Attorney General Nominee Eric Holder, Separation of Powers and The Citizen’s Advocate. The United States Constitution establishes three independent branches of government which balance and check each other’s power. The Executive Branch (The President and his appointees) is charged with executing and enforcing laws enacted by Congress or adjudicated by the U.S. Supreme Court.
The U.S. Attorney General (AG) is “The People’s Attorney,” a watchdog charged with ensuring that the Executive Branch functions consistent with Federal law and within the framework of The U.S. Constitution. In the past, when the AG abdicated this obligation, Writs of Mandamus or the Administrative Procedures Act (APA) have been used to force the AG to (1) investigate the Executive’s actions or inactions or, alternatively, (2) to appoint an independent investigator. In recent years, as the “Imperial/Unitarian Presidency” grew, these tools of citizen redress have been more frequently denied by courts and Administrative Law Judges. There’s an underlying assumption that it’s better to countenance questionable Executive actions than it is to risk overstepping the Separation of Powers.
As demonstrated by Bush’s Presidency, an independent AG and Justice Department are essential reins on a run-away Executive. The AG is often The People’s last recourse for achieving administrative and judicial intervention. In that light, citizens should welcome Senator Arlen Specter’s questioning (R-Pa.) of Attorney General-nominee Eric Holder about his involvement in the Marc Rich pardon scandal. Was Holder so dependent on President Clinton’s good graces that he abdicated due diligence and independence for personal ambition? In our current situation (an extraordinarily popular President-Elect and a Democratic-controlled Congress) it is especially important that the People’s watchdogs are motivated by law and ethics not by personal aggrandizement. According to Holder, “The duty of the AG is to defend statutes… unless there are compelling reasons [not to].”
In today’s hearing, Senator Orrin Hatch asked Holder (who has expressed opposition to rendition, torture and warrantless wiretapping) if Holder would pursue prosecutions of officials who approved extraordinary rendition and warrantless wiretapping of U.S. citizens. In reply, Holder stated, “No one’s above the law We will follow the evidence, the facts, the law and let that take us where it should. We don’t want to criminalize policy differences…between the outgoing administration and the incoming Obama administration. I want to know more about what lead to these decisions.”
In a loose citation of Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) Holder further stated, “[The President’s power is] weakest … where Congress has indicated something contrary to what the President wants to do.” In other words, where Congress has expressed its will in legislation, the President is obliged to act within the parameters established. (Of course, Congress cannot usurp powers granted the Executive by The Constitution.)
It seems clear Holder understands his Constitutional obligations to uphold the law and to prosecute its corruption. We should listen carefully to Senator Specter’s questions and to designee-Holder’s answers. They may be the only additional clues we get to the stamina of designee-Holder’s ethics and independence.
Timothy Geithner, Citigroup & the global economic crisis. See “Note 4” below. The Alternet-Politico article provides a good overview of Geithner’s involvement in the creation of our current global economic crisis and should be read in its entirety.
Several experts on finance, mortgage-backed securities, hedge funds, bankruptcy, SEC regulations and lack of enforcement, arcane investment tools and the TARP have testified before Congress concerning our global economic crisis. (See CSPAN archives.) Their grasp of the factors affecting an economic recovery was comprehensive.
As the former president of the New York Federal Reserve Bank, Timothy Geithner reduced regulations and consequent oversight of Citigroup, et al.
Is he the best person to develop the architecture of our economic recovery? Has he demonstrated a capacity for predicting the effect of government interventions/pullbacks on financial markets? What unique expertise does he possess beyond having overseen the building and crashing of an economic house of cards? What was the nature of his relationship with Citigroup and Robert Rubin? (Rubin is a past-Treasury Secretary, Geithner’s former boss and was a “special consultant” to Citigroup during its implosion. He is also one of President-elect Obama’s economic advisors.)
NOTES & CITATIONS
1. Administrative Procedures Act: http://usgovinfo.about.com/library/bills/blapa.htm
2. U.S. Supreme Court and Writs of Mandamus which I’m including because it’s a tool too few of us know about: (Per Justice Ginsberg in 2004, No. 03-475″…an applicant seeking a §1361 mandamus writ must show that “the [federal] defendant owes him a clear, nondiscretionary duty.” Heckler v. Ringer, 466 U.S. 602, 616 (1984) (emphasis added). No §1361 writ may issue, in other words, when federal law grants discretion to the federal officer, rather than imposing a duty on him. When federal law imposes an obligation, however, suit under §1361 is not precluded simply because facts must be developed to ascertain whether a federal command has been dishonored. Congress enacted §1361 to “mak[e] it more convenient for aggrieved persons to file actions in the nature of mandamus,” Stafford v. Briggs, 444 U.S. 527, 535 (1980), not to address the rare instance in which a federal defendant, upon whom the law unequivocally places an obligation, concedes his failure to measure up to that obligation. http://www.law.cornell.edu/supct/search/display.html?terms=mandamus%20attorney%20general&url=/supct/html/03-475.ZD.html
3. Bloomberg has a good overview of the concerns raised by Holder’s nomination: http://www.bloomberg.com/apps/news?pid=20601103&sid=afLrs7qPiu2o&refer=us
4. Alternet & Politico have this overview of Citigroup, Timothy Geithner, Robert Rubin & the global economic meltdown: http://www.alternet.org/workplace/119871/how_citigroup_unraveled_under_geithner%27s_watch/?page=1