Morning Bell: It’s About the Judgment, Senators

Conn Carroll /

Looking ahead to today’s Senate Judiciary Committee confirmation hearing for Attorney General nominee Eric Holder, ranking member Sen. Arlen Specter (R-PA) says he is worried about Holder’s “ability to maintain his independence from the president.” This is the wrong question. The proper question is one of judgment: Does the nominee demonstrate the kind of judgment necessary to advise the President in a responsible and constitutionally appropriate way? There are at least five issues which raise serious questions about Holder’s judgment:

Pardoning Terrorists: As deputy attorney general, Holder played an active role in promoting clemency for 16 members of FALN and Los Macheteros, terrorist organizations linked by the FBI to more than 130 bombings and six murders. The Los Angeles Times reported last week that Holder instructed his staff to change its “original report recommending against commutations … with one that favored clemency for at least half the prisoners.” Given the seriousness of their charges, the well-reasoned statements of the pardon attorneys, the strong negative recommendations of the prosecuting attorneys, the presence of an ongoing investigation of the terrorist organizations to which the convicted terrorists had failed to provide assistance, and the failure to provide information about millions in stolen cash, Holder must explain why he considered it appropriate to advocate so aggressively for clemency?

Second Amendment Rights: In last year’s challenge to the District of Columbia’s gun ban, Holder joined a brief in his capacity as a former DOJ official arguing that the Second Amendment does not provide an individual right for citizens to own firearms. His brief referred to the DOJ’s recognition of “an individual rights theory that accords constitutional protection to the possession and use of firearms for private purposes” as “unwise.” Holder must explain why he argued to unduly restrict the constitutional rights of law abiding citizens, and, more importantly, what he will do to protect law-abiding Americans’ Second Amendment rights, which he has previously disparaged as “unwise”.

Sixth Amendment Rights: As deputy attorney general, Holder issued what has become known as the Holder Memorandum, in which he directed federal prosecutors to consider whether corporations waived attorney-client privilege or paid for their employees’ attorneys’ fees when determining whether the corporations had cooperated with investigations. The memo encouraged prosecutors to coerce corporations to waive attorney-client privilege and to violate contractual obligations to provide a defense in order to avoid having the full-weight of a federal indictment brought against their companies. For more than three years, a diverse coalition from all quarters of the legal community has been pushing Congress to help repair the damage Holder’s memo did to Americans’ Sixth Amendment guarantee to assistance of counsel. What will Holder do to assure to assure that the DOJ and other agencies respect attorney-client privilege?

Voting Rights: As Heritage’s Hans von Spakovsky has ably demonstrated, voter fraud is a serious and continuing problem. Given news accounts and pending cases involving voter fraud and voter registration fraud allegedly perpetrated by groups like ACORN, serious questions arise as to whether the DOJ will fulfill its obligation in protecting the franchise of legal voters, whose votes are diminished by the casting of illegal votes. As attorney general, what will Holder do to investigate and prosecute allegations of voter fraud?

Marc Rich: Holder played a prominent role in the pardon of Marc Rich, recommending his pardon to the White House as “neutral leaning favorable.” Mr. Rich had fled the country after being indicted for racketeering, trading with the enemy (the Ayatollah Khomeini during the period that Iran was holding 52 U.S. hostages), and millions of dollars in tax evasion. Despite the fact that Rich continued to be a fugitive who refused to submit to the U.S. justice system, he was given a pardon, in violation of virtually every conceivable standard ordinarily applied by pardon attorneys. The case is all the more problematic because Rich’s ex-wife gave considerable sums to the Democratic Party ($867,000) and the Clinton Library ($450,000). Given the facts of the case, and the clear appearance of impropriety created by Rich’s ex-wife’s contributions to the Clinton Presidential Library, why did you recommend “neutral leaning favorable” for his pardon request?

From pardoning terrorists, making dubious legal arguments to attempt to force states to allow felons to vote, to the infamous Holder Memorandum, Holder has demonstrated highly questionable judgment. Therefore, before finalizing its advice and consent, the United States Senate should use the five questions listed above to begin answering the most important query of all: Does Eric Holder demonstrate the kind of judgment necessary to advise and represent the President in a responsible and constitutionally appropriate way?

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