Obama's Enforcer
Page 22
Under Eric Holder, the Justice Department has become:
“[A] sort of full employment program for progressive activists, race-obsessed bean counters (redundant I know), and lawyers who volunteered their services during the Bush years to help al-Qaeda operatives file lawsuits against the United States.”33
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.
Whether that happens at all will depend on who is president, because it is the president who decides on the character, attributes, and competence of the individual chosen to be the head of the largest law enforcement organization in the United States. And it is the president who decides whether his administration—and his attorney general—will fulfill their obligation to “faithfully execute” their duty to enforce the law and “preserve, protect and defend the Constitution of the United States.”
NOTES
Chapter 1: Justice in Charge
1. “Journalists or Criminals? Attorney General Eric Holder’s Testimony before the Committee and the Justice Department’s National Security Leak Investigative Techniques,” Committee on the Judiciary, House of Representatives, July 31, 2013, Executive Summary.
2. Ibid.
3. “Krauthammer’s Take: Holder Won’t Be Punished,” National Review Online, July 31, 2013.
4. Bill Otis, “The Bordering on Silly Defense of Eric Holder,” crimeand consequences.com, June 2, 2013.
5. Matthew Boyle, “Holder Less than Candid on Fast and Furious,” Daily Caller, Oct. 4, 2011.
6. Matthew Boyle, “Holder Claims His Testimony Was Accurate Pushes Back Against ‘Inflammatory Rhetoric,’ ” Daily Caller, Oct. 7, 2011.
7. Matthew Boyle, “During Senate Testimony Holder Changes Misleading Testimony from May Hearing,” Daily Caller, Nov. 8, 2011.
8. “Justice Withdraws Inaccurate Fast and Furious Letter It Sent to Congress,” NPR Blog, The Two Way, Dec. 2, 2011.
9. Mackenzie Weinger, “Ted Cruz, Eric Holder Mix It Up At Hearing,” Politico, Jan. 29, 2014.
10. Daniel Klaidman, “Attorney General May Probe Bush Torture Policy,” Newsweek, March 13, 2010.
11. Joel Gehrke, “Attorney General Holder Can’t Explain Constitutional Basis for Obama’s Executive Orders,” Washington Examiner, Jan. 29, 2014.
12. Interview with Senator Ted Cruz, Jan. 20, 2014.
13. Bridget Johnson, “Holder Confirms Obama Ready to Use Executive Order on Guns ‘in Absence of Meaningful Action’ by Congress,” PJ Media, Jan. 29, 2014.
14. Dylan Byers, “Jill Abramson: ‘This is the most secretive White House I have ever dealt with,’ ” Politico, Jan. 23, 2014.
15. Daniel Klaidman, “Attorney General May Probe Bush Torture Policy,” Newsweek, March 13, 2010.
16. Andrew Longstreth, “Making History with Obama,” American Lawyer, June 5, 2008.
17. Keith Herbert, “Likely Obama Pick’s NY Roots,” Newsday, Nov. 22, 2008.
18. Longstreth, “Making History with Obama.”
19. Ibid.
20. Ibid.
21. Ibid.
22. Wil S. Hylton, “Hope. Change. Reality.,” GQ, Dec. 2010.
23. Javier C. Hernandez, “Poised to Scale New Heights,” New York Times, Nov. 30, 2008
24. Hylton, “Hope. Change. Reality.”
25. Longstreth, “Making History with Obama.”
26. Hernandez, “Poised to Scale New Heights”; Charles C. Johnson and Ryan Girdusky, “As College Student, Eric Holder Participated in ‘Armed’ Takeover of Former Columbia University ROTC Office,” Daily Caller, Sept. 30, 2012.
27. Hylton, “Hope. Change. Reality.”
28. Interview with Craig Donsanto, Dec. 19, 2013.
29. Daniel Klaidman, “Attorney General May Probe Bush Torture Policy,” Newsweek, March 13, 2010.
30. Ibid.
31. Annie Groer, “Sharon Malone, Eric Holder’s Wife, to Appear in PBS Special ‘Slavery by Another Name,’ ” Washington Post, Feb. 10, 2012.
32. Dayo Olopade, “Eric Holder’s War,” American Prospect, Jan. 31, 2010, citing Essence.
33. Daniel Klaidman, “Independent’s Day,” Newsweek, July 11, 2009.
34. “Eric Holder Profile”, NPR All Things Considered, Sept. 30, 1997.
35. Grutter v. Bollinger, 539 U.S. 306 (2003).
36. John Fund, “Infinite Affirmative Action?” National Review, March 6, 2012.
37. Eddie Dean, “Almost Blue—Carl T. Rowan, Jr. Walks a Self-Assigned Beat of D.C. Police Corruption,” Washington City Paper, Jan. 23, 1998.
38. U.S. v. Popa, 187 F.3d 672, 673-674 (D.C. Cir. 1999).
39. Popa, 187 F.3d at 675.
40. Popa, 187 F.3d at 677.
41. Interview with Eugene Volokh, Jan. 4, 2014.
42. Eugene Volokh, “One-to-One Speech vs. One-to-Many Speech, Criminal Harassment Laws, and Cyberstalking,” 107 Northwestern University Law Review 731, 744 (2013).
43. David S. Cloud and Gary Fields, “Aided by Millions in Gifts, an Insider Gets His Client Presidential Absolution,” Wall Street Journal, Jan. 29, 2001.
44. Siri Agrell, “Holder Likely to Reform Justice Department” Globe and Mail, Nov. 19, 2008.
45. Andrew Longstreth, “Making History with Obama,” American Lawyer, June 5, 2008.
46. Ibid.
47. Wil S. Hylton, “Hope. Change. Reality.,” GQ, Dec. 2010.
48. David Johnston, “The New Team: Eric H. Holder Jr.,” New York Times, Nov. 11, 2008.
49. Longstreth, “Making History with Obama.”
50. Ibid.
51. Hylton, “Hope. Change. Reality.”
52. Ibid.
53. “FY 2013 Budget Summary,” U.S. Department of Justice.
54. “Total Discretionary Budget Authority and Authorized Positions—FY 2003—FY 2013,” U.S. Department of Justice.
55. That would not be possible today because in 1967, Congress passed the Federal Anti-Nepotism statute to prevent the hiring of relatives by federal officials. See 5 U.S.C. § 3110. This is sometimes referred to as the “Kennedy Act.” See Association of Am. Physicians & Surgeons v. Clinton, 813 F.Supp. 82, 87 n.8 (D. D.C. 1993), rev’d, 997 F.2d 898 (D.C. Cir. 1993).
56. “DOJ Seal—History and Motto,” www.justice.gov/jmd/ls/dojseal.htm.
57. Interview with Christopher Coates, Jan. 28, 2014.
Chapter 2: Gibson Guitar’s Green Raid
1. Andy Meek, “Gibson CEO Fires Back over Federal Raid,” Memphis Daily News, Aug. 26, 2011.
2. Deborah Zabarenko, “Gibson Guitar CEO Slams U.S. Raids as ‘Overreach,’ ” Reuters, Oct. 12, 2011.
3. Meek, “Gibson CEO Fires Back Over Federal Raid.”
4. Zabarenko, “Gibson Guitar CEO Slams U.S. Raids as ‘Overreach.’ ”
5. “Gov’t Says Wood is Illegal if U.S. Workers Produce It,” Gibson Press Release, Aug. 25, 2011.
6. Craig Havighurst, “Why Gibson Guitar Was Raided by the Justice Department,” NPR, Aug. 31, 2011.
7. James C. McKinley Jr., “Gibson Guitar Settles Claim Over Imported Ebony,” New York Times, Aug. 6, 2012.
8. Letter of July 27, 2012, from Jerry Martin, U.S. Attorney for the Middle District of Tennessee, to Donald A. Carr, Pillsbury, Winthrop, Shaw Pittman.
9. As the settlement agreement explained, a fingerboard is also called a fretboard and “is the piece attached to the neck of the guitar, immediately under the strings.” There are even pictures of fretboards and fingerboard blanks and it is probably the first time in the history of the Justice Department that a settlement of criminal charges had to explain the construction of a guitar.
10. Paul J. Larkin Jr., “Gibs
on Guitar: Settling Away Bad Publicity,” The Foundry at The Heritage Foundation, Aug. 7, 2012.
11. “Now the Gibson Guitar Raids Make Sense,” Investor’s Business Daily, May 23, 2013.
12. Anita Wadhwani, “Gibson Guitar CEO to Face Feds over Raid on Factory,” Tennessean, Sept. 15, 2011.
13. Ibid.
14. Larkin, “Gibson Guitar: Settling Away Bad Publicity.”
15. “Now the Gibson Guitar Raids Make Sense,” Investor’s Business Daily, May 23, 2013.
16. Eric Felten, “Guitar Frets: Environmental Enforcement Leaves Musicians in Fear,” Wall Street Journal, Aug. 26, 2011.
17. Ibid.
18. Wadhwani, “Gibson Guitar CEO to Face Feds over Raid on Factory.”
19. See http://www2.gibson.com/Products/Electric-Guitars/Les-Paul/Gibson-USA/Government-Series-II-Les-Paul.aspx.
20. See www.justice.gov/enrd/.
21. Kimberly A. Strassel, “Greens Gone Wild,” Wall Street Journal, April 9, 2013.
22. Ibid.
23. Evans v. U.S., 694 F.3d 1377, 1381 (Fed. Cir. 2012).
24. See Preseault v. Interstate Commerce Commission, 494 U.S. 1 (1990) and Preseault v. U.S., 100 F.3d 1525, Fed. Cir. 1996)(en banc). In 2014, the Supreme Court ruled against the government again in Marvin M. Brandt Revocable Trust v. U.S., 572 U.S. ___(2014).
25. Cecilia Fex, “The Elements of Liability in a Trails Act Taking: A Guide to the Analysis,” 38 Ecol. L. Q. 673, 676 (2011).
26. Ibid.
27. Ladd v. U.S., 713 F.3d 648
28. Thor Hearne interview with Hans von Spakovsky, Dec. 30, 2013.
29. Hash v. U.S., No. 1:99-CV-00324-MHW, 2012 WL 1252624 (D. Idaho April 13, 2012).
30. Thor Hearne interview with Hans von Spakovsky, Dec. 30, 2013.
31. “Environmental Litigation: Cases Against the EPA and Associated Costs Over Time,” U.S. Government Accountability Office, GAO-11-650, Aug. 2011.
32. “GAO Report Exposes Millions in Environmental Litigation Fees for First Time,” U.S. Senate Committee on Environment and Public Works, Press Release, Aug. 31, 2011.
33. 5 U.S.C. § 553.
34. 5 U.S.C. § 553(b)(2).
35. “A Report on Sue and Settle—Regulating Behind Closed Doors,” U.S. Chamber of Commerce, May 2013, p. 5.
36. Ibid, p. 12.
37. Julian Hattern, “Greens, Industry Spar Over ‘Sue and Settle,’ ” Hill, Nov. 22, 2013.
38. “A Report on Sue and Settle—Regulating Behind Closed Doors,” U.S. Chamber of Commerce, May 2013, pp. 6–7.
39. Ibid, p. 3.
40. “Presidential Memorandum—Flexible Implementation of the Mercury and Air Toxics Standards Rule,” Office of the Press Secretary, White House, Dec. 21, 2011.
41. “EPA Admits Error in Proposed Mercury MACT Rule,” Power Magazine, May 25, 2011.
42. Ibid.
43. “Potential Impacts of Future Environmental Regulations,” North American Electric Reliability Corporation, Nov. 2011.
Chapter 3: A Contempt for the Constitution and the Rule of Law
1. Testimony of Jonathan Turley, U.S. House of Representatives, Committee on the Judiciary, Dec. 3, 2012.
2. Carrie Johnson, “Some in Justice Department See D.C. Vote in House as Unconstitutional,” Washington Post, April 1, 2009.
3. See Adams v. Clinton, 90 F. Supp. 2d 35, 46-47 (D. D.C. 2000), aff’d 531 U.S. 941 (2000); Kenneth R. Thomas, “The Constitutionality of Awarding the Delegate for the District of Columbia a Vote in the House of Representatives or the Committee of the Whole,” Congressional Research Service RL 33824, Jan. 24, 2007.
4. Testimony of John P. Elwood, Deputy Assistant Attorney General, Office of Legal Counsel, Department of Justice, U.S. Senate Judiciary Committee, May 23, 2007.
5. Johnson, “Some in Justice Department See D.C. Vote in House as Unconstitutional.”
6. Edward Whelan, “Look Who’s Politicizing Justice Now,” Washington Post, April 5, 2009.
7. Carrie Johnson, “D.C. Vote Memo Called Informal,” Washington Post, April 3, 2009.
8. Whelan, “Look Who’s Politicizing Justice Now.”
9. Ibid.
10. Dan Eggen and Paul Kane, “Gonzales Hospital Episode Detailed,” Washington Post, May 16, 2007.
11. Evan Perez, “A Pick for Sensitive Justice Post,” Wall Street Journal, Dec. 22, 2010.
12. “Lawfulness of Recess Appointments During a Recess of the Senate Notwithstanding Periodic Pro Forma Sessions,” Memorandum Opinion for the Counsel to the President, Assistant Attorney General Virginia A. Seitz, Office of Legal Counsel, U.S. Department of Justice, Jan. 6, 2012.
13. As this book was being written, the issue was before the U.S. Supreme Court in National Labor Relations Board v. Noel Canning.
14. Michael McConnell, “The OLC Opinion on Recess Appointments,” www.advancingafreesociety.org, Jan. 12, 2012.
15. Edwin Meese III and Todd Gaziano, “Obama’s Recess Appointments are Unconstitutional,” Washington Post, Jan. 5, 2012.
16. Todd Gaziano, “Whitewash on Illegal Appointments Won’t Work,” The Foundry, Heritage Foundation, Jan. 12, 2012.
17. Ibid.
18. Lachlan Markay, “Grassley Not Buying DOJ’s Non-Recess Appointment Apologia,” The Foundry, Heritage Foundation, Jan. 12, 2012.
19. Seth McLaughlin, “Obama Administration has Lost Two-Thirds of Supreme Court Cases,” Washington Times, June 26, 2013.
20. 132 S.Ct. 694 (2012).
21. 132 S.Ct. 1367 (2012).
22. Sen. Ted Cruz, Ranking Member, Senate Judiciary Subcommittee on the Constitution, Civil Rights and Human Rights, “The Legal Limit: The Obama Administration’s Attempts to Expand Federal Power,” Nov. 2013.
23. Paul J. Larkin Jr., “Sackett v. EPA: Supreme Court Takes Up Property Rights Case,” Heritage Foundation Foundry, Jan. 9, 2012.
24. 132 S.Ct. 945 (2012).
25. 133 S.Ct. 511 (2012).
26. Ted Cruz, “The Legal Limit.”
27. 133 S.Ct. 1216 (2012).
28. 132 S.Ct. 2492 (2012).
29. 18 U.S.C. § 1373(c).
30. PPL Corp. v. Commissioner of Internal Revenue, 133 S.Ct. 1897 (2013).
31. Horne v. USDA, 133 S.Ct. 2053 (2013).
32. Sekhar v. U.S., 133 S.Ct. 2720 (2013).
33. Ilya Shapiro, “Why Obama Keeps Losing at the Supreme Court,” Bloomberg, June 6, 2013.
34. 558 U.S. 310 (2010).
35. Transcript of Citizens United v. Federal Election Commission, Case No. 08-205 (March 24, 2009), pp. 28–30.
36. Testimony of Jonathan Turley, U.S. House of Representatives Committee on the Judiciary, Dec. 3, 2012.
37. Ibid.
38. Nathan Vardi, “Department of Justice Flip-Flops on Internet Gambling,” Forbes, Dec. 23, 2011.
39. Matt Smith, “Stop Eric Holder’s Online Gambling Push,” Daily Caller, May 21, 2012.
40. Wynton Hall, “Eric Holder’s DOJ Legalizes Online Gambling; Donors and Friends Make Big Money,” Breitbart, Aug. 7, 2012.
41. Ibid.
42. Testimony of Jonathan Turley, U.S. House of Representatives Committee on the Judiciary, Dec. 3, 2012.
43. Letter of Deputy Attorney General David Ogden to Selected United States Attorneys, Investigations and Prosecutions in States Authorizing the Medical Use of Marijuana, Oct. 19, 2009.
44. The Controlled Substances Act has been upheld by the Supreme Court in Gonzales v. Raich, 545 U.S. 1 (2005).
45. Evan Perez, “No Federal Challenge to Pot Legalization in Two States,” CNN, Aug. 30, 2013.
46. Sari Horwitz, “Holder Seeks to Avert Mandatory Minimum Sentences for Some Low-Level Drug Offenders,” Washington Post, Aug. 11, 2013.
47. Testimony of Jonathan Turley, U.S. House of Representatives Committee on the Judiciary, Dec. 3, 2012.
48. Bill Otis, “Hundreds of Career Prosecutors Revolt Against Holder,” www.crimeandconsequences.com, Jan. 30, 2014.
49. “Top Management and Performance Cha
llenges Facing the Department of Justice—2013,” Memorandum from Michael E. Horowitz for the Attorney General, the Deputy Attorney General, Office of the Inspector General, U.S. Department of Justice, Dec. 11, 2013, reissued Dec. 23, 2013.
50. Jeffrey Toobin, “A Sharp Progressive Joins the D.O.J.,” New Yorker, Dec. 20, 2013.
51. J. Christian Adams, “Meet the Dishonest Radical Academic Eric Holder Tapped to Oversee Federal Election Law,” PJ Tatler, Dec. 20, 2013.
52. “Peter Baker, “Favorites of Left Don’t Make Obama’s Court List,” New York Times, May 25, 2009.
53. Pamela S. Karlan, “Lessons Learned: Voting Rights and the Bush Administration,” 4 Duke J. Const. L. & Pub. Pol’y 17, 28 (2009).
54. John Fund and Hans von Spakovsky, Who’s Counting? How Fraudsters and Bureaucrats Put Your Vote at Risk (New York: Encounter Books, 2012), p. 108.
55. Ed Whelan, “Pamela Karlan, Anti-Textualist Fantasist,” National Review Online, Oct. 20, 2013.
56. Carl Rowan Jr., “Adegbile Utterly Unfit for Justice’s Civil Rights Post,” Washington Times, Jan. 22, 2014.
57. “The Attorney General’s Duty to Defend and Enforce Constitutionally Objectionable Legislation,” 4A O. O.L.C. 55 (1980).
58. Drew S. Days III, “In Search of the Solicitor General’s Clients: A Drama with Many Characters,” 83 K.Y.L.J. 485, 502 (1995).
59. Defendant’s Motion to Dismiss at 25, Smelt v. U.S., Case No. 09-00286 (C.D. Cal. 2009).
60. Testimony of Jonathan Turley, U.S. House of Representatives Committee on the Judiciary, Dec. 3, 2012.
61. U.S. v. Windsor, 570 U.S. ___(2013), Slip Op. at 12.
62. “Supreme Court Puts Utah Same-Sex Marriage on Hold,” CBS News, Jan. 6, 2014.
63. Ed Whelan, “AG Holder’s Lawless Action on Marriage in Utah,” BenchMemos, National Review Online, Jan. 10, 2014.