Another Stunning Op-ed by Erwin Chemerinsky in Orange County Register (Eric Holder)

Erwin Chemerinsky- UC Irvine Law School Dean


Erwin Chemerinsky clearly should be given more space for his op-eds by the Orange County Register. There was so much missing from this piece that I was wondering if there must be some other Eric Holder who had been AG that Chemerinsky was describing. Below is his piece in today's Orange County Register.

http://www.ocregister.com/articles/holder-636844-justice-department.html

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Holder's Record Deserves Scorn and Praise

"How has Eric Holder done as attorney general? Holder announced on Sept. 25 that he will resign as soon as a successor is confirmed. In the aftermath of his announcement, I heard both harsh criticism and lavish praise for his performance in nearly six years as U.S. attorney general. Interestingly, I think both the criticism and the praise are justified.

Holder and the Obama administration have been very disappointing in how they have dealt with issues concerning the “war on terrorism.” As a candidate, Barack Obama was outspoken in criticizing the Bush administration’s violations of basic human rights, including its detaining individuals in Guantanamo. Yet, the Obama and Holder record in this area also has been deeply disturbing.

One of Holder’s first decisions – and this likely came from the White House – was not to prosecute Americans who engaged in torture and other criminal abuses during the Bush administration. Politically, it may have been easier to avoid such prosecutions, but it was the wrong decision in terms of accountability and upholding the rule of law.

It is quite troubling that, when victims of torture have sued in federal court for money damages, the Holder Justice Department successfully had the cases dismissed on the grounds that the litigation might reveal state secrets.

The Holder Justice Department has brought more prosecutions under the Espionage Act, against those who allegedly leaked classified information, than all other presidencies combined in the century since the law was adopted. Federal prosecutors have targeted journalists and seized their phone and email records.

At the same time, the Obama administration, certainly with the approval of the Justice Department, authorized the National Security Agency to obtain information from service providers, such as Verizon, including what phone numbers and email addresses people called or wrote. This extensive gathering of “metadata” is now being challenged in federal courts.

Another area where Holder deserves strong criticism is in the briefs his Justice Department filed in the Supreme Court concerning the separation of church and state. A few years ago, the Holder Justice Department filed a brief in favor of an Arizona law that give tax credits to those who spend money on private schools and parochial schools, even though virtually all of the funds went to Catholic or Evangelical Christian schools.

Last year, Justice filed a brief in the Supreme Court arguing that it did not violate the Constitution for a town to invite Christian clergy members almost every month for 10 years to deliver a prayer, typically explicitly Christian, before its legislative sessions. The Obama administration’s position on these issues was indistinguishable from that of its Republican predecessors.

In other ways, Holder has brought about much-needed change. He has been especially aggressive in challenging over-incarceration, especially for minor drug offenses. In 2010, at the urging of Holder and the Obama administration, Congress passed legislation to lessen the disparity between crack and cocaine sentencing. The difference in punishments has no scientific or legal basis and works to the great disadvantage of African Americans and Latinos. Crack cocaine is more prevalent in those communities, while powder cocaine is used more often by whites.

A year ago, Holder ordered federal prosecutors to be more lenient in charging low-level drug offenders. He also has ordered prosecutors to identify prisoners who have been convicted of relatively minor drug crimes and to seek their early release. Holder was right in announcing that the federal government would not challenge voter-passed initiatives in Colorado and Washington that decriminalized the possession of small amounts of marijuana.

In other areas of civil rights, too, Holder has been aggressive in bringing enforcement actions. Under his leadership, the Justice Department has challenged laws that require photo identification for voting, which have a disproportionate effect on limiting voting by minority voters. His department also has challenged efforts by states like Texas and North Carolina to impose other restrictions on voting that will disproportionately adversely affect minority voters.

Holder’s record is thus unusual in that, in some areas, such as in taking away rights as part of the “war on terrorism,” he has been awful. But in other areas, especially criminal justice reform and civil rights, he has been excellent.

Of course, it never will be possible to know which of Holder’s actions were the result of presidential decisions and which were his to make. But if he is held accountable for the actions of his department, the best that can be said about Eric Holder is that he had a very mixed record."

Erwin Chemerinsky is dean of the UCI School of Law.

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Chemerinsky supports lesser sentences for crack cocaine offenders because they tend to be more black or Hispanic. We are talking about crack dealers who are victimizing blacks and Hispanics disproportionately. But then again, Chemerinsky believes erroneously that crack is no more harmful than powder cocaine.

When it comes to legalized marijuana in Washington and Colorado, Chemerinsky applauds Holder for turning a blind eye to a violation of federal law by those states. DEA never prosecuted marijuana users, but selling commercial quantities of marijuana is a federal crime.

What Chemerinsky completely ignored was Holder's politicization and corruption of of the Justice Department, a department I served with pride for over 20 years. The classic example was Operation Fast and Furious, where the ATF stood by and allowed thousands of weapons to cross into Mexico, a scheme that could only have been concocted at the highest levels of government in Washington in order to provide the public with concrete evidence that US guns were being used in Mexico's drug and gang wars-an excuse to tighten restrictions on gun ownership.  Hundreds have been killed by those weapons including two American  agents. Yet Holder perjured himself repeatedly before Congress as DOJ laid it off on "rogue agents in Arizona". He withheld thousands of internal documents subpoenaed by Congress, documents that remain hidden under Executive Privilege to this day. Not a word about this from Chemerinsky.

In addition, Holder has used DOJ to further his activist racial agenda. One of his first acts was to have DOJ drop the case against the New Black Panther Party thugs who intimidated whites with billy clubs at a Philadelphia polling place during an election. The case was all but settled (with a slap on the wrist ) and all DOJ had to do was sign off. Instead, it was dropped. Yet Holder challenges states' attempts to have voter ID laws to stop voter fraud and Chemerinsky gives him a salute for that as if it is a violation of someone's rights to be asked to produce ID to vote. Hell, I have to show my picture ID at the movies to get my senior discount. Am I complaining?

It is also interesting that Chemerinsky criticizes Holder for not prosecuting American personnel who used enhanced interrogation techniques (waterboarding) in the aftermath of 9-11 trying to head off planned attacks.

I could go on and on about Holder, but let's just say that it takes a real liberal activist to find so much positive to write about this utterly corrupt attorney general. Chemerinsky should be embarrassed by this op-ed.



"You're killing me, Erwin."