Prosecution among Friends: Presidents, Attorneys General, and Executive Branch Wrongdoing

1. “Where There Is Smoke”: Investigating and Prosecuting Executive Branch Officials

chapter 1 “Where there is smoke” Investigating and Prosecuting Executive Branch Officials When the Democrat-controlled Senate Judiciary Committee convened on January 15, 2009, to consider President-elect Barack Obama’s nomination of Eric Holder to be the nation’s eighty-second attorney general, those present in the Russell Building’s Senate Caucus Room braced for what figured to be an uncomfortable tour of the Justice Department’s recent troubles. True to form, Democratic senators questioned Holder repeatedly about his views of the controversies that had afflicted the department during the previous eight years under Pres. George W. Bush. Among those controversies were the role the department’s leadership had played in seeking approval for warrantless surveillance, in drafting legal memoranda that defended the use of torture against detainees, and in dismissing US attorneys for partisan reasons following President Bush’s 2004 re-election victory. Meanwhile, several Republican senators had their own bone to chew: Holder’s controversial recommendation (issued during the waning days of the Clinton administration, when Holder was still deputy attorney general) that then-President Clinton should pardon the controversial financier Marc Rich.1 The tenor and focus of the hearings was captured well by headlines from national news outlets, which emphasized the nominee’s beliefs that “waterboarding amounts to torture”2 and that the White House should act “within the dictates of wiretap law”;3 his belief that an “immediate review” of recent problems in the department’s hiring practices was in order; and, of course, his willingness to offer the requisite mea culpa for his unfortunate role in the Marc Rich pardon.4 This focus on the department’s past troubles consumed significant amounts of the Senate committee’s time and energy. By contrast, the senators devoted comparatively little time to how Holder might fare going forward, in the administration that was about to be launched. In particular, how would he handle the challenge of balancing the position’s dual role of neutral law enforcer and 2 • chapter 1 partisan advocate? What was Holder’s personal relationship with the incoming president? Was he too close to President-elect Obama? Only Sen. Herb Kohl (D-Wis.) broached that subject directly, and he did so only during a lighter moment at the hearings. Knowing the two men frequently played basketball together, Kohl asked the nominee whether he could beat Obama at a game of one-on-one. “If you give me a little time and space to get back in shape,” Holder responded, “I think I can hang with him.”5 So ended the Senate committee’s inquiry into the personal relationship that may have existed between the next president of the United States and the man who appeared all but certain to serve as his administration’s first attorney general. The lack of a more systematic review of Holder’s connections to Obama at the Senate confirmation hearings was surprising for several reasons. First, the close personal relationship between former Attorney General Alberto Gonzales and Pres. George W. Bush had been a source of ongoing difficulty for much of President Bush’s second term in office. In fact, many of the same committee members now judging Holder had roundly criticized Gonzales for not showing enough independent judgment when he authorized the firing of several US attorneys following the 2004 election, and then later when he weakly defended the administration’s efforts to secure legal authority to conduct controversial aspects of its war on terrorism. Second, there existed more than enough evidence in the public domain that Holder and Obama were not just passing acquaintances. Holder had originally met Obama at a dinner party in 2004. After years of contacts he then joined Obama’s campaign as a senior advisor at its inception in 2007, and when candidate Obama had to make the all-important choice of a running mate, Holder was one of just three people Obama entrusted to help him with that task. And then there were the pickup basketball games they played together. While the Holder-Obama relationship perhaps stopped short of the close, long-standing Gonzales-Bush connection, the two men were hardly strangers. Indeed, a more searching inquiry into Holder’s personal relationship with the president-elect was warranted, if only because it went to the core of the attorney general designate’s ability to perform crucial responsibilities in investigating and prosecuting official wrongdoing in the post-Watergate era. As attorney general, Holder would face the same difficult decisions and dilemmas that...