Obama's Enforcer (8 page)

Karlan's appointment was compounded by President Obama's nomination (with Holder's support) of Debo Adegbile to be Karlan's boss as the new assistant attorney general of the Civil Rights Division, a nomination that Carl Rowan Jr. called an “open slap in the face to everyone in law enforcement.”
56
During his time at the NAACP's Legal Defense and Education Fund, Adegbile supported racial hiring and college admission quotas, opposed allowing employers to do criminal background checks on job applicants, claimed the government had the right to interfere in the hiring of ministers by religious organizations, and provided legal representation to Wesley Cook, the former Black Panther and Marxist revolutionary who was convicted of the cold-blooded murder of Philadelphia police officer Daniel Faulkner in 1981. Cook, better known as Mumia Abu-Jamal, is probably the most notorious cop killer in the country. Abu-Jamal's guilt was not a close call—he confessed to hospital workers that “I shot the motherf***er, and I hope the motherf***er dies.” He did not testify in his own defense—and neither did his brother, who was at the scene of the crime. Yet Adegbile and the NAACP used this case to raise money, making false claims that Abu-Jamal was convicted because of “structural racism” in America. Adegbile's nomination was opposed by a host of police organizations, including the Fraternal Order of Police; the black Democratic district attorney of Philadelphia, Seth Williams; as well as Bob Casey, Pennsylvania's Democratic senator. In a sign of just how radical Adegbile is, a motion to proceed with his nomination failed by a vote of 52 to 47 on March 2, 2014, because a number of Democratic senators voted against him.

Finally, one cannot end a discussion of Eric Holder's arrogant contempt for the rule of law without discussing his decision to violate his constitutional duty to “take care that the laws be faithfully executed” by refusing to defend the Defense of Marriage Act (DOMA) before the U.S. Supreme Court. Again, the issue here is not what one believes about same sex marriage as a matter of public policy. The issue is Holder's dereliction of his duty to defend the constitutionality of laws passed by Congress.

The Justice Department has a long-standing, well-established policy of defending a federal statute unless no reasonable argument can be made in its defense or the statute would infringe on some core presidential constitutional authority. This has been the policy of the department regardless of administration, Democratic or Republican, and is the consensus of experts and high-level Justice Department officials. In a letter that he sent to the Senate in 1980 on the attorney general's duty to defend and enforce legislation, Benjamin Civiletti, the attorney general for the final two years of the Jimmy Carter administration, said that “if executive officers were to adopt a policy of ignoring or attacking Acts of Congress whenever they believed them to be in conflict with the provisions of the Constitution, their conduct in office could jeopardize the equilibrium established within our constitutional system.” When confronted with such a choice, “it is almost always the case that [the attorney general] can best discharge the responsibilities of his office by defending and enforcing the Act of Congress.”
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As former Clinton administration solicitor general Drew Days says, this also ensures that the government “speaks with one voice” and it prevents “the Executive Branch from using litigation as a form of post-enactment veto of legislation that the current administration dislikes.”
58

Yet on February 23, 2011, Eric Holder sent a letter to House Speaker John Boehner telling him that despite the fact that the Justice Department had previously defended the constitutionality of DOMA, it would no longer do so because there were no reasonable arguments that could be made for its constitutionality. But the department under Holder had been making precisely such “reasonable” arguments in ongoing litigation for years, claiming that “DOMA is rationally related to legitimate government interests and cannot fairly be described as born of animosity.”
59
In the first three years of his administration, President Obama had not treated DOMA as if it was a facially invalid statute; he had expressed ambivalence about a statute overwhelmingly passed by Congress and signed into law by Bill Clinton. Holder suddenly took the position that the Justice Department could no longer defend the law “after previously enforcing the law, leading many to question a decision to abandon the law ‘midstream' without any clear advocate with standing to argue the law's merits.”
60
And this only happened after increased criticism from the gay community as President Obama was entering his reelection campaign.

Regardless of the question of the legality or acceptance of same-sex marriage, the problem is Eric Holder and the president forswearing their duty to defend laws passed by Congress. The ultimate decision in the DOMA case,
U.S. v. Windsor
, was a narrow 5-4 decision invalidating part of DOMA, but the majority noted that “when Congress has passed a statute and a President has signed it, it poses grave challenges to the separation of powers for the Executive at a particular moment to be able to nullify Congress's enactment solely on its own initiative.”
61

On this issue, Eric Holder also was willing to use federal power to override state sovereignty and defy even the Supreme Court when he announced in January 2014 that the federal government would recognize same-sex marriages performed in Utah despite another Supreme Court ruling. In December 2013, a lone federal judge in Utah, Robert Shelby (a recent Obama appointee), held that Utah's limitation of marriage to heterosexual couples violated the Constitution. After Shelby refused to stay his opinion, the state filed an emergency appeal with the U.S. Supreme Court, which stopped Shelby's judgment from going into effect until a federal appeals court considers the issue.
62
Before the stay was issued, hundreds of marriages were performed; the Supreme Court's stay put those marriages performed in violation of state law in legal limbo.

In announcing that the federal government would recognize those marriages, Holder mischaracterized the Supreme Court's action as an “administrative step” and wrongly cited the
Windsor
decision to justify what he did. The
Windsor
case only held that the federal government has to recognize same-sex marriages that a “state recognizes as marriages;
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here, the Utah attorney general, Sean Reyes, announced that the state would not recognize the marriages. Noted legal analyst Ed Whelan, a former Justice Department lawyer who worked in the Office of Legal Counsel, says, as “jaded” as he is by “the lawlessness of the Obama administration,” even he “didn't expect this.” The federal government does not have the power to “treat as marriages those same-sex relationships that the state in which the marriage supposedly took place does
not
recognize as marriages.”
64

The point here is not to debate the appropriateness of same-sex marriage—the point is that this is an issue entirely up to the states and their residents and legislators to decide, not the United States attorney general, who has no authority to override state laws. That is the kind of tyrannical authority that royal governors thought they had in the American colonies prior to the Revolution.

Holder compounded his dereliction of duty by urging that state attorneys general engage in the
same
type of misbehavior. In February 2014, he told a meeting of the National Association of Attorneys General in Washington that they should not defend state marriage laws banning gay marriage—despite the fact that the U.S. Supreme Court has never ruled that such a prohibition violates equal protection. In an interview, a senior state official told the authors that many of the state officials resented having Holder lecture them on their obligations as attorneys general given Holder's own many shortcomings.

After Holder finished his public remarks, the media were cleared out of the room and the doors closed. According to the state official, Holder was then asked by one of the state attorneys general how Holder could make such a recommendation when we have an adversarial-based legal system that depends on both sides of a dispute having vigorous legal representation to make their case, particularly since attorneys general take the position that they are the exclusive representatives of the public? Holder conceded that we have an adversarial court system and admitted that both sides should be represented. He acknowledged that state marriage laws were entitled to a defense. But he said “others” should do that at the expense of the taxpayer, not the state AGs. Holder also falsely claimed that he had worked with the House of Representatives to help it find representation after he told Congress he would no longer defend DOMA.

Eric Holder's actions set a precedent that would allow any future president in essence to veto any legislation signed into law by his predecessor (or to override state laws) by simply deciding not to defend a federal law against legal challenge. If an administration “disagrees with duly enacted laws or finds it politically expedient not to enforce them, it waives the laws out of existence rather than fulfilling its constitutional obligation to take care that those laws be faithfully executed.”
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Why bother going to Congress and trying to persuade its members to repeal laws the president doesn't agree with? What Holder and President Obama did destroys the separation of powers that is the basis of our constitutional system. Whether you are a liberal, a moderate, or a conservative with various points of view on many different issues, everyone should fear having an attorney general who establishes the precedent that prior laws passed by our elected representatives and signed into law by a popularly elected president can be wiped out of existence by one person in a new administration deciding that Justice simply will not defend that law in court. And Holder wants to spread his upside-down view of our constitutional system into the states like an infection.

Federalist
No. 47 discussed why the Constitution distributed power between the “legislative, executive, and judiciary departments.” James Madison explained that “the accumulation of all powers . . . in the same hands, whether of one, a few, or many . . . may justly be pronounced the very definition of tyranny.” Eric Holder has done his best to accumulate that power in the Office of the Attorney General.

CHAPTER 4

THE (UN)CIVIL RIGHTS DIVISION

Civil Rights for Thee but Not for Me

With almost a thousand employees and a 2012 appropriation of $145 million, the Civil Rights Division is one of the largest divisions within the Justice Department. It has seen significant increases in its budget under the Obama administration and has hired many new employees in career civil service positions, primarily radically liberal lawyers. As journalist Byron York says, the division is “bigger, richer and more aggressive than ever, with a far more expansive view of its authority than at any time in recent history.
1

The extent to which that authority has been misused under the Obama administration was vividly illustrated in a shocking 129-page order released by a federal court in Louisiana in September 2013. It involved the case of five New Orleans police officers who were convicted of civil rights violations over a shooting and subsequent cover-up in the aftermath of Hurricane Katrina.
2
Judge Kurt Engelhardt overturned the convictions because of “grotesque prosecutorial abuse” and the “skullduggery” and “perfidy” of Justice prosecutors. He found that lawyers in the Office of the U.S. Attorney in Louisiana and in the Civil Rights Division had, among other misdeeds, made anonymous postings on the website run by the New Orleans
Times-Picayune
that “mocked the defense, attacked the defendants, and their attorneys, were approbatory of the United States Department of Justice, declared the defendants obviously guilty, and discussed the jury's deliberations.”

One of the division lawyers involved was Karla Dobinski. Dobinski was the “taint attorney”—the lawyer assigned to make sure that the defendants' rights were not violated by the division prosecutors using privileged information such as the compelled testimony provided by the officers to internal investigators at the police department. The judge was appalled that the lawyer assigned to ensure that the constitutional rights of the defendants were protected was personally fanning the “flames of those burning to see [the defendant] convicted” before the jury even got the case.

Judge Engelhardt spent ten pages of his order just describing the ethical rules and federal regulations violated by Justice lawyers. He clearly believed that Holder's Justice Department tried to hide what happened because trying to get information out of the department was like “slowly peeling layers of an onion.” He was also suspicious that DOJ's reports on the internal investigation were “edited by a supervisor so as to coyly provide less information, rather than more.” Reportedly, the supervisors on the case were Deputy Attorney General James Cole (the number-two Obama political appointee at Justice directly under Eric Holder) and an assistant.

The judge noted that an FBI special agent used “shockingly coercive tactics” against defense witnesses. Because of threats of prosecution for perjury over their earlier grand jury testimony by the lead prosecutor of the division, Barbara “Bobbi” Bernstein, three of those witnesses refused to appear at trial on behalf of the defendants. The judge found it highly suspicious that twenty-six months after the trial, not one of those potential witnesses who could have provided exculpatory evidence had “been charged with any crime whatsoever.”

Engelhardt pointed the finger of blame in this case directly at Eric Holder. Just like in the incident involving George Zimmerman and Trayvon Martin in Florida, the radical civil rights organizations that are the allies of the administration had clamored for federal prosecutions of the New Orleans police officers. The fact that Dobinski and Bernstein remained employed at the department and that no disciplinary action was taken against them is a sad but telling comment on the behavior that Eric Holder finds acceptable in his prosecutors—if they are liberals who push the kinds of prosecutions that he and the administration's political allies want. As the court noted, this demonstrated a get-a-conviction-at-any-cost attitude by Holder and his minions in the Civil Rights Division:

The indictment in this case was announced with much fanfare, a major press conference presided over by U.S. Attorney General Eric Holder, and widespread media attention. . . . A DOJ representative said that the indictments “are a reminder that the Constitution and the rule of law do not take a holiday—even after a hurricane.” While quite true in every respect, the Court must remind the DOJ that the Code of Federal Regulations, and various Rules of Professional Responsibility, and ethics likewise do not take a holiday—even in a high-stakes criminal prosecution, and even in the anonymity of cyberspace. . . . [T]he Court simply cannot allow the integrity of the justice system to become a casualty in a mere prosecutorial game of qualsiasi mezzo [by any means necessary].

Would that the New Orleans fiasco was an isolated example of Justice's Civil Rights Division abuses.

Under Eric Holder's direction and the supervision of one of the administration's most radical political appointees, Thomas Perez,
3
the assistant attorney general for civil rights from 2009 to 2013, the Civil Rights Division has pursued a militant civil rights agenda intended to help Democrats win elections and implement their progressive version of a socialized America where racial, ethnic, and sexual quotas are required in everything from college admissions to public employment to school discipline.

Perez, with the collaboration of the overwhelmingly liberal career staff in the division, waged a war on religion; abused federal law to restrict the free speech of pro-life activists; went after school districts for having dress codes that don't allow boys to come to class in drag or for implementing voucher programs to help students get out of bad schools; tried to stop states from improving election integrity efforts through voter ID or the verification of the citizenship of registered voters; and arranged a quid pro quo deal to protect an unsupportable race-centric legal theory—disparate impact—used to extort huge settlements from banks and mortgage lenders. The division has been at the forefront of enforcement that is based on liberal ideology and partisan politics, rather than objective law enforcement and the pursuit of justice. Bob Driscoll, a former chief of staff in the Civil Rights Division, says that today “it is more like a government-funded version of advocacy groups such as the ACLU or the NAACP Legal Defense Fund than like government lawyers who apply the facts to the law.”
4

All of this has been quite deliberate. Holder claimed he was “offended” at the way the Bush administration had supposedly transformed the Justice Department, and particularly the Civil Rights Division, which he calls the “crown jewel” of the Department.
5

Created by the Civil Rights Act of 1957, the division is charged with enforcing federal discrimination laws in voting, employment, housing, immigration, and education. The division is divided into eleven “sections” that have responsibility for different areas, such as the Voting Section. The nearly ninety lawyers and staff in that section enforce the Voting Rights Act, the National Voter Registration Act, and other federal voting laws. At a time in our nation's history when we have less discrimination than we have ever had before, the division is the largest it has ever been and has enormous power to abuse the law and shape the legal environment that governs many different areas of our culture and economy.

A longtime, current employee of the division told one of the authors that in the employee's opinion, the current administration has:

racialized and radicalized the division to the point of corruption. They embedded politically leftist extremists in the career ranks who have an agenda that does not comport with equal protection or the rule of law; who believe that the ends justify the means; and who behave unprofessionally and unethically. Their policy is to intimidate and threaten employees who do not agree with their politics, and even moderate Democrats have left the department, because they were treated as enemies by administration officials and their lackeys. Another black employee who has worked for the Justice Department for decades said to me that “there is no justice left in Justice under this administration.”

From his first day in office, Eric Holder has misused the power of the Civil Rights Division, starting almost immediately with his dismissal of the voter intimidation case against the New Black Panther Party over its actions in Philadelphia in the 2008 election. In March 2013, the inspector general of the Department of Justice, Michael Horowitz, released a report on the operations of the Voting Section of the division that is a disturbing and sad commentary on the mismanagement and misbehavior of the people who work there.
6
The problems exposed in the report are rampant throughout the entire division, problems that have existed for many years but were greatly exacerbated by the Obama administration.

The IG report describes a dysfunctional division torn by “polarization and mistrust,” a division beset by unprofessional and unethical behavior, a division in which career civil service employees who are perceived by other employees as conservatives or Republicans or who believe in the race-neutral enforcement of federal discrimination laws are subjected to racist comments, harassment, intimidation, bullying, and even threats of physical violence. It is a division that has experienced other misbehavior by career employees that has gone unpunished, such as perjury and the use of a government credit card to pay for romantic trysts with a mistress.
7
It has engaged in biased hiring practices intended to ensure a staff with a radical, left-wing ideology and has pursued meritless cases, working not on behalf of the American public as a neutral law enforcement agency but to achieve political and ideological objectives.

None of this comes as a surprise. For decades, the division has hired almost exclusively from the ranks of liberal advocacy organizations. The career leadership of the division, like in most government agencies, provides substantive expertise and continuity from one administration to the next. However, the career lawyers in the Civil Rights Division are overwhelmingly liberal and have always manipulated the hiring process to ensure that the staff remains that way. In December 2000, when it became clear that a Republican would be in the White House, the division underwent an unprecedented hiring binge to fill ninety civil service vacancies before the new administration came on board, according to the 2013 IG report.

For example, in a federal government that usually takes months to hire a new employee, the division issued a vacancy announcement on December 19, 2000, that closed on January 2 for eight positions in the Voting Section. Interviews were conducted over a three-day period, January 3–5, 2001, and by January 11, shortly before the inauguration of George Bush, the positions had been filled with individuals who were all “committed to the mission of civil rights,” that is, liberals who would fight the new administration. It was very clear the leadership was seeking to prevent the Bush administration from choosing career lawyers who might have a more moderate or conservative view of civil rights enforcement. The former director of human resources in the division told the IG that hiring “had never happened like that before and she believed that the hiring efforts were improper.” In fact, a Clinton political appointee “threatened to take control” of the hiring if the section chiefs failed to fill the slots quickly—and they “got the message loud and clear.”

These hiring tactics were brought back and increased exponentially under Eric Holder. There were hiring controversies in the Bush administration when Bush political appointees tried to impose a more balanced hiring process that would give experienced lawyers from across the political spectrum a chance to get hired. The former inspector general of the Justice Department, Glenn Fine, a Clinton appointee, issued a partisan report in 2009 thickly laced with bias, inaccuracies, gross exaggerations, and misstatements of both facts and the law. It criticized that hiring, which brought a small number of lawyers into the division who had not worked at liberal civil rights organizations, ignoring the biased hiring that had occurred during the Clinton administration. But then, the conclusion of the report was no surprise given that two of the lawyers who helped write the report were Tamara Kessler, a liberal former Civil Rights Division lawyer who actually worked alongside many of the leading critics identified in the report, and Mark Masling, also a former Civil Rights Division attorney and self-proclaimed “proud Democrat.”
8

Just one example suffices of how biased Fine's 2009 report was. One of the Appellate Section attorneys who figured prominently in the report—a Clinton political appointee who burrowed into the career civil service and then claimed she was victimized by the Bush political appointees—was promoted to a policy-making counsel position in the division's new front office
on the very first day
of the Obama administration. This is a slot normally reserved for political appointees.

Vowing that they would correct the supposed “abuses” of the Bush administration, Eric Holder and the Obama administration established a hiring system that on its surface appears impartial, but in fact accelerated the practice of hiring only liberal, politically biased, and politically connected lawyers. The new system put an emphasis on experience with civil rights groups, which invariably are liberal and very partisan. It is no surprise, therefore, that 100 percent of all of the lawyers hired by Eric Holder for career civil service positions in the Civil Rights Division have been Democratic activists or ideological liberals and firebrands.

The 2013 IG report found that in the Voting Section alone, 56 percent of those hired since 2009 came from only five organizations: the American Civil Liberties Union, La Raza, the Lawyers' Committee for Civil Rights, the NAACP, and the Mexican American Legal Defense and Educational Fund. The IG report says that the “Voting Section passed over candidates who had stellar academic credentials and litigation experience with some of the best law firms in the country, as well as with the Department” in order to hire those they considered to have a “commitment” to “traditional” civil rights, that is, liberals who support quotas, ethnic and gender entitlements, and a government-imposed racial spoils system. When a division deputy chief, Becky Wertz, was asked to prepare a list of career lawyers who had left during the Bush administration who could be recruited to return, she “could not explain why” she left off the names of the eight lawyers perceived to be “conservatives.” Bob Popper, a former deputy chief who finally left the division in 2013 out of frustration, says he was “routinely excluded from hiring decisions” starting in 2009 because he was perceived as a “conservative.”