With His Confirmation Pending, Eric Holder Faces a Multitude of Constitutional Challenges.

With Eric Holder’s confirmation as Attorney General expected to come today, Department of Justice policies and procedures will find their way back into the collective conversation as both Congress and the chattering class attempt to discern just how the Obama Administration will differ from the Bush Administration on such controversial topics as detainee interrogations and domestic surveillance.  This is an important and necessary conversation, but to some degree the Roberts’ Court may have rendered the end result moot on at least one of these issues.  That issue is what the Department can and will do with unlawfully collected evidence concerning those who remain overseas in US custody.  In what could be characterized as an act of jurisprudential offense to anticipated policy changes by the Obama Administration, the 5-4 decision in Herring v. United States may prove that undoing the Constitutional abuses of the Bush Administration will be far more challenging than closing overseas detention facilities and changing personnel.

For the first time since Mapp v. Ohio, the Supreme Court established that unlawful police conduct should not require the suppression of evidence in criminal trials.  The Court reasoned that “isolated carelessness”, in this case negligent recordkeeping that led to a warrant being issued on false statements by police, was not enough to trigger the exclusionary rule.  According to Chief Justice Roberts, to trigger the exclusionary rule the misconduct must be “sufficiently deliberate” so that excluding evidence would have the proper effect of deterring future misconduct.  This is a huge leap away from the traditional application of the exclusionary rule and begs the question of what does Holder’s Justice Department do with all the evidence collected through questionable-at-best techniques under the Bush Administration?

Of course, that question was there all along, but before Herring there was at least the possibility that sufficient Constitutional protections remained to allow the Obama Administration a means to do the right thing politically and lawfully.  That is, they could point to the exclusionary rule as a proper means of forgoing charging and prosecuting those individuals that remain in legal limbo, neither charged nor in the process of release, while saving political face.  It would appear that the Court under Robert’s direction took that option off the table.

The Attorney General is now left with the ultimate Scylla and Charybdis situation.  Holder faces the possibility that his Department will be arguing to introduce evidence collected in a manner deemed by the Obama Administration as afoul of the law or forgoing prosecutions so as to maintain a uniform voice on the use of torture and respect for civil liberties.  How Holder’s Justice Department tackles these issues will go a long way in telling just how serious the Obama Administration is in setting this country back on a path of Constitutional clarity.  Holder is on record that “no one is above the law” and his willingness to explore investigating and prosecuting Bush Administration officials may be one reason his confirmation was delayed until today. 

But the real test will be moving forward.  Will the Department of Justice acquiesce  in this recent rollback of Constitutional protections, or will it forge ahead in it’s oath to uphold and protect those rights that until recently the Executive viewed as simply aspirational?  The next few months will provide lots of insight into just how different the Department of Justice will be, and whether or not that difference is enough to rectify the legacy of the Bush Administration.