The Trouble With Eric Holder

Quick! Name the veteran Department of Justice insider who, shortly after the USA Patriot Act was signed into law and at a point when the Bush administration was proposing to further erode barriers to governmental abuses, argued that dissenters should not be tolerated?

Who invoked September 11, explicitly referencing "the World Trade Center aflame," in calling for the firing of any "petty bureaucrat" who might suggest that proper procedures be followed and that the separation of powers be respected?

John Ashcroft? No.

Alberto Gonzales? No.

It was Eric Holder, the man who has reportedly been selected by President-elect Barack Obama to serve as the next Attorney General of the United States.

Appearing on CNN in June, 2002, the former Clinton administration Justice Department aide sounded as if he had just stepped out of the Bush camp: "We're dealing with a different world now. Everybody should remember those pictures that we saw on September the 11th. The World Trade Centers aflame, the pictures of the Pentagon, and any time some petty bureaucrat decides that his or her little piece of turf is being invaded, get rid of that person. Those are the kinds of things we have to do."

If that's unsettling, consider the fact that Holder was part of the legal team that in 2005 developed strategies for securing re-authorization of the Patriot Act.

Much will be made of Holder's role as a deputy attorney general in helping former President Clinton arrange for the last-minute pardon of fugitive/Democratic campaign contributor Marc Rich. (Holder said he gave Clinton a "neutral, leaning towards favorable" opinion of the proposed pardon.) And it will also be noted that Holder, as a corporate lawyer in private practice after leaving the Clinton team, played a key role in negotiating an agreement with the Justice Department that got Chiquita Brands International executives off the hook for paying protection money to right-wing death squads in Colombia.

But the first questions for Holder should go to the issue of his attitude toward the role of the attorney general in defending the Constitution. Holder's defenders will point to some eloquent speeches he has given, including one he delivered in June to the American Constitutional Society. In that speech, the former deputy attorney general condemned the Bush administration's "disastrous course" set by the Bush administration on issues such as torture and the practice of rendition.

"Our needlessly abusive and unlawful practices in the ‘War on Terror' have diminished our standing in the world community and made us less, rather than more, safe," Holder said, correctly. "For the sake of our safety and security, and because it is the right thing to do, the next president must move immediately to reclaim America's standing in the world as a nation that cherishes and protects individual freedom and basic human rights."

That's a good message, to be sure.

But it must be juxtaposed against past statements made by Holder, such as this one: "The Attorney General is the one Cabinet member who's different from all the rest. The Attorney General serves first the people, but also serves the president. There has to be a closeness at the same time there needs to be distance."

What we need to know is this: How close would Holder, as attorney general, get to obeying his oath to defend the Constitution?

The place for that to happen is in a very serious, very aggressive confirmation process that should not simply presume that Holder will "get it" when questions about the Constitution arise.

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