What one former DOJ lawyer says about who Obama might pardon at the end of his tenure is downright shocking

We recently published an article on the Justice Department's most dangerous division that you've never heard of, based on a stunning chapter from John Fund and Hans von Spakovsky's new book, "Obama's Enforcer: Eric Holder's Justice Department."

On Tuesday we caught up with Mr. von Spakovsky, a former FEC appointee and counsel to the assistant attorney general in the DOJ's Civil Rights Division in connection with the release of the book to discuss a variety of topics from "Fast and Furious," to "Pigford," immigration, the damage done to national security by the DOJ and more.

His response to the question as to who President Obama might pardon at the end of his tenure (hint: it could be a mass pardon that includes the release of serious criminals), was perhaps most shocking of all.

Below is a transcript of our interview, conducted via phone, with slight edits for clarity and links.

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Why should every American read this book?

von Spakovsky: Well because the Justice Department is the most powerful federal agency we have domestically. If a federal prosecutor targets you or your business, they can destroy your business, they can throw you in jail. I mean, they have enormous power. And when you have someone who's willing to abuse that power, it's extremely dangerous to the freedom and liberty of Americans.

The book sort follows the arc of Eric Holder's life and tracks his politicization and then how that manifested itself both in the Clinton White House and now throughout the DOJ today. Is there one key takeaway or set of takeaways you’d hope each reader comes away with?

[sharequote align="center"]What drives Eric Holder...is not the interests of justice, but it's politics and ideology[/sharequote]

von Spakovsky: The key thing to understand is that what drives Eric Holder, unlike prior Attorneys General of both parties, is not the interests of justice, but it's politics and ideology. And because of that, he has completely politicized the enforcement of federal laws.

And one of the elements in your book that you speak to is just how far reaching the tentacles of the DOJ spread, and I think you say it's the largest law firm in the country. Give people a sense as to the size and scope of the powers of the Department of Justice and what areas of society it touches.

The Department of Justice headquarters building in Washington (Image Source: AP)

von Spakovsky: Sure. They've got a 27 billion dollar budget. They've got more than a 100,00 employees, and they aren't just lawyers, but they also are responsible, for example, for the FBI. The FBI's part of the Justice Department, and so is the ATF -- Alcohol, Tobacco, and Firearms. Also they run all of the federal prisons across the country, and they have this huge program in which they give federal money to state and local police and other agencies all across the country. So really, their fingers are spread throughout the entire law enforcement system from the local cops all the way up to the Feds, including the FBI.

What in your view is the one most dangerous example of lawlessness that exists in the Department of Justice today?

von Spakovsky: I think it's what the House of Representatives held him [Attorney General Holder] in contempt for for the first time in American history – and that was Operation Fast and Furious. That was probably the most reckless law enforcement operation the Justice Department has ever conducted because it actually has led to the death of not just an American agent, but apparently, literally, hundreds of people in Mexico.

Can you walk readers through the key highlights or the key bullet points as to why the concept of gunwalking and the way it was implemented was so lawless and so far reaching in its criminality?

This Jan. 25, 2011 picture shows part of a cache of seized weapons displayed at a news conference in Phoenix. (AP Photo/Matt York)

von Spakovsky: The standard way the Justice Department rolls out a drug cartel or a mob organization is, they start with the lower level folks, they arrest them, but then they give them a choice where they will be willing to basically turn in the people above them. And what they do is they roll out the organization starting out at the bottom, getting all the way to the top. But to do that, you've got to be willing to catch the lower level people with drugs, or guns, or whatever it is, and arrest them. And in this case, they sold guns to straw purchasers for the drug cartels, but then didn't arrest them, and most importantly, didn't follow the guns as they passed through the levels up to the highest levels of these cartels so that they could arrest the folks at the top. They just basically lost track of them as soon as they had been purchased. It wasn't just reckless, it was "felony stupid" as Chairman [of the House Oversight and Government Reform Committee] Issa of the House of Representatives has said.

How much of that was the incompetence of the agents or politicization of agents in the ATF versus people being forced to act on orders from above them?

von Spakovsky: I mean there was some incompetence in the ATF, but a lot of this came from above because President Obama, Hillary Clinton, even the Attorney General were out there saying that the United States is responsible for the vast majority of murders and robberies in Mexico because of guns flowing across the border. That is completely untrue. It is false. But this operation was a way of showing the American people that that was true, but it was also a way of, I think, trying to get people angry if it had worked out the way they wanted it to, to be able to push gun control legislation.

In an article we wrote recently, we briefly touched upon the way the DOJ can use court cases to effectively write regulations while subverting Congress and the public. And basically, it seems like defanging Congress of not only the powers of oversight, but also the power of the purse to some degree. I suspect that that extends well beyond the ENRD [Energy and National Resources Division of the Department of Justice]. Speak a little bit about how this happens.

[instory-book ISBN="9780062320926"]

von Spakovsky: The administration has gotten into this habit of doing what they call "sue-and-settle" or collusive litigation. And what happens is, they [the executive branch] may want to issue some kind of regulation in the environmental area or any other area, but there are limits on how much they can do under the laws passed by Congress. Also, whenever federal agency issues a regulation, they've got to go through this whole process of getting public comments. It's a pretty drawn out process. But what they've been doing is going to their political allies -- the far left radical environmental groups for example -- and they basically arrange a lawsuit where a liberal group will sue the government saying that "You haven't issued the regulation you need to issue in a particular area," and the government, the Justice Department, instead of fighting it, instead of defending it, immediately surrenders and says "You're right. We haven't done it. Let's have a settlement agreement in which we lay out exactly the kind of regulation we want." And by doing it that way, they get around all of the rules governing regulations because they can say, "Hey, we were sued. We had to do it this way and the litigation…a court has approved it." Judges just rubber-stamped these. And they can basically get around all of the restrictions governing regulatory rule-making, including the kind of oversight that Congress normally does with that.

What recourse, if any, is there to stop a DOJ which colludes and effectively in many cases even throws cases?

von Spakovsky: Well, part of it is transparency. There's been a couple of proposals in Congress to require advance notice of any kind of settlement of this kind of a lawsuit; also immediate publication of any lawsuit that’s filed. The other thing that could be done is there were actually internal Justice Department policies put in place during the Reagan Administration when Ed Meese was the Attorney General to stop this kind of behavior. And what happened very quietly when Obama came in is they basically tossed that policy out the window. That kind of policy should be put into federal law so that they can't just disregard it.

Jumping to the Civil Rights Division and then a series of scandals related to it, speak to the division's radicalism and the racialism endemic in it under Eric Holder.

New Black Panther Party members outside a Philadelphia polling station, November 2008. (Image Source: Youtube Screen grab)

von Spakovsky: Yeah, the Civil Rights Division is probably the worst division inside the entire Justice Department. I worked there for four years and met some of the most radical individuals I have ever encountered in Washington. All of the folks hired there come from far left advocacy groups and they just continue those policies and keep advocating those positions when they come in. For example, when it comes to voting and other kinds of discrimination, they have tossed out the racially neutral policy of the Justice Department. If you are, for example, white, and you are being discriminated against either in voting or employment against federal law, the Justice Department will do nothing to help you or file suit over it because they don't believe that federal discrimination law should be enforced that way. And they are bending and stretching the law to basically put their ideological positions in place, even doing things like going after school districts that have dress codes that prevent boys from showing up in school in drag because they're now saying "Well if you do that, you're now engaging in sex discrimination," which is a ridiculous claim and one that's not authorized by the federal law.

[sharequote align="center"]The Civil Rights Division is probably the worst division inside the entire Justice Department[/sharequote]

And related to what I would call redistributive justice or in trying to meet this ethos of social justice, are Pigford I and Pigford II. I wasn't even aware of Pigford II and the effort to ostensibly right the wrongs that Native Americans, Hispanics, and women purportedly faced in seeking out USDA loans. Talk a little bit about Pigford and how this was used as a political ploy to help the Obama campaign.

von Spakovsky: Pigford has to do with the fact that some black farmers filed a lawsuit against the US Department of Agriculture. They claimed that they had been discriminated against when it came to Department of Agriculture subsidies and loans, relative to white farmers. There might have been something to it...we will never really know because what happened was Congress and others decided “Well we’re gonna pay them off,” but they set up this claims procedure that basically allowed anybody to file a claim with no evidence, simply you swearing that you had tried to farm and hadn't gotten any money. They paid off literally billions of dollars, and they paid more people than the total number of farmers across the country. Probably 80-90% of claims were fraudulent. And when Obama became a senator, they saw it as a way of basically paying reparations, and his political allies said this would actually help him get votes in the South, and so he pushed bills to come up with even more money to pay out on these fraudulent claims. And then when he became president, a second lawsuit was filed, this time on behalf of Hispanic farmers, Indian farmers, women farmers, and the Justice Department said “There is no basis to these claims, we can easily win this suit.” And a meeting was held in the White House to say "No, no, no, we're gonna pay this off" because the political folks in the White House saw this as a way again of getting votes for the president.

[sharequote align="center"]The political folks in the White House saw this as a way again of getting votes for the president[/sharequote]

Where was Congress in all of this?

Van Spakovsky: Unfortunately, Congress helped provide the money for these payoffs, and I can tell you the Democrats were all for it because these were all their constituencies getting free money -- people who would vote for them. And unfortunately, the Republicans went along with it too because they were afraid that they would be called racists and other words like that if they didn't agree to these moneys, even though folks who were involved in it -- especially employees from the Department of Agriculture who had to process claims -- said the vast majority of these claims are fraudulent claims.

Sort of related to this topic is immigration. Eric Holder recently sort of echoed the Jeb Bush line about it being "an act of love" when it comes to illegal immigration. If you were going to write a chapter about the enforcement, or in this case, non-enforcement, of immigration laws and how Eric Holder and the president are able to get away with this, what would your chapter say?

An August 15, 2012 file photo showing young people waiting in line to enter the Coalition for Humane Immigrant Rights of Los Angeles (CHIRLA) office in California, on the first day of the Deferred Action for Childhood Arrivals (DACA) program. (Image Source: AFP/Getty Images)

Van Spakovsky: Well, what I would say is that unfortunately, part of the problem with our great Constitutional system is that it's dependent on people following the Constitution and following the law. And if the president and the Attorney General, who has a contempt for the rule of law, who are willing to basically not enforce the law that Congress has passed and in fact change the law even though they don't have the authority to do that, is very hard to do anything about that. And that's what they've done with immigration. They've declared a general amnesty administratively. They're refusing to enforce the law, and now we have a crisis on the border with huge numbers of children coming across the border because they want that amnesty.

[sharequote align="center"]They've declared a general amnesty administratively[/sharequote]

This is something I was unaware of when I picked up "Obama's Enforcer:" Does the DOJ have the power to control which ministers represent a given church?

Van Spakovsky: They tried to argue that case in front of the United States Supreme Court, in a case that was decided about a year and a half ago. And their position was so outrageous that even his own former Solicitor General, Elena Kagan, who's now a Justice, was astonished that they would make that claim. And the decision against the Justice Department was 9-0, which, as you know, is quite something when even the liberal justices vote against you. That's the claim they tried to make.

And what about book banning?

Van Spakovsky: Well they have been fighting for the past four years now to overturn the Citizens United decision. And when they argued that case in court, the acting Solicitor General for the United States in answer to a question from the Attorney General asked if the DOJ believed that Congress had the power to ban books with political messages, and the Obama administration said "Yes, we do."

With respect to national security: 1) How is the DOJ imperiling our nation's safety? 2) Can you document some of the egregious instances of folks who were appointed into the DOJ who have represented terrorists in the past by choice?

Guantanamo Bay, Cuba. The U.S. Naval Station at Guantanamo Bay, houses the American detention center for 'enemy combatants'. President Barack Obama has recently spoken again about closing the prison which has been used to hold prisoners from the invasion of Afghanistan and the war on terror since early 2002. (Image Source: Getty Images)

Van Spakovsky: There's a national security division at the Justice Department, and unfortunately, Eric Holder has hired all of these lawyers into that division who voluntarily and of their own free time, were representing the terrorists, many of them down at Guantanamo Bay. That's as if the organized crime task force at Justice hired mob lawyers to direct their policies and figure out how to go after the mob.

[sharequote align="center"]Eric Holder has hired all of these lawyers...who voluntarily...were representing the terrorists[/sharequote]

What has happened is that they have switched the DOJ back to the criminal approach to terrorism -- the kind that so spectacularly failed during the Clinton Administration, and we are in greater danger because of it. Don't forget, Eric Holder also wanted to go after the CIA interrogators, the ones who were key in helping us find the head of Al-Qaeda and others. He wanted to prosecute them for being able to get that information, basically following the guidelines the Justice Department had laid out for how they could act and behave.

And related to that point, isn't there supposed to be a Congressional report on interrogation techniques coming out soon?

Van Spakovsky: There very well may be. Part of the problem with what this administration has also done is they basically have published so much information about the way the CIA and others who were interrogating prisoners, terrorists really, that they have taught the other side how to keep information from us and how to avoid getting caught in doing the things that are essential to us keeping the country safe.

Related to national security is the concept of leaks. Basically, and I'm paraphrasing, the case you make in the book is that the president and the administration have intentionally leaked pieces of intelligence that have led people to view the administration in a more positive light on national security, and then basically thrown people under the bus who were lower level when it suited the administration. Speak a little bit to that.

Attorney General Eric Holder testified on Capitol Hill on May 15, 2013 before the House Judiciary Committee on oversight of the Justice Department. Holder told the committee that a serious national security leak required the secret gathering of telephone records at The Associated Press as he stood by an investigation in which he insisted he had no involvement. (Image Source: AP)

Van Spakovsky: That's exactly right. In fact, Eric Holder has opened up and investigated more leaks of national security information than any prior Attorney General combined. But there's a very clear pattern when you look at those cases. They have prosecuted and convicted lower level individuals, but any time there's been a leak where it clearly came out of the White House, or out of a political official or appointee of the administration, they have not done anything about those. And those leaks, the ones they haven't prosecuted, have been some of the most damaging, like the leak about the Stuxnet Virus. People may recall that’s the virus we inserted in Iran that messed up their processing of uranium for the building of nuclear bombs. That came directly out of the White House in order to make the president look as if he was actually doing something about the Iranian threat.

What can the average American do in the face of a lawless Department of Justice. I mean, even, you look at the suppression of political opposition via the IRS. What can the average American do when many of these tactics being employed by the DOJ are done with the express purpose to chill any dissent?

Van Spakovsky: I tell you, it is very tough because the Attorney General is so powerful. Frankly, publicity is one of the things that people can do. If they're being persecuted, if they see things being done wrong, they need to bring a public light on it. That's one of the only ways to do anything about it. Also, Congress has got to keep up its oversight of the department, and frankly it needs to be more aggressive in going after and frankly holding folks at Justice in contempt when they refuse to provide them with the kind of information and documents they're entitled to.

If we look at 2016, let's say Ted Cruz was the president, and he had a Senate and a House of all Ted Cruzes. What could a President Cruz and a conservative Congress do to reverse the damage done by Attorney General Holder, when so many appointees and other civil service folks are going to be embedded in the DOJ and probably very difficult to fire?

von Spakovsky: Yes, it will be difficult and particularly because they've been putting political people into career civil service slots, something they're not supposed to do. Frankly, the best way they could deal with that would be to have a severe cut in the budget of the Justice Department. It has grown enormously, gotten much greater amounts of money over the past few years of this administration. One of the best things they could do is cut the budget, along with a rule saying, "Last hired, first fired," which frankly would get rid of many of the Democratic political cronies and others who have been put into career slots.

Andy McCarthy, when I spoke with him about his new book on the political case for impeaching President Obama, talked about the fact that, while objectionable, the Marc Rich pardon at the end of the Clinton presidency in some ways paled in comparison to the dangerous pardon of the FALN terrorists who were let go under Eric Holder's watch. What pardons do you think we can expect at the end of this administration?

von Spakovsky: I don't know exactly who that may be, but I'm afraid it may be working its way into, for example, mass pardons of individuals who have been ordered deported, perhaps people who have committed serious, serious crimes but they still want to keep in the country. It's hard for me to see what they're going to do because frankly some of the things they do seem so irrational and so crazy that it's hard to predict. [Editor's Note: Steven Hayward of Powerline independently wrote about this exact scenario yesterday]

And in your view, is it irrational and crazy, or is it purely a by hook or by crook, whatever tactics necessary, they will do whatever it takes to push an agenda?

von Spakovsky: I think it is the latter. I think to regular folks, it appears to be crazy, but they really are pushing an ideological agenda. That's their sole reason for being and that's the way for example Eric Holder is running the Justice Department.

In your view, should Eric Holder be impeached?

Van Spakovsky: I think there certainly are grounds to consider impeaching him, particularly given that he was held in contempt by Congress for refusing to turn over information and documents that they were entitled to. I definitely think he should resign. I don't think he will because the president fully supports everything he's done, even the complete lawlessness of the way he's run the Justice Department.

[sharequote align="center"]The president fully supports...the complete lawlessness of the way he's run the Justice Department[/sharequote]

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