Legal Commentary

Thoughts on the Cabinet With Special Reference to Eric Holder

By Professor University of Miami School of Law

In Salon, Joe Conason offers his take on The real reason Bill Clinton pardoned Marc Rich. It’s by far the most interesting thing I’ve read about the Holder nomination/confirmation process.

By and large Obama’s appointees are smart-to-brilliant technocrats. A few of the nominations seem inspired — General Eric Shinseki to the VA, Steven Chu to Energy, Janet Napolitano to DHS. A few seem odd or high-risk — Dennis Blair as DNI, Hillary Clinton to State, Mary Schapiro to the SEC (huh?).

And then there is Eric Holder. Very smart. Very hard-working. Very experienced. Perfect for the Attorney General job in normal times. But these are not normal times: the AG in the coming administration is going to be faced with a number of unusual challenges involving cleaning up the messes of his predecessors. For example, and just off the top of my head:

• Dealing with inescapable evidence of war crimes by members of the Bush administration
• Dealing with strong evidence of perjury by members of the Bush administration
• Cleaning up the mess in the Justice Department caused by politicized hiring
• Restoring confidence in the politicized US Attorney’s office — and re-examining possibly politicized prosecutions (and exonerations)
• Reviewing shoddy and in some cases evil (and secret) opinions of the OLC
• Prosecuting thieves who pillaged some of the other agencies and especially the war effort in Iraq

And lots more besides. These tasks require not just a technocrat, but someone with a strong moral compass, maybe even the capacity to feel outrage. Is that Holder? Some accounts suggest it could be. Others, focusing particularly on his involvement in the Marc Rich pardon, suggest it isn’t always.

Conason’s account of how the pardon came to be — a response to intense foreign pressure, a bargaining chip in the peace process — suggests that there might have been a reason why even a person of strong principles could have favored the deal. That gives me some hope. Hope is not a plan, but it’s something.

Note: I give little weight one way or the other the Obama proto-administration’s statements soft-peddling the chances of war crime/torture prosecutions. An administration planning on investigations with an eye to possible prosecutions would, if it were smart, say exactly what Obama has been saying now. A public posture of skepticism pays three related dividends:

1. Signaling, prior to Inauguration Day, that prosecutions are unlikely reduces the chances of preemptive lame-duck pardons.
2. Suggesting prosecutions are unwanted removes any defense of vendetta/political interference were there to be a trial.
3. Suggesting prosecutions are unwelcome allows a hypothetical future Obama to allow the prosecutions to go forward more in sorrow than in anger, ‘due to the overwhelming evidence’.

I’m not saying that I think this is in fact what they are planning; if you asked me, the odds are they actually mean what they say. Which is why the extent to which Holder is a man of steely principle as well as a great lawyer and an über-technocrat is so important.

Full post as published by Discourse.net on January 16, 2009 (boomark / email).