Friday, July 2, 2010;
ATTORNEY GENERAL Eric H. Holder Jr. flew to Louisiana in early June as the administration continued to be battered for its handling of the Gulf of Mexico oil spill. While there, Mr. Holder publicly acknowledged that the Justice Department had opened a criminal investigation -- a departure from the typical approach of neither confirming nor denying the existence of such probes. The declaration made front-page news and sent BP's stock price tumbling.
Later Mr. Holder was again involved in the gulf oil drama, this time as a participant in a White House meeting with BP officials about a multibillion-dollar victims' compensation fund. There is every indication that BP welcomed the fund; the Justice Department also asserted that the White House negotiations would have no bearing on the criminal investigation.
Still, the attorney general's choices are discomfiting. Mr. Holder's defenders argue that the gulf oil spill is an extraordinary event that justified public acknowledgment of the criminal inquiry; they note that Mr. Holder's comments on June 1 spoke only to an investigation into the spill and not of any particular company or person. Yet one week before, Assistant Attorney General Ronald H. Weich wrote to Sen. Barbara Boxer (D-Calif.), who had "asked the Department to open a criminal inquiry into events surrounding the oil spill," that "consistent with long-standing policy, we neither confirm nor deny the existence of such an investigation." There are sound reasons for this general rule, not least of which is to prevent innocent people from being sullied.
At the White House meeting, Associate Attorney General Thomas J. Perrelli, who oversees the civil division, was present and perfectly capable of ensuring that the fund agreement passed legal muster. Mr. Perrelli has no role in criminal matters -- unlike the attorney general, who has ultimate authority over whether BP or any of its officers are criminally charged. Administration officials point out that Mr. Holder attended with other Cabinet secretaries and left the meeting before substantive negotiations began. But his presence inevitably raised the specter of the criminal probe -- and the possibility that it could be used to pressure BP on the size and terms of the fund.
The Justice Department frequently finds itself handling both the civil and criminal aspects of an issue, and the attorney general obviously is in charge of both; there's nothing improper about that. But because decisions to indict must be made without any political influence and without any regard to political consequence, the attorney general must take great care to avoid even the appearance of conflict. Mr. Holder may not have crossed that line in the gulf oil matter, but he has come close.