Tuesday, November 18, 2008

AG Holder?

Everyone appears to be dropping Eric Holder's name as the likely next Attorney General. See Ashby Jones, WSJ Blog, Report: Obama ‘Deeply Interested’ in Eric Holder as AG; LA Times, Looks like Eric Holder, ex-Clinton acting AG, will be Obama's AG

Some appear to be focused on what role he may have played in the Marc Rich pardon (see here).  But this focus is misplaced as the President has the power to pardon and there have been a lot more controversial pardons in the history of the U.S. (see William Jefferson Clinton, NYTimes, My Reasons for the Pardons). (I am still waiting to see President Bush's pardons -particularly as to whether Barney will be included - see here). 

Further if Holder was "neutral, leaning for" the pardon, as stated by former President Clinton, than perhaps he was in part following the DOJ guidelines that advise against using tax offenses with a RICO charge (see here). (This Indictment included a RICO charge). RICO excludes tax predicates (see here), so using other predicates to enhance a tax case to bring it to a level of a RICO was just plain wrong, and one should credit Holder if it turns out that his hesitation was for this reason. (see here)

But what needs to be asked is where Eric Holder stands today on the "Holder Memo." It's a memo that went through many changes after it left his desk. (e.g., Thompson Memo, McNulty Memo, Filip Memo).  The key question that needs to be asked now is where he stands on the attorney-client privilege and will he respect it. It also would be good to see if he will meet the wish list provided here.



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How can you possibly speculate that the reason for Holder's "hesitation" in the Rich matter was a principled decision? Did you watch the hearings? Holder admitted that he'd discussed with Jack Quinn the latter's support for his bid to become AG in the event that Gore won the 2000 election. Isn't it much more likely that there was an implicit (if not explicit) quid pro quo, a wink and a nod? Holder knew that Rich was seeking a pardon in October, at the very latest; indeed, he actually suggested to Rich's attorneys that they hire Quinn in the first place. Nonetheless, Holder said nothing to his colleagues within the Department, in particular the pardon office, which he directly supervised. He failed to disclose this information because he knew that the pardon office would have alerted the SDNY, which, in turn, would have created a firestorm of controversy well in advance of the pardon, thus killing Rich's chances. The whole thing had to be done in secret and Holder facilitated that by giving the process a veneer of regularity, i.e., Quinn could say with a (mostly) straight face that he had "submitted the petition to the Justice Department," as if everything had been done in the normal course. Nonsense. He gave it to Holder with the understanding that Holder would keep it a secret until the very end. Holder's behavior was disgraceful.

Posted by: anon | Nov 19, 2008 10:23:41 AM

You have no idea what you are talking about when you cite the RICO policy. The Tax Div has the most review layers of any section of Justice. Even SDNY has to deal with Tax. "The Tax Division will authorize prosecution of tax- related RICO and money laundering offenses, however, when unusual circumstances warrant it." I think you could state that the Rich was "unusual" and there a a few cases a year where tax gets intertwined in RICO cases.

Posted by: lawdevil | Nov 21, 2008 8:48:12 AM

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