“Eric Holder’s War,” The American Prospect, March 2010.
For the attorney general, remaking the rule of law in a new century is as personal as it is professional.
Hours before dawn on one of the last days of October 2009, the deadliest month for American troops in Afghanistan since 2001, Eric Holder, attorney general of the United States, strode out of a C-17 cargo plane parked at Dover Air Force Base in Delaware. President Barack Obama, having reversed the ban on media coverage of the arrival of war dead at Dover, trailed just behind. During the official military ceremony, the two friends stood in dark suits, silently saluting 18 servicemen, including three Drug Enforcement Agency officials claimed by the Afghan War days prior. The aggrieved expressions on their faces were identical.
Holder’s presence was surprising. The attorney general has played only a minor role in the public debate over issues of war and peace. But as the president contemplates the legal and logistical puzzles bequeathed to him by George W. Bush — chiefly the management of what the administration no longer calls a “war on terror” — Holder has provided crucial, if understated, counsel and support.
As a Justice Department veteran in an administration elected on a message of change, Holder is both an insider and an outsider — a dual role to which he has grown accustomed in his decades of working in Washington. One of his first meetings as attorney general was with Janet Reno, his Democratic predecessor and former boss. Yet he has adopted an “in with the new” attitude, focusing on reversing Bush-era policies that gutted civil-rights protections, for example. Holder has also been forced to confront a set of legal questions relating to terrorism — including touchy jurisdictional negotiations with the Department of Defense and the relatively young Department of Homeland Security — that rarely crossed his desk in such high volume, or with as much urgency, in the Clinton days.
In an era where counterterrorism outstrips traditional law-enforcement activity in its ability to generate headlines, Holder must balance agency priorities. His long tenure in Washington has gifted him a certain bureaucratic agility — he was able to keep his department out of the messy public wrangling between the White House and the Office of Legal Counsel over the release of incriminating photos of detainees being abused. At other junctures, such as his controversial Black History Month speech about race relations in America, his lack of interest in Washington’s political politesse is evident.
Through it all, he has managed to maintain a close relationship with the president. For Holder and for Obama, both talented lawyers and torchbearers for black political power in America, remaking the rule of law in a new century is as personal as it is professional. This is a war they fight together.
The Obama-Holder partnership began in a dining room in upper Northwest Washington, D.C. In late 2004, Ann Walker Marchant, a media consultant and cousin of Obama senior adviser Valerie Jarrett, hosted a dinner party to which she invited the young senator-elect and Holder, a 30-year veteran of the capital. Vernon Jordan, a former Bill Clinton adviser and Marchant’s uncle, has joked that “all black people that finish college know one another.” But the two Ivy League lawyers with immigrant fathers had never met. When Marchant seated the lanky basketball junkies next to one another, they discovered their now well-known biographical similarities — from attending Columbia University as undergraduates to slogging out years of public service while their wives served as the family breadwinners.
“I wasn’t setting anybody up on a date,” says Marchant, who had known the Obamas and the Holders separately for years. “But there was a connection, a conversation, and clearly there was an affection that was created.” A scant five years later, the two friends have run a successful presidential campaign, put together their dream team of lawyers and policy thinkers, and are, incidentally, the first African American president and attorney general.
Like Obama’s road to the White House, Holder’s journey to the pinnacle of legal authority in America was somewhat improbable. He was born in New York City, 10 years before the president, to a father from Barbados and a mother from New Jersey. At age 14, he began a daily commute from his mixed-race, mixed-income neighborhood in Queens to Stuyvesant High School, a prestigious public school in Manhattan. He entered Columbia in the fall of 1969, just in time to grow an Afro and participate in some heated student protests. (Holder, now a trustee of the university, has left both behind.) He entered the university’s law school upon graduation, and after a year at the NAACP Legal Defense Fund in New York City, he joined the Justice Department he leads today.
When he first arrived in the capital, the 25-year-old Holder worked as a prosecutor at the agency’s brand-new public–integrity unit and joined a gaggle of young lawyers also making their way in the capital — including successful African Americans like Eric Washington, now chief justice of the D.C. Court of Appeals; James Dyke, former state secretary of education for Virginia; Alexis Herman, the first black secretary of labor; and then–public defender Charles Ogletree, now a scholar at Harvard Law School, where he taught both Michelle and Barack Obama. The young professionals shot hoops after hours, went to parties, and played rounds of bid whist, a card game popular among African Americans of their generation.
“Clearly he was a star lawyer then,” says Ted Shaw, a Columbia professor and former director of the NAACP Legal Defense Fund who has maintained a close friendship with Holder. “But Eric was down to earth and he was one of the fellas, and still is in many ways,” he says. Adds Ogletree, “The same conversation you’d have with Eric Holder at the Department of Justice you’d have in his living room, or in a quiet conversation during summer break at Martha’s Vineyard, or at a barbecue in Washington, D.C.”
Holder’s relationship to his blackness has been a prominent part of his intellectual biography. He met his wife, physician Sharon Malone, at a 1989 fundraiser for Concerned Black Men and the Coalition of 100 Black Women. Malone was raised to be mindful of the unfinished business of America’s original racial sins — her sister Vivian had integrated the University of Alabama in the face of open threats from then-Gov. George Wallace. “I’m forever colored by my experiences growing up in the segregated South,” Malone told Essence magazine last year. Holder, who spent his 30s working as U.S. attorney for the District of Columbia and as a regular tutor with Concerned Black Men, has incorporated a similar belief system into his career. Speaking about crime and race in 1994, he averred: “Racism is still out there, and it’s something that we always have to be vigilant about, and we have to confront it, fight it whenever it’s found.”
In 1997, after successful turns as a U.S. attorney and then as a D.C. superior court judge, Holder was named deputy U.S. attorney general by President Bill Clinton. Under Reno, Holder prosecuted money launderers, worked on terrorism cases in the aftermath of the 1995 Oklahoma City bombing, and built a powerful social network that extended to high and sometimes unlikely places — former Sen. John Warner, a Republican from Virginia, introduced him at his 2009 confirmation hearing as an old friend.
Today people describe Holder using words often associated with president Obama: “Calm.” “Thoughtful and deliberate.” “Elegant and analytic.” Also, invariably, another adjective applies: Washingtonian. Just as Chicago’s politics catalyzed and defined Obama’s rise to power, the nation’s capital has been a dominant motif in Holder’s. He has practiced every type of law in Washington and, like Obama in Chicago, has spent decades navigating his adopted city’s folkways, white and black. Holder was “playing the dozens,” Shaw says, in a city that once had a separate bar system for African American lawyers.
Over time, his friends matured into a loosely knit circle of black talent that convenes to dance to Motown records at Holder and Malone’s home, anchor first lady Michelle Obama’s surprise 46th birthday celebration, or to mourn the passing of forerunners like D.C. Superior Court Judge Harriet Taylor. At the same time, Holder has well-placed allies like Warner, longtime Senate Judiciary Chair Patrick Leahy, and Reid Weingarten, a partner at the white-shoe law firm Steptoe and Johnson. Malone delivered White House Chief of Staff Rahm Emanuel’s eldest child. “There’s a misconception that everyone in Washington comes from someplace else,” says Marchant. “Eric and Sharon and many of their friends are Washingtonians. You’ve got a perspective of the city outside of the 18 acres behind the gates.”
The personal connection to D.C. invariably influenced the political. As U.S. attorney for Washington, D.C., Holder attempted to break down the barrier between federal and local Washington. He localized the office’s crime work, bringing U.S. attorneys into each ward of the city. For a time, he flirted with the idea of running for mayor. “He operates … not as somebody who has risen above what has been his hometown for so many years but somebody still involved in it,” says Eleanor Holmes Norton, who represents D.C. in Congress and is a friend of Holder’s. Today, the same man who addresses his daughter’s classmates at posh Georgetown Day School can be seen wading into the debate on choice in the D.C. public school system or staying late to hand out every last diploma to the Howard University Law School Class of 2009. “Eric is someone who knows Washington in both ways,” Shaw says.
Holder left the federal government on bitter terms in 2001, under fire for his role in the presidential pardon of disgraced fugitive financier Marc Rich. He joined the heavyweight Washington firm Covington and Burling, where he waited for the political winds to shift. The Justice Department was never far from his mind. Privately, “he talked about things that he thought needed to be changed,” Marchant says. “You could tell from the passion behind his discussion of issues that he wanted to be in the game.”
Holder’s biographical doppelganger presented the perfect opportunity. In the weeks before both Obama and Hillary Clinton announced their candidacies for president, many in Washington were picking their ponies. Holder had maintained a friendly and occasional relationship with Obama — at times consulting with his office on crime policy — while his relationship to the Clintons had soured somewhat in the wake of the Rich controversy. So when the “skinny kid with a funny name” decided to take a shot at the White House, Holder told him, “Come on, you don’t have to sell me on this. I’m in.”
Holder threw himself into the two-year campaign, traveling from town halls in Iowa to celebrity fundraisers in California, pushing hard for Obama where he had influence and small-talking with the candidate about basketball just minutes before his high-stakes speech on race. As Jarrett said of Holder at the height of the primary season, “There isn’t a day that we don’t talk.” He was one of three advisers tasked with selecting the president’s running mate. When Obama swept into office in November 2008, his team didn’t have to think very hard about who could run Justice.
Obama’s selection of Holder was hailed by legal watchers and government workers alike as a great leap forward toward the rehabilitation of a department tarnished by scandals and mismanagement during the Bush years. “Holder is a breath of fresh air for people who care about law and justice,” says Roger Wilkins, a Holder acquaintance, civil-rights pioneer, and veteran of the Justice Department under Lyndon Johnson.
Friends and supporters say Holder’s long history of public service doesn’t counter Obama’s message of change — it’s an asset. “Everyone knows him as a moderate,” says Sen. Charles Schumer of New York, who has known Holder for over a decade. “Holder has the advantage of having been around long enough to hit the ground running.” Norton, who defended the attorney general during controversial hearings regarding the Rich pardon, says, “We feel vindicated. That’s the only word for it, vindicated.”
While Holder is a veteran public servant with cross-partisan appeal, he still retains some of the unvarnished sense of racial obligation that Obama tends to downplay. In 1994, when Holder and Malone were featured in Ebony magazine, Holder noted: “It’s incumbent upon the other Black U.S. attorneys and me to be the best we can. … That’s a pressure I wouldn’t have if I were white and serving in this job.”
“It’s good to be back,” Holder declares at the close of a January 2009 video message directed at all career Justice employees, pledging to “restore the credibility of this department.” Indeed, his tenure promises to resolve many long-running debates on civil-rights provisions, environmental regulations, and criminal justice and drug policy, as well as the delicate balance between American security and its basic freedoms and moral principles. Taking some cues from the broad themes of the Obama campaign — transparency, people power, accountability, and equity for all Americans — Holder has directed the department to set up interagency task forces on interrogation and detention practices, shepherded new protections against hate crimes through Congress, spoken out on “the crisis in indigent defense,” decriminalized medical marijuana use, demanded new protocols for hiring U.S. attorneys, and declared that the agency’s Civil Rights Division is once again “open for business.”
“They’re reviewing everything de novo,” says Caroline Fredrickson of the American Constitution Society, contrasting the new climate with the attitudes of the Bush Justice Department. “There is clearly an effort to be much more inclusive in terms of hearing from different parts of the advocacy community and trying to understand the implications of policy for civil rights, for human rights, and for international obligation.” Holder, who boasts more goodwill in Washington than perhaps any attorney general in recent memory, has cultivated relationships with groups like the American Civil Liberties Union and law-enforcement officials around the country, as well as Cabinet members like Secretary of Defense Robert Gates and Secretary of Homeland Security Janet Napolitano. At the same time, he’s taken fire from both the left and the right for stances ranging from his invocation of the “state secrets” privilege in three instances in 2009 to his sanction of random drug sweeps in cities across the country.
Behind the scenes, Holder is restless, driven, and preoccupied with fairness. “I am an impatient attorney general,” he said, citing British diplomat William Gladstone at the ceremony installing Tom Perez at the Civil Rights Division. “The quest for justice must be an impatient thing — for we all know what happens when justice is delayed.”
Despite the unexpected December departure of his deputy, David Ogden, Holder is also said to be a competent manager of a sprawling government bureaucracy. Conscious that department morale had plummeted in the last years of the Bush presidency, he spent the first months of his tenure on a “listening tour.” Visiting the hardest-hit divisions first, Holder presented his vision for Justice and then took questions from employees. According to a former Justice Department aide, this unprecedented courtesy stunned the line attorneys, whose ranks Holder had left behind long ago.
His fixation on rehabilitation and reconnection has meant outreach to communities neglected during the Bush years — particularly men of color, who are more likely to encounter the criminal-justice system as suspects than as attorneys general. As a prosecutor, he lamented the “huge numbers of young children in [Washington, D.C.] who are starving, not for food, but for attention,” adding, “Men, in particular black men, need to be involved with these kids.” In addition to staffing up at the Civil Rights Division, which lost 70 percent of its lawyers between 2003 and 2007, Holder has appointed the first African American woman to head the Office of Juvenile Justice and Delinquency Prevention and invited Ogletree to moderate a panel with public defenders to prepare them for future work with the department. In collaboration with the White House Office of Faith-Based and Neighborhood Partnerships, he’s lectured on fatherhood at historically black Morehouse College in Atlanta. In October, following the brutal beating of a 16-year-old honor student in Chicago, he flew to the scene of the crime to address the problem of youth violence.
In February 2009, Holder’s views on race received an enormous amount of attention after his speech to staff of the Justice Department in honor of Black History Month. “Though this nation has proudly thought of itself as an ethnic melting pot,” he said, “in things racial we have always been and continue to be, in too many ways, essentially a nation of cowards.” He urged Americans to be more forthright in their discussions of racial and ethnic difference, challenging the idea that race had ceased to be a major factor in the criminal-justice system, the workplace, or elsewhere in America. Critics blasted Holder for snuffing the celebrations of a nation that had just elected its first black president — and even the White House quickly distanced itself from Holder’s remarks. Emanuel reportedly called Holder in a fit about the “nation of cowards” phrase, and Holder was compelled to review media protocols with press secretary Robert Gibbs and senior Obama adviser David Axelrod. “If I had been advising my attorney general,” Obama said later, “we would have used different language.”
Several of Holder’s close friends say that the speech was merely a public pronouncement of what the attorney general has long felt about being black in America. “He’s mindful of the fact that he, too, has been in situations where people have made assumptions about him based on his race,” Ogletree says. “And he wants to make sure that those assumptions are made on the lawfulness and lawlessness and not on the color of one’s skin or one’s accent or their country of origin.”
Holder’s views on race and politics have been consistently more traditional — and thus perhaps more radical — than those of Obama, who was raised in a very different time and place. Obama’s March 2008 oration on race, which moved Holder to tears, was considerably more politically calculated than Holder’s retread nearly a year later. Obama was explanatory; Holder was exhortatory. Obama spoke loftily of Americans narrowing “that gap between the promise of our ideals and the reality of their time”; Holder bluntly critiqued America’s “race-protected cocoons where much is comfortable and where progress is not really made.”
The differences underscore the divergent considerations of a presidential candidate and a civil servant. Some have suggested that Obama privately shares Holder’s views — indeed, they both offered brassed-off responses to the July arrest of Harvard University scholar Henry Louis Gates Jr. at his Cambridge home. (Obama said the police acted “stupidly”; Holder said he had himself been “humiliated” by racial profiling.) “Whatever the president may really think about these things, he knows that it’s a political quagmire,” Shaw says. “But Eric Holder may have a bit more leeway.”
Visitors to the Justice Department are greeted by Holder’s and Obama’s government portraits, which sternly gaze down from a wall above a meter announcing the day’s terrorism threat level. Despite the media frenzy over race, the central concern for both men has been defining the rule of law in an age of terrorism. The war now without a name has already tested the limits of Holder’s “leeway” as he tackles everything from emptying the U.S. military prison at Guantánamo to directing the FBI in training intelligence analysts. Holder purposefully stocked his agency with hard-nosed lawyers mostly unconcerned with Beltway politics. The same can’t be said of the White House. Whereas Holder is free to connect the inhumane practices of the Jim Crow era to the inhumane treatment of terrorism suspects, Obama has been more cautious about the politics of justice in a time of asymmetric war. At every turn, Holder must bridge that gap.
Holder’s views on U.S. detention policy are no secret. “A great nation should not detain people, military or civilian, in dark places beyond the reach of law,” he said in 2008 while advising the Obama transition. “Guantánamo Bay is an international embarrassment.” Holder has been given substantial latitude to reform what Obama called, in a speech at the National Archives in May, the “ad hoc legal approach … that was neither effective nor sustainable” during the Bush years. This has the effect of defusing for Obama some of the most politically explosive elements of the torture debate: When Holder announced he would appoint a special prosecutor to look into Bush-era malfeasance, Obama was conveniently on vacation in Martha’s Vineyard.
The attorney general does not take this responsibility lightly. The decision on where Khalid Sheikh Mohammed and the four men accused of plotting the September 11 attacks with him would be tried — in military or civilian court — came down to the wire. Just 72 hours before repeated stays of their military trials would expire, Holder dropped the hammer: The government will try the five suspects in a civilian court in downtown Manhattan, “blocks away from where the twin towers once stood.”
Holder calls this “the toughest decision I’ve had to make as attorney general.” The task force on these and future trials, Holder says, is trying to “hold accountable the people who committed these heinous offenses,” while maintaining an “adherence to the rule of law.” Sarah Mendelson, director of the Human Rights and Security Initiative at the Center for Strategic and International Studies, says the decision — which also sent five suspects to military trials — was actually a hard-fought battle between Holder’s lawyers and counsel from the Pentagon who favored the shadowy military-commissions system. “We didn’t get the paradigm shift. … We got bargaining and pacting and negotiation,” Mendelson says.
With such a controversial set of defendants, the Washingtonian in Holder knew to expect political blowback, but the lawyer in him didn’t care: “To the extent that there are political consequences, well, you know, I’ll just have to take my lumps, to the extent that those are sent in my way.” The lumps came just a few days later, during an oversight hearing held on Capitol Hill. At the hearing Holder echoed a line that Obama often repeated as a candidate. “I know that we are at war. I know that we are at war with a vicious enemy,” Holder insisted, bristling at repeated suggestions from Republican lawmakers that his judgments were unsound.
This charge struck at the heart of Holder’s personal ethos. “I can accept criticism,” he told ABC in July. “When you start to say that I’m dishonest or that you question my integrity, then you’re gonna have a fight on your hands.” Friends say this rare emotionalism, on display before the Senate and seen in flashes during the campaign, is a byproduct of Holder’s intense personal investment in his job. Just a week before, Holder had visited the widow of one of the slain DEA agents he had received at Dover, handing her, on one knee, an American flag.
Since his confirmation, Holder has spent long hours with the president debating the same themes and topics that were purely hypothetical during the campaign. “Their feelings about terror are personal and genuine,” says Obama’s former Senate colleague Dick Durbin. But, Shaw notes, “there are tensions” — such as when Justice Department lawyers blindsided the White House by invoking “state secrets” privilege in a California terrorism trial. Those tensions “are natural and they’re understandable. I don’t think they reveal any deep ideological differences between them,” Shaw adds. Because of Holder and Obama’s mutual affection and similar temperament, Oval Office conversations unfold “without the political games that sometimes exist in relationships in Washington,” Marchant says.
If anything, the threat of terrorism and the resulting legal quandaries have strengthened the bond between the two men. “The president had to have a tremendous amount of confidence in Eric because of the incredibly sensitive political nature of these issues,” says Stuart Eizenstat, a partner at Covington who served as deputy Treasury secretary during Holder’s time in the Clinton Justice Department. Obama is always in the driver’s seat, say friends, but Holder’s institutional memory and pre–September 11 experience with high-stakes national-security concerns has been a helpful resource. In April, for example, when Holder made the decision, with now-ousted White House counsel Greg Craig, to declassify and release a series of memoranda detailing the harsh interrogation techniques sanctioned by the Bush administration’s Office of Legal Counsel, it was Obama who ultimately backed Holder over vigorous dissent within the White House, the CIA, and the national-security team.
Holder is not the first attorney general to be an intimate of the president who appointed him. John Kennedy famously hired his brother Robert as the top cop of the land (a practice since outlawed). John Mitchell and Richard Nixon were co-conspirators in the Watergate affair. Bush’s attorneys general, John Ashcroft and Alberto Gonzales, have been pilloried for being ineffectual cronies of the former president. Today, perhaps as a result of the controversial Rich incident, Holder takes his role as an independent agent very seriously. Tellingly, so does Obama. In his remarks at Holder’s installation, the president praised his friend for an “independence of mind” and willingness to buck party and faction, acknowledging, however, that “the work of translating law into justice … is a fundamentally human process.”
This is certainly true of the relationship between Obama’s White House and Holder’s Justice Department. Though Holder now shares the world of Washington with his friend, he’s made his personal agenda crystal clear. “I’m not the secretary of justice,” he says. “I’m the attorney general of the United States.”