Flashback: Holder vs. Napolitano

This is a rush transcript from "Hannity & Colmes," November 20, 2008. This copy may not be in its final form and may be updated.

ALAN COLMES, CO-HOST: On April 22nd, 2000, federal agents raided the home of Elian Gonzalez's family in Miami and took the 6-year-old boy back to his father in Cuba. Hours later Eric Holder, who is deputy attorney general at the time, appeared on FOX News to defend the decision to send Elian back to communist Cuba.

(BEGIN VIDEO CLIP)

UNIDENTIFIED FEMALE: Eric Holder is with us live, the deputy attorney general.

And Mr. Holder, thanks for being with us. Mr. Holder, can you hear me?

ERIC HOLDER, FORMER DEPUTY ATTORNEY GENERAL: Yes, I can hear you fine.

UNIDENTIFIED FEMALE: Yes. Why did the government do what did it this morning?

• Video: Watch Sean and Alan's interview with FOX Judicial Analyst Andrew Napolitano

HOLDER: Well, we got to a point didn't think any further conversations with the Miami family was going to be productive, and as a result we decided that this enforcement action that the attorney general ordered we had to reluctantly do.

Had we thought that we were making progress, any kind of progress, small amounts of progress, we would have waited and continued the conversation, but (INAUDIBLE) I think we weren't going to make any more progress.

(END VIDEO CLIP)

COLMES: Things got a little heated a few moments later when FOX's own Judge Andrew Napolitano confronted Holder about the decision.

(BEGIN VIDEO CLIP)

JUDGE ANDREW NAPOLITANO, FOX NEWS JUDICIAL ANALYST: Isn't it clear in that — in that Court of Appeals ruling, preliminary though it may be, that the court ruled that the INS may not do exactly what it did this morning, which is without a court order change the guardian of this child?

When is the last time a boy, a child, was taken at the point of a gun without an order by a judge? Unprecedented in American history.

HOLDER: He was not taken at the point of a gun.

NAPOLITANO: We have a photograph showing that he was taken at the point of a gun.

HOLDER: They were armed agents who went in there and acted very sensitively.

NAPOLITANO: I don't know if you can see our screen, but the gun is pointing at the boy. The agent is grabbing the boy. There's no court order that says that this can be done, there's no precedent in American history for transferring custody at the point of a gun without an order of a judge.

HOLDER: You point to me in that decision — you show me where in that decision it says that the INS was forbidden from doing exactly what it did today. The court did not say that the INS could not change custody.

NAPOLITANO: That's exactly what it did say, Mr. Holder.

HOLDER: No, the INS decision said that he could not be removed from the country. That is what the injunction was all about. Everything else is really prefatory to what will be heard by the 11th Circuit in a couple of weeks.

NAPOLITANO: Why didn't you go to a judge and get a court order to transfer custody like every other custody transfer in the history of this country has occurred, instead of using authoritarian jackboot tactics like putting a muzzle of a gun in the face of a 6-year-old boy.

HOLDER: Now you're referring to jackboot tactics by good American law enforcement agents who acted consistent with the law following the orders of a superior who was following the law and.

NAPOLITANO: What, what.

HOLDER: . and comparing them to people from Nazi Germany or other places is totally wrong, and you know that. You know that.

NAPOLITANO: What judge authorized this and why didn't you go to a court to get a judge to authorize this? Because when the courts order these things, people accept them. The courts are a neutral branch. We don't need violence, we don't need guns, we don't need raids in the middle of the night.

Why did you stay away from the courts?

HOLDER: We did not stay away from the courts.

NAPOLITANO: What court order authorized this?

HOLDER: We used the lawful process. The INS has the ability to do those things that we ordered to be done today. It is not required. The INS has vast discretion in these matters, and you do not require a judge to issue orders as you have suggested.

(END VIDEO CLIP)

COLMES: Joining us now on the phone is FOX News senior judicial analyst, Judge Andrew Napolitano.

Judge, just on this particular case, was there a search warrant that they used to get to that house?

NAPOLITANO: You know, at the time that I was interrogating him, he did not know that his own people got a search warrant, and I didn't know that they got a search warrant. We later learned that he got one. I got a copy of the search warrant, I got a copy of the affidavit they presented to a federal judge on Good Friday, they waited until there was only one judge in courthouse, and it was filled with material misrepresentation.

They claimed that Elian was being kept against his will, that actually Elian was being kidnapped by his uncle where as in fact the INS had given Elian to his uncle, and a family court judge had said the uncle would be the best custodian for the boy.

COLMES: But (INAUDIBLE) did find out that there was a judge involved, however, and there was a warrant — what is this — in terms of Eric Holder, though, are you suggesting that he has no business being attorney general of the United States?

NAPOLITANO: Well, you know, that's a bigger picture, Alan. I happen to know he's a bright attorney and a hard-working guy, and the benefit of the doubt should go to the appointment, to the president that is appointing him, but in this instance, just as with the Marc Rich and the FALN pardons, he exercised very poor judgment, he didn't know what was going on, and he was not respectful of the law.

SEAN HANNITY, CO-HOST: Hey, wait, Judge, it's Sean here. You're saying that he violated the will of the court, a court order, that there was no court order to support this, and the Elian case, we have the case of Marc Rich who renounced his citizenship, was involved with the Iranians at a time where Americans were being held hostage, you bring up — we have the other case of the FALN, we have video of these guys making bombs, we're showing here tonight.

NAPOLITANO: Wait.

HANNITY: Wait a minute. This is three, and then we have the case of two convicted Weather Underground members that were serving time in jail.

NAPOLITANO: This is why you're doing a public service because the public needs to know that this is the background of the man that is going to be — if President-elect Obama gets his way the chief law enforcement officer of the land.

HANNITY: But, Judge, wait a minute, I love you to death, but you're saying he showed poor judgment. This isn't poor judgment, this is reckless and irresponsible and judgment that I would argue.

NAPOLITANO: I'll go — I will go along with the reckless and irresponsible. Look.

HANNITY: On four occasions.

NAPOLITANO: You do not change custody of a child by shoving the muzzle of a gun in the child's face. These guys were afraid to go to a family court judge. They were afraid to follow what their own immigration and naturalization service had determined was in the best interest of the boy.

HANNITY: Judge, hang on a second. First of all, I give you credit. You were phenomenal in this interview because it was at the point of a gun, it was in defiance of that court order, you're absolutely right, your interpretation is dead on.

And I give you a lot of credit, but I want to go this — on at least four issues. Releasing terrorists on two of them, releasing one of the biggest criminals ever in the case of Marc Rich who renounced his citizenship, that case, that picture, with Elian Gonzalez.

Now this is beyond poor judgment, Judge. This tells me this man is not qualified to be, you know, the attorney general of the United States of America. Why, after at least four and we're investigating other instances, should he even be considered?

NAPOLITANO: Well, this is a very bad message that the president-elect is sending to the judiciary committee, and if they didn't have overwhelming numbers of Democrats in the Senate, I don't know that he'd even be confirmed.

The Marc Rich pardon, Sean, is particularly reprehensible because there may have been a quid pro quo, there may have been a contribution to Bill Clinton's foundation from Mrs. Rich.

HANNITY: Judge, you're right.

NAPOLITANO: Which really makes (INAUDIBLE) stink.

HANNITY: All right. I got to tell you something, Judge. Great job, my friend. You did a phenomenal job in that interview. Thank you.

NAPOLITANO: Nice to be back with you guys.

HANNITY: We always love having you.

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