Obama doesn't want to look back, but Attorney General Eric Holder may probe Bush-era torture anyway.
Attorney General must serve the law and President
By Daniel Klaidman | NEWSWEEK
Published Jul 11, 2009
From the magazine issue dated Jul 20, 2009
It's the morning after Independence Day, and Eric Holder Jr. is feeling the weight of history. The night before, he'd stood on the roof of the White House alongside the president of the United States, leaning over a railing to watch fireworks burst over the Mall, the monuments to Lincoln and Washington aglow at either end. "I was so struck by the fact that for the first time in history an African-American was presiding over this celebration of what our nation is all about," he says. Now, sitting at his kitchen table in jeans and a gray polo shirt, as his 11-year-old son, Buddy, dashes in and out of the room, Holder is reflecting on his own role. He doesn't dwell on the fact that he's the country's first black attorney general. He is focused instead on the tension that the best of his predecessors have confronted: how does one faithfully serve both the law and the president?
Alone among cabinet officers, attorneys general are partisan appointees expected to rise above partisanship. All struggle to find a happy medium between loyalty and independence. Few succeed. At one extreme looms Alberto Gonzales, who allowed the Justice Department to be run like Tammany Hall. At the other is Janet Reno, whose righteousness and folksy eccentricities marginalized her within the Clinton administration. Lean too far one way and you corrupt the office, too far the other way and you render yourself impotent. Mindful of history, Holder is trying to get the balance right. "You have the responsibility of enforcing the nation's laws, and you have to be seen as neutral, detached, and nonpartisan in that effort," Holder says. "But the reality of being A.G. is that I'm also part of the president's team. I want the president to succeed; I campaigned for him. I share his world view and values."
These are not just the philosophical musings of a new attorney general. Holder, 58, may be on the verge of asserting his independence in a profound way. Four knowledgeable sources tell NEWSWEEK that he is now leaning toward appointing a prosecutor to investigate the Bush administration's brutal interrogation practices, something the president has been reluctant to do. While no final decision has been made, an announcement could come in a matter of weeks, say these sources, who decline to be identified discussing a sensitive law-enforcement matter. Such a decision would roil the country, would likely plunge Washington into a new round of partisan warfare, and could even imperil Obama's domestic priorities, including health care and energy reform. Holder knows all this, and he has been wrestling with the question for months. "I hope that whatever decision I make would not have a negative impact on the president's agenda," he says. "But that can't be a part of my decision."
Holder is not a natural renegade. His first instinct is to shy away from confrontation, to search for common ground. If he disagrees with you, he's likely to compliment you first before staking out an opposing position. "Now, you see, that's interesting," he'll begin, gently. As a trial judge in Washington, D.C., in the late 1980s and early '90s, he was known as a tough sentencer ("Hold-'em Holder"). But he even managed to win over convicts he was putting behind bars. "As a judge, he had a natural grace," recalls Reid Weingarten, a former Justice Department colleague and a close friend. "He was so sensitive when he sent someone off to prison, the guy would thank him." Holder acknowledges that he struggles against a tendency to please, that he's had to learn to be more assertive over the years. "The thing I have to watch out for is the desire to be a team player," he says, well aware that he's on the verge of becoming something else entirely.
When Holder and his wife, Sharon Malone, glide into a dinner party they change the atmosphere. In a town famous for its drabness, they're an attractive, poised, and uncommonly elegant pair—not unlike the new first couple. But they're also a study in contrasts. Holder is disarmingly grounded, with none of the false humility that usually signals vanity in a Washington player. He plunges into conversation with a smile, utterly comfortable in his skin. His wife, at first, is more guarded. She grew up in the Deep South under Jim Crow—her sister, Vivian Malone Jones, integrated the University of Alabama—and has a fierce sense of right and wrong. At a recent dinner in a leafy corner of Bethesda, Malone drew a direct line from the sins of America's racial past to the abuses of the Guantánamo Bay detention center. Both are examples of "what we have not done in the face of injustice," she said at one point, her Southern accent becoming more discernible as her voice rose with indignation. At the same party, Holder praised the Bush administration for setting up an "effective antiterror infrastructure."
Malone traces many of their differences to their divergent upbringings. "His parents are from the West Indies..he experienced a kinder, gentler version of the black experience," she says. Holder grew up in East Elmhurst, Queens, a lower-middle-class neighborhood in the shadow of New York's La Guardia Airport. The neighborhood has long been a steppingstone for immigrants, but also attracted blacks moving north during the Great Migration. When Holder was growing up in the 1950s, there were fewer houses—mostly semi-detached clapboard and brick homes, like the one his family owned on the corner of 101st Street and 24th Avenue—and more trees. Today the neighborhood is dominated by Mexican, Dominican and South Asian families, with a diminishing number of West Indians and African-Americans.
As we walk up 24th on a recent Saturday, Holder describes for me a happy and largely drama-free childhood. The family was comfortable enough. His father, Eric Sr., was in real estate and owned a few small buildings in Harlem. His mother, Miriam, stayed at home and doted on her two sons. Little Ricky, as he was known, was bright, athletic, and good-natured. As we walk past the baseball diamond where Holder played center field, he recalls how he used to occasionally catch glimpses of Willie Mays leaving or entering his mansion on nearby Ditmas Boulevard. Arriving at the basketball courts of PS 127, Holder bumps into a couple of old schoolyard buddies, greets them with a soul handshake and falls into an easy banter, reminiscing about "back in the day" when they dominated the hardcourt. "Ancient history," says Jeff Aubry, now a state assemblyman. "When gods walked the earth," responds Holder, who dunked for the first time on these courts at age 16.
Holder doesn't dispute the idea that his happy upbringing has led to a generally sunny view of the world. "I grew up in a stable neighborhood in a stable, two-parent family, and I never really saw the reality of racism or felt the insecurity that comes with it," he says. "That edge that Sharon's got—I don't have it. She's more suspicious of people. I am more trusting." There's a pause, and then, with a weary chuckle, one signaling gravity rather than levity, Holder says, "Lesson learned." And then adds, under his breath: "Marc Rich."
The name of the fugitive financier pardoned—with Holder's blessing—at the tail end of the Clinton administration still gnaws at him. It isn't hard to see why. As a Justice Department lawyer, Holder made a name for himself prosecuting corrupt politicians and judges. He began his career in 1976, straight out of Columbia Law School, in the Justice Department's Public Integrity Section, where prosecutors are imbued with a sense of rectitude and learn to fend off political interference. And though Holder has bluntly acknowledged that he "blew it," the Rich decision haunts him. Given his professional roots, he says, "the notion that you would take actions based on political considerations runs counter to everything in my DNA." Aides say that his recent confirmation hearings, which aired the details of the Rich pardon, were in a way liberating; he aspires to no higher office and is now free to be his own man. But his wife says that part of what drives him today is a continuing hunger for redemption.
When I ask Malone the inevitable questions about Rich, she looks pained. "It was awful; it was a terrible time," she says. But she also casts the episode as a lesson about character, arguing that her husband's trusting nature was exploited by Rich's conniving lawyers. "Eric sees himself as the nice guy. In a lot of ways that's a good thing. He's always saying, 'You get more out of people with kindness than meanness.' But when he leaves the 'nice guy' behind, that's when he's strongest."
Any White House tests an attorney general's strength. But one run by Rahm Emanuel requires a particular brand of fortitude. A legendary enforcer of presidential will, Emanuel relentlessly tries to anticipate political threats that could harm his boss. He hates surprises. That makes the Justice Department, with its independent mandate, an inherently nervous-making place for Emanuel. During the first Clinton administration, he was famous for blitzing Justice officials with phone calls, obsessively trying to gather intelligence, plant policy ideas, and generally keep tabs on the department.
One of his main interlocutors back then was Holder. With Reno marginalized by the Clintonites, Holder, then serving as deputy attorney general, became the White House's main channel to Justice. A mutual respect developed between the two men, and an affection endures to this day. (Malone, a well-regarded ob-gyn, delivered one of Emanuel's kids.) "Rahm's style is often misunderstood," says Holder. "He brings a rigor and a discipline that is a net plus to this administration." For his part, Emanuel calls Holder a "strong, independent attorney general." But Emanuel's agitated presence hangs over the building—"the wrath of Rahm," one Justice lawyer calls it—and he is clearly on the minds of Holder and his aides as they weigh whether to launch a probe into the Bush administration's interrogation policies.
Holder began to review those policies in April. As he pored over reports and listened to briefings, he became increasingly troubled. There were startling indications that some interrogators had gone far beyond what had been authorized in the legal opinions issued by the Justice Department, which were themselves controversial. He told one intimate that what he saw "turned my stomach."
It was soon clear to Holder that he might have to launch an investigation to determine whether crimes were committed under the Bush administration and prosecutions warranted. The obstacles were obvious. For a new administration to reach back and investigate its predecessor is rare, if not unprecedented. After having been deeply involved in the decision to authorize Ken Starr to investigate Bill Clinton's affair with Monica Lewinsky, Holder well knew how politicized things could get. He worried about the impact on the CIA, whose operatives would be at the center of any probe. And he could clearly read the signals coming out of the White House. President Obama had already deflected the left wing of his party and human-rights organizations by saying, "We should be looking forward and not backwards" when it came to Bush-era abuses.
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