LIFER JUNE 20, 2013
Alberto Gonzales is very few people’s idea of a sterling attorney general, but even he had lines he wouldn’t cross. In May, Gonzales talked to MSNBC about the controversy swirling around his successor, Eric Holder, who personally approved the surveillance of Fox News reporter James Rosen; the Justice Department (DOJ) also tapped as many as 20 phone lines at the Associated Press. In the interview, Gonzales revealed that he had once faced a similar situation, in which he was presented with a potential investigation of a leak to a reporter. “We ultimately decided not to move forward,” he said: Criminalizing journalism was a step too far.
How did Gonzales manage to hold the line where Holder failed? After all, Holder has dedicated most of his time in office to cleaning up the very excesses that Gonzales enabled. With varying degrees of success, Holder has attempted to restore due process for suspected terrorists, investigate torture, and end warrantless wiretapping. But it shouldn’t come entirely as a surprise that he has fallen so short of his aims. Throughout his career, Holder has proved remarkably adept at rising in Washington, but too often he’s allowed his higher liberal aspirations to be subsumed by institutional pressures.
Early on, Holder felt a keen obligation to improve the welfare of others. He grew up in Queens, was selected for a gifted-students program, and attended Columbia, where he studied law. As a student, he mentored young black kids in Harlem, an experience that affected him profoundly. “You especially couldn’t be a black student at Columbia in Morningside Heights and not be involved in a community that was so close,” he once recalled. Holder decided to pursue a career in public interest law, and when he entered the DOJ in 1976, he asked to be placed in its Public Integrity section, where he made an impression investigating corruption.
Holder has once again found himself publicly expressing regret for failing to uphold principles he believes in.
In 1988, Holder was appointed as a superior court judge in Washington, and people then tended to describe him in the same way that people do now: genial, decent, modest. “I hope I’m projecting an attitude that I’m in control and at ease up there,” he said to a reporter at the time, in his characteristically disarming style. “But there are times, maybe even a majority of the time, when that’s not true.” Five years later, he was appointed the U.S. attorney for Washington, D.C., the first African American to serve in the post. For someone with Holder’s sense of public service, it was a rare opportunity.
Washington then was deep in its dysfunctional period—wracked by crime and corruption that was so brazen it had become a form of public theater. When past U.S. attorneys, all of them white, had gone after malfeasance, they had been dogged by accusations of racism. Holder spoke enthusiastically of “broaden[ing] the scope of this job” to help address the root causes of crime. But this was also his first real experience with hardball politics, and, not for the first time, he was unable to make his agenda stick. The local media uncovered story after story pointing to possible illegal behavior in Mayor Marion Barry’s administration, and Holder opened case after case. But he was criticized for failing to pursue the targets aggressively. At the time, Fred Cooke, a former general counsel for the city who had previously worked on Barry’s campaign, opined that Holder took a low-key approach in order to avoid making too many enemies. And before very long, Holder had received another promotion, leaving office with Barry’s dubious administration largely unscathed.
Holder returned to the DOJ in 1997, this time as Janet Reno’s number two. In that role, he is best remembered for going along with President Bill Clinton’s pardon of the fugitive Marc Rich. It’s probably true that, as he claimed, he didn’t give the matter much thought. But it is also likely that he bent to White House pressure. He later publicly expressed regret for the episode, a tacit acknowledgment that he buckled where he shouldn’t have.
After Barack Obama named Holder attorney general, he appeared energized by the task of restoring an institution to which he’d dedicated most of his professional life. He embarked upon a listening tour, starting with the divisions that had been the most beleaguered during the George W. Bush years. But there were early signs that he had a less than sure-footed approach to the politics of the job. He gave a speech on race in which he declared that the United States had too often been a “nation of cowards.” It was moving and acute, and also a political disaster. The next year, Holder vowed to provide civilian trials for accused terrorists, but was forced by the White House to make a humiliating reversal. The aborted plan to try Khalid Sheikh Mohammed in New York City, one legal expert told me, was “handled as badly as anything I can remember during my time [in Washington].” “The biggest surprise I’ve had in this job is how much time the national security issues take,” Holder told GQ in 2010—which in itself was a startling admission.
Holder’s admirers credit him for what one former colleague calls “the reinvigoration of the pre-9/11 sides of the department,” such as the FBI’s non-terrorism work. But even when it came to one of his most cherished causes—strengthening the department’s civil rights division—he was once again unable to realize his goal. While the department took a strong stand against egregious voting restrictions in Texas and South Carolina, its inspector general has found that the division has become badly politicized under Holder, with conservative career lawyers harassed by their colleagues. Richard Hasen, the election law expert, said, “Ultimately, it falls on him.”
And then there is the fact that this administration has prosecuted more leakers than every previous administration combined. Several DOJ watchers speculated that the department had been feeling heat from its prosecuting attorneys to deal with leaks. According to a former colleague, pressure was coming from the national security community, too. But it was Holder’s call to initiate a process that led to tapping reporters’ phone lines and searching their e-mails. Either he approved the warrants, or he recused himself and allowed an underling to make the decision. “Loyalty to staff” is one reason he is generally liked within the DOJ, says a legal expert who knows Holder, but it also “limits him.”
History doesn’t offer many examples of attorneys general retiring to positive reviews. (Think of Ed Meese, Reno, or Gonzales.) The office has a fundamental conflict embedded in its mandate: It is required to both take orders from and investigate the White House. Nearly every recent attorney general has run afoul of this inherent contradiction. As one Washington legal expert told me, the job “has not been great for reputations.”
And Holder’s is more damaged than he ever could have imagined. He has once again found himself publicly expressing regret—in this instance, approaching anguish—for failing to uphold principles he clearly believes in. Whenever he ultimately leaves office, his grand hopes for repairing the damage done by the Bush administration will almost certainly remain unfulfilled. It’s the kind of Washington story that’s no less tragic for being so familiar—the story of genuine ideals, eroded by success.
Isaac Chotiner is a senior editor at The New Republic. Follow him @IChotiner.