Vermont Legislature SmartTranscripts:

[Nader Hashim (Chair)]: We are back in the senate judiciary. It's January 14. We are picking up where we left off yesterday with the confirmation hearing of mister Drescher. And yesterday, we left off a question I had asked a question about some of the cases that mister Drescher had recently worked on, and response was provided a clipping or a valid prosecutorial discretion, to which I had some concerns that I wanted to now discuss today. Is that a fair assessment of how we ended the affidavit? That was my understanding, yes. Since I know that yesterday we were a bit oppressed for time as you were responding to the question and I concluded the committee meeting, did you want to was there anything else that you wanted to add from that question you asked me?

[Michael (Mike) Drescher (Nominee)]: Yes, and I appreciate the chance to do that. Yesterday's answer to the question about those cases, I appreciate, was very Mike Drescher centric. I was explaining to you what I did, why I did it, and the reasons behind that. What I wanted to emphasize that I failed to emphasize yesterday is that never once did I lose sight of the fact that what was happening to Ms. Osterrek and Mr. Madawi was extraordinarily profound, and that being detained by the executive branch is an extraordinary situation. Throughout the cases, my participation in those cases, never lost sight of that. I did not do anything to delay the judicial process. I tried to, as I indicated yesterday, make all of the appropriate ethical and factual arguments that were available and contributed to the resolution of the judicial Well, the trial court resolution of the of the executive of its review of the executive action. The cases are on appeal right now, so the cases are not resolved totally. But I wanted to, given the opportunity, acknowledge that what had happened to miss Osterisk and and mister Nader were had profound impacts on them, and I never lost sight of them. Thank you. So

[Nader Hashim (Chair)]: in terms of prosecutorial discretion, can you share for us, the committee and those folks listening, you define what prosecutorial discretion is?

[Michael (Mike) Drescher (Nominee)]: Sure. Term prosecutorial discretion to me I consider to focus on the criminal prosecutor's role, and that is as compared to a civil government lawyer's role, where you're frequently responding to a lawsuit that's been filed by somebody else. Discretion comes into play in both contexts, but the term prosecutorial discretion I always understood to focus on the prosecutor's role itself. The exercise of discretion that a prosecutor conducts on a regular basis is deciding whether to charge a case, if a case should be charged, what charges should be brought, once the case has commenced, how to manage the litigation in terms of assessing, continually assessing the quality of the evidence, managing suppression arguments if evidence is suppressed, what's the right thing to do. On more than one occasion of my career as a criminal prosecutor, I have stood up in court and asked the court to dismiss a prosecution when our view of the evidence changed. And on the one hand, you know, it's unfortunate when a case that we thought was worthy of prosecution in the end for various reasons, changes. On the other hand, it's some of my proudest moments as a prosecutor, standing up and, recognizing when a case should end. Once a case is if a case has resulted in a conviction, then there's discretion in terms of what sentence to advocate for, whether we should advocate for leniency or a sentence that is more geared towards retribution or deterrence. Discretion comes into play throughout the criminal process. On the civil side, which is the nature of the cases that we were talking about yesterday, there's a lot of discretion that comes into play as well. It's but it's very different. As a Civili USA, especially defending a case, and this I think is true in civil litigation, whether it's for the government or not, your obligation to your client who has been sued is to carefully examine the claims that have been brought against your client, both for legal and factual adequacy, explore whether there are responsible, serious legal responses to them that can be made to advise your client throughout the process, and to do that in a way that manages the cost of litigation as much as you can. In the context of the cases we were talking about yesterday, as I indicated, both Ms. Obsturk and Mr. Nader had very strong legal teams. They made very strong legal arguments, but there were straight faced serious responses to be made involving, among other things, the role of the federal district court in immigration proceedings generally, what congress had specified the role for the courts to be. Congress had stood up, has stood up a separate court system to adjudicate immigration cases, immigration court. It's it's a court system that AUSAs do not appear in. And congress has channeled a lot of the issues around immigration law into immigration court and has tried to limit the involvement of the federal district courts. And these are very serious arguments, and judges federal judges have gone both ways with regard to these arguments. And so I made those arguments. I as I indicated yesterday, never knowingly misrepresented a fact and exercised my discretion in that regard as I understood my duty to be as a government lawyer in that context. If I had been asked to make a privilege argument, I would have exercised my discretion not to. There are times when lawyers in the civil division in the United States Attorney's Office in different contexts are have arguments suggested to them by agency counsel, and we say no, because we don't assess them to be viable argument submission. So it's not really on the civil side prosecutorial, but it's still exercising litigation, legal discretion in that way. Hopefully that's responsive to your question. There's the criminal side of

[Nader Hashim (Chair)]: the civil side. It is. Thank you. The so I I I get where you're coming from here, but and I and I understand that immigration law is you know, they're they're trying to keep it at immigration court, but my understanding is there were some fundamental rights issues that were raised in these cases that that we were the prosecutor on. And and also just to be clear, I'm not trying to relitigate this or anything. But there are some fundamental issues that do concern me. I think yesterday you had described that it would be unfair to conclude that you personally supported policies of the government because you were an advocate of those policies. You also made an analogy to defense attorneys being responsible for their clients' crimes. And I see where you're coming from on that, but there's, in my opinion, there's a distinction in which as the US attorney and as you've described, you did have significant power to exercise discretion in a certain way. And in looking at the two cases that were raised yesterday, which are the ones that we know about because of the heightened publicity, the manner in which the discretion was exercised or not exercised is what's giving me concern here. So you have the ability to choose to file a motion or not file a motion based on the facts and circumstances after you've retained them. Right? Yes.

[Michael (Mike) Drescher (Nominee)]: The answer is yes. And

[Nader Hashim (Chair)]: regarding Ramesa, her attorneys did file a habeas motion which he opposed, right?

[Michael (Mike) Drescher (Nominee)]: We opposed principally on jurisdictional and technical legal grounds, yes.

[Nader Hashim (Chair)]: And so I guess my question isand I'm presuming that you knew that when this case came to you that the government had acted to begin immigration proceedings in retaliation for her exercising her First Amendment right by writing an op ed that was critical of the federal government?

[Michael (Mike) Drescher (Nominee)]: The record in the case includes a memo from a state department official that points to that article as a material factor in its decision to revoke her student visa. And I was aware of that, and that memo is in is in the court files, in the public file.

[Nader Hashim (Chair)]: Also, if if you were aware of that, it's it's problematic to me that you were aware of that and yet did not exercise discretion to when it came to opposing the habeas motion and also in your opposition to transferring her from Louisiana back to Vermont, know, to judge's decision and also ask for a stay of his decision. And I understand that there have to be zealous advocacy for your client. But on the other hand, there is the fact that you were aware that her immigration proceeding had resulted as a form of retaliation because of her exercise in the First Amendment. Right?

[Michael (Mike) Drescher (Nominee)]: So I completely appreciate your concern. I appreciate you articulating that. I wanna emphasize a handful of things in response. One, I never defended the decision to revoke her visa. That was that was never a position I took. The scope of the department's authority to revoke visas or not is is the state department has a lot of authority when it comes to managing the immigration system, but I never tried to defend its decision to do what it did to miss. The arguments that that were made in that litigation were about what was the proper role of the federal court generally, whether the case was in the right federal court if the federal court had a role to play, and what remedies the federal court could provide. And all of those issues were all all of the arguments I made in that regard were serious, ethical, responsible arguments. You know, for example, what happened in the end, or the current status of the case, is that Ms. Oster is released essentially on a form of bail by Judge Sessions. There's a serious question as whether a court has authority to issue that type of release order in that context. I did not argue that and I did not try to defend the underlying reasons for Ms. Osterk's visa revocation. I tried to manage the litigation in federal court so that the court could so that the judge would have all of the appropriate arguments to consider. And in the case of judge in the case of mister Vendowi, the court the court did that and reached the decision it did. So Thank you. So, again, I I appreciate, and as I indicated yesterday, how I think I used the word irregular than a circumstance of that case was. And it was not lost on me at any point in the litigation. And it's my hope that the committee, the the public at large, does not misperceive the role I'd say in that case as advocating for anybody's fees of revelation.

[Nader Hashim (Chair)]: So I I I hear where you come from, but it is you know, the the the argument isn't my perspective. It's not whether or not you supported the initiation of the immigration proceedings, but rather how you responded to the previous motions and the fact that it wasn't the immigration proceedings. It was the fact that somebody's liberty was being constrained. They were being tamed. And and how he responded when when their defense was trying to address those issues. And it as we know, it wasn't just Rumasa. It was also, I believe, around the same time. It was he was in Badawi as well. And and, I mean, it's obviously different fact patterns, but, you know, the same issues that that that exist in that case as well. And so do you have any thoughts or perspective that you wanna share on the Downing case as well? So both cases

[Michael (Mike) Drescher (Nominee)]: both cases reflect a an extraordinary change in in executive policy. And as as your question yesterday pointed out, sort of, you know, break things. Banks were moving at an incredibly rapid rate, and they were trying to implement a new policy. We're seeing consequences of that policy implementation across the country now in dramatic and unfortunate ways. And whether that policy was legal or not needed to be assessed by a judge. And if that judicial review could not happen without lawyers on both sides, doing their job for that system to work. I made the analogy yesterday to a federal defense lawyer. Same thing. The system cannot work without lawyers on both sides. You know, I I tried to make the case yesterday to not be perceived as necessarily agreeing with the policy I was advocating for. And and if lawyers are associated with the policies or positions they've advocated for through the through the course of their career, it would not be tenable, for them to pursue any other type of work because the nature of litigation, the nature of government litigation, frequently, deals with extraordinary imbalances of power, managing the authority of the executive, and doing so in an ethical and responsible way.

[Nader Hashim (Chair)]: Thank you. I don't want to monopolize where I saw Senator Baruth had his hand up first.

[Philip Baruth (Member)]: I I take your point

[Michael (Mike) Drescher (Nominee)]: about fair

[Philip Baruth (Member)]: litigation producing case law that will clarify the new state of affairs. I guess I would also just yesterday or the day before, six or seven career people at the Department of Justice resigning in protests because DOJ's response to the Minneapolis shooting appears to be directed entirely at the family health. So so I'll just note that that is also an option. My question to you is you called the issues in the Dowie case, the Alstair case extraordinarily proud. Said you never lost sight of those issues. I believe that absolutely. But then you said your work contributed to the resolution of the case. Which in a in a certain, you know, technical way is true but but it's almost as though you're saying it's almost as though you're taking credit for the result which you are told. I I am That makes sense.

[Michael (Mike) Drescher (Nominee)]: Now what I'm taking credit for is facilitating judicial review of the challenged government action. Yep. And, you know, whether it's in a criminal case or most havious cases, we have a lawyer on each side. They're in very different lanes Mhmm. But they're on the same road. And not to be melodramatic, it's the vote to justice. It's the road to figure out what the rule of law requires. And in the middle of that road is the court. In the middle lane is the judge. And the judge cannot make that decision without two competent ethical lawyers on on in in those other lanes. And and that's the and that's that's the point I was trying to make. And and the the profundity of the issues, to be sure, what I was trying to make earlier today was the profundity of the impact on miss Oster, mister Bedali while they were in in detention in in a detained state, which, again, obviously cannot be overstated. But this this sample is true in criminal cases too when when the criminal defendant's liberty does not say the impact on the the defendant in the criminal case or the petitioners in that abias basis could not be more important to those individuals. And as a prosecutor prosecuting from all cases or as a civil litigator representing the government in the habeas case, cannot lose sight of that. And I don't think I ever did. And and that that was that was part of what I wanted to sort of amend yesterday's response with my early airstriles today. But I looked down the issues and found it.

[Tanya Vyhovsky (Member)]: Couple of those well, I have a lot of restaurants involved. Let me ask a couple of them right now. One of them is a clarifying question. And at the time that you were prosecuting these cases, were either Ms. Ostrokes or Mr. Madawi suing the government, or were they simply fighting to be let out of detention?

[Michael (Mike) Drescher (Nominee)]: Suing is a they they had filed the lawsuits, against the government. They were civil lawsuits. Frequently, those types of cases are are people describe that as freeing a lawsuit or suing. The nature of their cases were not traditional civil complaints. They were petitions seeking a writ of pubis corpus. It's it's civil litigation. It's not a traditional type of civil litigation. So some people could call it sovereign government. Some people would say they were actually petitioning for a writ. It's it's it's sort of a technical legal point. So people could say they're suing.

[Tanya Vyhovsky (Member)]: But at that time, they were not seeking any damages. They were not seeking you know? And, like, I I understand that, some sort of break of the gentleman who was accidentally deported to El Salvador, is suing the government. He is seeking damages for the harm of the death.

[Michael (Mike) Drescher (Nominee)]: So they were not doing that? Okay. They they were

[Tanya Vyhovsky (Member)]: They were seeking release Yes. From detention?

[Michael (Mike) Drescher (Nominee)]: They were seeking different forms of relief, most predominantly of the detention. Okay.

[Tanya Vyhovsky (Member)]: And at the time as the prosecutor on these cases, you could have declined to take them forward? No.

[Michael (Mike) Drescher (Nominee)]: See, that's that's a point I was trying to get at in answering the prosecutorial discretion case. The administration had made its decision. The Department of Justice, the US Attorney's Office, had no control over its decision. It was the State Department and the Department of Homeland Security that revoked the immigration status and and then took each individual in The US. That was the status quo when the petitions, the lawsuits, when they were filed, and they were challenging that. Neither I nor anyone in my office had done anything to initiate this immigration enforcement action. It was out of our hands completely. And so if we had declined to do anything, the lawsuit would not have gone forward. It would have been dragged out. There would have been a scramble to figure out who's been represented in The United States. We did not have the authority to decline and result and cause them to be released. We the defendant effectively, defendant in that action. So I appreciate it feels prosecutorial, because these people were in custody, but they had not been charged with a crime by my office. We can decline to bring a case. We can, like I said earlier, dismiss a case that we've brought and that could result in somebody being released. But that was not the case in these in these habeas cases.

[Tanya Vyhovsky (Member)]: As a follow-up to what senator Baruth brought up, you resigned recently to pursue a potential spot on the bench, but at no point as this was that was going on did it occur to you that perhaps on moral grounds, might make sense. I if I'm asking. No.

[Michael (Mike) Drescher (Nominee)]: No. I yeah. It did occur. The short answer is it did occur. Reading the headlines about what has happened in various some days in Minnesota and DC breaks my heart, and it's a tough spot to be in. According to one of the articles I wrote, among the among the people who are leaving those offices are among the most tenured, most experienced, those presumably with some of the best judgment that can be brought to bear when these discretionary decisions are to be made, and and those who might be the most persuasive with the most gravitas to be a counterbalance when they are being asked or directed to do something that they find misnasal. It it is Interject. I'm

[Nader Hashim (Chair)]: sorry. You you you were saying something? Continue. Sorry. But I did wanna ask

[Michael (Mike) Drescher (Nominee)]: a clarifying question. It's it's a and and so in deciding whether this is something that I should resign over, I had to consider what would the impact on the case be. And as I indicated in a moment ago, it would not have changed the status of Mr. Nader or Ms. Oster if I had resigned. It would have caused somebody else to be in the position of having to stand up in court and be least popular person in the room because you're taking positions that are principled but unpopular. Had I resigned, I don't think it would have solved anything. And and if and I was available to resign if, again, if something worse than through these systems.

[Nader Hashim (Chair)]: I just wanted to ask and clarify your question based on your previous question with that. So it's not immigration proceeding that is the concern. I acknowledge and I agree that that is something that you did not initiate, but rather it is the habeas motions in both of these cases. And so my question is, did you have the ability to say to the court that the government takes no position on this motion?

[Michael (Mike) Drescher (Nominee)]: I I mean, I I did I have the ability to do that? I certainly could have done that. I think

[Nader Hashim (Chair)]: that would have been a breach of my professional responsibilities. Even if you're looking at the facts and circumstances that these that they were based on why they were being held?

[Michael (Mike) Drescher (Nominee)]: Yes, because there were serious legal issues. The judges across the country have come down on both sides of It is an unsettled area of the law as to what role a federal district court should play in these types of proceedings and and how a person in those situations persons in that situation should have their in what forum is their detention be refused? In immigration courts, there are there is a possibility of receiving a police in immigration court. It happens quite regularly. Miss Ostrich tried to seek a police in immigration court, the immigration judge denied it. So it was not a viable option for her, but she had the opportunity to appeal that determination or that denial within the immigration proceedings. There is a systemic place that is built for those types of proceedings. Now but there's also the bit of pannius corpus, which is a, you know, a a very important part of American jurisprudence, which allows a person, generally speaking, to come to court to challenge the legality of his or her detention. And that's what they did. Congress had passed several statutes specifying specifically that in these areas of the law, the district courts shall not have jurisdiction over habeas cases. Whether these cases felt under the rubric of those statutes or not is still unsettled. And it was a serious and legitimate legal argument to make. And as an attorney for the government, it was my duty to do that as ethically and responsibly and as efficiently as I could. To occupy one lane, the other size attorneys occupied the other, and it resulted in a judicial ruling that made the determination as to what the status should be. Thank you. Do

[Tanya Vyhovsky (Member)]: you believe that we have a moral obligation to use positions of power, whatever those positions are, to say no when things are wrong? Yes. Did you consider the chilling effect on free speech in prosecuting a student who essentially penned an op ed or a green card holder who protested in support of Palestine?

[Michael (Mike) Drescher (Nominee)]: So I I wanna I just wanna be clear again. I did not prosecute them. Did not prosecute them.

[Tanya Vyhovsky (Member)]: Okay.

[Michael (Mike) Drescher (Nominee)]: I

[Tanya Vyhovsky (Member)]: I'll bring the question. Did you consider the chilling effect of these cases on free speech Yeah. When a graduate student is essentially having their right to be here, their valid legal student visa revoked for penning an op ed or a green card holder is arrested for protesting in support of Palestine.

[Michael (Mike) Drescher (Nominee)]: I did, and I wanna be clear that I did not defend the decisions to revoke their immigration status, their visa. I did not defend them. That was not the issue before the court in the case of Seneca.

[Tanya Vyhovsky (Member)]: What is your view on who are US constitutional protections applying to? Questions? The question is what your view is on who is protected by The US and Vermont constitutions.

[Michael (Mike) Drescher (Nominee)]: Part of that touches on legal questions that could very well come before the court, so I want to be careful not to take a position that is going to commit myself to a position that can come before the court. I will tell you in the context of the extent of The United States Constitution's protections, generally speaking, anybody in The United States is subject to protections in The United States Constitution. There are cases with respect to noncitizens that identify areas where noncitizens have that don't have the same degree of protection. A case I'm familiar with is noncitizens, again, which ruled did not have the right to make contributions, political contributions, when it was pertinent right to citizens. There's a Supreme Court case from the 1940s or 50s in which the Supreme Court concluded that it was constitutional. It may have been distasteful, some of the justices said as much, but it was not unconstitutional for the government at that time to deport non citizens based upon their political activity, which would be completely offensive to the the norms of freedom of speech and association and other fundamental person centered rights. But there are some judicially recognized limits with regard to the constitutional protection of citizens in in The United States. So generally speaking, the constitution protects everybody, but there are subjudicial exceptions.

[Tanya Vyhovsky (Member)]: That case from the nineteen forties and the fees allowing deportation for political views, you you said that that was in today's time, be viewed differently. I don't

[Michael (Mike) Drescher (Nominee)]: I I can't speak for I mean, it it was no. I if I if I left you with that impression, I'm sorry. I don't wanna

[Tanya Vyhovsky (Member)]: That's why I'm asking a

[Michael (Mike) Drescher (Nominee)]: clarifying question. I I was trying to answer your question by pointing to some areas where the the protections afforded by the US constitution do not extend to noncitizens, where they do extend to citizens. Whether I think that's a good idea or a bad idea, I probably shouldn't get into. I have strong feelings about it, but given the nature of this proceeding, I don't think it would be appropriate to get it.

[Tanya Vyhovsky (Member)]: But generally, speech, due process, those things are applied? Yes. Yes. I have more, but I don't wanna monopolize the time right now, so I

[Nader Hashim (Chair)]: I saw Sarah Mattos, you had your hand up. Oh, yeah.

[Michael (Mike) Drescher (Nominee)]: Yesterday, you touched on it a little bit just about going from the number two post to the number one post, and I've got a lot of correspondence just about how that came to be, and you said it's in statute. So I'm wondering if you can expand on how you went from the number two to the number one post here. So I joined the office in 2002. I served until last week under Republican and Democratic administrations almost exactly fifty fifty. I've been on the civil side for a number of years. I was on the civil side for a number of years. In September, in the 2023, president Biden's US attorney, Nicholas Karas, asked me if I would be willing to be his first assistant United States attorney. That's the title for the number two position in the office. I loved being just a line at USA, but I've been doing that job for a long time. I considered I wanted to support US attorney Karris. Not only was he the leader of the office, I cared about him quite a bit, and I wanted the office to succeed. I thought my experience experiences over the years were would be well used as the number two person in the office. And I agreed, and I became the first assistant United States attorney in September 2023 when US attorney Harris asked me to. So I ascended, if you will, to that position under the the previous administration. When the election went the way it did, US attorney Harris understandably decided it was time for him to resign effective on January 20, the inauguration day. Many US attorneys have made the same decision, some resigned sooner, some waited a little bit longer, but that was to be expected Simply because I've been in that position since September 2023, there is a federal statute that's called the Federal Vacancies Reform Act, which says under those circumstances, and it's not specific to US attorney's offices, it's it's it's governed by when the leader of an office such as that resigns. These number the the deputy, the first assistant, automatically becomes the acting head of the office. I had nothing to do with that. It happened automatically. But having been the first assistant, it was my my responsibility to take on. And And I'm proud of the way I manage the office. I'm proud of the way I looked out for my colleagues in the way I manage these habeas cases. I'm proud of representing my office the public as its leader in any number of forms. I'm proud of the opportunity to have met with victims and victims' families of some horrific crimes on behalf of the office. And Calgiv worked very closely with the amazing victim advocate within the office to facilitate those meetings. And and and so that's that's how I I I moved into that position and how I tried to conduct myself as as the head of the office. Know knowing that at any time, the administration could appoint somebody to be the attorney general could appoint somebody to be a a interim US attorney, or at any time, the president could nominate somebody to become a US attorney. On day one, on January 20, the new administration made appointments in four offices a rally country. They didn't do that in Vermont, and they never did that while I was in that position. But I was ready for the phone call to come in at any time and and some. Do I miss being in line with ARSA and defending civil cases and prosecuting criminal cases? It was that terrible. Being the manager of the office has a completely different set of challenges. It requires knowing about litigating cases, prosecuting cases, defending cases. But it transcends a lot of that with any admirations, including trying to decide whether I should resign or whether I should step up and do something knowing it was going to be unpopular. But to facilitate the system, I swore in hopes to protect and to also keep the office keep the office running as well as it was.

[Nader Hashim (Chair)]: No. That's that's very helpful just from

[Michael (Mike) Drescher (Nominee)]: all correspondence I've got. Puts to rest that it's a statutory federal statutory issue where level two becomes number one. And Like I said, I never pursued it. I never pursued it politically or otherwise. If the election had gone the other way or if the attorney terrorist had, stuck around, it it would not have happened. Thanks.

[Philip Baruth (Member)]: Sarah Baruth. So, less a question and more a commentary on what we're on on what we're all talking about which is you know, in my lifetime, I've never seen a crisis point in America like we're facing. So we have masked agents who are refusing to identify themselves in the streets, picking out not just people who are non citizens, but in some cases citizens who declare that they are citizens and are taken away, anybody who can take away. We have the government bent on sending people to third countries, or to third countries, unstable countries just as a way to remove these people without care for what happens to them when they land in those countries. And I think the average American looking at that can only feel as though this is a precursor to something worse. And unfortunately, at the federal level, Congress has neutered itself in terms of any sort of significant response to that. So the judiciary has become, as I would argue it was during the first presidency of it has become the boulder. And so you described your position as principled but unpopular. And I think, you know, as you describe it, and I believe you're doing so in good faith, I can accept that. But I think what you're seeing in terms of discourse is we need one, and and I believe as a people, we are demanding a response judicially to what is happening in terms of the weaponization of the system. So, you know, not just capturing detainees, but deliberately prosecuting people who have angered the president in some way. That has now become standard practice. So I think everyone is looking to the judicial system for helping and restraint of that coming wave. Now as you describe your your tone participation in it, you're protecting the system by performing your role in principle planning, representing your client in a principle planning. And and I noted before, he said that contributes to the resolution of the issue in court, and Moshe Medallic, for instance, goes for. But I do think that it's understandable that people would focus on the fact that you weren't moving or modality, but rather moving for modality and object. I know that oversimplifies, but I think that's the perspective that people are bringing to this is principled but popular enough or do we need, you know, several times it's been mentioned that people have refused to participate and lacked their positions. And I'm and I'm not not criticizing you for not doing so, and I don't think you have now resigned your position. Yeah. But as an explanatory framework for the reaction to a nomination, It it comes from a deep theater of what the federal government purports to do.

[Michael (Mike) Drescher (Nominee)]: So thank you for sharing that. I I articulated it the way you do, and I completely understand why people have those misgivings. I share many of them. For purposes of why I'm here, what I want would want to impress upon the committee and anybody who's listening is that my experience in the past year has reinforced to me personally and has, I think, demonstrated to the world the importance of what you were touching on, the importance of the judiciary as a protector of rights, as a check on unlawful executive action. Especially at this time, the importance of the judiciary being willing to do that. Now in in some circles, when the executive branch is going, it might be very popular, and it might be unpopular for a judge to make that same decision. In Vermont, it's different. But the important thing is to have a judiciary that is prepared to be a counterbalance to the massive power imbalance that exists between the government and the intelligence. Having experienced that firsthand in this context, I cannot overstate how much I appreciate the need for a judiciary to perform that role. Understand the positions I was advocating because they were adverse to people who had their immigration status revoked for the reasons that are in the public. I appreciated why people might have misgivings about me because I'm associated with that. What I've tried to articulate is I was doing my duty just like I if I'm confirmed to be on the force, intend to do my duty, whether that means it's popular or unpopular, but it would be done with the nine force being an important counterbalance to many of the inequities you pointed out, one of the questions you asked of the gentleman yesterday. What is the what is the role of the judiciary in the system where you've got such massive power imbalance? And I think that the the a short answer to that is to be a counterbalance by holding the executive to a very high standard, whether that's holding police or prosecutors to a very high standard, as they should be, or whether it's holding the executive branch or some other part of state for very high standard, especially when what they are doing is impacting the rights of liberty or the the quality of, an individual or a community's world. So, yeah, I've been in the thick of it this past year. And I couldn't resign, but I don't think I think the result of resignation would have prolonged the predicament of Ms. Ostrich and Mr. Pithawi. And it certainly would have caused more stress to the system. So I tried to do the right thing. I appreciate why people could see it differently. But if anything I want to impress upon this committee is that this experience has has reinforced to me personally, and I think to any of the educated observers, the critical need to have a judiciary and a Vermont Supreme Court in the state context that's gonna perform that way.

[Philip Baruth (Member)]: General Norris, if you have any questions. Well, certainly have a lot of questions to throw out here.

[Michael (Mike) Drescher (Nominee)]: I have a couple, actually. I would ask the same question that I asked of the other candidates as far as some people perceive your lack of state court and so on and so forth, insufficient. How would you respond to that? So I have a handful of responses to that. First one isn't, I think I understand why they're concerned, first of all, because of the job I've had for the last twenty four years. But I think it overly discounts the formative stage of my career when I was in private practice and the scope of the work I had in private practice, which included three jury trials that included my first day appearing in court was at a family court proceeding that was supposed to be sealed, but a reporter was there before then, judge Scogland, who asked to open the proceedings. And the first time I examined a witness, it was the TV cameras were rolling and and it was in Barrie, and it looked like we were representing the state that had recused from a mental health proceeding involving somebody who had actually committed a homicide who had been voluntarily committed. So I've been in family court. I appeared before an environmental review board. I appeared in front of the public service board. I participated in these three appeals to Vermont Supreme Court arguing one and three others. And so I don't want people to think I don't have significant state court specific experience and state agency specific experience. On top of that, when you are in federal court and when you are representing the federal government and federal court in civil cases, especially in personal injury or court cases, it is Vermont law that applies. So in in the civil on the civil side of my practice in the US attorney's office, frequently, were applying state substantive law. And so I'm familiar with with the the state substantive law with regard to political entry. And on the criminal side, many, many, many of our cases start with state initiated or local initiated prosecutions where state issued search warrants are issued. Sometimes they start with cases that were brought by state's attorney's offices. And we have to assess the quality of those investigations and the state procedure that applies. And so it was necessary to be familiar with that. Third, generally speaking, the rules of procedure between state and civil courts are the same, whether it's civil procedure, criminal procedure, or the rules of evidence. So there there are a couple of idiosyncratic works here and there that are in distinction, but they are overwhelmingly the same. So the the process is similar. And in addition, I think there is some precedent for people coming from the US Attorney's Office to the state bench and having established themselves as preeminent state judges, Helen Tour comes to mind. More recently, Tim Tomasi. He had experience in the attorney general's office. Judge Tomasi, Judge Dougherty, and most recently, judge O'Yan. In addition to all of that, the judicial nominating board having taken a very hard look, including, as this committee is, to the whole body of my work, is that I was still highly qualified for this job, despite the fact that I've been working for the federal government for the last seven years. So I'm not quite sure how to phrase this next question. We're hearing a lot of questions really pointing fingers, but your response to most of these is you're simply doing your job. So are you comfortably morally with how it was handled? And in hindsight, you've done anything different? I mean, I don't think so. I don't think so. I appreciate the gravity of the questions. I appreciate the gravity of the concerns the chair and other senators have been and members of the public have expressed. I certainly appreciate, as I indicated, a profound impact those cases had on Minnesota's church and mister. But the but but but I did not waiver from the note I took. I did not make an unethical argument. I did not jointly misrepresent misrepresent any fact. I contributed from the way I was in to the to the path to resolution. I would I was doing my job even though it was even though it was unpopular. And I would if I were confirmed to be on the Supreme Court, I would do my job in the same way. I would adhere to my oaths. I would make sure individual rights were protected against governmental unreach. I would hold law enforcement who and prosecutor's officers, having been one myself, to a bench ordinarily bystander. Whether or not that's popular or not, that would be with the job requirements. I think the body of my work over the last thirty years working for an appeals court judge, handling, being being personally involved in at least 25 appeals before the federal or state appeals court to participating in other preparation of the offices of telework to the range of issues I've dealt with. When I was in private practice, a dispute between a subcontractor and a contractor, a property damage dispute or a court suit, or a landlord tenant dispute. I defended a postal a rural postal carrier in in traffic court while I was in AUSA because she was a postal carrier and was getting a ticket for driving in the middle of the the center console to investigate bring Bernie Spohneman, the justice, as one of the two AUSAs on that case managing the investigation with the support of office leadership at that time to prosecuting the most serious drug and gun and violent offenses. I've tried I've tried cases and lost. I know what it's like to lose an argument, to fail to persuade a jury. I know that angry I know the stress of being a lawyer before a federal before a court, before a trial court. The totality of that experience would be brought to bear in how I would manage myself if I were serving as an associate justice of the Vermont Supreme Court. And and I and I think that position would be the single best use of that experience. I agree. Yeah. So we both see that.

[Tanya Vyhovsky (Member)]: What do you assume is the role of the Vermont Supreme Court in this moment in time where we have challenged very real threats. I don't wanna say challenges. I wanna say threats to free speech, due process, separation of powers, government overreach, and and they're flowing daily. What do you see in the Vermont Supreme Court's role in talking about it?

[Michael (Mike) Drescher (Nominee)]: I'll answer it in two different ways. One is sort of the the nuts and bolts of adjudicating cases that come before it when there are cases before the court where the court has an opportunity to weigh in on the dynamic that we are in the middle of to approach those cases with certain biases in favor of our traditions in Vermont. Those biases being protecting individual liberties, recognizing the importance of recognizing the importance of taking care of each other. They have general values that make the bonds the bond and has informed the way the philosophy of court has conducted itself. Every case has to be assessed on its merits, and but every case should be approached with an eye towards equities at stake. So it sort of it doesn't both way. In sort of a better way, the court, as the manager of the court system, as a leader, as leaders in the legal community, where appropriate, without compromising the court's job as adjudicators of cases, impartial adjudicators of cases that come before it, recognize the problems that we're facing, Whether those problems take the form of Vermont specific challenges, such as trying to make sure that criminal defendants have adequate representation, making sure that litigants in other power imbalance situations, such as landlord tenant disputes, are afforded a fair opportunity to to pursue their rights. The the court needs to do what can and have regard. And it needs to recognize the imperfections of the system and not hide away from it. I think one of the questions you put to this poll yesterday described the system as meant like to be unfair or something to that effect. And, you know, the court should stand for the aspiration that the system should be fair and to recognize and deal with the inequality of state of California. There's only so much a state court can do in this mind given the nature of the federal and state court system, but the state court should, speak the truth to what's going on. And the state state court should demonstrate by its actions and by its decisions, how a judiciary should conduct itself politically with an eye towards protecting individual rights and and privy to the hands of justice. Adjudicating being to probably overuse the analogy to work the traffic lights on the path, the road to justice, so that people get there as efficiently as they can.

[Tanya Vyhovsky (Member)]: So you said this yesterday. I'm just repeating it. The bench should be apolitical, and I respect that. But human beings, individual members are not apolitical. And I wonder how you manage and acknowledge your own bias. Do you point opinions and privilege in seeking to sit in an apolitical bodies.

[Michael (Mike) Drescher (Nominee)]: Yeah. So one of the questions I think you put a call yesterday. It's like, you know, what have you learned later in life or something to that effect? It may not have been for me. May have been for somebody else. So, obviously, I was thinking about that. And sort of embarrassing me late in life is I have I come to appreciate the advantages that I took for granted growing up. You know, I I am blessed with two parents who have decided education and a work ethic who model certain ways of conducting themselves and modeled the points of honesty and support. And it was not until I was probably in my early forties that I began to appreciate that we do the good that I took for advantage. And part of that was because I was being exposed to people that were being prosecuted by my eye. Who, if they had had a comparable set of situation, being a violent, would be fabulously successful in anything they would have wanted. But they didn't have those advantages. It's it's it's it's either their fault nor mine that there's this disparity, but the fact that it is that the disparity is there, the courts should recognize that. And and, you know, I I I presume the court system now has implicit bias. I haven't asked anybody that's been. If it's not, it should be. And if I wanted for it, I would advocate strongly for it. Would if I'm on the court, I would reach out to people who represent the marginalized communities to to get their perspective on how things work. I'm thinking that the governor general's, for one, and other members of the defense were. And so, yeah, I hope I'm hopeful that we saw some leadership.

[Tanya Vyhovsky (Member)]: Can you tell me how many times that you did make the mistake and try to get the damage back?

[Michael (Mike) Drescher (Nominee)]: I yeah. The first one that comes to me in line was a case a criminal case I tried, and it resulted in a not guilty verdict. The defendant testified. And when a defendant testifies, and he's prosecuted him, so that's big part of the case. It's frequently dispositive. And I, you know, asked the defendant lots of questions that I thought were relevant, and the jury came back with a not guilty verdict. And so I the the beauty of the not guilty verdict is that you don't know what you're doing wrong. Maybe we didn't do anything wrong. Maybe it was a case that was destined to be acquitted because there was never enough evidence to prove beyond reasonable doubt despite we thought there was. But in hindsight, I made lots of mistakes in how I cross examined the the defendant. I made mistakes in how we argued the case to the chairman. And what the way I handled it was I tried to recognize those mistakes, try to identify those mistakes, and and frankly learn from them. Early on in my career, in an appeal to the second circuit, I was overconfident. I was asked questions that I was not that they could answer about the implications of their takes. I still feel the embarrassment and stress of not being able to answer that question. And there's no better way to learn how to avoid a mistake than than suffering from personal. They must be a mistake that's not. Those kind of losing a mind. But, I mean, I make you know? I make mistakes all the time. Right. And I and I try to acknowledge what

[Nader Hashim (Chair)]: I do and figure out

[Michael (Mike) Drescher (Nominee)]: how to avoid making it.

[Tanya Vyhovsky (Member)]: I'm curious what your stance is on use of the death medicine.

[Michael (Mike) Drescher (Nominee)]: So there is a in Vermont, which I think is a safety principle position. You may be asking because in the past year, the office I just left, had instituted, and has has filed notices to seek the death penalty. In the federal system, that decision is made by the attorney general. It is not made at the local level. You know, I and those notices were filed, and I did not resign. I if if I thought the death penalty was abs so abhorrent that it should not have been pursued, I would have resigned. I wanna be very careful not to comment on those cases because they're pending, and I don't wanna I don't wanna complicate the case for either side in in those cases. So I appreciate this is a roundabout way of answering the question that in the right circumstance, in the right rare circumstance, it would not be unreasonable to sue the death penalty provided the person on trial has the right resources to defend him or herself and provided you are sat I'm satisfied that that first of you've got to put through a fair process. And then for that, I'm confident. Any other questions?

[Philip Baruth (Member)]: Challenging. So

[Nader Hashim (Chair)]: I I I believe you're kind of wrong. I I there there's nothing here that I think is disingenuous. I have no reason to believe that at all. I believe you, and I think that I also recognize that in your previous role, you were under an immense amount of pressure in new and unusual circumstances, Hence, you're under an immense amount of pressure right now as well. At the moment, I'm I I still hold concern about decisions that you made in your role while under immense pressure. And based on what I know at the moment, it's it's my feeling that some of those decisions were adverse to some individuals' fundamental rights. With that being said, in the interest of fairness, I did mention yesterday that we are open to taking witness testimony. I did not want to imply that we will only take witness testimony from people who may be critical of the witnesses, and this also applies to miss Nolan, who I suspect is listening. If you or miss Nolan have witnesses who have direct experience with you that you would like to have testify, you are welcome to invite them and to let me know and to let our committee assistant know just as witnesses who may be critical of your nomination have an opportunity to testify, witnesses who have direct experience, with you on this note. I just wanna make that clear. I don't know if it was clear yet today, but I want this to be a fair and balanced process. So we will leave this open for about a week. I'm suspecting we will receive requests to testify, and we will hear that testimony. Any documents that we receive will be forwarded to you and miss Nolan, depending on who they are relevant to. And you will also have the opportunity to respond and follow-up on any testimony that we that the committee receives. Committee, is there anything any final comments or requests before we take the question?

[Philip Baruth (Member)]: The only thing I'll add is that once this committee votes nominations to the floor and then they have to sit in the floor and I believe five days on the calendar. And then there's some discretion about when to pursue them after that based on making sure everybody's present and other considerations. The week timeline in here is followed by about a week making it to the floor and then nothing about it. There's, I have a little bit of latitude in terms of my blatantly burning from it, which I think is efficient as possible.

[Nader Hashim (Chair)]: Thank you. Mr. Gretcher, is there anything final that you'd like to share with us?

[Michael (Mike) Drescher (Nominee)]: I want to say thank you. I appreciate that these positions come up rarely, and I appreciate why the nominations get scrutinized and make sure it's not. I've been subjected to judicial authority for the entirety of my career. I I know how important it is for that authority to be exercised pragmatically and on a principal basis, we have for rights of individuals. And I would pledge that if I would confirm to be on the court, I would conduct myself in that manner and would advise my. Thank you very much, and I appreciate the opportunity to respond to any kind of. Of course. Thank you. Appreciate it. Okay.

[Nader Hashim (Chair)]: Maybe we will take break here if we have some milk. We'll be taking it up here in a few minutes. Let's come back and stop at 10:55.