- The Washington Times - Monday, February 2, 2015


Attorneys general are forced by the nature of their job to walk a tightrope. Some have been cronies of the president or even, as in the case of Robert Kennedy, relatives of their White House patron. They serve as the nation’s top law enforcement officer, but when adhering to their oath threatens the administration, the president who selected and appointed them expects some special consideration. A few have resigned rather than put the interests of their president above those of the Justice Department, but some have lost their footing while leaning over backward to please their boss. Eric Holder is viewed by Republicans much as John Mitchell was during the Nixon years: a partisan who put his boss’ interests above the law.

Presidents aren’t in the habit of giving people who aren’t politically loyal the job and shouldn’t be expected to, but that puts anyone who takes it into a potentially dangerous situation. President Obama’s decision to appoint New York U.S. Attorney Loretta Lynch to replace Mr. Holder has forced her onto that tightrope even as she runs the Senate confirmation gauntlet. Last week she assured the Senate Judiciary Committee that she “is not Eric Holder” and that while she may owe her job to Mr. Obama, she will, once confirmed, act as if the American people rather than the man in the White House will be “my client and my first thought.”

As critics of the president tried to draw her out on whether she really supports Mr. Obama’s reliance on executive orders and “prosecutorial discretion” to circumvent Congress and possibly the Constitution itself in implementing his immigration agenda, she danced on the rope without falling, but raised questions about whether she will be able to live up to her repeated promise to act independently of the White House as attorney general.

Prosecutorial discretion has historically allowed prosecutors to decide on a case-by-case basis which crimes and criminals deserve priority treatment, but Mr. Obama has used it to essentially void laws he doesn’t like by exempting millions of immigration lawbreakers from prosecution. Ms. Lynch stuck by the time-tested nominee’s refusal to respond to “hypothetical” questions when Sens. Ted Cruz of Texas and Mike Lee of Utah asked what she thought of the reasoning on which the president is relying. When asked if a future president would have the power to order prosecutors to ignore violations of the tax or environmental laws, it seemed clear that Ms. Lynch knew following the president’s logic was taking her into dangerous territory.

Ms. Lynch did seem to disagree with the administration’s recognition that the federal government’s overuse of civil asset forfeiture laws allowing law enforcement to seize property from people who are never even accused of a crime should be reformed, but in a way that could give comfort only to those prosecutors who have abused the current system. She seemed to be defending her own history as “the queen” of civil asset forfeiture.

Loretta Lynch has been a tough, smart prosecutor, so no one was surprised by her disagreement with those who would legalize or decriminalize marijuana. She proved a personable and engaging witness on her own behalf, but the members who grilled her knew going in that she would be. Committee members who had already met with her in private knew what to expect and weren’t surprised.

What they didn’t know was whether she was willing or capable to reform a Justice Department that has lost credibility under her predecessor and follow the law and Constitution — even if it brings her into conflict with the administration in which she wants to serve.

Some were optimistic as the hearing began. Jonathan Turley, the liberal George Washington University law professor who has been warning of the dangers of executive branch overreach, supports Ms. Lynch and testified optimistically that “The Justice Department is at the epicenter of a constitutional crisis that consumed her predecessor and his department if great leaders are shaped by great events in history, this could be such a moment for Loretta Lynch.”

Mr. Turley and others like him must have been disappointed. Ms. Lynch will no doubt be confirmed, but doesn’t seem likely to do much to clean up the mess Mr. Obama and her predecessor have made of the department she will head — or the Constitution she will be charged with defending.

David A. Keene is Opinion Editor of The Washington Times.

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