Durbin put each nominee on the record about whether they believe a litigant—including the executive branch—can lawfully defy a court order
WASHINGTON – U.S. Senate Democratic Whip Dick Durbin (D-IL), Ranking Member of the Senate Judiciary Committee, today questioned witnesses during a Senate Judiciary Committee hearing on the nominations of Patrick Davis, to be Assistant Attorney General for the Office of Legislative Affairs (OLA); John Eisenberg, to be Assistant Attorney General for the National Security Division (NSD); and Brett Shumate, to be Assistant Attorney General for the Civil Division.
Durbin began by asking each nominee whether they believe a litigant—including the executive branch—can lawfully defy a court order.
“The Justice Department is currently defending the Trump Administration in a number of lawsuits challenging executive actions taken by the President and officials of the administration. Federal judges—both Republican and Democratic appointees—have enjoined some of these actions, holding they are illegal or unconstitutional. Alarmingly, President Trump, his allies, and even some nominees before the Committee have responded by questioning whether the executive branch must follow court orders,” Durbin said. “If confirmed, the three of you will hold key positions at the Justice Department and you will take an oath to uphold and defend the Constitution… do you believe a litigant—including the executive branch or a president—can lawfully defy a court order?”
Mr. Shumate responded, “I will always advise a client, whether in private practice or in government, to comply with court orders, and if our client disagrees with a court order, we can appeal or seek a stay.”
Mr. Davis responded, “Parties to litigation should always follow lawful orders that bind them.” And Mr. Eisenberg said that he agreed with both of his colleagues.
Durbin then asked Mr. Eisenberg about the shocking security breach in which Defense Secretary Hegseth and other Cabinet officials discussed highly sensitive military plans over the commercial messaging app Signal.
“Classified and other highly sensitive national security information must be handled in accordance with strict security protocols, including the use of secure facilities and communications channels. Willful or negligent disclosure or mishandling of such information is a criminal violation of the Espionage Act,” Durbin said. “Do you agree that the Department of Justice must thoroughly and impartially investigate this breach and, if criminal violations have occurred, that the Department must fairly and impartially prosecute those responsible?”
Mr. Eisenberg refused to say whether or not it should be investigated by the Justice Department and that “it depends on the facts.”
Durbin then asked Mr. Shumate about a Federalist Society panel discussion he participated in last year where he spoke about the President’s ability to remove the heads of independent agencies.
“During that discussion, you argued that ‘nearly all modern, independent agencies are unconstitutional’ because of protections dictating that agency heads can only be removed for cause,” Durbin said. “You appeared to suggest that a host of independent agencies should be subject to the whims of the White House—despite Congress’s constitutional authority to create bipartisan, independent commissions. Do you stand by your argument that removal protections render independent agencies unconstitutional?”
Mr. Shumate claimed that he was advocating for his client’s position on that case and now, in his role at the Department of Justice, he represents the interests of the United States and wouldn’t want to go beyond what the Department has already stated.
Durbin continued, “The view you expressed last year directly contradicts the Supreme Court’s decision in Humphrey’s Executor, a 90-year-old precedent holding that removal protections forindependent agency heads are constitutional. In February, the Trump Administration informed me that it will seek to have this precedent overturned. Did you participate in any conversations with any Justice Department or White House officials about this plan to overturn Humphrey’s Executor?”
Mr. Shumate refused to respond to Durbin’s question, saying “I don’t think it would be appropriate for me to disclose what matters I advised on at the Department. I advise on many matters.”
Finally, Durbin asked Mr. Shumate about President Trump’s remarks last night in which he floated the possibility of financial compensation for people who were prosecuted for taking part in the violent insurrection at the Capitol on January 6, 2021.
“Last night, the President was asked… whether or not the rioters on January 6 should be compensated,” Durbin said. “Do you think the January 6 rioters should be compensated?”
Mr. Shumate said he was not familiar with the President’s comments and that it wouldn’t be appropriate for him to commit to any particular resolution of any of those cases.
Durbin concluded, “Well, I come down on the side of law enforcement officials that keep you and me safe and your family, as well… who were attacked by these rioters [on January 6]. I do not believe they are entitled to any compensation for their action.”
Video of Durbin’s questions in Committee is available here.
Audio of Durbin’s questions in Committee is available here.
Footage of Durbin’s questions in Committee is available here for TV Stations.
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