Remarks as Prepared for Delivery
Thank you, Dean, for inviting me. I am honored to be here and to be part of the Capital Conversations series.
It has been a true privilege to have led the Office of Legal Policy at the Department of Justice these past three-and-half years. For those of you who don’t know about our office, OLP is tasked with being the principal office to research, plan and develop the Department’s major policy initiatives. This process often involves components across the Department that have special expertise in the policies being considered. OLP coordinates that effort and advises the Attorney General and Deputy Attorney General on the path forward.
Additionally, as this audience may know, we are responsible for vetting and shepherding the President’s judicial nominations for the federal courts.
I’ve sometimes remarked that, with so much going on in our jobs and so much happening in a single day, it’s easy to lose track of time. But over these years, there has been an incredible amount of good work that has been accomplished. And so today, I’d like to focus on some of the good news, which I think too often goes under-reported.
Judicial confirmations. First, in the course of this period, we have confirmed 220 new Article III federal judges, including 2 on the Court of International Trade, 162 on the federal district courts, 53 on the courts of appeal, and of course three Supreme Court justices — including our newest Justice, Justice Amy Coney Barrett. Those numbers do not even account for the many other federal judges the President has appointed to specialty courts. This has been no easy task, and has required an incredible amount of work from the White House, my office, and of course the Senate. But it is a credit first and foremost to those individuals who are willing to serve their country for lifetime appointments, and endure a judicial confirmation process that is incredibly taxing, both for themselves and their families.
As I have said before, the pace of nominations has not come at the expense of qualifications. One liberal commentator has acknowledged that “Based solely on objective legal credentials, the average Trump appointee has a far more impressive resume than any past president’s nominees.” And even though the group has been hostile and in some cases unfair to certain nominees, that same conclusion is largely reflected in ratings from the American Bar Association, which has rated President Trump’s judicial appointments as among the most qualified in recent history. But I can tell you, having worked closely with these judges throughout the nominations process, I didn’t need the ABA’s assessment to tell me how extraordinary they are. These confirmed judges are men and women of character and patriotism, stepping forward to choose a lifetime of service to our country. They are some of the very best of our profession.
And what makes them so extraordinary is neither their number nor their credentials; nor even their historically well-qualified ratings. What makes them extraordinary is the principles they share.
These judges come from all across the country, from many ethnic backgrounds and all walks of life. Before becoming judges, they were prosecutors and professors, immigrants and trailblazers, veterans and public servants. But what they share in common — the principle that binds them — is the unwavering commitment to exercise neither force nor will, but only judgment. By binding themselves to the Constitution, these judges will help ensure that our judiciary is the least dangerous branch, as Hamilton expected.
I know that many people have been uplifted by the confirmation hearings for now-Justice Barrett. Those who watched the hearings saw two things: first, a woman of incredible integrity and intelligence who is enormously well-qualified for the position to which she had been nominated. Few could deny that if Justice Barrett’s nomination had occurred in 1986 or 1993, her confirmation would be unanimous, or near-so.
Second, the American people saw, over four days of confirmation hearings, a debate in the spirit of the best traditions of this Society. They saw some Senators affirm that it is the duty of the judiciary to say what the law is, not what it should be. They heard Justice Barrett say, repeatedly, that she would put any personal views aside and judge according to the law. And they heard her say that she would approach each case with an open mind, that she harbors no agenda or hostility.
On the other side, the argument was made clearly that there is little difference between law and policy — that preferred policy outcomes should play a paramount role in deciding cases. And it was suggested, in a profoundly pessimistic view of a judge’s role, that it is a fallacy to believe that any judge can rule without his or her personal views factoring in.
There could hardly be a starker debate. But what this should reaffirm for everyone listening is that when there is free speech, open debate, and fair time accorded for real discussion, the American people will be able to make up their own minds. Ideas matter. Those who are confident in the strength of their arguments, who have the courage of their convictions, do not shy away from free speech, and they do not try to silence opposing views.
While judicial nominations have certainly taken a good deal of our attention, I’d also like to talk for a moment about some crucial policy achievements that we have secured.
Regulatory Reform. First, under the leadership of Attorney General William Barr, Deputy Attorney General Rosen, and before them, Attorney General Sessions and Deputy Attorney General Rosenstein, the Department has taken significant steps to improve the regulatory process, making it more lawful, more accountable, and more transparent.
We started by stating unequivocally that guidance documents are just that — guidance — and do not have the force of law. The Department of Justice no longer writes letters or issues guidance documents that purport to create rights or obligations binding on persons or entities outside the Executive Branch.
Next, under the Brand memo, issued by then-Associate Attorney General Rachel Brand, the Department made clear that it will not use its enforcement authority to effectively convert agency guidance documents into binding rules. And Department litigators may not use noncompliance with guidance documents as a basis for proving violations of law in affirmative civil enforcement actions.
The principles underlying these actions served as the basis for government-wide reform, as reflected in Executive Orders 13891 and 13892. And I am happy to report that they are no longer just memos; they are now Department of Justice regulations, ensuring that the principles of lawful regulation — regulation that accords with the Administrative Procedures Act — are carried forward.
Because insight into agency thinking should not be limited to the well-connected or only to those who can afford Washington lawyers, our new regulations also required the posting of every guidance document on the Department’s public Guidance Portal. If a guidance document is not posted on the portal, the Department will not be able to claim judicial deference to interpretations contained in that document.
What does this mean for the American people? A more lawful regulatory process, an agency that abides by its rules, and a process where the public has input into the regulations that govern them.
Good Government. In a similar effort toward more honest, transparent government practices, the Department has ended the practice of pay-outs to third-party groups as part of government settlements. As Attorney General Sessions said at the time, “When the federal government settles a case against a corporate wrongdoer, any settlement funds should go first to the victims and then to the American people.” Third-party organizations who are neither victims nor parties to the lawsuit are not entitled to compensation as a result of government action. This is a basic principle of responsible government litigation.
In another step for good government, we have worked to shed light on the serious legal deficiencies of unlawful nationwide injunctions. It has been the legal position of the Department across administrations to oppose such injunctions. But their increasing number — issued by districts coast to coast — has reached a crescendo over the last few years. The separation of powers imbalance they engender is real. In September 2018, the Attorney General issued a memorandum with litigation guidelines for handling these cases when plaintiffs seek this broad relief. There are signs that these efforts are finally having results, with some appellate courts limiting their scope. But it is unlikely the issue will be fully resolved until it finally percolates up to the Supreme Court for resolution.
Religious Liberty. The Department has also taken important steps to protect religious liberty. In 2017, Attorney General Sessions acted pursuant to an Executive Order by President Trump to issue guidance interpreting religious liberty protections in Federal law in order to guide agencies in complying with that law. The guidance interprets existing protections for religious liberty, identifying twenty high-level principles that administrative agencies and executive departments can put to practical use to ensure the religious freedoms of Americans are lawfully protected. I’ve been pleased to serve as the co-vice chair of the Religious Liberty Task Force, which assists in coordinating the Department’s implementation of the Attorney General’s Religious Liberty Memo.
The Supreme Court has been very clear, first in the Trinity Lutheran case, and more recently in Espinoza v. Montana Department of Revenue, that the Free Exercise Clause “protects religious observers against unequal treatment” and against “laws that impose special disabilities on the basis of religious status.” To put it succinctly, while governments may limit funding for religious use, they may not limit funding to religious people. We have worked to make sure that the Government’s policies reflect that basic principle. Early this year, the Department and eight other agencies proposed rules that would ensure equal treatment for faith-based organizations that participate in federal programs. Once final, the rules will significantly enhance the ability of Faith Based Organizations to participate in government programs without sacrificing their religious identity or mission.
OLP also worked closely with the Office of Justice Programs and other Department components to issue guidance this past July to make clear that recipients of Department of Justice grant funding would not be discriminated against on the basis of their faith. The guidance is an important affirmation of the Department’s commitment to ensure that individuals and organizations driven by faith to serve the community are not subject to unequal treatment by virtue of their religious identity. In tandem with this guidance, the Office of Justice Programs launched a new web portal to receive reports of possible violations of grantees’ and beneficiaries’ civil liberties.
And we have been leading the charge in the fight to combat anti-Semitism. After the troubling rise in crimes against Jewish communities and synagogues, Attorney General Barr personally visited Brooklyn to meet with leaders of the Jewish community there and issued a directive to all United States Attorneys to initiate or reinvigorate contacts with the Jewish community in their respective districts to reassure them of the Department of Justice’s commitment to protecting Jewish citizens. During the spring of 2020, United States Attorneys across the country met with Jewish clergy, local non-profits, and branches of national Jewish organizations. Since January 2017, the Department has charged more than 80 defendants with anti-Semitic hate crimes and related conduct, and has obtained convictions of more than 65 defendants for the same.
Through this and other work, the Department is protecting Americans from discrimination and ensuring that they enjoy the religious freedoms that federal law guarantees to them.
Cybersecurity. With regard to cyber issues, the Department’s Cyber-Digital Task Force has produced some excellent and important work. The initial Task Force Report issued in July 2018 addressed many crucial aspects of the Department’s response to malicious, cyber-enabled threats. One central focus was the response to the threat posed by foreign operations that seek to divide our society or undermine our democratic institutions.
The Report also sets out important steps the Department has taken and will continue to take to protect the integrity of our elections by working with other executive departments to identify and share threats and vulnerabilities with local election officials, political organizations, and other potential targets to help them detect and thwart attacks.
Earlier this month, the Cyber-Digital Task Force released a white paper on cryptocurrency. OLP was privileged to coordinate the drafting and development of this ambitious framework, which sets out how cryptocurrency technology is used and how criminals misuse it to harm users, exchanges, and investors, as well as to facilitate a broad range of crimes from child exploitation to terrorism. The framework identified the partners and resources we use to combat growing criminal and national security threats involving cryptocurrency, and identified ways to address these threats.
Vulnerable Victims. Finally, there is no more important role for law enforcement than protecting our most vulnerable members of society. That’s why the Department has made it a priority to protect children from online exploitation, to seek justice for victims of human trafficking, and to combat elder fraud and abuse. Attorney General Barr issued a directive to all federal prosecutors to continue to use their strongest efforts to identify and prosecute individuals involved in sex trafficking, including — importantly — those who fuel the demand for trafficking and ensure that victims receive restitution for the harms they suffered.
Recently, we also published proposed regulations providing a clear and comprehensive statement of sex offenders’ registration obligations under the federal Sex Offender Registration and Notification Act. These regulations will better protect the public by enhancing the enforcement of registration and notification across the country and ensuring that information about sex offenders in the community is available to law enforcement.
And, with regard to elder justice, the Department recently conducted the single largest coordinated sweep of elder fraud cases in history, with over 400 defendants charged for causing more than $1 billion in losses. It also launched the National Nursing Home Initiative, designed to investigate and prosecute nursing homes that provide grossly substandard care to their residents.
As you can see, there has been a lot of good work and good news to report over the past three-and-a-half years, and I have touched on only some of it. I appreciate the opportunity to share it with you today. So with that, let me pause. And I am happy to take questions.