Opinion

Eric Holder blew it as attorney general. His replacement will, too,

Systemic issues might be too much for any one person

The best thing about Eric Holder's time as the U.S. attorney general was that he was the first one in decades to really care about civil rights. The worst thing was, well basically everything else.

Holder, who yesterday announced his resignation as attorney general, isn't a bad synecdoche for the Obama administration. The first black attorney general, by all accounts a committed liberal with a special concern for civil rights, was also the guy who rubber-stamped the NSA's dragnet surveillance program and the CIA's assassination of American citizens. He prosecuted neither Bush-era torturers nor any of the thousands of high-level Wall Street fraudsters from the financial crisis (save one).

So, despite his genuinely admirable action on sentencing reform, police discrimination, and other racial justice issues, he will ultimately be remembered as complicit in turning the American state away from the rule of law when it comes to the rich and powerful. Sad to say, but John Ashcroft stood up to security apparatus goons more than Holder did. Matt Taibbi described his prosecutorial style thus:

In other words, they’ll take on somebody like Raj Rajaratnam, who stacked his illegal insider trades so brazenly and carelessly that his case almost reads like a finance version of Jeff Dahmer tripping over bodies in his Milwaukee apartment. Or they’ll pursue Bernie Madoff on the 10th or 11th time he crosses their desk, after years of nonaction, and after he breaks down weeping and confessing. Basically, if someone backs a dump truck up to the DOJ and unloads the entire case, gift-wrapped, a contrite and confessing criminal included, a guy like Eric Holder might, after much agonizing deliberation, decide to prosecute. [Rolling Stone]

There are two ways to think about this. The first option is that Holder's previous reputation was simply a mask. He never really cared about upholding the rule of law and was just fronting so he could be appointed attorney general to write get-out-of-jail cards to the rich and powerful. By this logic, we simply need to find the right replacement to fix these problems, some dogged prosecutor who won't let Wall Street off the hook. If that is the case, then I'd say Patrick Fitzgerald would be a good choice. He's the guy who put two governors of Illinois in prison for corruption, and nailed Scooter Libby for obstructing justice — the only scrap of justice ever meted out to any of the high-level Bush administration criminals.

The other option is bleaker, but I think more realistic. It could be the case that Holder's principles weren't fake, that instead he was broken by a corrupt system and enormous political pressure. Consider torture: Holder said in congressional testimony that he believes waterboarding is torture, and both Bush and Cheney have publicly boasted about ordering waterboarding. Torture is a war crime punishable by death if victims are killed, as they were during the Bush years. But prosecuting a capital crime against the previous president and vice president would have been an unfathomably huge political scandal. Better to avoid it altogether by not even charging the low-level CIA thugs who actually swung the truncheons and poured lungs full of water.

Or consider Wall Street prosecutions: Holder once speculated with remarkable frankness that some banks may be too big to prosecute — because they're so systemically important to the world economy that bringing a charge might blow it up. Now, I don't accept that there's no way to bring charges against particular employees without destroying the bank altogether, but post-2008 one can see how such a belief might develop. From a political perspective, what's more important: securing some convictions or avoiding another financial crisis?

Now, of course these two aren't mutually exclusive. Context always matters, just as individual personalities always make at least some difference. I do think Fitzgerald ought to be unleashed on both Wall Street and Bush-regime torturers, if only because of the off chance that someone might actually get punished (which is why he almost certainly won't be appointed). But ultimately I think the failure of Holder as attorney general is about societal and political rot rather than just one person.

In any case, I'm afraid the die is now cast. There was a brief moment in 2009 when a seriously aggressive effort to restore the rule of law might have been able to rescue some scraps of justice and dignity from the monstrous evil of the Bush years. If not a war crimes tribunal, then a truth-and-reconciliation commission South Africa–style. If not smashing the financial oligarchy, then at least putting a few hundred bankers in prison. But neither Eric Holder nor anybody else did then, and it's exceedingly late in the game to get started now.

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