April 15, 2021

Sen. Whitehouse Remarks on Kristen Clarke, Vanita Gupta, and Voting Rights

Mr. WHITEHOUSE. Mr. President, I am here to express my support for the nomination of Vanita Gupta to serve as Associate Attorney General. It is a little strange here on the floor today because under normal circumstances I would talk about Ms. Gupta’s exemplary record of service and how she will excel as the third in command of the Department of Justice and that she would be a consensus nominee. But the extraordinary effort to scuttle her nomination on a partisan basis in spite of her exemplary record asks some questions about what is going on here.

Vanita Gupta is an accomplished lawyer with a record of working well with just about everyone. When she was last at the Department, working on really difficult issues like use-of-force guidelines for police, she built solid relationships with law enforcement. So they have thrown their full-throated support behind her nomination.

Here are the law enforcement agencies and leaders that are supporting her: the Fraternal Order of Police; the Major County Sheriffs of America; the International Association of Chiefs of Police; the Major Cities Chiefs Association; the Police Executive Research Forum; the Federal Law Enforcement Officers Association; the Hispanic American Police Command Officers Association; NOBLE, the National Organization of Black Law Enforcement Executives; and a whole array of distinguished law enforcement leaders.

These are influential groups and respected individuals, and, for some of my Republican colleagues, this kind of support from law enforcement is literally unbelievable.

So here is what my colleague, the junior Senator from Arkansas, asked Ms. Gupta about all these law enforcement endorsements during her confirmation hearing: “Did you, or anyone on your behalf or anyone in or affiliated with the Biden campaign transition or administration, pressure those organizations with threats of retaliation if they did not support your nomination?”

“No, Senator,” she answered.

And she wasn’t kidding. Law enforcement doesn’t brook threats from criminals, let alone Presidential candidates and executive nominees seeking their endorsement.

And, indeed, they stood up to dispute that insinuation. Here is what Jim Pasco, the executive director of the Fraternal Order of Police, said in response:

I was kind of shocked by it. If [the Senator] really suspects that, then he doesn’t really know the law enforcement organizations as well as he thinks he does, and he certainly doesn’t know Vanita Gupta as well as I know her.

Chuck Wexler is the head of the Police Executive Research Forum, and here is how he responded:

Do you really think you can stand up to law enforcement and threaten them? Do you really think that’s going to work? We never forgot that she stood with us when it mattered.

That is the reason for her support from law enforcement: She stood with them when it mattered. And to say that she is such a radical and so against law enforcement and disdains those who disagree with her– which would presumably be law enforcement, if she is such an anti-law- enforcement radical, as my colleagues suggest–is completely blown to smithereens by their continued support for her–not disdain: “She stood with us when it mattered.”

So when that effort to blow her up exploded in their face, colleagues went after an op-ed that she authored 9 years ago in which she supported decriminalization and defelonization of simple possession of small amounts of drugs. It could be read to say decriminalization of marijuana–other drugs, small amounts.

Well, we know a lot today about substance abuse that we didn’t know then that people who have addictions require treatment and care, not punishment and incarceration. That is no radical position. The idea that you should not prosecute people for possession of small amounts is the basis of drug courts.

I started the drug court in Rhode Island. It has been a roaring success. It is the basis for diversion programs. As attorney general of my State with full criminal jurisdiction in my State of Rhode Island, we constantly did diversion of cases of possession of small amounts of drugs–all kinds of drugs–because they don’t belong in the criminal justice system. They get swept up, and you divert them out before prosecution.

This is nothing peculiar or unusual. This is the position of the World Health Organization. This is the position of the Organization of American States. This is the position of the International Red Cross. Heck, even former Speaker Boehner supported decriminalization of simple possession of some or all drugs.

So they had to get into rhetorical tricks to try to make the point look different than it actually is. And Republicans repeatedly asked her questions about that statement regarding small amounts with respect to what they call here “the legalization of `all drugs.”’ In response to that, she said:

I have never advocated for the legalization or decriminalization of all drugs, and I do not support the legalization or decriminalization of all drugs.

If I were to come up to you, Mr. President, and say “Do you support the legalization or decriminalization of all drugs?” what will you take that question to mean? It would seem to mean blanket decriminalization or legalization of all drugs, not small amounts–all. Well, they went on in this same vein. Here is a question for the record from Senator Hawley describing Senator Cornyn’s question “whether you advocate decriminalization of all drugs.”

That is not what she advocated. What she advocated was decriminalization of small amounts–consistent with diversion, consistent with drug court activity, consistent with the way the substance abuse and recovery community treats this issue, and consistent with the position of all those organizations and many, many more. This is the way we operate in law enforcement these days.

So then they try to focus in on the word “never.” Senator Cornyn, who was speaking on the floor a moment ago, ominously said to me, the most important word in that quote is “never.” As you can see, it is simply a misrepresentation of what she said in 2012.

Well, you could also argue–“I have never advocated for the decriminalization of all drugs.” You could also argue that the key word in that sentence isn’t “never”; it is “all.” That is the subject of the sentence: “all drugs.” Kilos of cocaine, pounds of methamphetamine–no. Small, simple possession amounts–that is the way everybody treats drugs in law enforcement these days.

As lawyers, we know that it is important to get the question right, and it is not unusual for lawyers to flub the question. When you are asking a question in court and you flub the question, you often get an answer you don’t like, and the remedy for that is not to call the witness who answered your question a liar. The remedy for that is to get the question right in the first place. And if the question is whether Vanita Gupta advocated decriminalization of all drugs, the answer is, in fact, no because small amounts of simple possession is a very different thing than “all drugs.”

And now they are hanging this extraordinary rampart of invective– liar, deliberate liar–all over getting an honest answer to a question that they asked badly or, perhaps, worse yet, a trick question intended to trip her up that she answered honestly.

So what is going on? Why are they going through this exercise? Well, step back a little bit and look what is going on in our country. The first thing that is going on is that there is a massive dark money campaign for voter suppression. There is a guy named Leonard Leo who ran the dark money campaign that pushed three Supreme Court Justices onto the Court. The Washington Post reported that as a $250 million effort–$250 million.

After the Washington Post article came out and Leonard Leo was blown like a covert agent who suddenly is identified with all of this, he has to get out. Where does he go? He goes to something called the Honest Elections Project, which is the sister organization of a group called the Judicial Crisis Network, which–guess what–is running ads against Vanita Gupta.

They used to run ads for the Supreme Court nominees. They spent tens of millions of dollars running ads against Garland, for Gorsuch, for Kavanaugh, for Barrett–tens of millions of dollars. But with Biden in the White House, nobody is listening to them any longer. They are not getting their appointees through, so they moved to voter suppression. And all that money and that same guy, Leonard Leo, are now lined up behind voter suppression.

So you get dark money ads paid for by Judicial Crisis Network against the third-ranking person in the Department of Justice? They are used to going for the Supreme Court. They are going after the third-ranking person at the Department of Justice. Why? Because it is voter suppression–because she has been the head of the Civil Rights Division, which prosecuted voter suppression. She knows that stuff. She will supervise Kristen Clarke, whom you will hear a lot more nonsense about from the other side, who will run the Civil Rights Division and sue for voter suppression.

So what this is really about is the voter suppression project that you see alive and well in the country from the Republican Party. There are reports that say that every single legislative body in the country controlled by Republicans is pushing voter suppression measures. I don’t know that it is true, but it sure looks like it is true. And if not, it is darn close. It is a pattern. Wherever you go in the country, Republicans in charge–boom–restrict the ballot.

They know people don’t like what they stand for. They know people can’t stand the dark money forces behind ads like this. So the secret, as my distinguished colleague Senator Warnock said: Some people don’t want some people to vote.

So the two women who will be overseeing the Department of Justice voter suppression resistance, the legal fight against voter suppression, the enforcement of the Civil Rights Act, are being subjected to this treatment.

On this, I will stand with Ms. Gupta