In the litany of criticisms leveled at President George W. Bush none was repeated more often than the accusation that he had "politicized the administration of justice." In endless television show appearances and congressional hearings, Democratic lawmakers like Senator Chuck Schumer railed against the politicization of the Justice Department, lecturing all who would listen about how Justice "is different than any other department. In every other department, the chief cabinet officer is supposed to follow the president's orders, requests, without exception. But the Justice Department has a higher responsibility: rule of law and the Constitution."
Democrats loved to berate the often hapless Alberto Gonzales, who they claimed failed to uphold this standard as attorney general. Although the alleged offenses occurred primarily on the watch of Gonzales (who served only two and a half of Bush's eight years), the criticism stuck and lingered long after Gonzales departed. Inspector general investigations and oversight hearings maintained the drumbeat of accusations. And when the distinguished federal judge Michael Mukasey was nominated to replace Gonzales, he was peppered by Senators Joe Biden, Russ Feingold and Patrick Leahy, among others, with questions about just how badly the department had been "politicized." The average American couldn't help but conclude that something had gone terribly awry.
It is therefore surprising that in the first seven months of the Obama administration, a series of hyper-partisan decisions, questionable appointments, and the inexplicable dismissal of a high-profile voter intimidation case against the New Black Panther party have once again fanned suspicions that the Justice Department is a pawn in partisan political battles.
Both in Congress and among a number of current and former Justice Department employees is a growing concern that the Obama administration is politicizing the department in ways the Bush team never imagined. A former Justice employee cautions that every administration has the right and the obligation to set policy. "Elections have consequences," he affirms. But he thinks that the Obama administration has gone beyond policy reversals and is interfering with prosecutorial decisions, staffing the department with unqualified personnel, and invoking privilege to thwart proper congressional oversight and public scrutiny.
Sitting in his Capitol Hill office, Texas Republican Lamar Smith, the ranking member on the House Judiciary Committee, speaks in careful, clipped sentences, rephrasing at times to convey precisely what he means. His irritation is apparent. "The whole concern here is an administration that would not politicize the Department of Justice. That was a major campaign rallying cry," he says. "If it was isolated you'd think it was an exception to the rule. But where you see three or four examples then you really worry whether they themselves are verging on violating the law or the oath of office."
This is not what the Obama administration had promised. In his confirmation hearing Eric Holder declared,
The attempts to politicize the department will not be tolerated should I become attorney general of the United States. It will be my intention to return [the civil rights] division and the Department of Justice as a whole to its great traditions and the great traditions that it had under Democratic and Republican attorneys general and presidents.
He further pronounced,
I will work to restore the credibility of a department badly shaken by allegations of improper political interference. Law enforcement decisions and personnel actions must be untainted by partisanship. Under my stewardship, the Department of Justice will serve justice, not the fleeting interests of any political party.
While some conservatives doubted that the man who helped facilitate the Marc Rich pardon and overrode the recommendation of career attorneys to give Bill Clinton a favorable recommendation on the pardon of 16 Puerto Rican terrorists in 1999 could live up to those pretty sentiments, he was confirmed by a vote of 75-21 with the support of many Republican senators.
Holder soon cast aside his confirmation rhetoric in favor of partisan politics. The first battle occurred over the Office of Legal Counsel (OLC), the elite group within the Justice Department that wrestles with difficult constitutional analysis and acts as the constitutional arbitrator for the entire administration. During his confirmation hearing Holder specifically pledged,
We don't change OLC opinions simply because a new administration takes over. The review that we would conduct would be a substantive one and reflect the best opinions of probably the best lawyers in the department as to where the law would be, what their opinions should be. It will not be a political process, it will be one based solely on our interpretation of the law.
Within weeks, however, Holder violated that pledge when the issue of voting rights for the District of Columbia emerged. It had been a longstanding position of OLC, dating back to the Kennedy administration, that federal voting rights for the District could not constitutionally be granted by statute. This position did not sit well with the new Obama administration, or with Holder personally. After all, Holder has been a prominent figure in D.C. politics and was introduced at his confirmation hearing by a longtime friend and ally Eleanor Holmes Norton, the District's nonvoting representative and a key proponent of D.C. voting rights.
Presented with OLC's settled position, Holder opted to shop around for another opinion. He went to the solicitor general, asking a lower threshold question, namely whether the solicitor general could "defend" the Obama administration if it signed a statute granting D.C. voting rights. Clint Bolick, a veteran of the Reagan Justice Department, observes, "I don't recall [another instance] when the Department of Justice went back to get a second answer, when you have a 'do over,' when the best lawyers come up with the 'wrong answer' from a policy perspective."
Another former Justice Department attorney finds the opinion shopping "extremely out of the ordinary." "[OLC] is the last word on constitutional issues," he explains. "Holder asked the wrong question to the wrong office and got an obvious, easy answer to satisfy his political agenda."
Lamar Smith describes as "worrisome" not only the initial decision but also Holder's subsequent behavior. The attorney general rejected requests from Republican members of Congress for the documents pertaining to the decision. When Holder objected to revealing the Department's internal deliberations, Smith modified his request to ask only for the final opinion, rather than the complete legal analysis. Again, Holder refused. Smith observes, "This is an administration perfectly willing to make public the interrogation techniques [used by the CIA to extract information from terrorists] but something like legal advice they might make available--we can't get these."
Many current and former Justice Department employees are angry about the decision. One explained, "Holder in his own words called the OLC the crème de la crème of Justice. The longstanding opinion of both parties' administrations shouldn't be jettisoned to serve political ends." Another longtime Justice employee says that he "never heard of such a thing." He remarks, "That's why we have institutions--to contain the authority of any one individual."
But Holder's effort to run roughshod over OLC and rebuff of subsequent scrutiny was just the beginning of his efforts to conceal controversial decisionmaking.
To Representative Frank Wolf, a moderate Republican from Northern Virginia, the "most egregious" action by Holder and the Obama administration concerns the disposition of detainees at Guantánamo Bay and Justice's interference with the flow of information from the FBI. His annoyance obvious, Wolf explains that he sent multiple letters to Holder asking a list of questions concerning the potential release of detainees, and in particular about the Uighurs, who news reports suggested at one point were about to be released in Northern Virginia. He was rebuffed: "I'm the ranking member, and I can't get them to answer a question." Wolf says that the Justice Department even went so far as to forbid FBI briefings with his office unless a Justice Department representative was present, which he terms "outrageous." He received one briefing from the FBI, but "then the political guy came in and chilled the entire meeting."
Efforts by Representative Lamar Smith and Senator Jeff Sessions of Alabama to obtain information on the administration's Guantánamo plans, including a response to their query as to how the possible release of the Uighurs squared with federal law preventing entry into the United States by those who had received terror training, were similarly thwarted. Smith says that on the topic of detainees, "We haven't gotten a single response to a letter of inquiry."
But these instances are tame compared with the Justice Department's controversial and still unexplained decision to dismiss a default judgment obtained in a case of egregious voter intimidation. On Election Day 2008, members of the New Black Panther organization, dubbed by the Justice Department a "black-super-racist organization" were captured on videotape at a Philadelphia polling place. One wielded a nightstick. All wore the uniform and insignia of the organization. They made racial threats and hurled insults at voters. After the video made its way around the Internet, the voting rights section of the Justice Department's civil rights division investigated. Additional evidence showed that the New Black Panthers had in Internet postings called for "300 members to be deployed" at the polls on Election Day. Bartle Bull, a veteran activist and civil rights attorney, filed an affidavit in support of the Justice Department, terming it "the most blatant form of voter intimidation I have encountered in my life in political campaigns in many states, going back to the work I did in Mississippi in the 1960s."
A Justice Department complaint was filed on January 7, 2009, against the New Black Panthers national organization and the individuals present at the polls. Although the Justice lawyers urged the defendants (one of whom was a lawyer himself) to respond, they did not. The court then ordered the Justice lawyers to file a default judgment against the Panthers. Nevertheless, in an unprecedented move, the Justice Department in May dismissed the case against all defendants, save the single nightstick-wielding individual.
Multiple sources within and outside of the Justice Department confirm the curious sequence of events. In April, a preliminary filing of default was filed by Justice lawyers with the court clerk. No concern or objection was raised within Justice. This decision was approved by both the acting assistant attorney general for civil rights, Loretta King, and Steve Rosenbaum, previously acting deputy assistant attorney general for civil rights and recently returned to his post as section chief for housing.
Shortly thereafter, the career lawyers who actually filed the case and obtained the judgment were peppered with questions, according to sources with knowledge of the events. New legal theories were raised disputing how the non-baton-wielding defendants and the New Black Panther party itself could be charged. There wasn't enough evidence, it was suggested, or the case had to be dropped entirely because there was only conclusive evidence against the single baton-wielding defendant. The New Black Panthers had First Amendment rights the career attorneys were told. On it went, as each theory was researched and shot down by the beleaguered lawyers.
As the internal battle raged, the career lawyers presented ample facts and legal theories based on basic principles of liability and citations to other voting rights cases to substantiate the case. In late April, they were instructed by King to seek a delay of the default judgment for two weeks and to make no mention of the change in administrations in the filings seeking the delay. In mid-May, the appellate section weighed in recommending the case go forward. Case discussion, briefings, and mock arguments continued. All of this came to an end when King ordered the default judgment withdrawn on May 15. The decision mystified lawyers in the civil rights division as well as outside observers including the U.S. Commission on Civil Rights, which sent a letter of inquiry.
Following the default judgment and its coverage in the press, Lamar Smith and Frank Wolf sent rounds of letters demanding to know who made the decision and why. Justice spokesmen insisted in writing and in congressional briefings that "career lawyers" had made the call. But King holds a political position. Those with direct knowledge of the events and veterans of the department both doubt that a decision as controversial as this could ever be made without at least consulting King's boss, associate attorney general Thomas J. Perrelli, and likely then the deputy attorney general and the attorney general himself. And indeed this week the Washington Times reported that Perrelli had made the final call. Certainly once the decision was made, Holder and his political appointees soon became deeply immersed in the effort to respond to congressional leaders' attempts to ferret out the reason for the dismissal.
The Justice Department initially claimed the "facts and law" did not support going forward in the case, although just weeks earlier a default filing had been supported. More letters followed from Smith and Wolf addressed to Holder and his underlings. In mid July, the Justice Department offered a series of thinly supported reasons for the dismissal. The case was dismissed because the Panthers' Internet posts about deploying at polls did not mention bringing weapons, Justice claimed. Yet voter intimidation laws require no such specificity or the use of weapons. Then Justice claimed the New Black Panther organization did not control the individual defendants. But again, the facts--specifically an interview where the New Black Panther chairman boasts of such control--suggest otherwise. Next Justice suggested there was no case because the Black Panthers disavowed the defendants' actions after the fact. Voluminous case law suggests that this defense is preposterous. The Justice Department, moreover, never explained why more discovery was not conducted in the case if the facts were in doubt, rather than an outright dismissal.
The Justice Department had invoked claims of "privilege" to resist providing further information to Wolf, although ample case law suggests that excuse cannot be deployed against members of Congress.
One cannot read through the correspondence without concluding that Holder's Justice Department is grasping at straws to defend a decision made for a purpose it wants to conceal. Positions never before used by the civil rights division have been tossed about, in contradiction of previous case law and department policy. While the Justice Department has cited the First Amendment rights of the Panthers, it had never before accepted such a defense in a case of voter intimidation. (Steve Rosenbaum himself once filed a voter intimidation claim against Jesse Helms and the North Carolina state Republican party for merely sending a postcard memo, normally quintessential protected political speech, which the department found misleading.) And while the Justice Department seems bent on coming up with excuses for the New Black Panther party, the department took an entirely different approach in Pima County, Arizona, where the presence of Minutemen legally carrying firearms on Election Day set off more than a half dozen visits by the Justice Department and multiple inquiries.
Observers remain baffled as to the reason for the dismissal. Some wonder if a Philadelphia politician weighed in. Others speculate that the Obama administration fears offending allies in the African-American community or simply recoiled against the notion that civil rights laws originally designed to prosecute white segregationists might be applied to a militant African-American organization.
But, as one former Justice official notes, although charges of "political meddling" were constantly raised in the Bush administration, "to date the inspector general has never found a single case dropped or instituted due to political interference. Already [during the Obama administration] we have a case--the New Black Panther case--in which actual politicization occurred."
Wolf becomes irate when discussing the New Black Panther case. Asked if he believes the Justice Department has been honest, he says tersely, "I don't." Although he was briefed by King and Rosenbaum (who had not worked on investigating or filing the case), they seemed unaware of some of the case's basic facts. They claimed that one defendant lived at the facility and therefore had a right to be at the polling place. Wolf pointed out the polling place was a retirement home and that the defendant lived blocks away. The Justice Department attorneys told Wolf they "didn't know anything about him living there." He says, "We can't get an answer. I have lost confidence in Eric Holder. I don't know if I believe them."
Smith and Wolf are pursuing multiple avenues to get to the bottom of the matter--requesting an inspector general investigation, seeking a hearing or a possible congressional resolution. The inspector general has referred the matter to Justice's Office of Professional Responsibility (OPR). House Judiciary chairman John Conyers is considering a hearing, but only on the general topic of voting rights (although Republicans on the committee would have the opportunity to raise the issue). Following release of the Washington Times story identifying the associate attorney general's involvement in the case, Smith issued a written statement blasting the Justice Department's lack of candor:
It is clear that political appointees at the Justice Department allowed career employees to be pressured to drop a case against the President's political allies. That is politicizing justice and it undermines democracy. The Attorney General must come clean to Congress about the role his political appointees played in the dismissal and disciplinary action must be taken against anyone who applied political pressure to sway a law enforcement matter.
But it is not just such decisions at Justice that are raising eyebrows. The hiring and appointment decisions by the Obama administration have been equally surprising. There was no greater criticism of the Bush Justice Department than "cronyism" and politicization of hiring decisions. The firing of nine U.S. attorneys set off a firestorm that ultimately resulted in the resignation of Gonzales, who was himself regularly criticized as being insufficiently independent of President Bush.
As Clint Bolick explains, "The president is entitled to have whatever policy advisers he wants. But when you have someone whose job it is to enforce the law you must have someone who is not only qualified but someone determined to enforce the law." That standard seems not to be operative in the Holder Justice Department.
Take the case of Mary Smith, a Native-American Chicago lawyer and Obama supporter. She has been nominated as assistant attorney general in the tax division. While she did serve in the Clinton administration, she has no expertise in tax matters and has not spoken on the topic or taken professional education courses in tax law. She did, however, work on three successive Democratic campaigns (including Obama's). A former Justice Department official asks of Smith, "This was the best they could do?"
At her confirmation hearing, Senator Sessions voiced his grave displeasure. "Tax law is very specialized and it's certainly not an area where you learn on the job." He continued, "You should not put people in a job they're not prepared to handle." While the Senate Judiciary Committee voted to confirm her not a single Democrat spoke in her defense. Lamar Smith says, "It is obviously being done for political reasons. It is not supposed to be a reward for politics back home. It is a violation of trust and a disservice to the American people." One current Justice Department attorney remarks that placing a political supporter in charge of the tax division "sounds like Nixon."
Attention has also focused on Jennifer Daskal, a former Human Rights Watch lawyer with no prosecutorial background but rather a record of aggressive advocacy on behalf of Guantánamo detainees (e.g., questioning the guilt of Khalid Sheikh Mohammed, objecting to the incarceration of a 15-year-old who killed Marines). Her new job, remarkably enough, is on the Guantánamo task force that will make recommendations on detainee policy. She is now free to pursue her agenda from inside the Justice Department.
Dawn Johnsen's nomination to head OLC quickly became controversial given her record of rabid criticism of the Bush administration, her extreme views on national security and abortion (she once wrote that limits on abortion would be tantamount to "slavery" under the Thirteenth Amendment), and her insistence that the Justice Department should pursue novel legal theories based on "economic justice." Threatening a "make-over" of OLC, she appeared to be precisely the sort of extreme partisan whom Holder had suggested would be unwelcome in his department. Her nomination has now stalled, with a number of Democratic senators unwilling to support her nomination.
Then there is Les Jin, who was chief of staff to the controversial former chair of the U.S. Commission on Civil Rights, Mary Frances Berry, who engaged in such regular political stunts as attempting to prevent the seating of George W. Bush's lawful nominee to the commission. Jin is now in a senior counselor spot at Justice. Another opening has been staffed by Julie Fernandes, an attorney who, prior to joining the department, worked for a left-wing civil rights organization and routinely weighed in on pending cases. Mark Kappelhoff who was chief of the criminal section of the civil rights division at Justice (and who took the position, while serving in the criminal section, that a campaign mailer reminding voters they must be citizens to cast a ballot was illegal "voter intimidation") maxed out as an Obama donor and has been boosted to principal deputy attorney general for civil rights.
While the Bush administration was investigated for seeking out conservative lawyers and staff, the Obama administration has been given a pass for going to the other extreme and stocking Justice with ultra-left leaning partisans. Overt signs of political activity and support now are on full display throughout the department. While it was unheard of to display campaign literature or paraphernalia during the Bush years, in the Holder Justice Department "Yes we did!" signs are fully evident, as are copies of reverential Obama campaign posters.
There also remain the ongoing investigations of OLC attorneys in the Bush administration, concerning the advice they provided about the legality of interrogation techniques. Although Obama has urged the country "to look forward and not back," Holder is pressing full steam ahead with the investigation of John Yoo, Jay Bybee, and Steven Bradbury, who rendered lengthy legal opinions at OLC on the subject of enhanced interrogation techniques.
The prospect of OPR attorneys, with no particular expertise in national security matters, providing grounds for either criminal or professional ethics charges based on the detailed legal work of their colleagues has brought a torrent of complaints. Former Attorney General Michael Mukasey explained in a reporters' roundtable in December 2008,
What I have said is that there is absolutely no evidence that anybody who rendered a legal opinion, either with respect to surveillance or with respect to interrogation policies, did so for any reason other than to protect the security of the country and in the belief that he or she was doing something lawful. In those circumstances, there is no occasion to consider prosecution and there is no occasion to consider pardon. If the word goes out to the contrary, then people are going to get the message, which is that if you come up with an answer that is not considered desirable in the future you might face prosecution, and that creates an incentive not to give an honest answer but to give an answer that may be acceptable in the future. It also creates some incentive in people not to ask in the first place.
Ronald Rotunda, a professor of law at Chapman Law School and a specialist in ethics, was consulted by the Justice Department on the OPR's investigation and cannot comment on its specifics. He does, however, express bewilderment that dozens of pages of legal analysis in which direction is carefully given as to what "may" or "might" constitute torture has now been converted into the basis for prosecution. "I can't imagine you would discipline someone who goes through everything methodically." He explains, "If you don't like the particular policies, then change the policies." He draws an analogy with the attacks on free speech during the Vietnam war and McCarthy eras in which lawyers with particular views were demonized and threatened with loss of their professional licenses.
Yet Holder pushes on with a highly charged political inquiry, to the delight and with the encouragement of liberal Democrats in Congress. News reports have revealed that a draft report based on OPR's investigation was reviewed and sharply criticized by Mukasey and his deputy, Mark Filip, in late 2008. One former Justice official with knowledge of the matter says, "It is safe to say they had a number of concerns about the draft report both as to the timing and the substance" of the work by OPR. There is, this official reports, "institutional unease by senior career people" at Justice that good faith legal work may place attorneys in peril. "The department won't be able to attract the best and the brightest. You really want lawyers who will give candid legal advice."
In looking at the totality of Holder's performance, the degree to which he has departed from his confirmation hearing rhetoric is glaring. Any demarcation between the Obama administration's political agenda and the impartial administration of justice is being eradicated. "Holder is the most political, partisan attorney general I can remember," says Frank Wolf. A former Justice Department official says that "the entire equilibrium of the department is out of whack." Lamar Smith, too, is dismayed. He says he has met with Holder several times. "You hear the words but there is a disconnect with the actions. We keep hoping for better."
Certainly that was the promise of the Obama administration. "Hope" and "change" got millions to the polls. But within half a year, the Justice Department is once again beset by allegations of impropriety and politicization. The difference of course is that the current congressional leadership no longer has any incentive to investigate and illuminate the department's misdeeds. "Ending the politicization of the Justice Department," we have learned, was nothing more than a campaign slogan.