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Eric Holder–The Activist Attorney General

26 Sep 2014

KATZENBACH1Nicholas Katzenbach was one of my favorite Attorneys General. Though it may seem odd to begin a post about Eric Holder, the just resigned A.G., with a recollection of an Attorney General from L.B.J.’s administration, please bear with me.

Katzenbach, who died in 2012, was a pivotal part of the Kennedy and Johnson presidencies. It was Nicholas Katzenbach who confronted George Wallace as he stood in the doorway at the University of Alabama. Instead of bringing along the African-American students Wallace was preventing from registering, Katzenbach diffused the situation by leaving the students in the car. The picture of Katzenbach, who was about 6’2″, looming over Wallace, whose diminutive stature was a poor match for his monstrous rhetoric, perfectly symbolized the two men’s legal standing. Wallace eventually yielded, but only after he concluded his grandstanding.

Katzenbach was a legal crusader, yes, but he courageously confronted those who subverted the law with the law itself, not merely the trappings of his offices. He stared down an entire region of the U.S. to push the country forward. When the 1964 election still resulted in voter discrimination, it was Katzenbach, at Johnson’s behest, who helped oversee the drafting of the Voting Rights Act of 1965, the most successful civil rights law in our nation’s history.

Nicholas Katzenbach used the law to confront injustice, even when the confrontation itself might be costly. He pushed his own white culture forward in the quest for civil rights. He was a judicial activist, to be sure, and I disagree with his approach to constitutional interpretation and, probably, his politics. But, Katzenbach began with the law and, from what I can tell, he ended with it. For that, I respect his legacy.

For all of these reasons, Eric Holder has been a colossal disappointment. Holder, as the one charged to preserve the integrity of the law and the Constitution within the Executive Branch, instead too often twisted them for his own, and his president’s, ends. The Department of Justice must strenuously maintain objectivity if we are to succeed as a nation of laws as opposed to tilting head-long into the pit of politics. A few examples may help illustrate the argument.

Exhibit A is the Department of Justice’s handling of the Black Panther Party and its voter intimidation in Philadelphia. On Election Day, 2008, a pair of Black Panther Party members, in military garb, with one wielding a night-stick, stood outside a polling place, harassing voters. The Department of Justice’s Civil Rights Division initially pursued the case until Eric Holder narrowed the charges and eventually dropped the case, creating a significant controversy in the process. This was Holder’s first failed Katzenbach moment.

Eric Holder’s Department of Justice also attacked and undermined the First Amendment’s Freedom of the Press. The Associated Press and Fox News each suffered, with their phone records being searched and seized during various unfounded “investigations.” The DOJ seized two months of phone records related to the Associated Press, and attempted to prosecute Fox’s James Rosen, all for typical news-gathering activities. The result, surely intended, was to freeze journalistic investigations into the White House and the executive branch.

Holder declined to defend the Defense of Marriage Act in federal court, effectively putting the law in an inferior position as challenges to it worked their way through the judicial system. While Holder, the Department of Justice, and President Obama, determined the law to be unsound, they did not have the authority to determine its constitutionality. Regardless of personal predilections, their obligation was to defend the law as a statement of the people’s elected representatives. DOMA passed with massive majorities in each chamber of Congress and Bill Clinton, the most recent Democrat predecessor to Barack Obama, signed it into law. Neither the President, nor his Attorney General, may legislate. However, given their disdain for the measure, the pair should have shown the courage of their predecessors and sponsored a law to overturn DOMA. The President, and his Attorney General, could have shown leadership and the political risks associated with it, but instead they chose judicial means, beyond the people’s reach, to hollow out the law, which is destructive of the idea of law. Holder took his disregard for the people to new levels when he urged his state counterparts also to neither enforce nor defend similar laws.

This is just the tip of the legal iceberg, of course. I have not bothered to discuss Fast & Furious, the IRS non-investigation, his extended efforts to crush every law that requires an i.d. to vote (regardless of the fact the Supreme Court has already upheld similar laws), zealous support of the pervasive surveillance of American citizens, and his crusade against state immigration laws, which were often crafted because the federal government refused to enforce its own immigration laws. All these things suggest that Holder’s tenure as Attorney General was indeed a poor one.

It may seem naive, but I believe in legal justice. I believe in a judicial system that must strive–even though it may fail–to treat all people equally. The system requires objectivity, a detachment from the self, an impartiality in the administration of justice. The law, by its nature, puts people–lawyers and judges in particular–in awkward positions when it makes demands they may not prefer. As citizens, we are, by design, largely unable to shift the law, at least directly. Our leaders have the opportunity to change law through a designated process, but as they seek to change it, they are still obligated to live by the law that exists–like it or not. They are duty bound to uphold and enforce the law as impartially as possible. If they instead abuse the law for their own purposes, they have, in our system of government, usurped power and pushed us closer, even if by inches, toward tyranny. Eric Holder, as our chief legal officer, did little to impartially administer justice and instead used his post to push either his politics or those of his boss, sometimes at the expense of the law.