People are looking for the wrong “scandal” about Attorney General Eric Holder. The problem with Holder is the plain fact that, in the judgment of a wide range of legal colleagues, he has been a mediocre attorney general.
Holder’s mistakes in management and judgment are clear in the current controversy about leak investigations. He was silent as zealous prosecutors overrode the Justice Department’s guidelines for subpoenaing reporters; he recused himself from the case but bizarrely doesn’t seem to have kept a written record of the recusal; and he failed utterly to anticipate the political flap that erupted when Justice informed the Associated Press that it had collected the call records for more than 20 phone lines.
The leak cases illustrate Holder’s tendency to blow with the prevailing winds. His prosecution of leakers was certainly in the hawkish spirit of a bipartisan anti-leak bill introduced last year by Sen. Dianne Feinstein, the Democrat who chairs the Senate intelligence committee, which proposed more draconian anti-media measures than anything Holder has done. Justice went with the conservative flow until the leak prosecutions become controversial a few weeks ago — and Holder rediscovered his interest in a shield law.
“Holder substitutes his political judgment for his legal judgment, and his political judgment isn’t very good” is the way one White House official put it to a prominent Washington lawyer recently. That criticism was seconded by a half-dozen other leading Washington lawyers I consulted.
The fact that Holder is close to President Obama isn’t a problem in itself. Robert Kennedy’s brother was president, and he’s regarded as one of the great modern attorneys general. One reason is that RFK recruited the top legal minds of the day to work under him. The same cannot be said of Holder.
A strong attorney general articulates clear guidelines for prosecutors, private attorneys and the public. But Holder is criticized for his failure to shape legal policy. One early example was the prosecution of marijuana use after some states had legalized it for medical purposes. Then-Deputy Attorney General David Ogden wrote a memo in October 2009 arguing for a restrained approach; Holder, perhaps afraid of looking too liberal, never followed through. The result was a hodgepodge of different standards around the country.
A similar example of weak oversight involves what is known as “Brady material,” which refers to exculpatory evidence that prosecutors are required to show defendants. Failure to produce such material led to the botched prosecution of Alaska Sen. Ted Stevens. Holder took over in the aftermath, and many observers expected he would institute clear rules for U.S. attorneys to prevent similar abuses. Instead, DOJ policies still allow wide variations, “thus leaving the issue of ‘poor management’ and ‘poor supervision’ over discovery obligations uncorrected at the senior levels of the department,” wrote attorneys William M. Welch and William W. Taylor in the National Law Journal last year.
Holder’s Justice Department has been quick to jump on the bandwagon of politically popular prosecutions, sometimes with disastrous results. The indictment of former senator John Edwards on campaign-finance charges stemming from an extramarital affair should never have gone forward, many attorneys believe. Edwards prevailed in court. A sexy “sting” case alleging that business executives had paid bribes to sell weapons to Gabon proved a flop and led to two mistrials.
The criminal prosecutions of BP executives involved in the Gulf of Mexico oil spill drew political applause, but they have been a legal mess. A judge threw out much of the indictment of BP executive David Rainey last month because of insufficient evidence, and criminal cases against two BP rig supervisors also look shaky.
Part of the attorney general’s job is clearing political obstacles to allow effective law enforcement. Here, too, many attorneys fault Holder. A classic example was the plan to prosecute 9/11 plotter Khalid Sheik Mohammed in a civilian court in New York. Holder made what many regard as the right decision to try the case there. But he hadn’t done the necessary political groundwork among New York and national politicians, and when a political firestorm ignited, he reversed his decision.
“Feckless” is the word one disappointed Washington legal insider uses to describe this and other Holder decisions.
President Obama talks about his desire to improve the performance of the federal bureaucracy so that citizens can believe in government again. The Justice Department is one of the areas where this standard matters most. But under Holder, it just hasn’t been met. That’s the real scandal here — tolerance of mediocre performance.