Loretta Lynch’s new burden

WASHINGTON, DC - DECEMBER 02:  Senate Judiciary Chairman Patrick Leahy (R) (D-VT) meets with Loretta Lynch (L), U.S. President Barack Obama's nominee to be the next Attorney General of the United States at the U.S. Capitol December 2, 2014 in Washington, DC. Lynch, if confirmed, will succeed U.S. Attorney General Eric Holder.
 (Photo by Win McNamee/Getty Images)

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Loretta Lynch already has her first crisis: managing a volatile civil rights investigation into police brutality that has the potential to entangle the Justice Department she has been tapped to run.

She hasn’t even faced her official attorney general nomination hearing, but she’s already overseeing the federal investigation into the death of Eric Garner, who died after he was put in a chokehold by New York police.

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As she made the rounds to Senate offices Thursday as part of the traditional presidential nominee charm offensive, the Garner case — and the larger question of police brutality — simmered in both private meetings and public comments on Capitol Hill.

Sen. Lindsey Graham (R-S.C.), who sits on the Judiciary Committee, said Lynch had portrayed herself as someone who prosecutes street criminals as well as police, when they deserve it.

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Graham recalled Lynch saying: “I think I have a pretty good record of being tough on crime. … I also have a pretty good record of being tough on cops who stray.”

Some in the GOP are also wary of being portrayed as insensitive to minority concerns if they appear to side with police.

Sen. Jeff Sessions (R-Ala.), said he hoped the Justice Department would approach the events that triggered unrest in Ferguson, Missouri and protests in New York with a sense of independence.

“The Department of Justice needs to be careful not to politicize events but at the same time the Department of Justice has the authority to independently investigate these cases,” Sessions said in an interview. “I suppose her recommendation as U.S. attorney there would be a key recommendation in what’s decided.”

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Sessions added: “I doubt I’ll be asking about that.”

Lynch is heading up the Garner probe in her capacity as a U.S. Attorney, since her district encompasses Staten Island. A source close to the federal prosecutor emphasized that pursuing that investigation doesn’t undercut her strong relationship with law enforcement leaders.

“She has investigated major police cases before, and has still received strong support from law enforcement,” the source said, pointing to endorsements from NYPD Commissioner Bill Bratton and former Mayor Rudy Giuliani. “Even as she launched the investigation yesterday, she made a point of calling the head of the Patrolmen’s Benevolent Association to provide a heads up.”

However, the Lynch ally predicted the issue will be unlikely to consume her hearings because she will refuse to discuss the ongoing investigation. “For as long as the case is open, she would naturally decline to discuss it, which will make it difficult for those who would try to turn into a political issue,” the source said.

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Other Lynch supporters agreed that the subject of police abuses will become part of her confirmation hearings, but insisted she’s well-positioned to address it, in part because she successfully prosecuted police officers charged with abusing Abner Louima in 1997.

“It will be a topic, and that is fine,” said Nan Aron of the Alliance for Justice. “These are the kinds of issues an attorney general must grapple with — and Loretta Lynch already has shown great ability in handling them.”

Lynch’s one-on-one meetings with senators tend to be brief — sometimes not even 15 minutes long, as it was Thursday when she met with Sen. Kirsten Gillibrand (D-N.Y.). After the session, Gillibrand emerged to a throng of reporters, saying she expressed concern about the failure of a grand jury to indict the police officer in the Garner case. “It seems only right in a case of this magnitude that the families have a chance to have their day in court.”

Asked if Lynch agreed with her, Gillibrand deadpanned: “She didn’t express her opinion.”

Sen. Richard Blumenthal (D-Conn.) said Lynch was “interested in helping to lead the country to better policing and a fairer justice system,” the senator said, adding it appeared consistent with the policies instituted by current Attorney General Eric Holder’s Justice Department.

There are already signs of differing approaches to the issue, even among Democrats. While Gillibrand said she was “shocked” that a state grand jury didn’t indict the police officer in the New York case, her counterpart Sen. Chuck Schumer (D-N.Y.) issued a terse, two-sentence statement that called for a federal review and also stressed Lynch’s ties to police.

“I am confident that Loretta Lynch will conduct a tough but fair investigation into the tragic death of Eric Garner,” Schumer said. “She is both a consummate professional with a strong commitment to justice, and has a close working relationship with the New York City law enforcement community.”

Schumer, who sits on the Judiciary panel, also has close connections to law enforcement and built much of his career championing tough-on-crime measures. A spokeswoman for Schumer didn’t respond to a query about whether he plans to raise the subject at Lynch’s hearings.

“There’s no doubt she’ll be asked about it, both because it will be an important issue for the Justice Department in the coming months and years and because she has relevant history in the area,” said Ron Weich, a former DOJ liaison to Congress who’s now dean of the University of Baltimore Law School. “Confirmation hearings are often about what’s in the headlines [and] she’s got this case now.”

While public questioning of Lynch about her plans to combat civil rights abuses as attorney general is likely to wait for confirmation hearings in January or February, President Barack Obama and Holder are under pressure now to announce specific actions on the issue.

Holder traveled to Cleveland Thursday to announce that a nearly two-year probe into that city’s police department found a series of cases in which police shot or shot at people who didn’t pose an immediate threat. Federal prosecutors also found instances of careless firing and use of weapons by police, as well as indications that the police department’s internal investigations into alleged misconduct almost never ruled against officers.

Despite the findings in Cleveland, Holder sought to combat perceptions that police misconduct is rampant. In fact, he disputed the notion that the problem has gotten worse in recent years.

“I’m not sure it’s a growing problem … We have placed a greater emphasis on finding these kinds of issues,” the attorney general said before taking a thinly veiled dig at the George W. Bush administration for being sluggish in monitoring police misconduct. “One of the first things I said when I came back to the Justice Department was the Civil Rights Division is open for business again, And I meant it.”

Holder has vowed “expeditious” federal investigations into Garner’s death in July and the shooting in Ferguson of Michael Brown in August. However, some prominent lawyers are critical of the department for appearing to drag its feet in other civil rights investigations, such as a still-pending probe into the shooting of Trayvon Martin by a neighborhood watch volunteer in Sanford, Florida in February 2012.

“Holder has promised to be expeditious, which raises the question of why not in other cases? You’d hope the department would be expeditious across the board,” former federal judge Paul Cassell said Thursday. “When you’re looking for 2½ years into the Trayvon Martin case it to my mind starts to raise a lot of questions.”

Cassell suggested that federal prosecutors should be able to decide within a matter of weeks whether Garner’s death merits federal charges or not.

“Is it unreasonable to ask that they make a decision by the end of the year? I’m not convinced it would be,” the former judge said in an interview. “How much more work needs to be done? There’s a videotape of the event. What are we waiting for here? What additional facts does the Justice Department need?”

Holder — who said more than a year ago that the Martin case would be resolved “relatively soon” — was noncommittal Thursday about the timeline for the Garner probe, but acknowledged the desire for a quick resolution.

“It will be an exhaustive and fair investigation and we will reach our own independent determinations. It’s hard to predict how long it’s going to take. I think people in New York and people in this nation will be well-served by us doing this as quickly as we can and that’s what we’ve committed to doing,” Holder said.

Of course, many people including apparently Gillibrand want to see not only an investigation but a prosecution. Holder said he didn’t want to “raise expectations” of charges and noted there’s “a high bar” to bring a federal indictment in a civil rights case.

That high bar means it’s hard for the administration to portray such cases as the primary federal response to perceived police abuses. “Individual criminal prosecutions are definitely not a panacea,” Weich said.

Reacting to the public concern and demonstrations, Obama spoke out on the Garner case Thursday for a second time in two days, telling college students that he’s determined to improve relations between police and minority communities.

“When it comes, as we’ve seen, unfortunately, in recent days, to our criminal justice system, too many Americans feel deep unfairness when it comes to the gap between our professed ideals and how laws are applied on a day-to-day basis,” the president said.

However, the president has acknowledged public frustration that the history of commissions, task forces and public dialogues has left many doubtful that the federal government will follow through with concrete actions to prevent police abuses.

“Part of the reason this time will be different is because the president of the United States is deeply invested in making sure this time is different,” Obama said Monday at a meeting with civil rights leaders. “I think there’s a maturity of the conversation right now that can lead us to actually getting some concrete results.”

The White House also confirmed late Thursday that Obama has seen the video of what officials neutrally described as “the interaction between police officers and Eric Garner.”

White House press secretary Josh Earnest also pleaded for patience Thursday, saying Obama “certainly deserves at least a little benefit of the doubt” on his promise that his new efforts will have a measurable impact.

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