POLITICS
09/27/2014 08:00 am ET Updated Oct 02, 2014

This Is What Eric Holder's Legacy Will Be

Attorney General Eric Holder, the first African-American to hold the top law enforcement position in the United States, announced on Thursday that he plans to step down from his position as soon as a successor can be confirmed. If he remains in office until December, Holder will become the third longest-serving Attorney General in the history of the United States. Here are some key components of his legacy.

He decided not to defend DOMA

The Obama administration initially defended the Defense of Marriage Act, or DOMA, which banned federal recognition of same-sex marriages. At first, Holder maintained that while the administration disagreed with the law, it was the Justice Department's responsibility to defend the laws that Congress had passed. (Some of the briefs written by Justice Department lawyers arguing that DOMA was constitutional were considered offensive by gay rights organizations.)

But Holder's analysis changed. He announced in February 2011 that the Justice Department would no longer defend components of the statute because DOMA "contains numerous expressions reflecting moral disapproval of gays and lesbians and their intimate and family relationships -- precisely the kind of stereotype-based thinking and animus the (Constitution's) Equal Protection Clause is designed to guard against." Ultimately, the Supreme Court agreed, ruling in June 2013 that key portions of DOMA were unconstitutional.

He lost the fight to bring the Sept. 11 trial out of Guantanamo Bay and into New York City

In one of the biggest disappointments of his tenure, Holder ultimately lost the fight to try the key perpetrators of the Sept. 11 attacks in federal court in New York City. The plan, first announced by Holder in Nov. 2009, faced stiff resistance from many politicians in New York who feared the impact a high-profile trial would have on the city. Others objected because they believed that a military commission was a more appropriate venue for the terrorism trial. Holder ultimately announced he was reversing his decision to try the cases in New York and moved them back to the military commission in Guantanamo.

While the process in Guantanamo has hit numerous roadblocks, Holder's Justice Department has gathered a string of wins against other terror suspects in federal court. Holder has remarked that the Sept. 11 defendants "would be on death row as we speak" if the case had been allowed to proceed in federal court.

He helped turn around the Civil Rights Division and fought for voting rights

The Civil Rights Division of the Justice Department was heavily politicized during the Bush administration. A 2008 inspector general report found the conservative leadership had hired lawyers with little to no civil rights experience into positions due to their ideological beliefs. The environment caused a massive exodus in the Civil Rights Division: more than 70 percent of its attorneys left between 2003 and 2007. Holder, who has long made civil rights a top priority, was widely credited with overseeing the turnaround of the division.

“I think Eric Holder put the ‘J’ back in DOJ, and in particular he restored the luster of the crown jewel which is the Civil Rights Division, and I had the privilege of having a front-row seat for that,” Labor Secretary Tom Perez, who headed the Civil Rights Division from 2009 to 2013, told The Huffington Post after Holder's announcement on Thursday.

Holder oversaw several of the Justice Department's successful voting rights lawsuits during President Barack Obama's first term, as well as the agency's continued efforts after the Supreme Court struck down a key provision of the Voting Rights Act. DOJ is currently involved in several voting rights cases, including high-profile suits against voter ID laws in North Carolina and Texas.

He addressed racism head on

Shortly after his confirmation in 2009, Holder delivered a speech to Justice Department employees at an event commemorating Black History Month. In his remarks, he called out the U.S. as a "nation of cowards" when it comes to addressing race. He said Americans believe that "certain subjects are off-limits and that to explore them risks at best embarrassment and at worst the questioning of one's character."

Those words echoed throughout Holder's tenure at the DOJ as he fought back against laws that suppressed voting and defended the Voting Rights Act. He stepped in to request federal oversight of the New York City Police Department's stop-and-frisk policy, a program that has overwhelmingly targeted black and Latino individuals. More recently, he ordered a civil rights investigation into the largely white police force in Ferguson, Missouri, following the shooting death of unarmed black teenager Michael Brown at the hands of Officer Darren Wilson.

“Will we yet again turn a blind eye to the hard truths that Ferguson exposed?" Holder asked during a speech this week, echoing his 2009 remarks. "Or will we finally accept this mandate for open and honest dialogue?”

He oversaw a crackdown on leaks and disappointed civil liberties advocates

Under Holder, the Justice Department has aggressively -- some would say obsessively -- pursued government leakers. Eight have been charged with violating the draconian Espionage Act of 1917, more than under all previous administrations combined. Journalists have also come under the gun: Holder's DOJ subpoenaed AP reporters' phone logs in a leak investigation, named a Fox News reporter as an "un-indicted co-conspirator" in another case, and is still trying to force Pulitzer Prize-winning New York Times reporter James Risen to testify about his sources under threat of jail time.

All of that led Risen to call Holder's boss, Obama, "the greatest enemy to press freedom in a generation."

One of the leakers charged, Edward Snowden, revealed another disappointment for civil liberties advocates: the DOJ's intimate role in coming up with the legal rationale that underlies the National Security Agency's bulk collection of American phone records.

The FBI's frayed relationship with Muslim communities, meanwhile, has seen little improvement under Holder. The bureau has continued to use sting operations, which critics say are tantamount to entrapment, to arrest Muslims involved in bogus terror "plots." And NPR reported on Wednesday that the racial profiling guidelines set to be released soon will still allow the FBI to "map" the demographics of Muslim communities.

Perhaps most worrying for many across the spectrum, it was Holder's DOJ that came up with the "drone memos" -- the legal justification that the Obama administration leaned on to kill al Qaeda propagandist and American citizen Anwar al-Awlaki in Yemen without a trial.

He released the so-called "torture memos," but didn't go after their authors

Two months after assuming office in 2009, Holder moved to publicly release a series of previously classified “torture memos” from the Bush administration that sanctioned specific acts of torture, including waterboarding, for CIA use against al Qaeda suspects.

"There is no reason we cannot wage an effective fight against those who have sworn to harm us while we respect our most honored constitutional traditions," Holder said in March 2009 after releasing nine previously classified Justice Department memos.

Despite the release, which faced significant pushback from senior intelligence officials, the attorney general's office never brought criminal charges against any government officials investigated for their involvements in over 100 cases of severe prisoner abuse.

While crediting Holder in other areas, American Civil Liberties Union Executive Director Anthony Romero issued a statement on Thursday noting "profound disagreements with the Attorney General on national security issues."

"During his tenure, DOJ approved the drone killing of an American far away from any battlefield, approved the NSA’s mass surveillance programs, failed to prosecute any of the Bush administration torturers, and presided over more leak prosecutions than all previous Justice Departments combined," Romero said.

He became the first-ever cabinet member to be held in contempt of Congress

In 2012, Holder became the only sitting cabinet member in history to be held in contempt of Congress after the White House claimed executive privilege over documents subpoenaed in relation to Operation Fast and Furious, a botched federal investigation intended to combat gun smuggling. The documents that the Justice Department refused to turn over related not to the actual operation, but rather to how DOJ responded once Congress began investigating the matter.

Holder later dismissed the vote -- led by the Republican-controlled House -- as political theater, calling it "a crass effort and a grave disservice to the American people.”

The White House also indicated in 2012 that Holder would not face any criminal charges in the matter since the documents being sought were protected by executive privilege.

He took on "draconian" drug sentences and slowly but surely scaled back the war on drugs

In what Obama described as a "gutsy speech" in front of the American Bar Association in 2013, Holder outlined his plan for "sweeping, systemic changes" to how the Justice Department prosecutes drug-related offenses. While Holder initially faced a lot of internal resistance from career federal prosecutors as he attempted to rein in the so-called war on drugs, he pressed ahead, pushing for changes like allowing low-level and nonviolent drug offenders to avoid "draconian" mandatory minimum sentences and permitting the early release of some elderly defendants.

He continued to push for sentencing reform in March, lending his support to a proposal that would reduce penalties for some drug offenders and help cut prison costs.

"This overreliance on incarceration is not just financially unsustainable, it comes with human and moral costs that are impossible to calculate," he said.

Holder has also urged first responders to carry the heroin overdose antidote naloxone.

He oversaw a crackdown on marijuana shops, but allowed state legalization to move forward

During the first term of the Obama administration, Holder oversaw an expansive federal crackdown on hundreds of state-compliant medical marijuana dispensaries in states like Colorado and California, which was spearheaded by the Drug Enforcement Agency and several U.S. attorneys.

But in a historic step, Holder announced in 2013 that DOJ would allow for Colorado and Washington to implement their groundbreaking new laws legalizing and regulating the possession, use and sale of recreational marijuana.

While Holder never explicitly came out in favor of legalization or decriminalization, he has been more open to rescheduling marijuana, which is still classified by the federal government as a Schedule I substance like heroin. Holder said the Obama administration would be “more than glad” to work with Congress to re-examine how cannabis is scheduled federally. He even said in April that he’s “cautiously optimistic” about how the historic changes in marijuana law were working out in Washington and Colorado.

And now, as he plans to step down from his post, he appears to be more open than ever to the possibility of classifying marijuana as a less dangerous drug. He said in an interview just this week that “we need to ask ourselves, whether or not marijuana is as serious of a drug as heroin” adding that science should be used to make that determination.

He reached big settlements on pollution cases

The DOJ reached a record $4 billion settlement with BP in November 2012 over criminal charges stemming from the 2010 oil spill, which dumped 4.9 million barrels of oil into the Gulf of Mexico. That included charges related to the deaths of 11 workers on the rig and the “misconduct or neglect of ships’ officers.” The DOJ is still pursuing civil charges related to the spill, but the agency recently scored a big win when a federal judge ruled that BP was grossly negligent in allowing the spill to occur -- a ruling that opens the door to up to $18 billion in civil penalties that could be levied against the company.

The DOJ topped its own record fine this year, however, with a $5.15 billion settlement in April 2014 with Anadarko Petroleum over a decades-long legacy of pollution left by one of its subsidiaries.

He failed to hold Wall Street accountable for the financial crisis

Holder’s legacy is likely to be marred by what critics view as DOJ's lax approach to investigating and prosecuting the alleged crimes that sparked, or exacerbated, the 2007-09 financial crisis.

Few Wall Street firms, and even fewer senior financial executives, were officially charged with breaking the law for conduct related to the crisis, despite what experts contend is a wealth of evidence -- thanks to civil lawsuits brought by aggrieved investors, prior investigations by state authorities, and probes by Congress and the federal Financial Crisis Inquiry Commission -- that at the very least should have prompted the Justice Department to investigate further.

Holder’s approach to crisis-era wrongdoing stands in stark contrast to the playbook followed by federal prosecutors contending with the fallout of the savings-and-loan debacle of the late 1980s and early 90s.

“In striking contrast with these past prosecutions, not a single high-level executive has been successfully prosecuted in connection with the recent financial crisis, and given the fact that most of the relevant criminal provisions are governed by a five-year statute of limitations, it appears likely that none will be,” Judge Jed Rakoff of the U.S. District Court in Manhattan wrote earlier this year in the New York Review of Books.

The lack of public evidence that Holder’s Justice Department thoroughly investigated crisis-era wrongdoing has contributed to the perception -- one eagerly promoted by the defense bar -- that perhaps few crimes were even committed in the runup to the financial crisis.

“But if, by contrast, the Great Recession was in material part the product of intentional fraud,” Rakoff wrote, “the failure to prosecute those responsible must be judged one of the more egregious failures of the criminal justice system in many years.”

Matt Ferner, Shahien Nasiripour, Matt Sledge and Kate Sheppard contributed reporting.

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