Assistant Attorney General Tom Perez might be nominated to lead the Department of Labor, but the inner workings of Department of Justice took center stage at his confirmation hearing Thursday on Capitol Hill.
Perez tangled with several Republicans on the Senate Health, Education, Labor and Pensions Committee, who had concerns about Perez’s involvement in a "secret deal" to settle a whistle-blower case in Minnesota. They also questioned Perez about the department’s aggressiveness in challenging South Carolina’s voting rights law, and about the ethics of sending emails to reporters providing non-public information about case resolutions.
Ranking Member Senator Lamar Alexander (R-Tenn.) said he has concerns about why Perez orchestrated the deal with St. Paul to drop two False Claims Act cases—where the government potentially could have recovered $200 million—in exchange for the city dropping an appeal to the U.S. Supreme Court related to the disparate impact legal theory. When Perez took over the Civil Rights Division, in 2009, he said DOJ had "dusted off" that legal theory.
At Thursday's hearing, Alexander called Perez's actions in the St. Paul settlement "an extraordinary amount of wheeling and dealing" that was "manipulating the legal process" in a way that "is inappropriate for an assistant attorney general." Congressional Republicans released a 65-page report on the case Monday that was critical of Perez.
Committee Chairman Senator Tom Harkin (D-Iowa), a lawyer, decided to step through the case point-by-point, allowing Perez to explain for the first time publicly how the Justice Department made the now-controversial global settlement.
Perez said that it was St. Paul, and not the Justice Department, that first brought up the possibility of a global settlement. Perez said he consulted with ethics and professionalism experts in the Justice Department, who said it was appropriate as long as Tony West, then the Civil Division chief, retained the ultimate decision on the deal.
And Perez said that Mike Hertz, the late Justice Department's preeminent expert on the False Claims Act, "had a very immediate and visceral reaction that it was a weak case" before deciding not to join the whistle-blower. DOJ also declined to intervene and then dismiss the case, which let the whistle-blower have his day in court.
"Based on these facts, Mr. Perez, I do not know what the controversy is," Harkin said. "I think it’s clear the department made the right call."
In general, committee Democrats went easy on Perez at the hearing. Senator Barbara Mikulski (D-Md.) called him "one of Maryland's favorite sons," touting his experience as the head of Maryland’s Department of Labor, Licensing and Regulation. Harkin said Perez has "the strongest possible record of professional integrity."
Senator Ben Cardin (D-Md.) introduced Perez and pointed out how the Senate had already confirmed him as an assistant attorney general at DOJ. "He’s been through the vetting process," Cardin said.
Cardin also said Perez had turned around major problems in the Civil Rights Division, another concern for Republicans. The House Judiciary Committee spent several hours Tuesday spotlighting the deep polarization and mistrust found among lawyers at the division in last month’s report by the Inspector General and connecting it with Perez.
At Thursday's confirmation hearing, Perez touted his 13 years of experience at the Justice Department, and focused on a history of working with both political parties. He noted that he worked at DOJ under four presidents (Reagan, George H.W. Bush, Clinton and now Obama). And he pointed out that one of his "mentors and supporters" is John Dunne, who served as Civil Rights Division chief under George H.W. Bush.
"So much of what the division does is nuts-and-bolts law enforcement that may not make the headlines, but is critically important in making communities safer and ensuring a level playing field," Perez testified.
Perez touted the accomplishments at the division in the past four years. DOJ, he said, has increased by 40 percent the number of human trafficking cases, stepped up hate crimes enforcement and work for people with disabilities, and recovered more than $50 million for service members whose homes were improperly foreclosed on while deployed.
Perez also noted the bipartisan consensus between Senator Orrin Hatch (R-Utah) and the late Edward Kennedy (D-Mass.) when it came to hate crimes and children’s health insurance.
Perez testified his priorities as Labor secretary would be a collaborative and bipartisan approach to reauthorize the Workforce Investment Act, as well as work on pension security and wage and hour laws.
The committee will hold an executive meeting to consider Perez’s nomination on April 25.