Tuesday, February 16, 2010

Poor Eric Holder: He's just too nice to fight politically

The New York Times had a profile yesterday of how Eric Holder's tenure at the Department of Justice is going. And it all seems to come down that Eric Holder is just working hard to do right at his job but he doesn't have the political skills to sell his choices to the American public.
Last winter, when Attorney General Eric H. Holder Jr. called the United States a “nation of cowards” for avoiding frank conversations on race, President Obama mildly rebuked him in public.

Out of view, Mr. Obama’s aides did far more. Rahm Emanuel and Jim Messina, the White House chief and deputy chief of staff, proposed installing a minder alongside Mr. Holder to prevent further gaffes — someone with better “political antennae,” as one administration official put it.

When he heard of the proposal at a White House meeting, Mr. Holder fumed; soon after, he confronted his deputy, David W. Ogden, who knew of the plan but had not alerted his boss, according to several officials. Mr. Holder fought off the proposal, signaling that his job was about the law, not political messaging.

A year later, he is no longer so certain. His most important plan — to try Khalid Shaikh Mohammed, the self-described architect of the Sept. 11 attacks, in federal court in Manhattan — collapsed before it even began, after support from the public and local officials withered.

Now Mr. Holder has switched from resisting what he had considered encroachment by White House political officials to seeking their guidance. Two weeks ago, he met with advisers there to discuss how to unite against common foes. They agreed to allow Mr. Holder, who has not appeared on a Sunday talk show since entering office, to speak out more; he agreed to let them help hone his message.

The political attacks over terrorism cases were “starting to constrain my ability to function as attorney general,” he said in an interview last week. “I have to do a better job in explaining the decisions that I have made,” Mr. Holder also said, adding, “I have to be more forceful in advocating for why I believe these are trials that should be held on the civilian side.”

But now Mr. Holder is in the awkward position of pushing for an approach that he acknowledges he would accept defeat on. The administration hopes to announce a new venue for the Sept. 11 trial within three weeks, he said last Tuesday. But Congress could pass legislation requiring that Mr. Mohammed be tried by a military commission, or Mr. Obama himself could change direction.

“You always have to be flexible,” Mr. Holder said, allowing that justice could be served in a commission trial, too, and praising generals who “adapt their game plans” as the situation changes.

In interviews, White House officials uniformly conveyed support, even sympathy, for Mr. Holder. “He’s in a very tough spot,” said David Axelrod, a senior adviser to Mr. Obama, who added that he would help Mr. Holder with a communications strategy only after the legal decisions had been made. “All he wants to do is bring these people to justice.”

The coming weeks could determine the ultimate shape of Obama-era detainee policy. They could also define the sort of attorney general Mr. Holder turns out to be: how unyielding, how capable of persuading those inside the administration — including Mr. Obama — and outside to accept his judgment.

He arrived determined to assert the Justice Department’s independence. A self-described “student of history,” he outfitted his conference room with reminders of what it takes to join the ranks of the most respected attorneys general: portraits of lionized predecessors, including some who defied their presidents or restored the Justice Department after scandal.
Yes, he's just working hard to "do right."

But there is a whole lot of how he has also been working hard to politicize the Department of Justice in ways that would have sent people howling if John Ashcroft or Alberto Gonzales had done them. Of course, none of this information makes it into the New York Times article. For that sort of information, you need to read Jennifer Rubin's article from last summer on Eric Holder's steps to politicize the Justice Department after only a few months in office.

He overruled a decision by the career lawyers in the Office of Legal Counsel on a decision whether or not it was constitutional for Congress to simply pass a law to grant the District of Columbia 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."
This is not the only issue on which Holder has neglected to reply to requests from congressmen for more information on his decisions such as the choice to release the Uighers being held in Guantanamo or on the administration's plans to shut down Guantanamo.

The most egregiously political act is how Holder acted on the charges against members of the New Black Panthers for voter intimidation in the 2008 election.
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.
The Justice Department is still refusing to share information on this decision. The New York Times has, apparently, never heard of this case and didn't think to share it with their readers.

There are also his choices to pursue investigations of the officials from the time of the Bush administration who conducted interrogations and wrote memoranda on what was possible in how to treat captured terrorists. He has no regard for the precedents he is setting of one administration investigating and perhaps prosecuting members of a previous administration for policy decisions made.

In the New York Times version poor little ol' Holder is nobly doing what he thinks in right in fighting terrorism and just lacks the political skills to sell his increasingly unpopular decisions on trying KSM in civilian courts or to Mirandize Abdumutallab. Of course this guy still seems to use his role at the Department of Justice to pressure career employees in order to help Obama's political allies. Imagine how such a practice could paralyze the ability of people to act honestly in their jobs today if they fear that another party will come in and start criminalizing policy disagreements.

As Jennifer Rubin concludes,
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.
The New York Times in its profile of Holder just didn't seem to know the complete story about Holder's mastery of politics.