The evidence is clear that Eric Holder and his political subordinates have politicized the Justice Department to an unprecedented degree — “worse than John Mitchell under Richard Nixon” one former Justice Department lawyer told the authors. This is quite a criticism given that many DOJ veterans believe that the Department reached its nadir under Mitchell. But Mitchell seems like an amateur by comparison to how Holder has corrupted the law enforcement duties of the Justice Department to carry out the political objectives of Barack Obama and to implement his radical ideology.
The many cases in which judges have accused DOJ prosecutors of engaging in prosecutorial abuse during Holder’s tenure show, unfortunately, how this high-level corruption has also seeped into the lower levels of the Department. The political hiring into the civil service- protected career ranks that has gone on in parts of DOJ like the Civil Rights Division guarantees that radical ideologues will continue to trouble the Department long after Holder and his unethical, biased political appointee subordinates are long gone. Most political appointees leave when an administration ends, but appointees and their political allies who have burrowed down into career positions will be there for decades.
We cannot expect any help in remedying the unprofessional and politicized behavior of high-level Justice Department lawyers from the internal office at the Department that is supposed to be the watchdog against unprofessional behavior: the Office of Professional Responsibility (OPR). OPR reports directly to Eric Holder, who has encouraged, directed, and approved this behavior. OPR own website says it is “responsible for investigating allegations of misconduct involving Department attorneys that relate to the exercise of their authority to investigate, litigate or provide legal advice.” But OPR is filled with biased lawyers who are often barely competent, and is headed by a hyper-Democratic loyalist, Robin Ashton, whom Holder installed on Christmas Eve 2010.
The problems with the OPR lawyers and the conflict of interest inherent in having OPR’s director report directly to the attorney general prompted the Inspector General of the Justice Department, Michael Horowitz, in 2013 to ask that the Office of the Inspector General (OIG), rather than OPR, be given authority to investigate the misconduct of Justice lawyers. As Horowitz pointed out, the “institutional independence of the OIG…is crucial to the effectiveness of our misconduct investigations.” Unlike the IG, “OPR does not have that statutory independence” since the “Attorney General appoints and can remove OPR’s leader,” which Eric Holder took great advantage of to ensure his inviolability as well as that of his minions inside the Justice Department.
The limitation on the IG has never been lifted and OPR remains the office at Justice responsible for investigating employee, and particularly lawyer, misconduct. So it is clear that there is no independent office inside the Justice Department that is willing to confront Eric Holder or any of his other top political subordinates over their wrongdoing and the wrongdoing of other lower- level lawyers. As long as they have the “correct” ideology and are carrying out the political directives and objectives of Holder and the Obama administration, they are protected, no matter what the law or professional codes of conduct require.
So there is not much that could be done internally at DOJ to prevent many of the problems that have been caused in the Justice Department by Eric Holder’s contempt for the rule of law, his willingness to push unwarranted prosecutions, his politicized decision-making, his readiness to mislead and ignore Congress, and his disastrous policies on issues from civil rights to national security that have endangered the freedom, prosperity, and safety of the American people. A number of veterans of the Justice Department that the authors spoke with were unable to suggest any structural or statutory changes that can prevent a bad attorney general from abusing the power that office conveys.
Even liberal commentators have criticized Holder, with the New Republic saying that Holder’s reputation “is more damaged than he ever could have imagined.” The office of attorney general “has a fundamental conflict embedded in its mandate: It is required to both take orders from and investigate the White House.” Many attorneys general like Edwin Meese and Michael Mukasey have handled this potential conflict with professionalism and the highest regard for the best interests of the public and their sworn duty to uphold the Constitution and the laws of the United States. Others like Eric Holder have put the interests of their political master – and their particular political views – first.
This has meant that while Barack Obama and his attorney general have publicly tried to “maintain the veneer of respect for legal processes,” they have in reality worked to “stretch or break the rules whenever necessary to achieve the desired outcome – social justice being a higher form of legitimacy than society’s rule of law” according to DOJ veteran Andy McCarthy. In fact, both the president and the attorney general seem to have taken to heart President Andrew Jackson as their exemplar. In Worcester v. Georgia in 1832, the U.S. Supreme Court upheld the independence of the Cherokee Indians. Jackson ignored the Supreme Court’s decision, forcing a treaty on them that led to the forcible removal of the Cherokees from Georgia, what became known as the Trail of Tears. Jackson is said to have responded “John Marshall has made his decision; now let him enforce it!” Holder and Obama have shown the very same contemptuous attitude towards laws passed by Congress that they don’t want to enforce. And Holder has aggressively used the enormous power and plentiful resources of the Justice Department to abuse the liberty and economic rights of Americans, to manipulate racial politics to drive a wedge of hostility deep into the heart of our society, and to exploit the administration of justice as a political tool to benefit his president and his political party.
There is no way to know how long it will take to repair the damage that Eric Holder has done to the management and operation of the Justice Department. One thing we do know for sure – it will take a great deal of work by a new attorney general who is willing to take on the activists that Holder will leave embedded within the career civil service ranks of the Department. And it will take political willpower and steadfastness of a kind that is rarely seen in Washington.
John Fund is the national affairs correspondent at National Review Online and Hans A. von Spakovsky is a former Justice Department official and contributor at National Review Online. This is excerpted from their new book “Obama’s Enforcer: Eric Holder’s Justice Department” (HarperCollins/Broadside June 10, 2014).