Eric Holder

A Reason Reader on Soon-to-Be Ex-Attorney General Eric Holder

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Plum law firm or plum consulting gig, which will it be?

National Public Radio has broken the news that Attorney General Eric Holder is stepping down. There had been some chatter all the way back to President Barack Obama's re-election that he didn't want to stay the full eight years.

There will be plenty of analysis in the coming days of the man who seemed deeply concerned about civil liberties violations by everybody except for the administration he worked for. In the meantime, here's some pieces from Reason's archive that highlight what we've had to say about the man.

To start, all the way back in 2008, Reason's Shikha Dalmia thought Holder was a poor choice before he was even nominated:

Though Holder has a good resume, his positions and record suggest that he does not understand the constitutional limitations within which this office is supposed to operate. He is a drug warrior and even proposed to stiffen penalties for the possession of marijuana. He was also involved in the federal government's decision to seize Elian Gonzalez from his aunt's home and return him to Cuba without obtaining a court order, a terrible lapse of judgment. Nor is he a pillar of rectitude: There have been questions about whether he was completely upfront about the Justice Department's conduct in the Branch Davidians-Waco fiasco. And some suspect that he might have with-held information about billionaire fugitive and tax evader, Marc Rich, to facilitate Rich's pardon by President Clinton.

Also back then, Reason's Damon Root worried about Holder's lack of respect for the Second Amendment:

In the aftermath of the 9/11 attacks, for instance, Holder took to the pages of The Washington Post, where he played on the public's newfound fear of terrorism to lobby for additional gun show regulations. But as National Review's Jim Geraghty recently pointed out, of the two "terrorists" that Holder claimed were stalking America's gun show circuit, one was eventually acquitted of supplying guns to terrorists (though not of the separate charge of weapons smuggling), while the other, a man named Ali Boumelhem, didn't buy so much as a camouflage vest at a gun show. Since he had a felony record he let his brother do the shopping. In Holder's mind, that's a "loophole" that needs closing, but as Geraghty notes, "background checks like the one Holder was calling for would not have stopped [it], since the straw purchaser (the surrogate for the real buyer) is chosen because he has a clean record." Unless Holder wants to forbid gun sales to people with disreputable family members or friends, it's hard to imagine how any law could prevent this situation.

More recently, Holder was one of thirteen former Justice Department officials to sign an amicus brief on behalf of the D.C. government in the Heller case. That document, which endorsed restrictive gun control measures and cited rare and sensational events like the Columbine and Virginia Tech school shootings as evidence of "the deadly toll that firearms exact," also made the case for the collective rights interpretation that has now been rejected by both the Supreme Court and leading liberal legal scholars.

Since then the Supreme Court has upheld bans against third-party gun sales.

Here's some analysis from Holder's confirmation hearing by Reason's Jacob Sullum that can make us all laugh heartily in retrospect:

Holder said President Bush had no right to ignore the Foreign Intelligence Surveillance Act's warrant requirement for monitoring communications between Americans and people in other countries. Although he deemed Bush's so-called Terrorist Surveillance Program "useful," he said the president should have asked Congress to revise the statute instead of secretly breaking the law. That is pretty much the position taken by Obama, who voted to change FISA so executive branch officials can unliterally authorize surveillance of communications involving people in the U.S. if the ostensible target is believed to be located abroad.

Sullum worried that Holder's declaration that we were "at war" with terrorists would be used to "justify legal short cuts and limits on civil liberties." Turns out Sullum was right!

During Obama's first term, the Department of Justice had an awkward, dangerously unpredictable response to medical marijuana dispensaries as more states legalized the drug's use. Holder said the Drug Enforcement Agency would not be going after distributors who were following state law, but yet federal raids on legal clinics continued to follow. Reason followed this trend across Holder's reign, and in 2013, Sullum noted that Holder and Obama were even tougher on medical marijuana than George W. Bush's:

According to a new report from California NORML, "over 335 defendants have been charged with federal crimes related to medical marijuana in states with medical marijuana laws." Despite Barack Obama's promises of prosecutorial restraint in this area, "153 medical marijuana cases have been brought in the 4¼ years of the Obama administration, nearly as many as under the 8 years of the Bush administration (163)." In other words, Obama is averaging 36 medical marijuana prosecutions a year, compared to 20 a year under his predecessor. And although Attorney General Eric Holder has repeatedly claimed the Justice Department is not targeting suppliers who comply with state law, "the DOJ has targeted many facilities that were in full compliance with local laws and regulations."

Aaron Sandusky, who was legally operating a medical marijuana dispensary in California, is one of the victims of the administration's zealous pursuit. He was sentenced to 10 years in prison. Read and watch more here.

In 2011, Holder declared the Department of Justice would not defend the Defense of Marriage Act in court, believing the law to be unconstitutional. Congress arranged to defend the law and conservatives complained that the administration wasn't doing its duties. Reason's Damon Root explained they were following conservative precedents:

Keep in mind that while the Constitution requires the executive branch to "take care that the laws be faithfully executed," the president also swears an oath to "preserve, protect, and defend" the Constitution. The question is what happens when the executive is charged with executing a law he deems unconstitutional. Should a contested congressional statute trump an oath to the Constitution?

Deputy Solicitor General (and current Supreme Court Chief Justice) John Roberts faced that dilemma in 1990. At issue that year in Metro Broadcasting, Inc. v. Federal Communications Commission was a government policy giving preferential treatment to minority-owned stations seeking a broadcast license from the FCC. According to the George H.W. Bush administration this racial preference was unconstitutional. Roberts therefore filed a brief with the Supreme Court describing the policy as "precisely the type of racial stereotyping that is anathema to basic constitutional principles" while permitting the FCC to mount its own defense of the minority preference. The Court sided with the FCC.

So unless Gingrich and other conservative critics are also willing to denounce Bork and Roberts for violating the rule of law, they have no coherent argument against Holder and Obama. In fact, conservatives might even want to thank the administration. While Obama's decision was probably unnecessary to secure DOMA's eventual legal defeat, it has given the GOP a powerful campaign issue. It may also have set the stage for some political payback. As the liberal UCLA law professor Adam Winkler worried last week in response to Holder's announcement, "Think of the laws that might be undermined by the next Republican president."

As the president headed toward his second term we began to note more and more the administration's lack of transparency and the Department of Justice's role in it, as well Holder's defense of the president's ability to kill American citizens overseas without due process by calling them terrorists. Again from Sullum:

In short, Holder claims that Congress, by authorizing the use of military force against those responsible for the 9/11 attacks, empowered the president to order the execution of anyone he identifies as a terrorist, wherever that person may be found (with the possible exception of the United States). If presidents were infallible and always virtuous, there would be no problem with this policy; since they are neither, we should perhaps be wary of letting them decide exactly how much process is due for those they deem deserving of death.

In 2013, Holder declined to tell senators whether he thought the president should be able to order the execution of Americans on American soil without any due process because they were believed to be engaged in acts of terrorism.

Here is Gene Healy in 2012 on the Department of Justice's terrible record on transparency:

In its 2011 year-end review of executive branch secrecy, the Electronic Frontier Foundation noted that Obama's Justice Department has refused to release its interpretation of Section 215 of the Patriot Act, compelling production of Americans financial, medical and communications records in security investigations. There's a gap between "what the public thinks the law says and what the American government secretly thinks the law says," amounting to a "Secret Patriot Act," Sen. Ron Wyden, D-Ore., has warned.

Moreover, EFF points out, the administration "refuses to release its legal justification for killing an American citizen abroad without a trial, despite announcing the killing in a press conference." If the president is going to target American citizens for death by drone, shouldn't we at least get to examine, in broad daylight, the legal and constitutional arguments for doing so, so we can know how far they extend?

In passing, EFF noted this little gem, an actual headline from the Wall Street Journal in September: "Anonymous US officials push open government." You can't make this stuff up—well, maybe you could, but why bother, when the truth is bad enough?

As for the gunrunning "Fast and Furious" scandal, where the feds provided guns to drug traffickers in Mexico in order to catch them (and failed miserably, leading to death of a border patrol agent) Holder evaded responsibility, claiming ignorance as the DOJ refused to provide documents to investigators in Congress. Reasons' J.D. Tuccille took a dim view on the idea that Holder just didn't know it was going on:

I don't think for a moment the denizens of the imperial capital care what does and does not pass the laugh test in the provinces, but the Republic raises some good points. The Inspector General may find it "troubling that a case of this magnitude, and one that affected Mexico so significantly was not directly briefed to the Attorney General," but some of us find it completely freaking preposterous. Either Holder (and Mukasey, before him) knew about these operations and are being given a thorough whitewashing in the report, or else the U.S. Attorney General has lost control of whole sections of his department — whole armed, tax-funded sections that are dealing in weapons and operating in neighboring countries.

An either-or choice between deceitful bastard and incompetent figurehead should not be read as an exoneration.

In 2013, Holder introduced his "Smart on Crime" initiative to introduce important reforms like giving judges more leeway to ignore mandatory minimums in nonviolent drug cases. Reason has praised such efforts (modest though they are compared to the devastation the war on drugs has wrought). In August, Sullum noted that Holder's own prosecutors resist one of the things he's doing as attorney general that isn't awful. They use the threat of harsh sentencing to wring out plea deals and avoid trials:

Consider what can happen to recalcitrant defendants who insist on going to trial. Last year Roy Lee Clay, a Baltimore heroin dealer who turned down a plea deal under which he would have served 10 years in prison, received a mandatory life sentence after he was convicted and federal prosecutors invoked sentencing enhancements based on his prior offenses. In 2005 the same sort of enhancements resulted in a life sentence for Roderick "Rudd" Walker, a Deadhead from Buffalo who was offered an eight-year sentence for pleading guilty to LSD charges.

In my view, no one should go to prison for engaging in consensual transactions. But even if you think that Clay and Walker deserved to do time, a life sentence cannot be appropriate if prosecutors were prepared to say a term of a decade or less was.

When you see the stark choices that federal defendants face, you can begin to understand why an astonishing 97 percent of them decide to plead guilty. The bigger the gap between the sentence a defendant can get through a plea bargain and the one he will get if he is convicted after a trial, the stronger his incentive to "cooperate"—and the weaker the system's claim to be doing justice.

There will be plenty more analysis of where Holder succeeded and fail to champion for civil liberties in the coming weeks. Reason readers apparently have made their own decision on Holder. Last year they named him one of the top ten "enemies of liberty."