The Magazine

Eric Holder's Anti-CIA Witch Hunt

Second-guessing career prosecutors for political gain.

Sep 7, 2009, Vol. 14, No. 47 • By JENNIFER RUBIN
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Another veteran lawyer says bluntly that it has "never happened, never," that OPR has been set loose to second guess career prosecutors' judgment, let alone go roving outside of the department to explore criminal charges against another agency's employees. He explains that in essence OPR--without saying it--is claiming that the Eastern District task force career lawyers committed "prosecutorial misconduct." He asks: "What are they going to do--prosecute them too? Refer them to the bar? And if not, if [the task force only exercised] prosecutorial discretion, then the whole thing is political."

An official with direct knowledge of the events explained that when OPR presented its draft report to outgoing Attorney General Michael Mukasey and his deputy, Mark Filip, at the end of the Bush administration, both questioned what a recommendation to investigate the CIA was doing in a report assessing OLC lawyers' professional responsibilities. The potential prosecution of CIA agents was not the focus of the OPR draft, of course, for the obvious reason that OPR's purview did not encompass complex national security issues or CIA agents' potential criminal conduct.

It remains unclear how OPR was tapped to delve into CIA conduct. Former Justice Department attorneys from various divisions express open contempt for the group's quality of lawyering and lack of prosecutorial experience. One says that it is "ludicrous" for OPR attorneys--many with no prosecutorial experience in terrorism (or any) cases--to second guess career prosecutors expert in this area: "It is like having a medical school dropout review the work of a surgeon."

Some point to politics within the Justice Department predating the Obama administration. The department's inspector general has long sought to bring OPR under his ambit, and OPR has historically smarted under the perception that it is not a full-fledged investigative organization. Playing the central role in a high-profile inquiry would demonstrate OPR's muscle and keep the inspector general at bay. Indeed, OPR's former head boasted to Justice officials that his group was following the model of the high-profile investigation by the department's inspector general of the Bush administration's firing of nine U.S. attorneys in 2006. OPR, eager to demonstrate its investigative chops, would be the perfect instrument for an attorney general bent on revisiting the prior administration's work.

Considering the problematic nature of a do-over prosecution, former Justice Department attorneys express astonishment at Holder's move. Many believe it is another bone thrown to the president's leftwing base, one more shot at the Bush administration. Since the special prosecutor, John Durham, is held in high esteem--and almost certainly won't be able to come up with cases provable beyond a reasonable doubt--some speculate that Holder is stalling.

Durham, they reason, will revisit the task force's work, investigate the allegations, and report back that convictions are not obtainable. Holder will have bought the indulgence of the left and some time for the president. This gambit, however, would only postpone the inevitable. The netroots and liberal lawmakers will be satisfied with nothing short of prosecution.

By appointing Durham, Holder may have succeeded only in enraging conservatives and dangerously raising liberals' expectations. But if this special prosecutor takes as long to conduct his review as some have in the past, Holder may move on before Durham finishes his work. Still stinging from criticism of his involvement in the pardon of international fugitive Marc Rich on the final day of the Clinton administration and the revelation that he authorized Clinton-era renditions, Holder will have burnished his image as an "independent" attorney general.

The "outrage," as one former Justice Department lawyer explains, is that although virtually no professional prosecutor believes there will ever be a conviction, the implicated CIA operatives will "have to hire lawyers to defend themselves." Holder appears to have shied away from going to war with veteran Justice Department attorneys over controversial prosecutions of OLC lawyers--but redirected eager OPR attorneys against low level CIA operatives.

Aside from the chilling effect on the CIA and the impropriety of dragging individuals through investigations with virtually no chance for convictions, reversing a prosecutorial decision of a prior administration is a dangerous precedent for the Justice Department. One former Justice lawyer warns: "It would mean no one would ever get any peace, because if you were the target of an investigation at the end of which DOJ said it was not prosecuting, there would be no finality to that decision. It would turn DOJ into a purely partisan agency."

And that is what the Holder Justice Department has become.

Jennifer Rubin, a lawyer and regular contributor to Commentary magazine's Contentions blog, is Pajamas Media's Washington editor.