Eric Holder’s 'Fair' Investigation in Ferguson?

Attorney General Eric Holder travelled to Ferguson, Missouri, Wednesday to personally intervene in the investigation of the police shooting of Michael Brown, an unprecedented and highly questionable move. In a column published in the St. Louis Post-Dispatch, Holder claimed that the Justice Department would conduct an investigation that would be “fair” and “independent.” But given Holder’s biased views on race and the history of his tenure at DOJ that we outline in our new book, Obama’s Enforcer: Eric Holder’s Justice Department,” we have serious doubts that his department can conduct an impartial investigation. This is particularly true given the hostility he displayed towards law enforcement when he claimed at a meeting with local community groups that he had been supposedly targeted by police for speeding in New Jersey and jogging through Georgetown because he is black.

The issue in Ferguson is possible police misconduct. Investigating such misconduct is the responsibility of the Criminal Section of the Justice Department’s Civil Rights Division. The primary mission of this Section is to prosecute individual police officers under 18 U.S.C. §§ 241 and 242. These criminal statutes prohibit officials who are acting under color of law from willfully depriving individuals “of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States.” In this case, the government must prove that Officer Darren Wilson used excessive force against Brown during the apparent confrontation that the two had. If Wilson is convicted, the punishment can be extremely severe, including life in prison or the death penalty.

The unrest in Ferguson has obviously been triggered by unproven – and increasingly unlikely, given the emerging evidence – allegations that Brown was targeted by Officer Darren Wilson because of his race. Brown is not only a suspect in the robbery of a convenience store, but Wilson was apparently severely injured in the struggle with Brown. The notion that Wilson deliberately targeted Brown, let alone used vastly excessive force in the interaction, seems a bit dubious at this point. Still, Holder has dispatched a team of lawyers from the Criminal Section to supervise over 40 FBI agents sent to Ferguson to investigate this tragic situation. The attorneys “deployed to lead this process,” says Holder, are the “Civil Rights Division’s most experienced prosecutors.”

What Holder did not say is that it is these “experienced prosecutors” in the Criminal Section who he is so “proud of,” along with lawyers in the U.S. Attorneys’ office in New Orleans, who were accused last year by a federal judge in Louisiana of “grotesque prosecutorial abuse.” In a shocking 129-page order in a civil rights prosecution of New Orleans police officers after Hurricane Katrina, the judge castigated the Justice Department, using terms like “skullduggery” and “perfidy” to describe the misbehavior of prosecutors. This included making anonymous postings on the website run by the New Orleans Times-Picayune that “mocked the defense, attacked the defendants, and their attorneys, were approbatory of the United States Department of Justice, declared the defendants obviously guilty, and discussed the jury’s deliberations.”

One of the Criminal Section’s lawyers involved in this unethical behavior was Karla Dobinski, the lawyer assigned to make sure the defendant police officers’ rights were not violated by the prosecutors using privileged information such as the compelled testimony provided by the officers to internal investigators at the police department. The judge was appalled that the lawyer assigned to ensure that the constitutional rights of the defendants were protected was personally fanning the “flames of those burning to see [the defendant] convicted” before the jury even got the case.

One of the FBI agents used “shockingly coercive tactics” against defense witnesses. Because of threats of prosecution by the lead prosecutor in the case, Barbara “Bobbi” Bernstein, another Criminal Section lawyer, three of those witnesses refused to appear at trial on behalf of the police officers. The judge found it highly suspicious that 26 months after the trial, not one of those potential witnesses who could have provide exculpatory evidence had “been charged with any crime whatsoever.”

The judge spent ten pages just describing the ethical rules and federal regulation violated by Justice lawyers. And he clearly believed that the Holder Justice Department had tried to hide what happened because he said that trying to get information out of the Department was like “slowly peeling layers of an onion.” Neither Dobinski nor Bernstein were fired by the Division for their inexcusable behavior.

This case demonstrated a “secure-a-conviction-at-any-cost” attitude by Holder and his lawyers. The judge pointed out that the indictment in the case had been “announced with much fanfare, a major press conference presided over by U.S. Attorney General Eric Holder, and widespread media attention.” A DOJ spokesman said the indictment was “a reminder that the Constitution and the rule of law do not take a holiday – even after a hurricane.” But as the judge reminded Holder, “the Code of Federal Regulations, and various Rules of Professional Responsibility, and ethics likewise do not take a holiday – even in a high-stakes criminal prosecution.”

Unfortunately, these lawyers are typical of the career staff in the Criminal Section. As outlined in a series of articles that von Spakovsky and J. Christian Adams did on hiring at the Civil Right Division during Holder’s tenure, the career ranks have been filled with radical, left-wing lawyers who are hostile to law enforcement. In the Criminal Section, this includes one lawyer who argued in a published article that tough law enforcement policies against violent youth should be abandoned because it “could exacerbate the problem of disproportionate minority contact.” Another new lawyer spent most of her career prior to arriving at DOJ representing murderers facing the death penalty. Still another lawyer complained in a report about the confinement of dangerous criminals in federal supermax prisons.

Frankly, the Justice Department should step back and allow state and local officials to investigate what happened. There is no evidence that these local officials are not conducting a competent, objective investigation. And given the biases and checkered history of the Attorney General and the Civil Rights Division, as well as the complete politicization of DOJ by Holder, we can have no confidence in the credibility of an investigation by his Department.

John Fund is the National Affairs columnist for, and Hans A. von Spakovsky is a contributor to, National Review Online. They are the co-authors of “Obama’s Enforcer: Eric Holder’s Justice Department” (HarperCollins/Broadside 2014).


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