How Loretta Lynch could save the country, the Obama administration, and the Democratic Party

For six frustrating years, Obama has tried to be Legislator in Chief focusing his energy almost exclusively on the areas where his enemies could frustrate him, while ignoring the vast Executive Powers of the Presidency.

But perhaps with his discovery of his powers over immigration, and a new Attorney General coming in with the nomination of Loretta Lynch to succeed outing AG Eric Holder, the President might unleash the awesome power of the Justice Department’s prosecutorial discretion.

As a practical matter, the law is what the Justice Department decides to prosecute. Anti-trust law wasn’t enforced for decades after its passage, and has languished again since the eighties because of the decisions inside the Department. One of the biggest disappointments for progressives has been Eric Holder’s continuation and extension of the Bush Justice Department – from not bringing a single criminal prosecution of a major financial institution, to extending and expanding the national security state.

But if his replacement by AG Lynch decided to use the Department’s full power, she could:

Criminally Prosecute the Banksters

Attorney General nominee Loretta Lynch.

Attorney General nominee Loretta Lynch.

Under Eric Holder the Department has had a “Too Big to Prosecute” policy regarding bringing criminal charges against large financial institutions no matter what they have done. Before leaving the Clinton Justice Dept for a Wall St. law firm, AG Holder actually wrote a memo giving the intellectual underpinnings for that policy. Perhaps with him gone, misdeeds by large financial institutions can be criminal again.

Although the statute of limitations has run out on a lot of the crimes that led to the financial collapse; and because they weren’t prosecuted those institutions have continued their patterns of criminality. Additionally, because they have not even complied with the “sin no more” clauses of their “pay a fine, but admit no wrongdoing” wrist-slap settlements, they have reopened themselves to prosecution.

Grant Pardons

The Pardon Power is explicitly granted to the President by the Constitution, and is unreviewable by Congress or the Courts. So why does only George Washington (who as the first President didn’t have any backlog of Federal prisoners to work with), and the two Presidents who died in the first few months after inauguration, have a worse record than President Obama in pardoning prisoners and commuting sentences?

The President has pardoned as many Thanksgiving Turkeys as drug offenders. Whether it is because Eric Holder was traumatized by his involvement in the last-minute Clinton pardon scandal, or simply because of the inexplicable decision to leave a Bush appointee in charge of the pardon office, hardly matters now.

Holder and the Administration have spoken eloquently on the racist injustice of sentencing crack users significantly more harshly than other cocaine users. So why not commute crack sentences to what they would have been as cocaine sentences? And why not go further and release the non-violent drug possession War on Drug POWs?

The Pardon Power could also be used to restore voting rights for some of the 5.85 million felons who weren’t able to vote in 2012. With the racist nature of the criminal justice system, 8% of African Americans are disenfranchised felons – and this is one area of voter suppression that the President could undo with the famed stroke of a pen.

The War on Drugs

At a minimum, the Justice Department could stop prosecuting and interfering in the states that are legalizing marijuana.

Ideally, the Department would adopt the “Barack Obama in college” standard — had the President smoked in joints on a street corner as opposed to his Columbia dorm room, he might have served in prison instead of the White House. They could stop prosecuting and imprisoning kids doing nothing more than the President did at their age – and they could take those prosecutorial and investigatory resources and re-purpose them for going after financial crimes they haven’t been prosecuting.

Anti-Trust

For the first 80 years of anti-trust prosecution, the Justice Department saw monopolies as “bad,” and stepped in to prevent one or two large companies from dominating an industry.

But under Ronald Reagan, the Department adopted conservative economic reasoning that “bigger” was more efficient, and more efficient would ultimately benefit consumers. So monopolies weren’t broken up, too many mergers were permitted, banks grew too big to fail, only a small number of media companies control everything we see, and there is monopoly control throughout the economy.

But this has all happened because of internal Justice Department policy and practice – the anti-trust laws are still on the books, we just need a Justice Department willing to enforce them.

Union Organizing

Laws against union busting, and interfering in union organizing drives, are so few and laxly enforced that an entire union busting industry has grown up. They even have seminars instructing corporate HR departments in which laws it’s profitable to violate even if you get caught.

Although improving these laws, or even updating depression-era penalty levels, is never going to happen in Congress, there is no reason that Justice Department can’t treat this whole industry for what it is – a criminal conspiracy.

It is no different than if there were courses on “how to commit murder with impunity” or “cheat on your taxes.” There are strict laws and punishment for criminal conspiracy, and possibly this could even come under RICO – which would really unleash the full power of the Department.

Even one or two prosecutions and jail sentences for conspiracy to bust unions would change the whole balance of power between unions and corporations.

Of course, even though these things could happen, it’s not likely. Although Loretta Lynch isn’t Eric Holder, and certainly will undertake some finical prosecutions as window dressing on the Administration’s record, if nothing else – she currently sits on the committee charged with setting Department policy, so we probably shouldn’t expect a radical break with the policies she has been helping set.

Let’s hope she surprises us.


Tom Wellington is a longtime Democratic campaign operative based in Washington, DC.

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