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May 27, 2013

Latest scandals aside, shouldn't AG Eric Holder be getting ready to move on?

Though I have not be following too closely the various scandals consuming the Obama Administration these days, a Fox News headline about one of them got me thinking about the question in the title of this post.  This recent Fox News story is headlined "DOJ acknowledges Holder on board with warrant for Fox reporter's emails," and here are excerpts:

The Justice Department acknowledged late Friday that Attorney General Eric Holder was on board with a search warrant to obtain the personal emails of a Fox News reporter, as media and civil liberties groups continued to raise concerns about the case. 

Following prior reports indicating that Holder had likely signed off on the search warrant, the Justice Department acknowledged Holder's involvement and defended the decision. It insisted the call to seek these files -- in the course of an investigation into a leak allegedly made by State Department contractor Stephen Jin-Woo Kim -- was legal.

"The Department takes seriously the First Amendment right to freedom of the press," the department said in a written statement, provided late Friday at the start of the holiday weekend. "In recognition of this, the Department took great care in deciding that a search warrant was necessary in the Kim matter, vetting the decision at the highest levels of the Department, including discussions with the Attorney General."...

President Obama directly addressed these complaints for the first time on Thursday, announcing a review of DOJ policies on investigations that involve reporters. "I've raised these issues with the attorney general, who shares my concern," Obama said, adding that Holder would report back by July 12. The acknowledgement, however, that Holder was involved in the search warrant decision raised additional questions about whether the attorney general's review of his own actions would be impartial.

Attorney Jesselyn Radack, who works with the Government Accountability Project and has represented accused leakers, told FoxNews.com she's not convinced by the administration's latest effort. "I don't think there needs to be a review of the internal guidelines. ... There needs to be a review of why they weren't followed," she said, adding Holder appears to have a "conflict of interest" in the review.

But Gregg Leslie, legal defense director for the Reporters Committee for Freedom of the Press, said his group was "encouraged to hear" the review was initiated.  He told FoxNews.com on Friday that the country still needs a national media shield law -- something the DOJ agreed with in its statement Friday.

Beyond the peculiar notion of AG Holder investigating a matter in which he is accused of wrong-doing, I must admit to a broader sense of Holder fatigue and a deep concern that the combination of persistent political opposition and many (mini?) scandals now necessarily means he is a diminished leader and administrator of the US Department of Justice.  Notably, many major figures in the Obama first-term cabinet have moved on, and yet AG Holder remains despite the fact that he has been, arguably, the most controversial member of the Obama cabinet.

Among the reasons I would like to see AG Holder move on is because there is an impressive list of Democratic state AGs who might be tapped to bring fresh energy and ideas to the US Justice Department.  Personally, I would love to see a woman with some serious state-level experience --- e.g., Martha Coakley from Massachusetts, or Kamila Harris from California, or Lisa Madigan from Illinois --- now in the role of US Attorney General. Among other benefits, a current state AG placed now in the US AG role could and likely would be able to advise Prez Obama and his team how best to get the feds out of a lot of criminal justice areas best left to the states (e.g., marijuana reform/regulation).

May 27, 2013 at 10:31 PM | Permalink


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Professor, why in the world would you want to see an unprincipled thug like Martha Coakley anywhere near the DOJ? Does the name Gerald Amirault mean anything to you?

And Kamala Harris? Didn't she get into politics by being on Willie Brown's casting couch?

As for Lisa Madigan, do we need a cabinet member from the cesspool that is Illinois politics?

Eric "Marc Rich" Holder is a disgrace. And I doubt the families of the Fast & Furious victims think that Holder's scandals were minor.

Posted by: federalist | May 27, 2013 11:49:10 PM

So who would you suggest, federalist, among those who could be on an Obama list?

Posted by: Doug B. | May 28, 2013 2:31:40 AM

As I read the article here there are some questions here about some of the leaps. Holder approved a Warrant to Search? Or a Warrant Application following which a Federal Search Warrant was signed by a Federal Judge? So, who is the Federal Judge who issued this warrant? Is that person free from "scandal". Or, correct me if I am disabused. Did Holder sign a Search Warrant himself and no judge signed off on it? Let us see the Warrant Application and the Warrant. Then we can know something of substance regarding this SCANDAL. Someone clue me in on the technical meaning of "on board" here. Was someone waterboarded? Someone under Holder made a warrant application and some judge signed a warrant? Holder was "on board" ship? He did not abandon ship? If we have a SCANDAL then many of us would like to see some precision in the language used to describe the scandal. Yeah, I am tired of the all caps too.

Posted by: liberty1st | May 28, 2013 3:14:54 AM

What we could learn from the scandals is that the presumption of innocence suffers from internal bleeding and is near death. From the DOJ to the media to lawmakers who claim to carry the Constitution in their back pockets, the presumption of guilt is widespread. There is some irony in FoxNews complaining now.

Posted by: George | May 28, 2013 3:16:24 AM

Was thinking of something to add then noticed George pretty much said it. To me the pity is that only when some great ox gets gored (this time AP and the news gathering process itself) do folks notice and care that the DOJ somewhat routinely rides roughshod over citizens' most basic rights and protections.

Posted by: JohnK | May 28, 2013 7:59:05 AM

Man, Prof B, can't you liberals get past the ridiculous identity politics and just pick the best person for the job? Granted, I probably would not be too thrilled with any nominee tapped by "The One" but the person's genitalia should be the least of our worries.

I also kind of wonder if you would have used the phrase "peculiar notion" to describe Aschroft investigating Ashcroft.

Posted by: TarlsQtr1 | May 28, 2013 8:56:02 AM

Doug --

I have two nominees. One is James Comey, former Deputy AG under Bush, who made himself congenial to Democrats by his very public fight with Alberto Gonzales. Comey's big advantages are that he's actually qualified to be AG, is a man of known integrity, is respected by key Senate Democrats, and, at 6'8", is only slightly shorter than Janet Reno.

The other is Fourth Circuit Chief Judge James B. Traxler, a 1998 Clinton appointee to the Circuit, and recently appointed by the Chief Justice to be Chairman of the Judicial Conference.

Both men have what is most needed now: A reputation for integrity respected across the aisle, and years of experience at a very high level. They remind me of two of the better appointments I have seen over the last 35 years: Jimmy Carter's appointment of Judge William Webster to be head of the FBI, and George Bush's appointment (at Chuck Schumer's suggestion), of Judge Michael Mukasey as AG.

Both were men of great integrity, for whatever one have made of their substantive policies.

The downside, in this appallingly politically correct administration, is that both of my candidates are white males, while -- for example -- Kamila Harris is a black female and "hot."

Can this culture get any more dumbed down?

Posted by: Bill Otis | May 28, 2013 9:26:28 AM

"appallingly politically correct administration"

The secretaries of state, defense, treasury all are listed as above AG on the depth chart, so to speak. All white males.


B43 was about as diverse overall as Obama.


I'm fatigued about the potshots above -- continue to find it strange that a blog that on the face of it is a specialized examination of sentencing issues invites comments more likely to be found on some partisan political blog.

Posted by: Joe | May 28, 2013 10:02:18 AM

Joe --

You wanna tell me why the only people mentioned by Doug are women? Is there some reason only women should be considered?

And if you weren't noticing, the new Secretary of Transportation is black, and got the job because of the multi-decibel bellyaching on HufPo, among many others, that there are too many white males in the administration.

As to your "fatigue": Is someone forcing you to read this site? Were you "fatigued" when Doug took an openly partisan shot at Sensenbrenner, and put up a picture of him designed to make him look even fatter than Chris Christie? John K, for one, takes shots all the time at Republicans, but I have never seen you complain about "fatigue" when they show up. Or how about Scarlet Rose? No?

You are a more moderate voice than many, and for the most part you have adult manners and acquit yourself like a professional. So that's a good thing. But substantively, I have yet to see you take anything other than the liberal side of any position discussed here, be it the death penalty, pot legalization, mandatory minimums, or anything else. Should I complain of "fatigue" at seeing your 100% liberal tilt?

I don't think so. What you post and are allowed to post is up to Doug and you, not anyone else.Complaining about "fatigue,"when you have 1000 other sites you could visit, doesn't much move the ball.

Now if you have any response to the nominees I suggested (I see you suggest no one), I'd be interested in your thoughts.

Posted by: Bill Otis | May 28, 2013 10:44:49 AM

Joe stated: "I'm fatigued about the potshots above -- continue to find it strange that a blog that on the face of it is a specialized examination of sentencing issues invites comments more likely to be found on some partisan political blog."

Please explain to me how Professor Berman naming ONLY WOMEN as possible AG candidates is anything but partisan politics. Fits right into the Dems <3 Women and Repubs have a "War on Women" meme, am I correct?

No politics in "Machinery of Death" being in the subject line of post after post about the DP, correct?

If Professor Berman does not want this to be a "partisan political blog", then he should not make it one. I have tons of respect for him and he is perfectly in his right to conduct this blog in any manner he sees fit. It is his. However, for you to complain about others being "political" seems more than just a little one-sided.

Posted by: TarlsQtr1 | May 28, 2013 11:07:53 AM

Observations to All:
It seems no matter how God like a person is, when the person gets into the thick of a Federal position. YThey become a much bigger THUG than the ones they are chasing down....So it has to do with basic character and a lot of opportunities to go bad...Pretty much like a person with a drug problem living out inn the world with not so many resources....

Get rid of all the lobbyists...

We all know the vast majority of high ranking peoople are really good.. Have to be.. With cell phones, and everyone wanting to take cheap shots.
Its a great world we libve in today, as long as your on the up and up... TAke 2 steps off interstate (mainline accepted path) and you could be fading real quick...Its the world that we live in these days... Its is Fast and Furious, is it not..

Posted by: MidWest Guy | May 28, 2013 11:39:42 AM

Personally, I do not think that either sex or attractiveness should be considered in choosing an Attorney General. However, given that President Obama disagrees, how about reaching across the political aisle and choosing Pam Bondi?

Posted by: Kent Scheidegger | May 28, 2013 3:08:45 PM

Doug, I am not in the habit of recommending Democrats for any political office. I trust that you were not aware of Coakley's role in the continued subjugation of Gerald Amirault. Now that you are aware, are you still thinking she should be on a list of potential AGs?

And what about Kamala Harris--I trust that sleeping your way to a political launching pad is not what we want in an AG.

As for Eric "Marc Rich" Holder---he's a disgrace-do you disagree?

Joe, quit whining about potshots. Am I wrong about what I wrote?

Posted by: federalist | May 28, 2013 8:59:53 PM

Seem to my eyes/ears that folks on both sides of the aisle prefer political sniping rather than substantive, serious discourse. So be it, as I surmise everyone enjoys attacking a stick figure of the other side more than engaged mature debate. And I have little interest and less time to try to encourage others to stop playing rhetorical spitball.

As for gender diversity in the AG spot, I will proudly assert my belief that a lot more women should have a lot more influence over a lot more of the criminal justice system. More than 90% of violent crimes are committed by men, and women are too often their victims. And while some seek to empower women by making sure they can be armed with assault weapons, I am even more eager to see them armed with political and legal power.

Posted by: Doug B. | May 29, 2013 12:28:42 AM

Doug, that's weak. Pointing out Coakley's shameful involvement in the Gerald Amirault case isn't "political sniping." Rather, it's pointing out something that should be disqualifying. I don't see how that's not serious discourse. And I notice that you evade direct questions on the point. Same goes for Holder---is it really unfair to point out that Holder was involved up to his eyeballs in the notorious Marc Rich pardon--especially given the later scandals and some of the nasty treatment of whistleblowers? And what about Kamala Harris--is it really empowering women to elevate a woman who got her start in politics in the boudoir of a powerful legislator?

I get that you don't want to referee foodfights--but I don't think any of the points I've raised here are petty or easily dismissed.

Rather, I think that there's a casual decision to ignore truly appalling things. So I will put it to you again, Doug, what is your view on Martha Coakley's involvement with the Amirault situation?

Posted by: federalist | May 29, 2013 2:14:12 AM

Doug --

"Seem to my eyes/ears that folks on both sides of the aisle prefer political sniping rather than substantive, serious discourse."

Only one commenter has answered your question about who Obama might plausibly nominate to replace Holder, and has given reasons supporting the suggested possible nominees. That commenter is not a liberal.

"So be it, as I surmise everyone enjoys attacking a stick figure of the other side more than engaged mature debate. And I have little interest and less time to try to encourage others to stop playing rhetorical spitball."

I'm glad that no one here used Rep. Sensenbrenner as a "stick figure" in the mandatory minimum debate, and refrained from any "rhetorical spitball" references like saying that he was "stunningly idiotic," or stuff like that.

(And yes, his comment about federal judge shopping was 100% erroneous and out of left field, but using the term "idiotic" -- much less devoting an entire entry to ridiculing the man -- is not exactly a paradigm of analytical debate).

"As for gender diversity in the AG spot, I will proudly assert my belief that a lot more women should have a lot more influence over a lot more of the criminal justice system."

Some might say that getting the last two Supreme Court appointments confers a degree of influence in the criminal justice system (they were decisive in yesterday's criminal law opinions, for example), but whatever.

Limiting the consideration of AG candidates JUST to women is carrying "diversity" to an absurd extreme. Do you really support the automatic disqualification of half the population?

"And while some seek to empower women by making sure they can be armed with assault weapons..."

Haven't you repeatedly used Martha Stewart as an example of a convicted felon who should be able to carry guns? So you would be one of those people who wants to "empower women" by making sure they can arm themselves (even if they have a criminal record), not so? Am I misremembering this?

"...I am even more eager to see them armed with political and legal power."

Sure, but you omit two crucial points. First, women are already more than half the electorate (54%, to be specific, see http://www.huffingtonpost.com/2012/11/07/gender-gap-2012-election-obama_n_2086004.html). Second, giving women more political and legal power hardly requires that the Attorney General's chair be reserved ONLY for them.

Posted by: Bill Otis | May 29, 2013 9:20:50 AM

D. Berman: : "[Leaving?] Latest scandals aside"

Why do so? From Black Panthers and Fast & Furious to the present abuses, Holder has been unbelievably
forgetful, mendacious, and incompetent.

Consider the James Rosen malignity alone.

Posted by: Adamakis | May 29, 2013 10:00:23 AM

With all due respect, Doug, you cannot have it both ways.

Is "Machinery of Death" in subject line after subject line "substantive, serious discourse?"

Heck, in the same post you are scolding others, you state: "And while some seek to empower women by making sure they can be armed with assault weapons,..."

No political sniping on your end, eh?

Exactly, "who" are these "some"? The most eminent law professor does realize that even the term "assault weapon" is one which was changed by a POLITICAL ACT of the LEFT, the Assault Weapons Ban of 1994? Prior to that, the assault rifle was strictly an automatic weapon (the Nazis first used the phrase in naming "The Sturmgewehr").

True "assault rifles" have been virtually banned since the 1934 National Firearms Act and I have not seen even the NRA push for women (or anyone else) to get them. For the record, because you claim to be about quantitative analysis of what works and what doesn't, you should know that the murder rate in prohibition era Chicago when Thompson sub-machine guns were ubiquitous on the streets was much lower than now.

Doug stated: "And while some seek to empower women by making sure they can be armed with assault weapons, I am even more eager to see them armed with political and legal power."

Empower? Do you see women as weak beings that need YOUR (a man's) help to get "power?" How 1880's of you.

Finally, I suggest reading Jonah Goldberg's book "The Tyranny of Cliches." One of the theses in it has to do with the left's habit of accusing others of being ideological while believing they are not. It seems to have been written for you.

Posted by: TarlsQtr1 | May 29, 2013 10:02:15 AM

"DOJ Confirms: Eric Holder Vetted Search Warrant For James Rosen ..."

-- -- Appearing before the House Judiciary Committee on May 15, Holder insisted that, "With regard to the potential
prosecution of the press for the disclosure of material, that is not something that I've ever been involved in, heard of
or would think would be a wise policy
. In fact, my view is quite the opposite."

-- -- However, NBC News reported last week that Holder personally approved a search warrant that labeled Fox News
chief Washington correspondent James Rosen a co-conspirator in a national security leaks case.

-- --This investigation involved commandeering not only Mr Rosen’s phone records and those of his parents, but his
private emails, as well as his movements into and out of government buildings
as recorded on his press security pass.

-- -- It has also emerged that the Justice Department obtained access to James Rosen's emails after filing an affidavit
that accused him of being a likely criminal "aider, abetter and/or co-conspirator", and a flight risk who might change his appearance, under 18 U.S.C. 793, regarding the disclosure of sensitive material.

"Holder said it's not something I'm involved with, don't know anything about it -- he lied on both counts,"
J. Christian Adams, a former Justice Department attorney told Fox News.

Jesselyn Radack, an attorney who works with the Government Accountability Project...[said] Holder's statement
to the House committee was "at best hypocritical and at worst perjury."

{5/22-5/28/13: theHill.com, nationalreview.com, guardian.co.uk, foxnews.com}

Posted by: Adamakis | May 29, 2013 10:07:47 AM

Asked and answered, but to repeat: There is some irony in FoxNews complaining now.

Posted by: George | May 29, 2013 3:05:58 PM

I am pleased to see this discussion has started to get a bit more substantive, and I hope federalist especially does not think I am accusing him of political sniping. federalist usefully engaged substantively with my list of current D-affiliated female state AGs, and I was grateful for that engagement. And I followed up by asking for him to suggest other (politcally viable) names.

Especially when we are discussing political positions in the executive branch and/or Presidential appointments more generally, I think it makes good sense to mix political analysis in with social and legal analysis. But rather than engage with (1) my suggestion Holder move on, or (2) my suggestion that a state AG be nominated by Obama to take his place, TarlsQtr1 responded to my post by asking "can't you liberals get past the ridiculous identity politics and just pick the best person for the job?" And Bill Otis later in the thread wrongfully suggested that I think "only women should be considered."

What I have said, and what I will continue to try to explain, is that I "would love to see" a woman in the role of US AG --- principally because I favor a world with more females in more roles with more political/legal power, especially with respect to the operation of criminal justice systems. My reasons for this personal gender bias is complicated and multifaceted --- they include, e.g., (1) my sense women in power do not get mired in sex scandals as often as men in power, (2) my desire for more political/legal female role models for my children, (3) my instinct that women tend to be more moderate and open-minded (i.e., less rigid) concerning novel ideas, and (4) my fear that the amount of violence by men against women remains a severe national problem that women may be uniquely attentive to and best able to address. I could go on explaining this perspective, but I hope everyone just sees that I think gender-identity issues (more than race- and religion-, but less than class-identity issues) merit more consideration in politics and criminal justice administration than they get now.

As for political/legal discourse, I hope everyone appreciates that I do not mean to assert or even suggest that I do not myself engage in political sniping or that I do not enjoy attacking a stick figure version of my opponents. I love to snipe, provoke, insult and drive folks crazy with rhetoric (some of which can sometimes be justified and some not so much). Not only do I know I am highly ideological/biased/partisan, I am proud to discuss/examine the foundation of my ideological commitments and how they lead me to certain policy views and lead me to use certain (fair and unfair) rhetorical devices in my writings and argument. And I do not mean to scold others for how they snipe in the comments here: rather I just wanted to observe, mostly in response to Joe, that the comment threads often take political turns because, ever the libertarian, I try to let everyone freely discuss whatever they want in the comments without regulating this space in an significant way (unless/until I think criminal activity is afoot).

What I hope everyone might do is just take a deep breath and not worry so much about what other do and say in this space. Use it as you see fit, and know that I will do the same and my time/energy/other commitments permit.

Getting back to substance, federalist, I would need to know a whole lot more about Coakley's involvement in the Gerald Amirault case before I could conclude it is disqualifying for a US AG position. By my lights, Holder's involvement in the Clinton Administration's criminal justice policies --- capped off by the Marc Rich pardon fiasco --- should have been disqualifying from the get-go for him. Indeed, because I generally had low opinion of Holder even before he became AG --- Coakley would have to have a lot of (actual? figurative?) blood on her hands before I would not consider her (or many other state AGs) a significant trade up for the nation and especially for the future of the federal criminal justice system.

Last but not least, if I really had the ear of Obama, I would seriously recommend somebody like Pam Bondi and/or Susana Martinez to replace Holder. But I doubt Obama has sufficient political courage or savvy to even consider reaching across the aisle like that (even though, especially on federal criminal justice matters, the country REALLY needs some strong bipartisan action ASAP).

Posted by: Doug B. | May 29, 2013 3:47:01 PM

"Asked and answered, but to repeat: There is some irony in FoxNews complaining now." --Posted by: George

Is this any defence of Holder?

Posted by: Adamakis | May 29, 2013 4:10:18 PM

"political turns"

No, more the personal attacks as well as the sort of things that even had you annoyed at Bill Otis more than once. But, I'll stop "whining."



Posted by: Joe | May 29, 2013 9:38:08 PM

It's not AG, but it's pretty close:

Bill Otis, yesterday morning:

"I have two nominees. One is James Comey, former Deputy AG under Bush..."

Reuters about 2 hours ago:

"President Barack Obama is expected to nominate former Justice Department official James Comey as his next head of the FBI, a source said on Wednesday."

We'll see if this comes to pass, but if so ... impressive.

Posted by: C60 | May 29, 2013 10:21:47 PM

Here is a link to an article written by Ann Coulter concerning Gerald Amirault and Martha Coakley: http://www.wnd.com/2009/12/118496/

Posted by: Fred | May 29, 2013 10:45:40 PM


I agree with federalist on most points. To see Martha Coakley's abuse of "the whole Amirault family", google Dorothy Rabinowitz WSJ online Coakley/Amirault article. Martha Coakley is a dangerous individual and should not be State AG, much less head the DOJ. She should not be recommended for dog catcher!

However, I find Sensebrenner's comeuppance not only factual, but absolutely necessary to realize the ignorance and callousness of the individuals we have chosen as "leaders".

I wish there was someone who served in a major capacity as a Defense Lawyer for part of her career to truly make the changes that are necessary in the DOJ. I know of no such person, or if they are even capable of existing nowadays.

Posted by: albeed | May 30, 2013 12:12:53 AM

The sooner Holder moves on, the better. In particular, he has done nothing concerning the crimes committed in the mortgage securitization process.

Now I acknowledge that trying to convict the CEO of a TBTF bank may be beyond the reach of any AG. But doing nothing about the low hanging fruit of robo-signing?

How about the many people who pretended to be the legendary “Linda Green”? Or how about “Linda Green” pretending to be an executive of multiple financial institutions? And of course how about the notaries who notarized all of “Linda Green’s” signatures in all of her various corporate capacities?

Robo-signing has been described as nothing but “paper work” problems that deadbeats have tried to exploit to get a free house. In a handful of cases, yes.

But robo-signing has destroyed the reliability of the traditional land record system in the country. This affects everyone, not just deadbeats trying to get a free house.

Further robo-signing is the main reason mortgage-backed securities are described as “toxic”, and banks with a large portfolio of mortgage backed securities on their balance sheets as “zombies”. The last time I looked at the end of 2Q 2011, BoA had 55t and Wells had 35t on their books, respectively.

Holder did nothing.

But three state AGs tried. Coakley of Massachusetts, Harris of California, and Masto of Nevada all filed criminal and/or civil actions concerning robo-signing.

But several state AGs ran interference for the robo-signers: Bondi of Florida, Miller of Iowa, and Cuccinelli of Virginia.

Posted by: Fred | May 30, 2013 9:50:57 AM

Janat Napolitano is more qualified than all of those proposed names. Was well respected as AZ AG and Gov as well at AZ US Attorney, which gives her federal experience as well.

Posted by: AUSA 12 | May 30, 2013 11:41:36 AM

NOOOO kent! not bimbo bondi! that would be as big a fuckup as when janet reno took the job!

she is another useless waste of air!

Her and her boss wipedout out 20 years of lawsuits and court hearing after they took office. just suprised none of the million plus excons they decided to fuck without grease hasn't manged to do an attitude adjustment.

Posted by: rodsmith | Jun 1, 2013 11:27:06 PM

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