Tuesday, November 18, 2008
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.