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Justice, Denied

Lawlessness and corruption in the Obama-Holder Justice Department. From our new November issue.

By From the November 2010 issue

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Under attorney general Eric Holder, the Obama Department of Justice (DOJ) is dangerously politicized, radically leftist, racialist, lawless, and at times corrupt. The good news is that it's also often incompetent. This means the Holderites can bungle their leftist lawlessness so badly that even the most reticent of judges are obliged to smack them down.

The abuses by the Holderites are legion. They range from DOJ's infamous abandonment of the already-won voter-intimidation case against several New Black Panthers to multi-faceted assaults on traditional standards of voting rights and obligations; from a growing list of lawsuits deliberately destructive of border security and citizenship laws to outrageously race-based bullying tactics; from efforts to undermine military discipline and state sovereignty on homosexual-related issues to the dangerous obsession with terrorists' "rights" to the detriment of national security; and, finally, to the selection of judges openly contemptuous of the existing law-all while dedicated to a vision of judge-imposed "universal justice" based not on the text of American statutes but instead on the reigning cultural standards of coastal and international elites. While doing all this, the Holderites operate the least transparent DOJ in decades, treat congressmen and independent agencies with contempt, and claim breathtakingly spurious "privileges" against disclosure of public information.

This isn't law enforcement and it isn't justice, but instead is subversive of both.

The politically moderate blogger and law professor Ann Althouse, who voted for Barack Obama, wrote a reaction to a November 2009 Holder testimony before the Senate that could stand as a far broader condemnation of his qualities. Holder, she wrote, "is utterly pathetic here. Either he knows damned well what he's doing and he's lying or he's outrageously unqualified for his job."

The New Black Panther case, which concerns the attempts of two club-wielding gang members to intimidate voters outside voting stations in Philadelphia in the 2008 election, provides a perfect window into the modus operandi of the Holder Justice Department, one which has far wider implications than just the question of whether two crackpot thugs deserved to receive stiff sanctions for clear, unambiguous attempts at voter intimidation. How clear? Consider the words of Laughlin McDonald, director of the ACLU Voting Rights Project. He told me on September 17 that he had not delved deeply into the case, but had seen the videos and was generally aware of the controversy: "I thought that that definitely raised very serious questions about what was going on. I think that if people were doing the same things while wearing white robes and hoods, most other people would be outraged by it -- certainly very concerned about the propriety of it."

Well, of course. Yet all along, the question asked by the U.S. Commission on Civil Rights, which conducted an in-depth study of the matter, was a bigger one: whether case was indicative of a broad policy change at DOJ. Whistle-blowing attorney J. Christian Adams told the commission it was, and he was backed to the hilt on September 24 by his former Justice Department colleague (and onetime ACLU stalwart) Christopher Coates in riveting testimony to the commission -- and, long before that, backed in general terms by at least three other former DOJ officials.

What Adams, Coates, and the others say, and back up with a fair amount of strong circumstantial evidence combined with firsthand experience, is twofold. Their first charge is that the Holderites have consciously adopted a practice of refusing to enforce civil rights laws when the perpetrators are black (or maybe Latino) and the victims are white (or Asian). It's a charge certainly in keeping with Holder's own words to the Washington Post in 1996 that a black man's "race defines him more particularly than anything else. Black people have a common cause that requires attending to." Mr. Holder elaborated: "It really says that…I am not the tall U.S. Attorney, I am not the thin U.S. Attorney. I am the black U.S. Attorney.… There's a common cause that bonds the black U.S. Attorney with the black criminal or the black doctor with the black homeless person."

No wonder the Obama administration rushed, just a month after taking office, to file a brief effectively on behalf of the city of New Haven, Connecticut, to defend its refusal to promote, on purely racial grounds, white firefighters who had by objective standards earned the higher positions. On the same day, the Holder Justice Department ordered Dayton, Ohio, to hire a specific number of black policemen and firemen-a racial quota, pure and simple. In an Alabama-based case in September, meanwhile, a federal judge ridiculed DOJ's clumsy attempt to dismiss a challenge to the controversial Section 5 of the Voting Rights Act -- which requires certain jurisdictions, and only those jurisdictions, to secure "pre-clearance" from the department for any change in voting procedures, even as small as moving a polling place from a school gym to the same school's cafeteria. Federal district judge John Bates wrote that the Holderites were "unable to articulate any reason" for one of its positions, and that they could "point to no authority" for another contention. He blasted them for "fishing expeditions," and wrote that a conclusion in their favor "would be absurd."

Nothing, though, was more absurd than the Section 5 ruling by Loretta King-one of the chief racialists at DOJ and one of the major crusaders in favor of dropping the Black Panther case -- that a black-majority town in North Carolina would not be allowed to hold nonpartisan municipal elections. Even though the majority of black precincts in this majority-black town wanted no party affiliations on the label, Ms. King decided, in effect, that the black townies in Kinston, N.C., were too stupid to know their own interests. If voters don't know which candidates are Democrats, she ruled, black voters would be unable to elect their "candidates of choice" -- who, by her definition, could only be Democrats.

Sixth Sense: Seeing Dead People…Voting

THE SECOND CHARGE made by Adams, Coates, and others is that DOJ voting rights official Julie Fernandes said in a section-wide meeting that the department would not enforce laws requiring removal of dead people and felons from voting rolls because those laws do nothing to help (Democratic) turnout.

Sure enough, the department dropped a long-running case against Missouri for the state's failure to do just that. Not only that, but Adams-after resigning in protest from DOJ-took private action in September to sue (or threaten suits against) 16 states when DOJ itself would not do its job on this front. Adams explained at Pajamas Media:

South Dakota, Texas, Mississippi, Kentucky and Indiana report in excess of a dozen counties with more registered voters than living people old enough to vote. Having more voters than living humans tells you something is wrong. In West Virginia, one county reported 113% of the voting age population was registered to vote....Ponce de Leon wasted his time looking for the fountain of youth in Florida-he should have gone to Maryland, Arkansas, Massachusetts, Oregon, or Tennessee. These states report that they didn' t remove a single dead voter from 2006 to 2008. Some of the dead registered voters were resurrected on election day and cast ballots.

These are obvious signs of major violations, yet DOJ -- completely in line with the alleged statements from Fernandes -- refused to do its duty to enforce the law.

It also coincides with other indications that DOJ is bizarrely eager to help felons, a notoriously Democratic constituency, vote, while showing an extreme lack of enthusiasm for assuring the votes of military personnel, who, polls show, more often vote for Republicans. As the Washington Times editorialized on July 28 and several times thereafter, the department failed in numerous ways to ensure full implementation of a 2009 law mandating that states mail overseas military ballots at least 45 days before Election Day -- in order to ensure time for delivery both ways, to and from often extremely remote locales.

Eric Eversole, director of the Military Voter Protection Project and a former DOJ Voting Section attorney, warned of the problem in September, telling me: "Some of the attorneys in the section are openly hostile to the military and, at the very least, are unsympathetic to the sacrifices of our service members."

So angry about all this is Republican Sen. John Cornyn of  Texas, the military voting law's co-author, that he called for congressional hearings on the matter, placed a lasting "hold" on the nomination of close Holder friend James Cole to be deputy attorney general, and wrote Holder a scathing September 16 letter that accused Holder and company of "a shameful failure to honor the heroic service of those who defend America."

Indeed, the department failed for more than a year to update its website to reflect the new law protecting military voters -- but it spent what must have been an immense amount of taxpayer-supported staff time building a 2,314-word web page telling felons how to recover their voting privileges. Yet the department enjoys no statutory authority to deal with felon voting at all. Who needs the law when you can bolster the numbers of a key Democratic constituency?

Undermining National Security

OF COURSE, this Justice Department has shown its disdain for military and security considerations in numerous other ways as well. The first came on the Don't Ask/Don't Tell (DADT) rule on homosexuals in the military. Whatever one's views of the wisdom of the policy, it remains the law of the land and DOJ is obliged to defend it. But Edward Whelan of the Ethics and Public Policy Center has written at great length explaining how the Holderites were derelict on this. "It [DOJ] failed to seek Supreme Court review of a rogue Ninth Circuit ruling that subjected DADT to heightened scrutiny," he told me. "And when trial on DADT took place, DOJ called no witnesses and failed to offer any serious defense of DADT. The district judge's ruling against DADT relied heavily on DOJ's failings."

Those failings perhaps pale in comparison to the outright defiance of security concerns with regard to the trials of terrorist detainees. Holder's decidedly premature announcement that the 9/11 conspirators detained in Guantanamo Bay, including the mastermind Khalid Sheikh Mohammed, would be tried in New York City has actually slowed the course of justice.

Former terrorist prosecutor Andrew McCarthy quite arguably has been the most eloquent expositor of this thesis. "From a legal standpoint, it makes no sense to try the al Qaeda quintet in civilian court," he wrote in the November 22, 2009, New York Daily News. "Eleven months ago, these men were prepared to plead guilty in their military commission and proceed to execution. Yet the Obama administration pulled the plug on that commission. This was a transparent sop to the left, which wants to judicialize war-fighting and is repulsed by the intelligence-centric, prevention-first counterterrorism strategy that has protected us for eight years from a reprise of the 9/11 atrocities. Now, our enemies will be given a full-blown civilian trial with all the rights of the American citizens they are sworn to kill. They will get a year or more to sift through our national defense secrets."

All of this was made more problematic when the Justice Department was forced, after much stonewalling, to acknowledge just how many of the new Holder team had done legal work for the detainees. At least nine had done so, and at least another five worked for firms that did significant detainee defense work. They include Jennifer Daskal, who was known as a particularly fervid defender of those detainees. They include Eric Columbus, who worked for the detainee in the landmark case of Boumediene v. Bush and who now is senior counsel for the deputy attorney general. This gives him at least some supervisory authority over both the Criminal and National Security divisions at DOJ-the very divisions involved with deciding how to handle the convincingly accused terrorists.

Moreover, as first reported by the Washington Times on November 22, 2009, "Associate Attorney General Thomas J. Perrelli, No. 3 official in the Justice Department, had to recuse himself on at least 13 active detainee cases and at least 26 cases listed as either closed or mooted," presumably because of his former law firm's efforts on their behalf. To further quote the Washington Times:

The extent of the recusals raises questions about whether the attorney general has enough unbiased advisers around him to have made good judgments about how to try Khalid Shaikh Mohammed and other detainees. He certainly did seem terribly ill-informed when asked basic questions at the Senate Judiciary Committee hearing on Wednesday about how Miranda rights for detainees would be treated in civil courts and if any enemy combatant from a foreign battlefield had ever been tried in American civil courts. Columnist Charles Krauthammer justly called Mr. Holder's responses "utterly incoherent." If the incoherence stems from an inherent bias among President Obama's appointees at the Justice Department, senators and the American public have the right to know it.

Illegal Alien Nation

MANY PEOPLE SEE illegal immigration as a national security issue, too. As with DADT and with an even worse sabotage of the Defense of Marriage Act by declaring that the act is not "rationally related to any legitimate government interests in procreation and child-rearing," the Obama administration on immigration has gone far beyond its obvious right to pursue its favored policy objectives through the legislative process; instead, it has used the power of the Justice Department to make a mockery of legitimate legislative enactments.

"It is one thing, and totally appropriate, to pick policy priorities that are in line with the administration you serve," said Robert Driscoll, another former DOJ attorney, who has represented famed Maricopa County sheriff Joe Arpaio against Obama administration harassment. "Are particular investigations or prosecutions being undertaken or avoided to advance the president's political allies? Unfortunately, there are too many examples even beyond Black Panthers that raise questions.… All of these cases raise concern that the ‘political' influence at DOJ, which has always been reflected in the priorities and policy choices of any attorney general, has begun to influence the front-line decision-making regarding individual cases and investigations."

So it was that the Holder DOJ has taken the position that (to quote a Washington Times editorial) "Sheriff Arpaio should not set up a phone tip line to search for immigration violators, and he is not allowed to tell the public about federal immigration enforcement policies even if he is merely disputing demonstrable falsehoods told about him; yet the Justice Department can set up an anonymous tip line to gather evidence against the sheriff." Even though a 2008 investigation by the Immigration and Customs Enforcement Agency found that the sheriff and ICE officials had an "excellent" working relationship, DOJ is now suing Arpaio for supposedly discriminating against Hispanic inmates. The DOJ lawsuit looked even more absurd when, in late September, an audit from the U.S. Marshals Service gave Arpaio's treatment of inmates the highest grades possible in every single category-including for prevention of, yes, discrimination against detainees.

So it was that DOJ also has sued Maricopa County Community Colleges for requiring that non-citizens produce "green cards" to prove they are here legally. Since such visiting workers are by law supposed to carry the cards with them at all times anyway, it defies belief to think it's illegal for an employer to ask to see it.

And so it was, most infamously, that DOJ sued the state of Arizona to block its law that merely provides for the state's police officers to apply and enforce already existing federal law. Kris Kobach, yet another former DOJ official, actually drafted the law in question. He argues, quite convincingly, that "lawsuits are being used to stop those who stand in the way of President Obama's political agenda, which is to allow illegal aliens who have not violated other criminal law (other than their immigration crimes) to remain unlawfully present in the United States."

Abuses of Power

WHAT KOBACH DESCRIBES, and what ample evidence attests to, is a serious misuse of power under the false color of law. The New Black Panther case is almost a perfect microcosm of this Holderite habit -- in multiple ways. It featured political interference in a case already won. It featured officials dropping a case without even reading the briefs. The two lawyers acting in political-appointee capacity who were most directly involved in dropping the case have both been sanctioned by courts for ethical breaches. Both have been believably accused, under sworn testimony by a highly respected witness, of consciously refusing to enforce civil rights laws to benefit white people.

The department's press secretary told lies about the case, saying no political appointees were involved even as she e-mailed back and forth with a key political appointee as the case's point person. The department's head gave false testimony under oath at least twice, flagrantly misleadingly telling Congress that the maximum allowable penalty was imposed on the Panthers and falsely telling the U.S. Civil Rights Commission that no political appointees contributed to the decisions. The Holderites stonewalled to the press by denying Freedom of Information Act requests; DOJ claimed "privileges" from disclosing public information without naming some of the privileges and without coming close to justifying others; and DOJ ignored lawful subpoenas by the Civil Rights Commission that by law it was bound to honor. When leading congressmen of impeccable reputation again and again wrote Holder for answers, he arrogantly shunted their letters to underlings to answer -- and the underlings told howling falsehoods in their replies. Worst of all, Holder's team directly and knowingly abused at least two award-winning career DOJ attorneys by transferring one three states away and forcing the other to bear personal legal expenses because the Holderites would neither allow him to respond to a lawful subpoena nor provide legal defense for him to avoid it.

And those are just the highlights, or rather lowlights, of a massive abuse of justice, all on behalf of an otherwise limited-location example of voter intimidation by two convicted violent felons who liked to pose with dangerous weapons and talk hateful, racist tommyrot about "killing crackas" and needing to "kill they babies."

By February 15 of this year, even Martin Peretz, editor in chief of the liberal New Republic and staunch Al Gore supporter, had seen enough of Eric Holder's embarrassing and abusive tenure, for multiple reasons. "Poor Eric Holder," Peretz wrote as the lead sentence of his blog, The Spine, that day. "The fact is that he is none too smart…and none too versed in constitutional issues."

And none too honest, either. But profoundly dangerous to the cause of equal justice.

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About the Author
Quin Hillyer is a senior editor of The American Spectator and a senior fellow at the Center for Individual Freedom. Follow him on Twitter @QuinHillyer.