The le­gacy of Eric Holder

The in­ter­ests of Obama came be­fore the ad­min­is­tra­tion of jus­tice

The Washington Times Weekly - - Commentary - By Hans von Spakovsky and John Fund

As At­tor­ney Gen­eral Eric Holder fi­nally de­parts, he leaves be­hind a de­mor­al­ized Jus­tice Depart­ment that has been politi­cized to an un­prece­dented de­gree. At­tor­neys gen­eral are ob­li­gated to en­force the law in an ob­jec­tive, un­bi­ased and non­po­lit­i­cal man­ner. They must demon­strate the high­est re­gard for the best in­ter­ests of the public and their sworn duty to up­hold the Con­sti­tu­tion and the laws of the United States. Prior at­tor­neys gen­eral of both po­lit­i­cal par­ties, such as Benjamin Civiletti, Grif­fin Bell, Ed Meese and Michael Mukasey, have ful­filled that duty to the high­est eth­i­cal and pro­fes­sional stan­dards.

But not Eric Holder. He put the in­ter­ests of his po­lit­i­cal boss first, and the in­ter­ests of the ad­min­is­tra­tion of jus­tice a very dis­tant sec­ond. When Pres­i­dent Obama bent, broke, changed or rewrote the law, the per­son at his side ad­vis­ing him how to do it was Eric Holder. All the while, he main­tained a fa­cade of re­spect for the rule of law, some­thing for which he and the pres­i­dent have, at times, shown ut­ter contempt.

Mr. Holder’s fail­ure to en­force fed­eral laws such as our im­mi­gra­tion statutes on a whole­sale ba­sis is a par­tic­u­larly acute be­trayal of the most ba­sic stan­dard that ap­plies to the at­tor­ney gen­eral. In­stead of act­ing as the na­tion’s chief law en­force­ment of­fi­cer, Mr. Holder in­stead has acted as the po­lit­i­cal lawyer of an overly par­ti­san pres­i­dent. Per­haps that’s why Mr. Holder has one of the low­est ap­proval rat­ings of any public of­fi­cial.

The re­cent cases in which judges have found Jus­tice Depart­ment pros­e­cu­tors to have en­gaged in pros­e­cu­to­rial abuse dur­ing Mr. Holder’s ten­ure show how much this high-level cor­rup­tion has also seeped into the lower lev­els of the depart­ment.

In a failed pros­e­cu­tion of a peace­ful abor­tion pro­tester, for ex­am­ple, a fed­eral judge re­marked on the nearly to­tal lack of ev­i­dence of any vi­o­la­tion of the law. The pro­tester had been tar­geted to chill the po­lit­i­cal speech of pro-life ad­vo­cates. In an­other case in­volv­ing po­lice of­fi­cers in New Or­leans, a fed­eral judge found the Jus­tice Depart­ment had com­mit­ted “grotesque pros­e­cu­to­rial abuse” and com­plained about the “skull­dug­gery” and “per­fidy” of Jus­tice pros­e­cu­tors.

The po­lit­i­cally mo­ti­vated hir­ing in the civil ser­vice ranks that has gone on in parts of the Jus­tice Depart­ment, such as the Civil Rights Di­vi­sion, guar­an­tees that rad­i­cal ide­o­logues will con­tinue to per­me­ate the depart­ment for years to come. As for­mer fed­eral pros­e­cu­tor An­drew McCarthy has said, un­der Eric Holder the Jus­tice Depart­ment has be­come a “full em­ploy­ment pro­gram for pro­gres­sive ac­tivists, race-ob­sessed bean coun­ters (re­dun­dant, I know), and lawyers who vol­un­teered their ser­vices dur­ing the Bush years to help al Qaeda op­er­a­tives file law­suits against the United States.”

The legal the­o­ries ad­vanced by the ad­min­is­tra­tion have been so far out­side of the main­stream that the U.S. Supreme Court has ruled against Mr. Holder’s Jus­tice Depart­ment unan­i­mously al­most two-dozen times. Those cases have ranged from the Hosanna-Ta­bor de­ci­sion, where the Jus­tice Depart­ment claimed the re­li­gious free­dom clause of the First Amend­ment did not pro­tect the hir­ing de­ci­sions of a church, to the Sackett case, where the Jus­tice Depart­ment tried to pre­vent a fam­ily from de­fend­ing it­self in court and con­test­ing a lu­di­crous ad­min­is­tra­tive or­der from En­vi­ron­men­tal Pro­tec­tion Agency bu­reau­crats that would sub­ject them to a fine of up to $75,000 a day.

Many of those cases have a com­mon theme: a fright­en­ing view of un­lim­ited fed­eral power, one un­tem­pered by the Con­sti­tu­tion and the Bill of Rights.

Eric Holder has ag­gres­sively used the enor­mous power of the Jus­tice Depart­ment to abuse the lib­erty and eco­nomic rights of Amer­i­cans, to ma­nip­u­late racial pol­i­tics and drive a wedge of hos­til­ity deep into our so­ci­ety, and to ex­ploit the ad­min­is­tra­tion of jus­tice as a po­lit­i­cal tool to ben­e­fit his pres­i­dent and his po­lit­i­cal party.

There is no way to know how long it will take to re­pair the dam­age he has done. One thing we do know — it will take a new at­tor­ney gen­eral with the po­lit­i­cal willpower and stead­fast­ness of a kind that is rarely seen in Wash­ing­ton.

Un­for­tu­nately, it is un­likely Loretta Lynch will clean up Mr. Holder’s mis­be­got­ten le­gacy. She made it clear in her con­fir­ma­tion hear­ings that she did not dis­agree with a sin­gle act of Mr. Holder or Mr. Obama. Ac­cord­ingly, her ten­ure will prob­a­bly just be Holder 2.0.

To para­phrase Mark Twain, we won’t be in­vited to at­tend Eric Holder’s go­ing-away fes­tiv­i­ties at the Jus­tice Depart­ment, but we cer­tainly ap­prove of those fes­tiv­i­ties, since they mean that one of the worst at­tor­neys gen­eral in re­cent mem­ory is fi­nally leav­ing the depart­ment. Hans von Spakovsky is a se­nior legal fel­low at the Her­itage Foun­da­tion (her­ and for­mer Jus­tice Depart­ment lawyer. John Fund is the na­tional af­fairs cor­re­spon­dent for Na­tional Re­view. They are the coau­thors of “Obama’s En­forcer: Eric Holder’s Jus­tice Depart­ment” (HarperCollins/Broad­side, 2014).


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