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Contentions

No Holding Back

The Wall Street Journal opens up with both barrels on attorney general nominee Eric Holder. First, the editors recite the particulars of the Marc Rich pardon:

Less than a month after the pardon, Mr. Holder told the House that “efforts to portray me as intimately involved or overly interested in this matter are simply at odds with the facts.” But as Journal reporters Gary Fields and Phil Kuntz reported at the time, Mr. Holder had “interceded with prosecutors in New York” on the matter in November 1999, some 14 months before the pardon was issued. When then U.S. Attorney Mary Jo White refused to take a meeting with Jack Quinn, who was Mr. Rich’s attorney and a former Clinton White House counsel, Mr. Holder told Mr. Quinn “we’re all sympathetic.”

Following the pardon, Mr. Holder congratulated Mr. Quinn for doing “a very good job,” while urging that “we [should] be better about getting the legal merits of the case out publicly,” according to Mr. Quinn’s notes of their conversation. It would be interesting to know exactly what Mr. Holder thinks those merits were, especially since he told Congress that the pardon application was “not particularly meritorious.” It would also be interesting to know how it was that nobody at Justice — including Mr. Holder himself, as he claims — never actually saw Mr. Rich’s pardon application before it was approved. Mr. Holder did admit that “I wish I had ensured that the Department of Justice was more fully informed” of the matter.

And they remind us there was also the FALN terrorists’ pardon:

In 1999, President Clinton offered clemency to 16 Puerto Rican members of the terrorist FALN, despite a previous warning from Attorney General Janet Reno that the group posed an “ongoing threat” to U.S. security. Here again, Mr. Holder’s role seems to have been larger than he has let on. A 1999 New York Times report notes that Mr. Holder and Justice Department pardon attorney Roger Adams met in November 1997 with Democratic House Members to discuss the Puerto Rican case.”According to Mr. Adams’s notes,” reported the Times, “Mr. Holder told the members of Congress that because the prisoners had not applied themselves for clemency this could be taken that they were not repentant, and he suggested that a statement expressing some remorse might help.” Ultimately, the prisoners were freed having never offered a statement of remorse. The pardon was widely seen as an attempt to curry favor with Puerto Rican voters ahead of Mrs. Clinton’s 2000 Senate bid.

John Fund  also comes out firing. He wonders where in the Rich matter Holder demonstrated “independence” — that most prized of qualities in an attorney general, Democrats have told us. He writes:

Critics of the pardon spanned party lines, including not only Clinton confidant Lanny Davis but Rep. Henry Waxman, then ranking Democrat on the House Government Reform Committee, who called the pardon an end-run around the judicial process. In the press, it was widely noted that Mr. Rich’s former wife, Denise, has contributed $450,000 to Mr. Clinton’s presidential library, $1.1 million to the Democratic Party and at least $109,000 to Hillary Clinton’s Senate candidacy.

All in all, Mr. Holder seems an odd choice to bring “real change” and the new ethical tone that President-elect Obama promised during the campaign. Here’s hoping Senators don’t give the charming but slippery Mr. Holder a pass during his confirmation hearings.

Some Republicans are reluctant to oppose Holder. They suggest there are more liberal candidates out there whose ideology might be more problematic for conservatives. Or they point to Hillary and Bill Clinton as the source of Holder’s missteps. (Indeed he’s in good company there.) And, after all, who wants to be the skunk at the Obama-mania garden party when everyone is having such a grand time?

But they should remember the unique role of the attorney general. As the Democrats endlessly reminded us during Alberto Gonzales’ tenure, the head of  Justice Department has special obligations beyond executing the administration’s agenda. With prosecutorial discretion comes ample latitude for political mischief in investigating and trying political opponents – and undue laxity in doing the same with regard to political allies. DOJ is the only part of the executive branch with the authority, indeed the obligation, to slow down powerful officials for whom expediency often trumps legality. Wasn’t John Ashcroft lionized for doing just that –from his hospital bed no less?

Based on what we know is there reason to conclude that Holder has the ethical wherewithal and fortitude, even in the best of health, to tell his political colleagues “no”? That “no” might be all that is stopping acts of political retribution, or a short-circuiting of administrative law and due process. And who would be on the receiving end of such treatment? Surely not allies and interests aligned with Barack Obama. In short, Republicans have the most to lose from an attorney general who is disinclined to confront his own President and administration.

In assessing how Holder would perform, all we have to go by is his record. And that is not encouraging. That’s why Republicans and Democrats (who claim to value the very quality Holder seems most to lack) should care very much about Holder’s past performance. The Senate should explore it thoroughly before deciding if he is really up for the job.


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