The Magazine

Eric Holder's Justice Department

It's all politics, all the time.

Aug 10, 2009, Vol. 14, No. 44 • By JENNIFER RUBIN
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In the litany of criticisms leveled at President George W. Bush none was repeated more often than the accusation that he had "politicized the administration of justice." In endless television show appearances and congressional hearings, Democratic lawmakers like Senator Chuck Schumer railed against the politicization of the Justice Department, lecturing all who would listen about how Justice "is different than any other department. In every other department, the chief cabinet officer is supposed to follow the president's orders, requests, without exception. But the Justice Department has a higher responsibility: rule of law and the Constitution."

Democrats loved to berate the often hapless Alberto Gonzales, who they claimed failed to uphold this standard as attorney general. Although the alleged offenses occurred primarily on the watch of Gonzales (who served only two and a half of Bush's eight years), the criticism stuck and lingered long after Gonzales departed. Inspector general investigations and oversight hearings maintained the drumbeat of accusations. And when the distinguished federal judge Michael Mukasey was nominated to replace Gonzales, he was peppered by Senators Joe Biden, Russ Feingold and Patrick Leahy, among others, with questions about just how badly the department had been "politicized." The average American couldn't help but conclude that something had gone terribly awry.

It is therefore surprising that in the first seven months of the Obama administration, a series of hyper-partisan decisions, questionable appointments, and the inexplicable dismissal of a high-profile voter intimidation case against the New Black Panther party have once again fanned suspicions that the Justice Department is a pawn in partisan political battles.

Both in Congress and among a number of current and former Justice Department employees is a growing concern that the Obama administration is politicizing the department in ways the Bush team never imagined. A former Justice employee cautions that every administration has the right and the obligation to set policy. "Elections have consequences," he affirms. But he thinks that the Obama administration has gone beyond policy reversals and is interfering with prosecutorial decisions, staffing the department with unqualified personnel, and invoking privilege to thwart proper congressional oversight and public scrutiny.

Sitting in his Capitol Hill office, Texas Republican Lamar Smith, the ranking member on the House Judiciary Committee, speaks in careful, clipped sentences, rephrasing at times to convey precisely what he means. His irritation is apparent. "The whole concern here is an administration that would not politicize the Department of Justice. That was a major campaign rallying cry," he says. "If it was isolated you'd think it was an exception to the rule. But where you see three or four examples then you really worry whether they themselves are verging on violating the law or the oath of office."

This is not what the Obama administration had promised. In his confirmation hearing Eric Holder declared,

The attempts to politicize the department will not be tolerated should I become attorney general of the United States. It will be my intention to return [the civil rights] division and the Department of Justice as a whole to its great traditions and the great traditions that it had under Democratic and Republican attorneys general and presidents.

He further pronounced,

I will work to restore the credibility of a department badly shaken by allegations of improper political interference. Law enforcement decisions and personnel actions must be untainted by partisanship. Under my stewardship, the Department of Justice will serve justice, not the fleeting interests of any political party.

While some conservatives doubted that the man who helped facilitate the Marc Rich pardon and overrode the recommendation of career attorneys to give Bill Clinton a favorable recommendation on the pardon of 16 Puerto Rican terrorists in 1999 could live up to those pretty sentiments, he was confirmed by a vote of 75-21 with the support of many Republican senators.

Holder soon cast aside his confirmation rhetoric in favor of partisan politics. The first battle occurred over the Office of Legal Counsel (OLC), the elite group within the Justice Department that wrestles with difficult constitutional analysis and acts as the constitutional arbitrator for the entire administration. During his confirmation hearing Holder specifically pledged,