Eric Holder has received a bad rap.
Yes, under his watch the Justice Department has pushed the boundaries of the Constitution and the law over and over in a manner that has turned a harsh spotlight on a now troubled – some would say corrupted – agency.
But the abuse of law and power did not start with Mr. Holder. For more than two decades, many Justice Department watchers have believed that this is an agency in desperate need of reform.
There were the Wall Street prosecutions of the late 80s and early 90s. Of the numerous bankers and traders subject to surprise arrests and marched in humiliating “perpwalks” before television cameras and newspaper photographers as if they were drug dealers, not one case, not one, produced a conviction. Actually, most, if memory serves, were never brought to trial.
Then there was the very different case of Elian Gonzalez, in which black helicopters of all things, carrying SWAT-team-dressed agents, landed on a suburban lawn to seize the small boy at gunpoint from the unarmed arms of relatives. Even though the courts had deferred to the Department’s clear wish not to offend the Castro regime, turning a blind eye what appeared to be the intimidation of boy’s father, the application of force was beyond repulsively inappropriate.
On a less telegenic level (the Elian Gonzalez seizure was broadcast on national and surely global, televsion), there have been repeated reports of the department converting itself into a cash cow for the US Treasury, seizing private assets with no due process, never to be returned. There have been numerous reports of the misuse of plea bargains, threats to prosecute families, and other means of intimidation that in sum call into question the department’s commitment to fair and impartial application of justice.
There have been still other reports that the department has cut sweetheart deals with informants and others who should have had their ill-gotten assets seized and returned to rightful owners, allowing racketeers and others to keep their loot in return for cooperation, with no compensation to victims.
Beyond that, there was the destruction of Arthur Andersen, the accounting firm, in a thuggish prosecution that the Supreme Court ultimately overturned 9-0. Lost were 85,000 jobs. It is not too much to say the historically slow climb of the economy out of the 2009 financial crisis stems in part from growing uncertainty about the rule of law in the United States, uncertainty that has discouraged investment, leading major corporations and other investors to horde cash long beyond when normal indicators would have indicated such a cautious stance was needed. Part of the responsibility for that uncertainty belongs at the doorstep of the Justice Department.
I mention all this to put in context an op-ed that appeared in the New York Observer last week (http://bit.ly/18wyvGH). Written by longtime federal prosecutor (now retired) Sidney Powell, author of a 2014 book on the department (http://amzn.to/1BJ76LG), the piece portrays Attorney General nominee Loretta Lynch as a product and exemplar of the department’s compromised culture.
Powell reports that the Judiciary Committee asked Ms. Lynch to respond in writing to charges by University of Utah law professor Paul Cassell regarding failure to follow restitution statutes in the case of a racketeering defendant turned informer. According to Cassell, Lynch’s office “failed to notify victims of the sentencing in that case and had arranged for the racketeer to keep the money he had stolen from victims, even though the law makes restitution mandatory.” This failure was in direct violation of two statutes, both associated with Senator Orrin Hatch: the Mandatory Victim Restitution Act, 18 U.S.C. §3663A, and the Crime Victim Rights Act, 18 U.S.C. §3771.
According to Powell, such deals that serve the department’s purpose but not those of impartial justice became standard procedure during Lynch’s tenure as US Attorney in the Eastern District of New York. In her written response regarding the case in question, Ms. Lynch obfuscated, claiming that the case “pre-dated my tenure as United States Attorney”, even though her signature appears on the charges against the racketeer.
As Powell points out the among Ms. Lynch’s deputies at Justice will be two officials responsible for the actions against Arthur Andersen and other abuses of prosecutorial power.
Ms. Powell’s case is compelling. Reading it, it is hard to avoid the conclusion that, for those who believe, as I do, that reforming the Justice Department is urgently needed and long overdue, Loretta Lynch is the wrong appointment at the wrong time.