The United States Senate will soon render its advice and consent
on the nomination of Eric Holder as the new United States attorney
general. Holder served as deputy attorney general in the Department
of Justice (DOJ) during the Clinton Administration.
Many questions have arisen about various nominees'
"independence" from the very President to whom the cabinet
secretaries should be answerable. Not only is this the wrong
question, but it rests on a misguided view of executive power in
which subordinates somehow wield more authority than superiors. The
proper question is one of judgment: Does the nominee
demonstrate the kind of judgment necessary to advise and represent
the President in a responsible and constitutionally appropriate
way?
In at least five areas, Holder has demonstrated highly
questionable judgment. The following questions should allow him to
explain those actions and positions.
Question #1: Pardoning Terrorists
As deputy attorney general, you played an active role in
promoting clemency for 16 members of FALN and Los Macheteros,
terrorist organizations linked by the FBI to more than 130 bombings
and six murders.
The Los Angeles Times reported last week that you
instructed your staff to change its "original report recommending
against commutations ... with one that favored clemency for at
least half the prisoners."[1] When DOJ Pardon Attorney Roger Adams
resisted, your office instructed him to write an "options memo"
keeping clemency on the table. Adams said "it was such a big deal
to consider clemency for a group of people convicted of such
heinous crimes."
In addition to ignoring the advice of the pardon attorney, you
advocated clemency in a case in which there were numerous reasons
not to do so, including:
- Two U.S. Attorneys strongly recommended against clemency.
- The prisoners failed to reveal information about fugitives who
were part of their terrorist conspiracy, despite the fact that
there were ongoing investigations and prosecutions.
- The prisoners failed to provide information on the whereabouts
of $7.2 million in stolen funds.
- The prisoners had not expressed contrition. (Indeed, you
instructed the pardon attorney to obtain statements to that effect.
Ordinarily, existing contrition must be offered in support of
clemency; it is not something to be generated after the fact.)
- Two prisoners were so set on continuing their terrorism that
they refused clemency and remained in prison rather than agreeing
to renounce violence as part of the deal.
While the decision to grant clemency ultimately rested with the
President, new evidence obtained in DOJ memos suggests that you
went to great lengths to advise him to do so.[2]
Given the seriousness of their
charges, the lack of pre-clemency negotiation contrition, the
well-reasoned statements of the pardon attorneys, the strong
negative recommendations of the prosecuting attorneys, the presence
of an ongoing investigation of the terrorist organizations to which
the convicted terrorists had failed to provide assistance, and the
failure to provide information about millions in stolen cash, why
did you consider it appropriate to advocate so aggressively for
clemency?
Question #2: Gun Rights
In last year's challenge to the District of Columbia's gun ban,
you joined a brief in your capacity as a former DOJ official
arguing that the Second Amendment does not provide an individual
right for citizens to own firearms. Indeed, your brief referred to
the DOJ's recognition of "an individual rights theory that accords
constitutional protection to the possession and use of firearms for
private purposes" as "unwise." Under this reasoning, it appears
that many people are unwise.
- First, the Founders of the nation must have been unwise when
they wrote the right of "the people" to keep and bear arms into the
Second Amendment.
- Next, 55 Senators, 250 Representatives, and, notably, a
majority of the Judiciary Committee, which will sit to ask you
questions on Thursday, must have been unwise when they joined a
brief arguing that the Second Amendment properly protects an
individual right.
- And finally, a majority of the Supreme Court must have been
unwise in rejecting your brief, holding that the Second Amendment
does indeed guarantee an individual right.
Why did you argue to unduly restrict
the constitutional rights of law abiding citizens, and what will
you do to protect law-abiding Americans' Second Amendment rights,
which you have previously disparaged as "unwise"?
Question #3: Attorney-Client
Privilege
As deputy attorney general, you issued what has become known as
the Holder Memorandum, in which you directed federal prosecutors to
consider whether corporations waived attorney-client privilege or
paid for their employees' attorneys' fees when determining whether
the corporations had cooperated with investigations.[3] The
memo encouraged prosecutors to coerce corporations to waive
attorney-client privilege and to violate contractual obligations to
provide a defense in order to avoid having the full-weight of a
federal indictment brought against their companies.
Organizations across the political spectrum--from the American
Bar Association, the American Civil Liberties Union, and the
National Association of Criminal Defense Lawyers to the Chamber of
Commerce, Washington Legal Foundation, and The Heritage
Foundation--have denounced the coerced waiver of attorney-client
privilege that began under your leadership. And in August, the
United States Court of Appeals for the Second Circuit found that
the policy of coercing companies to limit payments of attorneys'
fees "unjustifiably interfered with defendants' relationship with
counsel and their ability to mount a defense, in violation of the
Sixth Amendment."
In at least the third policy change since you issued your now
infamous memo, Deputy Attorney General Mark Filip recently modified
the U.S. Attorney's Manual to make clear that federal prosecutors
should not consider whether a corporation has waived
attorney-client privilege when determining whether a corporation is
cooperating with an investigation. While Filip's change is welcome
news, it does not fully address the culture of waiver that the
Holder Memo created. Other agencies have implemented policies
requiring waiver, and nothing would prevent the Justice Department
under your leadership from returning to the unconstitutional and
pernicious Holder Memo policy.
What will you do to assure that the
DOJ and other agencies respect attorney-client privilege?
We would recommend that you should first make clear that you
endorse and will enforce the policy changes made by Filip. This is
a good first step toward cleaning up the constitutional maelstrom
that your memorandum created.
Second, you should cooperate with Congress in crafting
legislation that prohibits the kind of coercive practices your
memorandum spawned--not just at DOJ, but at agencies like the IRS,
HUD, and the SEC. While once a change in DOJ policy might have been
sufficient, the damage wrought by the Holder Memo is now
sufficiently broad that it requires legislative attention. Your
leadership on this issue would demonstrate dedication to the
constitutional rights of defendants that were trampled by your
previous policy.
Question #4: Voting Rights
As Heritage's Hans von Spakovsky has ably demonstrated, voter
fraud is a serious and continuing problem.[4] Given news accounts and
pending cases involving voter fraud and voter registration fraud
allegedly perpetrated by groups like ACORN, serious questions arise
as to whether the DOJ will fulfill its obligation in protecting the
franchise of legal voters, whose votes are diminished by the
casting of illegal votes.
Those seeking answers regarding how you will respond from your
record are left with more questions. You have been cavalier in the
past when questioned about voter fraud, saying on Fox News in 2004
that "I think there is a feeling among Republicans that there is a
widespread amount of voter fraud out there. I don't think the
statistics actually would substantiate it." While your support for
cracking down on voter fraud has been tepid at best, you have shown
passion for protecting some voting "rights"--those of
felons, as evidenced by your joining a brief seeking to
strike down Florida's voting law because it prohibits felons from
voting as a violation of the Voting Rights Act. The Court disagreed
with your brief, noting that the Constitution acknowledges the
authority of the states to disenfranchise felons in the Section 2
of the Fourteenth Amendment, and finding that in enacting the
Voting Rights Act, Congress "expressed its intent to exclude
felon disenfranchisement provisions from Voting Rights Act
scrutiny." Johnson v. Bush, 405 F.3d 1214, 1234 (11th Cir.
2005) (en banc) (emphasis in original).
As attorney general, what will you do
to investigate and prosecute allegations of voter fraud? Do you
believe that the Voting Rights Act prohibits states from
restricting felons from voting where, as in Florida, the law was
not passed with discriminatory intent, even in light of contrary
constitutional (14th Amendment) and judicial authority? As attorney
general, will you respect the states' legal authority to limit the
franchise to non-felons?
Question #5: Marc Rich
You played a prominent role in the pardon of Marc Rich,
recommending his pardon to the White House as "neutral leaning
favorable." Mr. Rich had fled the country after being indicted for
racketeering, trading with the enemy (the Ayatollah Khomeini during
the period that Iran was holding 52 U.S. hostages), and millions of
dollars in tax evasion. He avoided extradition requests and
allegedly renounced his citizenship in order to prevent
extradition. For these crimes, Rich had been featured on the FBI's
"Ten Most Wanted" list and was the subject of a nearly
two-decades-long investigation.
Despite the fact that Rich continued to be a fugitive who
refused to submit to the U.S. justice system, he was given a
pardon, in violation of virtually every conceivable standard
ordinarily applied by pardon attorneys.
The case is all the more problematic because Rich's ex-wife gave
considerable sums to the Democratic Party ($867,000) and the
Clinton Library ($450,000).
Again, the ultimate decision was the
President's. But given the facts of the case, and the clear
appearance of impropriety created by Rich's ex-wife's contributions
to the Clinton Presidential Library, why did you recommend "neutral
leaning favorable" for his pardon request? Should not the sizeable
donations alone have suggested a negative response, in order to
avoid the appearance of partisanship at the Justice Department?
A Question of Judgment
From pardoning terrorists and making dubious legal arguments to
attempt to force states to allow felons to vote to the infamous
Holder Memorandum, Holder has demonstrated highly questionable
judgment. Therefore, before finalizing its advice and consent, the
United States Senate should use the five questions listed above to
begin answering the most important query of all: Does Eric Holder
demonstrate the kind of judgment necessary to advise and represent
the President in a responsible and constitutionally appropriate
way?
Robert Alt is a Senior Legal Fellow
and Deputy Director of the Center for Legal and Judicial Studies at
The Heritage Foundation.
For More Information:
Brian W. Walsh, "Enacting Principled, Nonpartisan Criminal-Law
Reform: A Memo to President-elect Obama," Heritage Foundation
Special Report No. 42, January 9, 2009, at http://www.heritage.org/Research/LegalIssues/sr42.cfm.
Hans A. von Spakovsky, "Democracy in Danger: Case Studies of
Election Fraud," Heritage Foundation Special Report No. 24,
October 28, 2008, at http://www.heritage.org/Research/LegalIssues/sr24.cfm.
Todd F. Gaziano, "Election Reform," testimony before House
Committee on Rules and Administration, U.S. House of
Representatives, March 14, 2001, at
http://www.heritage.org/Research/
GovernmentReform/Test031401.cfm.
Andrew M. Grossman, "An Individual Right Rekindled," Heritage
Foundation Commentary, June 30, 2008, at http://www.heritage.org/Press/Commentary/ed063008a.cfm.