Like my hometown Atlanta Braves, the Justice Department is in a slump. The controversial “Fast and Furious” scandal has been the focus of Washington politics for weeks, and may come to a head this week if the full House votes to hold Attorney General Eric Holder in contempt. The problems at the Justice Department, however, run deeper than this single crisis.
Two of the highest-profile federal prosecutions in recent years — those brought against former U.S. Senator John Edwards and former New York Yankees pitcher Roger Clemens — ended in embarrassing losses for Uncle Sam.
Clemens was acquitted on every charge of perjury and obstruction that went to the jury. The charges stemmed from his 2008 testimony before the House Oversight and Government Reform Committee concerning his alleged use of performance-enhancing drugs during his phenomenally successful pitching career.
Whether or not Clemens cheated baseball by using performance-enhancing drugs is a legitimate concern to those responsible for establishing and maintaining standards for major league ball players. Whether players’ use of steroids and other drugs should be a concern to the United States Department of Justice, however, is another question altogether. Congress certainly shouldn’t be hauling players before a committee to testify about such matters.
While the jury in the Edwards case was less certain in its conclusions — one count of “not guilty” and five counts on which they could not reach unanimous verdicts — the government’s failure to make a single count stick had to have been embarrassing after such a long and high-profile prosecution.
In both cases, federal prosecutors stretched broad criminal statutes to ensnare defendants who are easy to dislike — Edwards because he cheated on wife, and Clemens because he cheated in baseball. But in both cases, prosecutors overreached. They learned that prosecuting easily dislikeable men based on federal criminal laws not easily grasped by the average juror is not as easy as it might appear. Jurors appeared unwilling to equate “immoral” with “criminal,” or “unsportsmanlike” with “unlawful.”
The cases are reminiscent of the Bush Justice Department’s prosecution of former Senator Ted Stevens. Stevens was actually convicted in 2008, but his conviction was dismissed prior to his sentencing because of prosecutorial misconduct. Stevens was defeated in his 2008 election and died in a plane crash two years later.
While President Obama’s attorney general, Eric Holder, commendably refused to retry Stevens, the broader lesson — that the government should stick to cases that make sense and appear reasonable to the average American — doesn’t appear to have been learned.
Another important lesson for presidents and attorneys general — admitting error when one has been made, and moving on before your adversaries can nurture a mistake into a full-blown crisis — also appears to have been lost on Obama and Holder. The “Fast and Furious” scandal, which led to last week’s oversight committee vote in the House to find Holder in contempt, has been allowed to fester for months.
At the end of the day — regardless of whether the evidence sought by the House of Representatives is disclosed, and regardless of whether it reveals an effort to thwart, if not obstruct, a congressional investigation — neither of these incidents will enhance the legacy of the U.S. Department of Justice. And that is not good for the country.
Bob Barr represented Georgia’s Seventh District in the U.S. House of Representatives from 1995 to 2003. He provides regular commentary to Daily Caller readers.