WASHINGTON, D.C. - According to Reuters, President-Elect Barack Obama has conditionally offered the post of Attorney General of the United States to Eric Holder, a 57-year-old former Deputy Attorney General who served during the Clinton-era reign of Attorney General Janet Reno.
While Holder will have to undergo an extensive vetting process before officially being offered the job, he has already generated concern in the adult industry over a decade-old memo he wrote on the topic of obscenity prosecutions.
Addressed to all 94 United States Attorneys on June 10, 1998, the memo was titled "Prosecutions Under the Federal Obscenity Statutes". Adult industry attorneys have since referred to it as "The Holder Memo."
"As you are aware," Holder wrote, "within the past few years there has been increasing concern about the distribution of obscenity and child pornography both by traditional purveyors of "adult material" and in particular by those who distribute such material over the Internet. As a result of this unprecedented growth, I wish to remind you of the Department's policies and priorities in the prosecution of federal obscenity cases... Thus, priority should be given to cases involving large-scale distributors who realize substantial income from multistate operations and cases in which there is evidence of organized crime involvement. However, prosecution of cases involving relatively small distributors can have a deterrent effect and would dispel any notion that obscenity distributors are insulated from prosecution if their operations fail to exceed a predetermined size or if they fragment their business into small-scale operations... In particular, priority also should be given to large-scale distributors of obscenity over the Internet. Because of the nature of the Internet and the availability of agents trained in conducting criminal investigations in cyberspace, investigation and prosecution of Internet obscenity is particularly suitable for federal resources." [Citation removed]
Perhaps even more troubling is a letter Holder wrote to Morality In Media founder Paul McGeady on July 2, 1998, which references a meeting apparently attended by Holder, McGeady and representatives of various religio-conservative pro-censorship groups:
"I appreciated having the opportunity to meet with you recently to discuss the prosecution of obscenity cases," Holder wrote. "Your commitment to this important issue is commendable, and I fully share your concerns about the distribution of obscenity and child pornography, whether it is over the Internet or by more traditional purveyors of such material. I encourage you, and the other organizations with whom I met, to continue working closely with the Child Exploitation and Obscenity Section of the Department of Justice as we work aggressively to address this troubling problem. Based on the many insightful comments and observations made by representatives of the various groups who attended our recent meeting, I determined that it was appropriate for me to send a memorandum to all United States Attorneys reminding them of the Department's policies."
Holder's stance on obscenity drew comments from First Amendment attorney and AVN columnist Clyde DeWitt, who dealt with the "Holder Memo" in his column for AVN's September, 1998 issue ("Federal Obscenity Prosecutions in General, and the Internet in Particular".) DeWitt referenced Holder's stance that U.S. Attorneys should follow the United States Attorneys' Manual, which at that time still suggested that adult companies could be targeted using a "multiple-prosecution strategy," where a single company could be indicted in multiple jurisdictions, forcing that company to expend vast resources defending itself, which might bankrupt the company - exactly as the Justice Department intended the tactic to accomplish.
"Perhaps most shocked by the article was Adam & Eve owner Phil Harvey, who had undertaken tireless efforts to have the multiple-prosecution policies of the Department of Justice ruled unconstitutional," DeWitt later wrote. "Indeed, during the course of the wind-up of the very successful PHE, Inc. v. United States Department of Justice case, Phil's company received a promise from the Department of Justice at a November, 1993 hearing that, according to Assistant United States Attorney Thomas Millet, it was anticipated that 'within the near future,' the Department policy would be changed so as to 'no longer encourage multiple prosecutions in obscenity cases.' Accordingly, Phil was to say the least alarmed to find the old policies still in effect."
"I wrote the first article — this was '97, '98 — just generally to inform the newly-emerging Internet community, who didn't remember obscenity prosecutions, of what they were and that it's out there and it's serious," DeWitt recalled. "I mentioned the multiple prosecution strategy, and Phil Harvey called me up or faxed me or something and said, 'What the hell is this? They changed that because of my lawsuit.' I said, 'No, they didn't. here's what it says presently,' and he said, 'Well, that's exactly what it said before!'"
Indeed, the U.S. Attorneys' Manual was not changed until June of '98, just after Holder wrote his memorandum - and that change came at the insistence of Harvey, who contacted the Justice Department to demand that it fulfill its promise.
Since his service under Reno, Holder has worked as an attorney at Covington & Burling, a very politically-oriented law firm in D.C. where, in 2004, according to Wikipedia, Holder "helped negotiate an agreement with the Justice Department for Chiquita Brands International in a case that involved Chiquita's payment of 'protection money' to the United Self-Defense Forces of Colombia, a paramilitary group that has been designated a terrorist group by the United States government. In the agreement, Chiquita's officials pleaded guilty and paid a fine of $25 million."
Various conservative websites have also pointed out that as President Bill Clinton was leaving office, and had asked the Justice Department to assess the merits of giving presidential pardons to various applicants, Holder gave a "neutral, leaning towards favorable" opinion of the pardon of fugitive financier Marc Rich - a pardon that has dogged Clinton (and now Holder) since the Republicans took over both Congress and the presidency with the 2000 election.
Holder has not spoken publicly about his current feelings regarding obscenity prosecution since his days at Justice, so hopefully that topic will be broached during Holder's Senate confirmation hearings, and/or by the major news media who may conduct their own "vetting" process.