Barack Obama looks likely to pick Eric Holder — who during the Clinton administration held the number two post at Justice — to be his next attorney general.
Under Bush, as TPMmuckraker has chronicled, the department was subjected to an unprecedented degree of politicization, and generally exhibited a striking lack of independence from the priorities of the White House — problems for which ex AG Alberto Gonzales, who had been George Bush’s personal attorney in Texas, was ultimately forced to resign.
So we’ve combed through Holder’s record of public comments to see whether, on these crucial issues, he seems likely to continue what Bush started, or to reverse it. Here’s what we found:
For one thing, unlike Gonzo — and despite Holder’s failure to stop Clinton’s last-minute pardon of the financier Marc Rich, for which he’s already begun receiving heat — he doesn’t seem likely to be the president’s stooge.
As The American Lawyer wrote in a profile this year, Holder was independent enough that he advised then-AG Janet Reno to allow the widening of Ken Starr’s investigation into the Monica Lewinsky affair — which ultimately led to Clinton’s impeachment.
And in a 2006 interview with National Journal for a story about Gonzales’ performance as AG, Holder called the attorney general “the one Cabinet member who’s different from all the rest.” He continued: “The attorney general serves first the people, but also serves the president. There has to be a closeness, at the same time there needs to be distance.”
Holder also seems less willing than his potential predecessors under Bush to take an expansive view of presidential power.
In 2004, Holder told CNN:
“If you’re going to listen in on attorney/client conversations, as we did in the Clinton administration, the difference was we asked a judge to authorize it as opposed to simply saying we in the executive branch by ourselves can do this without any supervision by a judge. You also need to report to Congress on a regular basis to let them know what you’re doing under the act.”
Two months later, introducing (pdf) Al Gore at an American Constitution Society (ACS) discussion of “Institutionalized Dishonesty in the Bush Administration,” Holder observed:
Military success and respect for civil liberties can — and in fact, they must — coexist. In achieving victory, we must not lose our nation’s soul.
He added:
And we must also be mindful of the tactics we employ because the contemporary world, and ultimately history, will judge us only–not only by the magnitude of our inevitable victory, but also by the manner in which it was won.
And this June, in another speech at ACS, he spoke out against the Justice Department’s stance on torture and the Geneva Convention:
I never thought I would see the day when a Justice Department would claim that only the most extreme infliction of pain and physical abuse constitutes torture and that acts that are merely cruel, inhuman and degrading are consistent with United States law and policy, that the Supreme Court would have to order the president of the United States to treat detainees in accordance with the Geneva Convention, never thought that I would see that a president would act in direct defiance of federal law by authorizing warrantless NSA surveillance of American citizens. This disrespect for the rule of law is not only wrong, it is destructive in our struggle against terrorism.
Still, as Salon‘s Glenn Greenwald has noted, Holder hasn’t always taken that position. In January, 2002 — admittedly, during a period when 9/11-induced panic was prompting a lot of otherwise smart people to take a hard line on these questions — he told CNN:
One of the things we clearly want to do with these prisoners is to have an ability to interrogate them … Under the Geneva Convention … you are really limited in the amount of information that you can elicit from people.
In other words, despite some blemishes, it seems likely that under Holder, DOJ will begin a much-needed shift back towards being the non-partisan, independent law enforcement agency that, until Bush, it was known as.
