Obama's Enforcer

by John Fund

  Ashton’s bad reputation went beyond partisan grievance. Two former directors of EOUSA were interviewed in 2006 by the House Judiciary Committee during its investigation of the firing of nine U.S. attorneys. According to someone familiar with the entire transcripts of those interviews, the directors were scathing in their criticism of Ashton. They described Ashton as someone who treated subordinates like chattel while doing everything possible to ingratiate herself with her bosses, often claiming credit for work that others had done.

  “Given her partisan instincts and the loyalty she feels to Eric Holder,” one former DOJ lawyer told one of the authors at the time of her appointment, “there is no way that Robin Ashton will allow any report to come out that criticizes Eric Holder or his deputies.” In fact, that prediction has turned out to be true. Despite all of the scandals enveloping Eric Holder’s tenure as attorney general, the only public reports listed on the OPR website are reports critical of the Bush administration. No investigation has ever been opened by OPR over the complaints that Holder and other senior deputies have lied to Congress and made misrepresentations to other bodies, such as the U.S. Commission on Civil Rights, despite the fact that lying under oath is one of the most serious charges of misconduct that can be made against an attorney.

  The New Black Panther Party report, which was completed under Ashton’s watch, was a complete “whitewash of the malfeasance at the Civil Rights Division,” according to J. Christian Adams, the whistle-blower and former Civil Rights Division lawyer who had filed the original voter intimidation lawsuit against the Panthers.10 Ashton’s report repeatedly accepted “versions of facts that defend Obama administration positions while dismissing facts to the contrary,” without making any effort to verify the accuracy of the claims made against Holder and his subordinates.11 So Holder got what he wanted out of Ashton. As Adams says, “the media entirely ignored” all of the mistakes, shortcomings, and misrepresentations in her report on the New Black Panthers and instead just reported that OPR had “cleared” Holder and other lawyers of any wrongdoing.12

  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. In his listing of top challenges facing the Justice Department, Horowitz said that the public’s confidence in the department properly addressing employee misconduct could not be improved without eliminating the statutory limitation preventing the IG from handling these claims.

  As Horowitz pointed out, the “institutional independence of the OIG . . . is crucial to the effectiveness of our misconduct investigations.”13 Unlike the IG, “OPR does not have that statutory independence,” since the “Attorney General appoints and can remove OPR’s leader,” which power Eric Holder took great advantage of to ensure his inviolability as well as that of his minions inside the Justice Department.

  OPR also keeps almost all of its investigations secret. Even though it files an annual report with Congress giving overall numbers of its investigations, it refuses to disclose the names of attorneys who have been found guilty of misconduct, in order “to protect the privacy of the Department attorneys,” as if the public, judges, and defense lawyers have no right to know the details of government employees found guilty of wrongdoing.14 This is an abuse of privacy standards and is information that should be made public. So OPR does not have the “strong record of transparency” that the IG has, and which Horowitz says is “vital to ensuring the Department’s accountability and enhancing the public’s confidence in the Department’s operations.”

  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 that 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.

  Lifting the statutory limitation on the IG could help alleviate some of these problems—as long as you have an IG who is willing to do something about such problems. Unfortunately, that is not always the case. The prior IG, Glenn Fine, was a Clinton administration appointee who demonstrated his bias on repeated occasions.15 He released a joint report with OPR on the supposedly “politicized” hiring in the Civil Rights Division during the Bush administration just before Eric Holder’s confirmation hearing. That biased report was filled with inaccuracies, gross exaggerations, and misstatements of both facts and the law. Fine refused to investigate evidence with which his office had been provided about the politicized hiring that had occurred in the Civil Rights Division during the Clinton administration, when Holder was the deputy attorney general; particularly a successful effort to fill open career slots in the final days just before the swearing in of President George W. Bush on January 20, 2001. In fact, the IG who replaced Fine, Michael Horowitz, did investigate this particular claim and found that there was a concerted effort by Clinton political appointees to “fill vacant positions . . . on a highly expedited basis so as to be completed prior to the change in administration.” The motivation was “to hire attorneys who favored the enforcement philosophy of the outgoing administration and to keep the hiring decision out of the hands of the incoming administration.”16

  The timing of Fine’s report seemed aimed at providing maximum political benefit to Fine’s fellow Democrats in their effort to get Holder quickly confirmed without any opposition, despite Holder’s misfeasance during his prior stint at Justice, particularly when it came to pardons. So giving the Office of the Inspector General the ability to investigate unprofessional conduct will work only if you truly have an independent IG willing to fulfill his or her duty. That has not always been the case, as the difference between Fine and Horowitz demonstrates.

  One abuse that can be somewhat alleviated is the ability of the Justice Department to conspire with its political allies and agree to collusive settlement agreements and consent decrees with advocacy groups. These voluntary settlements of litigation are intended to get around limitations on statutory authority, to “short-circuit normal agency rulemaking procedures, to accelerate rulemaking in ways that constrain the public’s ability to participate in a meaningful fashion, and to do an end-run around the inherently political process of setting governmental priorities.”17

  The Reagan administration demonstrated how to do this in 1986. Reagan’s attorney general, Edwin Meese III, was very concerned about the “Carter Administration’s abuse of consent decrees, and the courts’ willingness to hold the government to agreements that bound the Reagan Administration to its predecessor’s unwise policy choices.”18 Meese issued a memorandum implementing a policy intended to severely limit the ability of Justice lawyers to agree to such collusive, secret settlements.19 Meese pointed out that the executive branch has “misused” such settlements and “forfeited the prerogatives of the Executive in order to preempt the exercise of those prerogatives by a subsequent Administration.” They were also used to provide “an unwarranted expansion of the powers of the judiciary,” since they allowed judges to approve settlements that went far beyond what the government was required—or allowed—to do. And they often gave judges the ability to order the executive branch to spend money to support the requirements of the settlement, usurping the role of Congress in deciding how to spend taxpayer funds.

  Meese’s memorandum specified that the Justice Department could not enter into agreements that limited or interfered in the ability of federal agencies to “revise, amend, or promulgate regulations.” It also could not agree to make any commitment t
o spend “funds that Congress has not appropriated and that have not been budgeted,” or to lobby Congress to seek a particular appropriation. DOJ could not agree to divest federal agencies of the authority to make decisions that were committed to the agency “by Congress or the Constitution.” Finally, DOJ could not agree to a consent decree or settlement agreement that provided relief or a remedy that went beyond what a federal statute or regulation authorized or beyond what a court could order if the case had gone to trial and judgment.

  Unfortunately, the Clinton administration “substantially relaxed the Department’s policy”20 after it decided it did not want to be legally bound by the lines drawn in the Meese memorandum.21 The Obama administration and Eric Holder have clearly entirely ditched Attorney General Meese’s approach because it limits the administration’s ability to expand federal power or to help its liberal allies in the advocacy world. The only way to stop this is to implement the restrictions in a federal statute that cannot be “relaxed” by the attorney general. An attorney general could certainly try to ignore such a federal law, but its existence would provide a cause of action to those wanting to challenge a settlement that the Justice Department agreed to that violated the law—and judges would be aware that they could not approve such settlement agreements.

  The secrecy of the backroom deals that Holder and his cronies have entered into could also be limited through action by Congress in the same statute that implements the Meese guidelines. It could require agencies like the EPA to publish copies of lawsuits they are involved in on their website and in the Federal Register in the same way proposed new regulations are published so that the public and other watchdogs become aware of the litigation. If the federal agency and the Justice Department decide to settle the lawsuit or enter into a consent decree, they should be required to publish the proposed settlement in the same manner, with a restriction that they can’t actually agree to the settlement for some period of time, such as sixty days, in order to give the public, businesses, and anyone else who will be affected by the settlement time to file public comments with the agency, DOJ, and/or the court—just as happens with proposed regulations. And the federal agency should be forced to file a pleading in the court explaining whether or not it has taken into account those public comments in revising the settlement agreement, and if not, why not.

  In essence, Congress should require that all of the rules—including the extensive time limits—that apply to agency regulatory rule-making in the Administrative Procedure Act will apply to any potential regulatory rule-making that is done through litigation. These are the kinds of requirements that have been proposed in a bill introduced in Congress in 2013, the Sunshine for Regulatory Decrees and Settlements Act.22

  Congress should also implement legislation that specifically says that one administration cannot bind a future administration through these types of settlement agreements and consent decrees. In other words, if the federal government wants to modify or end such an agreement “on the grounds that it is no longer in the public interest,” courts should be directed to review that request de novo23—meaning as if it is a brand-new case, without requiring the government to be bound by what happened previously in the litigation.

  Another change that Congress could make to increase the transparency of these types of settlements—and particularly the payment of attorneys’ fee by DOJ to advocacy organizations—would be to require much more detailed information from the Justice and Treasury departments about such payouts. One of the little-known costs that taxpayers unwittingly pay is the Judgment Fund, administered by the Treasury Department. This fund is used to pay “judicially and administratively ordered monetary awards against the United States” when it loses lawsuits, as well as settlements by the government of threatened or actual lawsuits. It is a permanent, indefinite appropriation that literally pays out with little notice billions of dollars for mistakes, errors, and claimed violations of federal law committed by federal agencies and federal employees.

  The Treasury Department does file a yearly report with Congress and maintains a Web page that can be searched. But the cryptic and limited information available in the report and on the Web page is not sufficient to identify what it was that the government did wrong, how the case was settled and why, and who is benefiting from these government payments. The name of the federal agency that was a defendant in the litigation or claim is identified, but not the plaintiff—or the attorneys—who brought the action. The statute or regulation that was the basis of the claim is listed, but there is not even a brief description of what exactly the dispute was about or what violation was supposedly committed by the federal government.

  No copy of the complaint, judgment against the government, or settlement agreement is made available. This could easily be provided through a hyperlink that would allow anyone to click on these documents and obtain the details of the lawsuits. Taxpayers deserve to know all of the details of how the Judgment Fund is being spent, something that is not currently possible. There is no ability, for example, to determine whether government agencies are engaging in collusive litigation with certain plaintiffs and advocacy organizations, settling claims that should not be settled, and making payments to plaintiffs and their attorneys that are not reasonable under the applicable law and facts.

  There was a bill introduced in Congress in 2013 by Representative Cory Gardner (R-CO) and Senator Deb Fischer (R-NE) that would accomplish this, the Judgment Fund Transparency Act of 2013, but it has not moved.24 That is unfortunate because this is really not a partisan issue. Regardless of their party affiliation, members of Congress should be interested in requiring greater transparency of payments made to cover liability arising from the actions of federal employees and federal agencies. But then, perhaps Senator Harry Reid and others like him don’t really want the public to know what the Holder Justice Department is doing or how much it is paying off its political friends and allies (and their lawyers) using taxpayer money.

  Unfortunately, however, none of these changes could have done anything to prevent many of the other 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.

  Edwin Meese III has a very gentlemanly policy, which has been followed by most attorneys general over the years, of not commenting on the performance of specific attorneys general, and he was unwilling to provide an assessment of Eric Holder in an interview. But when asked about the possibility of structural or statutory changes to the Justice Department, he said that there really was no substitute for “making sure good people are elected who will appoint good people to offices within the executive branch,” like the Office of the Attorney General.25

  Congress has the ultimate power of impeachment, but has almost never exercised it generally and has never exercised it at all with regard to the attorney general. In fact, only nineteen federal officials have been impeached in the entire history of the country, eight of them federal judges. The last one was former Louisiana federal judge Thomas Porteous in 2010.26 Of course, Eric Holder is the first attorney general to be held in contempt by the House of Representatives.

  Meese said that his experience at the Justice Department showed him that bad behavior within the department is an “aberration and exception to the general rule.” The Justice Department is “by and large a well-run operation and most of the divisions are not ideological in their law enforcement.”27 The real checks on the behavior of the department, according to Meese, are “Congress, through both appropriations and congressional oversight hearing
s—which it needs to vigorously exercise—and public opinion.” He says that public opinion is a very important factor in itself that can be used to promote professional, nonbiased behavior at the Justice Department.

  Even liberal commentators have criticized Holder, with the New Republic saying that Holder’s reputation “is more damaged than he ever could have imagined.”28 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.”29 Many attorneys general, like Griffin Bell, 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.”30 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.31 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!”32 Holder and Obama have shown the very same contemptuous attitude toward 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.