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As you may recall, I expressed some dismay upon learning of the Eric Holder nomination for AG. Back in June of this year, Kirk Murphy had done a piece on Holder’s involvement in negotiating a plea deal for  Chiquita that included no criminal consequences to the executives who made payments to terrorists. Teddy weighed in as well relaying problems with Holder’s performance was he was a US Attorney. I pointed out that Holder spent over a year trying to get special treatment for Marc Rich. Bmaz weighed in, too.

Glenn Greenwald has opined that blaming Holder for the Chiquita representation is somehow analogous to blaming the ACLU for representing Gitmo detainees and has restated the truism that all criminal defendants are entitled to a defense. I am an open and public admirer of Glenzilla’s writing, and it is rare for me to disagree with him, but he’s got his apples and oranges mixed up.

I do not fault Holder’s representation of an unpopular client — in fact I don’t see that client as all that unpopular, I eat their bananas all the time. Nope, I fault him for NOT adhering to his obligation to represent his client Chiquita.

Chiquita, as a corporation, is an incorporeal being. It acts only through the activities of its Board of Directors, officers and employees. it is owned by its shareholders. Eric Holder’s obligation was to those shareholders, and to a lesser extent, to the employees who earn their living from the company and the consumers who need those bananas to slice over their cornflakes. He did NOT have an obligation to the executives that made the payoffs. Yet, he protected those executives at the expense of the corporation, his client, causing the corporation to take the criminal hit and pay a $25 million fine, while the executives who actually committed the crime in the name of the corporation got off scot free.

This was in direct contravention of the DOJ’s  "Thompson Memo", real title "Principles of Federal Prosecution of Business Organizations" which stands for the proposition:

Prosecution of a corporation is not a substitute for the prosecution of criminally culpable individuals within or without the corporation. Because a corporation can act only through individuals, imposition of individual criminal liability may provide the strongest deterrent against future corporate wrongdoing. Only rarely should provable individual culpability not be pursued, even in the face of offers of corporate guilty pleas.

[Note: the Thompson Memo was superseded by the weaker McNulty Memo in 2006, however, the McNulty memo adopted, verbatim the language quoted above.]

So, you see, the position of the Holder’s client, Chiquita, should have been in conflict with that of the executives who authorized and made the payments to the terrorists, yet Holder put the welfare of the executives (don’t know if they were technically his clients as well, though they shouldn’t have been due to the glaring conflict of interest) ahead of that of his corporate client. He violated his fiduciary duty of loyalty to Chiquita and its shareholders and non-criminal employees, to get special privileges for fat cat insiders.

Likewise, in his year long behind the scenes adviser role as Marc Rich’s unpaid lobbyist, Holder violated his fiduciary duty of loyalty at DOJ and did an end run around the US Attorney handling the case. If he honestly believed that Mary Jo White’s office had gotten the charging decision wrong, there are procedures in place at DOJ for reviewing that decision and asking her to modify it. He didn’t do that, instead he stabbed his own teammates (both USAO SDNY and the Office of the Pardon Attorney) in the back. Why?  To get special privileges for a fat cat insider.

See the pattern? If Holder had represented his own client (whether Chiquita or DOJ) zealously, I wouldn’t be spending my weekends writing blog posts about him. My problem with him is his pattern of ignoring both the rules and his loyalty obligations to get special treatment for rich people. There should not be two standards of justice in this country.

Do I think the guy should be tarred and feathered? Do I think he is even close to be the moral equivalent of the horrible John Yoo? Of course not, I just don’t think that his appointment at DOJ sends the message that the Department is going to be cleaned up ever any time soon. We can do MUCH MUCH better.

Which I will discuss in Part II.