Authors: John Fund
Eric Holder has had no compunction about trying to manipulate the law, deny basic due process, or make absurd arguments to the Supreme Court. As Ilya Shapiro of the Cato Institute says, what these cases have in common is a view by the Justice Department that “federal power is virtually unlimited: Citizens must subsume their liberty to whatever the experts in a given field determine the best or most useful policy to be.”
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One other case should be mentioned even though the Justice Department's loss was not nine to zero, but five to four. There has been a great deal of debate about the Supreme Court's decision in
Citizens United v. Federal Election Commission
, in which the Court held that a ban against corporations and labor unions engaging in independent political speech was a violation of the First Amendment.
34
Many believe this was a triumph of First Amendment values over government censorship, while critics have claimed this gives corporations and unions too much power to interfere in the political process, although it should be noted that the ban also applied to nonprofit corporations like the National Rifle Association and the Sierra Club, or in this case Citizens United, a conservative nonprofit advocacy organization. But what was indeed frightening was one of the arguments that was made by the Holder Justice Department that would have approved government censorship.
In a somewhat unusual occurrence, there were two separate oral arguments before the Supreme Court. In the first argument, on March 24, 2009, Chief Justice John Roberts asked the deputy solicitor general, Malcolm Stewart, a question about the “electioneering communications” provision of federal law that the Court eventually threw out as unconstitutional. This provision banned corporations and labor unions from running an advertisement that named a federal candidate on radio, television, or cable and satellite channels within thirty days of a federal primary or sixty days of the general election, even if the ad had nothing to do with the election.
So if a labor union (or the NAACP or the National Organization for Women) wanted to run a radio ad telling the public to call Senator John Smith to tell him to vote a particular way on an upcoming bill, it would violate federal law if the ad ran within sixty days of the general election if Senator Smith was on the ballot. This particular provision could lead to completely absurd results. As the chief justice pointed out, if Wal-Mart had aired an advertisement selling candidate action figures and it actually used the names of the candidates, it would be committing a federal felony by airing that ad within sixty days of the general election.
Chief Justice Roberts noted that the electioneering communications provision only applied to broadcast ads. He asked Stewart whether Congress could amend the law to expand the ban to books and pamphlets. He specifically proposed the hypothetical of a corporation funding a five-hundred-page book about the American political system and at the end it says “and so vote for X.” Roberts wanted to know if it was the position of the Justice Department that Congress could ban such a book. The shocking answer from the Holder Justice Department, in defiance of the most fundamental First Amendment rights, was that the government “could prohibit the publication of the book.”
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There was a noticeable gasp from the audience when the deputy solicitor general actually said the government had the power to ban books.
Finally, Eric Holder has been part and parcel of the Obama administration's repeated abrogation of the law, showing his disdain for the constitutional division of power between the legislative and executive branches. The Obama administration has been “unilaterally ordering major changes in federal law with the notable exclusion of Congress.”
36
Holder has tried to defend his decisions not to enforce the law as the exercise of prosecutorial discretion. But prosecutorial discretion is the ability to decide whether a particular case should be prosecuted based on the specific facts of that case and the applicable law. It does not give a law enforcement agency the ability to simply ignore all violations of a law passed by the legislative branch and signed into law by the president because the head of that agency (or the president) does not agree with the law. That is an utter abuse and a complete violation of the attorney general's constitutional obligation to enforce the law. But it does fit, as George Washington University law professor Jonathan Turley says, “an undeniable pattern of circumventing Congress in the creation of new major standards, exceptions, or outright nullifications. What is most striking about these areas is that they are precisely the type of controversial questions designed for the open and deliberative legislative process.”
37
A prime example of this wholesale nullification of federal laws occurred in 2011. The Obama administration has a habit of announcing controversial decisions during or just before the start of holidays, when Congress is out of town and the news media are not paying attention. So on December 23, the Justice Department announced that it had completely changed its position on the 1961 Interstate Wire Act, which banned gambling over a wire. This law had been interpreted by prosecutors and the courts for years as a complete ban on Internet gambling, from lotteries to online poker. In fact, in 2007 the Justice Department said in congressional testimony that “all forms of Internet gambling, including sports wagering, casino games and card games, are illegal under federal law.”
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The Justice Department collected a record $300 million fine for Wire Act violations in 2010 from the cofounder of PartyGaming, an online poker company based offshore in Gibraltar.
But in a startling Christmas present to the online gambling industry, the Justice Department announced that its long-held interpretation of the law, previously upheld by the courts, was suddenly “wrong” and the only kind of gambling outlawed by the Wire Act was sports gambling. In fact, Justice said that the plans of New York and Illinois, President Obama's home state, to provide online lottery sales were not “within the prohibitions of the Wire Act.” Both states had been heavily lobbying Justice to change its opinion. The president of Illinois's state senate said that this change would allow Illinois to “organize the first major poker pool, garner worldwide popularity, and position itself as a âhub' for multi-state and international iGaming.”
39
This entire episode was bizarre and there really was no real explanation for the Justice Department's complete about-face and reversal of its position on the Wire Act. In addition to benefiting the gambling states, the decision also “produced windfall profits for online lottery and gambling giants like Italy-based Lottomatica and Scientific Games.” The Government Accountability Institute, a private nonprofit that investigates government corruption, issued a report pointing out the curious connections between Eric Holder and his law firms and some of these companies.
40
For example, an attorney at Holder's former law firm, Covington & Burling, represented Lottomatica in a $4.8 billion acquisition of GTECH, whose chairman, Donald Sweizer, was a major Democratic Party donor and the former political director of the DNC.
41
With this reinterpretation, Eric Holder transformed the Wire Act “into a vastly different law that potentially allowed billions of dollars' worth of gambling operations on the Internet,” and that “radical change [was] made without congressional hearings or debate.”
42
Another example is Holder's refusal to enforce federal drug laws. On October 19, 2009, Holder, through his deputy David Ogden, instructed U.S. attorneys not to prosecute “individuals whose actions are in clear and unambiguous compliance with existing state laws” that legalize marijuana for medical use.
43
But marijuana is classified as an illegal Schedule I drug under the Controlled Substances Act, which bans its sale, possession, and use.
44
Holder held a conference call at the end of August 2013 with the governors of Colorado and Washington, after the states had legalized recreational marijuana use, to inform them that the Justice Department would in essence not preempt their state laws or enforce federal law except to go after drug cartels, prevent marijuana distribution to minors, and block marijuana cultivation on public lands.
45
Holder also announced in August 2013 that he would no longer abide by the federal sentencing guidelines established by the United States Sentencing Commission under the Sentencing Reform Act provisions of the Comprehensive Crime Control Act of 1984, when it came to drug prosecutions of “low-level, nonviolent drug offenders.” He would circumvent the minimum, mandatory sentences that Congress believed was necessary to control the drug problem in the United States by undercharging or refusing to prosecute drug offenders.
46
There is no doubt an ongoing debate about the legalization of marijuana and the proper sentencing for those convicted of drug offenses. But that is an issue that is up to Congress to decide through the legislative processânot by the attorney general, who is only one executive branch official charged with enforcing federal laws passed by Congress. If he can simply decide on his own (or at the direction of the president) not to enforce a federal law for his own reasons, the executive branch then has the ability to “nullify the application of federal law” and “the entire legislative process becomes little more than a pretense.”
47
This is a breathtaking and frightening abrogation of our constitutional structure.
Holder's lax attitude on sentencing for drug crimes caused an open revolt among federal prosecutors. In a virtually unprecedented move, on January 27, 2014, the National Association of Assistant United States Attorneys, which represents hundreds of career Justice Department prosecutors, sent a letter to Eric Holder disagreeing with Holder's support for getting rid of mandatory minimum sentences for drug pushers and drug dealers. As the prosecutors told Holder, the mandatory minimum sentencing laws passed by Congress provided “more uniformity in sentencing and, most importantly, crime is now half of what it was in the era before mandatory minimum sentences took hold.” These requirements have been the cornerstone of prosecutors' ability to “dismantle large drug organizations and violent gangs” and only “target the most serious criminals.” And the primary beneficiaries of this massive crime reduction are those “who were disproportionately crime victims in the pastâminority groups, particularly those in the inner city.” As former Justice Department prosecutor Bill Otis says, “if something like that had happened in the Bush Administration,” it would have been a “Page One story.” According to Otis, the fact that so many career lawyersânot political appointeesâ“revolted against the Attorney General is a development whose importance is difficult to overstate.”
48
We discuss the Civil Rights Division in a separate chapter, but Holder's contempt for the rule of law and his politicization of enforcement in that arena is well documented. His dismissive attitude was illustrated by an appointment he made in December 2013. On December 23, 2013, DOJ's inspector general, Michael Horowitz, sent a memorandum to Holder on the top management and performance challenges facing the Justice Department.
49
Item Six expressed Horowitz's concern over the Voting Section of the Civil Rights Division. Horowitz said that the “non-ideological, non-partisan enforcement of law is fundamental to the public's trust in the Department.” Horowitz had identified cases “that the OIG believe risked undermining public confidence in the nonideological enforcement of the voting rights laws” as well as “numerous examples of harassment and marginalization of employees and managers” due to their “perceived ideological political beliefs.”
Yet Holder's response to this report was the appointment of Pamela Karlan, a “sharp progressive,” as the
New Yorker
calls her,
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and a “dishonest radical academic,” as former Voting Section whistle-blower Christian Adams calls her,
51
to be the new deputy assistant attorney general in charge of voting rights. Karlan, who refers to herself as “snarky,” has often been mentioned by liberals as a Supreme Court nominee because they consider her “a full-throated, unapologetic liberal torchbearer.”
52
During the Bush administration, Karlan relentlessly attacked the Civil Rights Division's enforcement of the Voting Rights Act, falsely claiming in a law review article in 2009 that “for five of the eight years of the Bush Administration, [it] brought no Voting Rights Act cases of its own except for one case protecting white voters.”
53
This was a complete distortion by Karlan, as the Justice Department's own website showed numerous cases filed during that eight-year period on behalf of various minority groups. Karlan, who has made no secret of her opposition to all forms of election integrity measures like voter ID, actually filed a brief on behalf of convicted vote thieves in Alabama, trying to get their convictions overturned.
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In another example of her intellectual dishonesty, Ed Whelan, another former Justice Department lawyer, pointed out that Karlan was either “hallucinating about an imaginary text or lying” in her criticism of Justice Anthony Kennedy's majority opinion in an abortion case. According to Whelan, he “can't say that [her behavior] bears favorably on her fitness for any position of trust.”
55
As a Justice Department lawyer who formerly worked in the office of the associate attorney general told one of the authors, Karlan's appointment was “a deliberate thumb in the eye of the Inspector General by Holder and the notion of even-handed, apolitical law enforcement.” She is probably the best candidate that Holder could find who would be the
least likely
to pay attention to the changes recommended by the inspector general and actually implement a nonideological, nonpartisan enforcement of federal voting laws or to stop the division's harassment of employees with “wrong” political views.