Senator Grassley (00:01):
…not on media portrayals. This committee will do the same thing for Mr. Bove. Second, as a senior attorney in the Executive Branch and as a former attorney in private, Mr. Bove may be bound by recognized privileges, such as executive privilege, deliberative process privilege, and attorney-client privilege. This committee will respect those protections not as a courtesy, but because the law demands it. Third, I'd like to note that some of the rhetoric aimed at Mr. Bove by the media, and even by members of this committee, has crossed the line. One member of this committee called Mr. Bove "coward and a fool." This sort of language, this sort of personal tact, is just not appropriate and cheapens the process. I'd like to admonish my colleagues, to follow Senator Welch's advice from last week's hearing, not to " turn debate into personal accusations of motivations of cover-up, of conspiracy, of bad character, of demeaning folks who disagree with us. We will get nowhere with that approach." Common sense coming from Senator Welch.
(01:55)
Turning every nominee into a political punching bag isn't advice and consent. It's smear and obstruct, and that's not a distortion of the constitutional design. It is a distortion. Now, if my Democrat colleagues want to talk qualifications, let us not forget the nominees that they rubber-stamped during President Biden's administration. I want to start with Charnelle Bjelkengren, who came before this committee with absolutely no federal court experience and couldn't answer a basic constitutional question. Even the press said it was a disaster, but she received the support of each member of my Democrat colleagues. Or Nancy Abudu, nominated to the 11th Circuit. Her background with a group that labeled Republican senators "white supremacists" made her one of the most divisive nominees we've ever seen. She received the support of every one of my Democrat colleagues.
(03:28)
Then there is Kato Crews, a magistrate judge who didn't know what a Brady motion was, even though, as a sitting judge, he had a legal obligation to inform parties of their obligations under Brady versus Maryland. He also received the support of every one of my colleagues on the other side of the aisle. These aren't cherry-picked examples. They're part of a pattern. The Biden White House repeatedly sent us nominees who lacked the experience traditionally given for lifetime appointments, and my colleagues voted to confirm them. Now, let's compare those nominees to Bove. I have the privilege of introducing him this morning, so I'd like to take a moment to highlight his background. Mr. Bove graduated summa cum laude, Georgetown Law, earning Orders of the Coif at the top of his class. He also graduated magna cum laude with a 4.0 GPA from the State University of New York at Albany. He clerked for Judge Wesley of the Second Circuit and Judge Sullivan of the Southern District of New York, both well-respected jurors.
(05:11)
Mr. Bove spent nearly a decade as a federal prosecutor, taking on national security and narcotics cases. This high stakes work demands sharp legal judgment and steady resolve. Day in and day out, he was in the trenches putting terrorists and drug traffickers behind bars. He helped bring the Chelsea Bomber to justice, the same terrorist who planted bombs across North Carolina and New York, injured dozens of Americans, and shot New Jersey Police officers before he was captured. Mr. Bove wasn't just reading reports. He was on the ground at the FBI's Joint Operations Center when the attacks happened, and he jumped to action and helped secure a conviction and a life sentence. For that work, he rightly earned one of DOJ's highest honors, the Director's Award for Superior Performance by a Litigative Team. Mr. Bove also led the prosecution of Cesar Sayoc, the domestic terrorist who mailed 16 bombs intending to kill prominent Democrats, including Senator Booker, President Biden, Secretary Clinton, Vice President Harris, and others.
(07:05)
Mr. Bove also prosecuted another pipe bomb terrorist, a Hezbollah operative, and an FBI employee accused of spying for China. Now, these are not theoretical threats. These are real national security cases, and Mr. Bove took them head on. Mr. Bove's colleagues praised his tenacity, his legal skill, and his principled commitment to the rule of law. And it's not just words. 36 former Senior Justice Department employees and 20 State Attorneys General have sent letters supporting his nomination. They know firsthand what kind of a lawyer and a public servant Mr. Bove is. But his excellent credentials do not end there. In private practice, he represented clients at all levels of the federal court, including briefings before the Supreme Court, and now he's in one of the most senior legal roles in the Justice Department. Put very simply, Mr. Bove checks every box: academic distinction, federal clerkships, complex trial and appellate litigation, Senior Justice Department leadership.
(08:50)
His experience isn't just sufficient, it is very exceptional. He's also served the people of the Third District, both as a federal prosecutor prosecuting their safety, and in private practice representing their interest. He lives in the circuit, he's practiced in the circuit. I've heard complaints about the lack of consultation, but let's set the record straight. I've been informed that, since February, the White House has consulted with my colleagues from New Jersey, the White House interviewed or attempted to interview all of their suggested candidates, some of whom didn't want the job, the White House also ensured that my colleagues from New Jersey had the opportunity to meet personally with Mr. Bove. And even when consultation happens in good faith, as it did here, opposition doesn't automatically carry a veto. The committee's recent practice makes that clear that home state opposition doesn't disqualify a nominee, and let me give you some recent reminder of that.
(10:14)
Just look at what happened with the Sixth Circuit last year. Every Democrat on the committee voted to advance Kevin Ritz, even after allegations and evidence of prosecutorial misconduct surfaced. This happened over the objections of both home state senators from Tennessee. There have been several others, as well. Embry Kidd in the 11th Circuit opposed by Florida Senators, Carla Campbell to the Sixth Circuit opposed by the Tennessee Senators, and Ryan Park to the First Circuit opposed by North Carolina Senators. Which brings me to another point. Let's not pretend that nominees with ties to the President are somehow suspect. The Biden administration didn't hesitate to nominate vocal partisans, like Dale Ho, who attacked Republicans and dismissed conservative legal thought entirely. If Democrats could look past that, they can give Mr. Bove a fair hearing.
(11:29)
Once again, we see a double standard. The qualifications of President Trump's nominees are ignored by the same voices who rise to confirm less qualified and often overtly partisan nominees during the last four years. It's time to hold everybody to the very same standard. The breadth of support Mr. Bove has earned from the legal community affirms what his record makes clear. He has a deep command of the law and a steady commitment to public service, not political agendas. He's ready to serve on the Third Circuit with distinction. Our district court nominees are also highly qualified, and we look forward to hearing from each of them today. So now, to Senator Durbin, ranking member.
Senator Durbin (12:33):
Thank you, Chairman Grassley, and congratulations to the nominees, their families, and friends. First, a matter of record. For the last four years before this one, I was chairman of this committee. We considered 235 judicial nominees that were sent to us by the White House. Those nominees were all approved by this committee and by the United States Senate. 80% of the nominees received bipartisan roll call support. So I want to make that record very clear. Today, we'll hear from Emil Bove who has been nominated for a lifetime appointment to a New Jersey seat on the Third Circuit Court of Appeals. Over the years, especially during the first Trump administration, I've disagreed with many nominees who appeared before this committee on matters of constitutional interpretation. President Trump's judicial picks during his first term were largely legal conservatives. This nominee is in a category all of his own.
(13:40)
A former personal defense attorney of President Trump, Mr. Bove has led the effort to weaponize the Department of Justice against the President's enemies. Having earned his stripes as a loyalist to this president, he's been rewarded with this lifetime nomination. Mr. Bove has fired dozens of career federal prosecutors who worked on cases related to the January 6th insurrection, the cases that were assigned to them. In Mr. Bove's memo ordering the termination of these prosecutors, and we have a copy here for those who have any question about it, he cited President Trump's false and outrageous claim that the prosecution of January 6th rioters was "a grave national injustice that has been perpetrated upon the American people over the last four years."
(14:36)
For the record, 169 of these January 6th rioters, who attacked our Capitol, were convicted of assaulting law enforcement agents. The merry men and women who stand behind you and in the hallways risking their lives for your safety and my safety were the victims of this January 6th attack. 169 were convicted of crimes related directly to that question. President Trump gave them and over 1,000 other rioters a full pardon as one of his first acts of office. Mr. Bove called these convictions "a grave injustice." Mr. Bove also ordered the FBI to compile a list of all current and former FBI employees who were assigned "at any time" to a January 6th investigation " to determine whether any additional personnel actions are necessary." Political retribution at this high level of our government has seldom been seen. This was done and executed by the nominee. There's more. Mr. Bove personally intervened to strike a corrupt bargain with the New York City mayor, Eric Adams.
(15:53)
You read about it. We've all heard the quotes. He wanted to drop the prosecution of Mayor Adams in exchange for Adams' promise to cooperate with President Trump's immigration policies. In response, several professional prosecutors resigned, including the US attorney herself, a staunch conservative who clerked for Justice Scalia and was appointed by President Trump. She resigned over Mr. Bove's suggested deal. The lead prosecutor in the Adams case also resigned. Hagan Scotten, who earned two bronze stars in Iraq, clerked for Chief Justice Roberts and Justice Kavanaugh, wrote to Mr. Bove, and I quote: "I expect you'll eventually find someone who is enough of a fool, enough of a coward to file your motion, but it was never going to be me." And according to a whistleblower complaint the committee received yesterday, Mr. Bove has suggested that the Justice Department might need to say F-U to federal courts and ignore federal court orders with which this administration disagrees.
(17:04)
Ladies and gentlemen, this gets to the heart of our democracy and the rule of law. As Senator Kennedy of Louisiana has rightly reminded previous nominees, and I quote: "Don't ever, ever take the position that you're not going to follow an order of the federal court ever." These serious allegations against Mr. Bove came not from the ACLU, but from a career justice department lawyer who was promoted by the Trump administration and is best known for defending the first Trump administration's immigration policies in court. He has now put his reputation on the line to inform this committee on the judiciary of what Mr. Bove's wrongdoing was. And predictably, he's being attacked by the president's MAGA lapdogs. In addition to Mr. Bove's unethical conduct, there are serious questions about his temperament. According to public reporting, Mr. Bove Was the subject of an internal investigation over his "abusive bellicose management style" while serving as a federal prosecutor in the Southern District of New York.
(18:13)
Just what we need in a federal judge with a lifetime appointment. His fellow prosecutors noted that Mr. Bove has a quick temper, and he belittled his coworkers. In one instance, his poor management contributed to a botched case in which an individual, convicted of serious charges related to evading foreign sanction, was allowed to go free. My Republican colleagues may brush these examples aside, they may say Democrats have an ax to grind against Mr. Bove because of the role he's playing in the President's agenda, but the fact remains that complaints about Mr. Bove's temperament and candor long predate his association with President Trump. I'd also like to address the process by which Mr. Bove was selected for this New Jersey seat. The White House engaged with Senator Booker and Senator Kim on this vacancy for only three months before announcing Mr. Bove's nomination.
(19:10)
And notably, the White House did not indicate it was considering Mr. Bove until two months into that process. Compare that to Biden White House's approach with Republican members of the committee. The Biden White House discussed two Sixth Circuit vacancies and a Fourth Circuit vacancy with home state senators for seven months, nine months, and six months respectively before making a selection. The White House also initially indicated that Senator Booker would be able to interview candidates other than Mr. Bove before then, reversing course. Notably, Mr. Bove hardly has ties to New Jersey for this New Jersey-based seat. Don't take my word for it. His formal nomination before this committee identifies him as "Emil J. Bove, III, of Pennsylvania." He's not even admitted to practice before the court to which he's been nominated. As a former chairman of this committee has said, with respect to judicial nominees, elections have consequences.
(20:10)
So I expect to see conservative judicial nominees coming from this administration. But in recent weeks, President Trump has criticized Leonard Leo and the Federalist Society for "bad advice" they gave him in recommending legal conservatives during his first term. He's upset that his own judicial nominees had the audacity to rule against the administration's illegal actions. With Mr. Bove, we see a sign of what is to come. President Trump cares little about statutory interpretation and the original meaning of the Constitution. He is looking for loyalty. He's looking for fierce retribution. He's looking for someone who won't instill fear in his opponents. It seems he has found such a nominee in Mr. Bove. I yield.
Senator Grassley (20:59):
Before I go to the senators from Florida, I have to address the allegation that you just made about Mr. Bove suggesting that the department should violate court orders. As initial matter, this statement would be inconsistent with what President Trump said back in February 11th, "I always abide by the courts, always abide by them and will appeal." This initial unconfirmed whistleblower report that Senator Durbin referred to was leaked in a New York Times article the day before Mr. Bove's hearing, and the Justice Department was only given 15 minutes to respond before the article was published. The timing alone indicates that this was a coordinated political strike, and there are other reasons to be skeptical. The Times completely failed to mention that the whistleblower, who alleged that the Justice Department removed alien pursuant to the Alien Enemies Act in violation of court orders, himself signed a brief affirming to the court that the government had complied with all court orders in the case.
(22:26)
The Deputy Attorney General has also unequivocally denied these allegations in a public statement, and I'd like to read that. And we have a poster here, but I'm going to read it anyway. The New York Times article describes falsehoods purportedly made by a disgruntled former employee and then leaked to the press. In violation of ethical obligations, the claims about the Department of Justice leadership and the Principal Associate Deputy Attorney General are utterly false, which is likely why the author gave the Department of Justice 15 minutes that morning to respond. They wrote that we did not immediately respond to the comment before releasing this garbage. Note that not a single individual, except the disgruntled former employee, agrees with the statements cavalierly printed by this purported news outlet. I was at the meeting described in the article, and at no time did anyone suggest court orders should not be followed. This is disgusting journalism. Planting a false hit piece the day before the confirmation hearing is something that we have to come to expect from the media, but it does not mean it should be tolerated. Senator Moody?
Senator Durbin (24:00):
Mr. Chairman, may I respond?
Senator Grassley (24:01):
Yes. You may.
Senator Durbin (24:02):
Mr. Chairman, let me make it clear. This was sent to the committee, both sides of the committee, both sides of the Capitol yesterday. It wasn't leaked, it was signed. Attribution was clear. The individual who made these charges made his name clear, and he also made clear his fifteen-year career record with the Department of Justice and the promotions he's received.
Senator Grassley (24:26):
Okay. Senator Moody.
Senator Moody (24:26):
Thank you, Chairman Grassley. Let me first by saying welcome to my new colleague, Senator Rick Scott, who is in front of the Judiciary Committee today to make introductions of some great folks from Florida, who we will be conducting hearings on. I want to thank him for working with me as one of the newest senators in the United States Senate that has the privilege of conducting those hearings on the Judiciary Committee, but also voting on these well-qualified candidates for federal district court judges. As someone who practiced in the courts in which they have been nominated to serve, and as someone who served as a judge in the great free state of Florida, it's certainly an honor, and I asked for the privilege of introducing them quickly. I know my colleagues don't want to sit through full introductions by both of the senators, but I wanted each of them to know how grateful Senator Scott and I were to have such well-qualified candidates.
(25:25)
At this point, I'm grateful to President Trump for making such quick nominations and moving on some of these vacancies. Certainly, it will serve Florida well and our nation. I also have personal connections to many of them. I'll start with Anne-Leigh Gaylord Moe, who was a judge in the 13th Circuit, where I served for over a decade. Now serves as an appellate judge in Florida, which is our intermediate appellate court. She is incredibly qualified. She came on as a judge after being a lawyer for some time, well respected in our community, the community in which I grew up in and served well there. In fact, she came in as a judge just as I was leaving to go be the Attorney General, and I was sad we didn't get to practice together longer, but I am certainly proud and honored to introduce you today, and I'm sure Senator Scott will do a better job in listing out your numerous accomplishments in the state of Florida.
(26:25)
Jordan Pratt, he is an amazingly qualified individual. He was nominated, obviously, by President Trump to serve in the Middle District of Florida. I would like to point out, if I may, as a triple Gator, he is a double Gator where he was the valedictorian at the University of Florida in undergrad, and then served as the Editor of Law Review in law school, which, as you can probably imagine, his career just went on from there arguing very important cases, protecting rights, served as a Deputy Solicitor General in the Florida Attorney General's office before going on to serve as a judge, an appellate judge. We are so proud of him. He will make an excellent addition to the judiciary. And I would like to say Kyle Dudek, who is being nominated to also serve in the Middle District of Florida. As someone who practiced in front of all of those district court judges and the magistrates there, I have to say not only did you earn the respect of President Trump and my colleague, Senator Rick Scott, all of the judges there have such great respect for you.
(27:36)
They are excited to work with you, and I think you will make an incredible addition. And Ed Artau, who his experience, in terms of years of experience and breadth of experience, it's hard to match. He also taught at Florida's Judicial College. So those of you that don't know what that is, I did that, as well. It is someone that is schooled enough in the art of being a judge that they asked him to teach the judges, and he did that for a long time. In fact, everybody that I spoke to about Ed Artau kept calling him The Dean. So I love that description. I think having judges with that kind of background…and I know you've served as an appellate judge for some time. We're very excited that you've been nominated, and we wish you well. I wanted to do that briefly. Just giving a flavor to the background of these nominees, and I know Senator Scott has their backgrounds fully laid out and is prepared to introduce them more fully.
Senator Grassley (28:43):
Senator Scott?
Senator Scott (28:45):
Thank you, Chairman. And I want to recognize our newest senator, Ashley Moody. She's been great to work with. She's hit the ground running, and she brings a lot of talent here, especially when it comes to helping the President pick qualified judges. So she's been a great person to work with, as was Marco Rubio. So today, I'm honored to introduce judges Edward Artau, Kyle Dudek, Anne-Leigh Gaylord Moe, and Jordan Pratt, who've been nominated by President Trump to serve as judges in the great state of Florida. We have a long tradition of law and order, and one of the most critical features of our success has been our outstanding judiciary at both the state and federal levels. Our four nominees before us are great picks for Florida's judicial seats. As governor, I had the opportunity to appoint hundreds of judges to the bench. I worked with Pam Bondi quite a bit to come up with great picks.
(29:41)
I asked each of the judges if they understood the role of the judiciary in applying and following the laws of our nation, not legislating from the bench. I have full faith that these phenomenal and qualified individuals understand and respect that role. I'm honored to claim them as constituents and have the utmost confidence in their ability to get the job done. I'd like to welcome them and their families here today. For the Southern District of Florida, President Trump has made a great choice with Judge Edward Artau. He worked in private practice for 16 years before serving as general counsel for the South Florida Water Management District, not an easy job. In 2014, I had the opportunity to appoint him as a trial judge in the 15th Judicial Circuit, where he presided over a wide variety of cases before being elevated to the Fourth District Court of Appeal. He received his Bachelor of Science from Nova Southeastern University and his law degree from Georgetown University, where he served as a law review editor.
(30:33)
For the Middle District, President Trump has nominated Judge Kyle Dudek, who currently serves as a magistrate judge. Before joining the federal bench, he was a shareholder at the law firm of Henderson, Franklin, Starnes, and Holt. As a litigator, he frequently represented law enforcement officers and defended clients in critical constitutional cases. He earned his undergraduate degree from Cornell University and his law degree from George Mason. After law school, he clerked in various Virginia courts at the state and federal levels. Also in the Middle District of Florida, President Trump has nominated Judge Anne-Leigh Gaylord Moe, who currently serves as a judge on Florida's Second Judicial Court of Appeals. And by the way, Ashley Moody can't say enough good things about her.
(31:14)
As a governor, I had the opportunity to appoint her to serve in the 13th Judicial Circuit. She earned her Bachelor of Arts from Furman University and her JD from Arizona State University, where she was the Editor in Chief of the Law Review. She began her career in the Middle District of Florida, clerking for Judge Covington. After clerkship, she joined the law firm Bush Ross, where she became a shareholder and developed a strong reputation in commercial litigation and pro bono service. Again, in the Middle District, we have President Trump nominee Judge Jordan Pratt. He has served on the Fifth District Court of Appeals since 2023. Before that, he was a senior counsel at First Liberty Institute. He also served in various roles in state and federal government, including the DOJ, SBA, and the Florida Attorney General's Office. A double Gator,
Senator Scott (32:00):
… Not a Triple Gator. Judge Pratt earned his Bachelor of Arts and his Juris Doctor from the the great University of Florida, which just won NCAA basketball championship. During law school, he was a law review editor and was the president both of the Federal Society and Christian Legal Society. He clerked in the middle district of Florida and on the Fifth Judicial Circuit. I'm clearly proud as I know Ashley Moody is to support each of these nominees today. Their excellent work shows their commitment to the rule of law. These nominees will not take it upon themselves to be activists in robes. They will do their constitutional duty. Given their strong records of service, I'm confident that they will exercise judicial humility and respect the proper role of the judiciary in our system of government. I'm confident they will be impartial and faithful as they serve the people of Florida and the United States. To the nominees, President Trump has confidence in you and I have confidence in you and I know Ashley Moody does also. Thank you for your willingness to serve to the committee. I urge your swift and speedy confirmation. Thank you, Chairman.
Senator Grassley (33:05):
… Courtesy to him, I've agreed to let him speak now. Go ahead.
Senator Booker (33:09):
Mr. Chairman, I'm grateful for the courtesy. I'm frustrated because this is not the normal process we have seen from either side of the political aisle over recent years. The White House nominated Mr. Bove over my and Senator Kim strong objections. While we were in the process of actually interviewing the other candidates, the White House itself proposed. Senator Blackburn and Tillis raised similar concerns last Congress, but this nominee, as I said, sets new precedent. Before their nomination, all judiciary committee Democrats, including myself, had submitted a professional misconduct complaint against Mr. Bove with the New York State Bar. There is no scenario under which the White House Council could believe that this nomination would be acceptable. Moreover, Mr. Bove's record makes clear that he has no business serving a lifetime on the federal bench. As was discussed by Mr. Durbin, Mr. Bove has a complete disregard for the rule of law.
(34:15)
Yesterday a DOJ whistleblower, something our chairman values a lot is whistleblowing, revealed that Mr. Bove said in a court, "That any court that tried to stop the president from deporting people would be told expletive you." Mr. Bove then instructed the DHS to ignore any court order, not to deport anyone. Again, he said with an expletive, "F court orders." I don't even understand how we are seriously considering someone for a lifetime apportment on the federal bench who has such disregard for court orders. But again, to characterize this as Democrats having problems with this nominee is a wrong characterization. We seeing more and more respected conservative leaders coming out against this. This is a bipartisan coming out against this nominee. Ed Whalen from the National Review said he has serious doubts that Bove has the character and integrity to be worthy of confirmation as a judge.
(35:23)
The Society of the Rule of Law, Gregg Nunziata's Society for the Rule of Law, a former GOP chief nominations counsel came out and said that Mr. Bove's record at the Justice Department, including manipulating prosecutions for political or policy ends is deeply incompatible with a lifetime appointment to federal judicial services. The Wall Street Journal's editorial board said quote, "By every account, Mr. Bove's was an unethical prosecutor who didn't play by the rules. He violated his constitutional obligations to provide a defendant with exculpatory evidence, his Brady obligation. It was the biggest scandal of prosecutorial misconduct at the SDNY. He abused his staff and he abused power." The Wall Street editorial board says quote, "Mr. Bove's reputation lately is as a smathmouth partisan who wields the law as a weapon." This is a conservative editorial board. Our job as a committee is not to simply rubber stamp nominees because the President nominated them. We should understand that the respect for our legal system, the respect for the rule of law is vital.
(36:44)
We are hearing time and time again from people across the political spectrum and nonpartisan people that this nomination is violative of the shared values we have for who should be on the bench, what their temperament should be, what their respect for the rule of law should be. Mr. Bove should not be before us today in an oversight hearing on the unlawful acts of the Justice Department, he should be before us, excuse me, in an oversight hearing on the unlawful acts of the Department of Justice, he should be before us to account for what we have seen going on in a very unusual way. He should not be before us for a lifetime appointment to the federal bench. I appeal to the chairman of this committee for us to have before us this whistleblower who is a, as Senator Durbin said, "He should come before us and add testimony for the record." Thank you Mr. Chairman.
Senator Grassley (37:41):
Thank you. Mr. Bove, would you please come and stand before you sit so I can swear? Do you swear? Do you swear that the testimony you're about to give before this committee will be the truth, the whole truth, and nothing but the truth, so help you God?
Emil J. Bove (38:03):
I do.
Senator Grassley (38:04):
Thank you. Please be seated and you can give your statement and you're welcome to introduce family and friends, whatever you want to do now.
Emil J. Bove (38:16):
Thank you, Chairman Grassley. I appreciate the kind words in your introduction and I'm grateful to you, Ranking Member Durbin, and the rest of this committee for holding this hearing today. It really is a privilege to be here and I understand that we have some serious work to do. I also appreciate the opportunity to say some words before we get started. First, I want to start by thanking President Trump for the honor of this nomination. I'm also grateful for the opportunity to serve in this Justice Department under his administration and under the leadership of Attorney General Bondi, who's been a wonderful friend and mentor to me during that process. I also want to say thank you to some family and friends who have supported me throughout my life, especially over the last several years. That's a long list, but there are a couple people that I'd like to call out specifically.
(39:15)
I'm going to start with my dad who I love very much and is watching me from home right now in Seneca Falls, New York. I also want to thank my wife who's here today. She's been a rock of support in my life for almost two decades at this point. I want to thank my brother who's serving in the Navy's submarine service right now. I expect he would be here today, but he's deployed. His service and the sacrifices of his family and connection with that service really are an inspiration to the work that I do. Lastly, I want to say thank you to Todd Blanche and his wife who are also here today. Suffice it to say we've been through a lot and I'm very grateful for the way that they've welcomed me into their family. Now, I'd like to say a little bit about me. I am someone who tries to stand up for what I believe is right. I'm not afraid to make difficult decisions. I understand that some of those decisions have generated controversy. I respect this process and I'm here today to address some of your questions about those decisions, but I want to be clear about one thing up front. There is a wildly inaccurate caricature of me in the mainstream media. I'm not anybody's henchman. I'm not an enforcer. I'm a lawyer from a small town who never expected to be in an arena like this. Not until Todd called me and gave me an opportunity to participate in some of the most historic and significant legal battles of our lifetime.
(41:11)
I'm proud of what Todd and I accomplished as part of President Trump's defense team, but I think that because some of that happened so recently, it might be easy to overlook the fact that I've spent most of my life in public service. I have taken an oath to uphold the Constitution of the United States more than once and I have honored that oath. These experiences collectively as a paralegal, a law clerk, a prosecutor, and a defense lawyer have left me with deep respect for the rule of law. That is a system that is in place to protect everyone and the federal courts play a critical role in that process. Those are the first principles that would guide me every single day if I'm fortunate enough to be confirmed. Thank you again for this opportunity to give some remarks at the start and I look forward to your questions.
Senator Grassley (42:18):
Thank you. We'll now start our questioning. Five-minute rounds. Mr. Bove, on the eve of your hearing, we witnessed a coordinated political attack in the media claiming that you advocated disobeying court orders. Never mind the hypocrisy we have from the other side. Two days ago, a left-wing Biden judge said he would defy a Supreme Court order. All the Democrats on the committee voted for that judge and don't seem to be concerned about his decision. There are serious reasons to question the legitimacy of these allegations against you. This in issue unconfirmed whistleblower report was leaked to the media and the Justice Department was only given 15 minutes to respond to the story. The Deputy Attorney General has unequivocally publicly denied the allegations and indeed the alleged whistleblower previously signed a brief affirming the Justice Department did not violate court orders in its use of the Alien Enemy Act. I want hear from you directly how do you respond to these allegations and did you ever advise the Department of Justice to defy court order?
Emil J. Bove (43:46):
So to get to the last part of that question first, Chairman, no, I have never advised a Department of Justice attorney to violate a court order. And if I could elaborate a little bit, I'm respectful of the whistleblower process and I understand that there's protections in place around that and also that there are valid contributions made to good government through that process. I don't want to disparage that whistleblower in this proceeding, but I also have to address to some extent the allegations. As you noted at the outset, I'm also bound by privileges that the whistleblower did not consider himself bound with in leaking that report to this committee just yesterday. But there are a few things I'd like to say and confirm.
(44:32)
I will reiterate I did not advise any Justice Department attorney to violate court orders. The Deputy Attorney General, as you made clear in your opening remarks, Chairman, has confirmed that the account in that whistleblower complaint is not accurate. But even if that account is taken at face value, the whistleblower acknowledges that he left the meeting on March 14th of this year with the understanding that of course that department would advise clients to abide by court orders and then as you noted, the whistleblower signed a brief filed in the District of Columbia just weeks later explaining all the legal reasons that in the JGG case, the department and the parties, excuse me, the department and the parties the department represented had complied with court orders.
(45:31)
And so for all those reasons, I don't think there's any validity to the suggestion that that whistleblower complaint filed yesterday calls into question my qualifications to serve as a circuit judge. I also think what's clear in the three cases that the whistleblower accounts for is that this is fundamentally a dispute about the challenges posed by the unelected bureaucracy to the unitary executive and to the people that elected the president and put him in office. And what I mean by that is throughout this complaint, there's a suggestion that a line attorney, not even the head of the Office of Immigration Litigation was in a position or considered himself to be bind the department's leadership and other cabinet officials. I don't abide that line of thinking in my management style and I'm not apologetic of that.
Senator Grassley (46:27):
I'm going to not give my lead into this question, but how do you respond to the criticisms you received regarding Mayor Adams case? I'm not describing the case, but you know what I'm talking about.
Emil J. Bove (46:41):
I do, Chairman, thank you. I think that this answer has to start with the fact that the motion to dismiss those charges was granted and it was granted after the ethics complaints that were referenced earlier today. It was granted because the motion reflected a valid exercise of prosecutorial discretion. Now there's been some criticism including this morning suggesting that there was some kind of illicit quid pro quo in connection with that motion. That's simply false and it's refuted by the record. Mayor Adams' lawyers filed a letter on the public docket in that case that stated explicitly there was no quid pro quo. One of those lawyers and they're both respected members of the bar stood up in court at a hearing in the case and said the same thing. And then critically, Mayor Adams himself was sworn under oath at the hearing and he explained there were no agreements outside of what was committed to writing.
(47:42)
And so the suggestion that there was some kind of quid pro quo is just plain false. There's also been criticism about the Department's decision to seek dismissal without prejudice in the motion that we filed. That decision was made for two reasons. First of all, dismissal without prejudice is the default under the applicable rule. That would've happened. It's a normal course in any case. In addition, with respect to Mayor Adams, a dismissal without prejudice would've allowed the permanent US attorney to reevaluate the case without the weaponization concerns that the department had, without the risk of interfering with the ongoing mayoral election and without the need to interfere with Mayor Adams and governance of the city after that election took place. Those are the considerations that drove the determination to seek dismissal without prejudice and Judge Ho's decision to proceed on another path by dismissing the case with prejudice certainly does not call into question my ethics or my decision-making. It's a legal difference of opinion. Thank you.
Senator Grassley (48:46):
Senator Durbin.
Senator Durbin (48:48):
Mr. Bove, you were deeply involved with the Justice Department's decision to drop federal corruption charges against New York City Mayor Eric Adams. You were personally involved in this. Multiple federal prosecutors resigned rather than to dismiss the indictment against Mayor Adams. These individuals made it clear that they believe you had engaged in a quid pro quo with Mayor Adams in order to secure his cooperation with President Trump's immigration priorities. Following these resignations, you reportedly held a video call with dozens of attorneys in the Justice Department's public integrity section. Do you remember that call?
Emil J. Bove (49:27):
I do.
Senator Durbin (49:28):
Mr. Bove, why did you move forward with this case over the objection of the US attorney's office, including the lead prosecutor?
Emil J. Bove (49:37):
I made a decision and the department made a decision to proceed with that motion because it was a determination of the senior leadership of the department that policy reasons made it appropriate to dismiss the charges.
Senator Durbin (49:50):
In order to get Mayor Adams to cooperate with President Trump's immigration policy, you were prepared to drop the charges against him?
Emil J. Bove (49:56):
That's completely false and I just explained why.
Senator Durbin (49:59):
Well, it is not completely false. That's exactly what happened, but the judge foiled your plans with a prejudice dismissal of the case. You could no longer have the mayor on a leash making sure that he follows the President's immigration policies
Emil J. Bove (50:15):
Ranking member Durbin, there is objective evidence in the record in that case that completely refutes the claim you just made.
Senator Durbin (50:21):
And there's objective evidence to the contrary. On your call with individuals in the public integrity section, did you state, suggest, or imply that the section's career attorneys could be fired if none of them agreed to sign the brief dismissing Mayor Adams indictment?
Emil J. Bove (50:36):
No.
Senator Durbin (50:37):
Do you know the two individuals who signed the brief?
Emil J. Bove (50:41):
I do.
Senator Durbin (50:45):
Edward Sullivan one of them?
Emil J. Bove (50:48):
Yes.
Senator Durbin (50:49):
Antoinette Bacon another?
Emil J. Bove (50:52):
That's correct.
Senator Durbin (50:54):
Did you state, suggest, or imply that any individual who agreed to sign the brief would be rewarded?
Emil J. Bove (51:01):
I'm sorry, I don't follow the question.
Senator Durbin (51:02):
Well, you needed somebody to sign that brief and those two stepped forward, was there any suggestion they be treated any differently because of it?
Emil J. Bove (51:09):
No.
Senator Durbin (51:10):
Which attorney… I've already asked this question. Have either of these attorneys been promoted since this occurrence?
Emil J. Bove (51:18):
Not to my knowledge, no.
Senator Durbin (51:21):
Mr. Bove, in January 2022, you co-authored an article for Law360 in which you described domestic terrorism as quote, "A national security issue." You then cited charges brought against attendees of the August 2017 Unite the Right white supremacist rally in Charlottesville and against members of the Proud Boys and Oath Keepers relating to the January 6th insurrection at the Capitol. You describe these prosecutions in the article as quote, "Recent examples that illustrate the asymmetry between international terrorism statutes and the patchwork of narrower laws that can be used to address domestic terrorism." Mr. Bove, do you stand by your characterization of the 2017 Unite the right Rally and January 6th as domestic terrorism?
Emil J. Bove (52:10):
I stand by what I said in the article.
Senator Durbin (52:12):
You directed Ed Martin, the failed nominee to serve as US attorney for the District of Columbia to fire dozens of line prosecutors who had worked on the January 6th case. You also sought the names of thousands of FBI employees who'd worked on investigations into January 6th rioters, accused these career public servants of quote, "Weaponization", close quote, of the FBI. Mr. Bove, did you order the removal of anyone who investigated or prosecuted rioters who assaulted law enforcement officers on January 6th,
Emil J. Bove (52:45):
Ranking Member Durbin, with respect to the prosecutors that you just referenced, there was a decision that was made in response to moves by the prior administration to embed temporary assistant United States attorneys who were brought to the district for purposes of the January 6th cases into that office as permanent employees in many instances after the 2024 election. When I found out about that, I found it to be unacceptable from the perspective of the management of that office and the need for the permanent US attorney put forth by the president and by Attorney General Bondi to manage the office and to staff it. The attorneys that were terminated were on probationary status. I was advised and did not make this decision alone that-
Senator Durbin (53:31):
Mr. Bove, this doesn't square with your own words. I have in my hand here the memorandum that you prepared on January 31st, 2025 to US attorneys and others in which you made it clear this was about more than provisional employees being dismissed. Let me read what you wrote. "In an executive order issued on January 20th, 2025, President Trump appropriately characterized that work as having involved a grave national injustice that's been perpetrated upon the American people over the last four years." This is not about provisional employees, it's about January 6th prosecutions. You call them a domestic terrorism event in this article that you have written, most people, those of us who lived through this ordeal understand it was such a domestic terrorist event and now you're trying to have it both ways. You're saying you dismissed the people who prosecuted those who beat up on our law enforcement officers and it had nothing to do with January 6th. Your words defy that.
Emil J. Bove (54:29):
That's not correct, Ranking Member Durbin, most respectfully because both things can be true. I did and continue to condemn unlawful behavior, particularly violence against law enforcement. At the same time, I condemn heavy-handed and unnecessary tactics by prosecutors and agents. Both of those things I submit are characteristic of these events that we're talking about.
Senator Durbin (54:52):
These people paid for your strategy with their careers. They lost their jobs in the Department of Justice and in the FBI because you identified them as being involved in January 6th prosecution. You cannot call on one hand that prosecution as a grave injustice as you did in your own memo here and then on the other hand, tell me how seriously you feel about people assaulting police officers.
Emil J. Bove (55:14):
I have to disagree again, respectfully, most respectfully. No FBI agents to my knowledge were terminated in connection with the list that's referenced in that memo. What I requested was some information about who had participated so that I could begin, and the department could begin a process of reviewing the events to identify whether there were the types of heavy-handed tactics that I just referenced. That process-
Senator Durbin (55:41):
I have one last question here. Do you support President Trump's full and pardon of January 6th rioters who violently assaulted law enforcement officers?
Emil J. Bove (55:50):
It's not for me to question President Trump's exercise of the pardon and power any more than it would be for me to question President Biden's commutation of death sentences or his pardons of drug traffickers.
Senator Grassley (56:02):
Before I go to Senator Lee, I'd like to address the quid pro quo allegation head on by entering into the record the official court transcript from Mayor Adams case. This is in speculation or secondhand reporting. These are sworn statements under oath in federal court. As you can read in the transcript, Mayor Adams under oath flatly denied any improper arrangement. In his own words, quote, "There was no deal, no quid pro quo and I did nothing." End of quote. Senator Lee.
US Senator Chuck Grassley (56:38):
Thank you Mr. Chairman. Thank you Mr. Bove's for being here and for your willingness to serve in the capacity as a judge on the Third Circuit. As a federal appellate court judge, you'll be called upon to interpret federal law under countless circumstances. When you're interpreting a provision of the Constitution or of the US code, where do you start and what does that process entail? Tell me to what extent you would consider things like committee reports and the subjective musings of individual senators and representatives as they're debating federal law before it's enacted.
Emil J. Bove (57:15):
So if I could start by differentiating between some comments about judicial philosophy, which I think go to the heart of your question, Senator. From the practical reality that if I'm confirmed in any case, I would consider and evaluate the arguments of the parties as they're presented. That said, with respect to my philosophy, whether it's constitutional interpretation or statutory interpretation, I would begin with the text, the text of the operative provision that drives the party's dispute. I don't think that in most instances, committee reports or legislative history has a lot to say about what the meaning of that text really is for purposes of the dispute. And that is because I think in the main, the legislative history has not gone through the process of bicameralism and presentment to become law. And a judge's job, in my view is to declare what the law is, not what it should be, or ought to be, or someone on a committee thought it sounded like, it's to focus on the operative words and interpret them as they're written.
US Senator Chuck Grassley (58:18):
What do you do in circumstances where it may appear that one or more lawmakers had a subjective intent surrounding a particular word or phrase that differed from that the original public understanding at the time of the enactment of that provision?
Emil J. Bove (58:37):
From a philosophical perspective, in my view, it is that the public meaning at the time of the enactment, at the time of bicameralism and presentment that would govern.
US Senator Chuck Grassley (58:47):
Great. I think that's an important distinction. It's impossible to run the subjective mindset of any individual through bicameralism and presentment. That's a kind of notice we're required to have. We're entitled to have as American citizens before we're subjected to a new provision of federal law, it has to go through that gauntlet, otherwise it's not in a duly enacted law. What are the contours of the president's authority to appoint and remove, particularly to remove executive branch officials?
Emil J. Bove (59:20):
So there are Supreme Court precedents on this issue, Senator, that I would apply faithfully if I'm confirmed. There's also litigation around these issues. So I have to be careful about how much of the details that I get into here. But generally speaking, under the Seila Law case, the executive power, and I think the court, I'll paraphrase, but I think the court used the phrase all of it is committed to the President of the United States. That type of broad commitment of power pursuant to the vesting clause in Article II could be read, and it's been said by some that it is the case, vests in the president a power to remove any official in the executive branch. And I think that's tied up in academia, in research and writing around the unitary executive theory. As I said, there's ongoing litigation right now relating to this administration's position regarding these issues including the head of, for example, the Merit System Protections Board or the National Labor Relations Board.
US Senator Chuck Grassley (01:00:29):
Yes. Is it proper for a lower court judge, let's say a federal district judge to flagrantly disregard a direct order from the Supreme Court of the United States?
Emil J. Bove (01:00:40):
No.
US Senator Chuck Grassley (01:00:42):
In circumstances where you are reviewing as a judge on the US Court of Appeals for the third Circuit, should you be confirmed, the myriad circumstances where you'll be asked to review the disposition by a lower court of a dispositive motion, for example, Rule 12(b)( 6) motion to dismiss, Rule 56 motion for summary judgment. In your view, is one worse than another between a case in which in a close case somebody grants a non-meritorious dispositive motion or denies a meritorious dispositive motion, is either one worse than the other and if so, why?
Emil J. Bove (01:01:26):
So Senator, that's obviously a philosophical question that I think different people would answer in different ways based on their values and judgment. For me personally, because of my experience with jury trials, I prize the jury system that's enshrined in the Constitution. And so from my standpoint, to the extent, I guess the way I would frame it is, to the extent that there's a close question in a 12(b)(6) motion in a civil case or in a motion to dismiss in, well, I'll leave it to the civil cases.
US Senator Chuck Grassley (01:02:01):
If it's summary judgment, you were going down the summary judgment.
Emil J. Bove (01:02:04):
It would seem prudent to me to allow the case to go to a jury, which is really just to me a core part of our history and tradition that allows people in our local communities to make decisions and participate in the process.
US Senator Chuck Grassley (01:02:19):
That's a fair point. And the fact that a judge in that circumstance is in doubt or experiences pause when deciding whether there's a genuine issue of material fact suggests that there is. Thank you, Mr. Chairman.
Senator Grassley (01:02:30):
Senator Whitehouse.
US Senator Sheldon Whitehouse (01:02:31):
Mr. Chairman, before my time begins, may I take a moment to make a point of order?
Senator Grassley (01:02:36):
Yes.
US Senator Sheldon Whitehouse (01:02:37):
You indicated, Mr. Chairman, in your opening remarks that the committee should be constrained by the deliberative process privilege.
Senator Grassley (01:02:51):
Yes.
US Senator Sheldon Whitehouse (01:02:52):
And by the attorney-client privilege in our examination of this witness. It's my understanding that Congress has never accepted the constitutional validity of either such privilege as an inhibition of our constitutional congressional oversight responsibilities. And so I don't intend to follow that direction because I don't think it's correct and I think it abdicates really important oversight authorities that we have. Moreover, particularly when we are in a nominations process and somebody has affirmatively put themselves forward to then have them seek the shelter of deliberative process and attorney-client privilege puts us in an even worse position. So I think if we were ever going to do this, nominations are the low ebb of
US Senator Sheldon Whitehouse (01:04:00):
… Any justification for that. It gets even worse when the nominee faces questions about official misconduct as a lawyer. Among other reasons, privileges tend to fall when misconduct is alleged. And so for all of those reasons, I just as one senator, reject the proposition that this committee must yield in its questioning and in its fact-finding in an oversight or nominations matter to those executive privileges. I don't think Congress has ever taken the position that they supervene our constitutional oversight authority, and I think it was a unfortunate occasion that that happened this morning.
US Senator Chuck Grassley (01:04:56):
If Senator Whitehouse is asking this farmer to listen to more lawyers, I'll be glad to consult.
US Senator Sheldon Whitehouse (01:05:04):
I'd be delighted to follow up on this because I think it's a really bad position for this committee to put itself in with respect to Nominees or other oversight matters, particularly when we oversee the Department of Justice that is stuffed with lawyers who can easily cook up an attorney-client privilege defense or a deliberative process defense. And then we are now in a no-fly zone with respect to our oversight responsibilities. Nobody takes oversight responsibilities more seriously than you Chairman, so I hope we can come to a better accommodation on this than your opening statement suggests.
US Senator Chuck Grassley (01:05:42):
Right now, I can't say more than I have.
US Senator Sheldon Whitehouse (01:05:44):
That's fine. That's fine. And I'd also like to ask unanimous consent to put into the record, to the extent that has not been done so far, the whistleblower report that has been discussed, the resignation letters of the career officers in the Adams prosecution, the resignation statement by Denise Cheung in the GGRF matter, the article that I have here from politico related to the nominees' management character, and the Wall Street Journal editorial describing him as a smash-mouth partisan who wields the law as a weapon.
US Senator Chuck Grassley (01:06:22):
Without objection, it'll be [inaudible 01:06:25].
US Senator Sheldon Whitehouse (01:06:24):
Okay with that. Thank you. I guess my clock got started already. Mr. Bove, what was your role in Ed Martin's plan to create a unpredicated criminal investigation as a basis for trying to seize greenhouse gas reduction funds? Were you engaged with him in that plan?
Emil J. Bove (01:06:59):
I am not aware of such a planned Senator, but I did participate in the matter that you're referring to.
US Senator Sheldon Whitehouse (01:07:04):
Plan, matter. Okay. Did you know that before he took office he had expressed private opinions about the, I'll call it GGRF for time purposes, before he came in?
Emil J. Bove (01:07:18):
I'm not sure what you're referring to.
US Senator Sheldon Whitehouse (01:07:20):
Okay. Did he consult with you regarding his efforts to get a document together to present to a magistrate judge to provide a basis for freezing and seizing the GGRF funds?
Emil J. Bove (01:07:40):
Senator like many nominees before me who come to testify before this committee and are at the same time simultaneously serving in the department, this includes Justice Kagan, Justice Kavanaugh, Judge Katsas, all at various times, but were serving or served previously. I'm not going to be able to comment on the specifics of matters like that. I will-
US Senator Sheldon Whitehouse (01:08:05):
I'm not asking you at this point. I'm asking you were you consulted regarding that?
Emil J. Bove (01:08:09):
And my answer is limited to I participated in the matter. And if there's public information about the matter that you'd like me to try and address, I'm happy to do my best to do that.
US Senator Sheldon Whitehouse (01:08:20):
The chief of the criminal division was removed after she refused to sign off on the proposal on the proposed pleading. Were you involved in her removal?
Emil J. Bove (01:08:39):
I've read public reports about that, and to my recollection of those reports, I believe she resigned.
US Senator Sheldon Whitehouse (01:08:44):
Did you approve the U.S. attorney demanding her resignation and pressing her out of her office?
Emil J. Bove (01:08:56):
I'm not able to go beyond the fact that I participated in the matter that you're referring to, Senator.
US Senator Sheldon Whitehouse (01:09:02):
Were you aware that U.S. Attorney Martin went into court alone without any other career attorney or any other attorney in the office willing to sign off on the pleading in which he sought the freeze or seizure?
Emil J. Bove (01:09:26):
I'm not sure if that's true or not, Senator.
US Senator Sheldon Whitehouse (01:09:29):
We can look at the pleading. Nobody else signed. He ran out the criminal chief for refusing to sign. Presumably, he went shopping for somebody else who would sign. Nobody did so he went in alone. Will you agree that it's very unusual for a politically appointed United States attorney to file a pleading without the support of a single career prosecutor in the office?
Emil J. Bove (01:09:55):
No, I don't agree with that.
US Senator Sheldon Whitehouse (01:09:57):
Okay. Well, were you aware that when he did go in alone without the support of a career prosecutor in the office, he was shot down by the magistrate judge in pursuing the order?
Emil J. Bove (01:10:14):
Senator, I refer you to my previous answer. I'm not able to go beyond the fact that I participated in the matter.
US Senator Sheldon Whitehouse (01:10:25):
Would you agree that ordinarily the Department of Justice does its very best to make sure that its pleadings are sufficiently well-prepared, that they're not shot down by magistrate judges?
Emil J. Bove (01:10:37):
Yes, of course.
US Senator Sheldon Whitehouse (01:10:39):
After it was shot down by the judge, did you participate in shopping the matter to other offices so that the effort to seize or freeze the GDRF funds could be pursued despite the U.S. attorney's failure?
Emil J. Bove (01:11:03):
Senator, I'd refer you to my previous answer. I'm able to confirm I participated in this matter. Based on public reporting, I am aware that there are certainly other districts with grantees who receive funds from these programs, where under the law that applies to venue, it would be appropriate for similar investigations to take place.
US Senator Sheldon Whitehouse (01:11:20):
Did you contact them?
Emil J. Bove (01:11:22):
I refer you to my prior answer, Senator.
US Senator Sheldon Whitehouse (01:11:25):
Did you let them know that the effort by Interim U.S. Attorney Martin had been shot down?
Emil J. Bove (01:11:36):
I apologize, Senator, I'm not trying to be difficult, but I must refer you to my prior answer.
US Senator Chuck Grassley (01:11:41):
Senator Kennedy.
US Senator Sheldon Whitehouse (01:11:43):
Just if I may, Chairman.
US Senator Chuck Grassley (01:11:44):
Yes, proceed.
US Senator Sheldon Whitehouse (01:11:45):
This is not further questioning. I know my time is expired. Do you see my point now? We have an individual here who is here seeking confirmation to one of the highest judicial offices in the land. I'm asking quite legitimate questions about potential misconduct in office. Some of it has nothing to do with the substance of pleadings, but has to do with administrative matters like seeking the removal of a criminal career chief prosecutor. Some of it has to do with administrative matters like case assignment. And the fact that I can't get anything resembling a straight answer in the circumstances that we're in right now, I think is signals a really bad moment for this committee and I hope we can reconsider.
US Senator Chuck Grassley (01:12:43):
I said I would be glad to discuss that with you. Senator Kennedy.
US Senator Sheldon Whitehouse (01:12:46):
Can we get him back then once the rules are clear?
US Senator Chuck Grassley (01:12:49):
Senator Kennedy.
US Senator John Kennedy (01:12:50):
Thank you, Mr. Chairman. Mr. Bove, I'm looking at your resume. It's Bove, right?
Emil J. Bove (01:12:58):
Bove, Senator, like the [inaudible 01:12:59].
US Senator John Kennedy (01:12:59):
Bove, I apologize sir.
Emil J. Bove (01:13:00):
No worries. Thank you.
US Senator John Kennedy (01:13:02):
Mr. Bove, you spent a lot of time at the Justice Department. I look here. You were a paralegal there for two years in the early 2000s. You served from 2012 to 2021. How many times have you seen a Justice Department employee, act predominantly on the basis of his or her political beliefs as opposed to the law?
Emil J. Bove (01:13:45):
Senator, I would say that as a prosecutor in my time at SDNY, I am not sure that I did see that. It should be and it must be.
US Senator John Kennedy (01:13:56):
Have you seen it other than as a prosecutor?
Emil J. Bove (01:14:05):
I believe that I have.
US Senator John Kennedy (01:14:05):
Okay.
Emil J. Bove (01:14:14):
When?
(01:14:14)
During my representation of President Trump.
US Senator John Kennedy (01:14:17):
What'd you see?
Emil J. Bove (01:14:24):
I witnessed members of the special counsel's office taking positions about the need to go to trial quickly before the election. The amount of time that President Trump would be allotted to review discovery and prepare motions that I found, in my experience, to be completely inconsistent with normal practice, which led me to draw in inferences of the nature that you're suggesting, Senator.
US Senator John Kennedy (01:14:56):
Counselor, you sent a memo directing one of your underlings. I don't mean that in pejorative of sense, but somebody under you in the hierarchy, directing that the prosecution against Mayor Adams be dismissed. Is that right?
Emil J. Bove (01:15:19):
Yes, Senator.
US Senator John Kennedy (01:15:20):
Okay. Who made that decision to dismiss the charges?
Emil J. Bove (01:15:27):
I think that's set forth in the memo that I participated in the decision with the authorization of the Attorney General of the United States.
US Senator John Kennedy (01:15:33):
Okay, so the Attorney General of the United States made the call.
Emil J. Bove (01:15:37):
She was a part of the decision, yes Senator.
US Senator John Kennedy (01:15:39):
Who else was involved?
Emil J. Bove (01:15:42):
Beyond what's in the public record on that matter? I'm not able to get into the internal deliberations on that Senator.
US Senator John Kennedy (01:15:48):
Okay, but there were others involved?
Emil J. Bove (01:15:50):
Yes.
US Senator John Kennedy (01:15:51):
At the department?
Emil J. Bove (01:15:54):
Yes.
US Senator John Kennedy (01:15:54):
Anywhere else?
Emil J. Bove (01:16:00):
No.
US Senator John Kennedy (01:16:00):
Okay. You're under oath. Why did you folks dismiss the charges against Mayor Adams?
Emil J. Bove (01:16:13):
For the reasons set forth in the motion that you're referencing, there were two concerns, Senator. One was based on the weaponization of the criminal justice system, and that concern was substantiated-
US Senator John Kennedy (01:16:25):
What do you mean weaponization of the political justice system?
Emil J. Bove (01:16:29):
Abuse.
US Senator John Kennedy (01:16:31):
I know that, but I mean, can you be more specific?
Emil J. Bove (01:16:33):
In this particular case-
US Senator John Kennedy (01:16:35):
You think the charges were brought against Mayor Adams for political reasons?
Emil J. Bove (01:16:42):
Again, I'm just right now drawing on what we said publicly in the briefs and I signed those briefs because I believe in the arguments that were made. I believe that irrespective of what happened at the outset of that case, what the former U.S. attorney did to promote the ongoing prosecution at a time when there was at least an appearance that he had his own personal political objectives resulted in the weaponization of that particular criminal justice process.
US Senator John Kennedy (01:17:08):
So you dismissed it because of the weaponization? Any other reason?
Emil J. Bove (01:17:14):
Yes, there was a second independent basis set forth in the motion, and that was concerns about the effect of the ongoing prosecution on Mayor Adams ability to govern and protect the public in New York City and also to campaign in the ongoing mayoral election.
US Senator John Kennedy (01:17:37):
Okay. Do you believe in a higher being?
Emil J. Bove (01:17:42):
It's a very personal question, Senator, but I do.
US Senator John Kennedy (01:17:46):
I want you to look me in the eye and swear to your higher being when you answer this question, did you make a deal, a political deal to dismiss the charges against Mayor Adams?
Emil J. Bove (01:18:02):
Absolutely not.
US Senator John Kennedy (01:18:03):
Did anybody else, did you witnessed make a political deal to dismiss the charges?
Emil J. Bove (01:18:09):
Absolutely not.
US Senator John Kennedy (01:18:10):
You swear to your higher being.
Emil J. Bove (01:18:13):
I swear to my higher being, and on every bone in my body.
US Senator John Kennedy (01:18:20):
Thank you, Mr. Chairman. Senator Klobuchar.
US Senator Amy Klobuchar (01:18:21):
Thank you Mr. Chairman. Mr. Bove was just listening to my colleague Senator Kennedy's questions and one of your answers was that you felt that these charges should be dropped against the mayor because he was campaigning. It would interfere with his campaigning, it would interfere with his ability to do your job. So then is it your position that that's the reason that you shouldn't be able to ever prosecute any elected officials regardless of party because it might interfere with their campaigning, if they commit murder, if they are committing a major white-collar crime, if they are taking bribes, that the reason is that they're campaigning, because they're always campaigning. So I was just stunned by that answer.
Emil J. Bove (01:19:06):
I'm sorry. I didn't mean to be stunning, Senator. I think it's a fact in circumstances, determination. It's case-specific. In that particular case, based on the charges and the manner in which the case was pursued, I did think that there was, and the department thought for the reasons we laid out in our brief, that the prosecution placed an inordinate burden on the mayor's ability to protect the city and to campaign in an ongoing election cycle.
US Senator Amy Klobuchar (01:19:33):
I just think this would be a reason. It's like there would be two classes of justice, one for people who are on office and one for everyone else if that's an argument you use. And isn't it true on February 10th that you ordered the bribery case against the mayor be dismissed and I quote your letter to then-acting U.S. attorney Sassoon "…without assessing the strength of the evidence or the legal theories on which the case is based." That's what you said, correct.
Emil J. Bove (01:20:00):
The determination was based on the policy considerations that I've outlined and did not rely--
US Senator Amy Klobuchar (01:20:05):
By your own written admission though you failed to assess the merits of the case, and ordered that the bribery charges dismissed entirely for these reasons so he could campaign.
Emil J. Bove (01:20:15):
That's not true, Senator. That's inaccurate. I did look at the evidence and that's why I spent extensive time reviewing the case file, meeting with the prosecutors alone, meeting with them with the defense counsel. In the department's decision-making, we chose to proceed based on the policy determinations that I've outlined and not the strength of the evidence or concerns about the legal theory.
US Senator Amy Klobuchar (01:20:36):
In your letter to then-acting U.S. Attorney Sassoon, you ordered her to drop the case because you were, "…concerned about the impact of the prosecution on Mayor Adam's ability to support 'the President's immigration agenda.'" Is that correct?
Emil J. Bove (01:20:53):
Yes.
US Senator Amy Klobuchar (01:20:55):
Okay. When you appeared in court to file your motion to dismiss, the court stated that your efforts to dismiss the case were unsupported by any objective evidence and "…fundamentally incompatible with the basic promise of equal justice under law. Is that what the court said?
Emil J. Bove (01:21:16):
I don't recall the court saying that at the hearing that I attended. To the extent the court wrote something like that and the opinion, that was an opinion that granted the motion. And I think the context is really important, Senator. The context is that Rule 48 doesn't require the department to provide any evidence. It requires a non-conclusory explanation by the prosecutors of the reason for dismissing a case.
US Senator Amy Klobuchar (01:21:38):
Okay. Well let's go over what Hagan Scotten was the lead prosecutor on the case, is that right?
Emil J. Bove (01:21:44):
I think that's right. Yes.
US Senator Amy Klobuchar (01:21:45):
Decorated Iraqi war veteran clerked for then Judge Kavanaugh on the D.C. Circuit and then Justice Roberts. So in his letter he says that "Damian Williams role in the case somehow tainted a valid indictment supported by ample evidence and pursued under four different U.S. attorneys." This was your reasoning because you said you felt that the former U.S. attorney somehow tainted this case, but yet as Hagan Scotten pointed out, it was pursued under four different U.S. attorneys. He said that "…this reasoning is so weak as to be transparently pretextual." Why do you think he said that?
Emil J. Bove (01:22:35):
So I'd like to begin by just confirming that I respect Hagen's military service and his public service and the fact that we disagree on this particular issue is not meant to disparage him in any way. However, the department filed a brief explaining and elaborating on the basis for a motion. In that brief. We outlined private communications and comments on documents by the prosecutors including Mr. Scotten, one of those communications private communications. Mr. Scotten said that he found it plausible that Damian Williams proceeded based on political motivations. So what he said publicly is not consistent with what the trial team was thinking privately contemporaneous with these events.
US Senator Amy Klobuchar (01:23:19):
Okay, I will again go back to the fact that I don't think that the reason that someone is running for office or has some policy agreement or disagreements with the administration should be a reason to bring or dismiss charges. And he also added "…no system of ordered liberty can allow the government to use the carrot of dismissing charges or the stick of threatening to bring them again to induce an elected official to support its policy objective." He then ended, as I'm sure you realize, he ended with, "I expect you'll eventually find someone who is enough of a fool or enough of a coward to file your motion, but it was never going to be me."
(01:24:00)
So my concern with what happened here and then also with the decision to fire January 6th prosecutors is basically the same. I am a former prosecutor myself, I ran the biggest prosecutor office in our state, and every single day you're confronted with issues of ethics and maybe you know someone you're prosecuting, maybe someone knows someone you're prosecuting, maybe they agree with you, maybe you don't. And you have to make a decision based on the law and the facts and not on whether or not they agree with your administration. And when I look, we heard from yes, Chairman Grassley. Two more sentences when we heard from former prosecutors who were dismissed because they'd simply done their job in looking at what happened on January 6th. I just think it's part of the same threat. It's politics over the law and it should be law over politics.
US Senator Chuck Grassley (01:24:51):
Senator Moody,
Senator Moody (01:24:53):
It's a good thing I wasn't holding that gavel.
(01:24:58)
Good to be with you. Thank you for being here. Thank you to your family for being here, colleagues from the office, the Department of Justice that are here to support you. We are excited about your nomination and thank President Trump for making this important nomination. I'm guessing from some of my colleagues on this hearing that they forgot that there are some Democratic judges that were escorting people out of the courtroom in secrecy because they didn't believe with what law enforcement was trying to achieve. And some Democratic-appointed judges that are ignoring the Supreme Court orders at the moment. The hypocrisy continues to shock me. I've been here a hot second on this judiciary committee and I think it's important that we all go back to the ideal judge as one that is impartial, that has integrity and understands that their job is to apply the laws given to them through the representatives of the people faithfully and without prejudice. And we are very excited about your nomination.
(01:26:12)
And personally, let me just say, as a former federal prosecutor myself, I was grateful that someone with that background that both had extensive experience in federal courts, not only prosecuting within the district court but in appeals as well was being nominated. I believe those that are charged with the responsibility of taking cases brought to them by law enforcement and they are charged with pursuing justice and a court of law, which may mean someone's liberty is taken away, that that is very a heavy responsibility and one that after they are charged with that does not take lightly. And I heard you previously explaining how you took that very seriously and you believe that justice is sometimes the consideration of making sure it's not heavy-handed when it wasn't intended to be.
(01:27:28)
I thought it was interesting, one of my colleagues remarks, they thought it was important to point out that someone described you as a partisan that wields the law as a weapon, when in fact you have spent a lot of time fighting against that. As many of us watched in horror as the justice system was turned into a political weapon. And I thought I might just give you and I wanted to go back to who you are in your background. You've got thrown into the limelight in a very politically charged situation, not of your own making, but one that you were willing to fight against.
(01:28:10)
And prior to that, I think it's important that not just my colleagues but the American people understand your background. You clerked for a federal judge, you clerked a district court judge, you clerked for an appellate judge. You served as an intern in different capacities. You were the lead prosecutor in numerous federal trials. I would like for you to take a moment and tell us how you background would repudiate all of the aspersions and accusations that have been charged against you this morning. Because again, as someone who is also served in that capacity where you're given the responsibility to on behalf of the people on behalf of the United States of America, seek justice and potentially removing, taking away someone's liberty, tell us about your background and how that bears on your respect for the court. Its need to be impartial, and your background and how that will prepare you to faithfully apply the rule of law.
Emil J. Bove (01:29:21):
Thank you, Senator, and I appreciate the kind words. It's, I believe, a very solemn obligation to accept a position on the federal bench, especially an appellate position because of the obligation to enforce the rule of law without fear of favor and declare what the law is but exercise restraint and not make policy decisions. And I think that I'm equipped to do that because over the course of my career, as you suggested, I have studied just about every single angle of a courtroom as a paralegal, a law clerk, a trial lawyer, and an appellate lawyer. If I were lucky enough to be confirmed, I would understand as an appellate judge what things look like at a trial. But I also understand from having been inside an appellate judge's chamber, having been privileged to do that, how the appellate decision-making process can work and what it's like to have to build consensus with a panel and a group of people. And I think all those things would sort of bear on my judgment and my practice if I'm lucky enough to be confirmed.
(01:30:31)
But I think really the most important thing is the ability to exercise independent judgment in the face of great scrutiny and criticism. And I'm doing my best to explain why I've endeavored to do that throughout my career today. And I think there's one moment in my life where I was really called upon to do that and make a hard decision that I'm glad I did. And that was to join Mr. Blanche to help represent the president at a time when my friends and even some people in my family, my work colleagues told me that there was every reason to think I would get fired. I would be bankrupt, we would be indicted, all men are of evil and negative consequences were sort of foisted and thrown at Todd and I regularly as we had to make a decision that many others didn't have the courage to make to stand up for what was right. And people comment on that as some kind of political decision. That's not what that was in the summer of 2023 at that time for me. And I think for Todd, that was a decision to fight for what was right and fight for the rule of law. And if I am fortunate enough to become a judge, I'll abide by that standard applying the rule of law every single day.
US Senator Chuck Grassley (01:31:49):
Senator Blumenthal.
US Senator Richard Blumenthal (01:31:52):
Thank you, Mr. Chairman. Before I begin my questioning in the clock starts, I'd like to add my voice on the point that Senator Whitehouse raised, this so-called deliberative process privilege. First, this committee and Congress have never accepted that kind of assertion as a basis to evade questioning in this kind of confirmation hearing. But I'd like to point out also that this witness has no right to invoke that privilege. It's a privilege for the government of the United States to invoke. Now I notice that the Deputy Attorney General is sitting right behind the witness. I didn't hear the Deputy Attorney General invoke this privilege on behalf of the government of the United States. And I might point out also that the witness is invoking it selectively. When he wants to answer the question. No privilege when he wants to avoid answering the question, he says he's not at liberty to answer it.
(01:33:03)
We've never accepted that kind of tactic on the part of a witness. Yes, nominees have sometimes said they can't comment on a case or an issue because it may come before them as a judge, but this kind of selective invoking of a privilege, smacks of evasion and defiance and I think reflects on us as a committee if we accept it in this context, Mr. Chairman. So I hope that the witness may be instructed to answer these questions or we can have a resolution somehow on the legitimacy of this kind of privilege and ask the witness to come back. Let me begin my questioning.
US Senator Sheldon Whitehouse (01:33:59):
Mr. Chairman. I think the clock was started on Senator Blumenthal while he made his point of order. It might be a courtesy to allow it to be. Thank you. There it is.
US Senator Richard Blumenthal (01:34:06):
I hadn't noticed that Mr. Chairman, but I thank Senator Whitehouse for pointing it out. Thank you.
US Senator Chuck Grassley (01:34:11):
Let me say in the future-
US Senator Richard Blumenthal (01:34:15):
Mr. Bove-
US Senator Chuck Grassley (01:34:17):
Whitehouse made very clear the issues you're bringing up and I said I'm willing to discuss them.
US Senator Richard Blumenthal (01:34:24):
Thank you.
US Senator Chuck Grassley (01:34:24):
But we can't take the time of this committee to hear a repeat of everything from every member that would disagree with what I said in my opening statement.
US Senator Richard Blumenthal (01:34:35):
I appreciate.
US Senator Chuck Grassley (01:34:36):
Go ahead Senator Blumenthal.
US Senator Richard Blumenthal (01:34:36):
I appreciate your point, Mr. Chairman. I'll begin my question. Mr. Bove, you responded to Senator Kennedy's questions about who was consulted about the dismissal charges against Mr. Adams. Did you ever talk to Stephen Miller before you filed the memorandum on February 10th, ordering the dismissal of the Adams charges?
Emil J. Bove (01:35:01):
Senator? I responded to Senator Kennedy's questions based on a publicly filed document that described the Attorney General as a-
US Senator Richard Blumenthal (01:35:08):
Did you talk to Stephen Miller?
Emil J. Bove (01:35:10):
I'm not going to describe the participants in conversations.
US Senator Richard Blumenthal (01:35:13):
So you won't answer that question.
Emil J. Bove (01:35:15):
No, I will not Senator.
US Senator Richard Blumenthal (01:35:16):
Why?
Emil J. Bove (01:35:18):
Because it is not appropriate for me to discuss.
US Senator Richard Blumenthal (01:35:20):
It is appropriate for you to tell us whom you consulted before taking action on behalf of the United States of America. You have no basis to avoid that question, Mr. Bove.
Emil J. Bove (01:35:34):
Respectfully, Senator, I'm answering that question in a manner similar to several nominees before me, including Judge Katsas.
US Senator Richard Blumenthal (01:35:41):
Did you talk to anyone in The White House, including the President, about dismissal of the Adams charges before the February 10th memorandum?
Emil J. Bove (01:35:52):
I respectfully refer you back to my answer, Senator.
US Senator Richard Blumenthal (01:35:55):
I am absolutely flabbergasted that you would come before
US Senator Richard Blumenthal (01:36:00):
… for this committee and refuse to tell us basic facts about a case that is at the core of the challenges to the appearance of impropriety that should disqualify you. You have the opportunity to clear the air, to come clean with the American people as well as this committee and you are evading and avoiding these questions.
Emil J. Bove (01:36:25):
Senator, if you have a question about the position that I took in public with respect to the Mayor Adams case, I'm happy to address it and I've addressed several today.
US Senator Richard Blumenthal (01:36:32):
Well, I have asked you a question that bears on the appearance of impropriety. Let me go on. Mr. Bove, in court, you represented, first, that there was no quid pro quo, but you said that the decision, even if there were a quid pro quo, was unreviewable by the court. Do you stand by that?
Emil J. Bove (01:37:06):
I don't think that's what I said, Senator, because it's not consistent with the rule which explicitly provide-
US Senator Richard Blumenthal (01:37:11):
Well, you said it not only once, but you said it a number of times and the judge observed, Judge Ho said that your position was, "Fundamentally incompatible with the basic promise of equal justice under law." That's what he said about your position that the decision to dismiss these charges was unreviewable. Do you stand by that assertion?
Emil J. Bove (01:37:38):
I never made that assertion and the judge granted the motion, Senator.
US Senator Richard Blumenthal (01:37:42):
He granted the motion, but he disagreed with your premise that it was unreviewable. Let me ask you, our decisions to dismiss cases as with that one unreviewable?
Emil J. Bove (01:37:58):
The text of Rule 48 requires in the instances presented by the Adams case that dismissal only be provided for with leave of the court. That's as near a quote as I can give you, and the entire brief that I submitted acknowledged that point because we were seeking the-
US Senator Richard Blumenthal (01:38:16):
Mr. Bove, I am concerned about the quid pro quo that the judge concluded had been done. In fact, he said, "Everything here smacks of a bargain, everything here smacks of a bargain." But the quid pro quo that really concerns me is the one that brings you here today. You were virtually the only attorney in the Department of Justice willing to go to court and make a claim that career prosecutors said violated their basic standard of ethics. The quid pro quo was a nomination to the Court of Appeals. That's the appearance that the American people can take away from your sitting before us with that nomination. I think it does grave damage to respect for the rule of law notwithstanding your assertions about your adherence to it, for you to be here as a result of that stand by you.
(01:39:22)
Let me ask you about a separate issue, the firing of prosecutors and investigators who were involved in the January 6th prosecutions. You were involved in purging prosecutors who in good faith and an exercise of their prosecutorial judgment, they went to court, they brought charges, you purged them. Isn't that correct?
Emil J. Bove (01:39:51):
I don't agree with the use of the word purged, Senator.
US Senator Richard Blumenthal (01:39:54):
Well, you fired them?
Emil J. Bove (01:39:58):
I authorized the termination of probationary employees at that US attorney's office, yes.
US Senator Richard Blumenthal (01:40:04):
Because they prosecuted the January 6th rioters?
Emil J. Bove (01:40:08):
No, because I was concerned about efforts in the prior administration to embed those prosecutors as permanent employees at the US attorney's office.
US Senator Richard Blumenthal (01:40:17):
You also fired the FBI investigators involved in the January 6th prosecutions, correct?
Emil J. Bove (01:40:23):
No, that's not accurate.
US Senator Richard Blumenthal (01:40:24):
You worked with Director Patel in firing them, correct?
Emil J. Bove (01:40:29):
No, that's not accurate.
Mr. Chairman (01:40:31):
Senator Schmidt.
Senator Schmidt (01:40:32):
Thank you Mr. Chairman. I'm going to pivot away from the Democrats fake outrage on lawfare and talk about real lawfare. How has your representation of President Trump in the biggest weaponization of the justice system against a single individual because they didn't want to go get back into office and lawfare shaped your view of the justice system?
Emil J. Bove (01:40:59):
Well, from the perspective of a prosecutor, Senator, it turned me into a person who wanted to get that building back on the right track, a track where people are in fact doing the right thing for the right reasons. I think there's many, many, many people, career civil servants, in the department who are doing just that. But I also think that there are parts of the department and I lost sight of that obligation and I saw that in my experiences as a defense lawyer. What I would say is that that experience gave me, it provided me with intense focus on reform efforts to make sure that the unelected bureaucracy at the department was not in a position to subvert the political will of the democratically elected president.
Senator Schmidt (01:41:50):
Let's take a little time machine back to 2023 in your previous testimony talked about decided to join Todd Blanch in the legal team. That was at the time many people in this country sort of wrote off President Trump as a candidate. The Democrats didn't think he was ever going to win. I certainly, I endorsed him very early. I thought he would and was hoping that he would, but the links to which nonprofits and other organizations went to punish anyone who was involved in either defending President Trump or had worked for President Trump trying to deny them employment. I mean it's well documented. To take that on, I would agree with your character. I think that took a lot of courage for you to do it.
(01:42:43)
In hindsight now, it looks like obviously a very smart decision. You guys were very successful in the defense and he went on to win the election and the popular vote in a landslide, but at the time that wasn't the case. I want to ask you in some of this lawfare, Michael Colangelo left, he was the number three guy at DOJ and left to join the New York District Attorney's office in the prosecution of President Trump. Is that unusual for someone to leave that kind of position to go to a DA's office with prosecuting a political opponent?
Emil J. Bove (01:43:16):
Senator, I have to be very careful here because of the judicial canons that bind me as a nominee.
Senator Schmidt (01:43:23):
Let me ask it this way, have you ever heard of something like that happening before?
Emil J. Bove (01:43:26):
To my understanding, there was a pretty unique set of circumstances.
Senator Schmidt (01:43:35):
Let me speak about another set of unique circumstances. Is it unusual for a assistant district attorney in a Georgia case to be meeting with the White House Counsel's office about a prosecution of President Trump? Would that be sort of an unusual set of circumstances to be visiting the White House? Let me ask you this. Have you ever heard of a scenario like that previously?
Emil J. Bove (01:43:56):
Senator, if I could frame it this way, there's publicly filed briefing signed by myself and other defense lawyers when we were defending President Trump that regarded the circumstances that you just described as part of a discovery violation.
Senator Schmidt (01:44:15):
Tish James, the Attorney General in New York, ran on, ran for office saying she wanted to go after and prosecute President Trump. I ran for Attorney General in my state. Have you ever heard of anyone campaigning on the idea in the United States of America? I'm not talking about a third world banana republic, but in the United States of America prosecuting criminally prosecuting a political opponent. That was their pitch to the voters. Have you ever heard of anything like that?
Emil J. Bove (01:44:47):
I've got to be very careful here about getting too close to politics under the Judicial Canon Senator.
Senator Schmidt (01:44:54):
Sure. Okay. Jack Smith was appointed special prosecutor to try to again imprison President Trump for the rest of his life so he couldn't run for office. Could you speak, were you involved in the legal team defending President Trump in that prosecution as well?
Emil J. Bove (01:45:13):
Both in the District of Columbia and in the Southern District of Florida.
Senator Schmidt (01:45:16):
Could you just rattle off a couple of things that you think were unusual departures from how prosecutors would normally handle cases like that that again has informed your position now to make sure that that never happens again to somebody in this country?
Emil J. Bove (01:45:31):
I will, Senator, and I referenced some of these a moment ago. I just want to be clear, what I'm doing is just referencing public arguments that I made as a defense lawyer.
Senator Schmidt (01:45:38):
Yes. Not personal musings. These are yes, absolutely what were filed with the court.
Emil J. Bove (01:45:43):
These are legal arguments that we presented that, for example, in a case is complex as the case in Florida with the allegations that were set forth, in our judgment as defense lawyers, we argued to the court that it was highly unusual to try and proceed to trial as quickly as those prosecutors initially proposed.
Senator Schmidt (01:46:05):
Anything else that struck you as unusual that you can recall from the public filings?
Emil J. Bove (01:46:14):
I think just to be safe and to stand on the side of [inaudible 01:46:18].
Senator Schmidt (01:46:17):
Well, thank you, Mr. Chairman. I just want to make the point that while the Democrats are trying to manufacture something here, we're on the other side of the most political prosecution of a political opponent this country has ever seen, and I hope to God that never happens again. Your experience I think will make you a better judge, so congratulations.
Mr. Chairman (01:46:36):
Senator Hirono.
Senator Hirono (01:46:38):
Thank you, Mr. Chairman. I ask every nominee who comes before any of the committees on which I sit the following two initial questions that go to fitness to serve by the nominee. I'll ask you Mr. Bove, since you became a legal adult, have you made unwanted requests for a sexual favors or committed any verbal or physical harassment or assault of a sexual nature?
Emil J. Bove (01:47:04):
No.
Senator Hirono (01:47:05):
Have you ever faced discipline or entered into a settlement relating to this kind of conduct?
Emil J. Bove (01:47:10):
No.
Senator Hirono (01:47:15):
In the February 23rd, 2025 report in Politico, the title was, "Before he became Trump's bulldog, Emil Bove was nearly demoted for bellicose management style". According to this article, which was put into the record, when you served as a unit chief at the Southern District of New York, and I'm again quoting this article, "Mr. Bove quickly garnered a reputation as a manager who was sharply critical of the people who worked for him and unable to control his anger. His conduct was abusive according to one former member of the unit." Are you familiar with this article?
Emil J. Bove (01:48:03):
I am.
Senator Hirono (01:48:06):
Going on. According to this article, "In early 2021, the executive committee of the US attorney's office opened a formal inquiry into Bove's management style. They interviewed prosecutors who worked for him about his behavior and they decided that he should be removed from his role as a supervisor". Of course you are aware of this inquiry and their recommendation? Yes? No?
Emil J. Bove (01:48:38):
As well as the fact that I was not removed.
Senator Hirono (01:48:43):
Yes?
Emil J. Bove (01:48:43):
I was not removed, Senator,
Senator Hirono (01:48:46):
Can you speak into the mic so we can all hear your answers please?
Emil J. Bove (01:48:50):
I apologize. I was not removed, Senator.
Senator Hirono (01:48:53):
I know you were not removed because the article goes on to say that when this committee decided to demote you and remove you, you pleaded with them to allow you to remain in your job and you pledged that you would commit to improving your behavior. Did you do that? Did you request they not remove you? Did you plead that you not be removed and that you would change your behavior?
Emil J. Bove (01:49:31):
That character-
Senator Hirono (01:49:32):
Hello?
Emil J. Bove (01:49:33):
That characterization is not accurate, Senator.
Senator Hirono (01:49:35):
You did not change your behavior at all or did you?
Emil J. Bove (01:49:40):
Senator, I'm not perfect, and so when I get constructive criticism, I absolutely-
Senator Hirono (01:49:44):
Speak into the mic, please.
Emil J. Bove (01:49:47):
When I get constructive criticism, I absolutely take account of that and try and be better at my job, and I did that in that instance. But the characterization in that article by anonymous sources from a whisper campaign from SDNY alums is not accurate.
Senator Hirono (01:50:03):
The fact of the matter is though this committee did talk to people who worked for you and they concluded that you engaged in abusive behavior and that you should be removed, but you got to stay. The article, you disagree with the characterization, but why would they go through all this trouble to investigate and all of that and they let you stay? Unless I hope that you had said, well, you would change your behavior because the attitude, the behavior of a judge I think is important for us to understand. During your time as a supervisor in the Southern District of New York, you supervised a team that prosecuted USV Alicitor, you supervised them?
Emil J. Bove (01:50:52):
Yes.
Senator Hirono (01:50:54):
In that case, prosecutors failed to disclose evidence to the point where even though there was a judgment there of guilty, so it resulted in the jury's verdict being overturned and the charges dropped and the district court wrote, which I think is pretty unusual, that there was, and I quote the district court, "Insufficient supervision". You acknowledge just now that you were the supervisor. "Insufficient supervision of disclosure obligations by the USAO's Unit chiefs." Do you recall the court making that assessment of your supervisory capability?
Emil J. Bove (01:51:38):
I do Senator and I respect Judge Nathan and I think that what she was trying to accomplish in that decision was to make sure that there were protections in place.
Senator Hirono (01:51:46):
I am running out of time. I just wanted to do, you had said that the January 6th prosecutions were a grave injustice. Does that mean that you agreed with President Trump's pardon of all of the convicted felons?
Emil J. Bove (01:52:09):
I'm not in a position as a nominee, Senator, to comment on any president's use of the pardon power, which is committed to president's-
Senator Hirono (01:52:17):
Once again, I should think that because you characterized those prosecutions as a grave injustice, I would think that you would be happy that the president pardoned everybody. Thank you.
US Senator Richard Blumenthal (01:52:30):
Senator Hawley. Senator Hawley.
Senator Scott (01:52:33):
Mr. Bove, nice to see you. I enjoyed our conversation the other day. Congratulations on your nomination. If I could, let's turn the focus of the discussion back to the law. I want to talk to you for just a second about your approach to the interpretation of statutes, which is something that we discussed when you and I had a chance to speak earlier. When you encounter, as you will constantly on the Third Circuit, when you encounter an ambiguous statute, what's your general approach? What do you consult? What's your approach to interpreting the text? Give us a sense of how you'll tackle this. What will be a daily occurrence should you be confirmed?
Emil J. Bove (01:53:10):
In the face of an ambiguity, Senator, I would consult the context of the operative phrase, consider the statutory structure, look at usages of similar terms by the operative legislature at the time in question because I think that matters, as I said earlier, with respect to enforcing bicameralism and presentment, and try to garner as much as can be from those sources, those textual indications. In the event that I think that those textual considerations don't resolve the matter philosophically, I would be inclined to exercise restraint and not insert myself or a panel of the Third Circuit if I was confirmed into a position of declaring what the meaning of an ambiguity is as opposed to deferring back to the legislature on that topic.
Senator Scott (01:54:12):
You just used the word text or textualist about three or four times. Do you consider yourself a textualist? Is that a fair assessment?
Emil J. Bove (01:54:19):
Yes, Senator.
Senator Scott (01:54:20):
Let's just think about a controversy that exists among those who call themselves textualists. Some textualists say that the statute ought to be interpreted an ambiguous phrase ought to be interpreted according to the public understanding at the time that the statute was enacted. Other textualists, self-identified textualists, say that a text meaning sometimes only becomes clear over time, so there needs to be a lapse of time you can consider what's happened in a space of time rightly to interpret an ambiguous phrase. Both camps call themselves textualists. Where do you fit?
Emil J. Bove (01:54:57):
In the first one, Senator. I think that an interpretive methodology that allows the meaning of a statute to shift over time, potentially over the course of interpretations by different judges under different circumstances or at the whims of policy or political considerations can be very problematic. If I were confirmed, part of my philosophy would be to do this job pursuant to the limited powers in Article III in a way that enhances the democratic features of the political branches, and by that I mean focusing on the text, what it meant at the time it was put on the books and deferring to those political branches on the other matters.
Senator Scott (01:55:38):
Good. I hear you to say that you reject the idea that an ACT's meaning can only become clear over a number of years. You think it ought to be interpreted as understood at the time it was enacted by the public meaning at that time. Have I got that right?
Emil J. Bove (01:55:50):
Yes.
Senator Scott (01:55:51):
Good. Let's talk about substantive due process for just a moment. What's your understanding of that doctrine?
Emil J. Bove (01:55:59):
I think there's a basic test set forth in Supreme Court precedent that I would apply faithfully if I'm fortunate enough to be confirmed that seeks to identify certain fundamental rights as a matter of substantive due process, that precedent the precedent for that test, as I understand it basically requires consideration of whether the right at issue is implicit in the concept of ordered liberty and also consistent with deep history and traditions of the republic. There's a lot of academic writing about the merits of that test that I think for judges, particularly me if I'm confirmed, is sort of beside the point because on the Third Circuit I'd be bound by Supreme Court precedent, like the Glucksburg case, to apply that test in the context of arguments presented to me by the parties.
Senator Scott (01:56:52):
What is the leading Supreme Court precedent on substantive due process to your knowledge?
Emil J. Bove (01:57:02):
There's several cases that lay out and address the tests that I just described in the context of discussing different fundamental rights. Dobbs is one of them. I mentioned the Glucksburg case, which is an older formulation of that test.
Senator Scott (01:57:15):
In fact, the Supreme Court has used different tests over time. The substantive process has two branches. No, it has the incorporation branch and then it has the fundamental rights branch. You've been describing the fundamental rights branch. The court has used different tests over the years frankly, to describe what counts as a fundamental right. Those tests are quite divergent if we're being honest, but this court seems to have settled on one recently and I think you just put your finger on the decision that most recently draws these themes together, these strands together. That's the Dobbs decision. Do you regard the Dobbs decision as settled law?
Emil J. Bove (01:57:53):
Yes.
Senator Scott (01:57:53):
As controlling law?
Emil J. Bove (01:57:56):
That is what I mean is that is a binding precedent of the Supreme Court that I would be required to apply faithfully if I'm confirmed.
Senator Scott (01:58:03):
You'll apply the Dobbs decision not only in the context of life and abortion, which was the immediate context, but also for its instruction on the meaning of fundamental liberties under the substantive due process head. Is that correct? Is that fair to say?
Emil J. Bove (01:58:18):
I think it's fair to say that a judge endeavoring to be bound by the rule of law, which is certainly what I would be trying to do, applies all relevant Supreme Court precedents in a faithful way, and that would be my mission for life if I'm confirmed.
Senator Scott (01:58:31):
But sorry, just I want to be clear on this just on this last point, this is important because there's lots of Supreme Court precedents that conflict with one another over the years. You will apply the current and controlling precedent to the matter at hand. Is that fair to say?
Emil J. Bove (01:58:45):
Yes, without hesitation.
Senator Scott (01:58:47):
Which in this case you recognize to be the Dobbs case. Is that fair to say?
Emil J. Bove (01:58:53):
Yes. I think Dobbs is a recent formulation of the substantive due process test that we're talking about.
Senator Scott (01:58:57):
That would bind you?
Emil J. Bove (01:58:59):
Of course.
US Senator Richard Blumenthal (01:59:00):
Before I call on Senator Booker, Senator Moody has agreed to chair the rest of this hearing. Senator Booker.
Senator Booker (01:59:10):
Thank you.
Senator Durbin (01:59:10):
Mr. Chairman, can I make one point?
US Senator Richard Blumenthal (01:59:12):
Yeah.
Senator Durbin (01:59:13):
We know we are operating under a five-minute rule, but you've given some latitude, for example, to the last Senator, and I'm not objecting to it.
US Senator Richard Blumenthal (01:59:20):
What are you saying?
Senator Durbin (01:59:21):
I'm saying the time to speak has been five minutes established. We've gone over that as a convenience to our colleagues and I hope we'll continue that.
US Senator Richard Blumenthal (01:59:29):
Okay.
Senator Booker (01:59:32):
In 2018, Mr. Bove, a group of federal criminal defense attorneys and former SDNY prosecutors in Manhattan were so alarmed by your pattern of unethical conduct that they wrote your supervisors at SDNY to warn them about you. I'd like to enter into the record a letter that I sent to acting US Attorney, Jay Clayton, of SDNY requesting more information about any internal or external complaints about you as a prosecutor. The letter contains the full text of that 2018 email from lawyers in which they describe you, and I'm quoting here, they describe you as, "Vindictive, always looking for leverage and power, a prosecutor version of a drunk driver, completely reckless and out of control, needing adult supervision." One attorney said that whatever due justice is supposed to mean, it doesn't apply to Bove. A former federal prosecutor who later litigated against you said, "What Mr. Bove enjoyed most as a prosecutor was wielding power," a quality they described as the single worst possible trait for a public servant.
(02:00:48)
Now, I read these because they're important that these complaints are not an attempt to derail your nomination. This is from 2018, person after person. These complaints come from attorneys who practiced in federal court, some former federal prosecutors warning a US attorney's office that one of their prosecutors was "a real recurring problem" and that you were not representing the office in a way that they thought the office would want It represented. Your conduct was so beyond the pale back in 2018 that they wrote your supervisors to say you were a liability for the office.
(02:01:31)
I think this is important because it shows a pattern of behavior. The allegations align with reports about your abuse of power now at the DOJ. I want to follow up in this pattern with what Senator Durbin's questions about the mandatory Teams meeting you scheduled for all remaining public integrity section attorneys on February 14th, 2025. We already know that you're refusing to tell this committee whether you talked to Stephen Miller or others at the White House. All the chiefs and supervisors had resigned at this point, so all of the remaining and available attorneys were line attorneys in that meeting. Is that correct? Approximately 20 attorneys were on the team's call.
Emil J. Bove (02:02:21):
I do hope, Senator, that at some point I'll have an opportunity-
Senator Booker (02:02:23):
You were trying to find two attorneys to sign a motion to dismiss the Adams case without prejudice. Is that correct?
Emil J. Bove (02:02:35):
Yes.
Senator Booker (02:02:35):
During the meeting, you told attorneys that it is their job to implement the president's agenda and that they have to follow orders from the president and that there's no room for dissent in the chain of command. Is that correct?
Emil J. Bove (02:02:50):
No.
Senator Booker (02:02:51):
You told them that they had one hour to find two attorneys to sign the motion. They weren't allowed to ask questions. Is that correct?
Emil J. Bove (02:03:01):
No.
Senator Booker (02:03:03):
You started the meeting by emphasizing to the line attorneys that Danielle Sasson and Hagen Scott had failed to follow orders and that Ms. Sasson was going to be reassigned before she resigned, correct?
Emil J. Bove (02:03:20):
I'm sorry, I didn't understand the last part of that question.
Senator Booker (02:03:21):
I will state again, you started the meeting by emphasizing to the line attorneys that Danielle Sasson and Hagen Scott had failed to follow orders and that Ms. Sasson was going to be reassigned before she resigned. Is that correct?
Emil J. Bove (02:03:42):
No.
Senator Booker (02:03:43):
You also told them that whoever signed the motion would "emerge as the new leaders" of the public integrity section for doing so. Correct?
Emil J. Bove (02:03:57):
I don't recall saying that.
Senator Booker (02:03:59):
You don't know if you said that or not?
Emil J. Bove (02:04:02):
I don't recall saying that.
Senator Booker (02:04:04):
Edward Sullivan volunteered to sign the motion. As promised, Sullivan was promoted to acting chief of the public integrity section for dismissing that case. Is that correct?
Emil J. Bove (02:04:16):
No.
Senator Booker (02:04:17):
You are saying that as the leader of the DOJ, you don't know who's in charge of public integrity?
Emil J. Bove (02:04:24):
No. I'm saying that the causal relationship that you implied in your question is not accurate.
Senator Booker (02:04:30):
We have you on the record on all of those points. You worked on January 6th cases while a prosecutor at the SDNY. Correct?
Emil J. Bove (02:04:39):
A supervisor, yes.
Senator Booker (02:04:40):
An FBI agent described you as treating the January 6th cases as a priority when you were prosecuting those cases, but then you fired dozens of prosecutors and eight senior FBI officials working on the case. Is that correct?
Emil J. Bove (02:04:57):
No.
Senator Booker (02:05:00):
Mr. Bove, I am hoping that more evidence is going to come out that showed that you lied before this committee. I'm wondering where the lines are for you. What's the line in the sand when you wield awesome power of government? What is that line for you? Because clearly lying to a court isn't a red line. Refusing to follow court orders isn't a line. Doxing judges and government officials isn't a red line. Intimidating attorneys you supervise into doing things they believe is unethical is not a line. What's your red line? I really wonder what could the President ask you to do that wouldn't do? What wouldn't you do to win? A judge has to uphold core values and principles, independence, impartiality, integrity, diligence. A judge must be free from undue influence. A judge must decide cases fairly without prejudice or favor. A judge must ensure that anyone who appears before them in court will get a fair shake.
Senator Moody (02:06:05):
Thank you, Mr. Booker.
Senator Booker (02:06:06):
Everything we're hearing you say makes me believe that you're incapable of that. The pattern didn't just begin when you were nominated by this president. Peers of yours, prosecutors, attorneys who served with you and judges in your past year have again and again cited you as someone who is not capable or qualified of doing this job in which you're nominated for. Thank you, Madam Chair.
Senator Moody (02:06:31):
Ms. [inaudible 02:06:31].
Senator Britt (02:06:32):
Mr. Bove, thank you so much for being here today. Thank you for your willingness to serve and congratulations on your nomination. I heard you in the last exchange say, "I wish I had an opportunity to respond." I'd like to give you that opportunity when we've heard a number of my colleagues levy attacks what I believe in many cases to be false claims. I'd like to just turn the mic over to you for a second and give you an opportunity to respond.
Emil J. Bove (02:06:55):
Thank you, Senator. I appreciate that. With respect to the 2018 email referenced by Senator Booker, that email contains a series of wildly inaccurate claims about me. I categorically reject any claim of unethical or improper behavior by me, period. You know that the claims in that email are false for two reasons. First, I got that job. I received the promotion the next time the seat was open. Second, attorneys leveling ethics obligations like that have their own ethical duties under Rule 8.3 of the New York rules to report those things if they take them seriously, if they believe them to be true. That never happened. Those attorneys who level those claims, which were false, also had obligations to their clients, obligations to advocate zealously on behalf of people that I was prosecuting. That was the role of those lawyers in the criminal justice system,
Emil J. Bove (02:08:00):
… system, a role that I respect. If they believe the things in that email to be true, they would've been under an obligation to file motions in the courts where those proceedings were taking place. I'm not aware of any such motion and I'm certainly not aware of any relief granted with respect to the types of claims in that email. More generally, if I'm fortunate enough to be confirmed, I understand that there are questions about what kind of temperament that I would have as a judge. I think I would be tough, but fair. Litigants and colleagues would feel respected by me. They would understand that I take the job very seriously and that I work very hard at it. I don't think that there needs to be a lot of guesswork about why that's true. I've appeared in court regularly and frequently since 2012. I've participated in 12 criminal trials.
(02:08:54)
I've argued 10 appeals. There's more criminal prosecutions that I participated in than I could count. I think if you talk to the judges who presided over those cases, and some of them were high profile, there were a lot of people there. The President's trial in New York, the proceedings in the Southern District of Florida, what those judges would say is that they didn't agree with every argument I made. Sometimes they didn't agree with every word I used, but they did feel personally respected. I think that's what's important. As I said in response to one of the other Senator's questions, I'm not perfect. I'm not here to tell you that I do learn from mistakes. I take constructive criticism seriously, I did with respect to that 2018 email. That's why I got the job the next time it was open. I've done so throughout my career, and I think that's prepared me to be the type of judge that I just described. Thank you.
Senator Britt (02:09:45):
Thank you for responding. Also, just give me a little bit of insight and to the lessons and experience you've learned Looking at your resume, it is quite impressive. You have been a clerk both at the district court and Circuit court level. Your time as a prosecutor, your time at Maine Justice, your comprehensive resume both with private practice and public service, I think, makes you poised to be excellent on the court. Talk to me a little bit about those experiences and what you think has best prepared you for as your confirmation as you are, as and when you're confirmed to do a great job on the bench.
Emil J. Bove (02:10:22):
Thank you, Senator. I think one of the most important responsibilities, and there are many of a judge, is to be able to put aside personal opinions and decide cases based on the facts and the applicable law. I think that the time that I've spent my career on both sides of being a prosecutor and a defense lawyer has given me some experience with getting used to seeing both sides of things, setting aside personal views. There's certainly cases that I prosecuted that one could hold up a terrorism case or a drug trafficking case and say, how is a person responsible for those kinds of prosecutions and turning around and representing criminal defendants charged with fraud, or I did have other clients beside President Trump. It's that kind of work and focus on the ethics of representing clients zealously and being focused on justice and getting to righteous outcomes regardless of which side of the case I'm on, that I think would inform a lot of my practice and approach to the bench if I'm fortunate enough to be confirmed.
Senator Britt (02:11:26):
Thank you so much for your willingness to serve and congratulations again, on your nomination.
Emil J. Bove (02:11:30):
Thank you.
Senator Moody (02:11:31):
Thank you, Senator Britt. As chair, I would like to welcome the United States Attorney General, Pam Bondi, to the hearing. We are glad to have you here. Thank you for attending. I would also like to follow up on Senator Britt's questioning by entering two letters into the record from 91 former Senior Justice Department officials including 52 former United States attorneys, they urge the committee to support Mr. Bove's nomination. The letter from the U.S. Attorney says, and I'll quote, "Mr. Bove's professionalism, integrity, mettle and experience or expertise make him an outstanding candidate to serve as a judge on the U.S. Court of Appeals for the third circuit, and with that, I will turn it over to Senator Welch.
Senator Welch (02:12:16):
Thank you very much, Madam Chair. Welcome. This question of temperament obviously is relevant. You'd acknowledge that?
Emil J. Bove (02:12:25):
Yes, Senator.
Senator Welch (02:12:26):
Okay. You made a comment in response to Senator Booker was asking you questions and I'll ask these as well, that complaints were never made ethically and there'd be a responsibility of an attorney to make those ethical complaints under the judicial code. I just have to say I disagree with that. I mean, I was a defense attorney, worked with many prosecutors, had enormous respect for those prosecutors, so the temperament issue doesn't always get into the question of whether it's an ethical violation, but it does get into the temperament and why that, in my view, is very important, whatever our job is, but particularly for a judge where you've got that incredible power. I do want to go through some of these questions that have been raised by that letter that was sent making some complaints about you. You were described as vindictive. There was references to abuse of power, a refusal to engage in any discussion about the case.
(02:13:32)
There was one in particular that stood out to me. One of the attorneys in a case involving someone who was detained, had information that the person had in fact reported as required. He was trying to provide you with this information because the hearing about his client's well-being was to take place soon. It says that you, "Snippily told me that he would not even try to call the PO," I assume that's probation officer, "on such short notice after I suggested he could at least try to reach out and then you might get lucky and catch him." Is that true?
Emil J. Bove (02:14:16):
No, Senator, it's not true. That's exactly the type of issue raised in that email where it's an allegation about an abuse of power that if true,-
Senator Welch (02:14:23):
You did make the phone call?
Emil J. Bove (02:14:26):
No, the whole episode is described in that email is not accurate, and if-
Senator Welch (02:14:33):
I'm not going to know that and I'm not sure you do, but the basic point here is that you could have made a phone call that would've resolved the situation, whether that his client had in fact reported or had not and you wouldn't make it, so you're denying that that's true.
Emil J. Bove (02:14:49):
I do deny it, and I think the paragraph describes that one of my colleagues stepped in.
Senator Welch (02:14:54):
All right, let me go on to the next one. Thank you, giving me your answer. The prosecutorial misconduct scandal that is of concern to me and presumably would be of great concern to you and your job as a prosecutor. What the judge found that errors were so severe that following a jury verdict in his favor, the government determined that further prosecution of the case would not be in the interest of justice. This is a case where there were prosecutorial assets used, there was a conviction and then the prosecution had to end it. Right?
Emil J. Bove (02:15:28):
Right, and I was one of the supervisors who participated in that decision because I was so disturbed by the violations that had taken place.
Senator Welch (02:15:34):
But what the judge said as I understand it, is that you offered little in the way of supervision.
Emil J. Bove (02:15:42):
As I've said, I respect Judge Nathan's decision, that aspect of the opinion-
Senator Welch (02:15:45):
But he said that right?
Emil J. Bove (02:15:47):
It said that, but it was always difficult for me to square that with the fact that during the operative weekend on both days I was with the prosecutors, the record reflects that I spoke to the prosecutors at 10 o'clock on Saturday night, at 10 o'clock on Sunday night. Well, so again, I'm not perfect, but I did do my best there. My best wasn't enough and I acknowledge that, but I don't think it's true that I didn't work hard on it.
Senator Welch (02:16:07):
Let me go on to a third thing. In 2021, the Southern District's Executive Committee initiated a formal investigation into your conduct. My understanding is that after that happened, that's when you shortly thereafter left the Southern District. Is that correct?
Emil J. Bove (02:16:28):
No.
Senator Welch (02:16:30):
When did you leave the Southern District?
Emil J. Bove (02:16:32):
December of 2021.
Senator Welch (02:16:34):
December of 2021?
Emil J. Bove (02:16:36):
Yes.
Senator Welch (02:16:37):
Yeah. Well, that's shortly after the 2021 investigation. Have you ever been asked or had to take anger management or behavioral management at the Southern District?
Emil J. Bove (02:16:49):
No.
Senator Welch (02:16:50):
All right. Who won the 2020 election for President of the United States?
Emil J. Bove (02:16:57):
President Biden was certified as the winner of that election.
Senator Welch (02:17:00):
So you give the standard answer, you can't say that he won because he got the majority of votes and also, got the electoral college victory?
Emil J. Bove (02:17:09):
I think the characterizations that you just made, Senator, are both political and so I can't address them under the canons and they're also tied up in ongoing [inaudible 02:17:18]-
Senator Welch (02:17:18):
Help me understand how it's political to state who got the most votes in any election.
Emil J. Bove (02:17:31):
Senator, I'm just trying to be precise. The process by which our country declares the victor in an election is a certification process. President Biden was certified.
Senator Moody (02:17:42):
Thank you. Senator Welch
Senator Welch (02:17:43):
I yield back. Thank you
Senator Moody (02:17:44):
Senator Blackburn.
Senator Blackburn (02:17:45):
Thank you, Madam Chairman, and congratulations on your nomination. Madam Chairman, I want to talk for a few minutes about process. I have found it stunning that my Democratic colleagues have had such objections to process. I thought I might revisit a little bit of this committee's history over the last few weeks. I think it would be instructive for the nominee and those that support him to be aware of this. Now, let's just go back to the Biden administration and point out a few things that happened not only to me, but to some of our Republican colleagues. Over the objections of Senator Haggardy and me, the Biden administration nominated, not one, not two, but three nominees that we opposed. Now, some may like to say, "Well, you could have worked with White House on this," and we tried to, or you could have presented Democrat nominees," and Indeed we did repeatedly, but in the case of one of those nominees, Mathis, Chairman Durbin scheduled a hearing without even sending Senator Haggardy and I a blue slip.
(02:19:32)
Now what happened? The Democrats voted in lockstep to move him out of the committee. Another nominee, Carla Campbell, misled the committee during her confirmation hearing about her involvement with a radical far left group that she worked with. Again, the Democrats were united in their support of that nominee. Then with Kevin Ritz, there were serious accusations of prosecutorial misconduct, and what did my colleagues on the other side of the dais do? They voted in lockstep. Now, they want to complain today and some have spent their time complaining and griping about the way the committee has been handled, but they're forgetting about these. They forget about Senator Rick Scott and Senator Rubio who opposed the nomination of Embry Kidd, but the Democrats moved forward with that. They were pleased to move forward with it.
(02:20:47)
Senator Tillis and Senator Budd opposed the nomination of Ryan Park, but the Democrats chose to keep moving forward. Again, I would remind everyone the senators were bringing forward Democrats that could have been the nominee, but instead my friends across the dais decided, they wanted those that were farther to the left, those that were activists, those that did not have judicial experience, they were looking for activists to put on the court. I'm going to read Senator Tillis's quote as we were approaching the markup of Mr. Park. He said, and I quote, "I'm going to tell you the same thing, that when the rules are reversed and they're going to be reversed, you're either going to make my job harder by doing the right thing and respecting your colleague today, or you're going to make my job easier because I'm going to go right down the line with the administration."
(02:22:06)
Now, this is important to remember as we talk about process and as we discuss these nominees that are coming before us, there was very little respect that was shown the members on this side of the dais and very little respect that was shown the nominees and basically, no consideration for the ability of a home state senator to weigh in on those that were being brought forward. Mr. Bove, I look forward to supporting you. I look forward to your confirmation and my hope is that my colleagues across the dais will begin to think that it would be a good thing for them to reconsider, rewind the video and play it, so that you are refreshed on how you conducted yourselves during the Biden administration. I yield back.
Senator Moody (02:23:20):
Thank you, Senator Blackburn. Senator Padilla.
Senator Padilla (02:23:24):
Thank you, Madam Chair. 'Cause I want to begin with a couple statements not specific to the nominee before us, Mr. Bove, but general observations as we've had hearings of nominees and on issues since the beginning of the year. To become clear that President Trump clearly has one litmus test when selecting people to appoint. It's not experience. It's not dedication to our country or the rule of law. It's whether or not the potential nominee is willing to bend or ignore the law to satisfy the president's whims. Now, I understand that elections have consequences and one consequence is that a president who is elected will get to nominate judges for the duration of his term or her term, but selecting someone with such a deep track record of vindictive, duplicitous behavior, of abuse of power that is and must be treated as unacceptable. From Mr. Bove's time with the Southern District of New York, to his time representing Donald Trump, to his time at the Trump Justice Department, it's been demonstrated that he will not let the law stand in the way of doing what he wants.
(02:24:50)
That's why as soon as Mr. Bove joined the Justice Department in an acting, unconfirmed capacity, he began an effort to purge the Department of Justice of perceived "enemies". Like the January 6th prosecutors. He even called the January 6th prosecutions, quote, "A grave national injustice," and ordered the FBI to produce a list of everyone involved in them. Never mind the fact that he had previously worked on January 6th prosecutions while at the Southern District of New York, and that's why he ordered Southern District of New York prosecutors to dismiss criminal charges against New York Mayor Eric Adams in exchange for Mayor Adams helping to implement President Trump's radical immigration enforcement plan.
(02:25:42)
Mr. Bove's actions in this case let eight prosecutors, eight, including the interim U.S. Attorney, Danielle Sassoon, who had clerked for Justice Scalia to resign, but instead of firing him, Donald Trump plans to give him a lifetime appointment to the Third Circuit Court of Appeals in New Jersey. The state that Mr. Bove has very, very little ties to. Now, it's not just Democrats who are concerned, conservative judicial activists and former Republican staff member of this committee, Ed Wallin who wrote that Bove has been called, quote, "A savage," and likened him to a, quote, "Mafia henchman," not my words, just quoting what's been submitted to this committee for consideration. The Wall Street Journal published an editorial urging this committee to ask questions about Bove's qualifications for this seat.
(02:26:44)
They wrote, quote, "Does Emil Bove have the right judicial temperament? Does he have a judicial philosophy?" It's seemingly clear that the more we learn the answer is no, but we're here to ask questions and I do have a couple of questions in my time remaining. Mr. Bove, can you share with us how many of the prosecutors assigned to the Capitol Siege section were fired after you sent your memo on staffing at the Department of Justice?
Emil J. Bove (02:27:22):
I don't recall.
Senator Padilla (02:27:24):
Ballpark?
Emil J. Bove (02:27:27):
I don't recall.
Senator Padilla (02:27:28):
All right. Well, I'll submit that in the form of a question for the record to allow you time to jog your memory banks and try to give us a number, at least an estimate. Can you tell me how many January 6th rioters President Trump pardoned?
Emil J. Bove (02:27:44):
No, I don't recall.
Senator Padilla (02:27:45):
Okay. Well, that actually kind of makes sense because I don't think when asked the president himself couldn't give an exact number when asked his response was, quote, "It would be very, very cumbersome to go and look." You know how many people we're talking about? 1,500 people to think that on the first day in office he would have considered case-by-case that volume of files to make the determination that they should be pardoned? That's clearly not believable. We know that dozens of those pardoned had prior criminal records including rape, sexual abuse of a minor, domestic violence and more. Yes, I'm talking about the January 6th rioters. I'm going to end with this, Madam Chair. I can tell you that a long-serving prosecutor with the DC United States Attorney's Office thought that it sent a message that, quote, "Political violence toward a political goal is acceptable in a modern democratic society." Mr. Bove, you contributed to these actions. What do you think, what kind of message do you think this sends to the American people?
Emil J. Bove (02:29:06):
I think that the president in his exclusive discretion under the Constitution-
Senator Padilla (02:29:12):
My question is what message does this send to the American people? The pardoning of January 6th rioters, many with prior criminal convictions?
Senator Moody (02:29:21):
And you can answer briefly.
Emil J. Bove (02:29:22):
I think that's a question that calls for political views and under the canons I'm not able to take a position.
Senator Padilla (02:29:27):
I thought we were talking about public safety and the rule of law. Thank you, Madam Chair.
Senator Moody (02:29:30):
[inaudible 02:29:31].
Senator Schmidt (02:29:35):
Mr. Bove, I want to turn to the meeting that Mr. Ravani, the whistleblower has written an extensive complaint about the hearing started with the chairman reading a social media post by the Deputy Attorney General Blanche who is present today but not under oath, nor is that social media post under oath. Let me ask you, since you are under oath in the complaint, it says, "Bove stated that DOJ would need to consider telling the courts fuck you and ignoring any such court order. Did you say anything of that kind in the meeting?"
Emil J. Bove (02:30:15):
Senator, I have no recollection of saying anything of that kind to the extent I use-
Senator Schmidt (02:30:19):
Wouldn't you recall, Mr. Bove, if you said or suggested during a meeting with Justice Department lawyers that maybe they should consider telling the court fuck you. It seems to me that would be something you'd remember unless that's the kind of thing you say frequently.
Emil J. Bove (02:30:34):
Well, I've certainly said things, encouraging litigators at the department to fight hard for valid positions that we have to take in defense of our clients.
Senator Schmidt (02:30:43):
And have you frequently suggested that they say fuck you and ignore court orders? Is that also something you frequently do such you might not remember doing it in this occasion?
Emil J. Bove (02:30:51):
No, and as I explained, I have never directed-
Senator Schmidt (02:30:54):
So did you or did you not make those comments during that meeting?
Emil J. Bove (02:30:59):
Which comment, Senator?
Senator Schmidt (02:31:01):
You really need me to repeat it? Did you suggest as Mr. Ravani wrote, "That DOJ would need to consider telling the courts fuck you and ignore any such court order?"
Emil J. Bove (02:31:12):
I did not suggest that there would be any need to consider ignoring court orders. At the point of that meeting, there were no court orders to discuss.
Senator Schmidt (02:31:21):
Well, did you suggest telling the courts fuck you in any manner?
Emil J. Bove (02:31:25):
I don't recall.
Senator Schmidt (02:31:27):
You just don't remember that. Well, let me ask you this. It also says in the complaint, "Bove indicated and stressed to all in attendance that the planes needed to take off no matter what." These are the planes that a judge was ordering not be used to render people to a maximum security prison outside the country. Did you say during that meeting did you stress to all in attendance that the planes needed to take off no matter what?
Emil J. Bove (02:31:52):
Senator, your characterization is not accurate.
Senator Schmidt (02:31:54):
It's not my characterization, it's the characterization of a decorated prosecutor who was in that meeting. Are you saying that he's lying?
Emil J. Bove (02:32:04):
As I said at the beginning of the hearing-
Senator Schmidt (02:32:06):
No. No, I'm not interested in what you said at the beginning of the hearing. I'm interested in whether you stressed to people in attendance that the planes needed to take off no matter what. Did you say that?
Emil J. Bove (02:32:18):
I certainly conveyed the importance of the upcoming operation.
Senator Schmidt (02:32:22):
Well, don't paraphrase here. Did you tell people in attendance the planes needed to take off no matter what?
Emil J. Bove (02:32:29):
I don't recall the specific words that I used.
Senator Schmidt (02:32:31):
Wouldn't you recall saying that if you had instructed that the planes needed to take off no matter what, including whether the court ordered otherwise, you wouldn't remember that?
Emil J. Bove (02:32:40):
This is a mischaracterization, Senator. There were no court orders at this point.
Senator Schmidt (02:32:44):
Well, there was a court order, wasn't there?
Emil J. Bove (02:32:46):
No.
Senator Schmidt (02:32:46):
Wasn't there a court order by Judge Boasberg? If not in this specific case then in related cases that people not be sent out of the country until the court could rule? Wasn't there a court order?
Emil J. Bove (02:32:59):
Not at the time of that meeting, Senator?
Senator Schmidt (02:33:01):
Did you participate in the decision not to disseminate that oral court order prior to the written court order to other agencies, so those planes would not take off, so those planes would turn around? Were you involved in the decision to withhold that court order from the responsible agencies?
Emil J. Bove (02:33:18):
I think it's clear that I participated in this-
Senator Schmidt (02:33:20):
Yes or no.
Emil J. Bove (02:33:21):
I participated in this matter and I'm not going to get into the contents of legal advice. I did over the course of time as many lawyers have provided advice about the scope of court orders.
Senator Schmidt (02:33:29):
I'm not interested in [inaudible 02:33:29], I'm interested in whether you participated in the willful violation of court orders as alleged in this complaint?
Emil J. Bove (02:33:35):
Absolutely not.
Senator Schmidt (02:33:36):
Let me ask you this, Mr. Bove, if there are notes of that meeting, will you provide them to this committee?
Emil J. Bove (02:33:43):
I defer to the committee and to the executive branch on the procedure.
Senator Schmidt (02:33:46):
And if the committee requests them, will you provide those notes to the committee?
Emil J. Bove (02:33:50):
I defer to the executive branch on the handling of that request.
Senator Schmidt (02:33:52):
And let me ask you about notes from another meeting, which you're contesting here, and that is the meeting over the decision to dismiss the case in New York, the corruption case against the Mayor of New York. According to Ms. Sassoon, the U.S. Attorney at the time during the meeting with Adam's attorneys, where she described Adam's attorneys repeatedly urging what amounted to a quid pro quo, that you admonished one of the lawyers in the room to stop taking notes. Is that true?
Emil J. Bove (02:34:26):
I don't believe I instructed that attorney to stop taking notes. I did remark on the fact that he was taking extensive notes. Yes.
Senator Schmidt (02:34:32):
And why did it concern you that he was taking notes of that meeting?
Emil J. Bove (02:34:37):
Because at that point in the meeting, we were discussing who was responsible for media leaks and I was making the point that only the prosecutors had created an extensive record that could support detailed leaks.
Senator Schmidt (02:34:47):
And you were concerned were you, that information about this potential quid pro quo might become public? Was that the concern?
Emil J. Bove (02:34:54):
I've explained that there was no quid pro quo.
Senator Schmidt (02:34:57):
Will you provide the notes of that meeting which you, according to the U.S. Attorney, instructed be collected at the end of the meeting?
Emil J. Bove (02:35:05):
I think a member of my staff may have given that instruction outside my presence and I defer to the committee and the executive branch on records requests and how those should be handled.
Senator Schmidt (02:35:14):
Well, I would request that we seek these records, which go to the truthfulness or lack of truthfulness of this witness. There's a reason why, if I may, my colleagues have gone over at least as much as this, there must be a reason why prosecutors quit rather than following orders from you they considered unethical. There must be a reason why prosecutors complained about you in your own office, why defense attorneys complained about you in your own office. Why the judge in the case involving the dismissal of the charges in New York said, everything here smacks up a bargain. You testified earlier that the objective evidence overwhelming made it clear that it was not a bargain. There must be a reason why everyone disagrees with you, Mr. Bove, And people feel it necessary to give up a job they love at the Department of Justice and quit because they won't go along with what they consider unethical and immoral orders from you. There must be a reason why that is so true of so many and this court needs to get to the bottom of it. I yield back.
Senator Moody (02:36:20):
Well, as a former judge, I like being referred to as the court, but as the chair, I will turn it over to Senator Cruz.
Senator Cruz (02:36:27):
Thank you, Madam Chair, and I think robes would look damn fine on you. Welcome, Mr. Bove. Congratulations on your nomination. Your record is exceptional prosecuting terrorists and spies and cyber criminals and major traffickers. You've dedicated your career to protecting the American people and upholding the rule of law. Your nomination reflects exactly what our judiciary needs, serious, experienced rule of law-oriented individuals who understand the limited role of the courts in our constitutional system. You are President Trump's second appellate court nominee in this second term. You and Ms. Hermendorfer, President Trump's first appellate nominee, share the distinction of being tapped to fill appellate seats that remained vacant, not because of delay or inaction, but because President Biden's nominees were simply too extreme for the Senate to confirm them.
(02:37:27)
In your case, the seat had previously been offered to Adeel Manji, a nominee whose radical affiliations made clear that he was unfit for the federal bench. Manji was tied to a law center that hosted terrorists, that promoted anti-Semitic rhetoric and that attacked, repeatedly, law enforcement. When given the opportunity to repudiate those views, he declined. His nomination failed, and rightly so. Now, rather than own that failure, Democrats are reaching for innuendo, rumor and political theater. They're trying to paint mainstream Trump nominees as "controversial" to distract from the fact that their own nominees were so out of step with basic standards of judicial temperament and constitutional fidelity.
(02:38:24)
The contrast is obvious. President Trump is restoring normalcy to the judiciary, nominating judges who will apply the law, who will respect the constitution, who understand that justice is not a tool for activism. That's especially true and important at the appellate level. Circuit judges serve as a critical check on activist district judges who seek to override national policy and impose their own ideological will. They also stand as a safeguard against prosecutors who are willing to politicize justice. I will say I find myself amused listening to my Democrat colleagues as they clutch their pearls in utter horror that the Department of Justice is deporting violent, criminal, illegal aliens. Oh my goodness. Murderers, rapists, child molesters, Venezuelan gang members. How dare you remove them from America.
(02:39:27)
Don't you know that wife-beating gang members are appropriate to have daiquiris with in El Salvador? Don't you know that you should dance in celebration with, come back to our campuses and terrorize our Jewish students? That's what the Democrats on this committee stand for. More criminals, more murderers, more rapists, more child molesters and more Venezuelan gang members.
Senator Cruz (02:40:01):
Democrats on this committee got up on their high horse that the MS-13 gang member deported El Salvador must come back to America. Well, you know what he did. And he is being prosecuted for human trafficking. I've read every word of the indictment, 10 years of human trafficking with MS-13. This is the poster child for who the Democrats want more of in the United States of America. And somehow you're the villain because you are a real prosecutor, willing to enforce the law and remove dangerous criminals from being in a position to threaten American citizens. Let me say on behalf of 31 million people in Texas, thank you. Thank you for answering the call. Thank you for stepping forward and fighting to keep American citizens safe.
(02:40:59)
Let me ask you, in your view, if you're confirmed as a judge, what is the importance of the Constitution and what is the importance of the rule of law?
Emil J. Bove (02:41:13):
Singularly important, the Constitution defines the mechanism for the entire republic. Adherence to it could not be more important. Article Three and its restraints would guide me in the exercise of judicial power. And I would do everything that I could to enforce the Constitution faithfully based on the rule of law.
Senator Cruz (02:41:36):
So I commend you for that answer. I also commend you for knowing what Article Three is. I'll point out that President Biden nominated to be an Article Three judge, an individual who did not know what Article Five of the Constitution was, and stunningly did not know what Article Two was either. I will say in the annals of unqualified judicial nominees, the Biden administration managed to take the gold and it is refreshing to have someone who is actually qualified nominated to the court. Thank you.
Senator Schmidt (02:42:07):
Madam Chair, before we recess-
Senator Moody (02:42:09):
Thank you Senator.
Senator Schmidt (02:42:09):
… may I make a parliamentary inquiry?
Senator Moody (02:42:12):
Go ahead sir.
Senator Schmidt (02:42:12):
Thank you Madam Chair. I've requested the notes from two pivotal meetings that go to the heart of the nominee's credibility, the meeting over the decision to drop charges against the mayor of New York, and the meeting in which the whistleblower alleges that the nominee suggested ignoring court orders and telling the courts essentially, fuck you. The witness has said that the decision whether to turn over those notes will determine or depend I guess on whether there's an assertion of privilege of some kind, and we have the great good fortune at this moment to have the Attorney General and the Deputy Attorney General here with us today. We can resolve this right now.
(02:42:59)
I would ask through the chair whether the Attorney General and the Deputy Attorney General will approve the provision of these notes to the committee. They could be provided to the chair and the ranking member in camera if necessary. So that the question that Senator Kennedy asked about whether there was some illicit bargain, and that my colleagues have asked can be resolved. If there are detailed notes of these meetings, it will give us an answer to who's telling the truth here. So I would ask the question through the chair of the witness. Given we have the Attorney General and Deputy Attorney General here, will the Attorney General and Deputy Attorney General make these notes available to the committee so we can determine who's-
Senator Moody (02:43:43):
We're also going to turn it over to Ranking Member Durbin who had some letters I believe he wanted to introduce for the record.
Senator Durbin (02:43:50):
Well, I'd like to join Senator Schiff and his request. I think that if these notes exist, they would answer the questions which the witness was unable to answer. And I think that would be a lot of clarity in that situation.
Senator Moody (02:44:03):
Well, that will be noted ranking member, and we will add you to that request. And you may submit those through the notes. Did you have additional documents-
Senator Durbin (02:44:09):
I do.
Senator Moody (02:44:09):
… to introduce for the record?
Senator Durbin (02:44:11):
I ask consent that the letter from Senator Kim of New Jersey be entered into the record.
Senator Moody (02:44:17):
Without objection.
Senator Durbin (02:44:18):
I ask unanimous consent that a letter from the Rule of Law Institute, a group of conservative lawyers opposing this nomination, be also entered into the record.
Senator Moody (02:44:27):
Without objection. Senator Blumenthal?
US Senator Richard Blumenthal (02:44:29):
Yes, Madam Chair. I'd like to enter into the record, I believe that Senator Grassley may already have included it, but page 23 of the record of this nominee's appearance before Judge Ho, which relates to his stating, and I'm quoting, "In an exercise of prosecutorial discretion, is I think as Your Honor alluded to earlier, virtually unreviewable in this courtroom, especially where guided by an executive order and direct guidance from the Attorney General," referring to dismissal of criminal charges. He said that he never said it. And in addition to asking that this be included in the record, I'd also like to ask for another round of questioning.
Senator Moody (02:45:25):
We're not going to proceed to another round. Is there any objection that'd be included? Without objection, it'll be included for the record and if you have additional questions, please submit them to the committee and we'll make sure they're forwarded on.
US Senator Richard Blumenthal (02:45:36):
Thank you.
Senator Moody (02:45:37):
Thank you. All right, this concludes panel one.
Cory Booker (02:45:38):
May I submit some things for the record please? I was [inaudible 02:45:41]
Senator Moody (02:45:41):
I'm so sorry. You have additional things to submit for the record?
Cory Booker (02:45:43):
I do Madam Chairwoman.
Senator Moody (02:45:44):
Go ahead.
Cory Booker (02:45:45):
First of all, I want to thank you, the ranking member for submitting Andy Kim's statement for the record, I had meant to, intended to do that, but given some of the aspersions that were made about a deal [inaudible 02:45:56], I want to resubmit into this hearing, letters from numerous Jewish groups as well as independent legal groups testifying to his character and the honor and again, the ill way in which he was treated.
Senator Moody (02:46:10):
Do you have those with you for submission?
Cory Booker (02:46:11):
I do have those with us for submission and we'll put them before the committee.
Senator Moody (02:46:14):
Without objection, they'll be admitted. All right, we will now turn to panel two. Thank you for your testimony here today Mr. Bove. Thank you for the Attorney General Pam Bondi for being here today, as well as our Deputy Attorney General Todd Blanch, and all of I see your colleagues from the Department of Justice and former colleagues that are present. We appreciate you being here and being a part of this process. And I would now ask the four district court nominees to please come forward and take your places at the witness table.
Speaker X (02:46:46):
[inaudible 02:46:54]
Senator Moody (02:46:46):
All right.
Speaker X (02:46:46):
Swear them in.
Senator Moody (02:48:26):
I will. All right, you did that faster than I anticipated. Thank you so much for being so expedient. I will now administer the oath. Would you all raise your right hand please and answer this question? Do you swear that the testimony you're about to give before this committee will be the truth, the whole truth, and nothing but the truth, so help you God? All right, go ahead and have a seat. It is our normal process if you desire to introduce people that are with you, including your family, and then you may give your opening statement. We'll start with Judge Artal and then go to Judge Dudek, Judge Moe, and finally to Judge Pratt. Judge Artal, the Judge Artal, the floor is yours.
Judge Artal (02:49:07):
Thank you.
US Senator John Kennedy (02:49:07):
Madam Chair. May I ask a question?
Senator Moody (02:49:09):
Yes, sir.
US Senator John Kennedy (02:49:10):
I assume the introduction of guests is included in the time for their opening statement.
Senator Moody (02:49:15):
Yes. I will ask that it be.
US Senator John Kennedy (02:49:25):
Thank you.
Judge Artal (02:49:25):
Thank you very much. I would like to thank thank Chairman Grassley, Ranking Member Durbin, and of course Acting Chair Moody, and all the members of the Senate Judiciary Committee, as well as my home state senators Rick Scott and Ashley Moody for this incredible opportunity. I also want to thank President Trump for the great honor of this nomination. Most importantly, I want to thank the Almighty God who makes all things possible. I am humbled by the President's nomination, but also proud that so many have traveled here today to support my nomination.
(02:50:04)
First, I would like to introduce my ex-wife, Donna, who is here to support my nomination, together with our son Christian. I'm very grateful to both of them for their support. Next, I would like to introduce a group of lawyers and community leaders who are here to support my nomination, including representatives from the Trial Lawyers Bar, the Defense Bar, the Hispanic Bar, and other community-based groups we have here today Bradford Cohen, Fred Cunningham, Jason Gonzales, Howard Weiss, Robert Harvey, Charbel Baracott, Gordon Deiterly, John Anthony, Braulio, Rosa. And last but not least, Sean Dominic.
(02:50:55)
I'd like to point out that Sean Dominic is the immediate past president of the American Association for Justice, not just the local president, but very impressively, he's the president of the Association for Justice throughout our nation. I'm very, very honored to have such a diverse group of community leaders and leaders from all aspects of the Bar Association here to support my nomination. I also want to thank my law students from St. Thomas University where I teach as an adjunct professor, for tuning in today to watch this hearing. Before I conclude, I would like to say something about my parents who could not travel to attend today, but who are watching from home. They came to America with only the clothes on their back, to flee the tyranny of communism that had gripped their native Cuba in 1962.
(02:51:49)
My father worked hard in a manufacturing job as a tool-and-die maker after, arriving from Cuba in pursuit of the American dream. But when he lost his job because the manufacturing sector left America, he did not give up on the American dream. He worked even harder in any job he could find in the hope that his children would experience the fruit of his hard work and determination. The American dream is part of our unique American story, founded on the concept expressed in our Declaration of Independence, that all have been created equal, endowed by our Creator with certain unalienable rights, among which our life, liberty, and the pursuit of happiness.
(02:52:32)
I'm here today as a testament that the American dream is alive and well because only in America can the son of Cuban exiles who arrive with nothing more than the clothes on their back, have an opportunity to attend one of America's finest law schools at Georgetown University. And only in America can the son of a displaced tool-and-die maker have had the opportunity to serve the state as an appellate judge, a trial judge, and as general counsel of a significant agency. And lastly, only in America can a first-generation American like me be nominated to serve on the federal judiciary and have an opportunity to appear before the world's greatest deliberative body. Thank you senators for the opportunity to provide you with my opening remarks. I'm happy to answer any questions you may have.
Senator Moody (02:53:23):
Thank you. Judge Dudek?
Judge Dudek (02:53:24):
Thank you, Senator Moody and thank you Chairman Grassley and Ranking Member Durbin for holding this hearing. And thank you to Senator Scott for the warm introduction. I would also like to thank President Trump for the nomination and the opportunity to be here today. It is an honor to be nominated to a district court seat on the Middle District of Florida, which has become my adopted home. I'm joined today by several members of my family who I would like to briefly recognize, my wife Casey, who's been my biggest advocate and supporter. I certainly would not be here without her encouragement. My parents, Bob and Cindy, who have both sacrificed so much to help me reach my goals. And finally, my brother and sister-in-law, Eric and Emily. For the sanity of everyone here, I've left my children at home, but I know they're cheering for me from there. Like many of the past judicial nominees you've heard from, I'm here only through the support of others.
(02:54:13)
There are far too many to thank, but I did want to recognize a few who have been kind enough to invest their time and energy into my nomination today. They include Ed Sheffey, Tom Grady, Fred Poseshkin, Jesse Benall and Mark Boyle. There is also my court family who spent countless hours helping me assemble materials for the hearing today. They include Bridget Willauer, Courtney Ward, Dylan Mayer. I cannot thank each of you enough for your encouragement and help. And finally, I'd like to thank the judges who I was lucky enough to clerk for early in my career. They include Judge Jonathan Thatcher, Judge James Kacharis and Judge Stephen Agee. Each of you taught me to respect the rule of law and the role a judge plays in it, and I hope to continue those values if I am confirmed on a seat in the middle district of Florida. And thank you. And with that, I look forward to your questions.
Senator Moody (02:54:59):
I said Judge Moe would be next, but we'll start with Judge Pratt. You can skip her if you'd like.
Judge Pratt (02:55:06):
Thank you, Senator. Thanks also to all of the members of this committee, including the chairman and ranking member for holding this hearing on my nomination. It is an honor to be here before you. I thank President Trump for the honor of this nomination and this opportunity. I too just want to limit my opening remarks to thanks. There are far too many to mention, but I'm going to mention as many as I can in the short time that I'd like to spend. First, I want to thank God. It is through his hand and his hand alone that I can appear before this committee today. But of course, I have seen his hand in my life through the work of others and I have some of those people here today. First and foremost, I want to thank my wife Christine, whose intelligence and beauty are matched only by her patience and grace as she has endured all of the job changes and moves that we have experienced as a family. And we're now happy to be back in our home state of Florida.
(02:55:59)
I also want to acknowledge my three children, who I'll share a little bit. I think that they're really relishing this opportunity. Like many during the COVID pandemic, we had an opportunity to try our hand at a bit of home schooling. Our civics lessons, however, I felt like were not complete until today. So they are very much enjoying this field trip and learning a lot, and I know very excited to be here. I want to thank my parents, Eric and Jill, who are here also today, and their advice to me now as always has been to pursue what brings me fulfillment and what allows me to serve others and do the most good. That is why I'm here today. And I thank them for that lesson. My siblings, Josh, Jillian, and Hunter are all here, and I couldn't think of a better cohort to grow up with.
(02:56:50)
I also want to thank Senators Moody and Scott for their support. I want to thank my current colleagues on the fifth District Court of Appeal, including our chief judge, Jim Edwards and our soon-to-be Chief Judge Harvey Jay, who have been mentors for me on the court. And I also want to thank Attorney General Bondi and Senator Moody as well for the opportunity to serve as their Deputy Solicitor General during my time in Tallahassee. I think that was a formative experience and part of the road that has brought me here.
(02:57:18)
And then finally, I want to thank the judges for whom I had the blessing to clerk. I clerked for Judge Schlesinger, who sits on the Middle District of Florida and I believe that he's watching from home. I also clerked for now Chief Judge Jennifer Walker-Elrod of the US Court of Appeals for the Fifth Circuit From both of them, I had model judicial role models who really exemplify I think the very best of the judicial calling. And I am very proud to have clerked for both of them and I hope that they can feel the same way about me and my service. So thank you very much. I look forward to your questions.
Senator Moody (02:57:54):
Thank you. And finally, Judge Moe.
Judge Moe (02:57:58):
Thank you, Chair Moody and Ranking Member Durbin, the members of this committee. I want to begin by of course thanking President Trump for the tremendous honor of this nomination and for the trust and confidence he's placed in me. I want to thank Senator Scott and again, Senator Moody for your support. It means the world to me as your former colleague on the 13th Circuit for a very brief period of time, to have your support today. I want to thank my husband Ben. If you could understand the extent to which my husband does real, serious, stressful, difficult work, and yet he still finds time on a day like today to have flown across the country to pick up our boys from summer camp, flown through the night to bring them here, to make sure that they're dressed, their hair is combed and their behavior is good during this hearing. There are few men in the world who are like my husband and I think that I would be terribly remiss if I did not begin by emphasizing the great respect that I have for him as a man.
(02:59:03)
I also want to thank my boys. They've done a great job here today. They've gotten to see some interesting things. I'm proud of them as I always am and as their father always is as well. I want to thank my mom and dad. My mom and dad would be here for any reason if I ask them to. There is nothing that I've ever done that was of any significance at all to me that they have ever missed. And it's no surprise to me that they're here because they don't miss anything that matters to my brother and I. I want to thank them for their love and their support, their counsel and their guidance throughout all my life, and I am very grateful to have their support here today.
(02:59:45)
My older brother Blake is watching with his children in Tampa from their law firm along with their law partners. His support and encouragement has always been a tremendous blessing in my life. I'm very proud of him as well. My mother and father-in-law, Tim and Carrie Moe are watching online. I love them very much. I'm so incredibly blessed to have married into their family and to have their support throughout the years. I want to thank the person who I trace much of what we're here today back to, and that is Judge Virginia Covington. She's traveled to be here to support me today. Judge Covington took a chance on me right out of law school. I'll never forget it. I'll be forever grateful for the opportunity she gave me, number one, but also the chance that I had to watch someone who takes this job so seriously, and who works so hard, and applies herself to the rule of law so faithfully. To have learned from her for the first two years of my career is tremendous.
(03:00:53)
I also want to thank former Justice Bell. I interned for him in law school, also Judge Jeffrey Hotham of the Maricopa County Superior Court. Both of them were also excellent examples early in my life of what a good judge does and how they behave. I want to thank my aunt Peggy who traveled here from Texas to be here today. I also want to thank my friend Kelly who's joined us today. I have many family and friends who are watching online and supporting me through distance, but I just want them all to know how much I appreciate them and my failure to name all of them individually can only be explained by the fact that I can't take up the entire hour. I want to thank my colleagues on the Second District Court of Appeal, my former colleagues on the 13th Circuit and my former law partners at Bush Ross, as well as my judicial assistant, Julie Forgus and my law clerks Tyler and Dean. I thank you all for your time.
Senator Moody (03:01:52):
Thank you so much. And I'm going to go ahead and defer to Senator Kennedy to kick us off.
US Senator John Kennedy (03:02:02):
Thank you, Madam Chair. Judge Dudek, did I say that name right?
Judge Dudek (03:02:06):
That's correct, Senator.
US Senator John Kennedy (03:02:07):
All right. What's the warrant requirement?
Judge Dudek (03:02:10):
Well, before the court would issue a warrant, you have to assess to make sure that there's probable cause to either search the place-
US Senator John Kennedy (03:02:18):
When's the warrant required?
Judge Dudek (03:02:20):
Excuse me?
US Senator John Kennedy (03:02:21):
When is a warrant required?
Judge Dudek (03:02:23):
The general rule is a warrant is required anytime that the government wants to search a person, place or thing.
US Senator John Kennedy (03:02:30):
Could you speak into the mic?
Judge Dudek (03:02:31):
Oh, I'm sorry, Senator. Yeah, I said the backdrop or backdrop rule is that a warrant is required anytime the government wants to search a person, place or a thing.
US Senator John Kennedy (03:02:40):
And to arrest you. Right?
Judge Dudek (03:02:43):
There are some exceptions to that, but generally, yes.
US Senator John Kennedy (03:02:45):
Okay. And there are exceptions to the warrant requirement for searching and arresting people. Are there not?
Judge Dudek (03:02:52):
Yes, Senator there are.
US Senator John Kennedy (03:02:54):
Okay. Suppose the Florida Supreme Court ruled that here in Florida, we're not going to recognize any exceptions to the warrant requirement. You have to have a warrant to search someone. And you have to have a warrant to arrest someone, no exceptions. Can the Florida Supreme Court do that?
Judge Dudek (03:03:21):
Well Senator, under the Supremacy Clause, they be bound by what the Fourth Amendment dictates. Of course, they're free to make their own requirements as it-
US Senator John Kennedy (03:03:31):
What if the Florida Supreme Court did it under the Florida Constitution and not the federal Constitution?
Judge Dudek (03:03:38):
Well, they would still, Senator, have to apply with what the federal Constitution said under no under the Supremacy Clause.
US Senator John Kennedy (03:03:44):
No they wouldn't. Do you know what adequate and independent state grounds means?
Judge Dudek (03:03:48):
Sure, of course I would understand that they could have independent and adequate state grounds for state law, but they-
US Senator John Kennedy (03:03:54):
No, they don't. As long as you don't take away rights but add to them a state can do whatever it wants to under state constitution. Can't it?
Judge Dudek (03:04:05):
Yes, sir. Yes Senator.
US Senator John Kennedy (03:04:06):
That's not what you just said. You think the Supremacy Clause applies. The Supremacy Clause applies.
Judge Dudek (03:04:15):
Well-
US Senator John Kennedy (03:04:15):
You want to change your answer?
Judge Dudek (03:04:17):
Senator, I would like to change my answer to the extent that I agree with you that the Florida legislature or Florida could do exactly what you said. I meant in my statement is that-
US Senator John Kennedy (03:04:30):
Trust me, it can. Judge Pruitt. I'm sorry, I can't see that far.
Judge Pratt (03:04:37):
It's Judge Pratt Senator.
US Senator John Kennedy (03:04:38):
Judge Pratt, I apologize. I can't see that far. Can a state legislature pass a law that discriminates against a group of people over another group of people for inferior treatment?
Judge Pratt (03:05:06):
Well, Senator, the federal Constitution and the state constitution both contain protections against various forms of discrimination.
US Senator John Kennedy (03:05:16):
I know that, but can a state legislature say we're going to treat this group of people differently than another group of people?
Judge Pratt (03:05:24):
So I think Senator, an example where a legislature could-
US Senator John Kennedy (03:05:30):
But tell me first if a state can do that.
Judge Pratt (03:05:32):
Yes, a state can, for example, require a driving age which discriminates on the basis of age to say, for example-
US Senator John Kennedy (03:05:40):
When can a state legislature not do that
Judge Pratt (03:05:44):
When it's seeking to do so under a basis that is protected under the state or federal Constitution.
US Senator John Kennedy (03:05:50):
Okay, good. Judge, tell me about the Privileges and Immunities Clause.
Judge Moe (03:06:05):
The Privileges and Immunities Clause, there's a Privileges and Immunities and a Privileges or Immunities Clause. There's one of each. One of them really-
US Senator John Kennedy (03:06:16):
Privileges and is what I'm asking you about.
Judge Moe (03:06:18):
I believe you're referring to what came through in one of the Reconstruction amendments, in discussing the fact that the Privileges and Immunities of Citizenship would be extended under those.
US Senator John Kennedy (03:06:30):
Well first, what article is it in?
Judge Moe (03:06:31):
I believe it's in the 13th Amendment.
US Senator John Kennedy (03:06:34):
No, fourth, Article Four. What does it do?
Judge Moe (03:06:41):
Senator, you have pinpointed a question that in my nine years as a judge in my decade of private practice before this, my two years as a law clerk, my two years on Law Review in law school, including a year as editor-in-chief, didn't ever come up.
US Senator John Kennedy (03:06:57):
You telling me you don't know?
Judge Moe (03:06:58):
So it's an interesting question.
US Senator John Kennedy (03:07:01):
Yes ma'am, I know it's interesting. That's why I ask it.
Judge Moe (03:07:03):
Yes, so-
US Senator John Kennedy (03:07:05):
But you don't know the answer. Just tell me. I got a lot of ground to cover here.
Judge Moe (03:07:07):
I would be very happy to research it and-
US Senator John Kennedy (03:07:10):
Okay. Do you know what the Privileges or Immunities Clause is?
Judge Moe (03:07:15):
With respect to… My answer would be the same on that.
US Senator John Kennedy (03:07:19):
You don't know. You don't know it either?
Judge Moe (03:07:22):
Well, with respect to the Privileges and Immunities of Citizenship, my recollection is that-
US Senator John Kennedy (03:07:27):
Privileges or immunities.
Judge Moe (03:07:29):
Yes. My recollection is that that was discussed in one of the Reconstruction amendments.
US Senator John Kennedy (03:07:35):
Which one? Do you know?
Judge Moe (03:07:37):
I believe it was the 13th or the 14th.
US Senator John Kennedy (03:07:41):
Okay. All right, Judge, what's Title VI of the Civil Rights Act of '64 do?
Speaker X (03:07:48):
Which judge are you referring to?
US Senator John Kennedy (03:07:52):
Ma'am?
Senator Moody (03:07:52):
Which judge?
US Senator John Kennedy (03:07:53):
This judge down here on the far [inaudible 03:07:56]
Senator Moody (03:07:55):
Artal?
US Senator John Kennedy (03:07:56):
I can't see that far.
Senator Moody (03:07:58):
Okay, just making sure because there's four judges there. Judge Artal, I'm going to let you answer that briefly.
US Senator John Kennedy (03:08:02):
Hey, I want to reclaim my time Mr. Chairman.
Senator Moody (03:08:05):
You can answer that briefly.
US Senator John Kennedy (03:08:10):
Judge, what's Title VI of the Civil Rights Act do?
Judge Artal (03:08:17):
I believe that that ensures that people are treated equally in any places that they would be, that they would not be discriminated against.
US Senator John Kennedy (03:08:32):
In all cases?
Judge Artal (03:08:39):
I mean, refresh my recollection as to what you were referring to, Senator.
US Senator John Kennedy (03:08:44):
I'm referring to Title VI of the Civil Rights Act of 1964, which you're going to see every other Thursday as a federal judge.
Judge Artal (03:08:53):
So I believe that that's under the Commerce Clause. They wanted to make sure that there was not any discrimination going on with regard to race, and that was [inaudible 03:09:08]
US Senator John Kennedy (03:09:08):
Okay. It prohibits discriminating on the basis of race or color or national origin. Under what circumstance? Do you know the answer?
Judge Artal (03:09:22):
Under any circumstances where you're providing services to people. And-
US Senator John Kennedy (03:09:28):
No. It's only if you're getting federal money. You need to brush up on that one. I'm way over my time. Thank you Madam Chair.
Senator Moody (03:09:34):
Thank you. Senator Kennedy. Senator Durbin, ranking member.
Senator Durbin (03:09:38):
It's been a long time since I took a bar exam and I remember getting the envelope that said with good news that I had been accepted. And I breathed a sigh of relief to think I'd never have to face another test. Well, you've just gone through the Senator Kennedy Bar exam. It's been a tough one for a lot of nominees. And lucky for us, he doesn't ask his colleagues these questions, only the nominees. So I wish you well and I acknowledge you asked some tough questions Senator. Judge Pratt just a few weeks ago, you-
US Senator John Kennedy (03:10:15):
It's only a position for life Mr. Chairman.
Senator Durbin (03:10:18):
Understood. Judge Pratt a few weeks ago you wrote an opinion in which you held that a Florida law allowing minors seeking abortions without parental consent, but with judicial waiver was unconstitutional. The case involved an appeal from the trial court's denial of a seventeen-year-old's application to obtain a judicial waiver of the parental notification and consent requirements for an abortion. Under Florida law, judicial waivers in this context have been permitted. However, your decision held that Florida's judicial waiver procedures were unconstitutional and violated the parents' due process right. This wasn't something you wrote in an op-ed piece, nor was it a case you argued zealously on behalf of a client. This was last month and you wrote this opinion as a state court judge. In commenting on your opinion, one lawyer said, "Judicial override doesn't even begin to describe what this judge did." There are also serious concerns with your decision's potential impact on victims of incest or abuse. So should a minor who is sexually assaulted in your state be forced to give birth if her parents do not consent to her having an abortion?
Judge Pratt (03:11:30):
Senator, my opinion on behalf of our court expressly made clear that that was not a situation that was presented in the case. The case concerned a waiver request on the basis that the minor asserted that it would be in her best interest not to include her parents, not to allow her parents to be notified of her contemplated procedure. And as the opinion explains, I mean, I think, I don't want to go behind the face of the opinion,
Judge Pratt (03:12:00):
But I'm happy to explain the opinion. The opinion holds that the parents have at a minimum a due process right to notice and opportunity to be heard, and this is presumptively fit parents, have a right to notice and opportunity to be heard if the state seeks to abridge or to remove their right to be involved in the medical decisions of their children. So that is the basis of the opinion.
Senator Durbin (03:12:26):
I think you went further than that. As I understand it, your decision held that Florida's judicial waiver procedures were unconstitutional and violated the parents' due process rights. Unconstitutional, I don't know the Florida constitution obviously, but your argument was that it was unconstitutional under state constitution or federal?
Judge Pratt (03:12:47):
Senator, it wasn't my argument, but the reasoning of the opinion that I authored on behalf of the court is that the due process clause of the 14th Amendment to the United States Constitution requires, as with any other circumstance when someone's substantial rights are at issue, notice and opportunity to be heard. Essentially a opportunity to provide an explanation to the court why the court should or should not take the contemplated action. And there is a body of precedent that the opinion cites regarding the fundamental requisites of the due process clause being notice and opportunity to be heard.
Senator Durbin (03:13:22):
Different states have different laws and certainly the judicial waiver is put in place so that when there's a question of parental consent, there's an option for the victim to petition the court for permission to apply the waiver. And as I understand it, you found that petition to apply the waiver unconstitutional. That's the way I read this. Let me ask each of you. We've had a recurring question here about the impact of a court order. How seriously should a party to a conflict take a court order? Judge Artau?
Judge Artal (03:13:57):
Very seriously.
Senator Durbin (03:13:59):
And do I have the right, if I'm in your court or any court for that matter, and a decision is reached to say that I just don't agree with it, I don't have to live by it, or am I bound by that order until I've exhausted rights of appeal, for example?
Judge Artal (03:14:14):
Well, Senator, there are stays that can be pursued. Of course there's appeals that may be able to be exhausted. You may be able to post a bond to exhaust such things. You may be able to move for rehearing on it. There may be some exceptions, but for the most part, court orders are court orders.
Senator Durbin (03:14:37):
Well, and I think you just heard, you sat through several hours of questioning on a potential nominee for the Circuit Court as to whether or not he was following the court order, oral or written, I'm not sure, when it came to launching a plane with detainees in it to another country. So this is a serious question, which is going to recur frequently here, I'm afraid, under this administration. I yield at this point.
Senator Moody (03:15:06):
Thank you, ranking member. Senator Whitehouse, do you want to go ahead and go?
US Senator Sheldon Whitehouse (03:15:11):
Sure. Thanks, Chairman. If you don't mind, could I start my questioning in just a moment and make a point of order or an observation? I didn't want to interrupt the questioning of Mr. Bove. The Chairman had signaled that he didn't want any further interruptions, but I did want to point out with respect to my concern that Mr. Bove was failing-
Senator Moody (03:15:42):
You don't have a point of order regarding this panel?
US Senator Sheldon Whitehouse (03:15:44):
No. The previous one.
Senator Moody (03:15:45):
If you would just hold that until we're through this and you're more than welcome to do it at the end of the hearing.
US Senator Sheldon Whitehouse (03:15:48):
Do you mind if I do it now? I'm here. It'll just take a minute.
Senator Moody (03:15:49):
Go ahead and start your questioning so we can keep the record clean. So go ahead and ask your questions.
US Senator Sheldon Whitehouse (03:15:57):
Mr. Pratt, is it true that you were a fellow at Claremont Institute Center for Constitutional Jurisprudence, founded and run by John Eastman?
Judge Pratt (03:16:09):
I was a John Marshall fellow. I believe that you're correct. I believe that's correct, Senator.
US Senator Sheldon Whitehouse (03:16:14):
Are you aware of Mr. Eastman's role in supplying Donald Trump with the false argument that Vice President Pence could overturn the 2020 election?
Judge Pratt (03:16:27):
I don't have personal knowledge of the situation you're describing. I'm aware generally of news reports and headlines, but I would say that my knowledge is very limited, Senator.
US Senator Sheldon Whitehouse (03:16:36):
Your knowledge on that is limited to what you've read in the public media?
Judge Pratt (03:16:40):
That's correct.
US Senator Sheldon Whitehouse (03:16:40):
You haven't had conversations with Eastman about it?
Judge Pratt (03:16:43):
No, I don't. I've not had a conversation.
US Senator Sheldon Whitehouse (03:16:47):
Is it true that you are a senior counsel at First Liberty Institute, an institute overseen by Kelly Shackelford?
Judge Pratt (03:16:56):
Yes, that's right, Senator.
US Senator Sheldon Whitehouse (03:16:59):
Are you aware that in December of 2020, Kelly Shackelford signed a letter urging United States senators to try to overturn the 2020 election?
Judge Pratt (03:17:13):
I don't recall the content precisely of that letter, Senator, and I'm not prepared to speak about the characterization of that letter. I do know that he signed a letter in about that timeframe concerning the general subject matter of the election.
US Senator Sheldon Whitehouse (03:17:27):
Have you discussed that letter with Mr. Shackelford?
Judge Pratt (03:17:30):
No, I have not.
US Senator Sheldon Whitehouse (03:17:32):
Do you know Ken Klukowski, who was also senior counsel at First Liberty?
Judge Pratt (03:17:40):
I believe I have met him twice.
US Senator Sheldon Whitehouse (03:17:44):
Are you aware of his role in helping Jeffrey Clark draft the letter that Clark wanted the Department of Justice to send to states, specifically Georgia, in an effort to overturn the 2020 election?
Judge Pratt (03:18:01):
I'm not, Senator.
US Senator Sheldon Whitehouse (03:18:03):
And have you had any conversation in those two meetings with Mr. Klukowski, with him regarding that letter or that effort?
Judge Pratt (03:18:14):
I don't recall ever having a conversation with him about that, no.
US Senator Sheldon Whitehouse (03:18:17):
Do you know Jeffrey Clark, who wrote that letter?
Judge Pratt (03:18:21):
He worked at the Department of Justice during the same timeframe that I was there. I believe that I had been in maybe a couple of meetings where maybe his staff was present and I saw him in the hallway, but I don't know him well, Senator. No.
US Senator Sheldon Whitehouse (03:18:36):
And you did not discuss with him that letter?
Judge Pratt (03:18:42):
No, Senator.
US Senator Sheldon Whitehouse (03:18:43):
Okay. You were a fellow at the Leonine Forum, which I guess is not Leonard Leo and the number nine. It's as in like a lion. Do you know Leonard Leo? He's involved in that group.
Judge Pratt (03:19:01):
I have met Mr. Leo on a couple of occasions. It's been a while since I've seen him, Senator.
US Senator Sheldon Whitehouse (03:19:08):
Do you agree with President Trump's comments that he is a sleazebag who hates America?
Judge Pratt (03:19:13):
Senator, I understand that you're asking me to comment on posts that the President has made on social media. As a sitting judge and as a nominee to a federal vacancy, it would be inappropriate for me to comment on the content of the President's social media feed. The canons preclude me from stating a position on matters of public and political controversy.
US Senator Sheldon Whitehouse (03:19:34):
Okay, let's turn to experience. How many cases have you personally tried to verdict or final judgment in court before a judge or jury?
Judge Pratt (03:19:44):
My judiciary questionnaire should list the cases. I believe as lead counsel, that would be two, Senator.
US Senator Sheldon Whitehouse (03:19:49):
Have you ever drafted a complaint?
Judge Pratt (03:19:52):
I have, Senator, yes.
US Senator Sheldon Whitehouse (03:19:53):
Have you ever drafted an answer?
Judge Pratt (03:19:57):
Yes, I believe so. Maybe not in total, but certainly in part.
US Senator Sheldon Whitehouse (03:20:01):
Have you ever conducted pretrial discovery?
Judge Pratt (03:20:06):
Depends on what you mean by conduct. I have been on teams that have been involved in discovery matters and have supervised trial teams, and I have argued in opposition to a motion to compel.
US Senator Sheldon Whitehouse (03:20:16):
Have you ever conducted a voir dire?
Judge Pratt (03:20:19):
I have not, Senator, no.
US Senator Sheldon Whitehouse (03:20:21):
Have you ever conducted a direct examination of a courtroom witness?
Judge Pratt (03:20:25):
So Senator, during my time as an attorney, I have focused on appellate matters, issues and appeals. The concentration-
US Senator Sheldon Whitehouse (03:20:31):
So the answer would be no to that?
Judge Pratt (03:20:33):
I believe the answer is no, Senator.
US Senator Sheldon Whitehouse (03:20:34):
Have you ever conducted a cross-examination of a courtroom witness?
Judge Pratt (03:20:38):
Again, Senator. It's the same answer. My practice did not focus on matters-
US Senator Sheldon Whitehouse (03:20:41):
Have you ever argued a motion in limine?
Judge Pratt (03:20:45):
No, Senator. I don't believe that I have. Again, my practice is centered on issues and appeals. I have practiced at every level of the state and federal court system. I've handled matters in federal and state trial courts, federal and state appellate courts, and the US and Florida Supreme Courts. Again-
US Senator Sheldon Whitehouse (03:20:59):
My time has expired.
Senator Moody (03:21:01):
Thank you, Senator Whitehouse. Senator Blumenthal.
US Senator Richard Blumenthal (03:21:06):
Thank you, Madam Chair. Mr. Artau, if the Secretary of Defense were sued in your courtroom, as a district court judge, if you are confirmed and you issued an order, would you expect him to obey it?
Judge Artal (03:21:30):
If I had jurisdiction over the matter, if I decided that it was-
US Senator Richard Blumenthal (03:21:35):
But you wouldn't issue an order if you didn't have jurisdiction. It's a yes or no question. Would you expect him to obey it?
Judge Artal (03:21:42):
I would expect all parties to obey my orders no matter who they are.
US Senator Richard Blumenthal (03:21:46):
Because an order is an order as you just said. Correct?
Judge Artal (03:21:49):
Yes.
US Senator Richard Blumenthal (03:21:49):
So the Secretary of Defense ought to obey a district court order. How about you Mr. Dudek, what do you think? Judge Dudek.
Judge Dudek (03:21:57):
Excuse me. I would expect as Judge Artau said, all parties before me to follow my orders pending any appeal.
US Senator Richard Blumenthal (03:22:04):
Including the Secretary of Defense or any other cabinet secretary, correct?
Judge Dudek (03:22:07):
Any party that appeared before me outside of a stay or an appeal, yes, I would expect that.
US Senator Richard Blumenthal (03:22:12):
Judge Pratt?
Judge Pratt (03:22:14):
I'd give the same answer as my friends.
US Senator Richard Blumenthal (03:22:16):
Judge Moe?
Judge Moe (03:22:16):
Same.
US Senator Richard Blumenthal (03:22:21):
Judge Artau, as you know, the President sued the Pulitzer Prize board for defamation and conspiracy based on their awarding of a prize to journalists who reported on the Trump-Russia collusion during the 2016 election. You're familiar with that lawsuit, correct?
Judge Artal (03:22:42):
Yes.
US Senator Richard Blumenthal (03:22:43):
You sat on the court that dismissed it.
Judge Artal (03:22:47):
I sat on a court that found jurisdiction, on a three-judge panel that found jurisdiction.
US Senator Richard Blumenthal (03:22:54):
And you wrote a concurrence where you took a somewhat less measured approach. You essentially parroted the litigant, Trump's talking points, incorrectly, calling the Russia story, quote, "now debunked allegations," end quote, and you called into question the seminal Supreme Court decision in New York Times versus Sullivan, a landmark case protecting free speech and freedom of the press. Given that concurrence and the false information that you included in it, should litigants have any expectation that you can be unbiased, especially if the federal government is involved as a party?
Judge Artal (03:23:46):
Senator, I've been a judge for 11 years. Nobody's ever questioned my integrity. With regard to… I know that what you're getting at in terms of the issue, but I had no communications or expectation that I was even under consideration by the White House when I issued that opinion, and I followed the canons, I followed Canon 3, which is the one that applies in Florida, very carefully. It requires me to take cases as they come.
US Senator Richard Blumenthal (03:24:21):
Well, let me just ask you because my time is limited.
Judge Artal (03:24:25):
Okay.
US Senator Richard Blumenthal (03:24:25):
That court ruling was issued on February 12th of this year, correct?
Judge Artal (03:24:29):
Correct.
US Senator Richard Blumenthal (03:24:30):
Had you before that date ever spoken to Senators Moody or Scott about the possibility of being considered for a judicial vacancy?
Judge Artal (03:24:42):
I had talked a few years ago with Senator Scott because Senator Scott during the last administration had me on his list, and his general counsel is a friend of mine. And when I came into town in November to attend the Federal Society, I just basically paid him a courtesy visit like I do every year because he is a close friend from Palm Beach County, where he used to work as an assistant state attorney. I had no expectations of anything other than the fact that I knew Senator Scott had me in high regard.
US Senator Richard Blumenthal (03:25:17):
So the answer is yes, you had spoken to Senator Scott through his staff about the possibility of a judicial vacancy.
Judge Artal (03:25:26):
For the last several years.
US Senator Richard Blumenthal (03:25:28):
Repeatedly you had discussed with Senator Scott's staff the possibility of a judicial vacancy.
Judge Artal (03:25:34):
I was aware that they considered me in high regard and that if there was an opportunity that they might consider me for it. I was asked if I had any interest in it and I had indicated that I did. But of course Senator Scott did not have a case before me and I was not communicating with the White House or anybody else. Had the timing been differently, then I may have handled it differently.
US Senator Richard Blumenthal (03:26:00):
Why didn't you recuse yourself from a case involving the President when you had spoken to Senator Scott's staff about the possibility of a judicial vacancy that would involve an appointment by the President, who was a litigant?
Judge Artal (03:26:15):
Because Canon 3B requires that a judge hear and decide matters assigned to the judge except if this qualification is required by 3E, and 3E has only four different basises that could possibly apply to me. Personal bias or prejudice, I didn't have any personal bias or prejudice in the case. I did not serve as a lower court judge, and I had no economic interest in the subject controversy itself.
US Senator Richard Blumenthal (03:26:43):
[inaudible 03:26:43] that canon 20 times. But the fact is that you had spoken to Senator Scott's office about the possibility of a judicial vacancy knowing that Senator Scott would hear about it, and then sat on the case. Let me just ask you another question-
Judge Artal (03:27:00):
I had done that, Senator, when Joe Biden was president and that's the timing that we're talking about. I can't indefinitely not take cases because of the fact that I might have aspirations for higher office. That's not the way it works in terms of the canons.
Senator Moody (03:27:19):
And Senator Blumenthal, your time has run. Did you have one more quick question? Go ahead.
US Senator Richard Blumenthal (03:27:24):
I have one more question. Had you spoken to anyone else, including Senator Moody, about the possibility of a judicial appointment, federal bench?
Judge Artal (03:27:35):
I never spoke with Senator Moody. I never spoke with Senator Moody.
US Senator Richard Blumenthal (03:27:40):
Or anyone else.
Judge Artal (03:27:40):
Senator, I think I passed on… I think Senator Scott passed on my resume perhaps. And I indicated that I'm available if they have any questions, but I did not hear back from Senator Moody's office because Senator Moody was just coming into transition at the time.
US Senator Richard Blumenthal (03:28:05):
Thank you.
Senator Moody (03:28:05):
Thank you. Thank you, Senator Blumenthal. Senator Padilla.
Senator Padilla (03:28:09):
Thank you, Madam Chair. Good afternoon now to all of you. Appreciate your patience. Appreciate you being here today. The first couple questions I have I believe are pretty straightforward. So I'm going to in the first one ask for a yes or no answer. It's a subject area that some of my colleagues have raised, but I'm going to be as direct as I can. The question is this, are members of the executive branch required to follow court orders? We'll begin with Mr. Artau.
Judge Artal (03:28:44):
I think, as I answered before, generally speaking, all parties that are subjected to a court order are required to follow orders. There are-
Senator Padilla (03:28:59):
That's a yes.
Judge Artal (03:29:00):
There are a few exceptions, like appeals, stays-
Senator Padilla (03:29:06):
I'll get to that in a second.
Judge Artal (03:29:07):
Yeah.
Senator Padilla (03:29:07):
Let's go down to [inaudible 03:29:09] please.
Judge Dudek (03:29:09):
Senator, outside of the exceptions that were mentioned, then that's a yes.
Judge Pratt (03:29:14):
Same answer, Senator.
Judge Moe (03:29:16):
My answer's the same.
Senator Padilla (03:29:17):
Right. And I been hearing, well, there's exceptions. What is the appropriate way or options for a litigant to respond to a court order they think was incorrectly decided? And I'm talking district and Circuit Court level. What are the options if you disagree with the ruling or finding?
Judge Artal (03:29:40):
Would you like me to start, Senator?
Senator Padilla (03:29:41):
Yes.
Judge Artal (03:29:43):
To seek a stay, to seek rehearing, to seek an appeal, to explain why it would be possible to perhaps put in some evidence to that regard, a possibility.
Senator Padilla (03:29:54):
Not just explaining to the general public, right, the judicial process. Seek the stay, seek an appeal. There's mechanisms for registering your disagreement and fighting another day in court. Let's continue.
Judge Dudek (03:30:06):
I agree with Judge Artau's statement. Those exceptions are the appropriate mechanisms to-
Senator Padilla (03:30:11):
Thank you.
Judge Pratt (03:30:14):
I'll keep my answer short. Yes, there are various mechanisms to seek review or stay of a court order with which a party disagrees.
Judge Moe (03:30:21):
And I agree with those answers.
Senator Padilla (03:30:23):
Right. So I didn't hear any of you say that just disregarding or dismissing court orders is an option. I don't want to speak for you. If anybody disagrees with that, my interpretation from your answers is dismissing or disregarding court orders is not an option. You can register your objection at this point. Seeing none. Thank you for that.
(03:30:48)
So this next question is, I'm a member of the Senate Judiciary Committee and your judicial nominees before us. But my motive for asking you this question is actually just at a basic human level. We're living at a time where the President of the United States has not been shy about expressing his disapproval of so many figures in our country. But members of the judiciary, judges and justices are not an exception to that. When there are cases that are found against his interest, against his agenda, against his favor, he has on multiple occasions either directly or indirectly criticized, some say harassed, or directly or indirectly suggested others, maybe his supporters, to do that, focusing their ire on members of the bench.
(03:31:55)
This is not news to any of you. What I'd like to know is whether before you were reached out to for a potential nomination or subsequent to outreach to you for a potential nomination, did you consider this new dynamic in the American political environment and did you have discussions with your spouses and your families about how you would handle it if you became the target of such criticisms and/or harassment or anything to that effect? Mr. Artau, and we'll go down the line.
Judge Artal (03:32:32):
I mean, this job I've always thought requires courage. It requires judicial courage. I think it's a quality that I have. As I said, I've been a judge for 11 years and I have not been shy about ruling on cases that I need to rule on, and it comes with the territory. So I understand that I may be criticized and I'm likely to be criticized and I was willing to take that risk because I love my country and I want to serve my country.
Senator Padilla (03:33:05):
Thank you.
Judge Dudek (03:33:06):
Senator, I would just add to that that I do believe this is a very public-facing job, that criticism is part of it. In litigation in general, someone generally leaves unhappy with your decision and I've accepted that. And I believe it's the responsibility of a judge to apply the law to the facts as they stand before you, regardless of the outcome that it may be. So that's what I would do if, moving forward, if I was confirmed.
Senator Padilla (03:33:31):
Thank you.
Judge Pratt (03:33:33):
I agree. A judge needs to be willing if the law requires to issue an unpopular decision. And I think it's a great feature of our country that individuals have a First Amendment right to express their thoughts about judicial decisions. I think that my concern when I look at a case isn't any criticism that might come my way. It's only what does the law require to the case that's in front of me? And I think that anyone who takes the judicial oath needs to have the courage to do that in any case, regardless who the party is, regardless of what the issue is. And that's my answer, Senator.
Judge Moe (03:34:08):
Senator, I agree. I think this is a tough job and only tough people should do it. Criticism comes with the territory. My job is to follow the law and not concern myself with what someone might say and not get my feelings hurt about what they might say.
Senator Padilla (03:34:24):
Look, I appreciate your answers. Y'all focused on criticism, willingness to be criticized comes with the territory. The times we're living in is, I wish it was just contained to that. Not a hypothetical. There's been instances, multiple instances where the rhetoric is beyond just criticism. It does fall into the areas of harassment. Some suggest even threats. And I pray that none of you become victims of that should you be fortunate enough to be confirmed. Thank you for your time.
Senator Moody (03:34:58):
Senator Padilla. Senator Schiff. Good timing.
Senator Schmidt (03:35:00):
Thank you. I want to follow up on the line of questioning many of us had for Mr. Bove since you were present for that and ask you all the same question. Judge Artau, I'll start with you. Would it ever be appropriate for the Justice Department to take the position that they should effectively tell a district court to pound sand and ignore a court order?
Judge Artal (03:35:28):
Well, I just think that there are exceptions. As I indicated before, there's stays that can be pursued. There's motions for rehearing, appeals.
Senator Schmidt (03:35:44):
Yeah, that's not my question. Would it ever be appropriate for the Justice Department to tell the court, "We're going to ignore your order"?
Judge Artal (03:35:54):
I mean, Abraham Lincoln did that with the Dred Scott case and-
Senator Schmidt (03:35:59):
I'm hoping we're not going to go back to the Civil War or Dred Scott. You seem to be having some hesitancy about this question. Would you have difficulty if the government ignored your order in holding them in contempt?
Judge Artal (03:36:18):
Senator, I would not have any difficulty enforcing any court order that I enter. Obviously if I enter a court order, I would expect it to be followed.
Senator Schmidt (03:36:29):
Including-
Judge Artal (03:36:29):
No matter who the party is.
Senator Schmidt (03:36:30):
Including by the Justice Department under the Trump administration?
Judge Artal (03:36:34):
Including the government as well, yes.
Senator Schmidt (03:36:37):
Okay. And Mr. Dudek, same question.
Judge Dudek (03:36:46):
I would expect the parties in a case before me to follow the order regardless of who they are.
Senator Schmidt (03:36:51):
Okay. Same question.
Judge Pratt (03:36:53):
Yes, Senator. I too would expect orders to be followed. And of course if I suspected that there were a problem or an issue with that, there is a process for ascertaining whether a court order has not been followed, and I would follow that process.
Senator Schmidt (03:37:09):
That process involves an order to show cause why they shouldn't be held in contempt. And there are judges holding those hearings contemporaneous with this one. Let's say you hold that hearing and you find that the Justice Department has been in willful contempt, knowing in willful contempt. What kind of sanctions would you entertain under those circumstances?
Judge Pratt (03:37:33):
Senator, it's hard to answer in the abstract. I know that there are a host of sanctions that can be entered on a finding of contempt. I would not hesitate to enter an appropriate sanction. Whatever the case would require, I'd have to look at the particular kind of matter, the severity and extent of the violation of the court order. And those would all be things that would be considered in such a hearing. But what I can say just as a general matter is I would expect that any lawful order that I issue with jurisdiction over the case and the parties should be followed, unless or until stayed or reversed or disturbed otherwise on appeal.
Senator Schmidt (03:38:07):
Well, and building on that answer, Miss Gaylord Moe, let's say that the contempt involved rendering someone out of the country to a maximum security prison in violation of their right to be heard, in violation of habeas corpus. What kind of sanction would you order if you found after a hearing and an order to show cause that the government was willfully in contempt?
Judge Moe (03:38:35):
Well, Senator, I'm obviously not going to comment on any pending cases and I'm not going to weigh in on political controversies. I can tell you that the answer to your question is do I expect the parties in a case that's pending in front of me to comply with my orders? And the answer is yes.
Senator Schmidt (03:38:50):
And you would expect that, notwithstanding the fact that they may choose to appeal or choose to disagree with your order, in the absence of a higher court judgment that stays your order, you would expect and you would indeed compel the government to comply, would you not?
Judge Moe (03:39:09):
As a judge, I follow the law and I expect the parties to do the same.
Senator Schmidt (03:39:13):
Okay. That doesn't really answer my question. So in the absence of an appeal from your order, in the absence of a stay of your judgment, if the government refuses your order, would you hold them in contempt?
Judge Moe (03:39:28):
If the elements that would make contempt appropriate under the law were met and I held a hearing that I felt satisfied that at the conclusion the law compelled the entry of contempt sanctions, then absolutely I would do that.
Senator Schmidt (03:39:41):
Okay. Thank you. I yield back.
Senator Moody (03:39:43):
Thank you, Senator Schiff, and thank you so much for our nominees for being here with us today. I know people traveled far and wide to join you. That means they support you and wish all the best in your future careers. Certainly, it is an honor for me. I often take over this gavel from the chair and serve as acting chair. And it's such an honor that I got to do that today especially, as we had nominees from the great free state of Florida and specifically nominees that I know respect the rule of law and respect their, if they are in fact confirmed, their Article III powers are limited, and the public confidence in our judiciary and the impartiality of our judiciary is incredibly important for the success and stability of our great nation. So thank you for being here today. Thank you for your testimony. Written questions for the record may be submitted until July the 2nd at 5:00 PM. The hearing is adjourned.
Speaker 1 (03:40:45):
Thank you, Senator.
