Epstein Files Transparency Act

— 573 — Department of Justice ENDNOTES 1. Judiciary Act of 1789, ch. 20, sec. 35, 1 Stat. 73 (1789), https://judicial-discipline-reform.org/docs/Judiciary_ Act_1789.pdf (accessed February 3, 2023). 2. An Act to Establish the Department of Justice, Public Law No. 41-97, 16 Stat. 162 (1870), https://www.justice. gov/sites/default/files/jmd/legacy/2013/10/23/act-pl41-97.pdf (accessed February 3, 2023). 3. John F. Fox, Jr., “The Birth of the Federal Bureau of Investigation,” U.S. Department of Justice, Federal Bureau of Investigation, “History,” July 2003, https://bit.ly/3G4LmD0 (accessed February 3, 2023). 4. Trafalgar Group, “Nationwide Issues Survey August 2022,” pp. 19, 22, and 25, https://www.thetrafalgargroup. org/wp-content/uploads/2022/08/COSA-FBI_DOJ-Opinion-Full-Report-0824.pdf (accessed February 3, 2023). 5. John Solomon, “FBI Email Chain May Provide Most Damning Evidence of FISA Abuses Yet,” The Hill, December 5, 2018, https://thehill.com/hilltv/rising/419901-fbi-email-chain-may-provide-most-damning-evidence-of-fisa- abuses-yet/ (accessed February 3, 2023); Post Editorial Board, “The FBI Knew RussiaGate Was a Lie—But Hid That Truth,” New York Post, June 11, 2022, https://nypost.com/2022/06/11/the-fbi-knew-russiagate-was-a-lie- but-hid-that-truth/ (accessed February 3, 2023). 6. John Solomon, “Collusion Bombshell: DNC Lawyers Met with FBI on Russia Allegations Before Surveillance Warrant,” The Hill, October 3, 2018, https://thehill.com/hilltv/rising/409817-russia-collusion-bombshell-dnc- lawyers-met-with-fbi-on-dossier-before/ (accessed February 3, 2023); Eric Tucker, “Ex-FBI Lawyer Admits to False Statement During Russia Probe,” AP News, August 19, 2020, https://apnews.com/article/election-2020- b9b3c7ef398d00d5dfee9170d66cefec (accessed February 3, 2023). 7. Jesse O’Neill, “FBI Pressured Twitter, Sent Trove of Docs Hours Before Post Broke Hunter Laptop Story,” New York Post, December 19, 2022, https://nypost.com/2022/12/19/fbi-reached-out-to-twitter-before-post-broke- hunter-biden-laptop-story/ (accessed February 3, 2023). 8. Memorandum from Attorney General Merrick Garland to Director, Federal Bureau of Investigation; Director of the Executive Office for U.S. Attorneys; Assistant Attorney General, Criminal Division; and United States Attorneys, “Subject: Partnership Among Federal, State, Local, Tribal, and Territorial Law Enforcement to Address Threats Against School Administrators, Board Members, Teachers, and Staff,” October 4, 2021, https:// www.justice.gov/ag/page/file/1438986/download (accessed February 3, 2023) (cited hereafter as Garland Memorandum, October 4, 2021). 9. Dillon Burroughs, “25 States Have Now Left National School Boards Association as Nebraska Departs,” Daily Wire, June 13, 2022, https://www.dailywire.com/news/25-states-have-now-left-national-school-boards- association-as-nebraska-departs (accessed February 3, 2023). 10. Brianna Herlily, “FBI Met Weekly with Big Tech Ahead of the 2020 Election, Agent Testifies,” Fox News, December 3, 2022, https://www.foxnews.com/politics/fbi-weekly-big-tech-ahead-2020-election-agent- testifies (accessed February 3, 2023); Allie Griffin, “Latest ‘Twitter Files’ Show FBI Bullied Executives Over Not Reporting ‘State Propaganda’ Enough, New York Post, December 18, 2022, https://nypost.com/2022/12/18/ latest-twitter-files-show-fbi-questioned-executives-over-users-spouting-state-propaganda/ (accessed February 3, 2023). 11. Michael Shellenberger (@ShellenbergerMD), “In the end, the FBI's influence campaign aimed at executives at news media, Twitter, & other social media companies worked: they censored & discredited the Hunter Biden laptop story. By Dec. 2020, Baker and his colleagues even sent a note of thanks to the FBI for its work,” Twitter, December 19, 2022, 1:35 PM), https://twitter.com/ShellenbergerMD/status/1604908212628598784 (accessed February 3, 2023). 12. Press release, “Eleven Charged with FACE Act Violations Stemming from 2021 Blockade of Mount Juliet Reproductive Health Clinic,” U.S. Department of Justice, United States Attorney’s Office, Middle District of Tennessee, October 5, 2022, https://www.justice.gov/usao-mdtn/pr/eleven-charged-face-act-violations- stemming-2021-blockade-mount-juliet-reproductive (accessed February 3, 2023); Kaelan Deese, “DOJ Official Touts Prosecution of Anti-Abortion Advocates While Vandalized Pregnancy Centers Await Justice,” Washington Examiner, December 14, 2022, https://www.washingtonexaminer.com/news/justice/doj-official- admits-to-prosecuting-pro-life-advocates (accessed February 3, 2023); S. 636, Freedom of Access to Clinic Entrances Act of 1994, Public Law No. 103-259, 103rd Congress, May 26, 1994, https://www.congress.gov/103/ statute/STATUTE-108/STATUTE-108-Pg694.pdf (accessed February 5, 2023). — 574 — Mandate for Leadership: The Conservative Promise 13. Aruna Viswanatha and Sadie Gurman, “Almost Half of Federal Cases Against Portland Rioters Have Been Dismissed,” The Wall Street Journal, updated April 15, 2021), https://www.wsj.com/articles/almost-half- of-federal-cases-against-portland-rioters-have-been-dismissed-11618501979 (accessed February 3, 2023); Just the News Staff, “Antifa-led Portland Rioter Charged with Assault Police [sic] Has Case Dismissed After Community Service,” Just the News, updated December 30, 2021, https://justthenews.com/government/ courts-law/antifa-led-portland-rioter-charge-assault-police-has-case-dismissed-after (accessed February 3, 2023). 14. Press release, “Justice Department Sues Texas Over Senate Bill 8: Complaint Alleges Senate Bill 8 Violates the Constitution by Effectively Banning Most Abortions,” U.S. Department of Justice, September 9, 2021, https:// www.justice.gov/opa/pr/justice-department-sues-texas-over-senate-bill-8 (accessed February 3, 2023). 15. Dorian Geiger, “DOJ Warns States Over Blocking Access to Gender-Affirming Treatment,” Axios, March 31, 2022, https://www.axios.com/2022/03/31/doj-warns-states-blocking-gender-affirming-care (accessed February 3, 2023). 16. Joyce White Vance, “The Justice Department Is Suing Georgia. Don’t Expect Garland to End There,” The Washington Post, June 29, 2021, https://www.washingtonpost.com/outlook/2021/06/29/merrick-garland- suing-georgia-voting/ (accessed February 3, 2023); David Nakamura and Devlin Barrett, “Justice Dept. Sues Texas Over State Redistricting Maps, Citing Discrimination Against Latinos,” The Washington Post, December 6, 2021, https://www.washingtonpost.com/national-security/texas-maps-garland-latinos- justice/2021/12/06/4011ce78-56aa-11ec-9a18-a506cf3aa31d_story.html (accessed February 3, 2023); Holmes Lybrand and Paul LeBlanc, “Justice Department Sues Arizona Over New Election Law Requiring Proof of Citizenship,” CNN, updated July 5, 2022, https://www.cnn.com/2022/07/05/politics/arizona-election-law- justice-department/index.html (accessed February 3, 2023). 17. Zachary Pottle, “America’s Fentanyl Crisis Is Getting Worse,” Addiction Center, August 26, 2022, https://www. addictioncenter.com/news/2022/08/americas-fentanyl-crisis/ (accessed February 3, 2023). 18. Emily Jacobs, “Merrick Garland Speaks at DOJ Before Swearing-in by VP Kamala Harris,” New York Post, updated March 11, 2021, https://nypost.com/2021/03/11/merrick-garland-speaks-at-doj-before-swearing-in- by-kamala-harris/ (accessed February 3, 2023). 19. Eliot H. Lumbard, “State and Local Government Crime Control,” Notre Dame Law Review, Vol. 43, Issue 6 (1968), pp. 899–907, https://scholarship.law.nd.edu/cgi/viewcontent. cgi?httpsredir=1&article=3119&context=ndlr (accessed February 3, 2023). 20. Emma Colton, “Chip Roy Demands DOJ Explain Light Sentence for Floyd Riot Arsonist Who Killed Father of 5,” Fox News, February 10, 2022, https://www.foxnews.com/politics/chip-roy-light-sentence-george-floyd- arsonist-riots-2020 (accessed February 3, 2023); Chris Enloe, “DOJ Asked for Lenient Sentence for 2020 Rioter Who Burned Down Pawn Shop, Killing One Man. Prosecutors Even Cited MLK,” Blaze Media News, January 29, 2022, https://www.theblaze.com/news/doj-lenient-sentence-rioter-arson#toggle-gdpr (accessed February 3, 2023); Chris Pandolfo, “House Republicans Release 1,000-Page Report Alleging Politicization in the FBI, DOJ,” Fox News, November 4, 2022, https://www.foxnews.com/politics/house-republicans-release- 1000-page-report-alleging-politicization-fbi-doj (accessed February 3, 2023); Brooke Singman, “Cruz Slams ‘Politicized’ Biden DOJ for Appointing Trump Special Counsel: ‘Absolutely Disgraceful,’” Fox News, November19, 2022, https://www.foxnews.com/politics/cruz-slams-biden-doj-appointing-special-counsel-investigate- trump-absolutely-disgraceful (accessed February 3, 2023). 21. 8 U.S. Code § 1324 (Bringing in and harboring certain aliens), https://www.law.cornell.edu/uscode/text/8/1324 (accessed March 9, 2023); 8 U.S. Code § 1325 (Improper entry by alien), https://www.law.cornell.edu/uscode/ text/8/1325 (accessed February 5, 2023); 8 U.S. Code § 1326 (Reentry of removed aliens), https://www.law. cornell.edu/uscode/text/8/1326 (accessed February 5, 2023); 8 U.S. Code § 1327 (Aiding or assisting certain aliens to enter), https://www.law.cornell.edu/uscode/text/8/1327 (accessed February 5, 2023); 8 U.S. Code § 1328 (Importation of alien for immoral purpose), https://www.law.cornell.edu/uscode/text/8/1328 (accessed February 5, 2023; press release, “In Brief Filed with Supreme Court, AFL Hammers Biden Administration’s Termination of MPP—Cites Alarming Statistic That Biden Administration Has Already Released More Than 750,000 Illegal Aliens into the United States from the Border,” America First Legal Foundation, April 14, 2022, https://aflegal.org/ in-brief-filed-with-supreme-court-afl-hammers-biden-administrations-termination-of-mpp-citing-alarming- statistic-that-biden-administration-has-already-released-more-than-750000-ille/ (accessed February 5, 2023).

— 494 — Mandate for Leadership: The Conservative Promise provide a private right of action that would allow victims to seek legal redress in court. At the same time, when it continues to fund governmental and private enti- ties that violate these laws, HHS is spending taxpayer funds unlawfully. Under liberal Administrations, OCR has amassed a poor record of devoting resources to conscience and religious freedom enforcement and is often complicit in approving or looking the other way at the Administration’s own attacks on religious liberty. Congress should pass the Conscience Protection Act so that victims can pursue redress through courts without having to depend exclusively on OCR. In addition: l OCR should return to Trump Administration policies that initiated robust enforcement of these conscience laws. It should restore and fully fund the Office of the Deputy Director for the Conscience and Religious Freedom Division (CRFD) and ensure that it has the necessary delegations from the Secretary to enforce these laws. The Secretary should give adequate delegations to OCR to pursue enforcement of conscience laws, including RFRA, and require all HHS components that provide funding or grants to cooperate with OCR CRFD investigations. The Secretary, the Deputy Secretary, and principals in other HHS divisions should endorse the remedial measures recommended by OCR CRFD and limit territorial objections and slow-down attempts by other divisional officials including OGC. HHS should withdraw funding from any violating entities that refuse to correct their behavior, and OCR CRFD should work with ASFR to ensure that all grant announcements and instruments inform grantees and applicants of their obligations to comply with federal health care conscience laws specifically as a condition of obtaining or maintaining their funding. l A draft OCR RFRA and religious freedom rule from the Trump Administration should be issued and finalized. These regulations would provide a clear process for OCR’s enforcement in coordination with other HHS divisions and existing HHS grants regulations. l HHS should reestablish waivers for state and child welfare agencies for religious exemptions, especially for faith-based adoption and foster care agencies. It should also rescind subjective case-by-case eval- uations for religious and faith-based organizations that request religious exemptions. These case-by-case determinations are currently coordinated with ACF and OCR. The recommended waivers should be granted to all states and agencies that request them, and OCR memos finding that RFRA would be violated if the waivers are not granted should be restored.

— 494 — Mandate for Leadership: The Conservative Promise provide a private right of action that would allow victims to seek legal redress in court. At the same time, when it continues to fund governmental and private enti- ties that violate these laws, HHS is spending taxpayer funds unlawfully. Under liberal Administrations, OCR has amassed a poor record of devoting resources to conscience and religious freedom enforcement and is often complicit in approving or looking the other way at the Administration’s own attacks on religious liberty. Congress should pass the Conscience Protection Act so that victims can pursue redress through courts without having to depend exclusively on OCR. In addition: l OCR should return to Trump Administration policies that initiated robust enforcement of these conscience laws. It should restore and fully fund the Office of the Deputy Director for the Conscience and Religious Freedom Division (CRFD) and ensure that it has the necessary delegations from the Secretary to enforce these laws. The Secretary should give adequate delegations to OCR to pursue enforcement of conscience laws, including RFRA, and require all HHS components that provide funding or grants to cooperate with OCR CRFD investigations. The Secretary, the Deputy Secretary, and principals in other HHS divisions should endorse the remedial measures recommended by OCR CRFD and limit territorial objections and slow-down attempts by other divisional officials including OGC. HHS should withdraw funding from any violating entities that refuse to correct their behavior, and OCR CRFD should work with ASFR to ensure that all grant announcements and instruments inform grantees and applicants of their obligations to comply with federal health care conscience laws specifically as a condition of obtaining or maintaining their funding. l A draft OCR RFRA and religious freedom rule from the Trump Administration should be issued and finalized. These regulations would provide a clear process for OCR’s enforcement in coordination with other HHS divisions and existing HHS grants regulations. l HHS should reestablish waivers for state and child welfare agencies for religious exemptions, especially for faith-based adoption and foster care agencies. It should also rescind subjective case-by-case eval- uations for religious and faith-based organizations that request religious exemptions. These case-by-case determinations are currently coordinated with ACF and OCR. The recommended waivers should be granted to all states and agencies that request them, and OCR memos finding that RFRA would be violated if the waivers are not granted should be restored. — 495 — Department of Health and Human Services l HHS should restore OCR authority to review requests for and render opinions on the application of RFRA to requests for religious accommodation of people, families, and doctors who cannot in good conscience take or administer vaccines, including those made or tested with aborted fetal cell lines. l HHS should restore Section 1557, Section 504, and other OCR regulations and fix guidance documents. In 2020, the Trump Administration’s OCR published regulations under Section 1557 of the Affordable Care Act that restored the agency’s enforcement of that law to the limits of its statutory text, deferred to the ACA’s widespread use of a binary biological conception of sex discrimination, and specified that the regulation must comply with the religious exemption and abortion neutrality clauses in Title IX from which it is derived as well as the Religious Freedom Restoration Act and other laws. Courts blocked core provisions of that rule from going into effect. In 2022, the Biden Administration proposed to reinstate a rule contradicting the scope of the statute and imposing nondiscrimination on the basis of sexual orientation and gender identity. It is expected that this rule will be finalized in 2023 even though several courts have issued rulings against the interpretation on which it is based. l OCR should return its enforcement of sex discrimination to the statutory framework of Section 1557 and Title IX. Specifically, it should: 1. Remove all guidance issued under the Biden Administration concerning sexual orientation and gender identity under Section 1557, particularly the May 2021 announcement of enforcement82 and March 2022 statement threatening states that protect minors from genital mutilation.83 2. Issue a general statement of policy specifying that it will not enforce any prohibition on sexual orientation and gender identity discrimination in the Section 1557 regulation and that it will prioritize compliance with the First Amendment, RFRA, and federal conscience laws in any case implicating those claims. DOJ should commit to defending these actions aggressively against inevitable court challenges, including under cases such as Heckler v. Chaney.84