:50suggesting that the Supreme Court doesn't consider the government's defense of the order to be worthy
00:56:55of quick consideration, which makes me wonder whether you are prepared to argue before these
00:57:04courts what one court said, blatantly unconstitutional order. So Mr. Shumate, is that
00:57:14what you're going to keep doing? Senator, thank you for the question. Since that first hearing
00:57:19that Senator Durbin referenced earlier today, the department has filed many briefs explaining its
00:57:25view of the 14th Amendment and the legality of the President's birthright order. Because it's
00:57:33pending litigation, it wouldn't be appropriate for me to discuss the merits of the litigation.
00:57:36I think that, you know what, I have to say, Mr. Shumate, that this is one order that was just,
00:57:42there's just a lot of precedent for birthright citizenship, and for you all to spend your time
00:57:48and resources going after this as a way to make a point, political point, basically,
00:57:54is not the way that I would expect the Justice Department to comport itself. Thank you, Mr.
00:58:00Chairman. Mr. Shumate, what's a universal injunction? Senator, a universal injunction
00:58:09is what we call an order from a court enjoining the government in a way that goes beyond the
00:58:15parties to the case, but applies nationwide, or in some cases universally, to enjoin the government.
00:58:20Is it sometimes referred to as a nationwide injunction? Yes, it is, Senator.
00:58:24Okay. What's the statutory basis for a federal judge issuing an order that affects people other
00:58:37than the parties before the court? I'm not aware of a statutory basis, Senator.
00:58:41There is no statutory basis, is there? No, Senator.
00:58:46What's the United States Supreme Court opinion
00:58:49which interprets the Constitution in a way that allows a federal district court judge to do this?
00:58:55Can you name me that case? I'm not aware of one, Senator.
00:59:00There isn't one, is there? I'm not aware of one, Senator.
00:59:04Now, explain to me how this works. You have a plaintiff and you have a defendant,
00:59:12and the plaintiff files a lawsuit and goes in front of a federal judge.
00:59:16A federal judge has certain jurisdiction and personam and subject matter over the parties,
00:59:25the people, the plaintiff and the defendant.
00:59:30They're the only two people in court. How can a judge, a federal judge, issue an order
00:59:39that affects everybody else other than those in front of him or her?
00:59:46How is that possible? It shouldn't be possible, Senator,
00:59:49but district courts do it all the time. I think on the theory that the courts need to enjoin a
00:59:56federal policy from going into effect, and they often will enjoin it as nationwide, so all
01:00:02non-parties are protected by that injunction. I thought that if you wanted to affect parties
01:00:08who aren't in court, you had to file a class action. That's correct here, Senator.
01:00:14So why don't the federal judges, instead of issuing a universal injunction with no
01:00:23legal basis, tell the plaintiff, look, you got to go file a class action if you want to impact
01:00:29parties who aren't subject to my court. Senator, the Department of Justice makes
01:00:35that argument all the time in our briefs. I think in many cases, class actions would
01:00:39be inappropriate. The plaintiffs couldn't satisfy Rule 23 to establish a class.
01:00:44So they couldn't? Correct.
01:00:48So they prefer to ask for a universal injunction? Yes.
01:00:58Does this encourage forum shopping? Yes, Senator. Not only does it encourage
01:01:03forum shopping, but also district shopping and filing multiple strategic lawsuits to
01:01:09find one judge that will enjoin a single policy nationwide, where, you know, if you have five
01:01:14lawsuits, only one of those five cases needs to be successful. And both sides, all sides,
01:01:24have used this as a way to forum shop, haven't they? I think plaintiffs, regardless of
01:01:30administrations, will often file cases in the most favorable forum, yes. Okay, we've established that
01:01:35there's no basis in statute and no basis in Supreme Court precedent for universal injunction.
01:01:44How about a common law? I mean, universal injunction is basically an equitable remedy.
01:01:50Did this exist in common law courts in England on which our law is based?
01:01:56I don't believe so, Senator. I think the government has cited cases from the Supreme Court that says,
01:02:02you know, courts are really bound by the scope of relief that a court in equity would have granted
01:02:08back in England before the founding, and the courts at that time would grant relief to the
01:02:12parties in the case, not far beyond. A universal injunction as a remedy is
01:02:19unknown in English common law, is it not? I haven't done the research that far back, but I'm not aware.
01:02:24I have. It's unknown. It wasn't part of equity.
01:02:37Only about 28, I'm sorry, only about 27 universal injunctions were issued
01:02:50in the 20th century. Does that sound about right? That sounds about right, Senator.
01:02:55But 86 of them were issued against President Trump in his first term. Is that correct?
01:03:02I don't know the specific number, but they were a high number. And so far in President Trump's second
01:03:08term, 30 universal injunctions have been issued against him. Have they not?
01:03:13Senator, I don't have a specific number, but that sounds about right.
01:03:16Universal injunction has become a weapon against the Trump administration, has it not?
01:03:22Yes.
01:03:23And tell me again in my last 10 seconds, tell me the basis for universal injunction in Article 3.
01:03:32I read Article 3, which defines judicial power. Where does it mention universal injunction?
01:03:39It does not, Senator. It says courts are to decide the case or controversy before them,
01:03:44which is based on the parties to the case.
01:03:47So the Congress could act and say, look, federal judges, you render a decision to a plaintiff or a
01:03:56defendant, but you can't impact people outside of your courtroom other than through a class action.
01:04:02That's why God created class actions, isn't it?
01:04:06Yes, Senator.
01:04:06Thank you, Mr. Chairman.
01:04:16You know how important oversight is to me, and I gave Bondi a binder of 144 oversight letters that
01:04:26I said during the Biden Justice Department. And I know that's a big job for you to fulfill that,
01:04:34but I'd like to give priority for your committing to providing responsive document requests as
01:04:46opposed to just answering any particular letter right now, because a few of them asked for that.
01:04:53And for Mr. Shoemade...
01:04:58Mr. Chairman, I have a question too for Mr. Davis if we're stalling for time.
01:05:03Okay. The False Claims Act is a very important priority for me because in 1986, I spearheaded
01:05:12legislation to substantially strengthen its civil provisions. That's the KTAM provisions in it.
01:05:19It has since brought $78 billion back into the Treasury, I think $3.9 billion just last year.
01:05:27More recently, I introduced the False Claims Amendment Act, a bipartisan bill that would
01:05:32fix loopholes that allow fraudsters to avoid accountability. If you're confirmed, will you
01:05:38pledge to vigorously enforce the False Claims Act and devote adequate resources to investigating and
01:05:45prosecuting false claims cases? Yes, Senator, absolutely. The False Claims Act is an essential
01:05:52tool that the department uses to root out fraud, waste, and abuse. KTAM relators are an essential
01:05:58component of that. As you know, the department generates billions of dollars in revenue every
01:06:02year for the Treasury through the False Claims Act. If I'm confirmed, I will aggressively enforce
01:06:08the False Claims Act and work with the outstanding folks in the fraud section.
01:06:12I know after nine years of one case being filed and it went into discovery,
01:06:19somebody in the previous administration just stopped it. We can't let things like that happen.
01:06:25If you're going for nine years and going into discovery, you can't let some political person
01:06:30step in and stop the claim. Just as one example of some things that have been wrong. Senator Schiff.
01:06:39Thank you, Mr. Chairman. Mr. Eisenberg, you served during the first administration
01:06:45as the NSC legal advisor. In that capacity, you must have participated in dozens, if not hundreds,
01:06:52of principal meetings organized by the National Security Advisor. Did you conduct any of those
01:06:58meetings by text chat that involved military strike plans? No, I don't believe so.
01:07:06So the entire first four years of the Trump administration, you never had a text chat
01:07:11conversation about plans to strike targets using an unencrypted or using a commercial app?
01:07:19Well, I'm not aware of any such I'd considered in the app.
01:07:23And you didn't do that because that would have been a terrible national security
01:07:26breach of protocol, would not?
01:07:29I would have to know a lot more to know whether that would be a breach.
01:07:32Would you really need to know more than a conversation about military targets,
01:07:38the time of the attack, the location of the targets, the ordinance being used?
01:07:46Sure, you'd want to know whether the device is up to a certain level so that it could.
01:07:50I mean, you might make one that...
01:07:51Okay, we're talking about a commercial app like Signal. Would it ever be appropriate
01:07:55to discuss imminent plans to strike military targets on a commercial app?
01:08:02I still think it's very difficult to answer that question in the abstract.
01:08:05I mean, I can think of circumstances in which you could, sure.
01:08:08Oh, well, give us a circumstance in which you can talk about an imminent military attack
01:08:12unknown to the public where it would be appropriate to do so on a commercial app.
01:08:17Okay, something absolutely urgent happens and needs to go right now
01:08:21and your normal communication systems don't work.
01:08:24I mean, there's an example where you would have to, you may have to do something like that.
01:08:28And where you have access to classified facilities,
01:08:32it would be completely inappropriate, wouldn't it?
01:08:34I still need to know more.
01:08:36Really? Wow.
01:08:37And you want to lead the National Security Department at the DOJ and you would need to know more?
01:08:43Yes, Senator, I'd like to lead the NSD and I think I'm exceptionally qualified.
01:08:47And do you fail to believe the NSA and the DOD when they say that the use of
01:08:56commercial apps like Signal is a security threat and inappropriate for
01:09:03confidential or sensitive data?
01:09:05I haven't heard what either of those entities have said.
01:09:08So you don't have any idea what the view of the intelligence community is about
01:09:13the use of commercial apps to conduct government business involving classified
01:09:18or sensitive national security information? You have no idea what the position is?
01:09:22No, I'm sure the position is that, in general, that should never happen.
01:09:25Okay, so what happened in this Signal chat should never have happened. You agree with that?
01:09:31No, I said, as I said before, I would need to know more.
01:09:35Have you read the Signal chat?
01:09:37I have not yet.
01:09:38Yeah, you have not read it. Are you desiring to be willfully blind to what just happened?
01:09:45No, I was trying to prepare for this hearing, among other things.
01:09:48Oh, and you didn't anticipate you'd be asked about this? Or is it because you anticipated
01:09:53you would be asked about this? You didn't want to inform yourself
01:09:56of this incredible breach of national security?
01:09:59There are millions of things going on in the world at any given time.
01:10:03So I just didn't happen to learn about this one.
01:10:05Oh, I see. There are millions of things going on. Yes, I'm sure there are millions of things
01:10:09going on in the world. But this happens to be probably the biggest national security story
01:10:15of the month, which included a lot of other national security stories, including
01:10:21a war in the Middle East and including capitulation to Putin and Russia.
01:10:26But you just happened to neglect to read this one. Is that what we're led to believe?
01:10:30I just happened not to read it. That's all.
01:10:33Well, let me ask you this. If you're using a commercial app to discuss the identity of
01:10:40targets, their locations, and that information were to become public,
01:10:45it could compromise those operations, couldn't it?
01:10:48It depends on what the operation is and where in the operation.
01:10:51Well, let's say an operation to strike targets in Yemen, Houthi targets that identify,
01:10:56say, a top missile operative and the location of the girlfriend's building.
01:11:03Those kind of specific details discussed on a commercial app could jeopardize that
01:11:08operation if it became public. Isn't that true?
01:11:10It depends on the circumstances.
01:11:12Well, I just gave you the circumstances.
01:11:13And that's why I'm not going to answer a hypothetical question.
01:11:15Well, it's not hypothetical. I wish to hell it were hypothetical. This just happened.
01:11:20This was shared with a journalist on a commercial app.
01:11:26You need more information than that? Well, how about
01:11:29discussing denigrating our European allies on a commercial app?
01:11:34Could that have diplomatic fallout?
01:11:36I don't know the circumstances.
01:11:38Really? So the vice president's conversations on this app, others joining in and disparaging
01:11:45Europe, this is completely new information to you? You're unaware? You can't comment
01:11:50on whether that could interfere with our relationship with our closest allies?
01:11:54No, I heard of the incident. I just at this point hadn't had time to look at it closely.
01:11:58Yeah.
01:11:58I'm a lawyer, sir. And before I make decisions and form opinions,
01:12:03I need to look at the facts carefully.
01:12:05Yeah. And you don't hide from the facts as a lawyer.
01:12:08And if you want to head the National Security Division at the Department of Justice,
01:12:11you don't stick your head in the sand when we've had a serious breach of our national
01:12:15security so that you don't have to answer uncomfortable questions.
01:12:18That's not right. Mr. Chairman, I yield back.
01:12:22Thank you, Mr. Chairman. I do find it interesting that my Democrat colleagues
01:12:27are so enraged by this non-story and had nothing to say when we had a president who literally
01:12:34couldn't put two sentences together for two years. President Otto Pinn was the commander-in-chief.
01:12:42No questions about his inability to construct sentences, let alone foreign policy. But here we
01:12:49are with a fake story. But this is what happens when you have a party that has reached actually
01:12:55not rock bottom yet, not rock bottom yet, but they got nothing, zero, no issues, no leader,
01:13:04fringe issues to find them. So they're going to glom onto the story of the day. And quite frankly,
01:13:09it's embarrassing for them. Just like, by the way, these calls to come out against violence.
01:13:15The only thing, district court rulings, the only thing that's been talked about are political
01:13:19solutions. The only person I remember standing in front of the Supreme Court calling for a whirlwind
01:13:26on Justice Kavanaugh and other Supreme Court justices that were followed up by assassination
01:13:31attempts of Supreme Court justices, that were followed up by violent protests outside their
01:13:36homes where they had to move out of their homes was Chuck Schumer. And as long as we're denouncing
01:13:44violence, how about firebombing Tesla dealerships? This Antarctic kind of strain runs through the
01:13:57left. And to my Democrat friends, I feel bad for you because your party has been captured by a
01:14:05radical element that is pro-Hamas, that is pro-violence, that is firebombing Tesla dealerships
01:14:15because they don't like that Elon Musk has actually found the grift out and is cutting it out. The
01:14:22NGOs that have laundered money for Democrat causes for years, it's all coming to an end and they
01:14:27don't know how to handle it. So anyway, as far as sort of some of these rulings, I would point out
01:14:33that in the most recent case with the Venezuelan thugs who've now been imprisoned in El Salvador,
01:14:40the apex of presidential power is, as Justice Jackson wrote in the Youngstown Steele case in
01:14:45his concurrence, is at the apex when you have congressional delegation or core Article II powers
01:14:51as commander-in-chief. And the district court, in citing the Alien Enemies Act, where whether
01:14:57wartime or invasion or predatory incursion, the president is acting within his authority,
01:15:02the district court has no more authority to tell the president he can't do that than they can,
01:15:08speaking of national security, directing troop movements or missile strikes. So when we talk
01:15:14about separation of powers, it does go both ways. It does go both ways and there's been this
01:15:19obsession with getting all of you on the record about following court orders. The president of
01:15:22the United States has said he will follow court orders time and time again, but it's this desire
01:15:27to just stir up something because they have nothing. That's what's going on here. I did
01:15:34want to ask with the time that I have left, Mr. Davis, you have done a lot of great work
01:15:42investigating a lot of things. The origins of COVID, I'm just curious. So when I was
01:15:47Attorney General of Missouri, we actually sued Communist China for unleashing the COVID
01:15:50pandemic. We received a $24 billion default judgment recently. But when we filed that
01:15:57lawsuit, it was interesting, the reaction. You were called a racist if you implied any way that
01:16:05it leaked out of Wuhan, which was very obvious to most people. And now the intelligence community,
01:16:09who for some reason resisted that conclusion for such a long time,
01:16:14has basically said that's what happened. What do you think, as you were investigating this,
01:16:21what was behind that? What was behind this resistance to all the evidence and the obvious
01:16:27nature of the origins of COVID? Thank you, Senator, for that question. I appreciated
01:16:32speaking with you yesterday. That was great. The report that I authored on the House
01:16:38Intelligence Committee about the origins of COVID, unfortunately, is still classified,
01:16:42so I can't really get into the specifics of what it found. We did do an unclassified summary, which
01:16:48just given the nature of the underlying information was unfortunately not terribly
01:16:51revelatory. I would note that when then President Biden instructed the intelligence community to do
01:16:58a sort of comprehensive review on the COVID origins, the subsequent report they put out
01:17:03and the declassified version of it, there were serious flaws with. And I think those flaws,
01:17:08you've seen, you mentioned that individual components have changed their public view.
01:17:12But I do think that until there's more transparency about what was going on
01:17:17within those elements of the intelligence community, the people won't really know
01:17:20the full story, unfortunately. Thank you. Well, it is also interesting that Fauci
01:17:28played a very significant role in this, and maybe we'll be hearing from him in
01:17:31some committee hearings sometime soon, too. Thank you, Mr. Chairman.
01:17:43Okay. So, Mr. Eisenberg, Mr. Shumate, Mr. Davis, thank you for your testimony today and to your
01:17:48family and friends who have made the visit. We thank you as well. It's a momentous day,
01:17:53I know, in your lives, and we're excited about what's to come. For everyone's information,
01:17:57written questions to Mr. Eisenberg and Mr. Shumate can be submitted for the record until
01:18:01April 2nd at 5 p.m. Written questions to Mr. Davis can be submitted for the record until tomorrow,
01:18:07March 27th at 5 p.m. I'll ask the nominees to answer and return the questions to the committee
01:18:12as soon as possible so that we can quickly schedule your confirmation votes. With that,
01:18:17this hearing is adjourned. Thank you.