For those of us who are very proud of our service in the Justice Department – I was a federal prosecutor for nearly 20 years – there is nothing more appalling than seeing the attorney general of the United States heaping praise on, and joining in the machinations of, a race-mongering political demagogue such as Al Sharpton. As I’ve summarized before, Sharpton not only has a history of obstructing the administration of justice but was actively threatening, at the very time Eric Holder colluded with him, to “occupy” Sanford, Fla., if the state declined to file charges against George Zimmerman.
In my two decades at the U.S. attorney’s office in New York, most of my best friends and many of the best prosecutors I knew were liberal Democrats. This made for lively debates when we’d go out for beers on a Friday night. But it had nothing to do with our performance of the job. We all understood that our duty was to keep the politics out of the courtroom and out of law enforcement. And it wasn’t hard to do: It was what the judges expected of us, it was what we expected of the judges, and it was what ordinary citizens who serve on juries were told in every single trial — decide the case based on evidence, not passion, prejudice, fear or favor.
This ethos is being destroyed by Holder and the other movement progressives he has strategically installed in various DOJ policy-making posts (see, e.g., here). Indeed, it is being destroyed by the Obama administration more broadly, which is how you get an IRS bureaucracy – traditionally apolitical and independent – that now harasses and discriminates against conservative groups. That happens only one of two ways: Either the IRS bureaucrats were directed to politicize their mission or they felt encouraged to do so by the “community organizer” approach to governance quite consciously instilled by President Obama.
As I recounted over the weekend, after a Florida state jury acquitted Zimmerman on all counts in the shooting death of Trayvon Martin, Holder’s Department announced the resuscitation of its preposterous civil-rights investigation of Zimmerman. The main Obama/Holder precedent on which I’d rely to evaluate what’s going on – which is politics, not law – is Holder’s reopening, and later quiet dropping of, the investigation of CIA agents involved in the Bush-era enhanced-interrogation program.
Observe that what the Justice Department has announced is an investigation, not a prosecution. This is the same pedantic distinction Holder drew when he was caught misleading Congress in connection with the surveillance of Fox News correspondent James Rosen. Investigation is cost-free for Holder. The only one who gets harmed is Zimmerman, because he has to live in fear of prosecution, and the continued investigation means a continued spotlight which implies continued harassment by the hard Left. Holder only gets hurt if he actually tries to file charges – he will be humiliated if the grand jury refuses to indict or a jury (or the trial judge) laughs the case out of court.
As I argued last year when Holder did his Sharpton collaboration, (a) the civil-rights statutes are of dubious constitutionality in terms of federal jurisdiction over intrastate activity by private citizens that involves no federal interest; and (b) even if that were not so, a federal civil-rights case against Zimmerman would be weaker than the state murder case – if it is possible, there is even less evidence that Zimmerman intended to interfere with Martin’s enjoyment of a recognized federal civil right than that Zimmerman possessed the criminal intent required to sustain a murder conviction. So when all is said and done, I believe the Justice Department will not indict Zimmerman, the trial would be too embarrassing for DOJ.
Nevertheless, it could be a long time before “all is said and done,” and in the meantime mere investigation is tactically shrewd for a political operator such as Holder. Recall that Holder, as an Obama campaign operative in 2008, stoked Obama’s Bush-deranged political base by promising a “reckoning” against Bush officials for purported war crimes.
Of course, there were no prosecutable crimes by the CIA and other officials – career prosecutors had scrutinized the allegations arising out of interrogations and determined that no colorable charges could be brought. Holder reopened the case anyway, continued the investigation for a couple of years, and then quietly dropped it. The advantage for our Janus-faced attorney general was that he could promise Obama’s angry base that he was actively looking into matter while simultaneously telling Congress and the media that it was absurd to accuse him of harassing the CIA (and thus endangering our security) since he hadn’t actually brought any charges. This kept the issue alive, which was politically useful for the hard-left groups continuing to campaign against Bush, but spared DOJ the humiliation of a trial on a shoddy indictment.
Expect a reprise on Zimmerman. Holder tells the Left he is aggressively investigating; but tells Congress he is just poking around in a responsible way, hasn’t really done anything in the way of filing charges, and respects the verdict in Florida. No charges get filed, but the racial-grievance industry has a green-light to continue agitating, Zimmerman endures the anxiety and expense of a continuing threat of prosecution, and we all watch the spectacle of our justice system used as a tool of racial politics and political fundraising.
As some of us warned five years ago, to confirm Holder as attorney general was to guarantee politicized justice – that, after all, is what “social justice” is.