Attorney general’s accomplishments haven’t matched prodigious tenureLast Thursday, the 82nd Attorney General of the United States, Eric Holder, announced his resignation pending the confirmation of his successor by the United States Senate. Holder, the first African-American to serve as the nation’s chief law enforcement officer, took office along with President Obama on January 20, 2009, making him the third longest serving Attorney General in American history.
Sadly, Holder’s accomplishments haven’t matched that prodigious tenure. From the beginning, Holder has been a lightning rod for criticism, and not just from Republicans and others on the Right.
Holder took over the Department of Justice (DOJ) in the immediate aftermath of the economic crisis of 2008. And yet, he has steadfastly refused to prosecute any of the senior banking executives and regulators whose personal malfeasance drove the economy over the cliff. Even the so-called “too big to fail” banks themselves have largely avoided institutional penalties commensurate with the roles they played in creating the worst economic downturn since the Great Depression. Is it any coincidence that Holder’s former (and future) law firm represents Bank of America, JP Morgan Chase, Citigroup, Freddie Mac and other major financial players?
Holder oversaw the DOJ’s aggressive investigation of journalists it believed might be cooperating with government leakers, going so far as to name Fox News’s James Rosen a “criminal co-conspirator” in secret documents. He also defended the National Security Agency’s warrantless collection of metadata — mostly phone and email logs — from millions of Americans, even after a federal court and at least one federal oversight board declared that the practice was unconstitutional.
Perhaps the loudest Republican complaints about Holder’s performance centered on Operation Fast and Furious, a complicated “gunwalking” sting aimed at staunching the flow of weapons from the United States to Mexican drug gangs. Operation Fast and Furious was built on a similar — and similarly failed — Bush Administration operation called Operation Wide Receiver. It began in 2009 and involved the Bureau of Alcohol, Tobacco and Firearms (ATF) using gun shops in the Southwest as fronts for selling and then tracking high-powered weapons to their ultimate buyers in Mexico.
At least that was the theory behind the operation. Unfortunately, at least 2,000 weapons vanished into the criminal black hole on the US-Mexico border, only to resurface later in investigations into the killings of Mexican police and soldiers, as well as the murders of US Border Patrol agent Brian Terry and Jaime Zapata, an agent of US Immigration and Customs Enforcement (ICE).
In testimony before Congress, Holder claimed he wasn’t aware of Operation Fast and Furious until early 2011, but the Republican-led House Judiciary Committee produced documents that indicated Holder had received and responded to memos on the subject prior to 2011. A party-line vote of the Committee recommended that the full House declare Holder in contempt of Congress, and on June 28, 2012, Holder became the first sitting Attorney General to be held in criminal and civil contempt of Congress. The Obama Administration cited executive privilege in refusing to prosecute Holder, and the DOJ’s Inspector General’s office later cleared him of any charges. Subsequent attempts by House Republicans to impeach Holder have gone nowhere.
Holder has also tended to exacerbate rather than heal America’s racial divisions. In 2009, he called the United States “a nation of cowards” on race, and this summer he charged — perhaps correctly, but not helpfully
— that some criticism of President Obama was rooted in racial antipathy.
“There’s a certain level of vehemence … that’s directed at me and directed at the president,” said Holder on the ABC News program “This Week.” “You know, people talking about taking their country back … there’s a certain racial component to this for some people. I don’t think this is the thing that is a main driver, but for some there’s a racial animus.”
There is no doubt that racist attitudes persist among some white Americans, whether consciously or unconsciously. But Holder himself has often seemed to be quite self-consciously making decisions based on race. Shortly after taking office he summarily dropped an investigation into voter intimidation by the New Black Panther Party. Last year Holder sued Texas and North Carolina subsequent to a US Supreme Court decision that voided a portion of the 1965 Voting Rights Act that required Southern states to obtain federal approval prior to changing their voting laws.
In the original case, known as Shelby County v. Holder, an Alabama county sued in federal court claiming that the applicable sections of the Voting Rights Act constituted an undue burden on that state’s right to enact its own voting laws under the principles of federalism and equal state sovereignty. In a narrow 5-4 decision the Court agreed, striking down the specific provisions, which were based on 40-year-old data, but preserving the federal government’s right to intervene subsequent to a demonstration of systematic voter discrimination.
In a transparent swipe at the Court, the DOJ promptly sued Texas and North Carolina for enacting voter identification laws that Holder said amounted to discrimination. Admittedly, some provisions of those laws were absurd: in Texas, for instance, an expired gun registration card from another state is considered acceptable as identification while a social security card is not.
But the DOJ hasn’t produced any evidence that these voter ID laws amounted to systemic discrimination against African-American voters. In fact, as former Attorney General Ed Meese points out in today’s Wall Street Journal, “Overall turnout in Texas rose to 1,144,844 in 2013, from 690,052 votes cast in 2011. In several counties dominated by minorities, turnout increased even more significantly.
So, why did Holder sue? It’s hard to avoid the conclusion that he did so for purely symbolic reasons, which in turn earned him the applause of the professional civil rights establishment.
There is also Eric Holder’s role in undermining the Defense of Marriage Act (DOMA), which he was sworn to uphold and defend. On February 23, 2011, Holder issued a statement in which he announced that the DOJ would no longer defend the constitutionality of Section 3 of DOMA, which established the federal meaning of marriage as the legal union between one man and one woman. “I will instruct Department attorneys to advise courts in other pending DOMA litigation of the president’s and my conclusions that a heightened standard should apply,” wrote Holder, “that Section 3 is unconstitutional under that standard and that the Department will cease defense of Section 3.”
Of course, the President and Attorney General don’t have the power or right to make such conclusions, which is the role of the Supreme Court. Obama and Holder used two court challenges to Section 3 — Pederson v. OPM and Windsor v. United States — to elevate their personal policy preferences over the law of the land. And while Holder later claimed to have been vindicated by the Supreme Court’s decision in Windsor, a vigorous defense of DOMA might have swayed that narrow 5-4 decision. Holder’s job, like Obama’s, was to enforce the law, not to refuse to do so.
Finally, Holder refused to break with the Administration’s hard line on the HHS mandate that religious institutions either provide or fund contraceptive coverage for their employees. Even in the wake of the Hobby Lobby decision, Holder’s DOJ promised to vigorously litigate violations of the mandate, regardless of the implications for religious liberty. This is of a piece with the other assaults by Holder’s DOJ on religious liberties for homeschoolers, Christian schools, pro-life activists, and others.
Eric Holder is leaving the Department of Justice, but he won’t really be gone. If there’s one thing the recent history of our country tells us it’s that no one in Washington is ever really gone. Holder’s Justice Department office is located at 950 Pennsylvania Ave. Soon he’ll resume his partnership at Covington & Burling, the white-shoe law firm located at 1201 Pennsylvania Ave., just two blocks away.
Mark Gordon is a partner at PathTree, a consulting firm focused on organizational resilience and strategy. He also serves as president of both the Society of St. Vincent de Paul, Diocese of Providence, and a local homeless shelter and soup kitchen. Mark is the author of Forty Days, Forty Graces: Essays By a Grateful Pilgrim. He and his wife Camila have been married for 30 years and they have two adult children.
