Obama's Enforcer (24 page)

Even liberal commentators have criticized Holder, with the
New Republic
saying that Holder's reputation “is more damaged than he ever could have imagined.”
28
The Office of Attorney General “has a fundamental conflict embedded in its mandate: It is required to both take orders from and investigate the White House.”
29
Many attorneys general, like Griffin Bell, Edwin Meese, and Michael Mukasey, have handled this potential conflict with professionalism and the highest regard for the best interests of the public and their sworn duty to uphold the Constitution and the laws of the United States. Others, like Eric Holder, have put the interests of their political master—and their particular political views—first.

This has meant that while Barack Obama and his attorney general have publicly tried to “maintain the veneer of respect for legal processes,” they have in reality worked to “stretch or break the rules whenever necessary to achieve the desired outcome—social justice being a higher form of legitimacy than society's rule of law.”
30
In fact, both the president and the attorney general seem to have taken to heart President Andrew Jackson as their exemplar. In
Worcester v. Georgia
in 1832, the U.S. Supreme Court upheld the independence of the Cherokee Indians.
31
Jackson ignored the Supreme Court's decision, forcing a treaty on them that led to the forcible removal of the Cherokees from Georgia, what became known as the Trail of Tears. Jackson is said to have responded, “John Marshall has made his decision; now let him enforce it!”
32
Holder and Obama have shown the very same contemptuous attitude toward laws passed by Congress that they don't want to enforce. And Holder has aggressively used the enormous power and plentiful resources of the Justice Department to abuse the liberty and economic rights of Americans, to manipulate racial politics to drive a wedge of hostility deep into the heart of our society, and to exploit the administration of justice as a political tool to benefit his president and his political party.

Under Eric Holder, the Justice Department has become:

“[A] sort of full employment program for progressive activists, race-obsessed bean counters (redundant I know), and lawyers who volunteered their services during the Bush years to help al-Qaeda operatives file lawsuits against the United States.”
33

There is no way to know how long it will take to repair the damage that Eric Holder has done to the management and operation of the Justice Department. One thing we do know for sure—it will take a great deal of work by a new attorney general who is willing to take on the activists that Holder will leave embedded within the career civil service ranks of the department. And it will take political willpower and steadfastness of a kind that is rarely seen in Washington.

Whether that happens at all will depend on who is president, because it is the president who decides on the character, attributes, and competence of the individual chosen to be the head of the largest law enforcement organization in the United States. And it is the president who decides whether his administration—and his attorney general—will fulfill their obligation to “faithfully execute” their duty to enforce the law and “preserve, protect and defend the Constitution of the United States.”

NOTES

Chapter 1: Justice in Charge

  
1
.  “Journalists or Criminals? Attorney General Eric Holder's Testimony before the Committee and the Justice Department's National Security Leak Investigative Techniques,” Committee on the Judiciary, House of Representatives, July 31, 2013, Executive Summary.

  
2
.  Ibid.

  
3
.  “Krauthammer's Take: Holder Won't Be Punished,”
National Review Online
, July 31, 2013.

  
4
.  Bill Otis, “The Bordering on Silly Defense of Eric Holder,” crimeand consequences.com, June 2, 2013.

  
5
.  Matthew Boyle, “Holder Less than Candid on Fast and Furious,”
Daily Caller
, Oct. 4, 2011.

  
6
.  Matthew Boyle, “Holder Claims His Testimony Was Accurate Pushes Back Against ‘Inflammatory Rhetoric,' ”
Daily Caller
, Oct. 7, 2011.

  
7
.  Matthew Boyle, “During Senate Testimony Holder Changes Misleading Testimony from May Hearing,”
Daily Caller
, Nov. 8, 2011.

  
8
.  “Justice Withdraws Inaccurate Fast and Furious Letter It Sent to Congress,” NPR Blog, The Two Way, Dec. 2, 2011.

  
9
.  Mackenzie Weinger, “Ted Cruz, Eric Holder Mix It Up At Hearing,”
Politico
, Jan. 29, 2014.

10
.  Daniel Klaidman, “Attorney General May Probe Bush Torture Policy,”
Newsweek
, March 13, 2010.

11
.  Joel Gehrke, “Attorney General Holder Can't Explain Constitutional Basis for Obama's Executive Orders,”
Washington Examiner
, Jan. 29, 2014.

12
.  Interview with Senator Ted Cruz, Jan. 20, 2014.

13
.  Bridget Johnson, “Holder Confirms Obama Ready to Use Executive Order on Guns ‘in Absence of Meaningful Action' by Congress,” PJ Media, Jan. 29, 2014.

14
.  Dylan Byers, “Jill Abramson: ‘This is the most secretive White House I have ever dealt with,' ”
Politico
, Jan. 23, 2014.

15
.  Daniel Klaidman, “Attorney General May Probe Bush Torture Policy,”
Newsweek
, March 13, 2010.

16
.  Andrew Longstreth, “Making History with Obama,”
American Lawyer
, June 5, 2008.

17
.  Keith Herbert, “Likely Obama Pick's NY Roots,”
Newsday
, Nov. 22, 2008.

18
.  Longstreth, “Making History with Obama.”

19
.  Ibid.

20
.  Ibid.

21
.  Ibid.

22
.  Wil S. Hylton, “Hope. Change. Reality.,”
GQ
, Dec. 2010.

23
.  Javier C. Hernandez, “Poised to Scale New Heights,”
New York Times
, Nov. 30, 2008

24
.  Hylton, “Hope. Change. Reality.”

25
.  Longstreth, “Making History with Obama.”

26
.  Hernandez, “Poised to Scale New Heights”; Charles C. Johnson and Ryan Girdusky, “As College Student, Eric Holder Participated in ‘Armed' Takeover of Former Columbia University ROTC Office,”
Daily Caller
, Sept. 30, 2012.

27
.  Hylton, “Hope. Change. Reality.”

28
.  Interview with Craig Donsanto, Dec. 19, 2013.

29
.  Daniel Klaidman, “Attorney General May Probe Bush Torture Policy,”
Newsweek
, March 13, 2010.

30
.  Ibid.

31
.  Annie Groer, “Sharon Malone, Eric Holder's Wife, to Appear in PBS Special ‘Slavery by Another Name,' ”
Washington Post
, Feb. 10, 2012.

32
.  Dayo Olopade, “Eric Holder's War,”
American Prospect
, Jan. 31, 2010, citing
Essence
.

33
.  Daniel Klaidman, “Independent's Day,”
Newsweek
, July 11, 2009.

34
.  “Eric Holder Profile”, NPR
All Things Considered
, Sept. 30, 1997.

35
.  
Grutter v. Bollinger
, 539 U.S. 306 (2003).

36
.  John Fund, “Infinite Affirmative Action?”
National Review
, March 6, 2012.

37
.  Eddie Dean, “Almost Blue—Carl T. Rowan, Jr. Walks a Self-Assigned Beat of D.C. Police Corruption,”
Washington City Paper
, Jan. 23, 1998.

38
.  
U.S. v. Popa
, 187 F.3d 672, 673-674 (D.C. Cir. 1999).

39
.  Popa, 187 F.3d at 675.

40
.  Popa, 187 F.3d at 677.

41
.  Interview with Eugene Volokh, Jan. 4, 2014.

42
.  Eugene Volokh, “One-to-One Speech vs. One-to-Many Speech, Criminal Harassment Laws, and Cyberstalking,” 107
Northwestern University Law Review
731, 744 (2013).

43
.  David S. Cloud and Gary Fields, “Aided by Millions in Gifts, an Insider Gets His Client Presidential Absolution,”
Wall Street Journal
, Jan. 29, 2001.

44
.  Siri Agrell, “Holder Likely to Reform Justice Department”
Globe and Mail
, Nov. 19, 2008.

45
.  Andrew Longstreth, “Making History with Obama,”
American Lawyer
, June 5, 2008.

46
.  Ibid.

47
.  Wil S. Hylton, “Hope. Change. Reality.,”
GQ
, Dec. 2010.

48
.  David Johnston, “The New Team: Eric H. Holder Jr.,”
New York Times
, Nov. 11, 2008.

49
.  Longstreth, “Making History with Obama.”

50
.  Ibid.

51
.  Hylton, “Hope. Change. Reality.”

52
.  Ibid.

53
.  “FY 2013 Budget Summary,” U.S. Department of Justice.

54
.  “Total Discretionary Budget Authority and Authorized Positions—FY 2003—FY 2013,” U.S. Department of Justice.

55
.  That would not be possible today because in 1967, Congress passed the Federal Anti-Nepotism statute to prevent the hiring of relatives by federal officials. See 5 U.S.C. § 3110. This is sometimes referred to as the “Kennedy Act.” See
Association of Am. Physicians & Surgeons v. Clinton
, 813 F.Supp. 82, 87 n.8 (D. D.C. 1993), rev'd, 997 F.2d 898 (D.C. Cir. 1993).

56
.  “DOJ Seal—History and Motto,” www.justice.gov/jmd/ls/dojseal.htm.

57
.  Interview with Christopher Coates, Jan. 28, 2014.

Chapter 2: Gibson Guitar's Green Raid

  
1
.  Andy Meek, “Gibson CEO Fires Back over Federal Raid,”
Memphis Daily News
, Aug. 26, 2011.

  
2
.  Deborah Zabarenko, “Gibson Guitar CEO Slams U.S. Raids as ‘Overreach,' ” Reuters, Oct. 12, 2011.

  
3
.  Meek, “Gibson CEO Fires Back Over Federal Raid.”

  
4
.  Zabarenko, “Gibson Guitar CEO Slams U.S. Raids as ‘Overreach.' ”

  
5
.  “Gov't Says Wood is Illegal if U.S. Workers Produce It,” Gibson Press Release, Aug. 25, 2011.

  
6
.  Craig Havighurst, “Why Gibson Guitar Was Raided by the Justice Department,” NPR, Aug. 31, 2011.

  
7
.  James C. McKinley Jr., “Gibson Guitar Settles Claim Over Imported Ebony,”
New York Times
, Aug. 6, 2012.

  
8
.  Letter of July 27, 2012, from Jerry Martin, U.S. Attorney for the Middle District of Tennessee, to Donald A. Carr, Pillsbury, Winthrop, Shaw Pittman.

  
9
.  As the settlement agreement explained, a fingerboard is also called a fretboard and “is the piece attached to the neck of the guitar, immediately under the strings.” There are even pictures of fretboards and fingerboard blanks and it is probably the first time in the history of the Justice Department that a settlement of criminal charges had to explain the construction of a guitar.

10
.  Paul J. Larkin Jr., “Gibson Guitar: Settling Away Bad Publicity,” The Foundry at The Heritage Foundation, Aug. 7, 2012.

11
.  “Now the Gibson Guitar Raids Make Sense,”
Investor's Business Daily
, May 23, 2013.

12
.  Anita Wadhwani, “Gibson Guitar CEO to Face Feds over Raid on Factory,”
Tennessean
, Sept. 15, 2011.

13
.  Ibid.

14
.  Larkin, “Gibson Guitar: Settling Away Bad Publicity.”

15
.  “Now the Gibson Guitar Raids Make Sense,”
Investor's Business Daily
, May 23, 2013.

16
.  Eric Felten, “Guitar Frets: Environmental Enforcement Leaves Musicians in Fear,”
Wall Street Journal
, Aug. 26, 2011.

17
.  Ibid.

18
.  Wadhwani, “Gibson Guitar CEO to Face Feds over Raid on Factory.”

19
.  See http://www2.gibson.com/Products/Electric-Guitars/Les-Paul/Gibson-USA/Government-Series-II-Les-Paul.aspx.

20
.  See www.justice.gov/enrd/.

21
.  Kimberly A. Strassel, “Greens Gone Wild,”
Wall Street Journal
, April 9, 2013.

22
.  Ibid.

23
.  
Evans v. U.S.
, 694 F.3d 1377, 1381 (Fed. Cir. 2012).

24
.  See
Preseault v. Interstate Commerce Commission
, 494 U.S. 1 (1990) and
Preseault v. U.S.
, 100 F.3d 1525, Fed. Cir. 1996)(en banc). In 2014, the Supreme Court ruled against the government again in
Marvin M. Brandt Revocable Trust v. U.S.
, 572 U.S.
___
(2014).

25
.  Cecilia Fex, “The Elements of Liability in a Trails Act Taking: A Guide to the Analysis,” 38
Ecol. L. Q.
673, 676 (2011).

26
.  Ibid.

27
.  
Ladd v. U.S.
, 713 F.3d 648

28
.  Thor Hearne interview with Hans von Spakovsky, Dec. 30, 2013.

29
.  
Hash v. U.S.
, No. 1:99-CV-00324-MHW, 2012 WL 1252624 (D. Idaho April 13, 2012).

30
.  Thor Hearne interview with Hans von Spakovsky, Dec. 30, 2013.

31
.  “Environmental Litigation: Cases Against the EPA and Associated Costs Over Time,” U.S. Government Accountability Office, GAO-11-650, Aug. 2011.

32
.  “GAO Report Exposes Millions in Environmental Litigation Fees for First Time,” U.S. Senate Committee on Environment and Public Works, Press Release, Aug. 31, 2011.

33
.  5 U.S.C. § 553.

34
.  5 U.S.C. § 553(b)(2).

35
.  “A Report on Sue and Settle—Regulating Behind Closed Doors,” U.S. Chamber of Commerce, May 2013, p. 5.

36
.  Ibid, p. 12.

37
.  Julian Hattern, “Greens, Industry Spar Over ‘Sue and Settle,' ”
Hill
, Nov. 22, 2013.

38
.  “A Report on Sue and Settle—Regulating Behind Closed Doors,” U.S. Chamber of Commerce, May 2013, pp. 6–7.

39
.  Ibid, p. 3.

40
.  “Presidential Memorandum—Flexible Implementation of the Mercury and Air Toxics Standards Rule,” Office of the Press Secretary, White House, Dec. 21, 2011.

41
.  “EPA Admits Error in Proposed Mercury MACT Rule,”
Power Magazine
, May 25, 2011.

42
.  Ibid.

43
.  “Potential Impacts of Future Environmental Regulations,” North American Electric Reliability Corporation, Nov. 2011.

Chapter 3: A Contempt for the Constitution and the Rule of Law

  
1
.  Testimony of Jonathan Turley, U.S. House of Representatives, Committee on the Judiciary, Dec. 3, 2012.

  
2
.  Carrie Johnson, “Some in Justice Department See D.C. Vote in House as Unconstitutional,”
Washington Post
, April 1, 2009.

  
3
.  See
Adams v. Clinton
, 90 F. Supp. 2d 35, 46-47 (D. D.C. 2000), aff'd 531 U.S. 941 (2000); Kenneth R. Thomas, “The Constitutionality of Awarding the Delegate for the District of Columbia a Vote in the House of Representatives or the Committee of the Whole,” Congressional Research Service RL 33824, Jan. 24, 2007.

  
4
.  Testimony of John P. Elwood, Deputy Assistant Attorney General, Office of Legal Counsel, Department of Justice, U.S. Senate Judiciary Committee, May 23, 2007.

  
5
.  Johnson, “Some in Justice Department See D.C. Vote in House as Unconstitutional.”

  
6
.  Edward Whelan, “Look Who's Politicizing Justice Now,”
Washington Post
, April 5, 2009.

  
7
.  Carrie Johnson, “D.C. Vote Memo Called Informal,”
Washington Post
, April 3, 2009.

  
8
.  Whelan, “Look Who's Politicizing Justice Now.”

  
9
.  Ibid.

10
.  Dan Eggen and Paul Kane, “Gonzales Hospital Episode Detailed,”
Washington Post
, May 16, 2007.

11
.  Evan Perez, “A Pick for Sensitive Justice Post,”
Wall Street Journal
, Dec. 22, 2010.

12
.  “Lawfulness of Recess Appointments During a Recess of the Senate Notwithstanding Periodic Pro Forma Sessions,” Memorandum Opinion for the Counsel to the President, Assistant Attorney General Virginia A. Seitz, Office of Legal Counsel, U.S. Department of Justice, Jan. 6, 2012.