Attorney General Merrick Garland is sworn in before testifying before an oversight hearing to examine the Justice Department, in Washington, D.C., March 1, 2023. — Stefani Reynolds/AFP via Getty Images
(WASHINGTON) — For the first time since his appointment of two special counsels to oversee investigations into both President Joe Biden and former President Donald Trump, Attorney General Merrick Garland is testifying before lawmakers on the Senate Judiciary Committee on Wednesday for an annual oversight hearing.
Garland, who is famously tight-lipped in terms of discussing any aspects of ongoing criminal investigations before his department, will likely be pressed on a wide-ranging number of topics from investigators’ actions in the Trump and Biden cases, the new revelations of classified materials found in former Vice President Pence’s home, to the still-unresolved investigation into Biden’s son Hunter.
Other topics Garland could be pressed on — the department’s formal position regarding when prosecutors should recommend the death penalty for certain federal offenders, the recent arrest of former FBI special agent Charles McGonigal in New York over his ties to a Russian oligarch, DOJ’s civil rights investigations into alleged incidents of police brutality, and how DOJ is responding to various threats from abroad.
His appearance also comes as House Speaker Kevin McCarthy has given Fox host Tucker Carlson unfettered access to thousands of hours of video from the Capitol during the Jan. 6 assault on Congress, despite warnings in the past from prosecutors that widespread release of such video could potentially compromise the safety of lawmakers. McCarthy on Tuesday defended giving the footage to Carlson and said other networks and the American public would get access to the video as “soon as possible” but did not commit to a timeline.
(CHICAGO) — The race for Chicago’s next mayor was shaved to just two candidates Tuesday while voters overwhelmingly stopped incumbent Mayor Lori Lightfoot’s attempt at a second term, making her the first incumbent mayor in 40 years to not win reelection.
Former Chicago Public Schools CEO Paul Vallas and Cook County Commissioner Brandon Johnson both advanced to the runoff election, to be held on April 4.
None of the candidates in the crowded field of nine managed to lock 50% of the vote for a win, so the top two vote-getters will head to the runoff. According to the Chicago Board of Elections, 507,852 total ballots were cast, representing a total citywide turnout of 32%.
“Our fight isn’t over yet and we will be spending the next five weeks talking to the people of our city about the need to elect a leader who is transparent, accountable, collaborative and who puts public safety at the top of our priorities,” Vallas said in a statement. “I’m ready to take on that challenge and be a mayor for all Chicagoans.”
“They said this would never happen. I am so freaking proud. Because we did this,” Johnson told supporters Tuesday. “A few months ago, they said they didn’t know who I was. Well, if you didn’t know, now you know. We have shifted the political dynamics in this city.”
Lightfoot’s loss is a reversal from four years earlier when, as a relative unknown who had never held public office, the former prosecutor won every ward in Chicago by campaigning as an outsider who was motivated to reform the city’s tribal political culture. She became the city’s first Black woman and openly gay person to serve as mayor.
Like all big city mayors across the U.S., she faced significant challenges following the social unrest in 2020 and COVID-19 lockdowns early in her term, but she later could not convince voters she had a solution to the mounting issues of crime and public safety.
At the end of 2022, Chicago had nearly 700 murders, down from 804 in 2021 but still high compared to earlier years, according to the Chicago Police Department’s end-of-year report. In addition, the city saw more than 20,000 incidents of theft in 2022, up from 10,590 incidents in 2021. Viral images of lootings, car jacking and weekend street races throughout the summer months contributed to the perception that Lightfoot had lost control of trying to crack down on crime.
“Obviously, we didn’t win the election today, but I’m being here with my head held high and a heart full of gratitude. I am grateful to the millions of Chicagoans who came together as we made tough decisions, saw the struggles of our frontline workers and beat back a deadly pandemic” she said Tuesday. “I’ll be rooting and praying for our next mayor to deliver for the people of this city for years to come.”
Both Vallas, 69, and Johnson, 46, are Democrats who have the backing of the city’s most powerful labor unions, respectively — the Fraternal Order of Police for Vallas and the Chicago Teachers Union for Johnson. The alliances reflect the opportunities and vulnerabilities of both candidates. Vallas is running as a moderate Democrat who wants to invest more in public safety while Johnson is on record saying he advocates for redirecting funds more to social services and intervention programs. He has avoided answering questions on whether he would divest in or reduce the Chicago Police Department budget.
Both mayoral candidates say they would fire Chicago Police Superintendent David Brown.
Lightfoot has said she is working to make Chicago “the safest big city in the country” by working on getting illegal guns off the streets, hiring more officers and investing in communities to address violence. Others, though, have said she needs to do more.
But there still have been improvements overall regarding crime in Chicago. ABC News Chief Justice Correspondent Pierre Thomas spent a day with Chicago Police Superintendent David Brown in October for an inside look at the department’s efforts to curb gun violence — incidents affecting many Chicagoans — throughout the city. At the time, shootings in Chicago were down 20% through the end of summer and homicides had fallen 16%.
Vallas has made combatting crime the central issue for his campaign — echoing how public safety came to define high-profile races for New York governor, where incumbent Kathy Hochul faced a major rival in Lee Zeldin, and the 2022 recall of San Francisco’s top prosecutor.
(WASHINGTON) — FBI director Christopher Wray on Tuesday spoke publicly for the first time on the bureau’s assessment that the COVID-19 virus “most likely” originated from a potential lab incident in Wuhan, China.
He also faulted the Chinese government in an interview with Fox News’ Bret Baier for, he said, trying to thwart the work of U.S. agencies investigating the beginnings of the global pandemic.
“The FBI has for quite some time now assessed that the origins of the pandemic are most likely a potential lab incident in Wuhan,” he said.
Wray’s comments came after a report in the Wall Street Journal, not independently confirmed by ABC News, that a new Department of Energy assessment has found the virus was most likely the result of a lab leak in Wuhan, but it did so with “low confidence,” compared with the FBI’s “most likely” finding with “moderate confidence.”
While the DOE assessment, which the New York Times reported was based on new intelligence, is in line with the FBI’s, four other U.S. agencies believe the virus was a result of natural transmission and that the virus, known as SARS-CoV-2, jumped from animals to humans at a wet market. Two other agencies are undecided.
“The FBI has for quite some time now assessed that the origins of the pandemic are most likely a potential lab incident in Wuhan,” Wray said.
“Let’s step back for a second. You know, the FBI has folks agents, professionals, analysts, virologists, microbiologist, etc, who focus specifically on the dangers of biological threats, which include things like novel viruses like COVID and the concerns that they’re in the wrong hands,” he said, “some bad guys, a hostile nation state, a terrorist a criminal, the threats that those those could pose.”
“So, here you’re talking about a potential leak from a Chinese government-controlled lab that killed millions of Americans, and that’s precisely what that capability was designed for,” he continued.
“I should add that, that our work related to this continues. And there are not a whole lot of details I can share that aren’t — aren’t classified,” he told Baier.
“I will just make the observation that the Chinese government seems to me has been doing its best to try to thwart and obfuscate the work here the work that we’re doing the work that our U.S. government and close foreign partners are doing. And that’s unfortunate for everybody,” Wray said.
(WASHINGTON) — While calls for the U.S. to send F-16s to Ukraine have generated a lot of attention, a top Pentagon official told lawmakers Tuesday that the planes are not one of Kyiv’s top three requests and that there would be no advantage in the U.S. providing training now ahead of any potential delivery of the aircraft.
Colin Kahl, the Pentagon’s top policy official, told the House Armed Services Committee that President Joe Biden and Ukraine’s President Volodymyr Zelenskyy spoke about F-16s during Biden’s surprise visit to Kyiv last week and that Ukraine’s “top priorities are air defense systems … keeping their interceptors and our defense network alive against Russian cruise missiles and the Iranian drones, artillery and fires which we’ve talked about, and armored and mechanized systems.”
He said the fastest available timeline of delivery of the aircraft and potential training would be 18 months.
“So, you don’t actually save yourself time by starting the training early in our assessment. And since we haven’t made the decision to provide F-16s and neither have our allies and partners. It doesn’t make sense to start training them on a system they may never get,” Kahl said.
Overall, Kahl said, giving Ukraine new F-16s would take three to six years and giving it older versions would take 18-24 months.
Last Friday, in an exclusive interview with ABC News anchor David Muir, Biden was asked about Zelenskyy publicly pushing the U.S. for F-16s.
“You don’t think he needs F-16s now?” Muir Biden.
“No, he doesn’t need F-16s now,” Biden responded.
Asked by Muir if that meant “never,” Biden said there was no way to know exactly what the Ukraine’s defense would require in the future, but that “there is no basis upon which there is a rationale, according to our military now, to provide F-16s.”
“I am ruling it out for now,” Biden said.
Kalh said what the Ukrainians have asked for is a mix of 128 U.S. made aircraft, including F-15s, F-16s, and F/A-18s.
The U.S. Air Force believes that, over the long term, Ukraine would need 50 to 80 F-16s to replace its existing air force, but that would require newly built F-16s which would cost $10 billion to $11 billion, he said.
Getting only half that number with slightly older versions would still cost $2 billion to $3 billion, he said, making the argument that it made more sense to use comparable amounts of money now to meet Ukraine’s needs for Patriots and Bradley Fighting Vehicles in the current fight.
(WASHINGTON) — Senate Republicans, joined by some Democratic colleagues, may soon send legislation to President Joe Biden’s desk to rescind changes to Washington, D.C.’s criminal code that were opposed by the district’s mayor but overwhelmingly supported by its city council.
The Senate legislation, being led in the chamber by Sen. Bill Hagerty, R-Tenn., would roll back a newly-passed package that, among other things, expands the requirement for jury trials and reduces penalties for some violent crimes, including robberies and carjackings, while punishments for other crimes would increase.
The so-called crime bill, which has been worked on for more than 16 years by local officials and was unanimously passed by the city council last year, has come under fire from some lawmakers and activists in D.C. — including Mayor Muriel Bowser, a Democrat.
Under the district’s unique status, Congress has ultimate jurisdiction over its laws.
Congressional republicans say the new criminal code will worsen public safety in the nation’s capital while its supporters, including on the city council, have said it is a necessary and nuanced set of revisions to century-old laws. (Experts say the underlying data shows the reality of how criminal sentencing is imposed is more complicated than it may appear when comparing the new and old criminal codes.)
The House’s Republican majority, along with 31 House Democrats, last month approved a bill to block the new criminal code.
On Monday, Senate Democrat Joe Manchin of West Virginia breathed new life into the legislation’s prospects of passing the chamber, narrowly controlled by Democrats, by announcing his intention to support it.
“You’ve got to send a signal you’re not going to slap them [criminals] on the wrist. They know exactly what they can get by with all over the country,” Manchin said.
The proposal is expected to come to the Senate floor under a special procedural tool that exempts it from some of the usual hurdles. It will only require a simple majority of votes to pass.
With Sen. John Fetterman, D-Pa., out for an indefinite length of time while he receives treatment for clinical depression at Walter Reed National Military Medical Center, Manchin’s support coupled with that of all Republicans in the chamber clears a pathway for passage.
Separately, when asked if he would support the GOP effort to quash the new criminal code and oppose his party’s leadership, Montana Democratic Sen. Jon Tester said, “It’s not looking good.” But he did add that he needed to get briefed by his staff.
Joe Biden’s administration has said it opposes such a move without guaranteeing a veto. That sets up a potentially fraught political predicament for the president, who is expected to soon announce his 2024 campaign, given how Republicans have and continue to emphasize public safety and crime as major concerns.
Both Manchin and Tester are also up for reelection next year in states where the GOP dominates.
“Democrats want to debate anything and everything besides violent crime itself, because the modern Democratic Party and its coalitions have decided it’s more important to have compassion for serial violent felons than for innocent citizens who just want to live their lives,” Senate Republican leader Mitch McConnell said during a floor speech on Monday focused on the D.C. law. “That’s the issue here: a binary choice. Should we be softer on crime, like Democrats want, at the local, state and federal levels? Or should we be tougher on crime, like Republicans and the American people want?”
Hagerty said Tuesday he expects a vote on his bill could come up in the Senate as soon as next week. He’s confident it will pass, with the support of perhaps even more than one Democrat, he said on Tuesday.
“I think a number of Democrats are looking at this very hard,” he said. “The attempt by some to conflate D.C. statehood and what should be just public safety concerns I think is very misguided, and I think some of my colleagues are waking up to that.”
Hagerty was referring to a renewed push among some in D.C. to grant the district statehood so that it would not be subject to Congress’ authority over its laws.
The White House previously issued a statement decrying congressional action on D.C.’s criminal code.
“Congress should respect the District of Columbia’s autonomy to govern its own local affairs,” read an administration statement issued last month, which advocated for D.C. statehood.
During a press gaggle on Tuesday, White House spokesperson Olivia Dalton referred reporters back to that statement.
“But broadly speaking, the president has been clear that we have to do more to reduce crime and save lives and he has outlined how he anticipates we should do so in his ‘safer America’ plan,” Dalton said.
Many Senate Democrats share the administration’s view that D.C. ought to be able to govern itself.
“I’m a home rule guy,” Sen. Tim Kaine, D-Va., said Tuesday. “I tend to believe we shouldn’t be micromanaging what D.C. does. D.C. elects a city council and mayor and they have the complete capacity to judge their actions and decide if they want different people.”
The public safety issue has divided D.C.’s local government as crimes like carjacking have been on the rise. Mayor Bowser vetoed the council’s bill in January. But her veto was overridden.
ABC News’ Beatrice Peterson, Ben Gittleson, Alexandra Hutzler and Trish Turner contributed to this report.
(WASHINGTON) — The Supreme Court’s conservative majority on Tuesday appeared deeply skeptical of the legality of a White House plan to forgive $400 billion in federal student loans during the pandemic, even as the Biden administration vigorously defended its power and attacked the ability of six states to block it.
Oral arguments in a pair of cases challenging the Biden plan, which remains on hold pending the litigation, stretched well past their scheduled two hours, as the justices wrestled with key questions of legal standing and legal authority under a 2003 education law.
The court’s conservative justices seemed most concerned about the scope and scale of the administration’s action, which was not specifically authorized by Congress.
“We’re talking about half a trillion dollars and 43 million Americans,” said Chief Justice John Roberts. “I think most casual observers would say, if you’re going to give up that much amount of money, if you’re going to affect the obligations of that many Americans on a subject that’s of great controversy, they would think that’s something for Congress to act on.”
After the relief program was announced in August 2022, more than 26 million Americans signed up; 16 million were approved for relief before federal courts put it on hold pending the litigation, according to the White House. More than 90% of the financial benefit would accrue to individuals making less than $75,000 a year, an administration official said.
“In effect, this is a grant of $400 billion,” posited Justice Clarence Thomas, “and it runs headlong into Congress’ appropriations authority.”
Justice Samuel Alito suggested it’s unlikely Congress could have imagined implicitly authorizing a plan of such a large scale. “A trillion dollars here, a trillion dollars there, it doesn’t seem very sensible,” he said. “Is this the sort of thing Congress is likely to address expressly?”
“Congress did address this expressly here,” replied Solicitor General Elizabeth Prelogar, arguing for the Biden administration. She said the HEROES Act, which Congress approved 20 years ago, explicitly grants the Education Secretary authority to “waive or modify” the terms of existing federal student loans during a national emergency.
“It’s perfectly logical for Congress to broadly empower the executive to provide benefits, especially in a crisis situation or an emergency like we’ve seen with COVID-19,” Prelogar said. The administration says financial fallout from the COVID pandemic had “profound” effects on student borrowers.
“This is not a situation where the secretary is acting outside the heartland of his authority,” she said. “This is the student loan program. That falls within the wheelhouse of the secretary of education.”
The three liberal justices relentlessly zeroed in on the legal standing of six GOP-led states suing the administration, suggesting none would suffer direct harm from federal loan cancellation and therefore have little grounds to sue.
The court’s precedents say a plaintiff must suffer an “injury in fact” directly flowing from a policy or program in order to challenge it in court.
“We really do have to be concerned about jumping into the political fray, unless we are prompted to do so by a lawsuit that is brought by someone who has an actual interest,” said Justice Ketanji Brown Jackson, who suggested the alleged harm to states was “attenuated.”
Jackson added that she “worries” about the government’s ability to operate if states can sue over the “most minor state interests.”
A key focus of the questions on standing was the state of Missouri, home to the nation’s largest loan servicer, the Missouri Higher Education Loan Authority, or MOHELA. It alleges that eliminating loans on the company’s books would in turn harm its ability to contribute student aid to Missouri.
“About half of MOHELA’s operating revenue from direct loans will be cut and overall that amounts to about forty percent of its operating revenue,” said James Campbell, Nebraska’s solicitor general, arguing on behalf of the states. “The state’s interest is directly implicated.”
“MOHELA is not here, General Crawford [sic]; isn’t that correct?” responded Justice Elena Kagan. “Usually we don’t allow one person to step into another’s shoes and say I think that that person suffered a harm, even if the harm is very great.”
Added Justice Sonia Sotomayor: “It’s hard to imagine how the state of Missouri can claim an injury … when it’s not responsible for the debts of MOHELA.”
Justice Amy Coney Barrett appeared to share some of the concerns about standing related to MOHELA, which is notably not a party to the case.
“If MOHELA is an arm of the state, why didn’t you just strong-arm MOHELA and say you’ve got to pursue this suit?” Barrett asked skeptically.
A second, related challenge to the Biden debt forgiveness plan, brought by two individual borrowers who are ineligible for relief, accuses the administration of acting arbitrarily without sufficiently considering the interests of all Americans as required by law.
While federal law ordinarily requires a public “notice and comment” period for significant regulatory changes, the administration argues emergency circumstances allowed them to bypass that process.
Justices Neil Gorsuch and Brett Kavanaugh suggested the administration overlooked questions of fairness.
There may be “deficiency” for not considering costs to “in terms of fairness, for example, people who have paid their loans, people who don’t — plan their lives around not seeking loans, and people who are not eligible for loans in the first place,” Gorsuch said. “I didn’t see anything in the [secretary’s] memorandum that dealt with those kinds of questions.”
“There are going to be winners and losers, and that raises similar questions about individual rights, individual liberty,” said Kavanaugh.
Justice Alito added: “Why is it fair to the people who didn’t get comparable relief?”
“Congress has made the judgment that when an emergency affects borrowers in this way, the secretary can provide relief,” Prelogar said.
A decision in the cases is expected by the end of June.
(WASHINGTON) — House Speaker Kevin McCarthy on Tuesday defended giving Fox host Tucker Carlson exclusive access to nearly 42,000 hours of previously unreleased surveillance video from the day of the Jan. 6 attack on the U.S. Capitol.
He said other networks and the American public would get access to the video as “soon as possible” but would not commit to a timeline.
“Well, first of all, we didn’t hand over anything. Tucker was interested. You had videos for more than two years. I didn’t hear anybody concerned about that when CNN was given exclusive,” McCarthy told reporters.
While CNN was given access to similar videos, no outlet ever exclusively was given access to all the surveillance footage until now.
“Have you ever had an exclusive?” McCarthy said. “Because I see it on your networks all the time. So, they have exclusive, then I’ll give it out to the entire country.”
When asked about concerns about handing the video to Carlson, who has downplayed the attack on the Capitol, McCarthy took aim at the news media.
“Well, I get concerned about CNN giving exit routes out when they have the footage. I’m concerned about Nancy Pelosi’s daughter’s showing whether we went to Fort McNair when we weren’t supposed to say we were there, made a documentary — CNN put those out. That was a security problem. I was concerned about showing the exit route of Pence on the January 6, I was concerned in my own office, they showed the exit route — never talked to me either. We won’t play politics like that,” McCarthy said.
Asked when other news outlets and the American public would be able to see the same footage that he is providing exclusively to Fox News, McCarthy said, “As soon as possible.”
“I think sunshine matters so everybody could be able to see it. We’re walking through it. It’s many more hours of tape than we were ever told,” he said.
McCarthy said he did not consult with Senate Republican Leader Mitch McConnell on giving Fox access to the footage and pushed back that doing so was a concession to win over GOP Rep. Matt Gaetz’s vote in his quest for speaker.
McConnell, who himself was hustled to a secure location during the attacks, dodged when asked point blank Tuesday if he’s comfortable with McCarthy giving access to Carlson, who has downplayed what happened on Jan. 6.
“Going back to when Speaker Pelosi was speaker, my main concern is the security of the Capitol,” he said.
Earlier Tuesday, House Majority Leader Steve Scalise also defended the plan to provide Carlson and his producers unfettered access to the video footage but said the release is being coordinated and that the video will go through vetting before it is ultimately released.
It’s still not clear when Carlson plans to air the footage or what specific footage he intends to show, but his team does not have the ability to record it and is required to view the material in a controlled environment and cannot take footage with them.
Without elaborating, Scalise said at a news conference that what gets released “is going to obviously be scrutinized” and accused former Houser Speaker Nancy Pelosi of exposing sensitive information through the footage that was played during the Jan. 6 hearings.
The Jan. 6 investigators didn’t release the video without close consultation with the Capitol Police and their general counsel, however, according to sources familiar with their work. The general counsel would review footage that the committee wanted to show and then come back with specific requests of what video to trim or what video they did not want to be used publicly. Committee investigators also had to view the video in a dedicated terminal set up by the Capitol Police.
“Well, of course, if you watch what the January 6 committee did, under Speaker Pelosi, they actually released a lot of video that was very sensitive,” Scalise said. “I mean, they literally released video of Vice President Pence exiting the Capitol showing the route that he takes. I didn’t hear a lot of concern about that back then. We were concerned how selective they were.”
“So, people should ask the J6 committee if they were concerned about national security aspects when the released a ton of footage,” Rep. Byron Donalds, R-Fla., said.
Behind closed doors during a conference meeting on Tuesday, McCarthy defended the arrangement with Carlson and the importance of “transparency,” according to sources in the room.
McCarthy has previously ignored reporters’ questions regarding the Jan. 6 tapes, including a number of times before he spoke to reporters Tuesday.
A lawyer representing media outlets, including ABC News, has sent a letter to congressional leaders requesting that the footage be made available to additional media outlets and not just the opinion arm of Fox News.
The Justice Department has already made public hundreds of hours of surveillance and body camera footage as part of its more than 900 prosecutions of rioters charged in the attack on the Capitol. But at times, the DOJ has joined with the Capitol Police in expressing concerns over the release of some footage that could disclose sensitive areas in the Capitol, the location of closed-circuit cameras, and other sensitive security movements.
Separately, a coalition of media outlets, including ABC News, has also fought in court for the release of exhibits from those prosecutions, in many cases over the objections of defendants.
(WASHINGTON) — Steve Bannon, a former adviser to Donald Trump, appeared in court Tuesday with a new crop of lawyers who promptly decried the “explosion” of evidence disclosures from the Manhattan District Attorney’s Office and asked for additional time to review them.
“Now we have 32 terabytes of discovery,” defense attorney Harlan Protass said. “We, like prior counsel, need time to get our hands around that discovery before we are able to set a motion schedule.”
Bannon, who appeared in a black jacket over a black untucked button down, is charged with defrauding donors to We Build the Wall, an online fundraising mechanism for former President Trump’s signature domestic project.
Bannon hired new lawyers after his prior counsel, David Schoen and John Mitchell, withdrew, citing “a complete breakdown in communication” with their client. The new attorneys sought a 90-day delay.
“All of us at this table are experienced at doing complicated cases,” defense attorney John Carlan said. “We have to, in some general sense, get our arms around what we’re talking about.”
The judge granted a 90-day reprieve and ordered Bannon to return to court May 25, citing a need to “move the case along” after Bannon’s arraignment five months ago.
“Other than discovery being turned over, nothing has happened. Part of that is of Mr. Bannon’s own doing,” Judge Juan Merchan said. “We can’t just keep dragging this out.”
The judge, however, chided prosecutors over the true volume of discovery and the pace of its disclosure to the defense.
“What is the number really the defense is dealing with?” Merchan asked.
Assistant District Attorney Daniel Passeser struggled to explain the varying sources of evidence and size of the files.
“I don’t think it’s for you to decide what’s important or relevant for the defense to look at,” Merchan said.
In another potential shakeup in the case, the attorney for We Build the Wall asked to resign from the case, arguing the entity no longer functions or employs anyone.
“The human beings associated with We Build the Wall have all resigned,” defense attorney Justin Weddle said. “There will be no people with whom I can communicate.”
Prosecutors objected.
“We only found out about this 10 minutes ago,” Passeser said.
Merchan declined to immediately grant the motion and ordered Weddle to return to court March 16.
(WASHINGTON) — Top U.S. officials on Tuesday began their formal efforts to sound an alarm to Congress on a surveillance program — one they describe as “critical” to protecting national security — that is set to expire at the end of this year.
The statute, Section 702 of the Foreign Intelligence Surveillance Act, lays the groundwork for the government to be able to collect the communications of non-Americans overseas who message on U.S.-based platforms without use of a warrant.
The program has drawn scrutiny, however, over the incidental collection of Americans’ communications that are swept up in the process — and the ability for officials at agencies to in certain cases search through that collected information.
“What keeps me up at night is thinking about what will happen if we fail to renew Section 702 of FISA,” DOJ Assistant Attorney General Matt Olsen said in a speech at the Brookings Institution Tuesday. “In the 15 years since enactment, Section 702 has become the Intelligence Community’s most valuable national security legal tool. And we must retain it to confront the evolving threats we will be facing ahead.”
Attorney General Merrick Garland and Director of National Intelligence Avril Haines sent a joint letter to congressional leaders Tuesday morning urging them to reauthorize the program, listing several specific instances in which Section 702 was used to disrupt national security threats.
Section 702-acquired information helped contribute to the successful U.S. targeting of al-Qaeda leader Ayman al-Zawahiri last year, has helped officials quickly identify foreign perpetrators of ransomware attacks against critical infrastructure inside the U.S., and helped authorities disrupt foreign adversaries’ attempts to recruit spies in the U.S.; among other examples outlined by Garland and Haines.
President Joe Biden’s national security adviser Jake Sullivan also expressed the administration’s support for reauthorization of Section 702 in a statement this morning, describing the program as a “cornerstone of U.S. national security.”
“This authority is an invaluable tool that continues to protect Americans every day and is crucial to ensuring that U.S. defense, intelligence, and law enforcement agencies can respond to threats from the People’s Republic of China, Russia, nefarious cyber actors, terrorists, and those who seek to harm our critical infrastructure,” Sullivan said.
House Republicans, including Judiciary Committee Chairman Rep. Jim Jordan of Ohio, have already made clear their plans to fight any effort to reauthorize the program without significant concessions. In appearances on Fox News and other conservative outlets, they have sought to tie the issue to concerns voiced by former President Donald Trump and his long-running attacks on the intelligence community’s surveillance powers.
Trump has largely hinged those grievances on the FBI’s handling of surveillance against a former adviser to his campaign, Carter Page, in 2016 and 2017. A DOJ inspector general report found significant inaccuracies and omissions in the applications for court-authorized wiretaps against Page.
But that program is entirely separate from the FISA program that the administration is currently appealing to Congress to reauthorize before its end of year expiration, which doesn’t involve court approved warrants.
For comparison, in 2021 officials identified more than 230,000 instances in which non-U.S. persons were targets of Section 702 warrantless surveillance. That same year officials only sought FISA court-authorized surveillance against more that 370 Americans or non-U.S. citizens inside the country, according to the most updated data from the DNI.
Olsen, though, acknowledged Tuesday the valid criticism of cases when officials have been found to have misused the Section 702 program. An audit late last year outlined several times when FBI officials used the 702 search query system using Americans’ identifiers for unauthorized purposes.
In certain cases, such queries would be proper if an official was seeking to identify an American who could be considered a victim of foreign hacking or spying. But the audit found cases in which it said officials appeared to have misunderstood the rules and used the program to screen potential informants for any damaging information and one case where an agent queried the name of a local political party to see if it had connections to foreign intelligence.
“At the end of the day, these mistakes are not acceptable,” Olsen said. “They aren’t acceptable to us, are not acceptable to the court or Congress, and not acceptable to the public. Nor should they be.”
Olsen said following the audit the FBI implemented several reforms that resulted in a dramatic drop in the total number of U.S. person queries.
“Of course, there are going to be compliance incidents in a complex system, involving human beings, trying to work on tremendously difficult problems under time pressure,” Olsen said. “But the reality is that every mistake undermines public trust and confidence in how we use these tools.”
Olsen said moving forward would require candid discussions with congressional leaders on the importance of reauthorizing the program, but repeatedly sought to underscore what he said could be dire implications for U.S. national security if the program lapsed for even a few days.
“I think it is very dire,” Olsen said. “I can tell you from my own career going back to my time at the FBI in the 2000s to today, I have seen the way in which 702 has become increasingly important — increasingly the tool that enables us to collect information that we have no other way of getting.”
Rep. Cori Bush, D-Missouri, left, told ABC’s Devin Dwyer, right, she believes her state does not have legal standing to challenge the Biden administration’s student debt forgiveness plan in federal court because it is not directly harmed. — ABC News
(WASHINGTON) — The Supreme Court on Tuesday began hearing arguments in two cases challenging President Joe Biden’s $400 billion student loan forgiveness program.
Critics of the Biden administration’s plan to cancel federal student loan debt for more than 40 million Americans say it’s expensive, unfair and an abuse of executive power.
As supporters of the program protested outside, Chief Justice John Roberts and other conservative justices zeroed in on the issue of executive authority and separation of powers, questioning whether Congress needed to sign off on such broad relief.
“Congress shouldn’t have been surprised when half a trillion dollars is wiped off the books?” Roberts asked Solicitor General Elizabeth Prelogar, arguing for the Biden administration.
“We take very seriously the idea of separation of powers and that power should be divided to prevent its abuse,” Roberts added, making a comparison to the Supreme Court’s decision to block former President Donald Trump’s unilateral attempt to dismantle the DACA program for undocumented immigrants brought to the U.S. as children.
Prelogar, in turn, argued that the education secretary has the authority to provide relief under the HEROES Act, a 2003 law aimed at ensuring federal student loan borrowers would not be economically devastated during a national emergency, in this case, the COVID pandemic.
“Well, of course, we think Congress did address this expressly here,” Prelogar said. “And Congress directed that in the context of a national emergency — that is the limitation of the HEROES Act — so the secretary can’t invoke this whenever he wants, there has to be that predicate: war or military operation or national emergency.”
The group of six GOP-led states on Tuesday challenging the program before the Supreme Court, were questioned by liberal justices to answer the critical question of how, exactly, they are harmed.
“You can’t just go to the court and say I don’t like this, or I think this might be a problem,” said David Nahmias, a staff attorney with the Berkeley Center for Consumer Law and Economic Justice. “In order to sue, you have to show that you are going to be threatened with a certain impending injury.”
The states have alleged a future financial injury from lost revenue on student-loan discharges; fewer loans on the books, they say, would mean fewer taxes to collect.
The state of Missouri argues that it would be uniquely harmed by the impact of large-scale debt cancellation on Missouri’s Higher Education Loan Authority, or MOHELA, which is the nation’s largest loan servicer.
Nebraska Solicitor James Campbell, arguing on behalf of the states, said Tuesday that the plan would cut MOHELA’s operating revenue significantly.
The Biden administration says the states’ claims are highly speculative and indirect, undermining their legal standing to bring the case in the first place.
“MOHELA isn’t here,” said Justice Ketanji Brown Jackson. “It has the ability to sue and be sued; it has been set up as a separate entity. Usually we don’t allow one person to step into another’s shoes and say, ‘I think this person suffered harm’ even if that harm is very great.”
Justice Amy Coney Barrett also pressed Campbell on MOEHLA’s absence, asking, “Do you want to address why MOHELA’s not here?”
Campbell responded that MOHELA “MOHELA isn’t here because the state is asserting its interests. MOHELA doesn’t need to be here because the state has the authority to speak for them.”
“If MOHELA is really an arm of the state … why didn’t you just strong-arm MOHELA and say, ‘You have to pursue this suit?'” Barrett asked.
“The basic threshold issue is, is Missouri, is Nebraska – are these states injured today?” said South Texas College of Law professor Josh Blackman.
Lower courts and legal scholars from across the ideological spectrum have divided on the question of injury, setting the stage for the justices to have the final say on whether the Biden debt relief plan inflicts clear harm on state governments.
“The answer is tricky because in recent years the states have been given latitude,” said Blackman. “This might be a case of the court scaling back on that broad authority, although I’m not sure.”
The U.S. Education Department last year, citing a need to protect borrowers from excessive economic hardship during the pandemic, invoked emergency powers to waive repayment terms for some federal student loans. The agency offered to absolve as much as $20,000 of federal debt for more than 40 million eligible borrowers.
The move drew an immediate legal challenge from Republican attorneys general in six states — Arkansas, Iowa, Kansas, Missouri, Nebraska and South Carolina — who saw it as a costly bailout to college students at the expense of other American taxpayers.
“Joe Biden had no legal authority whatsoever. I think the larger issue is it’s unfair to people who paid off their loans. It’s unfair to people who didn’t take out loans,” Sen. Eric Schmitt, Missouri’s Republican former attorney general who first brought the case, told ABC News in an interview.
“It’s adding to our debt,” Schmitt added. “I think the reason why this case is before the Supreme Court and why Missouri and the other states are ultimately going to win is because Missouri has a loan servicing organization called MOHELA that derives revenue from interest.”
MOHELA, a state-created company which manages more than 5 million federal student loan accounts totaling $148 billion, is at the heart of Missouri’s case and what the federal appeals court singled out as a lynchpin in their decision.
The Eighth Circuit Court of Appeals based in St. Louis, which put the Biden debt relief plan on hold last year, cited “threatened financial harm” to Missouri explicitly because of its ties to MOHELA.
MOHELA has contributed $6 million to state student aid programs in the current fiscal year, a spokeswoman for the Missouri Department of Higher Education and Workforce Development told ABC.
State law also requires MOHELA to pay $350 million to help fund improvements to state colleges and universities.
“The court has identified it as a public entity that administers student loans. It provides college assistance programs for people across the state of Missouri and so the state has an interest in it,” MIssouri’s new attorney general Andrew Bailey told ABC in an interview.
But liberal and conservative legal scholars say financial fallout from a MOHELA-Missouri link is too weak and speculative to justify the states’ Supreme Court case.
“The relationship between Missouri and MOHELA, as our research has shown, in the law that created MOHELA, is such that harm just cannot, cannot happen,” said Nahmias, who filed an amicus brief in the case on behalf of Missouri consumer advocates.
“MOHELA is completely separate and distinct from the state of Missouri. Its operations are distinct from Missouri. Its treasury and finances are completely walled off from the Missouri treasury,” he said.
MOHELA, which did not respond to our repeated requests for comment or an interview, is notably not challenging the Biden loan forgiveness plan.
Missouri Rep. Cori Bush says the company is being used as a pawn and that allegations fewer MOHELA-serviced loans would financially harm her state is exaggerated.
“The money that [MOHELA is] supposed to be paying to the state – again, they owe over, what, about $105 million – they have not kept that up,” Bush said in an interview. “So to say that you have borrowers who need to pay what they owe. Well, MOHELA does not pay what they owe.”
MOHELA financial records reviewed by ABC News confirm the loan servicer has not made a payment to the state fund for higher education capital improvements since 2008 and may not make any future payments – even if the Biden debt relief plan is struck down.
“The states have shown no link between debt cancellation and the effect of debt cancellation on MOHELA’s effect to even pay into the fund, even if they wanted to,” said Nahmias.
Asked about MOHELA’s lack of contributions, Attorney General Bailey said it’s “an issue that the [Supreme] Court is going to have to sort out.”
“The Fifth Circuit [U.S. Court of Appeals] sided with us on this issue, and so we’re optimistic about our chances at the U.S. Supreme Court,” he said.
Some top conservative legal scholars, however, have warned the justices in court filings that – while they don’t like the debt cancellation plan – allowing Missouri to challenge it could set a dangerous precedent.
“If these states are granted standing here, it could lead to far broader ability of the states to haul the federal government into court,” Blackman said.
It’s a high-stakes decision that many say will turn on whether the justices believe debt relief for millions of Americans hurts MOHELA, which in turn hurts Missouri.
“The court may very well say, look, no money’s been paid out [by MOHELA] in a very long time. This is too speculative of an injury,” Blackman said. “Or, the court could say the chance that even $1 might be paid at some point in the future might be enough” to establish harm.
Meantime, many of nearly half a million Missourians with federal student loans who applied for relief under the Biden plan are watching the case with anticipation.
“I spend a lot of time worrying about how I’m going to pay that money back,” said Anna Bain, a sophomore journalism major at the University of Missouri-Columbia, holding $12,000 in student debt.
“The soaring costs of higher education these days is so insane and so unacceptable for so many people,” Bain said. “I think that everyone has a right to say how their taxes are being spent. But I feel like taxes are for the greater good and this is for the greater good.”
