Good riddance to Attorney General Eric C. Holder.
On Thursday, he announced his resignation, effective upon the confirmation of his successor, after six years during which he elevated the political ambitions of President Obama over the demands of his sole client, the United States Constitution.
Attorneys General, however, should not be presidential vassals. They are unique among cabinet members in their unflagging obligation to the rule of law — the crown jewel of the nation. Justice Louis D. Brandeis explained in Olmstead v. United States: “In a government of laws, existence of the government will be imperiled if it fails to observe the law scrupulously. Our Government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example.”
The United States was founded on the principle that the rule of law is king; and, the king is not the law. Thus, Abraham Lincoln sermonized to the Young Men’s Lyceum of Springfield, Illinois, in words that excite and thrill:
“Let reverence for the laws, be breathed by every American mother, to the lisping babe, that prattles on her lap — let it be taught in schools, in seminaries, and in colleges; let it be written in Primers, spelling books, and in Almanacs; — let it be preached from the pulpit, proclaimed in legislative halls, and enforced in courts of justice. And, in short, let it become the political religion of the nation; and let the old and the young, the rich and the poor, the grave and the gay, of all sexes and tongues, and colors and conditions, sacrifice unceasingly upon its altars.”
Rule of law grievances against Mr. Holder read like the grievances of the American patriots against King George III in the Declaration of Independence.
Mr. Holder has endorsed presidential authority to play prosecutor, judge, jury, and executioner to kill any American citizen he decrees based on secret evidence is an imminent danger to national security despite due process and the U.S. Constitution’s checks and balances. The Constitution’s architects denounced such a combination of powers as “the very definition of tyranny.”
He has approved unilateral presidential wars despite the Constitution’s exclusive entrustment of such authority to Congress under Article I, section 8, clause 11. Every participant in the drafting and ratification of the Constitution understood that only Congress could take the nation from a state of peace to a state of war.
Mr. Holder has defended the president’s indiscriminate, unprecedented telephony and internet surveillance of every American citizen without cause to believe even one is implicated in terrorism or crime in violation of the Fourth Amendment’s right to be let alone.
He has remained silent when the CIA hacked into Senate Intelligence Committee computers aiming to obstruct the Senate’s oversight responsibilities in contravention of the Speech or Debate Clause.
He has wrongly invoked executive privilege to thwart a congressional investigation of “Fast and Furious,” i.e., the department’s intentional blinking at unlawful “straw” purchasers of guns that later turned up at crime scenes in Mexico.
He has encroached on freedom of the press in the investigation and prosecution of alleged violations of the Espionage Act. Thus, reporter James Risen of The New York Times condemned Mr. Obama as “the greatest threat to press freedom in a generation.”
He has shied from prosecuting mega-banks as too potentially disruptive of financial markets contrary to his obligation of evenhanded law enforcement. Mr. Holder testified before the Senate Judiciary Committee: “I am concerned that the size of some of these institutions becomes so large that it does become difficult for us to prosecute them when we are hit with indications that if we do prosecute — if we do bring a criminal charge — it will have a negative impact on the national economy.”
He has glossed over post-9/11 waterboarding, the destruction of interrogation videos of terrorism suspects and endless violations of the Foreign Intelligence Surveillance Act to advance Mr. Obama’s political objectives.
He has refused to defend duly enacted laws like the Defense of Marriage Act because they offended his moral universe, and urged state attorneys general to follow his example. According to that principle, President Richard M. Nixon was faultless in 1971 in ordering non-enforcement of the antitrust laws as follows:
“I want something clearly understood, and if it’s not understood, [Department of Justice Assistant Attorney General for Antitrust Richard] McLaren’s ass is to be out of there within one hour. The ITT thing – stay the hell out of it. Is that clear? That’s an order. … I do not want McLaren to run around prosecuting people, raising hell about conglomerates, stirring things up. … I don’t like the son of a bitch.”
Neither the nation nor the Constitution can afford any additional Eric Holders. The rule of law is made of sterner stuff.
We should thus demand that his successor pledge under oath to follow the example of former Attorney General Elliot Richardson. He chose resignation in lieu of obeying Nixon’s illegal order (so held in Nader v. Bork) to fire special prosecutor Archibald Cox for investigating crime in the White House.
For more information about Bruce Fein, please visit www.brucefeinlaw.com.