Fox News is blasting Attorney General Eric Holder for allegedly telling state attorneys general that they don't have to enforce their states' gay marriage bans. In reality, Holder merely instructed the attorneys general that they don't have to defend such bans in court if they deem the laws unconstitutional.
It's unclear if Fox is misreading or simply willfully distorting what Holder actually said, but either way, the network is wrong.
Addressing the National Association of Attorneys General on February 25, Holder stated that if state attorneys general conclude that their gay marriage bans violate core constitutional principles like equal protection under the law, they're not obligated to defend those bans in court. Holder also explicitly stated that attorneys general shouldn't base such decisions on "policy or political disagreements" and should stick to legal analysis of the bans' constitutionality.
Holder's guidance doesn't mean that marriage equality bans won't be enforced while they're still in effect. However, an attorney general does have the option of refusing to defend laws that he or she believes won't survive judicial scrutiny. In such circumstances, other parties may then intervene to defend a law on the state's behalf. That's precisely what's currently happening in the court battle over Kentucky's same-sex marriage ban.
This isn't Fox News' first baseless attack on Holder when it comes to the defense of anti-gay marriage laws. It was only three years ago that Megyn Kelly asserted Holder had decided not to enforce the federal Defense of Marriage Act (DOMA) after the Obama administration dropped its defense of the law in court. But the administration kept enforcing DOMA as the law of the land until the Supreme Court struck down its core provision last summer.
Three years later, it appears that Fox remains unable - or unwilling - to get its facts right.
Right-wing media are already spinning falsehoods and fear-mongering about the federal government's administrative decision to recognize federal marriage benefits for same-sex couples who were married in Utah.
On December 20, a federal judge ruled that Utah's ban on same-sex marriage was unconstitutional. Shortly thereafter, state officials began issuing marriage licenses to same-sex couples. However, on January 6, the Supreme Court of the United States temporarily blocked the ruling as an appeal progressed -- halting the issuance of marriage licenses and causing a great deal of confusion for those couples who had already exchanged vows under state law.
In light of that confusion, Attorney General Eric Holder announced on January 10 that for purposes of federal law, legally married couples affected by the ruling would in fact be eligible to apply for federal marriage benefits while the litigation worked its way through the courts. As Holder observed, one of the core holdings of the landmark marriage equality decision of United States v. Windsor is that the federal government is prohibited from discriminating against lawfully performed same-sex marriages.
Nevertheless, right-wing media were quick to overreact to Holder's announcement, with Rush Limbaugh accusing him of acting like "Stalinists." National Review Online joined Limbaugh in condemning Holder, calling it another example of the "lawlessness of the Obama administration." From The Rush Limbaugh Show:
LIMBAUGH: So the states, when you've got people like Holder and Obama in office, it doesn't matter what governors do, it doesn't matter what the people of the state want. What Holder and Obama want is what's going to happen. Holder does not have this kind of power or authority, but he does if nobody is going to stop him or challenge him.
So the law doesn't mean anything. Existing law doesn't mean anything if changes to it are being contemplated, and so the people of Utah -- same-sex marriage, yes, no, are now victims, and the federal government is just going to ride in and wave the powerful magic wand and say, "This is the way it's gonna be." So who needs governors? You have the attorney general engaging in executive actions, executive orders, just as if Obama were to do it. Stalinists, folks.
There is nothing lawless about the federal government making a determination about the disbursement of federal benefits. Doing so does not usurp the state's authority to recognize or acknowledge certain relationships for the purposes of state benefits. Holder's statement today does not require Utah or any other state to recognize same-sex marriages. Rather, it provides some certainty to couples whose marriages were legal under state law at the time they were performed. Among others, this legal opinion has been offered by Utah Attorney General Sean Reyes, who informed state officials that "marriages between persons of the same sex were recognized in the state of Utah between the dates of December 20, 2013 until the stay on January 6, 2014. Based on our analysis of Utah law, the marriages were recognized at the time the ceremony was completed."
Fox News continued to attack the Department of Justice (DOJ) attorney selected to investigate the IRS targeting scandal because she has donated money to President Obama's past campaigns, ignoring the fact that it is illegal for DOJ to take such donations into consideration in assigning investigators.
Last year, Obama announced an investigation into claims that the IRS was unfairly targeting conservative non-profit groups. Barbara Bosserman, senior legal counsel of the DOJ's civil rights division, was selected to head up the investigation. Despite Bosserman's extensive qualifications, right-wing media have been quick to call her objectivity into question based on the unremarkable fact that she is one of the millions of Americans who contribute to Democratic political candidates. Right-wing media also ignored the fact that it would be illegal for the DOJ to take her political affiliations into consideration when managing her professional advancement.
In a January 10 segment on Fox & Friends, Fox contributor and attorney Peter Johnson, Jr. joined host Steve Doocy to complain that, regardless of the outcome, the DOJ's investigation of the IRS is "tainted" because of Bosserman's campaign contributions.
JOHNSON: The Justice Department says, don't look at those campaign contributions. Let us look at what those campaign contributions are, totaling about $6,000.
So Ms. Bosserman, who I'm sure is a fine lawyer, is tainted by these contributions. Tainted by these contributions. And so we expect her to put all of that aside, put all her political procliviites aside, and say "I'm going to be fair now, to this. I'm for the president, I've given repeatedly, but I'm going to give these poor tea party people -- who have been screwed over, big time -- a fair shake."
DOOCY: You know, this would be like -- with the Chris Christie thing, a US Attorney is looking into it, who is appointed by Barack Obama -- this would be like Chris Christie appointing somebody to investigate the bridge thing.
JOHNSON: You don't have to go to law school, all you have to have is a sense of fairness and justice, and ethics, and a sense of Americanism. Now the DOJ says, "No it's OK, we can do this. A spokeswoman said, "it is contrary to department policy and a prohibited personnel practice under federal law to consider the political affiliation of career employees or other non-merit factors in making personnel decisions." So what they're saying is, that person could give $15,000, $20,000 --
DOOCY: A million!
Johnson and Doocy quickly dismiss the DOJ's explanation that it would be a violation of federal law for the agency to remove Bosserman from the investigation based on her political leanings. But their skepticism of DOJ is completely unfounded, and it is their suggestion of discriminating against Bosserman that is both improper and illegal.
A Fox News host warmly welcomed former Republican Congressman Allen West to "the team" after he said that Attorney General Eric Holder is a bigger threat to Americans than the leader of Al Qaeda.
In a June 5 fundraising email, West claimed that Attorney General Holder was a "bigger threat to our Republic" than terrorist Ayman al-Zawahiri, a former deputy of Osama bin Laden, who took control of al Qaeda after bin Laden's death. West also used a quote from the ancient philosopher Cicero to imply that Holder was guilty of treason.
The June 7 edition of Fox & Friends gave West a platform to expand on his smear. West answered co-host Brian Kilmeade's question about why he claimed Holder was as dangerous as al-Zawahiri by pointing to Cicero's claim that a nation "cannot survive treason from within" and "[a] murderer is less to fear, the traitor is the plague." West charged Holder with having "the arrogance of officialdom," and claimed that "When the rule makers are not adhering to the rule of law, then the very foundations of this great nation will start to crumble."
Co-host Brian Kilmeade took a moment at the end of the segment to thank West for his input and welcome him to the Fox News team:
KILMEADE: Lt. Col. Allen West, always swimming against the tide, telling us how he feels. It's great to have you on board and a member of the team.
Fox & Friends teased West's appearance by airing a graphic showing Holder and al-Zawahiri, which asked "who's the bigger threat?"
Reporting that House Republicans are investigating whether Attorney General Eric Holder lied to Congress during his recent testimony about Justice Department seizures of communications records in connection with a national security leak investigation, CNN's Dana Bash misstated key facts of the controversy. In so doing, CNN helped bolster the hollow claims of Republicans -- wildly hyped by Fox News -- that Holder may have perjured himself.
On May 15, Holder appeared before Congress to answer questions about the revelation that the Department of Justice had seized phones records from the Associated Press covering a two-month period and had done so without notifying the news organization. The seizure was part of an investigation of the leak of classified information published by the wire service.
During the hearing, Holder was asked if prosecutors could charge journalists with a crime if they published leaked material.
Holder said that was a bad idea: "With regard to the potential prosecution of the press for the disclosure of material - that is not something I've ever been involved in, heard of, would think would be wise policy." [Emphasis added.]
Since then, it was revealed that Fox News' James Rosen had been described as "at the very least, either as an aider, abettor and/or co-conspirator" in a 2010 FBI affidavit in support of warrant seeking permission to look through the reporter's phone records as well as the contents of his personal email account. The FBI was looking for correspondences with then-State Department security adviser Stephen Jin-Woo Kim, who has been charged with leaking classified information to Rosen about North Korea in 2009. Holder approved of the warrant request. (Rosen was never charged with a crime.)
Using his May 15 testimony, Republicans and Fox hosts have pounced, claiming Holder contradicted himself.
As CNN explained it (emphasis added):
Though he testified in a May 15 Congressional hearing that he's "never heard of" the press being potentially charged for obtaining leaked material, it has since been reported that he signed off on the Justice Department's decision to seek a search warrant in 2010 for Fox News reporter James Rosen's private e-mails as part of a leak probe.
That was CNN's first mistake: In the Congressional testimony cited, Holder did not address the idea of charging reporters with a crime for "obtaining leaked material," as CNN suggested in its report. Instead, Holder said he had never been involved with potentially charging a reporter for "the disclosure of material." (i.e. Obtaining and disclosing materials are two different acts.)
From the March 21 edition of Fox News' America Live:
Another chapter in the right-wing media's campaign against Attorney General Eric Holder was launched yesterday as they attacked Holder's efforts to discourage people from violating the District Of Columbia's gun laws as detailed in a speech Holder gave in 1995. Not surprisingly the 17-year-old speech about trying to convince young men not to illegally carry guns instantly became the latest excuse to use the ATF's failed Operation Fast and Furious to attack Holder.
Following Breitbart.com's release of a short portion of Holder's speech, Glenn Beck's The Blaze, The Daily Caller and Breitbart.com's own Mary Chastain all pushed the highly tenuous connection to Operation Fast and Furious. As Media Matters noted this morning, Holder's speech addressed his role of U.S. Attorney for the District of Columbia and efforts to teach young people in the city that "it's not hip to carry a gun anymore," an action that was illegal in the District Of Columbia at the time.
The Blaze opened with the suggestion that "New video of Eric Holder from 1995 has surfaced, and it may put "Fast and Furious" in a much broader perspective." The Daily Caller similarly suggested a connection saying "The revelation that Holder wanted to "brainwash" people into being "anti-gun" appears to be supported by what Congress and the American people have learned about Operation Fast and Furious." Breitbart.com's Chastain asserted that Fast and Furious was about providing Holder with "material" for the "anti-gun curriculum" described in this 1995 speech.
Despite a tremendous amount of hand waving, these attacks fail to personally link Holder to the initiation or approval of the controversial tactics used in Fast and Furious. As accurately noted by Charlie Savage in his December New York Times profile of Holder, "no documents or testimony" have disproved Holder's statement that he didn't know about Fast and Furious as it was underway.
Further, Bush-era investigations featured similar 'gun walking' tactics as those used in Fast and Furious. Rather then suggesting those investigations were gun control plots, Fox News and right-wing media outlets rushed to defend the Bush-era programs. The Democratic staff of the House Oversight Committee released a report in January documenting the three similar operations conducted under the Bush administration out of the ATF's Arizona offices.
Neither the Bush-era gun walking investigations or the dearth of evidence regarding Holder's purported connections to the tactics used in Fast and Furious have slowed down the right-wing media's increasingly nonsensical attacks against Holder.
In their frenzy to take down Attorney General Eric Holder, right wing media pundits have started comparing the brewing Fast and Furious scandal, in which a failed ATF operation allowed guns to "walk" to Mexico in order to track their delivery into the hands of drug cartels, to Ronald Reagan's Iran-Contra scandal in the 1980s.
Naturally, the conservatives making this comparison believe Fast and Furious is much worse than Reagan's scandal, in which the Republican hero trafficked arms into the hands of a tyrannical Iranian government, negotiated with Hezbollah terrorists and funneled money and military equipment into the hands of violent revolutionaries in America's own backyard.
Specifically, Fox News hosts are pushing the unlikely argument that Fast and Furious is worse than Iran-Contra because, as they put it, "nobody died" as a result of the latter scandal. The assertion -- that the Reagan administration's felonious dealings with terrorists and terror-sponsoring nations didn't lead to a single casualty -- is absurd to anyone with even the most elementary understanding of what Iran-Contra was or to anyone with access to the internet.
Attorney General Eric Holder hadn't even stepped away from the podium of his press conference about an alleged Iranian terror plot before right-wing radio host Rush Limbaugh, CNN contributor Dana Loesch, and Fox News contributor Michelle Malkin began politicizing the announcement.
Holder and FBI Director Robert Mueller took to the microphone this afternoon to deliver details about an alleged terror plot in which, according to a Justice Department press release, two individuals were "directed by elements of the Iranian government to murder the Saudi Ambassador to the United States with explosives while the Ambassador was in the United States." One of the plotters allegedly attempted to hire what he thought were members of a Mexican drug cartel to carry out the murder.
Limbaugh started smearing the event before the conference even began, telling his audience that Holder's announcement was "a great way to sidestep the fact that he's being delivered a subpoena on Fast and Furious," the failed ATF operation that is currently under DOJ and congressional investigation. Limbaugh added that the announcement was "all about" trying to give Holder "something to distract everybody away from Fast and Furious."
The press conference ended at 2:29 p.m. EST, but by 2:22 p.m., Loesch, too, was already politicizing Holder's comments on Twitter, trying to tie the alleged terrorists to Fast and Furious.
Sadly, this kind of rapid-reaction politicization of grave, apolitical events is well-worn territory for commenters on the right. Right-wing media rushed to attack the Obama administration in 2010 after an attempted New York City car bombing and reports of an attempted shoe bombing on a domestic flight over Denver. And in January 2010, Limbaugh said that President Obama wanted to use the devastating Haiti earthquake to boost credibility with the "light-skinned and dark-skinned black community in this country."
Thus far, the Freedom Of Information Act lawsuit that PajamasMedia.com filed against the U.S. Department of Justice has resulted in the disclosure of dozens of DOJ employee resumes and nine largely ignored columns by Hans von Spakovsky, J. Christian Adams and Richard Pollock.
"Every Single One" is their ongoing series of posts that tediously tick off the prior work experiences of DOJ lawyers followed by commentary declaring them unabashed left-wing radicals. Ostensibly, the point of the exercise is to establish a case that the administration of President Obama is engaging in the same kind of politicized hiring at DOJ that President Bush was found to have done. Their work has been an utter failure.
Von Spakovsky et al have provided no evidence of politicized hiring practices and have been content to make the lazy claim that, given "every single one" of the latest DOJ hires is liberal, improper procedures must have been used. Unfortunately, they've failed even at this. In order to make their case that every DOJ hire is liberal, they've concocted a definition of liberal so broad that even Pollack himself likely would have to be labeled as a radical leftist.
Hans von Spakovsky is continuing the feeble Pajamas Media (PJM) campaign against Attorney General Eric Holder and the U.S. Department of Justice's Civil Rights Division with a fourth column in a series highlighting the allegedly "liberal" resumes of individuals hired by DOJ. PJM's oft-repeated (and just as often unsupported) claim is that Holder and the DOJ are engaged in "politicized hiring" that is "nearly unprecedented in scope and significantly eclipses anything the Bush administration was even accused of doing."
Today, Spakovsky spends five pages tirelessly reciting what he believes are the liberal affiliations of new career attorneys at the Civil Rights Division's Special Litigation Section. He then concludes:
No one is suggesting any of these individuals' activist backgrounds disqualifies them from working as attorneys in the Civil Rights Division. The point is that such liberal bona fides appear to be a prerequisite for employment in the Division -- there is no other explanation for this. These resumes are an example of a legal doctrine that law students learn in their first year: res ipsa loquitur -- "the thing speaks for itself."
Res ipsa? Perhaps Spakovsky has forgotten what he learned in his first year, but res ipsa loquitur is a common law negligence doctrine which presumes that a harmful act could only have occurred as a result of a defendant's carelessness, even if the plaintiff has no direct proof of the defendant's carelessness (one of the prototypical cases is a scalpel left in someone's body while the patient was under general anesthesia).
But Spakovsky isn't accusing the DOJ of negligently filling their rosters with liberals. He's alleging that they purposefully considered a candidate's liberal credentials as a precondition for hiring them into the Civil Rights Division. In his words, "None of this is an accident."
These days, Attorney General Eric Holder can't seem to scratch his nose without eliciting complaints and criticisms from media critics on the right. As the Public Employee Enemy #1 of anti-Obama conservatives, he's faced false allegations of racism, cover-ups and partisanship. Their latest charge? That he's recreating the historic subprime mortgage crisis that began the nation's economic collapse.
Last weekend, Paul Sperry at Investor's Business Daily (IBD) wrote a lengthy, context-free article condemning the Justice Department's investigations of banks whose lending policies discriminate against minorities. According to the DOJ's Civil Rights Division, the department received more referrals from regulatory agencies "of matters involving a possible pattern or practice of discrimination" in 2010 than it's received in at least twenty years. The DOJ investigations into the potential violations of the Equal Credit Opportunity Act and Fair Housing Act by several banks have led to a number of settlements.
Sperry's IBD article is written in a way that inaccurately suggests the terms of the DOJ/bank settlements are both inherently dangerous (because they will lead to another housing crisis) and unfair (because banks are being strong-armed by the power of the federal government and the threat of being labeled racist into offering risky lines of credit). Along the way, the reporter ignores the facts and the law. Most striking is the article's tacit implication that being forced to serve minorities is inherently equivalent to being forced to engage in unwise lending practices.
The first misleading premise pushed by Sperry is that the Justice Department has asked banks to "relax their mortgage underwriting standards" and that this type of "government-imposed lax underwriting" was the cause of the housing boom and subsequently meltdown. From IBD:
In what could be a repeat of the easy-lending cycle that led to the housing crisis, the Justice Department has asked several banks to relax their mortgage underwriting standards and approve loans for minorities with poor credit as part of a new crackdown on alleged discrimination, according to court documents reviewed by IBD. [...]
Such efforts risk recreating the government-imposed lax underwriting that led to the housing boom and bust, critics fear.
First, DOJ settlements explicitly state that banks are not obligated to lend to unqualified individuals, only that they must begin providing services to minority communities they've allegedly ignored. As their agreement with Midwest BankCentre states, banks are not required to "make any unsafe or unsound loan" and must offer services only to potential customers "whose credit history does not present an unacceptably high risk to the Bank or indicate a history of fraudulent transactions."
Second, regardless of the agreements between DOJ and the banks, Sperry's fundamental argument -- that government affordable housing initiatives caused the financial crisis -- follows a years-old conservative myth that is not supported by the facts.
Articles by The Washington Times and CNN.com reported that Attorney General-designate Eric Holder has come under criticism from Senate Republicans and that Holder's confirmation hearings will be "bruising" and "grueling," respectively, without noting that Republican Sen. Orrin Hatch, a senior member of the Senate Judiciary Committee, has reportedly said he will support Holder's confirmation.
An AP article on "the back-and-forth over when to hold a confirmation hearing for Eric Holder" quoted several Republican senators -- including Ranking Senate Judiciary Committee Republican Arlen Specter -- objecting to chairman Patrick Leahy's scheduling of the hearing for January 8. But the AP did not report Leahy's response to their objections, including his noting that previous hearings for attorney general nominees have been held in less time than Holder's scheduled hearing and, as with his plans for Holder's hearing, have been held pre-inauguration.