December 1998

 

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 President.

Since the conclusion of the 105^th 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 105^th Congress will continue when the 106^th 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 federal prosecutors.

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 these cases.

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 in 1999?

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 appropriations.

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 program

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 Fund (AFF)?

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 law enforcement.

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 cases.

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.