by John Fund
How much is the Justice Department’s uncooperative and secretive approach the product of Eric Holder’s management style and how much is in response to President Obama’s wishes? We would argue that the most likely explanation is that presidents almost always appoint the attorney general they’re most comfortable with, someone who will watch their back on institutional issues and vigorously pursue their enforcement priorities. In Eric Holder, Barack Obama has found both a kindred spirit and a heat shield against criticism that would often be directed at the White House. And Holder has made it clear that he is “part of the president’s team. I want the president to succeed; I campaigned for him. I share his world view and values.”15
Eric Holder and Barack Obama first met in November 2004, at a small Washington, D.C., dinner party celebrating Obama’s election to the Senate that month. It was hosted by Ann Walker Marchant, a niece of Vernon Jordan and a former Clinton administration White House aide.16 “Obama sat next to Eric Holder, a former Justice Department official in the Clinton administration. The two found they had much in common—they were lawyers, they had gone to Columbia University and they were basketball enthusiasts. The party was the start of a continuing Holder-Obama relationship,” reported Newsday.17 “We just clicked,” said Holder.18
Holder was expected to support Hillary Clinton for president in 2008, but his meeting with Obama changed everything. “Loyalty is something I value an awful lot. And so my decision to support Barack was not necessarily a difficult one, but I had to be really moved by him. My inclination would be to support Senator Clinton, but I was overwhelmed by Barack,” he told American Lawyer magazine in 2008. He added that when it came to race, he and Obama “share a worldview.”19 Holder also became close to Valerie Jarrett, a highly influential, highly political Obama adviser. In fact, Jarrett said in 2008 about Holder that “there isn’t a day that we don’t talk.”20
By the summer of 2008, Holder was “the utility infielder for Team Obama, playing a variety of positions: surrogate, fundraiser, strategist and source of wisdom in the ways of Washington.”21 He was a key player in the search committee that settled on Delaware senator Joe Biden to be Obama’s vice presidential running mate.
Eric Holder was born in the Bronx in 1951, but grew up in Queens, another borough of New York City, with his brother, Billy. His father was an immigrant from Barbados who became a real estate agent and his mother was a secretary from New Jersey. The family’s neighbors included Louis Armstrong, Dizzy Gillespie, Willie Mays, Malcom X, and Louis Farrakhan.22 Holder’s early school years “remained mostly free of racial tension. His classmates were more concerned with who was free to play softball after school than the color of anyone’s skin.”23 A 1997 NPR profile said Holder found “his childhood was free of racial strife and full of opportunities.” He became racially and politically conscious in 1963, when the civil rights struggle and the assassination of President Kennedy led him to read books on the lives of great leaders. He was inspired by The Autobiography of Malcolm X and its story of redemption.
An overachiever, Holder was removed from his local school in fifth grade “and sent to a gifted program in Manhattan, making the hour-long commute each day at age 10.”24 He then won a prized place at New York’s prestigious Stuyvesant High School, an even longer hour-and-a-half commute. He joined the Afro-American Society and was co-captain of the basketball team. He had felt overwhelmed at first by the school’s academic demands but he later credited his mother for giving him the confidence he needed to succeed there, because she reassured him that he was “capable” and that he could “compete.”25
He was accepted at Columbia University and entered its freshman class in 1969, a time of great political turmoil. As a freshman and a leader of the Student Afro-American Society (SAAS), he joined student protesters who occupied the campus ROTC office and christened it as a student center named for Malcolm X. A deleted Web page of the Black Students’ Organization, a successor organization to the SAAS, claimed the students were “armed,” but the Justice Department refused to answer whether Holder was armed, when contacted by reporters from the Daily Caller after a report of this surfaced in 2012.26
Holder went on to attend law school at Columbia, where he did an internship with the NAACP Legal Defense and Educational Fund. Upon graduation in 1976, he immediately joined the newly formed Public Integrity Section of the Justice Department. It was not his first choice, but his application to the Civil Rights Division had been rejected.27 The Justice Department normally only hires lawyers laterally, that is, lawyers who have been out and working for a number of years. But there is an exception for the Attorney General’s Honors Program, which selects a small number of recent law graduates for employment at the department.
Craig Donsanto, head of the Election Crimes Unit within the Public Integrity Section, spoke with us about his time working with Eric Holder during the 1970s and 1980s.28
Donsanto was a career prosecutor who worked for the Justice Department for forty years before retiring in 2010. He is well-known to election officials across the country, as well as campaign finance lawyers, because Donsanto was responsible for managing the Justice Department’s investigation and prosecution of voter fraud, campaign finance violations, and other forms of public corruption related to elections and political fund-raising. In fact, he wrote the department’s manual on “Federal Prosecution of Election Offenses.”
Starting in 1976, he began working very closely with Holder investigating and prosecuting cases for a number of years. The two men frequently traveled together on Justice Department business. They and their colleagues helped secure convictions for everyone from a judge to a diplomat to an organized crime figure.
Donsanto liked Holder and thought he was “a damn good lawyer . . . young, but very bright.” Donsanto was “proud to be his colleague” and was close enough to Holder that he was invited to attend Holder’s swearing in as a Superior Court judge in the District of Columbia in 1988.
But Donsanto expressed his chagrin over the change that came over Holder as the years went by, particularly how Holder’s approach to the law seemed to change from an objective, professional one to a much more political one, and he shakes his head at Holder’s conduct over the past five years. Donsanto believes Holder became “politicized” as he apparently let his political ambitions seize hold of his professional judgment.
Donsanto also thinks that the bitter contempt that Holder has displayed for the political right and his apparent view that racism is rampant everywhere in America because we are a “nation of cowards” may have been at least in part influenced by his marriage to Sharon Malone. Holder “changed” after his marriage, says Donsanto. Holder himself has admitted that his wife has an “edge” that he doesn’t have because he “never saw the reality of racism or felt the insecurity that comes with it.”29
Malone was the sister of a civil rights icon, Vivian Malone Jones, one of the two black students who helped break the color barrier at the University of Alabama when they enrolled in 1963. Jones was made famous by Alabama governor George Wallace’s attempt to block her admission when she arrived at the university with Justice Department deputy attorney general Nicholas Katzenbach and a phalanx of federal marshals. In talking about her husband, Malone has said that “he experienced a kinder, gentler version of the black experience” than her family.30
Sharon Malone is a doctor in Washington who is very involved with organizations like the Coalition of 100 Black Women and makes no secret of her anger at the wrongs her family and other black Americans suffered, to which the “American government was, I wouldn’t say complicit, but at least indifferent.”31 She told her family’s story in a PBS documentary, Slavery by Another Name. Malone said she was “forever colored by my experiences growing up in the segregated South.”32
According to a reporter for Newsweek who attended a dinner party with Holder and Malone in 2009, she drew “a direct line from the sins of America’s racial past to the abuses of the Guantana
mo Bay detention center.” In fact, she not only equates the two but sees both as examples of “what we have not done in the face of injustice” as her “voice rose with indignation,” according to the Newsweek reporter.33
After his stint at Justice, Holder served four years as a judge in Washington, D.C., where he became deeply affected by having to sentence upwards of thirty black males to jail every week. “The thing that I think most moves me in this is the notion that no matter how successful you become, there is still something that ties you to a person who is dealing with a drug problem, who is an unwed mother, that as long as there are people who are discriminated against because of their race, there is still something that must bind us as black people.”34
Holder’s passionate belief in racial preferences stems from this period of his life, and he has very passionate views on the subject. In 2012, he returned to his alma mater Columbia for a World Leaders Forum. He was asked by Lee Bollinger, Columbia’s president, about Supreme Court cases on affirmative action that had involved Bollinger in his former role as president of the University of Michigan. In 2003, then-justice Sandra Day O’Connor was the deciding vote in Grutter v. Bollinger, which allowed racial preferences at universities to continue. But she made it clear that their days should be numbered: “We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.”35
But Holder’s response to the Grutter case made it clear that for him that day will never come. Holder “can’t actually imagine a time in which the need for more diversity would ever cease.” “Affirmative action has been an issue since segregation practices,” he declared. “The question is not when does it end, but when does it begin. . . . When do people of color truly get the benefits to which they are entitled?”36
While he was serving as a Superior Court judge in Washington, Bill Clinton was elected president in 1992. The next year, Holder became the first African-American U.S. attorney in the District of Columbia.
As the U.S. attorney, Holder took a lead role in prosecuting Dan Rostenkowski, the chairman of the powerful House Ways and Means Committee, for corruption in office. His critics charged he was less aggressive in pursuing the pervasive political corruption among the many associates of Washington, D.C., mayor Marion Barry, who returned to a fourth term in the mayor’s office in 1995 after serving six months in jail for drug possession.
While he was U.S. attorney, Holder’s commitment to the First Amendment was also questioned. Many legal scholars believed he overreacted and abused his authority when he became the subject of harsh verbal attacks by a Romanian immigrant.
Ion Cornel Popa fled communist Romania in 1986 as a political refugee and was granted legal residence in the United States. In 1992, he claimed to be a victim of police brutality committed by African-American police officers who were not brought to justice. His claim was believable. In the 1990s, the District of Columbia police department was a cesspool of corruption and incompetence, according to Carl Rowan Jr., the son of the late African-American columnist Carl Rowan, as well as a former FBI agent and police chief. Rowan says that after the election of Marion Barry as D.C. mayor in 1978, “They took the police department and changed it from a career service of people dedicated to law enforcement [to] just another patronage opportunity. They’d say, ‘We don’t have any jobs open in the department of recreation, but hey, wanna be a cop?’ People who were looking for a paycheck found one at the police department.”37
But rather than take out his grievances on local law enforcement, Popa decided to blame U.S. attorney Holder for not doing his job prosecuting the city’s corruption. During April and May of 1997, Popa made seven anonymous phone calls to Holder’s office. He claimed that Holder “violated . . . our rights” and then in one passage ranted: “Eric Holder is a negro. Is a negro. Which is a criminal. He make a violent crime against me, violating the rights in court of the white people. [Inaudible] negro. He’s negro. Eric Holder. Criminal.”38
Nasty stuff, but not nearly as bad as many insults in our coarse culture of today. Nonetheless, Popa was charged by Holder’s office with violating 47 U.S.C. §223(a)(1)(c), which makes it a crime punishable by up to two years in prison to make anonymous phone calls “with intent to annoy, abuse, threaten, or harass any person at the called number or who receives the communications.” Popa claimed in his defense that he had given his name during some of the calls and that they were made to placate an acquaintance with whom he was staying, who plied him with liquor, made him read racist literature, and threatened to turn him out into the street if he didn’t make the calls. A Washington, D.C., jury didn’t buy Popa’s account, convicted him after deliberating only an hour, and sentenced him to the nine months in jail he had already served.
Popa appealed his conviction, claiming that “this type of speech directed at a public official . . . is entitled to First Amendment protection.” He argued that his derogatory references to Holder were not punishable as “fighting words.” The government claimed that Popa’s speech was not political in nature and therefore not protected.39
But in late 1999, a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit unanimously accepted Popa’s political speech argument. The D.C. Circuit vacated his conviction, concluding that the statute “could have been drawn more narrowly, without any loss of utility to the Government, by excluding from its scope those who intend to engage in public or political discourse.” The appellate court remarked that people who make anonymous and abusive phone calls with the intent to communicate a political message should be given “a pass.”40
Eugene Volokh, a law professor at the University of California, Los Angeles, says Holder’s efforts to prosecute Popa were a troubling early harbinger of an increasing tendency to criminalize offensive speech. He notes one case involving Philip Speulda, a Democratic candidate for city council in Hawthorne, New Jersey, in 2011. Speulda sent out a flyer that included a photo of his Republican opponent in a hot tub with two other men. The Republican charged that the photo was intended to indicate he was gay and he convinced the police to issue a criminal summons for “harassment.” The charges were later dismissed, but certainly created a “chilling effect” on Speulda’s campaign.41
“Unwanted speech to some recipients—for instance, government officials, candidates for office, and possibly businesses that serve the public—might have constitutional value even when the listener doesn’t want to hear it. People may have the right to remonstrate with government agencies and petition for redress of grievances even when the target doesn’t want to hear the petitions or the petitions are offensively worded,” Volokh wrote.42
Eric Holder clearly didn’t want to hear Ion Cornel Popa’s message and went to great lengths to prosecute him criminally for his harsh criticism, which, as coarse and nasty as it was, was fully protected by the First Amendment.
In 1997, Holder left the U.S. attorney job when he was elevated by Bill Clinton to the number-two slot at Justice. There he not only had major administrative duties but became increasingly important as Attorney General Janet Reno struggled with Parkinson’s disease. Insiders at Justice say Holder was influential in convincing Reno to stop appointing independent counsels to investigate Clinton scandals such as Chinagate, the flow of illegal campaign contributions from foreign sources to the 1996 Clinton reelection effort.
At the end of Clinton’s second term, Holder’s image was tarnished by his role in the pardon of Marc Rich, a fugitive financier who had been indicted in 1983 on charges of tax evasion and selling oil to Iran during the hostage crisis involving U.S. diplomats. Rich fled to Switzerland to escape a trial, but employed top-shelf lawyers and lobbyists to plead his case for a presidential pardon. According to the Wall Street Journal, his former wife, Denise Rich, donated more than $1 million to the president’s party and Hillary Clinton’s 2000 Senate race, and raised millions more from others. One event at her Fifth Avenue penthouse brought in $3 million
during the dark days of the Lewinsky-Clinton scandal. “It means more now than ever, and we’ll never forget it,” President Clinton said at that event. The Journal reported, “By the time the Clintons left the White House, Ms. Rich had become a close enough friend that she was able to lobby the president on three occasions—once in person, once on the phone and once in a letter.”43
All this apparently moved Rich’s pardon application to the top of various Clinton administration in-boxes. Holder was asked his opinion of the pardon and responded he was “neutral leaning toward favorable.” Clinton issued the pardon the next day, just hours before leaving office. Time magazine has placed it on its list of the ten most notorious presidential pardons, along with those of Richard Nixon and Patty Hearst.44
Holder has since said he “regretted” his role in the Rich pardon. He concluded his testimony to the House Government Reform Committee in February 2001 by saying that “knowing everything that I know now, I would not have recommended to the president that he grant the pardon.” But sometime before the 2000 election, Holder had told Rich’s lawyer, Jack Quinn, someone Holder knew very well was “a close confidant of Vice President Al Gore, that [Holder] wanted to be attorney general in a Gore administration.”45
Holder may have regretted the political fallout he received from the deal, but as Representative Dan Burton (R-IN) said to Holder at the February hearing, “You wanted something from Mr. Quinn. You wanted his support for attorney general of the United States, and he wanted a pardon for Mr. Rich and his partner.”46 In fact, for Eric Holder, “the position of attorney general had always loomed in the distance like a grail—the pinnacle of influence for a public-service lawyer.”47
During the eight years of the Bush administration, Holder was a lawyer with the Washington, D.C., firm of Covington & Burling, where he represented major clients such as the National Football League and Chiquita Brands International and earned a great deal more money than he had in government.48 An example of his work there was his securing a “slap-on-the-wrist plea deal” with federal prosecutors for Chiquita to charges that the company had paid off terrorists in Colombia.49 He briefly served on the board of MCI and even joined an investor group that made an unsuccessful bid for a major-league baseball team, losing the contest for the Washington Nationals.50