McCarthy: Remember ‘No Controlling Legal Authority’?

Andrew C. McCarthy
Contributing Editor
August 26, 2009

Remember ‘No Controlling Legal Authority’? [link added by CAJ]

The CIA probe shows once more that the law does not control this attorney general.

It was a dozen years ago when Eric Holder began his first tour of duty at the Justice Department, as deputy attorney general. At the time, DOJ had a major hot potato on its hands: Al Gore, the vice president of the United States, had engaged in a clear, black-and-white felony violation of campaign-finance laws.

Gore made phone calls soliciting campaign contributions from his White House office. As Charles Krauthammer wrote at the time, “Section 607 of Title 18 of the U.S. Criminal Code states very clearly there is to be no solicitation of campaign funds in federal government offices. Gore broke the law as written, as understood and as practiced.” Violations of Section 607 called for a penalty of up to three years in prison.

Gore had no real defense, so he trotted out a phony one: There was, he infamously claimed, “no controlling legal authority.” What he meant was that there weren’t many court decisions interpreting the meaning of Section 607. It was laughable. The rule of thumb for judges, as for the rest of us, is that laws are construed to mean what they say, the ordinary, everyday understanding of the words. Most statutes are not 1,000 pages of health-care arcana. When they are succinct and clear, we don’t need judicial opinions to divine their meaning. No solicitation of campaign funds in federal government offices means: No solicitation of campaign funds in federal government offices.

But Gore was the heir apparent to Pres. Bill Clinton, and the deputy attorney general was very much hoping to become the attorney general in a Gore administration. So Holder found it within himself to oppose the appointment of a prosecutor. Gore was in the clear.

The CIA did not make out so well. Holder, having finally become attorney general eight years later than planned, has just appointed a prosecutor to investigate the agency’s interrogators, which really means to investigate the Bush administration’s interrogation practices. Thus does Holder begin delivering on the “reckoning” he promised the hard Left as an Obama political spokesman during the 2008 campaign. The attorney general has plunged into this crassly partisan adventure even though, this time around, the controlling legal authority says there is no case and, therefore, no ethical basis for conducting an investigation.

McCarthy’s article continues at National Review.

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