National Public Radio has
broken the news that
Attorney General Eric Holder is stepping down. There had been
some chatter all the way back to President Barack Obama’s
re-election that he didn’t want to stay the full eight years.
There will be plenty of analysis in the coming days of the man
who seemed deeply concerned about civil liberties violations by
everybody except for the administration he worked for. In the
meantime, here’s some pieces from Reason’s archive that highlight
what we’ve had to say about the man.
To start, all the way back in 2008, Reason’s Shikha Dalmia
thought Holder was a poor
choice before he was even nominated:
Though Holder has a good resume, his positions and record
suggest that he does not understand the constitutional limitations
within which this office is supposed to operate. He is a drug
warrior and even proposed to stiffen penalties
for the possession of marijuana. He was also involved in the
federal government’s decision to seize Elian Gonzalez from his
aunt’s home and return him to Cuba
without obtaining a court order, a terrible lapse of judgment.
Nor is he a pillar of rectitude: There have been questions about
whether he was completely
upfront about the Justice Department’s conduct in the Branch
Davidians-Waco fiasco. And
some suspect that he might have with-held information about
billionaire fugitive and tax evader, Marc Rich, to facilitate
Rich’s pardon by President Clinton.
Also back then, Reason’s Damon Root worried about Holder’s lack
of respect for the
Second Amendment:
In the aftermath of the 9/11 attacks, for instance, Holder took
to the pages of The Washington Post, where he played on
the public’s newfound fear of terrorism to lobby for additional gun
show regulations. But as National Review‘s Jim Geraghty
recently
pointed out, of the two “terrorists” that Holder claimed were
stalking America’s gun show circuit, one was eventually acquitted
of supplying guns to terrorists (though not of the separate charge
of weapons smuggling), while the other, a man named Ali Boumelhem,
didn’t buy so much as a camouflage vest at a gun show. Since he had
a felony record he let his brother do the shopping. In Holder’s
mind, that’s a “loophole” that needs closing, but as Geraghty
notes, “background checks like the one Holder was calling for would
not have stopped [it], since the straw purchaser (the surrogate for
the real buyer) is chosen because he has a clean record.” Unless
Holder wants to forbid gun sales to people with disreputable family
members or friends, it’s hard to imagine how any law could prevent
this situation.More recently, Holder was one of thirteen former Justice
Department officials to sign an amicus brief on behalf of the D.C.
government in the Heller case. That
document, which endorsed restrictive gun control measures and
cited rare and sensational events like the Columbine and Virginia
Tech school shootings as evidence of “the deadly toll that firearms
exact,” also made the case for the collective rights interpretation
that has now been rejected by both the Supreme Court and leading
liberal legal scholars.
Since then the Supreme Court has upheld
bans against third-party gun sales.
Here’s some analysis from Holder’s
confirmation hearing by Reason’s Jacob Sullum that can make us
all laugh heartily in retrospect:
Holder said President Bush had no right to ignore the Foreign
Intelligence Surveillance Act’s warrant requirement
for monitoring communications between Americans and
people in other countries. Although he deemed Bush’s so-called
Terrorist Surveillance Program “useful,” he said the president
should have asked Congress to revise the statute instead of
secretly breaking the law. That is pretty much the position taken
by Obama, who voted to change FISA so executive branch officials
can unliterally authorize surveillance of communications involving
people in the U.S. if the ostensible target is believed to be
located abroad.
Sullum worried that Holder’s declaration that we were “at war”
with terrorists would be used to “justify legal short cuts and
limits on civil liberties.” Turns out Sullum was right!
During Obama’s first term, the Department of Justice had an
awkward, dangerously unpredictable response to medical marijuana
dispensaries as more states legalized the drug’s use. Holder said
the Drug Enforcement Agency would not be going after distributors
who were following state law, but yet federal
raids on legal clinics continued to follow. Reason followed
this trend across Holder’s reign, and in 2013, Sullum noted that
Holder and Obama were even
tougher on medical marijuana than George W. Bush’s:
According to a
new report from California NORML, “over 335 defendants have
been charged with federal crimes related to medical marijuana in
states with medical marijuana laws.” Despite Barack Obama’s
promises
of prosecutorial restraint in this area, “153 medical marijuana
cases have been brought in the 4¼ years of the Obama
administration, nearly as many as under the 8 years of the Bush
administration (163).” In other words, Obama is averaging 36
medical marijuana prosecutions a year, compared to 20 a year under
his predecessor. And although Attorney General Eric Holder has
repeatedly
claimed the Justice Department is not targeting suppliers who
comply with state law, “the DOJ has targeted many facilities that
were in full compliance with local laws and regulations.”
Aaron Sandusky, who was legally operating a medical marijuana
dispensary in California, is one of the victims of the
administration’s zealous pursuit. He was sentenced to 10 years in
prison. Read and watch more
here.
In 2011, Holder declared the Department of Justice would not
defend the Defense of Marriage Act in court, believing the law to
be unconstitutional. Congress arranged to defend the law and
conservatives complained that the administration wasn’t doing its
duties. Reason’s Damon Root explained they were
following conservative precedents:
Keep in mind that while the Constitution requires the executive
branch to “take care that the laws be faithfully executed,” the
president also swears an oath to “preserve, protect, and defend”
the Constitution. The question is what happens when the executive
is charged with executing a law he deems unconstitutional. Should a
contested congressional statute trump an oath to the
Constitution?Deputy Solicitor General (and current Supreme Court Chief
Justice) John Roberts faced that dilemma in 1990. At issue that
year in
Metro Broadcasting, Inc. v. Federal Communications
Commission was a government policy giving preferential
treatment to minority-owned stations seeking a broadcast license
from the FCC. According to the George H.W. Bush administration this
racial preference was unconstitutional. Roberts therefore filed a
brief with the Supreme Court describing the policy as “precisely
the type of racial stereotyping that is anathema to basic
constitutional principles” while permitting the FCC to mount its
own defense of the minority preference. The Court sided with the
FCC.So unless Gingrich and other conservative critics are also
willing to denounce Bork and Roberts for violating the rule of law,
they have no coherent argument against Holder and Obama. In fact,
conservatives might even want to thank the administration. While
Obama’s decision was probably unnecessary to secure DOMA’s eventual
legal defeat, it has given the GOP a powerful campaign issue. It
may also have set the stage for some political payback. As the
liberal UCLA law professor Adam Winkler
worried last week in response to Holder’s announcement, “Think
of the laws that might be undermined by the next Republican
president.”
As the president headed toward his second term we began to note
more and more the administration’s lack of transparency and the
Department of Justice’s role in it, as well Holder’s defense of the
president’s ability to
kill American citizens overseas without due process by calling
them terrorists. Again from Sullum:
In short, Holder claims that Congress, by authorizing the use of
military force against those responsible for the 9/11 attacks,
empowered the president to order the execution of anyone he
identifies as a terrorist, wherever that person may be found
(with the possible exception of the United States). If presidents
were infallible and always virtuous, there would be no problem with
this policy; since they are neither, we should perhaps be wary of
letting them decide exactly how much process is due for those they
deem deserving of death.
In 2013,
Holder declined to tell senators whether he thought the
president should be able to order the execution of Americans on
American soil without any due process because they were believed to
be engaged in acts of terrorism.
Here is Gene Healy in 2012 on the Department of Justice’s
terrible record on
transparency:
In its 2011 year-end review of executive branch secrecy, the
Electronic Frontier Foundation noted that Obama’s Justice
Department has refused to release its interpretation of Section 215
of the Patriot Act, compelling production of Americans financial,
medical and communications records in security investigations.
There’s a gap between “what the public thinks the law says and what
the American government secretly thinks the law says,” amounting to
a “Secret Patriot Act,” Sen. Ron Wyden, D-Ore., has warned.Moreover, EFF points out, the administration “refuses to release
its legal justification for killing an American citizen abroad
without a trial, despite announcing the killing in a press
conference.” If the president is going to target American citizens
for death by drone, shouldn’t we at least get to examine, in broad
daylight, the legal and constitutional arguments for doing so, so
we can know how far they extend?In passing, EFF noted this little gem, an actual headline from
the Wall Street Journal in September: “Anonymous US officials push
open government.” You can’t make this stuff up — well, maybe you
could, but why bother, when the truth is bad enough?
As for the gunrunning “Fast and Furious” scandal, where the feds
provided guns to drug traffickers in Mexico in order to catch them
(and failed miserably, leading to death of a border patrol agent)
Holder evaded responsibility, claiming ignorance as the DOJ refused
to provide documents to investigators in Congress. Reasons’ J.D.
Tuccille took a
dim view on the idea that Holder just didn’t know it was going
on:
I don’t think for a moment the denizens of the imperial capital
care what does and does not pass the laugh test in the provinces,
but the Republic raises some good points. The Inspector
General may find it “troubling that a case of this magnitude, and
one that affected Mexico so significantly was not directly briefed
to the Attorney General,” but some of us find it completely
freaking preposterous. Either Holder (and Mukasey, before him) knew
about these operations and are being given a thorough whitewashing
in the report, or else the U.S. Attorney General has lost control
of whole sections of his department — whole armed, tax-funded
sections that are dealing in weapons and operating in neighboring
countries.An either-or choice between deceitful bastard and incompetent
figurehead should not be read as an exoneration.
In 2013, Holder introduced his “Smart
on Crime” initiative to introduce important reforms like giving
judges more leeway to ignore mandatory minimums in nonviolent drug
cases. Reason has praised such efforts (modest though they are
compared to the devastation the war on drugs has wrought). In
August, Sullum noted that
Holder’s own prosecutors resist one of the things he’s doing as
attorney general that isn’t awful. They use the threat of harsh
sentencing to wring out plea deals and avoid trials:
Consider what can happen to recalcitrant defendants who insist
on going to trial. Last year Roy Lee Clay, a Baltimore heroin
dealer who turned down a plea deal under which he would have served
10 years in prison,
received a mandatory life sentence after he was convicted and
federal prosecutors invoked sentencing enhancements based on his
prior offenses. In 2005 the same sort of enhancements resulted in a
life sentence for Roderick “Rudd” Walker, a Deadhead from
Buffalo who was offered an eight-year sentence for pleading guilty
to LSD charges.In my view, no one should go to prison for engaging in
consensual transactions. But even if you think that Clay and Walker
deserved to do time, a life sentence cannot be appropriate if
prosecutors were prepared to say a term of a decade or less
was.When you see the stark choices that federal defendants face, you
can begin to understand why an astonishing 97 percent of them
decide to plead guilty. The bigger the gap between the sentence
a defendant can get through a plea bargain and the one he will get
if he is convicted after a trial, the stronger his incentive to
“cooperate”—and the weaker the system’s claim to be doing
justice.
There will be plenty more analysis of where Holder succeeded and
fail to champion for civil liberties in the coming weeks. Reason
readers apparently have made their own decision on Holder. Last
year they named him on of the
top ten “enemies of liberty.”
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