This will be the true test of Eric Holder. Is he the same Eric Holder who signed off on a more-than-doubtful pardon for Marc Rich because that's what the Clinton White House wanted, even as sources close to Rich were making large payments to the Clinton Library? No doubt about it. That Eric Holder would not appoint a special prosecutor. He'd let the whole affair die.
Or is it the Eric Holder who promises to bring integrity back to the Department of Justice, to insulate it from political manipulation, and to reinstitute respect for the rule of law in what has become one of Washington's most corruption-beset institutions? That Eric Holder will appoint a special prosecutor. So there's hope, but the game is far from over, and Rahm Emanuel and David Axelrod are certainly not above reaching out and manipulating the Justice Department. That's what we should be on the look for out.
If Axelrod and Emanuel seem to be 'winning,' what can the public do about it?
There is no question that Axelrod and Emanuel exercise great influence over Obama. Axelrod has an almost obsessive fix on "branding" Obama, to help lock in a two-term presidency and to anchor his public support. Emanuel is the key strategist for Congress, and also the man key to donor relations. These are essential functions for any president. The problem is when they act outside of their legitimate sphere and have too much influence on critical policy. Decisions to launch a criminal investigation or to prosecute someone are not their affair. If we have a country in which partisan political strategists call such matters, we've become a banana republic. So the public needs to pay attention to their meddling and call them on it.
I don't see Obama in those terms at all. Obama is a highly pragmatic politician, he is focused on the art of the possible. He fixes his priorities and seeks to accomplish as much as he can. I don't object to him behaving that way, but I don't necessarily agree with his priorities and sometimes I sense he underestimates what can be accomplished.
After all, the Dems did win the 2008 election in a big way. Why doesn't Obama act like it? And how does the public push him to reach beyond the comfort level of his innate cautiousness?
You've spent a lot of time writing about what happened to Don Siegelman (former Alabama governor, railroaded by Karl Rove). What was it about that case that caught your attention?
I was alerted to the case at almost the same time by some contacts in Alabama and some people at the Justice Department. Both told me the same thing: this case stinks to high heavens, something is really wrong about it. The Justice Department sources then told me that it was well known within the Department that the Siegelman case was not a prosecution of political corruption, rather the prosecution was itself an act of political corruption "at the highest levels." I had heard about Siegelman's case before and dismissed his complaints - just another corrupt politician, I thought. Then I started looking into it and what I found was pretty shocking.
The worst aspect of the case was the astonishing collusion between Karl Rove, the two highly politicized U.S. Attorneys, the Republican Party in Alabama, and two Alabama newspapers, which were an integral part of the scheme from the get-go. Indeed, I noticed when Chief Judge U.W. Clemon spoke about his experience in handling part of the case and watching the way it was orchestrated, he was also careful to document the more-than-curious role that a certain newspaper played in it. The paper knew what the prosecutors were doing at every step and had full access to all their data, and presented grossly distorted and dishonest accounts of what was going on. Since I'm a Sovietologist and have studied and written about criminal justice matters in the former Soviet Union, none of this was particularly new to me, but seeing that it was going on inside the United States - that was astonishing.
Astonishing and very disturbing. Where does that leave us? When can we expect justice for Siegelman, Minor and the many others caught up in Rove's net of political prosecutions?
The Siegelman case demonstrates the one-two punch of the corrupt Republican justice regime. Not only was the Justice Department turned into a crude political strike machine under the management of Karl Rove - it was pursuing seven Democrats for every Republican (and prosecutors who brought cases against Republicans were, often enough, summarily fired). The case was also maneuvered before a handpicked judge who may well have been in on the scheme to start with. Chief Judge U.W. Clemon gave an amazing twenty-minute presentation in Washington on June 26 in which he reviewed all the tricks and machinations the Justice Department entered into to get the case before their chosen judge. The level of corrupt dealings involving prosecutors is breathtaking, and the failure of the Holder Justice Department to do anything to remedy this situation is distressing.
Now, Siegelman has filed his motion for a new trial, and deep in the papers lies another bombshell thus far unremarked upon by the media: the key witness [Nick Bailey] upon whose testimony Siegelman was convicted has recanted. He says he was pressured into giving false testimony by two prosecutors who managed the case. He also accuses them of having suppressed exculpatory materials. That's bad enough.
But get this: a member of the prosecution team [Tamara Grimes] has now come forward and acknowledged that his claims are completely correct. She details how he was threatened and coerced to give false evidence and how the prosecutors working on the case traded jokes a bout it. This is a serious felony, and the prosecutors involved should forfeit their law degrees and be marched off to jail. But that would require a Justice Department that actually enforces the criminal law, and at the moment there is no justice, at least not in the federal prosecutors office in Montgomery, or in their hand-picked judges.
You're right. That is a bombshell. And so in-your-face. Anything the public can do to get the Obama administration to do the right thing?
The first point would be a simple one: when a president is appointed, he appoints his own U.S. attorneys. But in the Middle District of Alabama, the post ruled over by a prosecutor who happens to be the wife of Karl Rove's best friend, and who happens to have brought the most politically charges prosecutions in recent American history, the U.S. attorney seems to think she's there to stay. And she has Jeff Sessions, the Neoconfederate guard dog, watching out for her.
President Obama needs to insist on her resignation and then to appoint a competent, professional prosecutor to run that shop. And the new U.S. attorney needs to start his or her work with a careful review of the crooked, politically motivated antics that have driven that shop for the last seven years. Then justice can be done. Since Rahm Emanuel has emerged as the major domo and gatekeeper of the Obama White House, perhaps he's the man to write, but letters should go to Eric Holder as well.
Thank you so much, Scott, for shining the spotlight on the appalling lack of justice in the DoJ.
Chief of Staff to President Obama
The White House
1600 Pennsylvania Ave. NW
Washington, DC 20500
Attorney General Eric Holder
U.S. Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530-0001
fax: (202) 307-6777
Scott Horton is a law professor and writer on legal and national security affairs for Harper's Magazine and The American Lawyer, among other publications.