Obama's Enforcer (3 page)

But in late 1999, a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit unanimously accepted Popa's political speech argument. The D.C. Circuit vacated his conviction, concluding that the statute “could have been drawn more narrowly, without any loss of utility to the Government, by excluding from its scope those who intend to engage in public or political discourse.” The appellate court remarked that people who make anonymous and abusive phone calls with the intent to communicate a political message should be given “a pass.”
40

Eugene Volokh, a law professor at the University of California, Los Angeles, says Holder's efforts to prosecute Popa were a troubling early harbinger of an increasing tendency to criminalize offensive speech. He notes one case involving Philip Speulda, a Democratic candidate for city council in Hawthorne, New Jersey, in 2011. Speulda sent out a flyer that included a photo of his Republican opponent in a hot tub with two other men. The Republican charged that the photo was intended to indicate he was gay and he convinced the police to issue a criminal summons for “harassment.” The charges were later dismissed, but certainly created a “chilling effect” on Speulda's campaign.
41

“Unwanted speech to some recipients—for instance, government officials, candidates for office, and possibly businesses that serve the public—might have constitutional value even when the listener doesn't want to hear it. People may have the right to remonstrate with government agencies and petition for redress of grievances even when the target doesn't want to hear the petitions or the petitions are offensively worded,” Volokh wrote.
42

Eric Holder clearly didn't want to hear Ion Cornel Popa's message and went to great lengths to prosecute him criminally for his harsh criticism, which, as coarse and nasty as it was, was fully protected by the First Amendment.

In 1997, Holder left the U.S. attorney job when he was elevated by Bill Clinton to the number-two slot at Justice. There he not only had major administrative duties but became increasingly important as Attorney General Janet Reno struggled with Parkinson's disease. Insiders at Justice say Holder was influential in convincing Reno to stop appointing independent counsels to investigate Clinton scandals such as Chinagate, the flow of illegal campaign contributions from foreign sources to the 1996 Clinton reelection effort.

At the end of Clinton's second term, Holder's image was tarnished by his role in the pardon of Marc Rich, a fugitive financier who had been indicted in 1983 on charges of tax evasion and selling oil to Iran during the hostage crisis involving U.S. diplomats. Rich fled to Switzerland to escape a trial, but employed top-shelf lawyers and lobbyists to plead his case for a presidential pardon. According to the
Wall Street Journal
, his former wife, Denise Rich, donated more than $1 million to the president's party and Hillary Clinton's 2000 Senate race, and raised millions more from others. One event at her Fifth Avenue penthouse brought in $3 million during the dark days of the Lewinsky-Clinton scandal. “It means more now than ever, and we'll never forget it,” President Clinton said at that event. The
Journal
reported, “By the time the Clintons left the White House, Ms. Rich had become a close enough friend that she was able to lobby the president on three occasions—once in person, once on the phone and once in a letter.”
43

All this apparently moved Rich's pardon application to the top of various Clinton administration in-boxes. Holder was asked his opinion of the pardon and responded he was “neutral leaning toward favorable.” Clinton issued the pardon the next day, just hours before leaving office.
Time
magazine has placed it on its list of the ten most notorious presidential pardons, along with those of Richard Nixon and Patty Hearst.
44

Holder has since said he “regretted” his role in the Rich pardon. He concluded his testimony to the House Government Reform Committee in February 2001 by saying that “knowing everything that I know now, I would not have recommended to the president that he grant the pardon.” But sometime before the 2000 election, Holder had told Rich's lawyer, Jack Quinn, someone Holder knew very well was “a close confidant of Vice President Al Gore, that [Holder] wanted to be attorney general in a Gore administration.”
45

Holder may have regretted the political fallout he received from the deal, but as Representative Dan Burton (R-IN) said to Holder at the February hearing, “You wanted something from Mr. Quinn. You wanted his support for attorney general of the United States, and he wanted a pardon for Mr. Rich and his partner.”
46
In fact, for Eric Holder, “the position of attorney general had always loomed in the distance like a grail—the pinnacle of influence for a public-service lawyer.”
47

During the eight years of the Bush administration, Holder was a lawyer with the Washington, D.C., firm of Covington & Burling, where he represented major clients such as the National Football League and Chiquita Brands International and earned a great deal more money than he had in government.
48
An example of his work there was his securing a “slap-on-the-wrist plea deal” with federal prosecutors for Chiquita to charges that the company had paid off terrorists in Colombia.
49
He briefly served on the board of MCI and even joined an investor group that made an unsuccessful bid for a major-league baseball team, losing the contest for the Washington Nationals.
50

But Holder also found time to remain politically active, becoming, as
ABA Journal
noted, “the consummate Washington insider.” Then came that fateful dinner party with Barack Obama. The mind-meld the two men had culminated in Holder's nomination to become attorney general and his Senate confirmation by a vote of 75 to 21. At Justice, he has become the “vanguard for the administration's progressive wing.”
51

Why does it matter who runs the U.S. Justice Department? Because that person heads one of the most powerful executive branch agencies in the federal government—one that has enormous discretionary power to pursue people accused of breaking the law and to exert major influence over social, economic, and national security policies by the choices its leader makes in enforcement. It requires someone who understands that while the attorney general is a political appointee, he (or she) has a sworn duty to uphold the Constitution and enforce the law in an objective, nonpolitical manner. One of Holder's own friends, a former DOJ official, said Holder's weakness is his “instinct to please.” Holder “doesn't have to be told what to do—he's willing to do whatever it takes. It's his survival mechanism in Washington.”
52

In 2013, the Justice Department had a budget of almost $27 billion, 114,000 employees, and was America's largest law firm.
53
It has more employees today than it has ever had in its history, with a sharp increase in the number of staff occurring during the Obama administration (it only had a little over 105,000 employees in 2008).
54
There are more than forty different offices, including the Civil Rights, Criminal, Anti-Trust, Environment and Natural Resources, and Tax divisions. But the attorney general does far more than merely oversee the federal government's prosecution of cases in these areas of the law.

The department's Civil Division defends the government when it is sued and the Office of the Solicitor General represents the government before the Supreme Court. The Office of Justice Programs dispenses hundreds of millions of dollars in federal grants of all kinds, giving it extraordinary power over state and local law enforcement agencies as well as many other organizations, including nonprofit groups.

Eric Holder also oversees the Bureau of Prisons, which runs all of the federal prisons in the country; the Federal Bureau of Investigation (the FBI); the Bureau of Alcohol, Tobacco, Firearms and Explosives (the ATF); the U.S. Marshals Service; and the Drug Enforcement Administration, all of which are part of the Department of Justice. In essence, the Justice Department is the largest law enforcement agency in the world with investigators and agents, lawyers, and prison officials all combined in one government department.

Although the Office of the Attorney General was created by the Judiciary Act of 1789, making it the fourth cabinet-level post, the Justice Department has only been in existence since an act of Congress signed by President Ulysses S. Grant in 1870. Holder is the eighty-second American to hold that position; he has been preceded by some very distinguished jurists.

The very first attorney general was Edmund Jennings Randolph, a delegate to the Constitutional Convention of 1787 and a former aide-de-camp to George Washington, and who served from 1789 to 1794. Other well-known attorneys general include Robert H. Jackson, the fifty-seventh attorney general, who went on to become a member of the U.S. Supreme Court and, most famously, one of the chief prosecutors in the Nuremberg trials of Nazi leaders after the end of World War II; Edwin Meese III, the seventy-fifth attorney general, who started a legal revolution with his remarks about originalism and the Constitution in a speech to the ABA in 1985 during the Reagan administration; and of course, Robert F. Kennedy, the brother of President John F. Kennedy, who served as the sixty-fourth attorney general from 1961 to 1964 during the crucial period of the civil rights movement.
55

Holder's spacious and well-furnished offices are located on the fifth floor of the main Justice Department building, located at 950 Pennsylvania Avenue in Washington, about halfway between the White House and Congress, and they include a small private apartment where the attorney general can sleep when he needs to stay at the office during crises. Named the Robert F. Kennedy Building since 2001, it was completed in 1935 and occupies the entire block between Pennsylvania and Constitution Avenues, and Ninth and Tenth Streets. It was built in the Classical Revival style of that time period, combined with Art Deco and Greek features, and surrounds a central courtyard. It is filled with beautiful murals and statutes depicting scenes of daily life at home and in the workplace throughout American history, as well as symbolic themes about the role of justice in our society.

The Justice Department's motto, contained on the seal of the Department, is “Qui Pro Domina Justitia Sequitur.” It has been roughly translated to refer to the attorney general as he who “prosecutes on behalf of justice.”
56
But as we will see, Eric Holder seems to have changed that motto so that it sometimes can be read to mean “the attorney general prosecutes on behalf of his political and ideological allies.” Eric Holder is almost certainly the most liberal attorney general of the modern era, but he has also liberally bent the rule of law and established internal practices that harm the cause of justice. His tenure at the Justice Department has been marked by one scandal after another and abusive behavior by Justice Department lawyers in unwarranted, ideologically driven prosecutions.

Holder is the first attorney general in history to be held in contempt by the House of Representatives for his unjustified refusal to turn over documents related to what may be the most reckless law enforcement operation of the Justice Department: Operation Fast and Furious. He has launched more investigations and prosecutions of leaks than any prior attorney general, yet he has studiously ignored high-level “friendly leaks” by White House officials in the Obama administration.

Holder has racialized the prosecution of federal discrimination laws and led an unprecedented attack on election integrity laws, thus making it easier for people to commit voter fraud and facilitating the election of members of his political party. His handling of national security issues has been dismal and he has filled the career ranks of the Justice Department with political allies, cronies, and Democratic Party donors, in clear violation of civil service rules. Holder has treated Congress with contempt and has done everything he can to evade its oversight responsibilities by misleading, misinforming, and ignoring members of Congress and its committees. Holder has attacked pro-life protesters, trying to use federal power to restrict their First Amendment right to speak, has prosecuted American companies for engaging in behavior that is routinely done by government officials, and has on numerous occasions ignored his duty to defend the law and to enforce statutes passed by Congress.

For these reasons and many others, former career lawyer Christopher Coates, who served in the Clinton, Bush, and Obama administrations, says that in his opinion, “Holder is the worst person to hold the position of Attorney General since the disgraced John Mitchell, who went to jail as a result of the Watergate scandal.”
57

CHAPTER 2

GIBSON GUITAR'S GREEN RAID

 

Gibson Guitar is a 112-year-old company with a peerless reputation. It makes the renowned Les Paul electric guitar and is famous for being the source of John Lennon's J-160E acoustic guitar. But to the Obama Justice Department it was a target of opportunity, worthy of being treated as if it were run by dangerous drug dealers or the mob.

In August 2009, Justice sent federal agents armed with automatic weapons on raids of Gibson's offices and factories in Nashville and Memphis, Tennessee, seizing computers, files, guitars, pallets of wood, and ebony fingerboard blanks. In April 2011, DOJ executed another similar raid of Gibson, even though no criminal charges had been filed.

Initially, the big mystery for Gibson was why the first raid had even been conducted. “Everything is sealed” said Gibson CEO Henry Juszkiewicz: “They won't tell us anything.”
1
Apparently, Justice's Environmental and Resources Division was investigating possible violations of the Lacey Act, which makes it a crime to import flora or fauna in violation of a foreign nation's laws. In other words, if a country like India makes it illegal to export a certain type of wood, then it is a criminal violation for an American company to import the Indian wood into the United States. Gibson tried to point out to the Justice Department, apparently to no avail, that the wood seized in both raids, ebony and rosewood from India and ebony from Madagascar, was legally exported under both countries' laws. The wood from India had been certified by the Forest Stewardship Council, an independent nonprofit that monitors the sale and export of wood to make sure it is legal. Gibson had sworn statements and documents from the Madagascar government that the wood was legally exported under Madagascar law.

As Juszkiewicz said after the 2011 raid, “armed people came in our factory . . . evacuated our employees, then seized half a million dollars of our goods without any charges having been filed. . . . I think it's a clear overreach.”
2
Juszkiewicz added that “the federal bureaucracy is just out of hand. . . . We feel totally abused. We believe the arrogance of federal power is impacting me personally, our company personally and the employees here in Tennessee, and it's just plain wrong.”
3

The actual amount of rosewood, ebony, and finished guitars seized by the feds was worth more than a million dollars. The raids crippled Gibson's production because the “raids took most of the company's raw materials.” The company filed a civil lawsuit in federal court to recover the seized material.
4

The Justice Department received a blaze of bad publicity and congressional inquiries because of its SWAT-style armed raids on a guitar maker, particularly since Gibson had cooperated with Justice after the first raid by providing documentation and information. As Gibson pointed out, the second raid was conducted “without warning or communication of any kind.” If Justice had simply contacted Gibson, the company “would have cooperated without having to stop its production and send workers home.”
5
But the administration's environmental allies were happy about the administration's enforcement of the Lacey Act and had no sympathy for Gibson or its employees: “Gibson clearly understood the risks involved,” said Andrea Johnson, director of the Environmental Investigation Agency, which, despite its name, is a private liberal organization.
6

But it turned out in the end that the Justice Department really had overreached—conducting armed raids and threatening criminal charges without the evidence to back up its claims. Because of the threat to the continued operations of his business, Juszkiewicz finally agreed to a settlement with the Justice Department despite the frivolous nature of the department's case. As he said, he really didn't have any choice because the criminal proceedings had cut off Gibson's access to sources of hardwood needed to manufacture guitars:

“The alternative was pretty onerous. We would have had to have gone to trial and we would have been precluded from buying wood from our major source country. For the ability to carry on with the business and remove this onerous Sword of Damocles, if you will, we feel this is about as good a settlement as we can get.”
7

But the “deferred prosecution” settlement agreement signed by the Justice Department with Gibson in 2012 reveals the weakness of the threatened prosecution—in fact, DOJ had no case at all.
8
For example, Justice acknowledged that “certain questions and inconsistencies now exist regarding the tariff classification of ebony and rosewood fingerboard blanks pursuant to the Indian government's Foreign Trade Policy. Accordingly, the Government will not undertake enforcement actions related to Gibson's future orders, purchases, or imports of ebony and rosewood fingerboard blanks from India.”

In other words, the Justice Department essentially admitted that it had improperly seized Gibson's stock of fingerboards from India because it was “unclear” if they had been illegally exported under the relevant law, not U.S. law, but India's law. And Justice not only agreed to return all of the Indian wood it had seized but also not to object to future importation from India.
9

Justice's case for the Madagascar wood was no stronger. Appendix A to the settlement agreement goes into a lengthy explanation of “Madagascar Interministerial Order 16.030/2006,” as well as a whole series of other “interministerial orders,” all of which concerned the export of certain woods. According to a translation of these orders, wood products considered “finished” could be exported, and listed under the examples of “finished” wood products were “guitar fingerboards.”

In the same appendix, however, Justice then recites that a Gibson representative flew to Madagascar on a trip organized by “Greenpeace and other non-profit environmental groups.” The trip's organizers received a “translation” of Order 16.030/2006 and gave Gibson their opinion that fingerboard blanks were not “finished” products and therefore could not be exported. So to make its case, the Justice Department was relying on the opinion of the trip organizers about the interpretation of a translation of a foreign government order. No mention is made of who made the translation.

As Paul Larkin, a veteran Justice Department lawyer who worked in both the Criminal Division and the solicitor general's office says, putting “aside the obvious problems with government reliance on the opinion by the trip's ‘organizers' of a
foreign order
written in a
foreign tongue
—Gibson was given conflicting views of the law. That should have ended the matter entirely.”
10
Because Gibson had received conflicting advice, the government could not prove that it had the required criminal intent or that the exportation of the fingerboards even violated Madagascar law. When combined with the “questions and inconsistencies” over India's law, the government should have dropped all the charges.

Instead, in conduct bordering on unethical, it forced Gibson into a settlement that Gibson agreed to in order to be able to remain in business. Gibson was required to pay a $300,000 fine, to make a $50,000 payment to the National Fish and Wildlife Foundation, and improve its internal compliance program to make sure it did not violate the Lacey Act in the future—even though the government was essentially agreeing it had not violated the Lacey Act in the first place.

After the prosecution was settled, some very interesting facts came to light. It turned out that Henry Juszkiewicz, Gibson's CEO, had contributed to Republican politicians, including Senator Lamar Alexander (R-TN) and Representative Marsha Blackburn (R-TN). Chris Martin, the head of Gibson's biggest competitor, C. F. Martin & Company, was a “longtime Democratic supporter, with $35,400 in contributions to Democratic candidates and the Democratic National Committee over the past couple of election cycles.”
11
C. F. Martin's catalog showed several guitars containing “East Indian Rosewood,” which is the exact same wood that was at issue in the Gibson case and seized during the militia-style SWAT raid.

Moreover, at the same time that Gibson Guitar was raided in 2011, federal agents also seized “$200,000 worth of Indian ebony and rosewood” from Gibson's supplier, Luthiers Mercantile International, which was destined to be shipped to Gibson.
12
The sixty thousand fingerboards were the “same cut and kind of wood that the company routinely sells to other guitar manufacturers,” according to Natalie Swango, Luther Mercantile's general manager.
13
“Other guitar manufacturers”—like C. F. Martin perhaps? But C. F. Martin was never raided by federal agents or threatened with criminal prosecution by the Justice Department.

The Justice Department's press release about the settlement is full of praise for itself and says that it “goes a long way in demonstrating the government's commitment to protecting the world's natural resources.” It does not acknowledge the lack of evidence that Gibson violated the law or the baselessness of the government's prosecution. As former DOJ prosecutor Paul Larkin pointedly says: “The government has made a federal case out of ‘fretboards' or ‘fingerboards.' . . . Is that how we want federal tax dollars spent—punishing domestic companies that purchase a valuable, harmless product from foreign companies that, in turn, purchase it from an exporter in a foreign land, where the alleged illegality is the violation of an ambiguous order written in a foreign language? All that not to prevent the import of toxic waste but guitar fretboards?”
14

According to
Investor's Business Daily
, the Justice Department claimed it “acted to save the environment from greedy plunderers.” But 95 percent of the rosewood from Madagascar and India goes to China: “America is a trivial importer . . . so putting Gibson out of business wasn't going to do a whole lot to save their forests.”
15

The effect of the Gibson prosecution on musicians was to inspire fear and uncertainty. John Thomas, a blues and ragtime guitarist, says, “there's a lot of anxiety, and it's well justified.”
16
He will never go out of the country anymore “with a wooden guitar” for fear it will be seized and criminal charges filed against him. Musicians “who play vintage guitars and other instruments made of environmentally protected materials are worried the authorities may be coming for them next.”
17
“People are very confused,” said George Gruhn, a Nashville-based vintage guitar dealer, because “there is uncertainty about what the federal government expects.”
18
Apparently, what the government expects is for Americans to have detailed knowledge about the laws of foreign countries like India and Madagascar or else risk imprisonment. As Larkin says, “
that
is the biggest crime of all.”

Despite the expensive and unnecessary ordeal that Gibson and its employees went through, they obviously have not lost their sense of humor. Gibson is now advertising the “Government Series II Les Paul,” which celebrates “an infamous moment in Gibson history.” Gibson electric guitars “have long been a means of fighting the establishment,” so musicians can now “fight the powers that be with this powerful Les Paul!” that features some of the rosewood seized by the Justice Department in its raids.
19

The Gibson Guitar fiasco put a spotlight on a little-known division of Justice, the Environment & Natural Resources Division (ENRD). If you ask most Department of Justice veterans (the ones who will give you a straight answer) which division is full of the craziest, most ideologically driven lawyers, they will immediately say the Civil Rights Division. But if you ask them which division comes in second, they will tell you it is ENRD, which boasts on its website that it is “the nation's environmental lawyer, and the largest environmental law firm in the country.”
20
When one of the authors worked in the Civil Rights Division at the Justice Department, he was told by a lawyer who worked in ENRD that all of the lawyers there thought of the ENRD as simply an extension of Greenpeace, the Natural Resources Defense Council, or the Sierra Club. They did not think of themselves as government attorneys who are supposed to act in the best interests of the public, both individual citizens and businesses, by enforcing our nation's environmental laws in a fair and judicious manner.

That their extremism has simply accelerated under the Obama administration is no surprise—the ENRD in June 2013 was headed by Acting Assistant Attorney General Robert Dreher, the former general counsel for the Defenders of Wildlife and a former attorney at the Sierra Club Legal Defense Fund (now Earthjustice). By an odd coincidence, Earthjustice, Dreher's former employer, has been the biggest beneficiary of attorneys' fees paid out by American taxpayers in litigation against the Environmental Protection Agency (EPA) and lawsuits handled by the ENRD when it represents the EPA (more on that later).

All Americans want to protect wildlife and foster a cleaner and healthier environment. And it is ENRD's job to enforce the laws that Congress has passed to do exactly that. But it is not ENRD's job to do so in a way that goes beyond the law, abuses its authority, criminalizes ordinary conduct, and benefits the political allies of the president who holds the White House.

As Kim Strassel of the
Wall Street Journal
has pointed out, the EPA—and thus the ENRD lawyers representing the agency—has suffered an “embarrassing string of defeats” in the courts.
21
Those “judicial slapdowns are making a mockery of former Obama EPA Administrator Lisa Jackson's promise in 2009 to restore the [EPA]'s ‘stature' with rulemaking that ‘stands up in court.' ”
22
Part of the job of a lawyer, including a government lawyer, is telling clients that the positions they are taking are outside of or not in accord with the applicable law. This is particularly important for Justice Department lawyers who have an obligation to ensure that the agencies they represent are not acting beyond the authority granted to them by Congress. But because most ENRD lawyers agree ideologically with the extreme and often radical positions taken by the EPA and other federal agencies like the Department of the Interior, they are not willing to objectively assess the legality of the government's misbehavior and regulatory overreach.