Four questions for the next attorney general

When Eric Holder leaves the Justice Department for the last time he will likely be the third-longest-serving attorney general in American history.  He will also likely be remembered as one our most controversial chief law enforcement officers.  It is the issue of law enforcement that should be the primary concern of the Senate as President Obama serves up a new attorney general nominee for confirmation in the coming weeks. 

After six years of Congressional hearings, aggressive tactics, public outcry, controversial comments and an undeniable expansion of the Justice Department’s power, here are four questions we would hope that the Senate would have the courage to not only ask, but demand straight answers. 

1.      Do you view yourself as an activist or a jurist?

Eric Holder is a self-described political activist committed to advancing an ideological agenda rather than simply enforcing the laws of the United States.  That approach to running the Justice Department led him to delve into a wide range of issues from marriage and morality to school discipline and the Ferguson shooting.  Holder claims it was his job to “change things.”  A problem occurs, however, when the existing law becomes an inconvenient obstacle to those changes.  The next attorney general must leave his own reform agenda at the door and stick to the letter of the law.  That philosophy will help ensure American freedom and limit the power of a Justice Department often seen as out of control.

2.      Do you believe in separation of powers?

Much like the Obama White House, the Holder Justice Department often appeared to believe that the executive branch could and should operate virtually independently from Congress.  On a number of occasions, Holder refused to provide information to Congress when questioned about the work of his agency.  When he became the first attorney general to be held in contempt of Congress in 2012, he blamed the gun lobby for pressuring Members to vote for the resolution.  Time and time again, Holder chose to make his own rules, selectively enforcing the law along the lines of his own political ideology.  Immigration, drug policy, gun laws and others were either selectively enforced or outright ignored. 

The next attorney general needs to enforce the law, not create it or interpret it.  The president’s nominee must appreciate the importance of Constitutional Separation of Powers and the limited yet important role the Justice Department plays in the legal framework of this country.   

3.      Do you believe in the fundamentals of due process?

Perhaps the most striking and infamous aspects of Holder’s tenure was his implementation of programs that appeared to turn the concepts of due process and innocent until proven guilty on their head.  In the last two years, the Justice Department has taken the lead role in pressuring banks and payment processors to sever relationships with customers from more than two dozen legal industries, even if those customers never committed a crime.  Whether it was gun manufacturers or check cashers, direct marketing businesses, or casinos, the objective was to cleverly squash industries through a deft use of the Department’s investigatory powers and regulatory intimidation. The Holder philosophy was to forego due process before taking action against financial services firms, depriving thousands of law-abiding citizens their access to accounts and capital.  The next Attorney General must prevent the erosion of due process at the hands of government for sake of advancing sweeping regulations.   

4.      Will you end damaging programs like Operation Choke Point?

Earlier this year, the House Oversight and Government Reform Committee made it clear that the controversial program Operation Choke Point was being administered outside the scope of the Justice Department’s authority.  Last week, a half dozen members of the Senate Banking Committee issued a demand to the Justice Department for detailed information about the program. 

Holder and his lieutenants have been asked to disavow the program.  They’ve refused.  Members of Congress in both Houses and of both parties have criticized the tactics employed as a significant expansion of Justice’s power over legal, free market enterprise.  American businesses and consumers are seeing an unprecedented suppression of their rights under Operation Choke Point.  The next attorney general must end extra-legal programs like this and instead commit to fighting for America’s small business owners and consumers who rely on these industries for products, services and jobs. That commitment to protect small businesses and consumers must be steadfast even if it comes at the detriment of the administration’s political agenda.  

The Holder legacy at Justice is troubling and the Senate now has the ability to prevent the further radicalization of what once was one of our nation’s most trusted and integral institutions.  Let’s see if they have the courage to stand firm against additional political activism in the legal system and unbounded regulation by executive fiat.

Wise is senior adviser to the U.S. Consumer Coalition.  Learn more at www.USConsumers.org.