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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  • You certainly do not. But he did. We checked his extensive Disqus commenting history.

  • Mike_in_the_Tundra

    Then I need to explain my comment. I was accused by a commenter of being a racist, black bigot. The commenter said that my commenting history proved it. Feel free to check my comments. I may say stupid things, but I don’t make racist comments.

  • He is deleted and blacklisted.

  • Mike_in_the_Tundra

    I’m black!?!? Wow, thanks for telling me. I had no idea, and neither did my Irish father and Latina mother. BTW – could you list the steps to check someone’s commenting history?

  • dixiedog44

    You imbecile, you and the rest of your racist dumbasses need to pull the plug on your computers!

  • dixiedog44

    Your past commenting history indicates you are a rabid black racist that will lie, bend facts and do whatever you can to advance your racist bigotry.

  • dixiedog44

    Are you shiteing me? A racist bwitch like this is supposed to be leading what? – The racist minority intent upon demolishing what is left of the American society after the Obama administration has done it’s best to demolish our constitution and abolish the protections established to protect our citizens?

  • She’d have to have Obama behind her to accomplish anything substantive, even if the AG is, theoretically at least, a quasi-independent agent. The policy of the Obama administration has been not to go after anyone important.

  • And she could sideline them — stop giving them cases to work on, and they could sit in their offices doing nothing until they finally wised up and went to work for a Wall Street law firm.

  • Mike_in_the_Tundra

    Your past commenting history (visible to everyone) indicates you are a white racist. It’s a shame that “patriot” has become an euphemism for racist.

  • mark_in_toronto

    Everything you mention does need to change. Then again, nobody here expects anything to change. Which says to me that nobody has an answer except to expect things to get worse. Your level of optimism seems to be a virtue these days. Hold on to that.

  • Michael C Stephenson

    Can she get young black men to pull their pants up?

  • Sean

    An excellent article, in that it gives us something to aim for. Our job now is to find ways to push the government into taking these actions.

  • ckg1

    GTFO of here, TROLL. You can’t even be bothered to get the name right; therefore, no one with any sort of brainpower should take you seriously.

  • LieutenantCharlie

    Lunch’s past record indicates she is a Black Racist. Almost as bad as Holder.

  • Bcre8ve

    I’m not holding my breath. Lynch is a product of the revolving door, and started her career with a firm committed to keeping bankers out of jail,

    “Lynch basically got her first six years of white collar criminal defense experience working at the firm that is currently responsible for
    keeping the bankers behind the great subprime mortgage grift out of jail. CG&R is also defending the financial institutions that jacked up interest rates on everything from student loans to home loans out of greedy self-interest. They even defended the agencies that knowingly rated worthless mortgage-backed securities as AAA, setting up millions to lose their retirement savings in a snap”.

    Then she went into government where she negotiated settlements in the Eastern District that kept bankers out of jail, then went back through the door and,

    “Lynch joined Hogan in 2002, she interrupted her own vacation, came to the office without pay and immediately got to work defending an Arthur Andersen partner who had helped cook the books for Enron.

    And then there’s the friends she keeps, “Interestingly enough, Lynch was a partner at Hogan, working alongside John Roberts, the current chief justice of what is the most corporate-friendly Supreme Court in decades” and ” From 2003 to 2005, Lynch sat on the board of the New York Federal Reserve, working directly under future U.S. Treasury secretary Tim Geithner.”

    Her “big accomplishment” seems to be that,

    “Under Lynch’s oversight, the U.S. government allowed HSBC to pay a fine that amounted to five weeks of profit for the bank after they admitted to laundering $800 million for Mexican drug cartels. Lynch was also responsible for Citibank paying a $7 billion settlement– $3.8 billion of which was later billed to U.S. taxpayers – rather than going to jail over misleading millions of investors about mortgage-backed securities that were doomed to fail.”

    I’m not holding my breath that there will be any sort of meaningful departure from Holder’s term. Or the Bush II Justice Department. Or the the Clinton Justice Department. Or the Bush I Justice Department. Or the Reagan Justice Department.

    It is time for actual change, not superficial change.

  • caleb taursus

    The author might be a tad rabid with his dreams on what pardon powers this president or any president truly possesses. First year civics reminds us that state-level crimes are beyond the jurisdiction of federal officials like a president. By the way, do not be surprised to see the rise of the little-noticed 10th amendment to the Constitution, to wit: aka states rights!

  • As much as I’d like to have your optimism, Tom, I won’t be holding my breath. If even one of those things gets addressed even a teeny tiny bit during what will be her <2 years on the job, I will consider it a miracle from Dog. More likely she'll spend 6 months or so getting settled in, eventually consider a few lingering issues left from Eric Holder, and then pass the buck. I just don't see her as the kind of reformer that the Justice Department desperately needs.

  • I’m not convinced that anyone could get a nomination, much less confirmed, if they weren’t Goldman Sach’s hand-picked choice. The system is so corrupt, there isn’t any attempt anymore at even a pretense of legitimacy.

  • They’re going to have to do something, but it wouldn’t surprise me at all to see them bitch, moan, and drag it out long enough for Obama to cave and withdraw Lynch, and nominate someone more palatable to them.

  • To even start to root out corruption, we’d need a New Deal-sized legislative package. I’m not at all convinced the Justice department alone could accomplish much, when judges and prosecutors, all the way to the Supreme Court, are all a party to the corruption.

  • 2karmanot

    Excellent article Tom and I couldn’t agree more with your desires for the return of law, but I feel at this stage of America’s decline law has little to do with justice and everything to do with commodity. The Supreme Court is corrupt and all else follows suit. Despite this view I hope you’ll keep writing on matters of law. Some of us remember when law meant justice. peace

  • GarySFBCN

    How about starting with the basics: Cleaning-up the abuse of voting rights in this country?

  • Bill_Perdue

    Democrats are in continuous despair because the right wing party they continuously get fooled by continues to move right as fast as Obama and the rest of their ‘leadership’ can push them. That’s their problem.

    For those who want change and are tired of playing the victim – vote socialist, vote labor, vote for referendums for a decent minimum wage, write in Chelsea Manning or just sit it out as a protest
    vote. Whatever you do don’t vote for any bankster servants whether they be Democrats, Republicans or Libertarians. They’re tools of the rich. Rich people and their tools are the
    enemy.

  • nicho

    Let’s not forget that the agencies are packed to the rafters with civil service Bush/Cheney left-behinds and Federalist Society agents. Even if Lynch were inclined to do something substantive (which I sincerely doubt), those moles would cut her off at the knees.

  • The_Fixer

    Expecting Loretta Lynch to do any of these things might be a tad unrealistic. Even if she tried any of it, there are plenty of people to interfere with or outright scuttle any of her efforts.

    Even if she were so inclined (and that is a big IF), there has to be a big government commitment behind such efforts. The commercial world has infiltrated the government to the point where a large investigation could easily get stymied. That’s an awful lot to expect from one person when you have most of the rest of the government working against you, no matter how inclined that person is to do such a thing. Justice Department power is all fine and good in theory, but it gets pretty impotent when prosecutors are tasked with prosecuting their former coworkers at their former place of employment.

    It would take a concerted effort on the part of all of the government to root out the corruption not only in the business world, but in the government itself. After all, how is a corrupt government to root out corruption in the business world when the two are so well-linked?

    I fear that the kind of change that is required will only come after the worker bees become tired of getting screwed and there is massive rioting. Which is a ugly state of affairs, to say the least.

    Sadly, some things have to be torn down in order to be rebuilt. I hope it doesn’t happen, but we seem to be headed in that direction if there isn’t an honest government effort to clean things up.

  • S1AMER

    Yeah, yeah, she might do some or even many of the things on your list — assuming she gets approved by the GOP-controlled Senate next year. Which is a very, very, very big assumption.

  • caphillprof

    Because Loretta Lynch is a big friend of Wall Street. She is Goldman Sach’s candidate for AG; the fox in the hen house. She could have prosecuted the banksters when she was the U.S. District Attorney for the Eastern District of New York.

    e.g.
    http://www.salon.com/2014/11/10/loretta_lynchs_wall_street_friends_what_you_should_know_about_ag_nominees_finance_past/

    http://live.huffingtonpost.com/r/archive/segment/54611aa802a760ce3000060b

    Mr. Wellington would do well to consider the facts before fantasizing.

  • Indigo

    The banksters are exempt from prosecution because ___________ (fill in the blank) so the wheel keeps on turning in the same old rut. No change.

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