Looking over some of Eric Holder’s career greatest hits, I had forgotten how Holder and then-Attorney General Janet Reno claimed to have the authority to seize Elian Gonzalez. In retrospect, it seems like a joke made for Mickey Kaus — they declared the boy an illegal alien and then went after him with all the power available to them. And then, when they had Elian in custody, they declared him legal again. In June 2000, I wrote about it in a story, “Illegal Elian,” for The American Spectator (unfortunately not available on the web):
When it was all over–when photos of rifle-toting armed federal agents seizing Elian had been shown on television and published in the papers–a diverse group of critics that included congressional Republicans and liberal Harvard professors Laurence Tribe and Alan Dershowitz began to question the legality of the INS’s tactics. “No judge or neutral magistrate had issued the type of warrant or other authority needed for the executive branch to break into the home to seize the child,” Tribe wrote in a much-quoted New York Times opinion piece. “The agency had no more right to do so than any parent who has been awarded custody would have a right to break and enter for such a purpose.”
But in the days that followed Tribe’s pronouncement, Justice Department lawyers released a series of warrants and affidavits revealing their legal premise for raiding the home. First, the INS revoked Lazaro Gonzalez’s custody of Elian. Then it issued an arrest warrant for the boy, temporarily declaring him an illegal alien and thus subject to pickup. Then, on the basis of its own arrest warrant, it asked for and received a search warrant from a federal magistrate to enter the Gonzalez house and seize the child. Then– voila! –after the seizure the INS declared Elian to be legal again and gave custody to his father, Juan Miguel Gonzalez.
After their initial anger subsided, some critics conceded the INS likely had the legal authority to act as it did. “Did they have all their ducks in a row when they did this? I think they pretty much did,” says [former INS general counsel] Grover Joseph Rees. But Rees and others point out that the Justice Department’s actions, while not illegal, were an abuse of the attorney general’s power and, at the very least, a parody of standard department practice. The arrest warrant/search warrant stratagem, in particular, seems more like a clever trick than a measured response to the situation. “Neither warrant served the purposes of this case,” says a former Justice Department official. “They weren’t really searching for him, and they weren’t really arresting him.”