Obama's Enforcer

by John Fund

  Another example is Holder’s refusal to enforce federal drug laws. On October 19, 2009, Holder, through his deputy David Ogden, instructed U.S. attorneys not to prosecute “individuals whose actions are in clear and unambiguous compliance with existing state laws” that legalize marijuana for medical use.43 But marijuana is classified as an illegal Schedule I drug under the Controlled Substances Act, which bans its sale, possession, and use.44 Holder held a conference call at the end of August 2013 with the governors of Colorado and Washington, after the states had legalized recreational marijuana use, to inform them that the Justice Department would in essence not preempt their state laws or enforce federal law except to go after drug cartels, prevent marijuana distribution to minors, and block marijuana cultivation on public lands.45 Holder also announced in August 2013 that he would no longer abide by the federal sentencing guidelines established by the United States Sentencing Commission under the Sentencing Reform Act provisions of the Comprehensive Crime Control Act of 1984, when it came to drug prosecutions of “low-level, nonviolent drug offenders.” He would circumvent the minimum, mandatory sentences that Congress believed was necessary to control the drug problem in the United States by undercharging or refusing to prosecute drug offenders.46

  There is no doubt an ongoing debate about the legalization of marijuana and the proper sentencing for those convicted of drug offenses. But that is an issue that is up to Congress to decide through the legislative process—not by the attorney general, who is only one executive branch official charged with enforcing federal laws passed by Congress. If he can simply decide on his own (or at the direction of the president) not to enforce a federal law for his own reasons, the executive branch then has the ability to “nullify the application of federal law” and “the entire legislative process becomes little more than a pretense.”47 This is a breathtaking and frightening abrogation of our constitutional structure.

  Holder’s lax attitude on sentencing for drug crimes caused an open revolt among federal prosecutors. In a virtually unprecedented move, on January 27, 2014, the National Association of Assistant United States Attorneys, which represents hundreds of career Justice Department prosecutors, sent a letter to Eric Holder disagreeing with Holder’s support for getting rid of mandatory minimum sentences for drug pushers and drug dealers. As the prosecutors told Holder, the mandatory minimum sentencing laws passed by Congress provided “more uniformity in sentencing and, most importantly, crime is now half of what it was in the era before mandatory minimum sentences took hold.” These requirements have been the cornerstone of prosecutors’ ability to “dismantle large drug organizations and violent gangs” and only “target the most serious criminals.” And the primary beneficiaries of this massive crime reduction are those “who were disproportionately crime victims in the past—minority groups, particularly those in the inner city.” As former Justice Department prosecutor Bill Otis says, “if something like that had happened in the Bush Administration,” it would have been a “Page One story.” According to Otis, the fact that so many career lawyers—not political appointees—“revolted against the Attorney General is a development whose importance is difficult to overstate.”48

  We discuss the Civil Rights Division in a separate chapter, but Holder’s contempt for the rule of law and his politicization of enforcement in that arena is well documented. His dismissive attitude was illustrated by an appointment he made in December 2013. On December 23, 2013, DOJ’s inspector general, Michael Horowitz, sent a memorandum to Holder on the top management and performance challenges facing the Justice Department.49 Item Six expressed Horowitz’s concern over the Voting Section of the Civil Rights Division. Horowitz said that the “non-ideological, non-partisan enforcement of law is fundamental to the public’s trust in the Department.” Horowitz had identified cases “that the OIG believe risked undermining public confidence in the nonideological enforcement of the voting rights laws” as well as “numerous examples of harassment and marginalization of employees and managers” due to their “perceived ideological political beliefs.”

  Yet Holder’s response to this report was the appointment of Pamela Karlan, a “sharp progressive,” as the New Yorker calls her,50 and a “dishonest radical academic,” as former Voting Section whistle-blower Christian Adams calls her,51 to be the new deputy assistant attorney general in charge of voting rights. Karlan, who refers to herself as “snarky,” has often been mentioned by liberals as a Supreme Court nominee because they consider her “a full-throated, unapologetic liberal torchbearer.”52

  During the Bush administration, Karlan relentlessly attacked the Civil Rights Division’s enforcement of the Voting Rights Act, falsely claiming in a law review article in 2009 that “for five of the eight years of the Bush Administration, [it] brought no Voting Rights Act cases of its own except for one case protecting white voters.”53 This was a complete distortion by Karlan, as the Justice Department’s own website showed numerous cases filed during that eight-year period on behalf of various minority groups. Karlan, who has made no secret of her opposition to all forms of election integrity measures like voter ID, actually filed a brief on behalf of convicted vote thieves in Alabama, trying to get their convictions overturned.54 In another example of her intellectual dishonesty, Ed Whelan, another former Justice Department lawyer, pointed out that Karlan was either “hallucinating about an imaginary text or lying” in her criticism of Justice Anthony Kennedy’s majority opinion in an abortion case. According to Whelan, he “can’t say that [her behavior] bears favorably on her fitness for any position of trust.”55

  As a Justice Department lawyer who formerly worked in the office of the associate attorney general told one of the authors, Karlan’s appointment was “a deliberate thumb in the eye of the Inspector General by Holder and the notion of even-handed, apolitical law enforcement.” She is probably the best candidate that Holder could find who would be the least likely to pay attention to the changes recommended by the inspector general and actually implement a nonideological, nonpartisan enforcement of federal voting laws or to stop the division’s harassment of employees with “wrong” political views.

  Karlan’s appointment was compounded by President Obama’s nomination (with Holder’s support) of Debo Adegbile to be Karlan’s boss as the new assistant attorney general of the Civil Rights Division, a nomination that Carl Rowan Jr. called an “open slap in the face to everyone in law enforcement.”56 During his time at the NAACP’s Legal Defense and Education Fund, Adegbile supported racial hiring and college admission quotas, opposed allowing employers to do criminal background checks on job applicants, claimed the government had the right to interfere in the hiring of ministers by religious organizations, and provided legal representation to Wesley Cook, the former Black Panther and Marxist revolutionary who was convicted of the cold-blooded murder of Philadelphia police officer Daniel Faulkner in 1981. Cook, better known as Mumia Abu-Jamal, is probably the most notorious cop killer in the country. Abu-Jamal’s guilt was not a close call—he confessed to hospital workers that “I shot the motherf***er, and I hope the motherf***er dies.” He did not testify in his own defense—and neither did his brother, who was at the scene of the crime. Yet Adegbile and the NAACP used this case to raise money, making false claims that Abu-Jamal was convicted because of “structural racism” in America. Adegbile’s nomination was opposed by a host of police organizations, including the Fraternal Order of Police; the black Democratic district attorney of Philadelphia, Seth Williams; as well as Bob Casey, Pennsylvania’s Democratic senator. In a sign of just how radical Adegbile is, a motion to proceed with his nomination failed by a vote of 52 to 47 on March 2, 2014, because a number of Democratic senators voted against him.

  Finally, one cannot end a discussion of Eric Holder’s arrogant contempt for the rule of law without discussing his decision to violate his constitutional duty to “take care that the laws be faithfully executed” by refusing to defend the Defense of Marriage Act (DOMA) before the U.S. Su
preme Court. Again, the issue here is not what one believes about same sex marriage as a matter of public policy. The issue is Holder’s dereliction of his duty to defend the constitutionality of laws passed by Congress.

  The Justice Department has a long-standing, well-established policy of defending a federal statute unless no reasonable argument can be made in its defense or the statute would infringe on some core presidential constitutional authority. This has been the policy of the department regardless of administration, Democratic or Republican, and is the consensus of experts and high-level Justice Department officials. In a letter that he sent to the Senate in 1980 on the attorney general’s duty to defend and enforce legislation, Benjamin Civiletti, the attorney general for the final two years of the Jimmy Carter administration, said that “if executive officers were to adopt a policy of ignoring or attacking Acts of Congress whenever they believed them to be in conflict with the provisions of the Constitution, their conduct in office could jeopardize the equilibrium established within our constitutional system.” When confronted with such a choice, “it is almost always the case that [the attorney general] can best discharge the responsibilities of his office by defending and enforcing the Act of Congress.”57 As former Clinton administration solicitor general Drew Days says, this also ensures that the government “speaks with one voice” and it prevents “the Executive Branch from using litigation as a form of post-enactment veto of legislation that the current administration dislikes.”58

  Yet on February 23, 2011, Eric Holder sent a letter to House Speaker John Boehner telling him that despite the fact that the Justice Department had previously defended the constitutionality of DOMA, it would no longer do so because there were no reasonable arguments that could be made for its constitutionality. But the department under Holder had been making precisely such “reasonable” arguments in ongoing litigation for years, claiming that “DOMA is rationally related to legitimate government interests and cannot fairly be described as born of animosity.”59 In the first three years of his administration, President Obama had not treated DOMA as if it was a facially invalid statute; he had expressed ambivalence about a statute overwhelmingly passed by Congress and signed into law by Bill Clinton. Holder suddenly took the position that the Justice Department could no longer defend the law “after previously enforcing the law, leading many to question a decision to abandon the law ‘midstream’ without any clear advocate with standing to argue the law’s merits.”60 And this only happened after increased criticism from the gay community as President Obama was entering his reelection campaign.

  Regardless of the question of the legality or acceptance of same-sex marriage, the problem is Eric Holder and the president forswearing their duty to defend laws passed by Congress. The ultimate decision in the DOMA case, U.S. v. Windsor, was a narrow 5-4 decision invalidating part of DOMA, but the majority noted that “when Congress has passed a statute and a President has signed it, it poses grave challenges to the separation of powers for the Executive at a particular moment to be able to nullify Congress’s enactment solely on its own initiative.”61

  On this issue, Eric Holder also was willing to use federal power to override state sovereignty and defy even the Supreme Court when he announced in January 2014 that the federal government would recognize same-sex marriages performed in Utah despite another Supreme Court ruling. In December 2013, a lone federal judge in Utah, Robert Shelby (a recent Obama appointee), held that Utah’s limitation of marriage to heterosexual couples violated the Constitution. After Shelby refused to stay his opinion, the state filed an emergency appeal with the U.S. Supreme Court, which stopped Shelby’s judgment from going into effect until a federal appeals court considers the issue.62 Before the stay was issued, hundreds of marriages were performed; the Supreme Court’s stay put those marriages performed in violation of state law in legal limbo.

  In announcing that the federal government would recognize those marriages, Holder mischaracterized the Supreme Court’s action as an “administrative step” and wrongly cited the Windsor decision to justify what he did. The Windsor case only held that the federal government has to recognize same-sex marriages that a “state recognizes as marriages;63 here, the Utah attorney general, Sean Reyes, announced that the state would not recognize the marriages. Noted legal analyst Ed Whelan, a former Justice Department lawyer who worked in the Office of Legal Counsel, says, as “jaded” as he is by “the lawlessness of the Obama administration,” even he “didn’t expect this.” The federal government does not have the power to “treat as marriages those same-sex relationships that the state in which the marriage supposedly took place does not recognize as marriages.”64

  The point here is not to debate the appropriateness of same-sex marriage—the point is that this is an issue entirely up to the states and their residents and legislators to decide, not the United States attorney general, who has no authority to override state laws. That is the kind of tyrannical authority that royal governors thought they had in the American colonies prior to the Revolution.

  Holder compounded his dereliction of duty by urging that state attorneys general engage in the same type of misbehavior. In February 2014, he told a meeting of the National Association of Attorneys General in Washington that they should not defend state marriage laws banning gay marriage—despite the fact that the U.S. Supreme Court has never ruled that such a prohibition violates equal protection. In an interview, a senior state official told the authors that many of the state officials resented having Holder lecture them on their obligations as attorneys general given Holder’s own many shortcomings.

  After Holder finished his public remarks, the media were cleared out of the room and the doors closed. According to the state official, Holder was then asked by one of the state attorneys general how Holder could make such a recommendation when we have an adversarial-based legal system that depends on both sides of a dispute having vigorous legal representation to make their case, particularly since attorneys general take the position that they are the exclusive representatives of the public? Holder conceded that we have an adversarial court system and admitted that both sides should be represented. He acknowledged that state marriage laws were entitled to a defense. But he said “others” should do that at the expense of the taxpayer, not the state AGs. Holder also falsely claimed that he had worked with the House of Representatives to help it find representation after he told Congress he would no longer defend DOMA.

  Eric Holder’s actions set a precedent that would allow any future president in essence to veto any legislation signed into law by his predecessor (or to override state laws) by simply deciding not to defend a federal law against legal challenge. If an administration “disagrees with duly enacted laws or finds it politically expedient not to enforce them, it waives the laws out of existence rather than fulfilling its constitutional obligation to take care that those laws be faithfully executed.”65 Why bother going to Congress and trying to persuade its members to repeal laws the president doesn’t agree with? What Holder and President Obama did destroys the separation of powers that is the basis of our constitutional system. Whether you are a liberal, a moderate, or a conservative with various points of view on many different issues, everyone should fear having an attorney general who establishes the precedent that prior laws passed by our elected representatives and signed into law by a popularly elected president can be wiped out of existence by one person in a new administration deciding that Justice simply will not defend that law in court. And Holder wants to spread his upside-down view of our constitutional system into the states like an infection.

  Federalist No. 47 discussed why the Constitution distributed power between the “legislative, executive, and judiciary departments.” James Madison explained that “the accumulation of all powers . . . in the same hands, whether of one, a few, or many . . . may justly be pronounced the very definition of tyranny.” Eric Holder has done his best to accumulate that power in the Office of the Attorney General.

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bsp; CHAPTER 4

  THE (UN)CIVIL RIGHTS DIVISION

  Civil Rights for Thee but Not for Me

  With almost a thousand employees and a 2012 appropriation of $145 million, the Civil Rights Division is one of the largest divisions within the Justice Department. It has seen significant increases in its budget under the Obama administration and has hired many new employees in career civil service positions, primarily radically liberal lawyers. As journalist Byron York says, the division is “bigger, richer and more aggressive than ever, with a far more expansive view of its authority than at any time in recent history.1

  The extent to which that authority has been misused under the Obama administration was vividly illustrated in a shocking 129-page order released by a federal court in Louisiana in September 2013. It involved the case of five New Orleans police officers who were convicted of civil rights violations over a shooting and subsequent cover-up in the aftermath of Hurricane Katrina.2 Judge Kurt Engelhardt overturned the convictions because of “grotesque prosecutorial abuse” and the “skullduggery” and “perfidy” of Justice prosecutors. He found that lawyers in the Office of the U.S. Attorney in Louisiana and in the Civil Rights Division had, among other misdeeds, made anonymous postings on the website run by the New Orleans Times-Picayune that “mocked the defense, attacked the defendants, and their attorneys, were approbatory of the United States Department of Justice, declared the defendants obviously guilty, and discussed the jury’s deliberations.”