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Eric Holder's Biggest Regret

| 6 Comments
Attorney General Holder was asked in a CNN interview what his biggest regret was looking back at his tenure in office.  John Hinderaker has this take on it:

Holder was asked by the interviewer, what was your biggest failure as Attorney General? He had so many to choose from! Politicizing the Justice Department, Fast and Furious, stonewalling the House of Representatives, allowing the legalization of marijuana contrary to federal law, failure to enforce the immigration laws, and lots more. But naturally, Holder didn't mention any of those failures.

Mr. Holder's answer was that his biggest regret was the failure to pass gun control (which he calls "gun safety") legislation.

The answer is incoherent on four levels.  First, someone should tell him the Justice Department doesn't pass legislation.  Second, if it did, further restrictions on civil rights (specifically Second Amendment rights) would be a poor idea.  Third, if such legislation were so desirable, it could have been passed (by Congress, that is) when Mr. Holder's party held super-majorities during his first two years in office. Fourth, the failure to secure gun legislation is nowhere near his biggest failure.

Other than that...............................

6 Comments

What do you think about the assertion that AG Holder's biggest failure was "allowing the legalization of marijuana contrary to federal law"?

Do you really think AG Holder could have and should have brought --- and/or that the next AG could and should bring --- federal prosecutions against state officials and lots of individual citizens in Colorado and Washington... and Alaska and Arizona and Massachusetts and Nevada and New Jersey and and a dozen other states in which state laws (with the aid of state official) allow for marijuana to be legally grown and distributed?

I am not questioning whether AG Holder can and should be criticized for his approach to the federal response to state reforms, but I do want to know if you think it is fair and accurate to suggest the federal AG could and should seek to prevent the legalization of marijuana in the states.

1. I think Holder's biggest failure was the racialization of the discussion and implementation of federal law.

2. I think DOJ should enforce federal law as its resources permit. That means smoking pot is toward lower end of the scale (as it was when I was there), but not off the scale.

3. The federal AG should concern himself with the enforcement of federal law. Contrary state laws -- like those state laws that at one time legalized segregation -- should not dissuade the federal DOJ from discharge of its responsibilities.

Now a question for you: Do you agree with Prof. Etienne that SCOTUS passed on the Jones case because it wants a murkier case, thus to announce a broader rule against consideration of uncharged conduct?

As I said in my entry, I think her analysis is absurd. Do you disagree?

I was not impressed by Prof. Etienne analysis of why SCOTUS passed on Jones as report in the article your cited, in part because it looks at acquitted conduct and uncharged conduct via the same lens. As I think you know, and as I have tried to explain in various fora, I am much more troubled from a constitutional perspective by acquitted conduct sentencing enhancements than by uncharged conduct enhancements.

That all said, because my comments to the press are sometimes misquoted or misunderstood, I was disinclined to make too much of what Prof. Etienne was reported to have said in an effort to explain the cert denial given that 1/3 of the Justices expressed an eagerness to take the case up.

Now, back to the subject of this post, which strikes me as a much more important issue for reviewing AG Holder's record and the coming debate over his replacement --- namely the hard issue/question of what DOJ should do in the face of significant (and seemingly growing) state opposition to federal drug laws:

In light of your reference to segregation, Bill, am I right to think you would welcome/support/advocate that AG Holder and/or Prez Obama order the national guard or other federal troops into states like Colorado and Washington in order to prevent any and all state officials from assisting in any way with the implementation of marijuana legalization efforts in violation of federal law? Alternatively, should the AG Holder and the feds seek to require states to forfeit the significant tax revenues collected from marijuana reforms to the feds?

In my view, I see AG Holder and his agents throughout DOJ having continued to "enforce federal law as its resources permit" concerning marijuana --- e.g., there are still thousands of federal marijuana prosecutions each year, including still a good number in Colorado and Washington (e.g., the Kettle Falls 5). I do not view what AG Holder has done in this regard as anything close to "allowing the legalization of marijuana contrary to federal law." But it seems the commentor you quote thinks AG Holder could and should be criticized for "allowing the legalization of marijuana contrary to federal law," and I am trying to get a straight answer from you as to whether you think that is a fair criticism in light of the limits of federal resources and the relative importance of trying to prevent states from moving forward with implementation of their duly enacted laws.

Put simply, Bill, what precisely do you think AG Holder has done wrong with respect to marijuana policy and what do you hope his replacement will do in the future?

1. I don't doubt that the press makes stuff up, believe me. But I have no specific reason, and you cite none, to believe it made up anything about Prof. Etienne's views. Said views are not merely unimpressive; they are close to deranged. It's almost impossible to believe a law professor at a respectable school could make such a preposterous argument. Then again, law schools have become hothouses of pro-drug, pro-crime sentiment. It would be refreshing to see some real world thinking, but I'm not holding my breath.

2. "In light of your reference to segregation, Bill, am I right to think you would welcome/support/advocate that AG Holder and/or Prez Obama order the national guard or other federal troops into states like Colorado and Washington in order to prevent any and all state officials from assisting in any way with the implementation of marijuana legalization efforts in violation of federal law?"

Nope. Segregation was a greater evil by far than smoking a joint. Is this question serious?

3. "Alternatively, should the AG Holder and the feds seek to require states to forfeit the significant tax revenues collected from marijuana reforms to the feds?"

I wouldn't bother with it. For one thing, I have my doubts about how significant the revenues are.

4. "But it seems the commentor you quote thinks AG Holder could and should be criticized for "allowing the legalization of marijuana contrary to federal law," and I am trying to get a straight answer from you as to whether you think that is a fair criticism in light of the limits of federal resources and the relative importance of trying to prevent states from moving forward with implementation of their duly enacted laws."

I think it's slightly overstated, but makes a sound point.

5. "Put simply, Bill, what precisely do you think AG Holder has done wrong with respect to marijuana policy and what do you hope his replacement will do in the future?"

In brief summary, I think Holder has signaled that he doesn't much care about federal marijuana enforcement. That is an inappropriate signal for an Attorney General to send. I would also reverse his instruction to whitewash indictments of the true amount of drugs the defendant was pushing. It is not up to the AG to effectively repeal MM statutes because that's what Al Sharpton and Pat Leahy want.

I hope his replacement will, among other things, send a letter to Colorado and Washington revoking his prior letters, and saying simply that it is not the job of the federal AG to comment on state drug law, but that federal law is supreme in all instances, and will be enforced as the priorities of the Justice Department allow and/or demand. Those who flout federal law do so at their own risk.

Couple of quick responses:

1. I think it is impolite to suggest a person is "deranged" based on a suggestion made to a reporter to explain a curious SCOTUS decision. I likewise think it is just plain false to accuse -- dare I say "spit on" -- law schools as "hothouses of pro-drug, pro-crime sentiment." More broadly, it lately seems like you are not merely content to attack people for their views and call them names, you seem especially eager to get others to join in your attacks. Though I have tried to respond to your questions to me concerning your attacks on Judge Gleeson and Prof Etienne, I find quite distasteful -- indeed, filthy -- your eagerness to turn discussions of important policy issues into attacks on someone's character. You have a right to, and I suspect you will, continue with these kinds of personal attacks, but I suggest you reflect on whether this kind of impoliteness itself explains why some intemperate folks were quick to attack you at SL&P.

2. I am glad to learn you think smoking pot is not a great evil, but that is why I wonder what you think AG Holder should be doing different in the marijuana enforcement arena. That is what I thought it made sense to discuss in this thread rather than the Jones cert denial and a professor's comment about it to the press.

3. I surmise you think the feds could seek to seize state pot revenues, but you do not think it is worth the bother. But do you not agree that doing so would quickly undercut one of the strongest practical arguments for legalization? Do you disagree that going after the money would slow or even halt state reform efforts without having to spend lots of federal prosecutorial resources?

4. Do you really think the AG has "effectively repeal[ed]" MM statutes? This is certainly news to the thousands of drug defendants still facing MM indictments. And, for the record, GOP Senator Rand Paul is the most consistent and vocal advocate for reform/repeal of federal MMs. I know you like to avoid talking about this reality, but it is the current reality.

Finally, and most critical for this discussion, I see the 2011 and 2013 Cole memos concerning federal marijuana enforcement policy saying almost exactly what you want said above. Moreover, I am not aware of any "prior letters" from AG Holder or anyone else at DOJ going to Colorado and Washington on this matter. Can you clarify what "prior letters" you think need to be "revoked" and also explain how the Cole memos fail to reflect the very sentiments above?

I'm turning off the comments on this thread. Everybody close your eyes, breathe slowly and deeply, and say "om" repeatedly.

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