Attorney General Eric Holder – the first and only sitting Cabinet member in 225 years to be cited for contempt of Congress – has politicized the United States Department of Justice to the breaking point.
Shortly after a Florida jury found George Zimmerman innocent of murder on Saturday night, Holder announced that DOJ would conduct a criminal civil rights investigation.
The FBI had previously conducted a lengthy investigation that found no evidence that Trayvon Martin’s death stemmed from racial motives.
Disregarding the Florida jury and the FBI, Holder is prolonging a deeply unjust and unwarranted investigation in response to demands from Rev. Al Sharpton and his ilk.
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Holder has no legal grounds on which to stand. The federal government’s limited constitutional powers do not extend to commonplace murders, whose prosecution is the job of the states.
The Constitution’s Reconstruction Amendments primarily target state officials, not private individuals, for depriving others of their federal rights. Zimmerman was not acting under “color of law” -- indeed, the state of Florida has just tried to prosecute him.
Holder may envisage prosecuting Zimmerman under laws prohibiting private conspiracies to deprive people of their federal rights. But that approach would pose serious constitutional problems.
Martin’s killing, however tragic, is purely intra-state, by one private individual against another. There is no broad conspiracy to frustrate federal law, perhaps in silent cooperation with state authorities, as happened in days gone by with the Ku Klux Klan.
The prosecution’s own witnesses admitted at trial that Zimmerman had not acted out of racial bias. The FBI’s findings confirmed that. Even under federal hate crime law, which itself may be unconstitutional, a federal prosecution would be unsuccessful without proof of racial motive.
Holder’s decision is the most recent example of his practice of abusing prosecutorial discretion, misinterpreting the law, and deploying criminal justice for political ends.
An Attorney’s General’s powers to launch a criminal investigation and prosecution are awesome. A defendant faces the risk of years of jail time and indelible disgrace. Legal fees can be astronomical. Even if a case does not go to trial, a criminal investigation in itself imposes enormous legal, psychological, and financial burdens.
Yet the decision to pit the personnel and resources of the Department of Justice against a single individual is essentially committed to the Attorney General alone. Those vast powers must be exercised with the utmost care and impartiality. Holder has repeatedly failed to meet that standard. Indeed, his record in office shows the opposite.
Holder’s prosecutorial practices evidence a pattern of leniency towards high-ranking corporate officers in a position to make substantial campaign contributions or with close ties to the Democratic Party.
Consider that in the five years since the beginning of the nation’s financial crisis in 2008. Holder’s Justice Department has brought no high-ranking executives or managers in the financial sector to trial for criminal conduct.
This is despite the fact that millions of Americans lost their homes, and investors incurred hundred of billions of dollars in losses, because of alleged high-level wrongdoing by banks and lenders.
In one financial scandal, Holder’s Justice Department dropped criminal charges against Jon Corzine, a wealthy financial speculator who had been Democrat Senator and then Governor of New Jersey and the CEO of the bankrupt brokerage firm MF Global.
Corzine was accused of stealing $1 billion in customer funds that had supposedly been placed in “segregated” accounts in his firm. We are asked to believe that Corzine’s Democratic Party connections – which included Wall Street fundraising for President Obama - had nothing to do with Holder’s decision not to prosecute him.
Holder’s Department also decided not to try criminal charges against the high ranking executives apparently responsible for the devastating BP oil spill. Instead, the Department settled its case in 2012 by accepting a guilty plea and a fine from the corporation itself, rather than from those who ran it. The Department brought criminal charges against a low-level BP executive and two rig supervisors. Even Robert Reich, who served in President Bill Clinton’s Cabinet, objected that Holder had let the “real criminals” get away.
When it comes to the administration’s media adversaries, however, Holder’s Department has gone from passive to aggressive. On the basis of a false affidavit, it obtained a warrant to spy on James Rosen, a respected Fox News reporter.
To catch another leaker, the Justice Department violated its own regulations and went on a fishing expedition through the communications of the Associated Press’s editors and reporters.
The constitutional rights that the Obama administration claims to worry so much about in the Zimmerman-Martin case did not seem to give DOJ a minute’s pause when the First Amendment right to a free press was involved.
Professional standards were also cast aside in favor of political demands by Holder’s decision to pursue CIA agents who had interrogated suspected terrorists overseas.
Then, as now with Zimmerman, Holder disingenuously claimed merely to be following “the facts and the law.” Holder ignored the fact, however, that seasoned, professional federal prosecutors had already examined charges of CIA misconduct, carried out an investigation, and concluded that there was no basis for a prosecution.
Holder’s skewed enforcement of the criminal laws mirrors the Obama administration’s general disdain for the rule of law.
This is an administration that has relentlessly subordinated law to politics. The administration’s recent decision to delay the Affordable Care Act’s employer health insurance mandate is a clear example.
The postponement seems dictated by mere political opportunism to avoid the negative consequences of a costly law during a midterm election year.
Last year’s refusal to enforce the immigration law against 800,000 or more illegal aliens, on the ground that President Obama disagreed with the law’s policy, violated the president’s constitutional duty to “take care that the laws are faithfully executed.”
The National Labor Relations Board willfully defies decisions from two federal appeals courts that President Obama’s recess appointments are illegal and the Board cannot sit.
In 2009, the administration decided not to enforce federal drug control laws in states that permit marijuana for medical purposes.
Further, the administration’s armed intervention in Libya was a plain violation of the War Powers Resolution, which a Democratically-controlled Congress had passed over President Richard Nixon’s veto.
In this one case, presidents have the right to refuse to enforce a law: when Congress has attempted to intrude on the power of another branch, such as the executive’s commander-in-chief authority. But President Obama does not believe the War Powers Act is unconstitutional – yet he violated that law anyway.
We must judge Holder’s decision to prolong the Zimmerman investigation against this backdrop of five years of politicized law enforcement.
Holder has already done more than enough damage to public confidence in the fairness and integrity of law enforcement. He seems intent on inflaming and embittering race relations throughout the nation, which he already tried once in 2009 by calling America a nation of “cowards” on race, and is attempting again, now.
As former officials in the Justice Department, it gives us no pleasure in reaching this conclusion, but Holder can finally do the nation his greatest service by simply leaving office.
Robert Delahunty is a law professor at University of St. Thomas (Minneapolis) and was a career Justice Department official from 1986-2004.
John C. Yoo is Heller professor law at UC Berkeley School of Law and a visiting fellow at the American Enterprise Institute, and the author of the new book “Striking Power: How Cyber, Robots and Space Weapons Change the Rules of War.”