Thursday, October 27, 2011

Who is in charge at the Justice Department?

According to Huffington Post, the spokesperson for the U.S. Attorney for the Eastern District of California, says that the crackdown on California medical marijuana dispensaries was the idea of the four U.S. Attorneys that head the four federal prosecutors offices in California. That is not strange or surprising. But Huffington Post is spinning her comments to say that President Obama (the Obama Administration) was not involved in the decision (Huffington Post headline: "Obama Not Implicated In California Medical Marijuana Crackdown, U.S. Attorney Claims"). They note that the campaign was approved by the Deputy Attorney General, but suggest that since he did not fly to California for the press conference to announce the crackdown, this indicates some "administration" distancing from the decision.

It is clear that the Obama Administration is getting heat for this. It is unlikely that the President was personally asked to approve this initiative. It is likely that his press people knew about the big press conference in Sacramento at which the four U.S. Attorneys were speaking. In a well-run administration, they certainly would have been advised that this was taking place. There is no question that the President should be held responsible for this policy unless there was an effort by Justice Department officials to keep him (meaning his advisers in the White House) out of the decision making loop.

Attorney General Eric Holder should have known about this. He should have known about the memorandum that his Deputy issued earlier this summer that attracted widespread criticism. It is almost inconceivable that he did not know about the memorandum. As the memorandum was being drafted, Holder should have asked what the specific implications of this memorandum would be for enforcement actions, and he probably was advised on that point as well.

Unfortunately for the proper running of the Justice Department, Eric Holder is under significant political attack for Republicans in Congress over the mishandling of the "Fast and Furious" gun trafficking investigation in Arizona, and is being investigated by a Congressional committee. He is necessarily distracted, and he is weakened. Challenging U.S. Attorneys who choose to make enforcement initiatives is not something he will eagerly do.

It is worth noting that Holder demonstrated very poor judgement in failing to protect President Clinton and the interests of justice in January 2000. Then, as Deputy Attorney General (the number two, chief operating officer at Justice), on the last day of the Clinton Administration, as Clinton was issuing pardons and reprieves, Clinton was about to grant one to Marc Rich, a fugitive from justice. Holder was asked and stupidly signed off on that pardon, exposing Clinton to well-deserved condemnation, and betraying justice, both upper and lower case. Holder, if he had been thinking would have said no, "Look, this guy is a fugitive from justice. He fled to avoid a trial. He had good attorneys, he was contesting the charges, he was out on jail, and he ran. Mr. President, how can you give him a pardon?"

Is Eric Holder, perhaps deeply politically tone deaf, failing to protect the President again, in allowing a politically counterproductive campaign against medical marijuana dispensaries?

Not only the Attorney General, but the Deputy Attorney James Cole, and all four of the U.S. Attorneys in California were nominated by President Obama. They are his appointees, not the appointees of someone else. These nominations are reviewed by his White House personnel office.

Obama might not have personally decided the policy to crack down on dispensaries in California, but those who did so, and are doing so, are carrying out his Administration's policies. His Administration's policies are his policies. He was elected, not they, and he is responsible for how they carry out his mandate. He has the authority to tell them not to do this, to say that this is not what he wants, and they comply or resign.

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