When Republicans controlled the White House, Democrats on the Senate Judiciary Committee borked Bob Bork, rhetorically lynched Clarence Thomas, shelved Miguel Estrada, disappeared Jim Haynes, and tried to waterboard Michael Mukasey. The Committee’s hearing room remains the place where GOP nominations go to die. But with a Democrat about to move into the Oval Office, it’s apparently time for Change.
That should work quite nicely for Eric Holder, President-elect Obama’s nominee for attorney general. It’s a Change in the committee’s basic approach: from trumping up charges to sink impeccably qualified nominees to whitewashing history so a checkered nominee can sail through.
Of course, there was a time when Democrats, and even the New York Times, were embarrassed by Holder. That was eight years ago. And it wasn’t over failing to pay taxes or employing illegal immigrants–comparative trifles that the Judiciary Committee has nevertheless been known to treat as disqualifiers, not venial sins.
No, Holder’s transgressions involve matters directly related to his official duties. They involve gross misconduct while performing the same public duties Holder is now seeking to assume. They involve his role in Bill Clinton’s acceptance of gargantuan political contributions in exchange for a presidential pardon of financier fraudster Marc Rich, once among the FBI’s Ten Most Wanted fugitives.
Beginning on Thursday, the Judiciary Committee will convene a hearing to consider Holder’s nomination. Will the committee press him on Marc Rich? Will they insist on answers to their questions? I suggest queries like these, though I already know the answers:
Was Holder the linchpin of one of the most corrupt episodes in Justice Department history? He absolutely was: As Clinton pondered and finally pardoned Rich, in contravention of every DOJ clemency guideline, Deputy Attorney General Holder–then hoping to become Attorney General Holder in a Gore administration–ran interference against his own Justice Department in a transparent effort to ingratiate himself with Jack Quinn, Rich’s lawyer and an Al Gore confidant.
Did Holder advise Rich’s legal team and advocate on the fugitive’s behalf against his own Justice Department prosecutors–even before there was a pardon application? You bet he did. And all the current rationalizing about how Holder can’t be held responsible for Clinton’s abuse of the pardon power is specious.
Holder is accountable for his shameful participation in Clinton’s pardon decision–the pardon, as Clinton himself later said, wouldn’t have happened without Holder’s green light. But even if that weren’t so, there remains the stubborn fact that, long before Rich applied for a pardon, Holder was working with the fugitive’s team and against his own Justice Department. The report of a congressional investigation no one seems to want to read explains it all in gory detail.
Was fugitivity a crime at the time? Yes, it was (and is) a felony under Section 1073 of the federal penal code.
Was it Justice Department policy that prosecutors should refuse to negotiate with indicted fugitives until those fugitives surrendered to face the charges, just as every American who knows he has been indicted by a grand jury is expected to do? Yes, of course it was. Unless we want to encourage criminals to become fugitives, what other conceivable DOJ policy could there be?
Was that the policy for all fugitives–regardless of whether the government had spent goo-gobs of the public’s money trying to apprehend them for 20 years? It sure was.
Did Holder tell Quinn–again, before there ever was a pardon application–that he thought it was “ridiculous” for New York prosecutors to refuse to meet with a fugitive’s lawyers? Did he, in addition, give Quinn advice on how to pressure those prosecutors into negotiations aimed at settling the case without jail time? Yes, and yes.
Did Holder know virtually nothing about the case against Marc Rich at the time he tried to help the fugitive get out from under the indictment? Did he remain willfully ignorant of Rich’s crimes when, months later, he worked behind the scenes against his own prosecutors to secure the pardon? Yes–a congressional investigation concluded that Holder’s “sum total of knowledge about Rich came from a page of talking points provided to him by Jack Quinn in 2000, before the pardon effort had even begun.” In fact, Holder told Quinn that he didn’t want a copy of the pardon petition–taking a copy would have made it harder for Holder to avoid learning details about Rich’s crimes, and harder for him to justify circumventing the Justice Department’s pardon process.
Is it really fair to say Holder was working for an international fugitive against his own Justice Department? Is it fair to say he arranged to have Quinn go straight to President Clinton rather than through the DOJ pardon process which Holder was responsible for upholding? It is more than fair–it is exactly what the congressional committee that investigated the Rich pardon said:
The evidence indicates that Eric Holder was deliberately assisting Quinn with the Rich petition, and deliberately cut the rest of the Justice Department out of the process to help Quinn obtain the pardon for Marc Rich. This conclusion is supported by the following email, which was sent by Quinn to [other Rich lawyers] on November 18, 2000 . . . :
spoke to him last evening. he says go straight to wh. also says timing is good. we shd get in soon. will elab when we speak.
As the committee concluded, this e-mail demonstrated that Holder told Quinn to send the Rich pardon application directly to the White House rather than to the DOJ’s pardon attorney (who reported to Holder). It also showed that Holder had been giving the matter plenty of thought and believed the timing was optimal for Rich to get favorable treatment. This, as the committee concluded, “contradict[ed] the heart of Holder’s defense,” provided to Congress under oath, that he was not focused on the Rich pardon until weeks later, in the waning January days of Clinton’s second term.
Was Holder’s explanation of his conduct among the most incoherent, implausible testimony that Congress had ever heard? Did he, for example, take the astounding position that being a fugitive actually helps a pardon petition because the lack of a conviction after trial leaves no way to evaluate the strength of the case? Did he indicate that, in a choice between Justice Department prosecutors who’d built a case approved by a grand jury and a fugitive who skips the country rather than answering the charges, he believed it was better to side with the fugitive?
Yes, yes, and yes. That is, no doubt, why the committee found Holder’s testimony “difficult to believe” and concluded that his “actions were unconscionable.” (Compare Chuck Schumer, July 26, 2007: “The attorney general is meant to be the chief law enforcement officer of the land. He must be a person of truth and candor and integrity”; Mark Pryor, March 15, 2007: “When an attorney general lies to a United States senator, I think it is time for that attorney general to go.”)
Let’s completely set aside Holder’s key participation in the equally inexplicable pardons of FALN terrorists. With the Marc Rich debacle on his résumé, could any Republican–any Republican–hope to be confirmed for any job, much less the nation’s highest law-enforcement office?
Do we really have to ask?
– National Review’s Andrew C. McCarthy is the author of Willful Blindness: A Memoir of the Jihad (Encounter Books 2008).