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

By David Alistair Yalof | Go to book overview

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 Rch.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

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