Blumenthal Questions AG Nominee Garland on Climate Change, Police Accountability, and Section 230 Reform

[WASHINGTON, D.C.] – During today’s Senate Judiciary Committee hearing on the nomination of Judge Merrick Garland to be Attorney General, U.S. Senator Richard Blumenthal (D-CT) raised several pressing issues facing the Justice Department.

Combating Climate Change

Earlier in today’s hearing, Blumenthal discussed ongoing efforts by state attorneys general, including Connecticut’s Attorney General William Tong, to hold the oil and gas industries accountable for any lies or fraud committed in denying the effects of climate change. This afternoon, Blumenthal followed up with a “threshold question:”

“Do you have any doubt that human beings are a cause of climate change?” Blumenthal asked.

Garland answered: “No. No doubt at all. That wasn’t a trick question I guess.”

“It wasn’t a trick question,” Blumenthal responded. “I ask it because the last major nominee before this committee – back in September it was a Supreme Court nomination – seemed to have some trouble with that question, but I’m glad you don’t.”

Reforming Legal Barriers to Police Accountability

Blumenthal raised concerns regarding the criminal statute used to hold law enforcement officers accountable for the use of excessive force: 18 U.S.C § 242. Under current law, prosecutors must prove that a law enforcement officer had the “specific intent” to deprive a person of their constitutional rights. This standard is the highest state of mind requirement that exists in the law.

“As you know, Section 242 makes it a federal crime to willfully deprive a person of their constitutional right while acting under color of law but prosecutors have to show that that public official had a specific intent to deprive constitutional rights, which as you also know is a pretty high bar,” Blumenthal said.

“I believe, and I have advocated that we, in effect, lower the state of mind requirement of Section 242 from willfully to knowingly or with reckless disregard, because this stringent mens rea requirement makes Section 242 prosecutions rare or impossible.” 

Garland agreed to consult with career Justice Department officials in the Civil Rights Division about barriers to prosecution for police misconduct and what reforms may be necessary.

Holding Big Tech Accountable

In response to a question posed by Blumenthal about reforming Section 230 of the Communications Decency Act, Garland agreed that “there is no doubt the internet has changed from when 230 was originally adopted.”   

Blumenthal asked Garland to support “targeted and bipartisan efforts to revise Section 230” referencing the Stop Enabling Sex Trafficking Act (SESTA), which Blumenthal co-authored with U.S. Senator Rob Portman (R-OH), and the EARN IT Act, which Blumenthal has led with U.S. Senator Lindsey Graham.

“I proposed various measures, one of them actually adopted in law and signed by the President that imposed accountability on the Big Tech platforms for certain kinds of really horrific material, human trafficking under SESTA. And Senator Graham and I have led an effort, it’s called the EARN IT Act, to hold accountable the tech companies for spreading child sexual abuse material,” Blumenthal said.

“I think reform of Section 230 is long overdue. I led these kinds of targeted and bipartisan efforts to revise Section 230 to hold Big Tech accountable, and I hope that you will consider joining with the Congress in those kinds of targeted, deliberate efforts to reform Section 230, which no longer fits the world that currently it applies to.”

Transcript

The full text of Blumenthal’s exchange with Garland is copied below. 

U.S. Senator Richard Blumenthal (D-CT): Thank you, Mr. Chairman. I want to pursue a couple of the questions that I was asking when we ran out of time. Just to say that on the issue of climate change, President Biden as a candidate committed to holding accountable the oil and gas industry for any lies or fraud they had committed in denying the effects of climate change, and I hope you will take that into consideration in determining what the Department of Justice will do in those kinds of cases, pursuing any kind of pollution or climate change or lies in connection with the oil and gas industry. And just to kind of ask a threshold question, do you have any doubt that human beings are a cause of climate change?

Judge Merrick Garland: No. No doubt at all. That wasn’t a trick question I guess.

Blumenthal: Thank you. It wasn't a trick question. I ask it because the last major nominee before this committee – back in September it was a Supreme Court nomination – seemed to have some trouble with that question, but I'm glad you don’t.

Let me move to the issue of racial discrimination, which has been pursued, and I really welcome your very sincere and passionate commitment to ending racism and racial injustice. We are in the midst of a racial justice movement right now.

One of the areas that most concerns me is holding accountable public officials when they violate individual rights and liberties. As you know, Section 242 makes it a federal crime to willfully deprive a person of their constitutional right while acting under color of law, but prosecutors have to show that that public official had a specific intent to deprive constitutional rights, which as you also know is a pretty high bar.

I believe, and I have advocated that we, in effect, lower the state of mind requirement of Section 242 from willfully to knowingly or with reckless disregard, because this stringent mens rea requirement makes Section 242 prosecutions rare or impossible. And so I hope you agree that we need to adopt measures that will enable criminal accountability where all of the elements of the crime are committed and the mens rea intent requirement can in effect fit the crime.

Garland: What I can agree is that I will consult with the career lawyers in the Civil Rights Division who are the ones who would be bringing these cases and who have brought them in the past. I honestly just don't know. I know everyone says that they’re very difficult to make. On the other hand, in the Clinton Administration, we did successfully make quite a number of those cases, so I'd like them to know from talking to them what kinds of changes might be necessary in the statute and what the consequences of changing the mens rea requirement would be.

Blumenthal: Thank you. I would also like to ask you about Section 230. I proposed various measures, one of them actually adopted in law and signed by the President that imposed accountability on the Big Tech platforms for certain kinds of really horrific material, human trafficking under SESTA. And Senator Graham and I have led an effort, it’s called the EARN IT Act, to hold accountable the tech companies for spreading child sexual abuse material. I think reform of Section 230 is long overdue. I led these kinds of targeted and bipartisan efforts to revise Section 230 to hold Big Tech accountable, and I hope that you will consider joining with the Congress in those kinds of targeted, deliberate efforts to reform Section 230, which no longer fits the world that currently it applies to.

Garland: I don't know that much about 230, except for the case I mentioned that I worked on myself, which was a pretty direct application of the provision. I know that a number of members, including you, spoke to me about this in our meetings, and I know people have different views about how it should be altered. I really would have to study that, but I’m very eager to study that. There is no doubt the internet has changed from when 230 was originally adopted. So I would be eager and interested in studying it and speaking with the members about it.

Blumenthal: Great. Thank you very much.

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