Eric Holder was the most political, biased, inept and undemocratic U.S. Attorney General in at least 70 years, with the exception of Nixon’s AG, John Mitchell, who went to jail. And the Attorney Generals have been uniformly terrible in this period; being one of the two worst takes talent, determination, broken ethics alarms and wretched judgement.
Those who praise Holder either are doing so without any idea about his record, or because they want the justice system in the United States to be racially and ideologically biased. The results of the latter, which is Holder’s real legacy, can be seen in the rising distrust between races, and the frequent description of Holder as being Obama’s “scandal goalie.” The latter isn’t completely fair, because the news media has also been the President’s scandal goalie. The proof: few of the mainstream media retrospectives on Holder’s tenure mentioned the Justice Department’s refusal to hold a thorough and open investigation of the still unfolding I.R.S. scandal, which should have, and under any Republican administration, would have, included an independent prosecutor, because the news media would be screaming for one. This abdication of duty and naked partisanship by Holder alone condemns him. Unfortunately, there is a lot more.
You can begin with the “inside baseball” reports that Justice, under his administration, is a confused mess. That’s hardly surprising, for since the President eschews management and oversight, this is the tendency up and down the system. Without well-regulated policies and oversight, partisan meddling flourishes.
I have neither the time nor the energy to detail each and every example of Holder’s toxic racial and partisan biases, or his flat out ineptitude; there are too many to list, and I am sure I don’t know about some whoppers. Never mind: a fraction of the list would have made the resignation of any other Attorney General mandatory and beyond debate. Holder is black, and this guaranteed that short of setting fire to the Supreme Court, he would only leave when he was ready. That alone is disgusting.
Here are some other Holder achievements:
1. “If Holder had his way, Khalid Sheikh Mohammed, the mastermind of the Sept. 11 terrorist attacks, might now be on death row,” says ABC. This is the media spinning for Holder: his efforts to have the terrorist tried in New York City was when I first realized how out of his depth he was.
In the contentious Congressional hearings on the matter, Holder told the nation that“Failure is not an option. These are cases that have to be won.” “That have to be won”? Failure, as in acquittal, is “not an option”? This was a confession of the muddled, simultaneously alpha and omega false logic that would become a hallmark of Obama World. Holder proclaimed that the world had to see the United States give its enemies a fair trial, then told Congress that the “fair trial” he was proposing was a show trial, a kangaroo court, in which justice meant a guilty verdict. It was a stupid, stupid thing for any lawyer, much less an Attorney general to say. Tragically, it was no aberration.
2. Holder refused to defend the Defense of Marriage Act, though it was a law passed by Congress and signed by a Democratic President. I think he should have been impeached for that. Slate, among others, says that he was “vindicated” because the Supreme Court held the law unconstitutional. They didn’t vindicate his refusing to do his job. It is not the prosecutor’s duty to veto laws duly passed by the legislature and signed into law, nor should he have the power to do so. Holder’s precedent took a bite out of the rule of law, and stood for stunning arrogance. He viewed DOMA as a civil rights incursion: gee, what other laws don’t you like, sir? We found out: he didn’t like drug laws, because he sympathized with the poor, black criminals that tended to violate them. His solution? Minimize the penalties, and send the message that abusing illegal drugs was no big deal. Democrats wanted to curry favor with the Hispanic-American voting bloc? Holder was eager to assist by not enforcing the Federal laws, and by doing everything he could to prevent the states from policing illegal immigrants as well. In a system of laws, favoring authorities that pick and choose which to enforce according to their political beliefs is endorsing obstruction over process, and politics over justice.
3. When acting unconstitutionally suited Holder’s partisan masters, however, he would do it. In 2013, the Justice Department seized Associated Press phone records, and monitored Fox News reporter James Rosen following a story he published in 2009 on Iran.
4. Holder oversaw specious and intellectually dishonest justifications for the U.S. policy of assassinating suspected terrorists without providing them with a trial, and or any evidence that they were planning imminent attacks. By defining the word imminent in the broadest possible way, this advocacy for the elimination of due process equaled the worst deceits of the Bush Torture Memos, the only difference being an official pass from the Obama-enabling press. The policy, basically a license to murder, ensured that assassinations could be carried out against anyone who the U.S. government feared if the person was located on foreign soil and could not be captured.
5. Then there is Operation Fast & Furious, the proof positive that Holder was going to get away with anything and everything. The Bureau of Alcohol, Tobacco, Firearms and Explosives lost an estimated 1,400 weapons in Mexico, among them: two guns that were used to kill U.S. Border Patrol agent Brian Terry in December 2010. Holder is the supervisor of the ATF, but testified before the House Judiciary Committee that he had only known about the sting named “Operation Fast & Furious,” for a few weeks. Then investigators uncovered memos on Fast & Furious sent to Holder in July 2010. A reasonable conclusion was that Holder had lied under oath. Oh, no, Holder “explained,” he never read the memos. He was incompetent, not culpable. Despite all evidence to the contrary, Holder indignantly denied a DOJ cover-up, saying that“This operation was flawed in concept, as well as in execution,” and refusing to be held accountable for his own department’s deadly botch. Bolstered by Obama’s assertion of executive privilege, which prevented future prosecution, Holder refused to turn over documents related to the fiasco. Congress held Holder in contempt in June 2012, and he thoroughly deserved it, because the American people had a right to know the extent of the bungling in the highest reaches of the Obama Administration.
6. Although the supporters of Holder claim that his legacy was built on a dedication to civil rights, this was only in the narrow areas where the Democratic Party saw political advantage. He was not concerned, for example, in the civil rights of Americans when the government wanted to use modern surveillance technologies to spy on them. In the 2012 Supreme Court case U.S. v. Jones, Holder’s Justice Department argued that the police did not violate the Fourth Amendment by attaching GPS devices to cars so they could know where they were going and where they had been, with that evidence used to acquire evidence. incriminate, try and imprison. The Supreme Court rejected that position unanimously, because it was a mark of a burgeoning police state.
7. When Democrats wanted to create racial divisions, however, to rile up the base, Holder reported for duty. He assisted the unconscionable effort, still ongoing, by Democrats to characterize a responsible and necessary protection of the integrity of the voting process—photo IDs—as a racist plot, though the measure had long ago been approved by liberals, and only recently became stigmatized as “voter suppression.”
8. Holder’s major wound that he inflicted on the nation was his clear intention to project the image of a black Attorney General whose concern was minorities, whose assumption was that whites were the enemy, and whose biases were front and center. An early cue was his department’s abandonment of charges against two New Black Panthers who stood armed outside a Philadelphia polling place. The controversy, assisted by the media, devolved into an argument over whether this was an example of Justice receiving orders from the political Machiavellis in the White House, or just a lousy, bigoted example of “discretion.” A long official investigation found the latter, but either way, the message sent to white Americans was that this Justice Department was not especially interested in protecting their rights. In the Trayvon Martin shooting and the Ferguson episode, two local issues that should not have been his concern, Holder made statements, engaged in gestures and took actions that signaled his allegiance to the black victims, and opposition to the white (or “white Hispanic”) individual accused. He repeatedly spoke collaboratively before Sharpton’s followers, endorsing their diagnoses of a racist nation, and, by extension, a white population aligned against African Americans. Especially revolting was his repeated attempts to duck legitimate accountability for, you know, being terrible at his job, by race-baiting, such as when he explained Congressional criticism of his handling of Fast & Furious—a career-ender for any white Attorney General, or an appointee of any President who believed in accountability, by saying in 2011…
“This is a way to get at the president because of the way I can be identified with him, both due to the nature of our relationship and, you know, the fact that we’re both African-American.”
It shouldn’t have to be said, but I’ll say it anyway: the job of Attorney General, like the job of President, must be, and must be seen as being, absolutely neutral regarding race. Holder intentionally projected himself as an AG who cared more about minorities than non-minorities, increasing distrust, undermining respect in the justice system, and dividing the nation.
9. Not that he wasn’t feckless and incompetent too: for example, Holder’s Justice Department, almost certainly to ensure later campaign support, allowed multiple corporate criminals to escape serious punishment. For example, the Justice Deportment made a ridiculous plea deal to allow Halliburton executives to avoid jail time after they destroyed evidence of their culpability in the Deepwater Horizon oil spill. The company agreed to pay the maximum allowable fine of $200,000, accepted a three-year probation; continued its cooperation with the government’s criminal investigation (which it had to anyway), and made a voluntary contribution of $55 million to the National Fish and Wildlife Foundation to clean off those oil-covered sea birds and otters. It could do this with the confidence that hard-core Democrats, being total hypocrites, would still attack the Republican party as a cadre of soulless corporate fat cats and insist that any criticism of Holder’s Justice Department and his boss’s administration was rooted in racism.
And again, the amazing thing is: That’s not all.
Any politician, elected official, pundit, columnist, civil rights leader or President who declares that Eric Holder was a wonderful public servant and a great American is telling you one of three things, or all of them:
- They are liars.
- They don’t know anything about Eric Holder, or
- They believe the integrity of the nation’s laws should be warped and the public trust should be forfeited for a race-based, partisan agenda.
I don’t know about you, but I’ll be taking names.
Ethics Alarms 
First para “retched judgement” is kind of poetic but I think you meant to say “wretched judgement”
Totally agree that commending this guy has ‘signature significance’
Unconscious play on words. I guess I’ll fix it.
The question is whether you are grading on a curve. In absolute terms, he has been an unmitigated disaster, but when he is compared to the likes of Alberto Gonzales, John Ashcroft, Janet Reno, Edwin Meese, and especially John Mitchell of Watergate fame, he manages to ooze into the middle of an odiferous pack.
I would add the failure to prosecute Clarence Thomas for his knowing false statements on his financial disclosure reports, the failure to prosecute Bush and Cheney for publicly admitted war crimes, and the failure to prosecute former Bush DoJ Civil Rights Division head Bradley Schlozman for repeated violations of the Hatch Act, http://www.justice.gov/opr/oig-opr-iaph-crd.pdf. The list of failures is distressingly long, but the same could be said for his august (choke!) predecessors.
I would respectfully disagree with your complaint that he refused to defend DOMA, because to do so would have subjected one of his key lieutenants to the wilting cross-examination of a Judge Posner. Justice Scalia told us a decade ago that there was no way to win, and even trying would have been a waste of taxpayers’ money.
“Then investigators uncovered memos on Fast & Furious sent to Holder in July 2010. A reasonable conclusion was that Holder had lied under oath. Oh, no, Holder “explained,” he never read the memos.” This excuse, I find believable. Memos can be overlooked, or filtered out by flacks. Remember “Bin Laden determined to strike in US”? Were Bush #43, Condi, and Dick Cheney equally incompetent? If you said yes, I would agree.
I concur with your complaint that Holder’s DOJ let the banksters and BP get off with slaps on the wrist. The banks see fines as a cost of doing business. Perhaps it is time that we do what other countries do: allow ordinary citizens to prosecute corporate criminals.
On balance, I’m glad he’s gone. But it will take us two years to figure out that the new boss was same as the old one.
The list of lousy AG’s is indeed depressing, but the racial bias and division Holder added puts him well ahead of the pack. Gonzalez wasn’t there long enough to do much more than politicize the Asst. US attorneys and lie about it. Ashcroft was a mixed bag. Meese a political hack; Reno an incompetent who had dirty pictures of Clinton or something.
Prosecuting a President for “war crimes” is ridiculous, and will never and should never happen absent a POTUS who isn’t making a good faith effort to protect the nation, however misguided: this would have been a political prosecution, and would guarantee that Obama’s droning got the same from a GOP AG. This is the one thing Holder did right.
Your partisan bias is showing—you really need to work on that. “Were Bush #43, Condi, and Dick Cheney equally incompetent? If you said yes, I would agree.” Oh, balderdash. And FDR let Pearl Harbor be bombed. We’re not talking about the same kinds of memos here. ISIS says it is ready to hit the US—that’s not sufficient warning to find the President liable if all the systems fail and they do it…as with 9-11.
Boy–is it even possible to accurately point out the absurd incompetence of someone in Obama’s administration without a Democrat bleating, “But Bush..!!!”
The post was about Eric Holder. If you want to believe others were as bad or worse, swell—it doesn’t change the fact that he was inexcusably dishonest, corrupt, and incompetent.
No, I don’t think it’s possible. In fact, it seems to be some sort of neural reflex.
The first rule of ethics is consistency; the tu quoque argument tests your level of consistency. I don’t care what your rule of decision is, as long as it is applied consistently. Kindly correct me if I am in error here, but this is a blog about ethics, not politics. My sole interest here is in examining the process we call ethical analysis.
As I see it, there are two ethically permissible conclusions: That Bush #43 (9/11) and Holder (F&F) were both incompetent, or that neither were. It all depends upon where you set that bar. I don’t care where you set that bar, as long as you use it consistently. I can’t say for certain that Holder ever saw the F&F memos, and can understand how they might have escaped his attention, but if you stake out the position that his failure to ferret out, read, properly process, and remember the F&F information is inexcusable (a position I can respect), how can you give Bush #43 and Condi a pass?
Jack: “[Not prosecuting Bush and Cheney for war crimes] is the one thing Holder did right.”
If we conclude that waterboarding was a war crime when Tojo’s boys did it, despite the eminently plausible excuse that they were arguably doing it to “protect the nation,” how are we to give our George W. Tojo a pass? The law of war is clear and besides, we wrote it. All States have an affirmative duty to investigate “war crimes” allegedly committed by their nationals or armed forces and where appropriate, prosecute the suspects. Our own official position is that a State cannot grant amnesty to the perpetrators of war crimes in toppled regimes sua sponte, even in the interest of national reconciliations like South Africa’s. (See http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1015&context=lcp for a precis.) And whether for good or ill, we defined “waterboarding” as a war crime by prosecuting Japanese soldiers for their acts. See, the CAT.
Similarly, use of depleted uranium as a weapon meets the definition of a war crime, since “[t]here is “compelling evidence” to link the increased numbers of defects and miscarriages to military assaults [according to] Mozhgan Savabieasfahani, one of the lead authors of the report and an environmental toxicologist at the University of Michigan’s School of Public Health.” http://www.independent.co.uk/life-style/health-and-families/health-news/iraq-records-huge-rise-in-birth-defects-8210444.html. Saddam Hussein allegedly used WMD against the people of Iraq (there is doubt as to whether he did it, according to former War College professor and CIA analyst Stephen Pelletiere, who maintains that what happened in Halabja was consistent with use of cyanide-based agents, which Saddam did not have), and assuming that it was established that he did, his acts were war crimes. But if we stake out the position that all war crimes committed by other leaders must be prosecuted, how do we give our own guys a pass?
The primary problem with the excuse of exigent circumstances is that the exception can swallow the rule. If our public officials can hide behind the redoubt of sovereign immunity, why couldn’t a Saddam Hussein? His acts and methods were admittedly brutal, but you never had to worry about an ISIS while he was in charge. If exigent circumstances works for Bush #43, it should also have worked for a Saddam Hussein. (My understanding is that he raised that defense, to no avail.)
Don’t you use tu quoque analysis in your lectures on ethics?
Forgive me for going somewhat afield here, but as I see it, it illustrates the process.
Jack: “this would have been a political prosecution, and would guarantee that Obama’s droning got the same from a GOP AG.”
I would argue that Obama’s execution by drone of an American citizen in Yemen without due process is an act worthy of prosecution. And no, it is not a “political” prosecution. Either law exists to hold high public officials accountable, or “the rule of law” becomes an illusion. The law brooks no exceptions. No man is above the law.
Jack: “Boy–is it even possible to accurately point out the absurd incompetence of someone in Obama’s administration without a Democrat bleating, “But Bush..!!!””
I have a long list of grievances against Holder, but for you to declare him to be the worst AG since Mitchell necessarily invites such a comparison. If you grade him on the curve, he’s really not that bad, but it all depends on where you set your bar. No one can meet the standard of perfection, but that begs a larger question: What level of failure is acceptable? You have no problem with accepting a staggering level of failure and incompetence in federal judges. Why not in an Eric Holder?
Jack: “Your partisan bias is showing—you really need to work on that.”
You resemble that remark, and that is my point. I am using the tu quoque argument to test your rules of decision, which I presume to be an integral part of any proper ethical analysis. Why can’t I do that, Jack? More to the point, why shouldn’t I do that?
1. Bush II was a President, Holder was an AG. The standards are different. One was elected. One has much greater power. One can be dismissed. I’m not entertaining that comparison, Art. It’s intellectually dishonest, as is comparing the Al Qaeda warnings with memos to Holder regarding what was going on in his own Department, in a matter under his supervision. The latter is flat out incompetence. I have spoken to individuals in the intelligence community, and they explain that memos warning of potential attacks are constant and many, always. A judgement has to be made which really are threats, and when. By definition, when one occurs, all the focus is on that warning, though the correct assessment was made on many others. Your assertion is neither fair nor realistic, nor has it been substantiated by the many investigations of how 9/11 occurred. Not assuming that something that has never happened before will happen is a constant management, leadership, human problem, that suddenly becomes remarkable in 20-20 hindsight. Not knowing what is occurring under one’s own management is incompetence and negligence.
2. You can read my posts on torture here and on the Ethics Scoreboard (the link in on the site). We are in substantial agreement. I don’t have the time to reprint 10,000 words here. You understand.
3. I believe the whole concept of war crimes is hopelessly gray, and too subject to politicizing and emotionalization. I think that a case could be made for impeachment of a President on the grounds that torture violates the Declaration, but not criminal prosecution. War and ethics are anathema. My theater company recently produced “Judgment at Nuremberg,” and I moderated multiple post-show presentations by judges, lawyers, historians and philosophers. Like Abby Mann, the playwright, they reached no unassailable conclusions. I think the trials were a mistake; I think that if Japan had won, Truman would have been tried for war crimes, and would have been convicted—and that his conviction would have been no less valid than those in the actual trials.
People like war crimes prosecutions who believe war itself is a crime. It is also unavoidable, and when a nation is it in, the ultimate duty is to win, not to lose ethically.
4. You are a smart guy, Art—I should have to have to tell you all the ways this—
—absurd. But just to refresh your memory: none of those AG’s, however corrupt and/or political and/or incompetent (and Holder, unlike the rest, were all three) ever declared themselves first and foremost a WHITE Ag, and if they had, they would have been packing their bags. None ever called the country “a nation of cowards.” None ever ostentatiously sucked up to a lawless, racist miscreant demagogue and hatemonger like Al Sharpton. Michell worked to cover-up one major scandal—Holder refused to do his job on several, including those in his own department. And Mitchell, I repeat, went to jail: no Republican has ever declared him to be an “outstanding” AG.
Even graded on a curve, if done objectively, Holder is a disgrace—more so, because he had a duty to prove to racist skeptics that a black AG would still be a lawyer for all the people, white and black.
5. I have never said judicial incompetence was acceptable. I have said that I agree that it should not be subject to civil suit. Holder’s terrible decisions should similarly not be subject to civil suit.
1. Don’t get me started on The Reverend. I refuse to “go there.” 🙂
2. J: “I believe the whole concept of war crimes is hopelessly gray”
That was made clear at Nuremberg, where Justice Jackson confessed to Truman that the Allies had “done or are doing some of the things we are prosecuting Germans for.” The prosecutions were, as you quite correctly observe, “show trials” that even Andrei Vyshinsky could have been proud of, where the “tu quoque” defense was consistently ruled irrelevant. And while I would agree with you in questioning the propriety of even codifying rules of war, we HAVE codified them and incorporated them into our own domestic law. Consequently, we are stuck with the laws we have.
I am reminded of a tale from Kosovo, where a man was ordered to rape his own daughter, saying that he would be shot if he did not comply. He refused, so they told him that they would shoot his daughter instead, so he did. Is there no act so indecent (e.g., human experiments conducted by Nazi scientists on concentration camp inmates) that they cannot be said to violate jus cogens law? Your argument is no. Our laws say yes. While we might agree on waterboarding, our law does not. Which laws can our public officials willfully disregard, and why?
This really is a tough nut to crack, but the law is what it is, and under our laws, Bush and Cheney are war criminals. I don’t make the rules here. I merely endeavor to apply them equably.
3. J: “None ever called the country ‘a nation of cowards’ [regarding racial issues].”
You and I don’t have skin dark enough to understand it viscerally, but he is probably right. And one of those cowards is Obama. “[Holder] tried to revitalize the Justice Department’s Civil Rights Division and spoke with unusual candor about racial matters, becoming the chief surrogate on race for an African American president who felt less comfortable tackling the sensitive issue in public.” [WaPo, 9/25/14]
4. J: “Holder refused to do his job on several, including those in his own department.”
With respect to F&F, ABC News reports:
“The OIG investigation found that Attorney General Eric Holder was not aware of the strategy and tactics used in “Fast and Furious,” and turned up no evidence that Holder tried to cover up the operation, or mislead Congress about it. …
The IG report did find that a misleading letter that the DOJ sent to Congress was “troubling” because senior officials who were involved in drafting it knew, or should have known, that reckless behavior had occurred.”
The 500-page IG report is at http://www.justice.gov/oig/reports/2012/s1209.pdf.
This is why I asked what level of incompetence is acceptable. If Holder is to be taken to task for F&F, it is because his own subordinates — many of whom were career people he did not hire — didn’t adequately advise him. To borrow from Rummy, you take over the Department you have, not the one you want. This hit the fan early in his tenure, and began under the previous Administration. I’m not sure how much blame belongs in his lap. He might have seen the memos, and he might not have. And then, there is the old “plausible deniability” principle. To say that he refused to do his job on the facts we have is — at least, according to the OIG — a bit of a stretch.
As for the IRS scandal that really wasn’t, the Nixon Rule (it’s not the crime but the cover-up) applies, but if there is something rotten in Denmark, we shouldn’t know until the indictments are handed down. It would be rotten form for the DOJ to do its investigations in the press.
5. J: “Bush II was a President, Holder was an AG. The standards are different. One was elected. One has much greater power. One can be dismissed. I’m not entertaining that comparison, Art. It’s intellectually dishonest,”
Richard Clarke respectfully disagrees. “Former counterterrorism aide Richard Clarke had testified two weeks before that the White House had ignored warnings about bin Laden’s terrorist organization. Clarke said the Bush administration, including Rice, was aware of al Qaeda threats but did not treat them as ‘urgent.'” [CNN, 2004] Poor judgment, constituting incompetence? This was Condi’s bailiwick, and she could be dismissed. By your standards, there appears to be a facial equivalence.
Holder has to prioritize, and his agency’s mission was far broader than Condi’s. With respect, while there may or may not be a principled way to distinguish the two, I don’t believe the argument is dishonest per se.
6. J: “And Mitchell, I repeat, went to jail: no Republican has ever declared him to be an “outstanding” AG.”
It is easy to understand why Haldeman, et al. were disowned. But many Republican partisans have praised Ashcroft, Meese, and even Alberto VO-5. It sort-of works that way. You resign, and your homies eulogize you. Whether you deserve it is often beside the point.
7. J: ” Holder is a disgrace—more so, because he had a duty to prove to racist skeptics that a black AG would still be a lawyer for all the people, white and black.”
You are entitled to your opinion on this one, but I submit that reasonable people can disagree here. You prove that you are a lawyer for all of the by BEING that lawyer. There is no substitute for substance.
1. Agreed.
2. Ethically, war crimes don’t make sense. I agree that under the law as defined by the US elsewhere, Bush, Cheney, and a about a thousand other US officials are war criminals.
3. If true, it is not proper for an AG to say it. he is obligated to maintain the highest level of trust, and the (illusion?) of objectivity. Truth is not a defense.
4. he is accountable, he is responsible. If he didn’t know, he should have. “I didn’t know” was Obama’s defense with the NSA, IRS, Benghazi, and the ACA website fiasco. It was Hilary’s dodge on Benghazi. Leaders are obligated to be accountable. It literally doesn’t matter if they knew. Ditto Rumsfeld on Abu Ghraib (for which he attempted to resign, and properly so.)
5. That’s Clarke, who is just one opinion, and hardly an unconflicted one or an unimpeachable one, as you know. And this is purest hindsight. If there had been no attack on 9-11, and that easily could have been the case, it would have been said that the threat wasn’t urgent. How urgent is Isis? Absent 9-11, I find it difficult to believe anyone would be calling this threat urgent either. It’s just not a good analogy to Holder ignoring what was happening under his watch, under his agency’s initiative, not be a foreign enemy. Sure you see that.
6. I have never heard or read anyone sane praise Gonzalez, who was certainly less qualified than Holder, but also ranks as less horrible because he didn’t serve as long. Meese was probably capable of botching as much as Holder, but he was a passive, rather than an active incompetent. The former always does less damage. Ashcroft’s “crime” is that he was very conservative–he’s a capable administrator, and was not involved in cover-ups….indeed, he opposed them. Holder was involved in more unequivocal fiascos, was as political as the worst of them, had as long a tenure, and then adds the toxic racial divisiveness. I honestly don’t see a good faith argument for him. And look: I’m as shocked as I could be. I thought Meese, Gonzalez, Bobby Kennedy, Reno were all terrible. Even though Holder had shown himself to be a hack by facilitating Clinton’s corrupt Marc Rich pardon, I never thought he could be this bad.
But there it is.
2. Including Hillary and Obama, thanks to ex-Pfc. Manning. I don’t make the law, but few things bother me more than the notion that some people are above the law, and can escape its long arm. I think it was Washington who suggested that the best thing you could do with a bad law is enforce it, and a public trial of GWB/Cheney for war crimes would be in order. To do otherwise is to declare that some people are too important to jail, and that is more corrosive to the rule of law than enforcing a bad one.
3. Reasonable people could reasonably disagree here.
4. If you sit in the center seat, you are accountable. The NSA scandal rightfully belongs to Bush #43 and Obama, as with F&F. As for Benghazi, the House ASC concluded that there was no “there” there. For obvious reasons (Nixon!), the IRS is about as independent as any agency in the Executive Branch, and what the people in Cincinnati were trying to do in the 401(c)(4) kerfluffle was actually correct (the statute says “exclusively,” as opposed to “primarily,” and none of the political applicants had a right to that status); whatever Lois Lerner was doing appears to be outside of the scope of her duties, and you have to be lucky to ferret out things like that. The ACA website is what happens when sweetheart contracts are handed out to friends, and someone ought to roast for that. However, in any enterprise as large as our government, you are always going to have a few Iran-Contra affairs. We can’t expect perfection, but the President should strive to keep the corruption down to a dull roar.
5. As Yogi Berra once said, “It’s tough to make predictions, especially about the future.” Still, given what we now know, BushCo was asleep at the switch on 9/11 and especially, the foolish invasion of Iraq. “Pottery barn rules” applied, as Colin Powell counseled. Bush left Obama with a malodorous s***storm, and I’m not sure anyone knows what to do about that problem. Certainly, the guys who f’d it up so badly in the first place should follow Judge Kopf’s advice and SFTU.
I don’t concur that ISIS (or ISIL, or whatever you call it these days) is an urgent threat. We should have never invaded Iraq in the first place (and I was making that argument more than a decade ago), but we may be a lot better off just letting them have their little civil war. I have no problem with war when there is no alternative, but if we can deal with the Noriegas and Saddam Husseins of the world, we can deal with al-Baghdadi. (Ironically, if we had treated him a little better, things might not have turned out quite as bad.) Speak softly, and you won’t have to use the big stick you carry.
6. I won’t beat the Ashcroft horse to death, but Scott Horton of Harpers is on the case: http://harpers.org/blog/2008/03/the-case-of-the-amazing-vanishing-corruption-investigation/ Stifling an internal investigation into nefarious activities of your bestest buds (now, we call it “a full Cuomo”) is certainly a breach of fiduciary duty. Not clean. Not close. And not just for being a conservative.
Marc Rich? Agnus Dei! Shades of Scooter Libby! Certainly unethical but unfortunately, quite legal.
Where we appear to differ is mostly on emphasis. I discount the scandals you cite, for the most part, for the reasons stated previously. Drones, the NSA, and the war on whistleblowers are more severe demerits in my eyes. Political abuse of that office is as obvious as Minnie Lou’s exposed nipple, and his predecessors were at least as bad, if not worse. That is why I put Holder in the middle of a pretty foul pack.
Re Marc Rich: it was a bribe, and that’s not legal. Just unprovable. But few doubt it, or at least, few doubt it who are objective. Clinton pardons traitor, crook, and fugitive, wife gives millions to Clinton library. That’s quid pro quo, and you can’t seriously compare poor hapless Scooter, who lied about a non-crime, to a flat out criminal like Rich. The fact that Holder couldn’t or wouldn’t sniff that one out, I have to admit, lost my trust before he even got to Justice.
You DO realize, of course, that if we applied your rule of decision here to Congress, they couldn’t meet a quorum call?
While I was equally appalled by the Nixon and Rich pardons, the sticking point for me is “unprovable.” As an exasperated Lieutenant Caffey said in A Few Good Men, “It doesn’t matter what I know. What matters is what I can prove.” A lot of things go down in Washington that carry the distinct odor of bribery — think Tom DeLay, on the first tee at St. Andrews — but as no one of consequence is ever punished, no one involved cares. You know that your judge is having ex parte discussions with your opponent, but proving it is another matter entirely. And you’d give him a free pass, in any event.
What do you think would have happened if Rich’s wife didn’t keep her end of the bargain? I doubt that Bill Clinton would have gone to the press, or have taken her to court. The problem with the pardon power is that, even under English law, the King could have taken a bribe — much like bishops of the Catholic Church could sell indulgences. It is plenary, and cannot be even questioned.
Scooter was a good foot-soldier for the Bush Mob. He took the fall, as he knew that he would be taken care of. (Apparently, he was.) A distinction without a difference.
It is never graded on a curve. An elected or high appointed official is either ethical, honest, effective, trustworthy and just, or he is not. Holder was not. Any other AG is irrelevant to the question. It’s not as if the job is impossible.
You may not know this, but he had actually successfully defended DOMA in a case in 2010.
Click to access IM-CA-0065-0001.pdf
Plaintiffs argue that the Defense of Marriage
Act (“DMA”), 1 U.S.C. § 7, violates the Equal
Protection component and Due Process Clause of the Constitution, U.S. Const. amend. V, because the DMA defines marriage exclusively as union between couples of opposite sex. The matter has already
been addressed by the Ninth Circuit in Adams v. Howerton, 673 F.2d 1036 (9th Cir. 1982)… That USCIS relied on the DMA to deny Plaintiffs’ Petition as opposed to its own interpretation
of the INA does not change the fact that binding
Ninth Circuit authority dictates that denying I-130
petitions to same-sex couples does not violate the Constitution. Nor does the legality of Plaintiffs’
marriage in California help Plaintiffs, as “Congress did not intend the mere validity of a marriage under
state law to be controlling.” Adams, 673 F.2d at 1039. Therefore, Plaintiffs’ equal protection claim is barred as a matter of law.”
In pertinent part, here is Holder’s justification:
“As you know, the Department has a longstanding practice of defending the constitutionality of duly-enacted statutes if reasonable arguments can be made in their defense, a practice that accords the respect appropriately due to a coequal branch of government. However, the Department in the past has declined to defend statutes despite the availability of professionally responsible arguments, in part because the Department does not consider every plausible argument to be a “reasonable” one. “[D]ifferent cases can raise very different issues with respect to statutes of doubtful constitutional validity,” and thus there are “a variety of factors that bear on whether the Department will defend the constitutionality of a statute.” Letter to Hon. Orrin G. Hatch from Assistant Attorney General Andrew Fois at 7 (Mar. 22, 1996). This is the rare case where the proper course is to forgo the defense of this statute. Moreover, the Department has declined to defend a statute “in cases in which it is manifest that the President has concluded that the statute is unconstitutional,” as is the case here. Seth P. Waxman, Defending Congress, 79 N.C. L.Rev. 1073, 1083 (2001).
In light of the foregoing, I will instruct the Department’s lawyers to immediately inform the district courts in Windsor and Pedersen of the Executive Branch’s view that heightened scrutiny is the appropriate standard of review and that, consistent with that standard, Section 3 of DOMA may not be constitutionally applied to same-sex couples whose marriages are legally recognized under state law. If asked by the district courts in the Second Circuit for the position of the United States in the event those courts determine that the applicable standard is rational basis, the Department will state that, consistent with the position it has taken in prior cases, a reasonable argument for Section 3’s constitutionality may be proffered under that permissive standard.”
http://www.justice.gov/opa/pr/letter-attorney-general-congress-litigation-involving-defense-marriage-act
Whereas you could defend some parts of DOMA (such as its pertinence to immigration law) under a rational basis theory, you can’t defend those parts of it when it infringes on so-called fundamental rights, such as the right to enter into a marriage contract. What he is saying is sound as a matter of law: If the standard is rational basis, we can defend DOMA, but if it involves heightened scrutiny, we have no grounds for an argument. This is, and not incidentally, what the courts have ruled.
And it is the Court’s job to rule it, and Congress’s job to repeal the law. Not the AG, and not the President. That’s the system. This was a horrible, dangerous precedent, and the fact that it happened to arise involving a law that never should have been passed and was self-evidently unconstitutional from inception doesn’t change that.
As I read AG Holder’s letter, it wasn’t creating a precedent, so much as it was following it. We invest the AG with a great deal of discretion, and we can’t stroll into a courtroom and force him to prosecute. The AG can, by his or her inaction, effectively re-write the criminal law, as is evidenced by the current “hands-off” policy toward the marijuana industry in Colorado and Washington. We ask the AG to prioritize, because we have so many laws that they can’t all be enforced. So, how is this really any different?
To me, the fix is for Congress to pass a law authorizing private citizens to defend these laws in the AG’s stead. (I would also allow private criminal prosecutions, as the system works rather well throughout the old British Empire.)
I read it too. As usually happens with these errors, a lawyer expands an anomalous example to the breaking point, and creates a precedent that the next abuser of AG power will take to even less palatable extremes. The position’s oath is..
“I (name), do solemnly swear (or affirm) that I will support and
defend the Constitution of the United States against all enemies,
foreign and domestic; that I will bear true faith and allegiance to
the same; that I take this obligation freely without any mental
reservation or purpose of evasion; and that I will well and faithfully
discharge the duties of the office on which I am about to enter. So
help me God.”
The document lays out how laws are to be passed and repealed. By interpretation, the Marshall Supreme Court gave the power and responsibility to declare a law unconstitutional to SCOTUS. This was an abuse of power, per se, res ipsa loquitur.
I would simply say that Holder’s worst overall legacy will be the open trashing of the long held juristic concept of “a nation of laws, not men”. Holder was the Man and the law was used (or abused) only as it suited him. Another word for this is tyranny. As we view the proclivities of the man who hired him, we can tacitly assume that Holder’s nominated successor will be of a like philosophy.
That horse left the barn a long, long, long time ago. See Ford’s pardon of Nixon: “The law, whether human or divine, is no respecter of persons; but the law is a respecter of reality.” The harsh reality is that some men (like “Tricky Dick”) are beyond the reach of the law, and Eric Holder was not the one who got us there.
Stipulate that he missed those memos… he’s still incompetant. That’s not necessarily an improvement over corrupt.
That was an exhausting read. I read it twice because it’s hard to believe any one person could be so biased and racist against anyone not black. But my question to you ~ doesn’t the IRS debacle fit into Holder’s responsibilities somewhere? It’s so blatant and the cover-ups just keep coming. I’m so tired of it all. Good riddance. Now what’s to prevent someone just as bad if not worse from taking his place? Does it ever end?
The IRS scandal cover-up is on the list.
J: “By interpretation, the Marshall Supreme Court gave the power and responsibility to declare a law unconstitutional to SCOTUS.”
Or to put it more bluntly, the Court arrogated absolute power — the jus summa imperii — to itself. By interpretation, it replaced Parliamentary sovereignty with a judocracy. Many scholars have called MvM a “palace coup,” and not without cause. Thomas Jefferson’s view was that the three coequal branches had coequal authority to interpret the Constitution and, in a dispute between the other two branches, the judiciary would serve as arbiter. Conversely, in a dispute between the citizen and his government, the jury had authority to interpret it. I’m not sure that anyone fought in a revolution to, as one wag put it, “replace King George with King Judge.” In the Federalist, Hamilton wrote that the only power the courts had was that of judgment, and in response to the Court’s Worcester decision, President Jackson reportedly responded: “John Marshall has made his decision, now let him enforce it.”
Leaving that legitimate debate behind, let’s work with your rule of decision, again using tu quoque analysis. General Holder is only obliged to “support and defend the Constitution of the United States,” and that document says, in pertinent part, that “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land.” (Art. VI, cl. 2.) There is a salient difference between an act of Congress and a law, for as CJ Marshall reminds us, “an act of the legislature, repugnant to the constitution, is void.” (MvM, 5 U.S. at 176.)
Let’s apply your rule of decision to some of your sacred cows. First on the list is judicial immunity. For the doctrine to be valid, you have to be able to trace it to the Constitution. As Justice Frankfurter reminds us, the “ultimate touchstone of constitutionality is the Constitution itself,” as opposed to what some judge might say about it. Graves v. New York ex rel. O’Keefe, 306 U. S. at 491 (Frankfurter, J., dissenting). Where DID absolute judicial immunity come from? Who has the raw legal authority to declare a rule of law that is superior even to the Constitution?
The object of constitutional interpretation is to give effect to the intent of the
Framers, Lake County v. Rollins, 130 U.S. at 670, and it is the office of the judge to “always to make such construction [of any law] as shall suppress the mischief, advance the remedy, and to suppress subtle invention and evasions for continuance of the mischief … according to the true intent of the makers of the act.” Heydon’s Case [1584] 76 E.R. 637 (Exch.). Since Bacon’s day, it was understood that the judge’s office “is jus dicere and not jus dare; to interpret law, and not to make law, or give law.” (Of Judicature) As the purpose of the Bill of Rights was to restrain the government, judges may not “[construe it] so as to defeat its evident purpose, but rather so as to give it effective operation and suppress the mischief at which it was aimed.” Jarrolt v. Moberly, 103 U.S. at 586. Judges may consider it unwise and even dangerous, but that call is simply not theirs to make. Anderson v. Wilson, 289 U.S. at 27. The “ultimate touchstone of constitutionality is the Constitution itself.” Full stop.
[In this analysis, I express no opinion as to whether judicial immunity is too broad or too narrow, or whether it is necessary or even desirable. Either it is in the Constitution, or it is not, and if it is not, whether it should be there is utterly beside the point.]
Judicial immunity, coupled with discretionary cert and sovereign immunity, deprives a citizen of the benefit of the rule of law. Judges can ignore our rights with impunity, as we are deprived of the right to force our masters in black robes to respect them. “The Government of the United States has been emphatically termed a government of laws and not of men. It will certainly cease to deserve this high appellation if the laws furnish no remedy for the violation of a vested legal right.” MvM at 163. Where DO you find this plenary constitution-stripping power, Jack?
Government officials overstep their bounds. All the time. Our liberty may literally depend on the reluctance of one branch to defend transgressions committed by another branch. To invoke a historical example, let us say that Congress passed a law declaring that all citizens of Japanese descent be interred in concentration camps (pre-Korematsu). Would the President and his AG be legally and ethically justified in not enforcing or defending this constitutionally repugnant order?
Based on General Holder’s letter and the foregoing, I would submit that the better view is Jefferson’s: Every branch has a coequal authority to interpret the Constitution. As long as a law passed by Congress can be defended, it should be, but when the chance of successfully defending it becomes nil, it is incumbent upon the AG to not bother. I would direct you to FRCP11, and an attorney’s ethical obligation in that regard. An attorney must warrant to a court that “the claims, defenses, and other legal contentions [presented to that court] are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law.” If you can’t make the argument, you shouldn’t.
For this reason, I fail to see where Holder got it wrong.
Jefferson’s view did not, and should not have, prevailed, because, as Holder proves, it is chaotic. That’s why the Marbury opinion was wise, fortuitous, and necessary.
I’m not going to re-open the “judicial immunity must be expressly in the Constitution” argument again. Your interpretation is an outlier. That doesn’t mean it can’t be correct…it just means I’m not convinced, or willing to let you keep trying to convince me. Common law was and is based on ancient wisdom, and the Framers assumed large blobs of it in their document—otherwise, it would have had to be a tome. Thus government, and judicial immunity.
I’m only pointing out that, under your rule of decision, absolute judicial immunity is illegitimate. It is, as you have suggested, a concession to pragmatism. But if it is proper to make a concession there, why is it not also proper to make a concession in the DOMA defense?
That is my point. I don’t expect you to change your mind, but do expect you to see the inconsistency in your position.
Your best move here is to concede that AG Holder has some discretion, insofar as he is only obliged to uphold and defend the Constitution and valid laws. Rule 11 is another constraint on his discretion, and it would necessarily be unconstitutional if he had to defend a batshet-crazy law, and could thus be sanctioned for doing his job. Do you save DOMA, or Rule 11? Can’t save them both.
The common law rule was that a right could not exist without a remedy. You could preserve that rule if you allowed for a remedy as against the federal government or indemnification of judges and/or guaranteed a right to certiorari review, but you can’t have all three rules and preserve the concept of rights under law. Ashby v. White [England]. It is logically impossible.
What happened to that Chris Christie-sized blob of timeless wisdom?
This is, what, an apples and skim milk comparison? There is no provision of the Constitution that prohibits judicial immunity, partial or complete. It’s not there; it’s not implied. On the other hand, the fact that laws are laws and who gets to make and repeal them, as opposed to enforcing them, IS in the Constitution. On the other hand, the 11th Amendment does acknowledge sovereign immunity among the states, and this is at the nucleus of judicial immunity.
On sovereign immunity:
First and foremost, the 11Am is jurisdictional. By its terms, you could sue the Commonwealth in the ED of VA, but I could not. It does not create (or extinguish) sovereign immunity but instead, acknowledges sub rosa that it does not exist. After all, if VA was cloaked with the raiment of sovereign immunity, even you could not sue in federal court. As Justice Scalia writes, “[a]t the time of Marbury v. Madison there was no doctrine of domestic sovereign immunity, as there never had been in English law.” Antonin Scalia, “Historical Anomalies in Administrative Law,” as quoted in Ermin Chemerinsky, Against Sovereign Immunity, 53 Stan. L. Rev. 1201, 1210 & fn. 43 (2001).
A lot of states don’t recognize sovereign immunity. The Supreme Court of Colorado, in relegating the doctrine to the ash-bin of history, wrote:
“In departing from these inequitable and untenable doctrines we are not in the vanguard. We have been preceded in varying degrees by the appellate courts of Arizona, Arkansas, California, Florida, Idaho, Illinois, Indiana, Kansas, Kentucky, Michigan, Minnesota, Nebraska, Nevada, New Jersey, Rhode Island and Wisconsin.”
Evans v. Board of County Com’rs of County of El Paso, 482 P. 2d 968 (Colo. 1971).
And then, there is Bivens. In a regime where absolute sovereign immunity was the rule, Bivens would have been SOL. Whereas it is “inherent in the nature of sovereignty not to be amenable to the suit of an individual without its consent,” The Federalist No. 81 at 455 (Hamilton), the Bill of Rights constitutes that expression of consent, just as it is in England. Magna Carta c. 61 (1215). To hold otherwise is to reduce the Fifth Amendment clause declaring that no person “be deprived of life, liberty, or property, without due process of law,” U.S. Const. amend. V, to a cynical exercise in intellectual canasta. SCOTUS has backed off of its absolutist stance, holding that a court need only find that “the scope of Congress’ waiver [is] clearly discernible from the statutory text in light of traditional interpretive tools.” FAA v. Cooper, 132 S.Ct. at 1448 (2012). As it is logically impossible to even have a Bill of Rights without an implied waiver broad enough to give it effect, and Congress intended that the Bill of Rights be effectual, the waiver must exist.
The doctrine itself is profoundly irrational. I want to share a great line from the Evans case:
“The monarchical philosophies invented to solve the marital problems of Henry VIII are not sufficient justification for the denial of the right of recovery against the government in today’s society. Assuming that there was sovereign immunity of the Kings of England, our forebears won the Revolutionary War to rid themselves of such sovereign prerogatives.”
At the end of the day, ours is the exact same rule observed in England: technically, the King cannot be sued without his consent, but he always consents where justice requires it. MvM, 5 U.S. at 163.
On judicial immunity:
While the Constitution does not prohibit judicial immunity per se, it does not create it. Absolute judicial immunity is judge-made common law, and to the extent it is in conflict with statutory law, it is superseded. Therefore, to the extent that it defeats the purpose of the BoR, it is superseded.
Here is where you appreciate the brilliance of Justice Wilson. While it is true that the Constitution is silent on the matter of judicial immunity, the structure of his system is such that the number of possible circumstances where it is needed as a remedy is essentially zero.
First, there is the vesting of superintending control over the lower courts via the litigant’s absolute right to review by writ of certiorari. As a petition to the Supremes on this writ of error was intended to result in a published opinion with binding precedential effect, a litigant is assured of getting the benefit of the same law as everyone else in the land. Problem solved, in almost every case. No need for lawsuits against judges.
Second, there is an absolute right of an individual to sue the government in respondeat superior for torts committed by its agents on the bench. If the general government is always on the hook, absolute judicial immunity is not incompatible with the Bill of Rights, and it can stay. Problem solved, in just about every other case. No need for lawsuits here, either.
Where the courts screwed the pooch is in abolishing the absolute right to cert (as a reminder, it is a writ of error) and erecting an impenetrable wall of sovereign immunity. All of a sudden, there is no remedy for the right. And guess what precipitates out? Yep. Judicial immunity.
I would submit that the Cooper case gives the courts a way to escape this trap, in finding that the government is on the hook for their screw-ups.
On DOMA:
Keep in mind that even Congress cannot pass a “law” eviscerating the Bill of Rights. Miranda v. Arizona, 384 U.S. at 491 (“Where rights secured by the Constitution are involved, there can be no rule making or legislation which would abrogate them.”). As AG, I only have so much in the way of resources, and I have an almost-unfettered discretion as to how I choose to invest them. There is no law saying that I have to defend a statute that I know is DOA. Remember, it is the Constitution we have, not the one we should have.
But you are right: it does create a potentially dangerous precedent. My solution is a statute empowering private individuals to act as private AGs where the AG refuses to defend a statute. Problem solved.
But in practical terms, a right to cert is impossible! Why even make the argument? Today? What the abolishment of the right essentially did was make the Circuits the courts of last resort, unless a case rose to a certain level of importance beyond the litigants alone. It would seem that such a compromise was unavoidable, is reasonable, and also ensures that SCOTUS devotes its energies where the are most needed.
And there is STILL no need to sue judges.
(I must confess, I like the argument that the 11th undermines sovereign immunity by its very existence. But the fact that states have waived it? So what? It always could be waived.)
The Supreme Court has answered your objection. Courts “are bound to proceed to judgment, and to afford redress to suitors before them, in every case to which their jurisdiction extends,” Hyde v. Stone, 61 U.S. 170, 176 (1857); “[t]he existence of the jurisdiction creates an implication of duty to exercise it, and that its exercise may be onerous, does not militate against that implication.” Mondou v. New York, N.H. & H. R. Co., 223 U. S. 1, 58 (1912).
Remember that the Ninth Circuit processes over 10,000 appeals a year, which is more than SCOTUS. All it means is that simple error correction would be handled by three-judge panels, and the heavy lifting would be done by career law clerks with special expertise in discrete areas of the law. IOW, no more externships for Harvard Law grads. You would need another 50 Justices, who would be assigned to the big cases en banc on a random basis, but constitutionally-intended oversight would be there. Mandatory cert review still exists throughout the Commonwealth, and the world has not stopped on its axis.
The number of appeals would probably fall, as inferior courts would take more care to do it right the first time. And if there was a spike in appeals, lower court judges could sit by designation. Most state supreme courts have a provision like this for cases of conflict, and all the federal courts of appeal do it. Granted, if the Nine became the Ninety-Nine, the Justices would not get seven-figure advances for their autobiographies and fewer invitations to rub elbows with the Queen, but is that such a bad thing?
For these reasons, the compromise is neither inevitable nor reasonable. Or to put it in Scalia’s terms, would anyone have ratified the Constitution if it contained a provision whereby the courts could ration justice with total impunity? Even the discipline of the published opinion is gone. To even state the case is to refute it.
My goal is to create a system under which there is never a need to sue a judge. Abolish discretionary cert, and you get consistency throughout the system. Abolish sovereign immunity, and judicial immunity is available, as an alternative remedy exists.
As for the 11Am, the Colorado case I cited makes it clear that the states never had any sovereign immunity to begin with, and therefore, it is not something they can waive. As I understand it, the states have reacted to rulings like these by creating state tort acts, ensuring that just remedies would be available, but subject to reasonable caps.
You see, I’m hoping that I can get you to think about these things, so that these ideas work their way into your ethics presentations.
Thank you.
And now California with the help of our inept Governor Brown is stuck with him. God help us all.