January 29, 2015 | Commentary on Legal Issues, Department of Justice

The Questions Loretta Lynch Needs to Answer

When attorney general nominee Loretta Lynch appears before the Senate Judiciary Committee for a two-day confirmation hearing this Wednesday and Thursday, there are many questions she must answer in detail — not just about her conduct as the U.S. Attorney for the Eastern District of New York, but also about her views of the law and specific, deeply troublesome actions (and inactions) that the Justice Department has taken under Attorney General Eric Holder.

Some of the actions and statements of Eric Holder during his years in office have made a mockery of principled law enforcement, yet there has been little to stop him. Congressional oversight, embarrassing unpopularity, and repeated 9–0 Supreme Court decisions against the DOJ’s extreme legal positions have done little to alter the leftward course of this most powerful of federal agencies. Holder has held nobody at the Justice Department accountable for scandal after scandal, from the unjustified dismissal of the New Black Panther Party voter-intimidation case to the reckless Operation Fast and Furious program and the criminal targeting of reporters for alleged leaks. Even finding Holder in criminal contempt of Congress for his refusal to provide documentation to which Congress is entitled has failed to constrain him.

The upcoming confirmation hearings give members of Congress their best opportunity to have meaningful oversight over Justice Department policy.

While it might be difficult to block Loretta Lynch’s nomination successfully, it would not be difficult to condition her confirmation on her disavowal of some of the most radical DOJ policies of the last six years, particularly those policies that have divided Americans along racial lines and led to prosecutorial abuse. At a minimum, effective and informed questions from members of the Senate Judiciary Committee might wring out a commitment to break from the most extreme positions of the Holder era.

Lynch has an obligation to answer questions about the decisions made by Eric Holder on a host of issues not only to provide guidance on how she would act as attorney general, but also because she has been a member of Holder’s advisory committee of U.S. Attorneys. It is entirely appropriate to ask her what advice she gave Holder on his many questionable decisions and whether she agrees with the legal positions and actions he has taken over the past six years.

Several areas where tough questions from senators might obtain a commitment from Lynch to break from the past:

National Security

If confirmed, will Lynch agree to stop hiring lawyers who previously represented Islamic terrorists to work on formulating Justice Department policies that direct our fight against Islamic terror? Holder placed such lawyers in top political slots, as well as in trial-attorney positions.

Does she agree with Eric Holder’s view that terrorists held at Guantanamo Bay should all receive civilian trials? That when caught on the battlefield, they should be treated like stateside criminal defendants and read Miranda rights before they can be interrogated? Will she continue the Clinton-era, criminal-justice model of handling terrorists that Eric Holder reimplemented when he became attorney general?

Bias in Hiring

A devastating report by the Department of Justice inspector general in 2013 found deep polarization, mismanagement, and harassment of conservative employees as well as a litmus test imposed in hiring attorneys in the Civil Rights Division — namely, experience with liberal civil-rights organizations, which translates to experience working for the institutional Left. In short, only ideological allies need apply. As a result, the inspector general’s report found that the Civil Rights Division “passed over candidates who had stellar academic credentials and litigation experience with some of the best law firms in the country” and recommended that this litmus test be abolished.

Former assistant attorney general Tom Perez specifically rejected reforms to end the biases in Civil Rights Division hiring. Will Lynch commit to implementing the recommendations made by the DOJ inspector general for more equitable and non-partisan attorney hiring? What will she do to stop the harassment of career employees not considered “liberal enough” that is outlined in the IG report?

Free Speech

Over the last six years, the Justice Department has brought a series of flimsy civil cases against peaceful abortion-clinic protesters under the Federal Access to Clinic Entrances Act (FACE). Case after case has been thrown out by federal courts, often after a scolding by the judge that the case lacked merit. These cases squelched the First Amendment rights of anti-abortion protesters, who may have been the victims of political targeting. In one case, the court assessed sanctions that the DOJ didn’t even appeal. What will Lynch do to fix this problem? Will she commit to requiring higher evidentiary findings in any recommendation for new prosecutions against religiously motivated abortion protesters?

Department Misconduct

Two individuals remain employed in important positions at the Justice Department despite findings that they engaged in gross prosecutorial misconduct or outright perjury.

One is Karla Dobinski. Dobinski is a lawyer who was involved in a prosecution against New Orleans police officers for civil-rights violations in the aftermath of Hurricane Katrina. Dobinski was tasked with serving as head of the “taint team” to protect the defendant police officers’ constitutional rights.

A scathing opinion by federal judge Kurt Engelhardt points out that a number of DOJ lawyers, including Dobinski, engaged in a secret blogging campaign during the course of the trial to leak evidence about the case, as well as to bolster or weaken the credibility of trial witnesses. Yet Dobinski still is employed by DOJ. She even works in the component currently investigating other police departments. Will Lynch agree to review the matter for possible disciplinary action against Dobinski?

Another Justice Department employee, Stephanie Celandine Gyamfi, was found to have engaged in perjury during the course of the DOJ inspector general’s 2013 investigation. This wasn’t any ordinary perjury, since it involved the integrity of American elections. According to the IG report, Gyamfi, who works in the Voting Section, was asked about confidential internal legal memoranda leaked to the Washington Post. She denied any knowledge of the leaks until she was confronted with documents showing her participation. The IG report says she told IG investigators that she “did not regret posting comments online, except to the extent that it resulted in questioning from the OIG.” Yet she still works in the very same Voting Section and has been neither disciplined nor terminated. Will Lynch agree to review the matter for possible disciplinary action against Gyamfi?

When judges accuse DOJ lawyers of prosecutorial abuse or other such misbehavior, as has happened in numerous cases over the past six years, what actions will Lynch take to discipline or terminate those employees?

Funding Democratic Political Databases

The Justice Department has been moving tax money toward a voter database used by Democratic candidates. Catalist is a massive database containing voter files used by left-wing organizations that is so inaccurate that an organization using its database was the subject of numerous complaints in Virginia in 2012 for sending voter-registration applications to “dead relatives, children, family members in other states, non–U.S. citizens . . . and residents’ cats and dogs.”

The Justice Department has been funding experts and political-science professors in its litigation who used Catalist in various ways. Will Lynch agree to stop using Catalist data?

Racialist Assaults on Voter-ID Laws

The Justice Department has hired expert witnesses to attack election-integrity laws who have testified that blacks are “less sophisticated” than whites and therefore less able to “figure out” how to register, comply with voter-ID requirements, or get to the polls to vote. The DOJ has paid these professors hundreds of thousands of dollars to provide this offensive testimony. Does Lynch agree with this testimony, or will she terminate the contracts of experts who have such a patronizing view of black voters?

Does she believe, as Eric Holder does, that voter-ID laws are racist, and does she disagree with the Supreme Court’s decision upholding such laws in 2008 in Crawford v. Marion County?

Most important, the 2013 IG report makes it clear that Eric Holder and others in the leadership of the Civil Rights Division demoted the head of the Voting Section, Christopher Coates, because Holder did not want Coates to pursue cases where whites were being discriminated against and because Coates was asking attorney applicants whether “they would be capable of enforcing the Voting Rights Act in a race-neutral manner.” In other words, it seems that Holder did not believe in the race-neutral enforcement of federal anti-discrimination laws such as the Voting Rights Act. Lynch should be asked if she shares this view that the Voting Rights Act protects only blacks and other minority groups from discrimination. Such a view should disqualify anyone from being attorney general.

The Death Penalty and Racial Bias in the Justice System

Lynch said in 2002 that the application of the death penalty against blacks and Hispanics evidenced a systematic disregard for minority citizens. Lynch would not apply the death penalty even if it could be applied perfectly, according to a 2002 Vera Institute of Justice report, simply because of its supposed disparate impact on minorities. “You can be as fair as possible in a particular case, but the reality is that the federal death penalty is going to hit harder on certain groups,” she said.

Although the death penalty is less common in federal prosecutions, if Lynch is confirmed, she will likely face death-penalty decisions, particularly in terrorism prosecutions. Given her race-based opposition, Lynch should be asked whether she will refuse to authorize her prosecutors to seek the death penalty because of the race of the accused or whether she will recuse herself from such decisions.

In April 2014, Lynch participated in a conference in New York City organized by the Justice Department’s Office of Community Oriented Policing Services. The DOJ report on the conference had a list of “action items” that included the statement that “racial bias is pervasive” in our society, a claim that most Americans would disagree with and for which the evidence is, at best, equivocal. It is critical for members of the Senate to determine whether Lynch shares the view that racial bias is pervasive and, if so, how that will affect her decision-making as attorney general.

Immigration Enforcement and Prosecutorial Discretion

Eric Holder and President Obama have stretched the concept of prosecutorial discretion beyond recognition in order to avoid enforcing federal statutes they disagree with on policy grounds. Lynch must be asked whether she believes that the president’s immigration policy is constitutional and whether she believes that, as attorney general, she can refuse to enforce a federal statute against whole categories of offenders. This includes refusing to enforce federal drug laws in states that have decriminalized or legalized marijuana.

This last question is particularly important, because it is also related to other issues, such as the refusal of DOJ to present the contempt citations of Eric Holder and Lois Lerner to a federal grand jury. Federal law (2 U.S.C. §194) requires the U.S. Attorney for the District of Columbia, currently Ronald Machen, to bring such a contempt citation before a federal grand jury for action. Machen has refused to do so. Does Lynch believe it is appropriate for the U.S. Attorney not to comply with this federal statute?

Under Eric Holder’s leadership, the department where we formerly worked has been politicized to an unprecedented extent. These confirmation hearings are vital to finding out whether Loretta Lynch will continue policies that have damaged the administration of justice and the reputation of the Justice Department, or whether she will put the department back on the path toward being a highly professional, objective law-enforcement agency dedicated to the rule of law.

Editor’s Note: J. Christian Adams co-authored this commentary.

 - J. Christian Adams is a former Justice Department lawyer 

 - Hans A. von Spakovsky is a senior legal fellow at the Heritage Foundation, a former Justice Department lawyer, and co-author, with John Fund, of Obama’s Enforcer: Eric Holder’s Justice Department.

About the Author

Hans A. von Spakovsky Manager, Election Law Reform Initiative and Senior Legal Fellow
Edwin Meese III Center for Legal and Judicial Studies

Originally appeared in National Review Online