POSTED: 1:30 a.m. HST, Mar 4, 2014
WASHINGTON » Shortly after Sen. Rand Paul filed suit last month against the Obama administration to stop its electronic dragnet of U.S. phone records, he sat down for lunch with Attorney General Eric H. Holder Jr. in his private dining room at the Justice Department.
Paul, R-Ky., is one of the Obama administration's most vocal critics. But their discussion focused on an issue on which they have found common cause: eliminating mandatory-minimum prison sentences for nonviolent drug offenders.
The Democratic attorney general and the possible Republican presidential candidate are unlikely allies. But their partnership is crucial to an alliance between the nation's first African-American attorney general, who sees his legacy in a renewed focus on civil rights, and some of Congress' most prominent libertarians, who have accused the Obama administration of trampling on personal freedom with drones, wiretaps, tracking devices and too much government.
Together, they could help bring about the most significant liberalization of sentencing laws since President Richard M. Nixon declared war on drugs.
In 2010, Congress unanimously voted to abolish the 100-to-1 disparity between sentences for crack cocaine offenses and those for powdered cocaine, a vestige of the crack epidemic. Now, the Obama administration and its allies in Congress are pushing to go even further. Holder wants to make prisoners eligible for early release if they were sentenced under the now-abolished crack guidelines. And he wants judges to have more discretion when it comes to sentencing nonviolent drug offenders.
For Holder, addressing sentencing laws is central to a second-term agenda that also includes defending voting rights and same-sex marriage. African-Americans have disproportionately received lengthy prison terms and are extremely overrepresented in the inmate population.
Libertarian-minded Republicans see long prison sentences as an ineffective and expensive way to address crime.
"This is the definition of how you get bipartisan agreement," Paul said in an interview. "It's not splitting the difference. It's finding areas of common interest."
Paul is backing a sentencing overhaul bill, also supported by Holder and the Obama administration, that he predicts will pass the Senate with support from up to half of its Republicans. The bill's sponsors include Democratic stalwarts such as Sen. Richard J. Durbin of Illinois and Sen. Patrick J. Leahy of Vermont, the Judiciary Committee chairman, as well as Republicans with strong Tea Party credentials like Sen. Mike Lee of Utah and Sen. Ted Cruz of Texas
Similar legislation is pending in the House, where libertarians and Tea Party conservatives will be crucial to determining its fate if it comes up for a vote. That is the same group that bucked the Obama administration and nearly succeeded in passing legislation prohibiting the National Security Agency from seizing the phone records of millions of Americans.
Some Republicans say that they are the ones being consistent on matters of protecting liberties and that Holder's push for changes to the sentencing laws is a step in their direction, not the other way around.
"I would say Eric Holder supports me and my civil liberties bill," said one of the House bill's sponsors, Rep. Razl R. Labrador, R-Idaho, who once demanded Holder's resignation over the botched gun-trafficking case called Operation Fast and Furious.
Republicans have historically been proponents of crime legislation, but low crime rates have given proponents of a sentencing overhaul an opening.
"It makes it much less likely that people are going to be attacked as soft on crime," Holder said in an interview last week, "which is why we very consciously styled our efforts as being smart on crime."
Holder noted that a third of the Justice Department's budget is spent running prisons. That resonates with fiscal conservatives like Rep. Jason Chaffetz, R-Utah.
Chaffetz once suggested that Republicans might have Holder arrested for contempt. But Holder recently invited him to breakfast at the Justice Department.
"I understand what hearings are like," Holder said. "They're as much theater as they are substance. The conversation we had over that breakfast was really about substance. When it comes to substance, there's a basis for agreement between a Democratic attorney general and these Republican congressmen."
Chaffetz said his conversations with Holder represented "one of the few instances I can point to where we're starting to make some kid steps forward" toward bipartisan collaboration.
That is not to say Chaffetz — or Paul — sees lots of areas for agreement with the administration on civil liberties issues. For instance, Chaffetz said he had failed repeatedly to get the Justice Department to make public its policies for tracking vehicles without warrants.
"I think there's a realization that we're not actually solving the problem with some of these drug crimes," Chaffetz added. "But on the other side of the coin, there's no trust with the Obama administration. None."
Holder said he was committed to protecting civil liberties and believed that, when complete, the administration's review of NSA programs may alleviate some of the privacy concerns among civil libertarians.
"You can't, it seems to me, say you're strong on civil rights if you're not being equally strong on protecting civil liberties," he said.
Rep. Trey Gowdy, R-S.C., a former U.S. prosecutor, joined Chaffetz for breakfast at the Justice Department and described Holder as a gracious host. "The fact that he's taking the time to talk to two backbenchers, he certainly didn't have to do that," Gowdy said.
Gowdy said he was convinced that mandatory sentences made little sense for minor offenses. But he doubts that a sentencing bill can pass the House, in part because voters in Republican districts oppose so many of the Obama administration's policies. Holder's push for same-sex marriage does not make it easier, he said.
Paul was more optimistic. He said conservatives and liberals would join in support of changing sentencing laws, just as they have joined in opposition of the NSA's domestic surveillance programs.
Over tomato soup and salmon, Paul and Holder talked about their mutual support for a bill in the Kentucky Legislature that would restore voting rights for felons. And Paul agreed that there was a civil rights component to changing the sentencing laws.
"Well-intentioned things can go overboard," he said. "I don't think it was intended to have a racial outcome, but it did."
As the meeting concluded, they agreed to work together and said their goodbyes. Then Paul wryly added, "I'll see you in court."
Matt Apuzzo, New York Times