Obama's Enforcer

Read Obama's Enforcer Online

Authors: John Fund

DEDICATION

To my parents, Anatol and Traudel von Spakovsky, who passed from this world too soon, and to my wife, Susan, who has stood with me during the best and worst of times.

—Hans von Spakovsky

ACKNOWLEDGMENTS

Working at the Justice Department was a real honor, and I met many dedicated professionals there who were interested in representing the American people to the best of their abilities and making sure that justice was served. But I also met too many biased partisans whose lack of professionalism and ideological extremism was an embarrassment to the legal profession and a danger to the liberty of Americans. With very few exceptions, such as J. Christian Adams and Andrew McCarthy, almost no one has been willing to expose this because of the fear of being targeted by the Justice Department, the most powerful law enforcement agency in America. When the Justice Department abuses its power, it threatens the freedom and well-being of Americans.

This book would not have been possible without the help of sources who are still inside Justice, and who provided much of the information in this book. Many of them have been subject to harassment and intimidation under the tenure of Eric Holder because of their dedication to the rule of law and their belief that the Justice Department should act in the best interests of the public. They know who they are and I extend to them my sincere thanks not just for their help, but for staying at Justice in a very hostile atmosphere and trying to do the right thing.

No one could ask for a better coauthor than John Fund, a journalist dedicated to ferreting out the truth. Our many years of collaborating on stories and sharing information have been very fruitful, to the obvious chagrin of our critics and those who have opposed our efforts to improve the integrity of the election process and expose the wrongdoing of government agencies like the Justice Department.

Thanks to my wife, Susan, with whom I celebrated our twenty-fifth wedding anniversary during the writing of this book. She has always been my first-line editor, and none of this would have been possible without her. To my children—Elisabeth, Christopher, and Anna—thanks for putting up with my many weekends of writing when I couldn't spend time with you.

I have to acknowledge the many brilliant lawyers and analysts at The Heritage Foundation, where I have had a home for the past six years. Some like Cully Stimson helped to improve the chapters. Other people have helped me over some difficult years, including Cleta Mitchell, one of the fiercest advocates for conservatives in Washington, former attorney general Ed Meese, who was without question the best person I've ever worked for, and Todd Gaziano and Robert Alt, my former colleagues at Heritage.

Thanks to PJ Media and
National Review
, who took a chance on me and started publishing my commentaries after I left the Federal Election Commission in 2008 after a vitriolic nomination fight that illustrated everything that is wrong with Washington today.

Finally, I can't say enough about my family. My parents, Anatol and Traudel von Spakovsky, met in a refugee camp in occupied Germany after the end of World War II, having barely survived being killed on numerous occasions, including when my mother was arrested by the Gestapo. They immigrated to the United States in 1951 and had five children in this great democracy that gave the von Spakovsky family refuge. We all love America and we want to see our country prosper. To my brothers, Alexis and Michael, and my sisters, Christine and Ingrid, don't you think Anatol and Traudel are smiling down at all of us and saying, “They've done well!”?

—Hans von Spakovsky

CHAPTER 1

JUSTICE IN CHARGE

How Holder Came to Justice

The ornate, spacious committee room used by the House Judiciary Committee has seen a lot of Washington legal drama—from the impeachment proceedings against Presidents Richard Nixon and Bill Clinton to vigorous and spirited debates on issues ranging from gay rights to immigration policy.

In May 2013, the room was the scene of an oversight hearing on the activities of the Obama Justice Department that provided a fascinating look into its methods of misleading the American people about the truth of its actions.

In sworn testimony on May 15, Attorney General Eric Holder told the House Judiciary Committee that he had never been involved in or even thought about prosecuting the press over the publication of classified material. Yet, as the Judiciary Committee learned after the hearing, Holder had specifically approved a search warrant for Fox News reporter James Rosen's emails by “swearing to a federal court that Mr. Rosen was a co-conspirator in a national security leak investigation.” When questioned by the committee about the obvious clash between his testimony and the truth, Mr. Holder refused to answer.
1

An investigation by the Judiciary Committee concluded that Holder's testimony about the Rosen investigation was “deceptive and misleading” and damaged the “credibility and professionalism” of the Justice Department.
2
But as Charles Krauthammer accurately predicted, the attorney general was not punished for lying about the Justice Department's investigation of Rosen because Holder is one of Obama's “cronies” and is “too much of a friend of the president.”
3

Some (including the Justice Department) have contended that Holder's statement was not a lie because even though he approved the search warrant application, Holder never intended to actually prosecute Rosen. But Bill Otis, a twenty-year veteran of the Justice Department and the U.S. attorney's office, points out:

When an officer of the Department of Justice tells a court that a search warrant target probably either committed, or aided the commission of, a very serious federal felony, and that extraordinary means are required forthwith to investigate the target's activities in that he is a risk to flee, the idea that the officer is
not
asserting the basis of a “potential prosecution” is—how shall I say this?—bordering on silly. This can only be defended by re-defining, or more precisely by defining out of existence, the word “potential . . . .

Whether there is a
potential
prosecution does not depend on Holder's state of mind, or the state of mind of anyone currently in power at DOJ; the notion that psychology is everything is, while unfortunately widespread, complete baloney. When the Department goes on record with a court as being of the view Mr. X is at the minimum an aider or abettor or co-conspirator in a federal felony, and must immediately be investigated through extraordinary means because of, among other possible reasons, the risk that he'll flee, then it is nothing more than blinking reality to say that there is no potential persecution of Mr. X.
4

The James Rosen incident wasn't the first time that Holder was caught in an outright misrepresentation of the facts. On May 3, 2011, Holder testified before the House Judiciary Committee and was asked by Chairman Darrell Issa when Holder learned of the Fast and Furious scandal, a gun-running operation in which federal agents allowed illegal guns to be smuggled into Mexico, one of which was used to murder U.S. Border Patrol agent Brian Terry in 2010. Holder replied that he was “not sure of the exact date, but I probably heard about Fast and Furious over the last few weeks.”
5

The congressional investigation continued for several months afterward, and in early October 2011, documents surfaced that showed the attorney general himself was sent several briefing documents that specifically mentioned Fast and Furious. The DOJ initially responded to these documents by saying that Holder does not always read his briefings. When that explanation wasn't accepted, Holder wrote a long letter to Issa, which stated in part: “Much has been made in the past few days about my congressional testimony earlier this year regarding Fast and Furious. My testimony was truthful and accurate and I have been consistent on this point throughout. I have no recollection of knowing about Fast and Furious or of hearing its name prior to the public controversy about it.”
6

But when that didn't dampen congressional suspicion, Holder finally retracted his May 3, 2011, testimony before the Senate Judiciary Committee in November 2011, revising his statement of a “few weeks” to a “couple months.”

“I did say a ‘few weeks,'” Holder testified at the Senate hearing when asked questions by Senator Patrick Leahy (D-VT), the chairman of the committee. “I probably could've said ‘a couple of months.' I didn't think the term I said, ‘few weeks,' was inaccurate based on what happened.”
7
Shortly thereafter, Justice withdrew the February 2011 letter it had sent to Senator Chuck Grassley in which it had denied that Justice had ever encouraged the shipment of illicit guns into Mexico. The administration admitted that statement was false when it retracted the letter.
8

The evidence is overwhelming that Holder has lied under oath to Congress on numerous occasions. At other times, his testimony has been astonishingly vague or uninformed. At a Senate Judiciary Committee hearing in January 2014, Holder had no relevant information for senators who wanted to know why “many if not all” of the targeted groups or individuals in the IRS scandal had not been interviewed 280 days after the targeting of political opponents of the administration had been revealed by an inspector general report in May 2013. Holder said he was constrained in discussing any “steps that have been taken in connection with that investigation.”

Senator Ted Cruz of Texas was having none of it. “In the 280 days since that inspector general report, it's been publicly reported that no indictments are planned. Today in this hearing, you were unwilling to answer a question whether even a single victim of targeting has been interviewed,” he told Holder. “In my view, the integrity of the Department of Justice has been severely compromised. Predecessors of yours in both parties, Democrat and Republican, when faced with serious charges of abuse of power for partisan gain have made the right decision and appointed special prosecutors.”

“I would call upon you to carry out the tradition of independence that attorneys general have honored that office with for centuries and protect the integrity of the Department of Justice,” he later added. “Given the political sensitivities, given the fact that individual citizens believe they are being persecuted by the federal government for partisan reasons.”

Holder replied that there isn't a basis for the DOJ to appoint an independent counsel. He said he has “faith in the career people who are handling this matter.” He bristled when Cruz pointed out that a lead lawyer in the investigation, Justice Department attorney Barbara Kay Bosserman, was a large donor to President Obama, having given $5,600 to his presidential campaigns, $500 to the 2012 Obama Victory Fund, and $650 to the Democratic National Committee. “I don't know anything about the political activities of any of the people who are involved in this investigation.” He told the committee that he doesn't “have any basis to believe that the people who are engaged in this investigation are doing so in a way other than investigations are normally done.”

Holder conveniently ignored applicable Justice Department regulations that DOJ lawyers like Bosserman must avoid even “an appearance of a conflict of interest likely to affect the public perception of the integrity” of an investigation or prosecution. The Justice Department removes attorneys from cases all the time for such perceived conflicts of interest and there is no question that Bosserman fit squarely within this prohibition.

Cruz was clearly frustrated, noting that he “heard from dozens of financial supporters of Governor Romney that told me they had never been audited in their life, and within a week, a month of it becoming public they were raising money for Mitt Romney, they discovered they were being audited.” Cruz said he found it troubling that so few people had been interviewed in the Justice probe and that “280 days have passed and apparently the anger and outrage that both the president and you expressed has utterly disappeared.” He concluded by calling on “the tradition of independence” that previous attorneys general had exercised in appointing special prosecutors, ranging from Janet Reno, Holder's old boss at the Justice Department in the 1990s, to John Ashcroft, who appointed a special counsel to investigate the Valerie Plame CIA leak case.
9

Holder has consistently refused to appoint special counsels to investigate serious problems within the Obama administration, including the IRS targeting of conservative organizations. Of course, he was apparently willing to appoint such a counsel to prosecute CIA interrogators, going to the extent of asking his staff for a list of possible candidates.
10
But this was squashed by the White House, including then–chief of staff Rahm Emanuel, who did not want the political fallout from such a move.

Senator Mike Lee of Utah had his own set of questions for Holder about the flurry of executive orders President Obama has issued on everything from delaying the small business mandate in ObamaCare to raising the minimum wage federal contractors must pay. Holder couldn't explain the constitutional basis for executive orders because “I have not seen—I don't remember looking at or having seen the analysis in some time, so I'm not sure where along the spectrum that would come,” Holder replied when Senator Lee, a Republican, asked him to explain the basis of Obama's constitutional power to delay the employer mandate.

Lee had based his question on a three-part legal test, first described by Supreme Court justice Robert Jackson in the
Youngstown Sheet & Tube
case of 1952. Jackson said the president's authority to issue executive orders is strongest when he does so with the backing of Congress (category one), more dubious when he issues an order pertaining to a topic on which Congress has not passed a law (category two), and weakest when the executive order is “incompatible with a congressional command” (category three).

Holder told Lee that Jackson's analysis is factored into any decision on presidential power, but said he couldn't use that test to explain in any detail what kind of authority the president employed when he delayed the employer mandate.

“I've not had a chance to look at, you know, for some time, exactly what the analysis was there, so I'm not sure that I would be able to put it in what category,” Holder told Lee. He believes that Obama “is probably at the height of his constitutional power” in issuing an executive order to raise the minimum wage paid by vendors who work for the federal government, though, and concluded that the same is true for the employer mandate delay despite the fact that Obama's actions actually conflicted with applicable federal laws.

“I would think that given that we're talking about a statute passed by Congress that delegates or devolves to the executive branch certain authorities, I would think that you're probably in category one there as well,” Holder said of the delayed employer mandate, which the ObamaCare law stated was to have taken effect on January 1, 2014. “But, again, I have not looked at the analysis in some time.”
11

Senator Ted Cruz found Holder's answers exasperating, calling them “Orwellian doublespeak” that “clearly clashes with the text of the law President Obama signed and swore to faithfully execute.”
12

He also noted that in the past, previous attorneys general have been fully briefed by their staff on the questions senators have indicated in advance that they will pose. Eric Holder is apparently an exception. Senator Lee then called on Holder “to release legal analysis produced by [Justice's] Office of Legal Counsel, or whoever is advising the president on these issues.” Holder deflected that request without a direct answer.

Holder was better briefed when it came to President Obama's potential future use of executive orders. Senator Richard Blumenthal, a Connecticut Democrat and top supporter of gun control, lamented that President Obama had made only a “very brief” reference to gun violence in his 2014 State of the Union address.

“The bill that was before us [after the 2012 Sandy Hook massacre] unfortunately failed to pass, but I'd like your commitment on behalf of the administration that he remains resolutely and steadfastly in support of these initiatives,” Blumenthal told Holder.

“Our commitment is real and we will revisit these issues,” the attorney general replied. “The president—it is his intention to again try to work with Congress, but in the absence of meaningful action to explore all the possibilities and use all the powers that he has to, frankly, just protect the American people.” In other words, President Obama is contemplating a new executive order to push through gun control measures that have already failed in a Senate controlled by his own party.
13

The January oversight hearing in the Senate was emblematic of the Obama administration's approach to questioning—slippery and nonresponsive.

Under Eric Holder, the Justice Department has stood the old Ronald Reagan maxim “trust but verify” on its head and adopted a “trust and we won't let you verify” approach to its activities. Even Jill Abramson, the executive editor of the staunchly liberal
New York Times
, in the wake of the revelations about the Justice Department's monitoring of Fox News reporter James Rosen, whom the DOJ labeled a “co-conspirator” in a leak case, said that “the Obama administration has moved beyond protecting government secrets to threatening fundamental freedoms of the press to gather news.”
14

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