Eric Holder’s unexpected resignation as attorney general, his tearful exit, and the unceremonious way he was shown the door all suggest a forced departure. To which may I add two words: good riddance.
Editorial assessments of Holder’s performance have noted his efforts to defend voting rights and gay equality, and his attempt to defuse racial tensions in Ferguson, Missouri, in the wake of the shooting death of Michael Brown. Enough said.
There are three things that matter about Eric Holder’s legacy, and they matter very greatly. The rest is small change.
On Holder’s watch, the surveillance of American citizens by various agencies of the state increased exponentially, which included shredding Fourth Amendment protections against the unreasonable search and seizure of private documents and communications. The serial breaches of law by these agencies were noted and censured by the Foreign Intelligence Surveillance Court judges appointed to oversee federal intelligence collection.
This was no secret to the Justice Department, which early under Holder’s tenure moved to prosecute a Pulitzer Prize-winning journalist, James Risen of The New York Times, for revealing the massive intrusion of spy agencies on the private lives of American citizens. The responsibility of his office was, of course, to halt and prosecute this illicit surveillance, as with any other federal crime. Instead, he moved to shoot the messenger.
His response was the same when a contract employee named Edward Snowden blew the whistle on the National Security Agency’s unprecedented spying, which would ultimately reach to the very Senate committee investigating its activities. Holder revoked Snowden’s passport and charged him, as he has Risen and six others, with violations of the 1917 Espionage Act — more than all previous prosecutions under this act combined.
Espionage itself was not alleged; instead, they were only charged with the unauthorized possession or disclosure of information that was embarrassing to the government: in short, whistle-blowing, or in Risen’s case, the exercise of the First Amendment rights of free press.
Another class of actual criminals who have gone scot-free under Holder was the group of bankers, brokers, insurers and accountants who brought down the world economy in 2008 and have continued, thanks to government bailouts and Justice Department inaction, to prey on it to the present moment.
When a similar gang did much the same thing in Great Depression I 80 years ago (to distinguish it from our present iteration, Great Depression II), a fair number of malefactors went to jail.
The same thing happened after the Savings and Loan meltdown in the 1980s. Even the Enron debacle sent Jeffrey Skilling to jail.
In nearly six years in office — it will be six before a replacement is confirmed — Holder has not prosecuted, let alone convicted a single high-ranking figure in the world of finance, settling for the occasional minnow and the levying of fines that, for trillion-dollar corporations, hardly amount to the cost of a three-martini lunch.
The message, as with BP in the Gulf of Mexico, Massey Energy in West Virginia, and agribusiness polluters and shale frackers around the country, is a green light for economic and ecological destruction. Thanks to Holder, the next financial collapse — and the next environmental disaster — have been brought measurably closer.
The initial excuse offered by Holder for this sorry record is that it was difficult to prove legal culpability at top executive levels. No doubt it is, but where there’s a will there’s a way, as the Roosevelt, Reagan, and Bush Justice Departments all proved in their day.
When this was pointed out, Holder fell back on the astonishing proposition that as some large banks and businesses were too big to fail for the sake of the economy, some bankers and businessmen were similarly too big to jail.
The message here too was clear — don’t worry about beating the rap, because there won’t be any. This attorney general will not prosecute corporate criminals, only the shareholders who pay the actual price of his token fines.
The above malfeasances would be enough to place Eric Holder on a short list of our worst attorneys general that includes A. Mitchell Palmer, of the post-World War I Red Scare, and John Mitchell of Watergate fame.
But Holder in one bold stroke eclipsed them all. Speaking to a law school audience at Northwestern University on March 5, 2012, he defended President Obama’s targeting of American citizens for secret assassination abroad. This, he said, was within the constitutional authority of the executive.
Well, silly me. I thought the due process clause of the Fifth Amendment required the public accusation of a criminal offense and the presentation of evidence in open court before a jury of one’s peers. Not so, according to Holder.
In the case of someone acting for or abetting a terrorist organization whose apprehension might be difficult, an executive procedure designed and exercised in secret was sufficient to reach a capital judgment because, after all, the phrase “due process” in the Constitution was not defined in terms of judicial action — could be, in fact, any old process at all.
Never mind that when the amendment was written “due process” had meant trial by jury for more than 500 (now 800) years, and that secret tribunals of any kind had been expressly forbidden under English law since 1641. Even the Star Chamber courts of the Tudors and Stuarts had never claimed the right to pronounce a sentence of death on any English subject. For that matter, Hitler and Stalin themselves never asserted the legal right to target citizens for assassination in secret.
They carried out such assassinations in fact — as George W. Bush did — but they never publicly acknowledged or defended them. That was left to Eric Holder, whose name deserves infamy because of it.
Now, Holder was simply his master’s voice in this matter, as in the abuse of the Espionage Act to curb freedom of the press and protect illicit surveillance, or in the decision not to prosecute the architects of our financial collapse. His job, in short, was to front for what has turned out to be at once the most feckless and the most lawless administration in American history.
That, unfortunately, is no excuse for him, any more than it can be for any bureaucrat who claims simply to have licked boots and followed orders.
And it is worse, too, in this case than in any other. For a representative of the law to stand it on its head and to then proclaim that black is white — before an audience of future lawyers, no less — is beneath contempt. But, for precisely that reason, it cannot go unanswered. It requires the most urgent condemnation.
Robert Zaller is a professor of history at Drexel University. He can be contacted at [email protected]