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INTERVIEW: Discussing the Issues at DOJ
An Interview With Deputy Attorney General Eric H. Holder, Jr.
Eric H. Holder, Jr. has been Deputy Attorney General since 1997. He was
previously the U.S. Attorney for the District of Columbia, and an Associate
Judge of the Superior Court of the District of Columbia.
Q: The Judicial Conference has strongly urged
Congress to consider a statutory approach, as opposed to a constitutional
amendment, to crime victims' rights. Where does the DOJ stand on this?
A: The Department's review of the issue of
victims' rights has persuaded us that no satisfactory degree of protection for
the rights of crime victims can be secured in the foreseeable future by any
means other than a federal constitutional amendment.
Despite the hard work of victims' advocates over the last two decades, state
statutes and constitutions have proved ineffective in guaranteeing rights for
victims. State efforts, while admirable, are simply not sufficiently consistent,
comprehensive, and authoritative to protect victims' rights adequately.
Moreover, the rights created by the various state statutes and constitutional
provisions provide no minimum baseline of protections for victims and instead
have developed into a patchwork of rights, often different in scope and
effectiveness from jurisdiction to jurisdiction.
The Attorney General has stressed the need to craft a Victims' Rights
Amendment that preserves the fundamental protections of those accused of crimes.
While conflicts between victims' rights and the protections accorded defendants
by the Bill of Rights and the Fourteenth Amendment likely would be rare, the
Attorney General has said that in those rare instances "we must as a society
ensure that a fair trial is not jeopardized." The Victims' Rights Amendment
accordingly should include "express language stating clearly that the rights the
amendment creates shall not be applied in a manner that violates those
irreducible rights to which a criminal defendant is constitutionally entitled."
Q: The Judicial Conference also has questioned
the federalization of state crimes, for example the prosecution of hate crimes
in federal courts, contending these offenses are already adequately prosecuted
in state courts, and that these and other prosecutions threaten to overwhelm the
federal courts. Would DOJ like to see more state crimes brought into federal
courts? And why?
A: Clearly there are many crimes that are
traditionally best addressed by state and local law enforcement. However, even
where state and local law enforcement take the lead in combating these crimes,
federal resources may lend critical support to their efforts by providing
leadership and investigative and prosecutive coordination. And, in some
circumstances, the nature of the criminal conduct demands that federal
authorities have primary responsibility for addressing the problem. For example,
state and local law enforcement have neither the resources nor the authority to
combat all aspects of the offenses committed during the multidistrict
trafficking in drugs, weapons, or aliens. Further, small jurisdictions on
occasion have become overwhelmed by crime largely local in nature and have
solicited federal help in hand-ling the problem.
We are sensitive to the concerns expressed by the Judiciary that the
federalization of crimes not be allowed to overwhelm the federal court system.
In the area of hate crimes, for instance, state and local law enforcement
agencies continue to play the primary role in the investigation and prosecution
of all types of hate crimes. The federal government prosecutes only a limited
number of such cases. We predict that the enactment of a proposal like the Hate
Crimes Prevention Act of 1998, which was under consideration by the Congress
during its last session, would result in only a modest increase in the number of
hate crimes prosecutions brought each year by the federal government.
Q: There has been much criticism of Congress
and the White House over the slow pace of judicial nominations and
confirmations. DOJ reviews all nominations. Has this process contributed to the
slow pace ?
A: The Justice Department has a quick review
that is an essential step in the screening process for judicial nominations. The
DOJ receives the names of individuals who are potential nominees to the federal
bench. The DOJ immediately reviews the candidate's credentials and
qualifications, interviews the candidate in person, and makes inquiries of the
legal community in which the candidate works.
Following successful completion of this process, the FBI conducts a
full-field background investigation, which usually takes between four and six
weeks. The American Bar Association also conducts an independent evaluation
during this same period. If the candidate is determined to be qualified on the
basis of these reviews, the Attorney General then recommends nomination by the
Since the conclusion of the 105th Congress last month, the DOJ and
the Administration have continued to work to review potential nominees for the
pending circuit and district court vacancies. The executive branch intends to
continue to prepare as many candidates as possible for nomination in January
1999, so that we can continue our work with the Senate to fill vacancies and to
provide federal litigants with a full bench of excellent judges. We hope that
the progress we enjoyed during the second session of the 105th
Congress will continue when the 106th Congress convenes in January.
Q: The Judicial Conference's Subcommittee on
Federal Death Penalty Cases recently produced a report on the cost, availability
and quality of defense representation in federal death penalty cases. The report
found that the average cost of defense representation is reasonable, while
recommending ways to reduce costs. How does DOJ view prosecution costs?
A: As we gain more experience in prosecuting
capital cases, the cost of prosecution will likely decline. That experience,
thus far, has led us to devote a substantial amount of time and effort to
evaluating and improving the manner in which capital cases are handled by
In February of this year, we invited all assistant U.S. attorneys (AUSAs) who
have prosecuted capital cases to come to Washington for a two-day meeting to
exchange ideas and suggestions on more efficient and effective ways to handle
We have established a unit within the Criminal Division dedicated to the
review of U.S. attorneys' indictments and submissions on capital defendants.
This unit will staff the senior DOJ officials who serve on the Capital Cases
Review Committee and will provide advice, as well as litigation support, to
AUSAs handling these cases. In addition, we have established a resource center
that includes both electronic and hard copy collections of briefs, motions, and
responses to motions on all capital punishment constitutional issues. This
resource center is available to all AUSAs prosecuting capital cases and can
significantly aid them by reducing the amount of time devoted to research.
Q: As you know, Congress has passed
legislation to give Executive Schedule employees, members of Congress, and
federal judges only a single cost-of-living adjustment since 1993. Since DOJ has
an interest in recruiting the best qualified nominees and for retaining judges
on the bench, will DOJ urge the administration to support COLAs or pay increases
A: The Congress adjourned for the year without
providing for any kind of a pay increase for the Judiciary in fiscal year 1999.
We do support a cost-of-living adjustment for the Judiciary and are hopeful that
authority to fund such an increase will be included in the fiscal year 2000
Q: The Judicial Conference has urged that U.S.
trustees be removed from the political appointment process and placed in an
independent agency. How would DOJ view such a change?
A: The Department of Justice has taken a
position strongly opposing any proposal to take the U.S. Trustee Program out of
the DOJ. Being a part of the DOJ gives the trustee program litigators
credibility and facilitates their relationship with other DOJ components such as
the U.S. attorneys, the litigating divisions, the FBI, and the Inspector
General. Not only do these and other DOJ units play an important part in helping
the program carry out its mandate, but access to them is a major cost saving to
the program. In addition, the recruitment of top flight U.S. Trustees, managers,
lawyers, and accountants has been greatly aided because they are an agency
within the DOJ. Efforts to convince the Congress of both the substantive
positions on bankruptcy matters and the validity of the program's appropriations
requests also have been reinforced by their support by the DOJ.
In addition, the DOJ disagrees that the U.S. Trustees should be removed from
the political appointment pro-cess. The selection of U.S. Trustees was patterned
after the process used for selecting U.S. attorneys, U.S. marshals, and federal
judges. Appointment by the Attorney General has added stature to the U.S.
Trustee position and brought highly qualified bankruptcy practitioners to the
Q: In some cases, the Judiciary must provide
public defenders for criminal defendants whose assets have been seized by DOJ.
Would DOJ support funding of public defender attorneys from the Asset Forfeiture
A: The DOJ strongly supports appropriate
funding levels for public defenders. We supported the efforts of the
Administrative Office to remove the Nickles amendment from the 1999
appropriations act which would have put a ceiling on monthly compensation for
CJA-appointed attorneys to make such compensation equivalent to the monthly
salary paid to U.S. attorneys. In addition, we have supported efforts by the
Administrative Office and others to raise the awareness on Capitol Hill about
the need to fully fund the defense side of the criminal justice system.
However, we do not believe that it is appropriate to finance the CJA program
through the AFF. While there are instances of the Judiciary having to appoint a
public defender to defend a defendant whose assets have been seized, the greatly
expanding costs of the CJA program cannot be tied to the assets forfeiture
program. We believe that it makes more sense to work toward educating the
Congress about the need for adequate funding for criminal defense and leaving
the AFF for the purposes that it was intended to be used.
Q: Hidden in the Omnibus Appropriations Act is
a provision that would require federal prosecutors to comply with state laws and
rules governing attorneys in states where the attorney engages in his or her
duties. Won't this provision make multi-state investigations difficult?
A: The provision will seriously interfere with
the work of prosecutors to enforce federal law, and we are urging Congress to
amend or repeal it before it takes effect in April. The provision effectively
cedes authority over the con-duct of federal attorneys to states and state bars,
and in so doing, it may allow states and state bar authorities to control how
federal law is enforced in those states. State bar authorities pass rules that
not only impact ethical conduct by attorneys, but also attempt to regulate the
steps that prosecutors and agents may take in investigating crime. State bars
have established rules, for example, limiting whether investigators supervised
by prosecutors may speak with corporate whistle-blowers, and controlling how
prosecutors may investigate witness tampering and obstruction of justice. Ceding
such authority in these areas to state bars would seriously undermine federal
In addition, by requiring federal prosecutors to comply with a web of
conflicting rules in all 50 states, the provision will make it far more
dif-ficult to conduct a single, coordinated nationwide or multi-state
investigation of criminal conduct. Recently we have successfully prosecuted such
multi-state cases as the Oklahoma City bombing, a number of drug cartel
conspiracies, and telemarketing fraud conspiracies. The new provision could
frustrate the prosecution of crimes that are of the same magnitude as these
Q: Shouldn't federal prosecutors be governed
by ethics rules?
A: Federal prosecutors already have strict,
effective ethics rules. They are governed by ethics rules in the states where
they are licensed, in the federal courts where they practice, and by federal
regulation. The provision in the omnibus act would not make prosecutors more
ethical; it would only burden prosecutors and delay justice.