U.S. Attorney General Holder: "No One is Above the Law"

New Attorney General Promises To Restore Justice Department's Reputation
The National Law Jourman by Joe Palazzolo and Devlin Barrett - February 4, 2009

WASHINGTON - Attorney General Eric Holder, on his first day on the job, signaled a clean break with past policies of the Bush administration and promised to hold Wall Street accountable if any major financial institutions engaged in fraud that contributed to the global financial crisis. Vice President Joseph Biden swore in President Barack Obama's choice - the first black to hold the post - in a ceremony yesterday before dignitaries and employees at the Justice Department. The lanky, 58-year-old former prosecutor, federal judge and No. 2 official during the Clinton administration promised the start of a new era at the department, which was wracked by Bush administration scandals over politically motivated hirings and firings.

Mr. Holder has pledged to restore its reputation. "This is a place that has, I think, been hurting, but I think it's ready to heal," he told reporters. "I am determined to ensure that this shall be a new day for the dedicated career professionals that I am so honored to call my colleagues," Mr. Holder said after taking the oath. He said he was committed to remaking the department "into what it once was and what is always should be." Mr. Biden said the department, under Mr. Holder, would return to a past standard of "no politics, no ideology. Only a clear assessment of facts and law." Mr. Holder was confirmed Monday evening by a 75-21 Senate vote, with all the opposition coming from Republicans. Shortly after the swearing-in yesterday, Mr. Holder was questioned about Wall Street, reviled by some Americans for extravagant company bonuses while seeking taxpayer dollars to remain solvent. "We're not going to go out on any witch hunts, and yet we'll drill down and see" to what extent the economic troubles are the result of fraud or misconduct, Mr. Holder said. "We'll find it and hold people accountable."

However, Mr. Holder faces the challenge of balancing his goal of fighting financial fraud and the department's ever-increasing national security efforts. The FBI has been plain about the dearth of agents to investigate financial crimes, as the bureau has reconstituted itself to deal more effectively with terrorist threats. Mr. Holder will immediately take a leading role in shaping a new regime for detaining and interrogating suspected terrorists. He will also be at the fore of an effort to shut down the Guantanamo Bay detention facility within a year. That undertaking will include a review of each of the 245 detainees held there, and ultimately, resolving the thornier problem of whom to charge and how. The president has assigned Mr. Holder to lead two multi-agency groups to sort through these issues. A team of Justice Department lawyers has already begun the work in Mr. Holder's absence. National security will remain the department's top concern, and Mr. Holder has voiced support for most, if not all, of the tools created in the last eight years, including the Patriot Act, the amended Foreign Intelligence Surveillance Act, and new guidelines that give FBI agents uniform rules for assessing threats in both national security and criminal investigations.

Early Challenges

The new attorney general will face early tests that will reveal the president's notion of his own powers and the extent to which the Obama administration intends to stray from legal policies of the past eight years. In a case in the U.S. District Court for the District of Columbia, four men being held at the Bagram prison in Afghanistan are seeking to challenge their confinement under habeas corpus, as detainees at Guantanamo can. The Bush administration argued that Bagram was far outside the reach of U.S. courts. Judge John Bates has given the Justice Department until Feb. 20 to state its position. The department also has asked for more time to consider its stance in the case of Ali al-Marri, a Qatari national legally in the United States, held as an "enemy combatant" in a U.S. military brig. The Bush administration asserted broad powers to detainee him indefinitely. Earlier this month, acting Solicitor General Edwin Kneedler asked the U.S. Supreme Court for a delay until March 23. Mr. Al-Marri's counsel could then file a reply brief in time for oral argument during the week beginning April 27, Mr. Kneedler added. In a case in San Francisco involving the al-Haramain Islamic Foundation, which alleges that it was victim to an illegal warrantless wiretapping program, a federal judge last month ordered the government to hand over classified documents to the foundation's lawyers. The judge explicitly rejected the Bush administration's invocation of the state secrets doctrine to block the lawsuit. The Justice Department has until Feb. 13 to file a brief stating its position. If the department relents, the case could supply the fullest picture yet of the Bush administration's warrantless spying program.

'No One Is Above the Law'

Mr. Holder's unequivocal statement that waterboarding is a form of torture - voiced during his confirmation hearings - could lead to an investigation into the CIA's use of the tactic and its legal underpinnings. But Mr. Holder runs the risk of alienating factions in the CIA as the fledgling administration tries to form a more cohesive national security apparatus. He has been vague about his intentions in this regard, and his aides have refuted reports that Mr. Holder promised Republicans he would not prosecute individuals for their roles in authorizing or carrying out the now-banned interrogation method. "No one is above the law," Mr. Holder said at his Jan. 15 confirmation hearing. "We will follow the evidence, the facts, the law, and let that take us where we should." Days later, in a written response to a question from Senator Jeff Sessions, R-Ala., Mr. Holder wrote: "It is, and should be, exceedingly difficult to prosecute those who carry out policies in a reasonable and good faith belief that they are lawful based on assurances from the Department of Justice itself."

Mr. Holder will also inherit ongoing investigations into the destruction of CIA interrogation videos and the firings of nine U.S. attorneys during President George W. Bush's second term. John Durham, the prosecutor handling the CIA matter, has indicated in court filings that his investigation is nearing an end, perhaps as early as February. Mr. Holder will have final say over charging decisions in both probes. The department's credibility, was badly bruised in four joint reports by the Office of the Inspector General and Office of Professional Responsibility released over the past year. The department's internal watchdogs concluded that former appointees violated Justice Department policy and civil service law by dragging partisan considerations into the process of hiring career lawyers. Now, Mr. Holder must decide how to advise Mr. Obama on the order by Mr. Bush that three of his former top aides - Karl Rove, Harriet Miers and Josh Bolten - should not testify before Congress about firings of U.S. attorneys. Mr. Rove and Ms. Miers were former aides when Mr. Bush gave his order. If Mr. Obama reverses Mr. Bush's policy, it would create a new legal issue: whether a former president's order against testifying would still be valid.

Mr. Holder comes to the job after seven years in private practice at Covington & Burling, where he was a sought-after figure for companies, nonprofits and government agencies caught up in criminal or ethical investigations. Mr. Holder, who met Mr. Obama at a dinner party in 2004, advised the candidate on legal issues and led the team that vetted Mr. Obama's potential running mates. There never seemed any doubt Mr. Holder would be confirmed, but Republicans signaled early on that they intended for the job to come at a high price. Led by Senator Arlen Specter, R-Pa., the ranking member of the Senate Judiciary Committee, Republicans sought to rekindle controversy surrounding his role in the pardon by President Bill Clinton of fugitive financier Marc Rich and members of the violent Puerto Rican rebel group, FALN. But their concerns never gained enough purchase to inflict any real damage, and Mr. Holder emerged from his confirmation hearings with the support of all but two of the Senate Judiciary Committee's Republicans. Mr. Specter, his harshest questioner, voted yes. Joe Palazzolo is a reporter at Legal Times, a New York Law Journal affiliate in Washington. He can be reached at Joe.Palazzolo@ incisivemedia.com. Devlin Barrett is an Associated Press reporter.