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Wanted: An Attorney General Interested In The Law

Eric Holder speaking at a podium, an American flag to his left
photo by Ryan J. Reilly

Eric Holder probably ran the most political Justice Department since John Mitchell was the attorney general in the early years of Richard Nixon’s presidency.

Mitchell, who managed Nixon’s successful White House campaigns in 1968 and 1972, had a well-deserved reputation as the president’s hatchet man. Holder, though on the opposite end of the political spectrum from Mitchell, has operated like a Chicago ward heeler, reporting to local boss President Obama.

Thus, Holder’s focus was on putting more bankers behind bars while shortening prison terms for low-level drug dealers and other petty criminals. Some people would consider either or both of these to be worthy objectives, but the priorities driving them were about satisfying polls and constituents, not about the demands of the law.

The White House confirmed last week that Holder will resign. He plans to stay until the Senate ratifies his yet-to-be-named successor. If that does not happen prior to December, Holder will leave office as the third-longest serving attorney general in United States history.

A recent profile in Politico Magazine called Holder “the Survivor.” Though he had plenty of critics within the West Wing, Holder formed one of the closest personal relationships with Obama of any member of the Cabinet.

Under Holder, financial institutions have been pressed not to pay for the defense of their employees and to waive attorney-client privilege to provide evidence that could be used to prosecute them. The Justice Department won few convictions, but it collected huge penalties and fines even in the absence of financial institutions agreeing they had done anything wrong, with damaging consequences for the economy.

There was, however, no interest at Holder’s Justice Department in prosecuting malfeasance within the executive branch, whether in connection with gun running by the Bureau of Alcohol, Tobacco, Firearms and Explosives (the now famous Fast and Furious operation) or with the targeting of conservative groups by the IRS. The former incident’s fallout resulted in Holder being held in contempt by Congress, making him the only sitting Cabinet member ever to face such a rebuke.

Political prosecutions by Holder’s department instead have largely been the purview of the U.S. attorneys who report to the attorney general. Those prosecutors have mainly made a habit of bringing cases against Republican officeholders and candidates.

Holder was far too quick to paint his battles with Congressional critics as motivated by race, rather than by policy or performance. To him, conversations about race were a one-way street. Granted he was right to point out, as have the president and others, the damage caused by the wholesale, long-term incarceration of minority men. He was also right to fight the abuses, petty and not so petty, inflicted on generally poor neighborhoods by careless or overly aggressive police.

Yet there was no room in Holder’s view for the reconsideration of antiquated antidiscrimination provisions, such as the now-defunct preclearance provisions of the Voting Rights Act, which made Holder’s Justice Department the arbiter of all election laws in some parts of the country, but not others, based on data from before most living Americans were born. He likewise rejected the proposition that it is time to revisit our country’s stance on affirmative action, supporting the dissenters in this spring’s Supreme Court ruling in Schuette v. Coalition to Defend Affirmative Action. He described laws requiring voters to carry identification as the modern-day version of the poll taxes that were used to deny voting rights in the Jim Crow era.

Holder’s Justice Department has meanwhile gone out of its way to avoid adjudication of controversial issues such as whether civil rights cases can lawfully be brought based on alleged “disparate impact” of some private and public behavior that has no discriminatory intent. That is not the approach of an agency intent on fostering justice; it is one aimed at evading it.

Let’s not forget that during his long tenure, Holder presided over the elevation and dramatic expansion of the American intelligence state with nary a peep about whether the privacy rights of hundreds of millions of his fellow citizens were being violated. That comes as little surprise from an attorney general who countenanced the surveillance and prosecution of journalists who reported on matters that Boss Obama preferred to keep hidden.

Mitchell was a Wall Street lawyer who had political skills that he placed at the disposal of Nixon, who was briefly his law partner. Author James Rosen noted a few years ago that when the potent statute known as RICO - the Racketeer Influenced and Corrupt Organizations Act - was enacted in 1970, Mitchell suggested deferring its use against Mafia bosses until after that year’s elections, to avoid losing Italian-American votes.

That same year, he sidestepped calls for federal prosecutors to investigate the fatal shooting of four students by National Guardsmen at Kent State University. Instead, Mitchell put the matter in the hands of a local grand jury that exonerated the guardsmen and indicted 25 people, mostly Kent State students, in connection with the antiwar demonstrations. (One defendant was later found guilty at trial, one was acquitted, two pleaded guilty to rioting and the remainder were dismissed for lack of evidence. None of the three who were convicted were students.)

Mitchell left the government in 1972. He was eventually convicted in connection with the Watergate scandal and served 20 months in federal prison, the highest ranking member of the executive ever imprisoned for actions taken while in office. His successors were more firmly committed to the actual rule of law.

Those successors notably included Elliot Richardson, who chose to resign rather than obey Nixon’s order to fire Watergate special prosecutor Archibald Cox. Less well known is the fact that, shortly before his departure, Richardson defied Nixon and reopened the Kent State investigation, which led to the 1974 indictment of eight guardsmen who were on the campus that day. (A federal judge dismissed the criminal case against the guardsmen after ruling that the prosecution failed to prove the charges beyond a reasonable doubt. The families of the four dead and nine wounded in the shooting eventually received $675,000 and a “statement of regret” from the state of Ohio in a civil settlement.)

Here’s hoping that Holder’s successors, like Mitchell’s, turn the focus of the attorney general’s office away from politics and back to justice. One John Mitchell, or Eric Holder, in every generation is more than enough.

Larry M. Elkin is the founder and president of Palisades Hudson, and is based out of Palisades Hudson’s Fort Lauderdale, Florida headquarters. He wrote several of the chapters in the firm’s book, Looking Ahead: Life, Family, Wealth and Business After 55. His contributions include Chapter 1, “Looking Ahead When Youth Is Behind Us” and Chapter 4, “The Family Business."

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