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Friday Talking Points [321] -- Eric Holder's Record

[ Posted Friday, September 26th, 2014 – 17:18 PDT ]

We have to pre-empt the usual Friday Talking Points column this week, because when we started writing about Eric Holder in the awards section, it just kind of grew and grew as a subject until it essentially consumed the rest of the column. We still have our notes on all the political foibles and foofaroo from the past week, and we promise we'll keep this list handy and try to review parts of it in next week's column, mostly because some of the stories were real doozies (like the Kansas governor's race, where the Republican is now basing his whole campaign on "my Democratic opponent once visited a strip club," while simultaneously presiding over a state which is about to hold a sex-toy auction because they really, really need the money after the Republican incumbent's disastrous implementation of "pure" conservative economic theory, which consisted of: "Cut all taxes! There, all done -- just sit back and wait for the boom times!"). But we digress.

The news that Attorney General Eric Holder would be stepping down sent a shockwave through Washington (even though he had admitted earlier in the year to an interviewer that he would likely step down before next January). Democrats (and pundits) immediately started whispering about who would be named to replace Holder, while Republicans -- laughably -- tried to make the case that no replacement should get a vote in the Senate during the lame-duck period (good luck with that one, guys). One thing worth remembering: Harry Reid's "nuclear option" is looking pretty good right about now, isn't it? If Republicans could filibuster Holder's replacement, then he might still be still in his job when Obama leaves office in 2017.

Holder certainly had a momentous term in office. Depending on when he is officially replaced, his will either be the fourth-longest or third-longest record as Attorney General in American history. Liberals found him lacking on civil liberties issues (especially in Obama's first term), and conservatives just despised him because he was serving a president they really, really hated (he's also the first Attorney General to be found in contempt of Congress by the House).

On the whole, was his term worth praising or condemning? We have to say that "both" is the only real answer to that question. Because it has many facets, we are going to spend the rest of the article examining his legacy. As we said, we'll return to our usual, more lighthearted fare next week, but for now let's weigh Eric Holder's leadership at the Justice Department, as seen through the eyes of this column.

 

Most Disappointing Democrat of the Week

This is going to be a rather unique awards section this week, for two reasons. The first is that it will be a "lifetime achievement" review (or, more accurately "term in office" review) of one person's accomplishments, good and bad. The second reason this is unusual is that it will actually be a review of accomplishments on the scale of "bad to good," as we switch the order of presentation of our awards for one week. This is really necessary, because of the timeline involved.

Attorney General Eric Holder's announcement that he will soon be stepping down from his job as America's Top Cop brought mixed reactions from the left. Some choose to focus on only the good he has accomplished, while some insisted that the bad outweighed any good. We're going to take a more comprehensive look, and have to say right here at the start that Holder seems to have balanced it all out fairly well.

But the story of Eric Holder's term in office is really more of a bad-to-good transition, which is why we're going to review his record of winning the Most Disappointing Democrat Of The Week awards first. Holder won the MDDOTW six times since this column began, and five of these occurred during Obama's first term in office. In contrast, Holder won eight Most Impressive Democrat Of The Week awards, but only two of them during Obama's first term. So you can see the progression, and why we had to flip the order of the two awards sections this week.

On the all-time Friday Talking Points "Hall Of Fame/Hall Of Shame" list, Holder's six MDDOTW awards puts him (currently) in a five-way tie for eighth place, with the following unsavory characters: Jay "Rocky IV" Rockefeller IV, Charlie Rangel, Blanche Lincoln, and Rod "Blaggy" Blagojevich.

The first-ever MDDOTW Holder won was way back in FTP [73], for continuing the Bush policy on state secrets in three separate lawsuits. Holder had many other instances of continuing Bush's national security policies, but this was the only one which earned him our award.

The second time Holder won the award was an early disappointment in how the Obama Justice Department was going to handle the War On Weed from FTP [144]. Holder sent a letter weighing in on the first serious attempt of a state's voters to legalize recreational marijuana -- California's Proposition 19 (which ultimately lost at the ballot box in 2010). At the time, we wrote:

Holder's letter, and other recent statements from the Obama administration, make it plain that they will not be happy if Prop. 19 passes, and that they will fight it with every legal weapon they can bring to bear. The timing of these statements (just before voters get a chance to make their choice) and the political nature of what is being said puts these actions over the line, as far as we're concerned. Now, if you're a retired politician, then endorsing or coming out against such a citizens' initiative is certainly fair game, such as former Surgeon General Jocelyn Elders recently throwing her support behind Proposition 19. But when you're the nation's top law enforcement officer, you have a duty to uphold the laws -- but also a duty not to influence their creation.

Attorney General Eric Holder, by threatening get-tough measures should Proposition 19 pass -- in an obvious and naked attempt by the Obama administration to throw its weight behind the political forces opposing the measure -- has more than earned this week's Most Disappointing Democrat Of The Week award. Please, Mister Attorney General, keep out of California's democratic process, as you are supposed to do. At least until after the election is over.

The third award Holder earned in FTP [173], for sending a memo out to U.S. Attorneys which, in essence, supported overzealous federal prosecutors in states with legal medical marijuana. We wrote, at the time:

The new memo seems to back up the fact that the feds seemed to be concentrating on the biggest growing operations. If an activity is deemed legal (or even "look the other way" quasi-legal), then what difference does it make whether the activity is large or small? The second problem with the new memo is that it seems to give a green light to overzealous federal prosecutors to go after state government officials for making an honest attempt to fill in the legal void when it comes to legalizing the entire seed-to-end-product production chain. Some states -- rather than leave a gaping legal hole -- decided to lay down a few rules as to what was acceptable and what was not for growers of medical marijuana. Before the new rules were even given a chance to be enacted, a few federal prosecutors sent letters to very high-ranking state officials warning them that the feds would haul their butts into court and charge them with conspiring to break federal drug laws. Got that? If a state's attorney general released regulations for legally growing medical marijuana in their state, then they would be prosecuted (read: "persecuted") for falling afoul of the drug laws. This is ridiculous, but the new Justice Department memo seems to back this reasoning up.

Almost exactly a year later, in FTP [218], Holder won again for the fallout from this memo (this was, admittedly, a rather backhanded way for us to give the award to Holder, since it was mainly about one particular U.S. Attorney in California, Melinda Haag).

In Haag's own words, and our snarky response:

"I now find the need to consider actions regarding marijuana superstores such as Harborside. The larger the operation, the greater the likelihood that there will be abuse of the state's medical marijuana laws, and marijuana in the hands of individuals who do not have a demonstrated medical need."

Well, golly gee, maybe she needs to be reassigned to Wall Street, huh? Wouldn't that be great to see? "The larger the bank or investment firm, the greater the likelihood that they are abusing financial regulations and performing transactions which are illegal, so we are hereby immediately moving to shut down [fill in the name of your least favorite "Too Big To Fail" institution], even though we have not a shred of evidence that any such crime has been committed."

This will, of course, never happen in a million billion years, but it sure is fun to daydream, isn't it?

A few months later, Holder won again in FTP [231], for the Justice Department arguing in court that marijuana did not have any accepted medical use. We took a look at the administration's position on this:

But the Justice Department is trying to square the circle. They are arguing that there simply aren't enough properly-run scientific peer-reviewed studies of marijuana's use as a beneficial medicine to prove that marijuana has accepted medical uses. The problem -- the indefensible part -- is that to run one of these proper scientific studies, you need the permission of the federal government before you begin. Marijuana is, after all, illegal, and so any legitimate scientific study has to get permission to administer an illegal substance. However, the process for getting such approval is not only long, difficult, and convoluted, even when a research team attempts to jump over the multiple hurdles set in their path by the feds, approval is almost never forthcoming.

This leaves the Justice Department lawyers to argue the following in court: there are not enough proper scientific studies to determine that marijuana is a valid medicine, and we are not going to allow proper scientific studies to take place, because we are afraid of what they will prove.

Catch-22.

Holder's final Most Disappointing Democrat Of The Week award came a little over a year ago, in FTP [259] in the midst of a scandal over subpoenas issued to journalists in leak investigation cases. Holder got caught right in the middle of this disgraceful episode:

The Obama administration's "War On Leakers" has now officially morphed into a "War On Journalists." On leaks, the Obama team has brought more prosecutions than all other presidents combined -- twice as many, in fact. But while Attorney General Eric Holder recused himself from the case involving the Associated Press' phone records, his signature was discovered this week on an application for a subpoena for a Fox News reporter's emails and phone records. The subpoena charged the Fox reporter, essentially, with spying. The Justice Department didn't really have any intention of prosecuting him, they just wanted to root around in his emails and phone records to pin charges on the government employee who was his source.

This is disgraceful. This is an abuse of power. The subpoena on the Fox reporter was nothing short of a fishing expedition to prosecute yet another leak case. President Obama now says he wants a federal shield law for reporters, even though he helped kill the last such effort in Congress.

Which ends our review of Holder's negative record, and brings us to taking a look at the good things Holder should be remembered for.

 

Most Impressive Democrat of the Week

Eric Holder decided to stay on as Attorney General after President Obama won re-election, even though many expected him to step down. We have to admit, we jumped on that wagon ourselves quite a few times, and indicated (even, at times, while handing him the Most Impressive Democrat Of The Week award), that we would "cry no tears if he announced his impending retirement."

Looking back, we're glad he stayed as long as he did. His second-term accomplishments were a lot more impressive than his first, to put it mildly. He "evolved" on the marijuana issue, to a breathtaking extent. He will now be remembered as the man who did more to shift the federal government's stance in the War On Weed than anyone else in history, in fact.

Overall, Holder held the same position -- eighth place -- on the overall tally of MIDOTW awards, which is one reason why we say his good balanced his bad, when considering his entire record.

The first time Holder won the prestigious "Golden Backbone" award was in FTP [102], for defending his position on trying Khalid Sheikh Mohammed in federal court in New York City. This was an enormous political fight (and one that the Obama administration lost), but it was still the right thing to do. We just tried a similar 9/11 Al Qaeda terrorist in federal court and it was just announced he got a life sentence -- but the news media (and the political world) barely blinked. Federal courts have an astoundingly good record at convicting international terrorists, and Holder was right to defend his position. As we said at the time: "It's a rare thing in Washington to see a government official make a strong decision, and then defend it as the right thing to do without either (a.) trying to blame everyone else for the idea's shortcomings, or (b.) immediately apologizing for the decision, or (c.) 'walking back' or even overturning the decision at the slightest sign of political stormclouds on the horizon."

Holder's second MIDOTW award is a relevant one this week, since the news just broke of another record settlement, this time with the Navajo Nation. Back in 2010, Holder earned the award for an even-bigger settlement -- to the tune of three-quarters of a billion dollars -- the Justice Department offered in a case where Native Americans were suing the Agriculture Department for discrimination. One interesting note is that Holder won both the MIDOTW and the MDDOTW that week, back in FTP [144].

Jumping forward to Obama's second term, Holder won again in FTP [262] for finally (and belatedly) dropping a losing case the Obama Justice Department never should have argued in the first place -- trying to keep the "Plan B" morning-after pill from teens who needed it. This court case brought forth some downright scathing commentary from the judge, on the subject of the federal government's idiocy in fighting it, and in June of 2013 Eric Holder finally threw in the towel and stopped his appeals. By doing so, the morning-after pill was made available (as the scientists and doctors had recommended) over-the-counter to anyone without age limit and without having to show identification. So while Holder did win the MIDOTW for finally ending this fight, he certainly took far too long to do the right thing in this case.

The next four MIDOTW awards were all won for Holder's dramatic and historic "evolution" on marijuana law, and his leadership in changing Justice Department policy to reflect the new realities of the last two decades (since medical marijuana was first made legal by a state).

Because of the historic nature of this shift in federal policy, we tended towards rather dramatic language in summing up Holder's new direction. When he first won the award in FTP [269] for a speech he gave on reforming mandatory minimum sentencing laws, our response was: "For the first time since the days of Nancy Reagan, a Democrat publicly stated that parts of the Drug War should be scrapped. This is a big deal, in other words."

Two weeks later, in FTP [271], we had to give him another MIDOTW, for sending out a new memo to U.S. Attorneys which was drastically different than earlier memos his Justice Department had sent. This memo was the long-awaited response (it came almost a full year afterwards) to the citizens of Colorado and Washington voting to allow recreational marijuana use for adults. What it laid out was a very reasonable policy, in almost complete contradiction to the previous policy.

In a separate article (one not written on a Friday, in other words), we applauded Holder's decision, again in rather dramatic language. We began with:

It's a new day in America.

Today will be marked in history as the day the federal government finally realized that their 80-90 year war on a plant is not only ineffective and counterproductive, but also a gigantic waste of money and everyone's time.

Attorney General Eric Holder -- the nation's chief law enforcement officer -- announced today that the Department of Justice would not challenge state laws enacted by popular vote in the states of Washington and Colorado which legalized cannabis for adult recreational use. The federal government will not sue the states in court to prevent the laws from fully being implemented, and they will not waste their resources prosecuting people in these states who follow the rules. In addition, Holder informed all 50 of the state-level attorneys general that the Justice Department was issuing new guidelines for how federal prosecutors will prioritize enforcement efforts in the forty percent of the country where medicinal marijuana is now legal at the state level.

While this is not exactly the ratification of the 21st Amendment, it is indeed a historic turning point in the Marihuana Prohibition Era (using the original anti-cannabis terminology, to give the period the full century-old flavor it truly deserves). This is the first significant step the federal government has taken in almost a century which loosens rather than tightens federal law-enforcement efforts towards cannabis. While marijuana will remain illegal under federal law -- under the strictest rules of any "controlled dangerous substance" -- Holder has announced that in states where the citizens have plainly shown at the ballot box their disapproval of such federal laws, the federal government will now back off. Thus begins an end to the insanity of the War On Weed. Think "insanity" is too strong a term? Consider the fact that under federal law marijuana is considered more dangerous than the following: cocaine, opium, amphetamine, methamphetamine, and PCP. That is, truly, nothing short of insanity.

We have to admit, we ended this article with what can only be called the wildest of hyperbole:

But now the waiting is over. Marijuana enthusiasts in Colorado and Washington and sick people in 18 other states and the District of Columbia can now breathe a little deeper (if you'll pardon the pun). Because while the Marihuana Prohibition Era is not over yet, and while marijuana remains technically illegal at the federal level, and while marijuana is still listed as a Schedule I dangerous controlled substance, and while individual federal prosecutors will no doubt overstep the new boundaries -- it's still a new day in America. Eric Holder has signaled a retreat in the War On Weed -- the biggest such retreat since the intensification of the drug war hysteria in the 1980s. The war isn't over, but two states just scored immense victories which are going to signal the beginning of the end. The next generation of Americans will one day look back at the War On Weed the same way we look back on Prohibition today. And when they study the history, August 29, 2013 may be marked as the most important turning point.

I could even see "420" eventually being replaced with "829," personally.

Holder followed this historic turnaround with an attempt at assuring banks that they could now offer their services to state-legal marijuana businesses without running afoul of federal anti-drug-trafficking laws. In the same week, while winning the MIDOTW award in FTP [289], Holder also announced a new policy of providing clemency for prisoners who had been given overly-long sentences, and he backed a Senate bill on sentencing reform. All in all, a good week for Holder.

This all led to us giving Holder a sort of generic "gee, you've been impressive in the past year" MIDOTW award, when we were looking back at the column's history in our own record-setting "Friday Talking Points [Volume 300]" edition.

Which brings us to the final entry, just a few short weeks ago. In FTP [317], Holder won his eighth Most Impressive Democrat Of The Week award, for his personal attention to the situation in Ferguson, Missouri. Holder, in his announcement this week, said that he'd always considered Robert F. Kennedy his role model, but Holder's personal attention to Ferguson surpassed even Kennedy (who was a bit of a reluctant warrior on civil rights, at times).

Thus endeth our rundown on the (to date) record of Eric Holder, America's first African-American Attorney General.

 

Friday Talking Points

Volume 321 (9/26/14)

Since Eric Holder's record is so balanced, in a sort of political Purgatory (in the theological sense), we thought it would be worth the effort to convince Holder what he could do to decisively tip these scales, with one dramatic stroke of the pen, perhaps on the day before he leaves office.

As you can tell from the awards section, we have been closely following Holder's evolution on the marijuana issue. While we firmly believe that Holder will be considered historic for being the first to begin reversing the federal government's Reefer Madness attitude towards a plant that humans have been using for thousands of years, there is still one final step he could take which would be an enormous breakthrough.

So, here it is in a nutshell: Eric Holder should sign an order moving marijuana from Schedule I to Schedule III, right before he steps down. He has this power, and does not need the permission of Congress or even the president to do so. He has, in fact, always had this power.

For those not familiar with the details, here is a quick rundown on the federal drug law in question. The law divides drugs into different categories or "schedules," depending on how dangerous they are. Here is how the first three such schedules are defined, from the text of the law:

(1) Schedule I.
    (A) The drug or other substance has a high potential for abuse.
    (B) The drug or other substance has no currently accepted medical use in treatment in the United States.
    (C) There is a lack of accepted safety for use of the drug or other substance under medical supervision.

(2) Schedule II.
    (A) The drug or other substance has a high potential for abuse.
    (B) The drug or other substance has a currently accepted medical use in treatment in the United States or a currently accepted medical use with severe restrictions.
    (C) Abuse of the drug or other substances may lead to severe psychological or physical dependence.

(3) Schedule III.
    (A) The drug or other substance has a potential for abuse less than the drugs or other substances in schedules I and II.
    (B) The drug or other substance has a currently accepted medical use in treatment in the United States.
    (C) Abuse of the drug or other substance may lead to moderate or low physical dependence or high psychological dependence.

The other two Schedules (IV and V) are even less restrictive, and also use: "The drug or other substance has a currently accepted medical use in treatment in the United States."

Elsewhere in this law are the rules for changing a substance from one schedule to another, or for removing a substance from the schedules entirely. This section begins with the basic concept: "the Attorney General may by rule... transfer between such schedules any drug or other substance.... [and/or may] remove any drug or other substance from the schedules if he finds that the drug or other substance does not meet the requirements for inclusion in any schedule."

You'll notice that Congress or the president are not mentioned in the law. The Attorney General alone has this power.

Now, reading over those classifications, which schedule do you think marijuana belongs in? To further help you, here are a few drugs currently on each list:

Schedule I -- heroin, LSD, mescaline, peyote

Schedule II -- cocaine, amphetamine, methamphetamine (crystal meth), opium, morphine

Schedule III -- barbiturates, anabolic steroids, ketamine

Where does marijuana belong on this list? Well, no matter what your answer, the law states that it is on Schedule I right now. This means it has "high potential for abuse" and has "no currently accepted medical use in treatment in the United States." This, despite the fact that the federal government itself still provides marijuana as medicine to patients (grandfathered in from a program from the 1980s for glaucoma), and that 2014 could mark the year when fully half the country's states legalize medicinal use of marijuana (if Florida accepts it, it will be the 25th state to do so, depending on how you count).

Marijuana is treated by the federal government as more dangerous than cocaine, morphine, opium, and all those prescription opioid pills causing so much trouble. Marijuana is seen as more dangerous than crystal meth, for crying out loud! This is nothing short of insane.

Marijuana should be completely descheduled -- it should be treated by the federal government as alcohol is treated (we even had fun with a contest to rename the Bureau of Alcohol, Tobacco, Firearms, and Explosives in this column, a while back, to add "Marijuana" to the acronym). For this drastic a change, though, Congress would likely feel better about being involved.

But for the time being, marijuana should be moved down the list, to (at a maximum) Schedule III. Scientifically and medically, there is no other argument to be made, really. President Obama entered office promising an end to putting politics in front of science in the federal government, and Eric Holder could dramatically follow through on this pledge by rescheduling marijuana on his way out the door.

Politically, it would cause an uproar. Fine. Let it.

Holder should wait until after the Senate confirms his successor, and then sign an order rescheduling marijuana on his last day in office. This would put the cat among the pigeons, since the incoming Attorney General would have to quickly decide whether to overturn Holder's order or not. Even if marijuana were rescheduled for a single day, it would put the issue front and center for the American people to begin a conversation about how the federal drug laws need to change.

The person who did so -- on his own, without even consulting President Obama -- would be our idea of a profile in courage.

The War On Weed needs to end. It is stupid, costly, and wildly ineffective. The American people have been pouring trillions of dollars down this rathole for almost a century now, to absolutely no effect whatsoever. Eric Holder can be the one to boldly state that the emperor has no clothes. With one swipe of his pen, he could go down in history as the biggest reformer of the War On Weed in all history (to date, that is).

If there is one thing Holder could do to tip the balance of his legacy, this would be it. We strongly urge Holder to consider leaving office with such a dramatic measure. Because, in the end, it would be the right thing to do.

-- Chris Weigant

 

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Cross-posted at: Democratic Underground
Cross-posted at: The Huffington Post

 

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