By Mike Levine – ABC News
President Obama has said he’s “confident” that his nominee to replace outgoing Attorney General Eric Holder “will get confirmed by the Senate.”
But a look at where Loretta Lynch, the federal prosecutor out of Brooklyn, N.Y., has fallen on some of the more controversial issues dogging Holder for years suggests the confirmation process may be a bit bumpy. She and Holder seem to be eye-to-eye on many of the issues that made him such a lightning rod for Republican criticism.
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Here are four issues that Senators – including some Democrats — will likely press her on:
CIVILIAN TRIALS FOR TERROR SUSPECTS
Senate Republicans, including the incoming chairman of the Senate Judiciary Committee Sen. Charles Grassley, have long objected to the Obama administration’s use of civilian courts to prosecute certain terror suspects, saying the prosecution-focused efforts of the FBI can fail to obtain valuable intelligence. Just three weeks ago, Grassley of Iowa, blasted the Obama administration over plans to transfer a terrorist held in Afghanistan for years to the United States for prosecution.
“To give him the full set of rights that an American citizen is afforded when accused of a crime is a slap in the face to the men and women fighting abroad to keep us safe,” Grassley said in a statement at the time.
But Lynch – like Holder – has launched a strong defense of the civilian court system, calling it a “proven and effective method of dealing with terrorism suspects” and “the best and often the only option” for prosecuting U.S. citizens who have been radicalized.
“We increasingly see the face of homegrown extremism as one of our own, who cannot be tried in a military commission. Federal courts have also established effective mechanisms to obtain cooperation from defendants,” Lynch told attendees at an Agudah Israel legislative breakfast in November 2011. “And I cannot underscore how important the cooperation and the intelligence that we gather from these suspects is in the fight against terror. It’s the major advantage and difference from the commission system.”
Through such cooperation in the federal court system, U.S. authorities have obtained phone numbers and email addresses of Al Qaeda operatives, they’ve learned about the group’s recruiting techniques and finances, they’ve been told the locations of senior Al Qaeda figures and the locations of training camps, they’ve become privy to information about Al Qaeda’s “tradecraft” and “security protocols” to avoid detection by the U.S. intelligence community, and they’ve learned of plans for future attacks, Lynch said.
“Why would you want to restrict that flow of vital information?” she asked.
In addition, she lauded “the breadth and depth of the scope of federal charges,” including charges in the civilian court system such as money-laundering, tax evasion, and firearms violations that can incapacitate a group’s funding or other capabilities.
VOTER ID LAWS
Under Holder’s leadership, the Justice Department has been challenging laws in states like Texas, Alabama and North Carolina that require voters to provide certain documents to cast a ballot. Holder has argued the so-called “voter ID laws” disproportionately prevent minorities from voting, and some federal courts have agreed.
Lawsuits filed by the Justice Department to block those laws have rankled Republicans. In January, when several judicial nominees were testifying in a confirmation hearing before the Senate Judiciary Committee, one of the first questions from Grassley was: “In regard to voter ID, if confirmed, do you plan to allow states to require voters to identify themselves to prevent the fraud that we have seen?”
Earlier this year, Lynch said federal lawsuits to block voter ID laws “will continue.”
“Fifty years after the march on Washington, 50 years after the civil rights movement, we stand in this country at a time when we see people trying to take back so much of what Dr. [Martin Luther] King fought for,” she said at an event outside New York City celebrating the legacy of King and Nelson Mandela. “But I’m proud to tell you that the Department of Justice has looked at these laws, and looked at what’s happening in the Deep South and in my home state of North Carolina, [and] has brought lawsuits against those voting rights changes that seek to limit our ability to stand up and exercise our rights as citizens.”
“TOO BIG TO JAIL”
As attorney general, Holder has repeatedly faced questions from Democrats, Republicans and others over why his department has not brought criminal charges against the heads of banks that played a part in the financial meltdown several years ago – a meltdown Holder described as “the worst financial crisis since the Great Depression.”
“The best deterrent to crime is to put people in prison,” Grassley said in a statement last year. “That includes those at powerful banks and corporations. Unfortunately, we’ve seen little willingness to charge these individuals criminally.”
In an interview earlier this year, ABC News’ Pierre Thomas pressed Holder on why five years after the meltdown “not a single high-ranking banking official has gone to jail.” Holder insisted federal investigators were “still in the process of looking at this conduct” and that the “passage of time does not mean that you will not be held accountable.”
“We are going to be extremely aggressive,” Holder vowed.
Lynch, who joined Holder in Washington over the summer to announce a $16 billion settlement with Bank of America over its conduct leading up to the meltdown, has similarly suggested the federal government is doing everything it can to hold companies accountable.
“[People] want the head of this bank or that investment bank to go to jail, and the types of cases that we actually have been developing tend to be a little bit smaller,” she told a New York civic association last year. “They tend to involve mortgage companies themselves who issued fraudulent mortgages” and may have made misleading statements or received “a kickback.”
“There in fact have been a number of prosecutions like that all over the country,” she said. “But those are smaller cases and they don’t get the kind of attention that people are looking for. So people often don’t think that anything has happened.”
She said it all comes down to “what you can prove.”
“We have to prove to a jury beyond a reasonable doubt their intent was to defraud the public, and sometimes jurors just think they were bad at what they did,” she said.
IMMIGRATION REFORM (A.K.A. “AMNESTY”)
Within hours of Lynch’s nomination on Saturday, Sens. Ted Cruz, R-Texas, and Mike Lee, R-Utah, issued a joint statement calling on Lynch to “say whether she approves of executive amnesty.”
The senators were referring to a coming announcement by the Obama administration laying out a series of executive actions on immigration reform. The actions are expected to afford even more prosecutorial discretion to agencies when deciding how to focus their limited resources for immigration enforcement.
Republican critics have denounced the expected move as unconstitutional.
“The nominee must demonstrate full and complete commitment to the law,” the senators said. “Loretta Lynch deserves the opportunity to demonstrate those qualities, beginning with a statement on whether or not she believes the president’s executive amnesty plans are constitutional and legal.”
It’s unclear exactly where Lynch stands on the issue. A spokesman for her office referred questions to the Justice Department in Washington, which did not respond to an email seeking comment.
However, a high-profile case prosecuted by Lynch’s office last year could provide insight into her views on prosecutorial discretion when it comes to illegal immigrants. At the time, Lynch announced that nine operators of 7-Eleven stores in New York and Virginia had been arrested for harboring dozens of illegal immigrants and stealing most of their wages.
The defendants eventually pleaded guilty to charges against them, but the illegal immigrants have yet to be removed from the country, an Immigration and Customs Enforcement spokeswoman told ABC News.
Not only were they witnesses in the case, the ICE spokesman noted, but they were also victims who were “ruthlessly exploited” and forced into “a modern-day plantation system,” as Lynch put it at the time.
SO WHAT’S AHEAD?
Asked for comment about Lynch’s past positions and what it could mean for the confirmation process ahead, a spokeswoman for Grassley said he “will not pre-judge Ms. Lynch before a confirmation hearing.”
While “the vetting process” has only just begun and “it’s very early to be speculating about any specific issue,” the issues facing an attorney general and the Justice Department “are difficult and controversial, so there’s no doubt she’ll get tough questions on a number of subjects from every member of the committee,” the spokeswoman said.
As for President Obama, during his announcement on Saturday he described Lynch as “somebody who shares [with Holder] that fierce commitment to equal justice under the law.” And “throughout her 30-year career, she has distinguished herself as tough, as fair, [and as] an independent lawyer,” he said.
Holder agreed, saying in a statement that “she is both well-qualified and uniquely positioned to continue the critical work that’s underway [at the Justice Department[ and build upon the progress we have made over the past six years, from advancing criminal justice reform to safeguarding civil rights.”