The Holder Nomination

Eric Holder’s nomination has been approved for full Senate vote. But now there is a controversy over a Washington Times article about one member of the Judiciary Committee who claims that Holder “privately assured” him he would not prosecute former Bush officials for torture:

Eric H. Holder Jr.’s confirmation as attorney general is speeding toward approval thanks in part to his private assurances to a key Republican senator that he does not intend to prosecute intelligence agency interrogators for their actions during the prior administration.

The assurances, reported by Sen. Christopher S. Bond, Missouri Republican, to The Washington Times on Wednesday, went beyond Mr. Holder’s earlier public testimony in which he said he could not prejudge his actions regarding cases he had not seen.

“I believe [Mr. Holder] will look forward to keep the nation safe and not look backwards to prosecute intelligence operators who were fighting terror and kept our country safe since 9/11,” Mr. Bond said in the interview.

Other Committee members are doubtful:

Sen. Patrick Leahy (D-VT), chairman of the Judiciary Committee — which approved Holder today — strongly denied that such an exchange could have occurred.

“It would be completely wrong if a senator said, ‘I’ll vote for you if you promise to withhold prosecution of a crime’,” Leahy told me. “No senator would make a request like that. It’d be improper.”

“Maybe Governor [Rod] Blagojevich [D-IL]” would have sought such an assurance, Leahy quipped. He never specifically referenced Bond, who declined to answer questions about the Times piece while leaving the Senate chamber this afternoon.

Sen. Sheldon Whitehouse (D-RI), a Judiciary panel member and former federal prosecutor, had a similar response when questioned about the likelihood of Holder making the “assurances” that Bond believes were offered.

“It sounds a little improbable … it’s, frankly, improper for members of Congress to demand [a pre-determinative stance on] prosecutions.”

Liberal bloggers are mostly inclined to take both Sen. Bond’s claim, and the source that reported it, with, as Elana Schor put it, “a full shaker of salt.”

Justin Elliott at TPMMuckraker points out that Sen. Bond’s actual words, as quoted in Eli Lake’s Washington Times piece, are more ambiguous than Lake’s paraphrasing would indicate:

The paper paraphrases Bond’s remarks this way: that “Mr. Holder assured [Bond] privately that Mr. Obama’s Justice Department will not prosecute former Bush officials involved in the interrogations program.”

But Bond’s quoted remarks are not quite so clear cut:

[Bond] added, “I was concerned about previous statements he made and others had made. He gave me assurances that he would not take those steps that would cause major disruptions in our intelligence system or cause political warfare. We don’t need that kind of political warfare. He gave me assurances he is looking forward.”Mr. Bond also said, “I believe he will look forward to keep the nation safe and not look backwards to prosecute intelligence operators who were fighting terror and kept our country safe since 9-11.”

Holder said at his confirmation hearing two weeks ago that “waterboarding is torture.” And while President Obama has voiced a preference for looking “forward as opposed to looking backwards” when it comes to potential prosecutions, Holder’s unequivocal statement on waterboarding raised the possibility that a full-scale investigation is required.

And Elana Schor passes along a statement given to another TPM writer by one of Holder’s aides:

… The aide definitively denied Sen. Kit Bond’s (R-MO) claim that Holder had given him “assurances” of avoiding future prosecutions of Bush intelligence officials who engaged in torturous interrogations.

“Eric Holder has not made any commitments about who would or would not be prosecuted,” the aide said via e-mail. “He explained his position to Senator Bond as he did in the public hearing and in his responses to written questions.”

The aide pointed to Holder’s written response to a question from Sen. Jon Kyl (R-AZ):

Prosecutorial and investigative judgments must depend on the facts, and no one is above the law. But where it is clear that a government agent has acted in “reasonable and good-faith reliance on Justice Department legal opinions” authoritatively permitting his conduct, I would find it difficult to justify commencing a full-blown criminal investigation, let alone a prosecution.

There is an interesting and quite informative exchange in the Comments section to Schor’s piece in which reader Lars Thorwald clarifies the legal meaning of “reasonable and good faith” reliance, in response to another reader who asks, “What would bad-faith reliance look like?”

Bad faith reliance would be claiming you did something you knew was wrong because your attorney said you could do it. Reliance on advice of counsel has a well-developed body of caselaw around it. There are legal boundaries around good faith reliance outside of which reliance is no defense. Holder is not speaking in generalities. He’s speaking in legal terms of art. And that’s good.

And another reader, CN, points out that the “good faith reliance on advice of counsel” argument would, in the first instance, only apply to individuals farther down the chain of command, who acted in accordance with those legal opinions issued from above them:

Here’s how I interpret Holder’s statements about torture prosecutions: It will happen, if it happens at all, only for the higher-ups. The grunts — the actual torturers — got orders from their superiors to do it and were told that DoJ legal opinions supported it. The grunts weren’t lawyers, so they were justified in relying on what they were told. (Not to mention that the prosecution of grunts following orders would be difficult to win and in any case a political disaster.)

But the higher-ups — the ones who knew or should have known that the Yoo memos were flimsy, manufactured justifications — those guys were not relying in good faith. They are not off-limits.

More at Memeorandum.

Explore posts in the same categories: Politics

Tags: Eric Holder, Pres. Obama, Sen. Kit Bond

You can comment below, or link to this permanent URL from your own site.