Eric, Merrick, and Jeff
In 2013, when asked when he might step down as attorney general, Eric Holder said: "I’m still enjoying what I’m doing, there’s still work to be done. I’m still the President’s wingman, so I’m there with my boy. So we’ll see."
What could he have meant? It didn’t take long after President Obama took office to find out. Holder stayed in to commit more legal mischief. And that established the roots of the legal shambles we see today, with Attorney General Merrick Garland violating President Trump's -- and our -- civil rights.
The pattern of lawlessness started with Holder.
In May 2009, the DOJ dropped prosecution of several New Black Panther members for violating the Voting Rights Act on election day in 2008. When testifying before Congress to explain this decision, Holder claimed his hands were clean and that the decision was made by career Justice Department prosecutors. But that wasn’t true. According to J. Christian Adams, a real career DOJ attorney, the decision not to prosecute was made by Associate Attorney General Thomas Perrelli, an Obama political appointee, “who overruled a unanimous recommendation for prosecution by Adams and his associates.”
Backed by a videotape of the New Black Panthers intimidating voters, there couldn’t have been a more clear cut case of a Voting Rights Act violation. So why drop the case? An attorney familiar with the Obama Justice Department’s Civil Rights Division observed that Department staff “openly and proudly advocate for a different standard” depending on the race of the alleged civil rights violator.
Another Obama priority was gun control. To that end, the Fast and Furious scheme was hatched in October 2009 by the ATF, a Justice Department agency. The ATF, however, somehow lost track of almost 2,000 Fast and Furious gun sales, one of which was linked to the murder of Brian Terry, a Border Patrol Agent. Fast and Furious turned out to be an embarrassment for Obama and of questionable legality. So Holder led an effort to stymy investigation of the scheme by ignoring Congressional subpoenas for emails and other documents, which ultimately earned him a contempt of Congress citation. Holder then advanced the cover-up by claiming executive privilege as the reason for withholding additional documents. It was only years later, when documents were produced by court order, that the true purpose of Fast and Furious was revealed: to gin up a crisis requiring a crackdown on guns in America.
Then there came a time when the press was making life difficult for Obama. And Holder was determined not to let the First Amendment get in the way. So, in 2009 the DOJ ignored Fox News reporter James Rosen’s constitutional rights when it suspected him of being the source of classified leaks about North Korea. The New York Times editorial board wrote: "With the decision to label a Fox News television reporter a possible 'co-conspirator' in a criminal investigation of a news leak, the Obama administration has moved beyond protecting government secrets to threatening fundamental freedoms of the press to gather news.”
Similarly, in May 2012 the DOJ secretly obtained phone records of Associated Press reporters and editors after the AP published a story about a foiled terror plot: "Obtaining a broad range of telephone records in order to ferret out a government leaker is an unacceptable abuse of power," said Ben Wizner, director of the American Civil Liberties Union's Speech, Privacy and Technology Project. "Freedom of the press is a pillar of our democracy, and that freedom often depends on confidential communications between reporters and their sources.”
Holder proved to be an accomplished wingman, and it remained to be seen if Merrick Garland would follow suit. On his first day on the job, Garland offered a ray of hope when he said: “All of us are united by our commitment to the rule of law, and to seek an equal justice under law.”
But Garland’s pledge didn’t last long. On Sept. 29, 2021, the National School Board Association sent a letter to President Biden warning of threats of violence made by parents to school officials. Within days the White House passed the letter to the DOJ, whereupon Garland galvanized into action and released a memo directing the FBI to address threats made by parents to school boards. All this fit neatly in Biden’s worldview that the greatest threat the country faced was from white MAGA supremacists. But upon reflection, and in response to the outrage voiced by parents, the National School Board Association disavowed its letter. Garland, however, stubbornly refused to retract his memo.
Garland also wasn’t shy about using the long arm of the FBI when it aided Biden’s agenda. On August 8, 2022 he approved a raid on former President Trump’s Mar-a-Lago home by some 30 FBI agents. No former president had ever been subjected to a similar SWAT-like raid. As for the national security documents which supposedly prompted the raid, National Archive officials testified that every administration had mishandled such documents.
So why the jackboot tactics? The raid was the prelude to the filing of 40 federal counts against Trump related to classified documents. Plus the timing of the raid ensured that charges would be filed during the 2024 election cycle and, if things worked out, Trump would be defending himself in federal court before the 2024 election. Such was Garland’s commitment to equal justice.
Although facing Trump in an election rematch may have concerned Biden, the investigation of his wayward son was more of a concern. Although there was an inherent conflict of interest with the Biden DOJ investigating his own son, Garland wasn’t going to let the appearance of a conflict get in the way. Garland assured the nation that there was no need to question the integrity of the investigation, and that Delaware U.S. Attorney David Weiss had full authority to run it. In addition, Garland assured us that he wouldn’t interfere with the investigation. Yet, IRS whistleblower Gary Shapley testified that Weiss confessed that “he was not the deciding person on whether charges are filed.”
When the Hunter Biden imbroglio blew up after U.S. District Judge Maryellen Noreika shot down the sweetheart deal proffered by Weiss, Garland had an epiphany and declared that a special counsel was needed after all. And the perfect person to be special counsel was none other than U.S. Attorney Weiss, the same U.S. attorney who had already determined that Hunter didn’t need to serve any time for his transgressions. Garland explained his special counsel decision with this “persuasive” argument: “his [Weiss's] investigation has reached a stage at which he should continue his work as a special counsel.”
Turning to Trump, we don’t know if he expected Jeff Sessions to be a wingman. He probably thought he was getting a loyal and experienced attorney general. After all, Sessions had served as assistant U.S. attorney for the Southern District of Alabama, and then as U.S. attorney for the same district. Sessions subsequently was elected attorney general of Alabama and then won a U.S. Senate seat. Plus, with the debt Trump owed Sessions for being the first sitting senator to endorse him for president, naming Sessions as U.S. attorney general was a no brainer. However, it may go down as one of the worst cabinet appointments ever made.
In fairness, Sessions faced a major challenge when he assumed office. The Russia collusion hoax had already reached a tipping point which threatened the Trump presidency. Moreover, the disgraced ex-FBI director, James Comey, was enthusiastically directing the investigation, and was stringing Trump along with the lie that he wasn’t being investigated.
Trump would have relied on his attorney general to protect him. To his disappointment, Sessions recused himself from the Russia collusion investigation based on the thin evidence of a few innocent meetings with Russia Ambassador Sergey Kislyak during the 2016 campaign. These meetings consisted only of "a discussion among a small group of ambassadors during the Republican National Convention and another brief encounter with a group of ambassadors after a public event." But it was enough for Sessions to decide that he should recuse himself. In hindsight, if Sessions had made even a cursory effort to evaluate the evidence against Trump, he would have learned that the Russia collusion allegations were baseless. But he ignored all pleas not to recuse himself and followed the advice of “relevant senior career department officials.”
So it came to pass that after a frustrated and betrayed President Trump fired FBI Director Comey on May 9, 2017, it was Deputy Attorney General Rod Rosenstein, not the recused Jeff Sessions, who decided that a special counsel was needed to oversee the Russia collusion investigation. Moreover, it was Rosenstein who chose Robert Mueller as special counsel. Rosenstein thus ensured that the country would continue to be fixated on Russia collusion for the next two years. As it turned out, Mueller couldn’t provide the impeachment ammunition the Democrats sought because he couldn’t find proof of Russia collusion.
Yet Sessions didn’t see that his recusal was an error. Years later, after he conceded losing a Senate primary to Tommy Tuberville, Sessions declared that his recusal “saved the president’s bacon.” Huh? Two impeachments later and he thought he did the right thing! Certainly not the stuff of a wingman.
Then there was Lois Lerner, who was the former director of the Exempt Organizations Unit of the IRS. Lerner took to heart Obama’s criticism of the Supreme Court’s 2010 Citizens United v. Federal Election Commission ruling, and systematically denied tax-exempt status to conservative organizations. In May 2013, she confessed to the targeting of conservative groups, and later, appearing before Congress, she declared her innocence and then invoked the Fifth Amendment to refuse to answer any questions.
On April 9, 2014, the House Ways and Means Committee sent a letter to the DOJ referring Lerner for criminal prosecution. The letter stated: “In particular, the Committee found that Ms. Lerner used her position to improperly influence IRS action against conservative organizations, denying these groups due process and protection rights under the law. The Committee also found she impeded official investigations by providing misleading statements in response to questions from the Treasury Inspector General for Tax Administration. Finally, Lerner risked exposing, and may have actually disclosed, confidential taxpayer information, in apparent violation of Internal Revenue Code section 6103 by using her personal email to conduct official business.”
To no one’s surprise, the Obama DOJ didn’t file criminal charges against Lerner. But all hope wasn’t lost. A couple of years later Sessions had another chance to charge her. And he had the benefit of the roadmap provided by the Ways and Means Committee. So what did Jeff do? He declined to charge her, writing that it “would not be appropriate” to reopen an investigation of Lerner.
The Lerner affair was another instance of where it appears Sessions deferred to entrenched DOJ staff, likely holdover Obama hires. If Sessions had the vision and courage to charge Lerner, however, the DOJ would have fired a shot across the bow of bureaucrats who abuse their positions to further partisan views. Yet another lost opportunity.
The contrast between Holder and Garland and Sessions is stark. Holder and Garland used their positions to protect their presidents and advance partisan agendas. In contrast, Sessions behaved as if he were president of a high school civics club. So the question is whether or not the next Republican president will name a wingman as attorney general? And if Republicans do, will the country suffer by the further politicizing of the attorney general’s office? But if Republicans don’t, will the DOJ continue to be weaponized?
On the other hand, who’s to say Republicans can’t name an attorney general who’s a wartime consigliere?
Eddie Willers is the pen name of a technical writer living in northern New Jersey.