A departure from recent Attorneys General who mindlessly signed on to ever-increasing executive power – whether under the auspices of the Patriot Act, FISA or otherwise – Eric Holder took a stand for civil liberties: voting rights, gay rights, limits on police aggression, and human rights for undocumented immigrants. While previous AGs often sought to increase the power and reach of their office, Holder provided a well-needed retreat from the illiberal policies of his predecessors.
The contrast with Bush Duh’s first two AGs, John Ashcroft and Alvaro Gonzalez, is striking. The former was a renowned cipher who only became AG after losing a Senate election to a dead man – a feat never accomplished before or since. As AG, Ashcroft infamously defended the Patriot Act against all comers, championing, among other things, the government’s new power to search library records to discover the reading habits of individual Americans. (In fairness, Ashcroft took a stand against Stellar Wind, another surveillance program.)
Next came Alvaro Gonzalez, who only lasted two and a half years, and seemed out of his depth from day one. He spent his time in office defending expanded police search and seizure powers, and looking for legal justifications for torture. His prodigious talents prepared him for his current position, the dean of Belmont College of Law. If you’ve never heard of Belmont Law, that may be because it was only founded three years ago.
Comparisons with Clinton’s AG and Holder’s one-time boss, Janet Reno, are no less interesting. Reno was an aggressive, efficient cop in the Rudolph Giuliani and Elliot Ness style. The longest serving US AG in 185 years, Reno gets credit for the capture and conviction of five 1993 World Trade Center bombers, two Oklahoma City bombers, and the Unabomber; and for taking on Microsoft when it was the most valuable corporation in world history. But she is fairly criticized for using excessive force in the Elian Gonzalez matter and the siege at Waco.
Holder, by comparison, has shown leniency – for good and for bad. His “too big to jail” policy with respect to bankers led to zero prosecutions in the wake of the subprime mortgage market collapse. Under him, the DOJ’s prosecution of large financial services firms has fallen to its lowest level in 20 years. However his “Smart on Crime” program seeks to avoid harsh sentencing when the facts of a case do not merit such. He’s also backed off on enforcing federal marijuana laws in states where the drug was decriminalized under state law.
Serving as AG during the so-called war on terror, Holder has been faced with the constant temptation to expand the police power at the expense of personal liberty. Waging that war abroad, he’s been aggressive, penning the legal defense for the operation that assassinated Osama bin Laden, and for the use of drones to assassinate other terrorist leaders abroad, including US citizens. But domestically Holder has been reserved, criticizing Bush Duh’s implementation of the Patriot Act and use of electronic surveillance, and condemning torture. His Justice Department has nonetheless prosecuted six government employees for leaks (compared to just three prosecutions in all of US history before), and has electronically surveilled members of the press, denying the right of journalists to protect the identity of their sources.
Holder’s respect for civil rights and limits on the police power are a major upgrade over Bush Duh’s AGs. His aggressiveness in pursuing politically unpopular liberal causes – fighting Arizona’s ill-considered immigration law, and taking on voter ID laws and redistricting in the deep south – has been laudable. Overall, Holder has been a very good AG, and as his tenure draws to a close, it’s worth pausing to reflect on how fortunate the country has been to have someone with talent, tenacity and conscience in that office – for a change.