Video: Trey Gowdy vs. Eric Holder on prosecutorial discretion and mandatory minimum sentences

posted at 8:01 pm on April 8, 2014 by Allahpundit

Via the Right Scoop, one last goodie from Holder’s huddle with the House this morning. To properly enjoy it, though, first you need to read this short but valuable primer from Ken White of Popehat published last August on the Holder memo that Gowdy’s describing. The Supreme Court ruled last year that if a federal prosecutor wants to slap a defendant with a mandatory minimum sentence, he needs to take care to include every fact that would trigger that sentence under federal law in the charging document. If you omit even a single relevant fact — such as, say, the amount of drugs that the defendant was caught with — then the judge is no longer bound by the mandatory minimum and can sentence the defendant to less time. That gives the prosecutor more discretion than he used to have. If, in his opinion, the defendant deserves some punishment but not as much as the mandatory minimum would require, he can simply omit the detail about the amount of drugs and thus empower the judge to hand down something more lenient. That’s what Holder’s memo is all about, instructing U.S. Attorneys not to specify the amount under certain circumstances (e.g., the defendant is nonviolent, not a member of a cartel, etc) so that the judge can ignore the mandatory minimum.

What makes this trickier than Obama’s usual invocations of executive power is that the DOJ does, in fact, have loads of discretion in deciding whom to charge and what to charge. All prosecutors do; Gowdy, a former prosecutor himself, happily concedes the point. This isn’t an example, a la the employer mandate, of O ignoring a statute in every instance simply because it’s politically inconvenient to him. It’s a determination that a particular class of defendants warrants a lighter sentence than federal guidelines require because of the unique circumstances of their cases. The U.S. Attorney could, in fact, refuse to charge those defendants at all even if there’s no doubt that they’re guilty. Gowdy’s fine with all that in principle. His problem is that federal law already allows for a few exceptions to mandatory minimum sentences (again, see Ken’s post) but Holder’s memo goes beyond it, essentially expanding the law unilaterally. The memo also specifically advocates withholding information from the court (the amount of drugs the defendant was caught with) in the name of securing a more just sentence. The core of this debate, then, is how much leeway a prosecutor should have in relaxing a democratically enacted criminal statute, even if his intentions are good and he’s trying to show mercy towards the defendant. Should he follow the law to the letter if it produces an unjust result or should he look the other way at it to obtain a more just one? Pick a side, because given the attention that mandatory minimums have gotten on both the left and the right lately, with Rand Paul and George Will emerging to criticize “sledgehammer justice,” the issue will only get hotter before 2016.


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Obama is King…

He will do what he wants to…

Electrongod on April 8, 2014 at 8:07 PM

Congress should repeal the mandatory minimums. Congress should. Congress.

Congress should fix our immigration laws. Congress should. Congress.

Congress should fix, delay, or repeal the ACA. Congress should. Congress.

The president should abide by his oath of office, and see that his minions “faithfully execute” these laws – while introducing legislation for Congress to change these things.

Well, that’s what “should” be done.

We all know what will be done.

notropis on April 8, 2014 at 8:09 PM

Gowdy2016!!!!

jffree1 on April 8, 2014 at 8:11 PM

So if the prosecutor likes you, say you’re a reliable Fascist-Democrat voter, he’ll be more lenient but if you’re a Koch brother . . .

rbj on April 8, 2014 at 8:13 PM

Any candidate that wants my vote in ’16 needs to be adamant that people like Holder need to be investigated and punished to the full extent of the law. No more sweeping the previous administration’s wrong doing aside.

Flange on April 8, 2014 at 8:15 PM

It’s a determination that a particular class of defendants warrants a lighter sentence than federal guidelines require

and for Hussein , those “particular class of defendants” which warrant to go free with a kiss on their ring are ?
Mexican drug cartels , murderers and rapists ?
Muslim terrorists ?
Marxist goons ? Black muslims who kill white babies ?
Do we still need any more proof that Hussein is an enemy of this country ?

burrata on April 8, 2014 at 8:16 PM

What makes this trickier than Obama’s usual invocations of executive power is that the DOJ does, in fact, have loads of discretion in deciding whom to charge and what to charge.

Allahpundit on April 8, 2014 at 8:01 PM

.
Yesssssssssssssssssss . . . . . . . . . . . . . . . . . . the DOJ certainly does “have loads of discretion in deciding whom to charge and what to charge” . . . . . and THIS DOJ has made more “discretionary” decisions than any other in my lifetime.

listens2glenn on April 8, 2014 at 8:16 PM

Gowdy is great, but I wish that he would get a different hairstyle that would make him look better on TV. I want him to have the maximum amount of influence and impact and some people are unduly influenced by appearance.

mydh12 on April 8, 2014 at 8:17 PM

So if the prosecutor likes you, say you’re a reliable Fascist-Democrat voter, he’ll be more lenient but if you’re a Koch brother . . .

rbj on April 8, 2014 at 8:13 PM

.
Not “lenient”, he’ll just use more “discretionary prowess” in deciding how to proceed.

listens2glenn on April 8, 2014 at 8:18 PM

Gowdy: “You don’t have discretion as to whether to follow the law or not”.
Holder: “Well, no, I would disagree…”

That was the United States Attorney General who said that, shamelessly, on video tape, as if it were the most natural thing in the world.

V7_Sport on April 8, 2014 at 8:19 PM

Will a troll log on and explain why the people who run guns and launder money for foreign drug cartels and terrorists feel the need to raid a guitar factory ?

burrata on April 8, 2014 at 8:22 PM

Any candidate that wants my vote in ’16 needs to be adamant that people like Holder need to be investigated and punished to the full extent of the law. No more sweeping the previous administration’s wrong doing aside.

Flange on April 8, 2014 at 8:15 PM

Absolutely not. You head down that road, the pursuit of political power moves from trying to implement policy, to either punish your political enemies, or avoid being punished by your political enemies, and the costs to the electorate, society, our economy, and the Constitution be damned.

It’s one of the distasteful things about a republic. But it is necessary to keep that republic…

JohnGalt23 on April 8, 2014 at 8:23 PM

Hey, who voted for Eric Holder? Lindsey Graham.

SouthernGent on April 8, 2014 at 8:24 PM

listens2glenn on April 8, 2014 at 8:16 PM

I think that was part of Gowdy’s point. Instead of using that discretion to distort the law why not just decline to prosecute and let the states handle it. But Holder’s not about to give any authority back to the states when he can pull an Obama and just ignore the parts he doesn’t like. You know… like a royal decree. He thinks he is just an extension of O and no one else has any say about it.

jffree1 on April 8, 2014 at 8:27 PM

It’s one of the distasteful things about a republic. But it is necessary to keep that republic…

JohnGalt23 on April 8, 2014 at 8:23 PM

If you allow the politicians and bureaucrats freedom to do whatever they want, you don’t have a republic either. Why would those in charge ever follow the rules if they don’t apply to them?

Flange on April 8, 2014 at 8:28 PM

It’s one of the distasteful things about a republic. But it is necessary to keep that republic…

JohnGalt23 on April 8, 2014 at 8:23 PM

I think that we don’t even have a republic anymore and all those who destroyed it and profited from destroying this republic need to be punished once the republic is restored . It would be a great disservice to the people and the republic which it represents , to let these thugs go scot free and keep their blood money .

burrata on April 8, 2014 at 8:29 PM

Gowdy > Issa

Mark1971 on April 8, 2014 at 8:30 PM

I continue to be impressed by Rep. Trey Gowdy. I don’t care how he wears his hair…although every time I see him he does it a different way. Always has me guessing.

CoffeeLover on April 8, 2014 at 8:31 PM

Gowdy is great, but I wish that he would get a different hairstyle that would make him look better on TV. I want him to have the maximum amount of influence and impact and some people are unduly influenced by appearance.

mydh12 on April 8, 2014 at 8:17 PM

Yup.
The low-information undecideds out there will only see that, & that he’s attacking a black guy.

itsnotaboutme on April 8, 2014 at 8:32 PM

Here’s what Gohlmert should have said to Holder:

1. I’m not your buddy.
2. I’ll “go” wherever I like, and you’ll take it and like it.
3. You’re lucky you’re not in jail.
4. You should bow your head in shame, apologize to the American people, and resign immediately.

rrpjr on April 8, 2014 at 8:32 PM

Gowdy2016!!!!

jffree1 on April 8, 2014 at 8:11 PM

Or SCOTUS

workingclass artist on April 8, 2014 at 8:32 PM

Absolutely love Gowdy.

GOPRanknFile on April 8, 2014 at 8:38 PM

I just can’t get past staring at the prayer bump on Holder’s forehead..

katy on April 8, 2014 at 8:42 PM

V7_Sport on April 8, 2014 at 8:19 PM

And the republicans are looking forward to being a lawless as the Obama administration has been. What are you doing to change that?

Oh, that is right, voting mindlessly for the Republican no matter who they are or what they do.

It is the America you and people like you created. Since there is no consequence for not doing what you claim what incentive do they have to do anything you want?

astonerii on April 8, 2014 at 8:44 PM

Gowdy!!! God Bless the man.

DFCtomm on April 8, 2014 at 8:15 PM

Who would rather be working with immigration reform…rule of law man or open-borders man?

I’d love to see government have to jump through the same hoops they require of the healthcare industry where resource utilization is concerned.

lineholder on April 8, 2014 at 8:45 PM

Gowdy is the bomb diggity. Regarding his hair, just last night I happened to watch a Forensic Files (God knows why, I plead insomnia) and it happened to be in South Carolina some years back, and there was Trey Gowdy with strawberry blond hair parted on the side. I think it’s one of the reasons I love him, he’s comfortable in his own skin.

waterytart on April 8, 2014 at 8:46 PM

Gowdy is great, but I wish that he would get a different hairstyle that would make him look better on TV. I want him to have the maximum amount of influence and impact and some people are unduly influenced by appearance.

mydh12 on April 8, 2014 at 8:17 PM

Are you saying that Gowdy is all business in the front and party in the back?

Rock on Trey!

bettycooper on April 8, 2014 at 8:50 PM

I have long given up the assumption — which would be logical in any sane and civilized society — that Eric Holder’s term in office would be concluded while shackled in a jail cell.

Jaibones on April 8, 2014 at 8:54 PM

astonerii

And the republicans are looking forward to being a lawless as the Obama administration has been. What are you doing to change that?

Desperate for attention. Poor troll.

Oh, that is right, voting mindlessly for the Republican no matter who they are or what they do.

Here Troll, already answered you.

It is the America you and people like you created.

No, troll, you were the one practically begging people to vote for Obama.

V7_Sport on April 8, 2014 at 8:56 PM

absolutely not. You head down that road, the pursuit of political power moves from trying to implement policy, to either punish your political enemies, or avoid being punished by your political enemies, and the costs to the electorate, society, our economy, and the Constitution be damned. It’s one of the distasteful things about a republic. But i is necessary to keep that republic… JohnGalt23 on April 8, 2014 at 8:23 PM

Really?

What the hell do think is going on now?

I’m up for some old fashioned payback/retribution.

These people are setting up mechanisms to enslave you, and your childen. You can discuss the merits of GOING BACK. to a republic after we win the war.

wolly4321 on April 8, 2014 at 8:56 PM

Trey Gowdy

…next VP or Attorney General!

KOOLAID2 on April 8, 2014 at 8:57 PM

waterytart on April 8, 2014 at 8:46 PM

While channel surfing one nite, I caught that episode….seeing Gowdy made me stay on the channel :)

As I said, he always surprises me….and I so admire his mind.

CoffeeLover on April 8, 2014 at 8:58 PM

mydh12 on April 8, 2014 at 8:17 PM

I think his hair is thinning and he is trying to find the best way to hide it.

Barred on April 8, 2014 at 8:58 PM

Jeeze, I wish Trey Gowdy would move to TN and run for Senate…

ladyingray on April 8, 2014 at 8:59 PM

Gowdy is one of the few GOP who has the spine and intellect to take on this arrogant, brazen lying POS and win.

petefrt on April 8, 2014 at 9:00 PM

What makes this trickier than Obama’s usual invocations of executive power is that the DOJ does, in fact, have loads of discretion in deciding whom to charge and what to charge.

Allahpundit on April 8, 2014 at 8:01 PM

Bah. obaka is going to pardon a whole lotta people at his midnight hour….

ladyingray on April 8, 2014 at 9:02 PM

KOOLAID2 on April 8, 2014 at 8:57 PM

Attorney General, please!!!! (He’s been asked to pursue Graham’s seat and turned it down…likes the role he has in the House, so I think he’d be amenable to AG position)

And if Jindal doesn’t run for President, I’d like to see him take Sebelius’ place. His new healthcare reform plan would work.

lineholder on April 8, 2014 at 9:02 PM

V7_Sport on April 8, 2014 at 8:56 PM

I know it hurts your head to think and actually hit the points. The America you and people like you created is the one where the Republicans are constantly doing the work of the democrats and are completely unwilling to do the bidding of conservatives.
You give them no incentive to work for you as they already own your vote. Since they already own yours they work for other people who actually require them to accomplish something for them to earn those votes.

You make the nation decline by ensuring the Republican party does not correct.

astonerii on April 8, 2014 at 9:08 PM

I never ceased to be amazed at this administrations’ penchant for ignoring the law whenever it sees fit. Amazing.

EA_MAN on April 8, 2014 at 9:36 PM

Gowdy2016!!!!

jffree1 on April 8, 2014 at 8:11 PM

Or SCOTUS

workingclass artist on April 8, 2014 at 8:32 PM

I would really like to see Gowdy replace Holder.

jffree1 on April 8, 2014 at 9:37 PM

Any candidate that wants my vote in ’16 needs to be adamant that people like Holder need to be investigated and punished to the full extent of the law. No more sweeping the previous administration’s wrong doing aside.

Flange on April 8, 2014 at 8:15 PM

Absolutely not. You head down that road, the pursuit of political power moves from trying to implement policy, to either punish your political enemies, or avoid being punished by your political enemies, and the costs to the electorate, society, our economy, and the Constitution be damned.

It’s one of the distasteful things about a republic. But it is necessary to keep that republic…

JohnGalt23 on April 8, 2014 at 8:23 PM

Well, not doing it out of the framework you mentioned is fine – but when the Democrats use the power of the state against their political opponents *knowing* there will be no consequences to them *ever*, well… to not pursue and punish them when we finally can *is* to adopt a philosophy of “the costs to the electorate, society, our economy, and the Constitution be damned.”

I don’t disagree with you, and yet there MUST be consequences for these people or this will *never* end.

Midas on April 8, 2014 at 9:41 PM

It’s one of the distasteful things about a republic. But it is necessary to keep that republic…

JohnGalt23 on April 8, 2014 at 8:23 PM

How is enabling unconstitutional illegal behavior necessary to keeping a republic? One of the gravest harms against our republic is that the government is not held accountable for its actions.
The president is not impeached and removed from office as should be the case. Supreme Court Justices flaunt the constitution every session and when is the last time one has been impeached? The justice department selectively enforces the law based on politics rather than what is best for the nation and nothing is done. How exactly is this good for the nation?

These are some of the things that John Galt in the novel detested. Here you are saying they are not only tolerable but admirable in a republic.

astonerii on April 8, 2014 at 9:47 PM

astonerii on April 8, 2014 at 9:08 PM

I know it hurts your head to think and actually hit the points. The America you and people like you created is the one where the Republicans are constantly doing the work of the democrats and are completely unwilling to do the bidding of conservatives.

Your solution to every dilemma is to vote for the democrats to deliberately bring about the downfall of the country. You wonder why people, politicians or otherwise don’t take you seriously? You have advocated bringing about the collapse of the dollar and opined on how you could survive “civil war” while you excuse doing nothing and beg others to do the same. Who is going to “do your bidding” when your bidding is stupid.

You give them no incentive to work for you as they already own your vote.

Screaming that you are going to vote for Obama if you don’t get everything you want dropped at your feet is “incentive”? Nope, it’s stupid. There are smarter ways of incentivizing politicians. But lets stop pretending, you are after the collapse because you want to be dear leader in your fantasy world.

V7_Sport on April 8, 2014 at 10:55 PM

How is enabling unconstitutional illegal behavior necessary to keeping a republic?
astonerii on April 8, 2014 at 9:47 PM

V7_Sport on April 8, 2014 at 10:57 PM

You still have accomplished nothing and will continue to enable the enablers of the Democrats.

astonerii on April 8, 2014 at 11:06 PM

You still have accomplished nothing and will continue to enable the enablers of the Democrats.

astonerii on April 8, 2014 at 11:06 PM

Your big accomplishment: Helping to elect Obama. Can’t wait for the excuses you are going to spew on behalf of Hilary Clinton.
Here’s an idea to help you accomplish something: get a job. (OFA doesn’t count)

V7_Sport on April 8, 2014 at 11:28 PM

Nothing is hidden from the judge. The amount of drugs, as well as any other essential facts, come out in the Sentencing Memo from the Probation Office. The judge is still likely to sentence within the guidelines range (which incorporates the mandatory minimum within it). Omitting the fact from the charging document isn’t really an exercise in prosecutorial discretion; it’s a gift of judicial discretion to the judge, who now has the ability to vary below the Guidelines if so inclined. Any fact known to law enforcement will be discovered by Probation and relayed to the judge for sentencing.

Dan Minardi on April 9, 2014 at 12:40 AM

Holder is despicable.

Sherman1864 on April 9, 2014 at 12:54 AM

So in Holder world: two people are charged with the same crime, with the same evidence against them; one white, one black. In Holder world because of his commitment to ‘social justice’, the amount of drugs is withheld for the black defendant. The black defendant gets a lessor sentence than the white defendant FOR THE SAME CRIME!

Call me silly, but doesn’t that amount to a violation of ‘Equal Protection Under the Law’?

Not in Holder world!

r27cj on April 9, 2014 at 7:01 AM

Trey Gowdy is right. Holder is jut doing what he damn well pleases.

Phil Byler on April 9, 2014 at 7:06 AM

Your big accomplishment: Helping to elect Obama. Can’t wait for the excuses you are going to spew on behalf of Hilary Clinton.
Here’s an idea to help you accomplish something: get a job. (OFA doesn’t count)

V7_Sport on April 8, 2014 at 11:28 PM

So, you are saying I am powerful enough to sway and entire nation? Thanks for the compliment, but I voted for Romney.

Wow, you seriously do not think I have a job. You truly are a complete moron. You obviously know extremely little about me. Yet you think you can lay judgement on me.

You still have not told me how to hold politicians to account.

So far it has been phone calls, if those phone calls do not come with credible threats of loss of votes they mean nothing to the politician. The rest of your argument pretty much is meaningless. The republican and democrat parties get far more money from their special interests than they get from run of the mill donors. Only 22% of the Republican presidential money came from small donors. The rest came from big donors, bundlers and businesses.

The only currency the average voter has is their vote. It all they have to bargain with. For the most part they follow your path of rewarding politicians that do not represent them. For the most part there has been benefit to them for doing so. The party marches ever leftward and the country continues to decline election after election after election.

Again, what is your plan to change the party so it represents conservatives?

astonerii on April 9, 2014 at 8:03 AM

What Holder didn’t say was if we don’t like your politics or you didn’t give enough money to the cause, we can throw the book at you but if you’re one of us, then we’ll show some leniency. Does that about sum it up? See Dinesh DeSouza(sp) for an example.

Kissmygrits on April 9, 2014 at 8:52 AM

“Let me read you a bit of your oath of office, Mr Attorney General: well and faithfully execute the law. I’m going to ask this once and only once. Do you recant your statement that you have discretion as to whether you follow the law or not? If the answer is ‘no’, I will begin impeachment proceedings this very hour. I’m waiting, Mr Holder.”

The only right answer.

GWB on April 9, 2014 at 9:14 AM

Gowdy is great, but I wish that he would get a different hairstyle

mydh12 on April 8, 2014 at 8:17 PM

How about if he shaves his head and goes all MMA? Better? :)

GWB on April 9, 2014 at 9:19 AM

How about if he shaves his head and goes all MMA? Better? :)

GWB on April 9, 2014 at 9:19 AM

Even better… just shave the sides and sport a silver mohawk. :)

TMOverbeck on April 9, 2014 at 9:32 AM

So far it has been phone calls, if those phone calls do not come with credible threats of loss of votes they mean nothing to the politician. The rest of your argument pretty much is meaningless. The republican and democrat parties get far more money from their special interests than they get from run of the mill donors. Only 22% of the Republican presidential money came from small donors. The rest came from big donors, bundlers and businesses.

And that’s what the base needs to focus on… pressuring these big money donors to realize the GOP does not have their best interests in mind, and they need to redirect the money pipeline to a new political party. That’s the only way we’re gonna get to the GOP dictators establishment.

The only currency the average voter has is their vote. It all they have to bargain with. For the most part they follow your path of rewarding politicians that do not represent them. For the most part there has been benefit to them for doing so. The party marches ever leftward and the country continues to decline election after election after election.

Goes to show that there’s plenty of low-info’ers on our side too. Too many of us have been easily swayed into voting for the anointed one because: a) the money train gets to flood the media with his ads, b) the competition is pressured into dropping out before the primary contests get to the big-delegate states (as a Texan, I’m very miffed at that), and c) too many open-primary states where Democrats can rig the Republican primary and get off scot-free. Just like elections, bad policies have consequences.

TMOverbeck on April 9, 2014 at 9:41 AM

astonerii on April 9, 2014 at 8:03 AM

I voted for Romney.

RINO! Yes, after this, which further shows that you aren’t to be taken seriously.

Wow, you seriously do not think I have a job. You truly are a complete moron. You obviously know extremely little about me. Yet you think you can lay judgement on me.

So you aren’t on disability for headaches… as you have previously posted. You certainly have a lot of time to post here. Is this your “job”?

You still have not told me how to hold politicians to account.

Yes I have, over and over.

The rest of your argument pretty much is meaningless.

You want collapse, you have acknowledged that. You want everyone dragged down to your level.

The only currency the average voter has is their vote.

Funny, you actually used the word “currency” there to describe something other than money. You are wrong, there is time, money, effort… all of which you are unwilling to employ because it is contrary to your fantasy of helping the country to collapse.

V7_Sport on April 9, 2014 at 2:34 PM

And that’s what the base needs to focus on… pressuring these big money donors to realize the GOP does not have their best interests in mind, and they need to redirect the money pipeline to a new political party. That’s the only way we’re gonna get to the GOP dictators establishment.

TMOverbeck on April 9, 2014 at 9:41 AM

Because splitting the conservative vote wont help elect democrats… Oh wait.

V7_Sport on April 9, 2014 at 2:36 PM