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Forget Smooth Sailing — Will Holder’s Nomination Capsize?

Eric Holder has gone from shoo-in to the recipient of a sure-to-be unpleasant “grilling” by the Senate Judiciary Committee confirmation hearing. The Los Angeles Times reports:

Senate Judiciary Committee staffers vetting Eric H. Holder Jr.’s nomination for attorney general said Friday they are seeking testimony from the Justice Department’s former pardon attorney as they inquire into Holder’s role in the 1999 grant of clemency to members of a Puerto Rican terrorist organization.

The former pardon attorney, Roger Adams, told the Los Angeles Times this week that Holder pushed subordinates to drop their opposition to President Clinton’s consideration of clemency in that case. The clemency application received strong resistance from law enforcement officials and the Justice Department’s Office of the Pardon Attorney, which typically offers an up or down recommendation on such requests. But the request was backed by a few Democratic members of Congress, religious groups and President Carter.

Adams’ statements — and accompanying documents disclosed in the news accounts — provided the committee with new information about Holder’s role in the controversial case, said one GOP committee staff member who asked not to be identified.

The staffer, who was not authorized to speak on the topic, said the disclosures elevated concerns about Holder’s independence in cases where there may have been political pressure from the White House.

The New York Times confirms that Holder will not have an easy time of it as Republicans go over his record in private practice and potential conflicts of interest:

The Senate Judiciary Committee is to begin confirmation hearings on Mr. Holder on Thursday, and if he is confirmed he will take over at the Justice Department with perhaps the most extensive private practice of any attorney general in modern times. Colleagues and admirers see his impressive range of work as a sign of a lawyer who has seen the law from all sides.

But some Republicans plan to press Mr. Holder about what they view as the potential conflicts of interest posed by his client list and how he would go about deciding whether to bow out of issues that come before him involving past clients, staff members said. Others question how his corporate ties would affect his work at the Justice Department.

“We’ve had eight years of an administration that turned a blind eye to corporate criminals,” said Terry Collingsworth, a Washington lawyer who is suing Chiquita [ whom Holder defended against federal charges for paying protection money to Colombian terrorists to safeguard its banana crops] over the Colombian protection money and is facing Mr. Holder in the case. “We need someone with his level of experience and cachet to clean up the Justice Department. Yet I do have a concern and I sure hope that he doesn’t carry over his corporate defense practice into his approach to the job and how he handles these types of cases.”

The Democrats are rounding up high profile character witnesses (e.g. former Virginia Senator John Warner, former FBI chief Louis Freeh). I suspect that the Republicans will thank these fine gentleman for their time, but make the point that they and the public at large have not heretofore had the benefit of knowing all the details surrounding the Marc Rich and FALN terrorists pardons. The sordid details are just now coming to light. That unfamiliarity with the nooks and crannies of Holder’s career, frankly, may apply to the Obama team, which hasn’t distinguished itself in the vetting department — having given a pass to Bill Richardson and, earlier in the campaign, having selected Fannie Mae chieftan  and “Friend of Angelo” discounted mortgage recipient James Johnson to head the VP search committee (just as the housing crisis was coming to light).

During the hearing the Democrats may become victims of their own rhetoric –specifically, the outrage many prominent Democrats expressed  in 2001 over the Rich pardon. And, of course, more generally the Democrats have made a cottage industry of defending career attorneys in the Justice Department from the political whims of the Bush appointees, claiming that the latter sullied the reputation and independence of the Justice Department. (I seem to remember them denying, for example, Hans von Spakovsky , a seat on the FEC because he dared to override the views of career attorneys in the Voting Rights Section — even though von Spakovsky’s legal position was later vindicated by the Supreme Court.)

For awhile the Democrats trotted out the “one mistake” rule in Holder’s defense, but that’s not right. There are multiple mistakes:

• Weighing in as “neutral leaning favorble” on the Rich pardon;

• Steering Rich’s attorneys around the Justice Department’s established pardon process;

• Finding an attorney for Rich and providing advice to him while Holder was a Justice Department official;

• Providing less than candid testimony to Congress in 2001 that he had only a “passing familiarity” with the Rich matter when he had in fact received an in-person briefing on it and had more than a dozen contacts with Rich’s attorneys;

• Favoring the pardon of unrepentant FALN terrorists; and

• Pressuring Justice Department attorneys to change their pardon recommendation to provide the White House with the answer the Clintons wanted.  

I count six fairly serious mistakes, any one of which might be considered a disqualifying error of judgment or character. I don’t think Holder would necessarily be in such hot water if we were not talking about the attorney general. Lesser roles in government are subject to review and supervision, but the attorney general possess enormous latitude and responsibility. As we learned during Alberto Gonzales’s tenure, an attorney general who lacks ethical stature and the trust of both parties is soon rendered ineffective.

In light of all of this, the Democratic Senators and the President-elect may be forced to consider whether Holder is the appropriate chief law enforcement officer for an administration struggling mightily to diffuse the “culture of corruption” meme. It seems remarkable that the Democrats are on the verge of turning a blind eye to Holder’s serious shortcomings. But perhaps the confirmation hearing will be a clarifying event for everyone as we learn just how serious the Holder mistakes are and just how tolerant the Democrats are of business as usual in Washington. 

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