— Gupta, at the hearing
During the Trump years, Gupta was a leading advocate for criminal justice reform and more progressive policing.
Now, she is President Biden’s nominee to be associate attorney general, the No. 3 position at the Department of Justice and one of the few federal offices with any say over “defunding the police.”
Some of the measures Gupta recommended to lawmakers just last year, or as an ACLU lawyer earlier in her career, go much further than Biden’s agenda. Lo and behold, they were no longer her positions by the time of her Senate confirmation hearing on Tuesday.
Is this a flip-flop? Is that a flip-flop? Let’s take a look.
Police departments are funded at the local level, but the associate attorney general, among other responsibilities, oversees what can be hefty federal grants for local law enforcement.
We should pause a moment and explain what it means to “defund the police.” Only in rare instances are liberal advocates calling for the outright elimination of police departments. Proponents by and large want to redirect some funds now spent on police forces to items such as education, public health, housing and youth services. The idea is that low-income communities would become stronger — and less in need of policing tactics — if root problems were addressed.
Under this concept, some police officers would be replaced with trained social workers or specialized response teams in an effort to let police focus on violent crime, not drug overdoses or homelessness. The theory is that police would be better positioned to deal with rapes and murders if they were not required to deal with other social ills that sometimes lead to community confrontations with police.
Gupta said several times at the Senate hearing that she does not support defunding the police. In November 2015, as an Obama Justice Department official, she testified in support of increasing funding for the Community Oriented Policing Services (COPS) program of federal grants to local police departments. She has also called for increases to recruitment, mental health and officer assistance funding.
A Biden-Harris transition spokesman noted that Gupta has been endorsed by the Fraternal Order of Police (which is notable because the union endorsed former president Donald Trump in 2016 and 2020) and other major law enforcement unions.
As head of the Justice Department’s civil rights division in the Obama administration beginning in 2014, Gupta oversaw consent decrees with local police departments, which required increased funding resources. She also oversaw sensitive investigations into police departments in Baltimore, Chicago and Ferguson, Mo., after widely covered police shootings of unarmed Black men in those cities. Her office issued tough reports and recommended a series of changes in each case.
“In executing the duties of her office, Ms. Gupta was in regular contact with the FOP on matters of mutual concern or interest,” the FOP national president, Patrick Yoes, wrote in a letter to the Senate Judiciary Committee. “She always worked with us to find common ground even when that seemed impossible. Although in some instances our disagreements remain, her open and candid approach has created a working relationship that is grounded in mutual respect and understanding.”
But here’s the issue.
In her current job, as president and chief executive of the Leadership Conference on Civil and Human Rights, Gupta emerged as a high-profile critic of the Trump administration and recommended a series of police changes during a Senate hearing last year.
Gupta testified to the Senate Judiciary Committee in July that it was “critical for state and local leaders to heed calls from Black Lives Matter and Movement for Black Lives activists to decrease police budgets and the scope, role and responsibility of police in our lives” and called for “shifting our approach to public safety away from exclusive investments in criminalization and policing toward investments in economic opportunity, education, health care and other public benefits.”
That’s exactly what “defunding the police” is all about. Now Gupta says she has never supported the idea.
“She was speaking on behalf of her organization to reflect the consensus position among civil rights groups — not in her personal capacity — and has never personally supported defunding the police in any sense,” Andrew Bates, a spokesman for the Biden-Harris transition, told us. “Across her time in public life, she has secured increases in funding for law enforcement, including in particularly difficult circumstances. As she underlined in the hearing, and as President Biden ran on, she supports providing more resources to police by boosting funding for the COPS program by $300 million.”
It wasn’t the only position she disavowed. In her Judiciary Committee testimony from July, Gupta called for an end to qualified immunity. That’s the legal principle that shields government officials, including police officers accused of using excessive force in some cases, from having to face lawsuits for their conduct on the job.
“End qualified immunity: Congress should end qualified immunity in Section 1983 claims,” Gupta testified last year, lamenting that under the current system, “law enforcement agents may have violated a person’s constitutional rights, but they escape liability if the unlawfulness of their acts was not sufficiently obvious.”
At her confirmation hearing Tuesday, Gupta said she was merely “representing the consensus views of the Civil Rights Coalition at the Leadership Conference.”
Did she still support ending qualified immunity, Sen. John Cornyn (R-Tex.) asked. “I will say I don’t come in supporting it, elimination, one way or another,” Gupta said. “My duty if confirmed as associate attorney general will be to follow the president’s lead on these kinds of policy issues, so long as they’re consistent with the law.”
As the ACLU’s deputy legal director in 2012, Gupta co-wrote an opinion article calling on states to decriminalize possession of small amounts of “all drugs,” a position she disavowed at her Senate hearing Tuesday.
“States should decriminalize simple possession of all drugs, particularly marijuana, and for small amounts of other drugs,” Gupta and the ACLU’s Ezekiel Edwards recommended in the HuffPost article, among other measures such as eliminating mandatory minimum sentences and reducing penalties for drug offenses.
When Cornyn asked, Gupta said she did not support decriminalizing all drugs, and the hearing continued. Later, Cornyn asked a second time, noting that Gupta had not addressed the HuffPost article in her earlier answer. She acknowledged she had changed her views since 2012. “My position on this has evolved,” she said.
The Pinocchio Test
Gupta acknowledged to the Senate Judiciary Committee that her views on decriminalizing “all” drugs had “evolved” since 2012. Years have passed, and people change their minds all the time, so we wouldn’t dwell on it for a fact check if it was the only questionable claim from this hearing.
But it wasn’t.
Gupta also claimed to have no view on qualified immunity, despite having pushed lawmakers to end it only months ago, when she described it as an abomination.
She reversed herself on defunding the police. In July, Gupta testified before the same Senate committee that state and local governments should “decrease police budgets and the scope, role, and responsibility of police in our lives” and shift resources “toward investments in economic opportunity, education, health care, and other public benefits.”
The Biden team says it was another issue she did not really believe in; she was merely communicating the consensus views of her coalition. Well, what did she believe in then? What does she believe in now? And how are observers supposed to tell the difference?
For this tango of previously unacknowledged flip-flops, Gupta earns an Upside-Down Pinocchio.
An Upside-Down Pinocchio
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