February 10, 2015 | Commentary on Legal Issues, Department of Justice

Eric Holder's State of Historic Denial

Departing attorney general Eric Holder’s claim this week in a press conference that there has “been no politicization” of the Justice Department under him makes it appear as if he is living in a Potemkin-like state of denial in the main Justice building. Holder went so far as to claim that he had been forced to clean up the department he took over from the Bush administration. “You want to look at a Justice Department that’s been politicized, you look at the one I inherited,” he claimed.

When we were researching our recent book on Holder’s six-year tenure at Justice, we talked to numerous career employees who were shocked at how much further Holder had gone than any previous administration in politicizing Justice. One longtime lawyer in the Civil Rights Division told us that Holder had

racialized and radicalized the Division to the point of corruption. They embedded politically leftist extremists in the career ranks who have an agenda that does not comport with equal protection or the rule of law; who believe that the ends justify the means; and who behave unprofessionally and unethically. Their policy is to intimidate and threaten employees who do not agree with their politics, and even moderate Democrats have left the Department because they were treated as enemies by administration officials and their lackeys.

Holder said that the “notion” that DOJ has been politicized is “totally inconsistent with the facts.” But the facts show that the politicization started almost immediately, such as when political appointees at Justice ordered the dismissal of the New Black Panther Party voter-intimidation case at the beginning of 2009 because they did not want to enforce the Voting Rights Act against black defendants, ending the race-neutral enforcement of the law.

It was pure politics that dictated the policy that no cases be filed under the National Voter Registration Act to enforce the requirement that states maintain the accuracy of their voter rolls. It was pure politics when Holder rejected the opinion of Justice’s Office of Legal Counsel — an opinion held since the Kennedy administration — that legislation intended to give the District of Columbia a voting member of Congress is unconstitutional.

Holder could make better use of his time reading the report released by his own Inspector General (IG) in 2013 about the Civil Rights Division. It is a disturbing, sad commentary on the mismanagement and misbehaver of the people who work there, problems that were greatly exacerbated by the present administration. Holder complained about hires “for political reasons” during the Bush administration.

Yet he fails to acknowledge that the hiring in the career ranks of that division has been 100 percent, unapologetically political during his tenure, as outlined in a series of articles that looked at the résumés of everyone hired there. Justice’s own IG found that one office in the division “passed over candidates who had stellar academic credentials with some of the best law firms in the country” in order to hire others they preferred, a majority of whom came from just five advocacy organizations that are political allies of the Obama administration.

Holder claims that his people have been “dedicated to doing things only on the basis of the facts and the law.” That is certainly not what a number of federal judges have thought about the abusive cases that Justice has brought under the Freedom of Access to Clinic Entrances Act with the intention of intimidating the pro-life movement. Many of these prosecutions have been thrown out for lack of evidence and for violating the First Amendment rights of peaceful protesters. A Florida case that was dismissed led the judge to wonder whether the prosecution was the “product of a concerted effort between the government and the [abortion clinic] . . . to quell [the defendant’s] activities rather than to enforce the statute.” In other words, the judge believed the defendant had been targeted for her political beliefs.

Similar cases have been filed in the area of environmental law. At the behest of the administration’s environmental allies, there was the lawsuit filed against storied guitar maker Gibson Guitar for supposedly importing prohibited wood that, the DOJ finally had to admit, was not prohibited. Holder’s Justice Department has colluded with those same environmental groups to impose dozens of new regulatory rules through a “sue and settle” scheme by which Justice does not defend in lawsuits brought by its political friends. That allows the administration to implement the rules it wants without going through the required regulatory process, skipping public notice and review.

Holder also wants to ignore the numerous cases in which Justice has been accused of prosecutorial abuse or wrongdoing. In New Orleans, for example, in a case against local police officers, the federal judge accused the Justice Department of “grotesque prosecutorial abuse” and pointed a finger directly at Eric Holder, who presided over a major press conference announcing the indictments “with much fanfare.” Holder never held a similar press conference to apologize for what his prosecutors had done or for their win-at-any-cost mishandling of the case. The judge reminded Justice that “the Code of Federal Regulations, and various Rules of Professional Responsibility, and ethics . . . do not take a holiday.”

What is sad is that Holder is “proud of the historic things” he has done at Justice. Does that include the politically motivated pardons — for international fugitive Marc Rich or the unrepentant Puerto Rican FALN terrorists — that he arranged in his prior tenure at Justice during the Clinton administration?

Through his mishandling of Operation Fast and Furious (which provoked a contempt citation from Congress), his imposition of the Clinton-era model of handling terrorism as ordinary criminal violations, his refusal to provide Congress with the information it is entitled to in its oversight function, his arbitrary refusals to enforce or defend federal laws that he and President Obama don’t like, Holder politicized the department to an extent never before seen, despite his furious denials. That is not a “historic” record to be proud of.

Eric Holder and Barack Obama came into their respective offices promising transparency, openness, and adherence to the rule of law. Instead, we have seen the exact opposite from both of them, with Eric Holder acting as President Obama’s enabler to violate the law and the Constitution. We need a new attorney general, one who will not repeat that behavior but instead will act to undo the enormous damage that Holder has inflicted on the professionalism of the Justice Department — an attorney general willing to rein in the president when he tries to abuse his executive authority. 

Editor's Note: This article was co-authored by John Fund. 

 -  John Fund is national-affairs correspondent for National Review Online.

 - Hans A. von Spakovsky a Manager, Election Law Reform Initiative and Senior Legal Fellow at The Heritage Foundation.

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