Here’s how bad things got in George W. Bush’s Justice Department. In August 2004, Voting Section Chief John Tanner sent an e-mail to Bradley Schlozman—more on him later—in which he asked for a cup of coffee. Schlozman asked Tanner how he takes his java and Tanner replied, “Mary Frances Berry style—black and bitter.” Yes, he meant that Berry, the celebrated black activist who chaired the U.S. Civil Rights Commission for over a decade.
Schlozman was so tickled he forwarded the e-mail to several ranking officials in the Justice Department, along with the note, “Y’all will appreciate Tanner’s response.” Little wonder half the voting-section staff left or got reassigned after the November elections.
That’s the mess Eric Holder will step into if confirmed to be the first black attorney general of the United States. Perhaps more than any other Cabinet secretary, he will be tasked with figuring out what went wrong over the last eight years—and setting it right. As Holder told the Senate Judiciary Committee during yesterday’s confirmation hearing, “One of the things I’m going to have to do, in short order, is basically do a damage assessment.”
The outcome of that assessment is the not-so-subtle subtext of the partisan jousting that has preceded Holder’s certain confirmation. His nomination has predictably become a proxy for the old fight over the Bush Justice Department’s expansive conception of presidential power and its narrow ideas on things like torture. But the debate is now less about the past than it is the future. What everyone really wants to settle is whether Holder and Obama plan to hold the Bush administration accountable.
Sen. Arlen Specter opened the hearings with pointed questions on Holder’s role in Bill Clinton’s Marc Rich pardon, an interrogation that editorial pages around the country cheered in advance. Holder has repeatedly admitted he handled the pardon poorly—a level of self-criticism we still haven’t seen from the Bush administration—and he plainly did so again yesterday. He was similarly blunt about his role in offering clemency to Puerto Rican nationalists in 1999, pointing out that everyone from Jimmy Carter to Cardinal O’Connor supported the “reasonable” decision.
But the Republicans’ true aim in stirring up the pardon tempest over the last several days has been to erode Holder’s moral high ground—his 30-plus years of untarnished civil service in federal law enforcement. When the smoke of those manufactured controversies finally cleared, the real dispute finally came into view: accountability.
There have been numerous calls for prosecution of various individuals ranging from the vice president to attorneys at the office of legal counsel,” noted Sen. Orrin Hatch, who has already said he’ll vote for Holder. “Do you intend to undertake, order or support a criminal investigation of those individuals?”
Holder’s answer was deft, but blunt. “No one is above the law,” he said, a phrase he repeated many times during the afternoon. “We will follow the evidence, the facts, the law and let that take us where it should.” He added the official Obama talking point on Bush-era crimes: that we must be careful not to “criminalize policy differences.” But when Hatch pressed the point, Holder again refused to rule out prosecutions, saying he’d have to review the policy differences in question.
Similar exchanges recurred all day, as Republican and Democratic senators alike pursued the nagging question of accountability. Hatch, for instance, also wanted to know if Holder would try to revoke the immunity granted to telecom companies that helped the Bush White House spy on Americans without a warrant. No, said Holder, because Congress has written that immunity into law (a law which his new boss voted for, by the way).
Several Democrats asked about the shocking inspector general’s report in which the anecdote about Tanner and Schlozman’s e-mail exchange appeared. Published on Tuesday, the report found, among other things, that Schlozman illegally politicized the Civil Rights Division’s hiring process and then lied to the Judiciary Committee about it. Schlozman hired 63 lawyers based on his assessment of whether they were what he called “real Americans.”
The U.S. Attorney’s Office in Washington has concluded it won’t bring charges against Schlozman, and that fact has greatly annoyed the committee’s Democrats. Several of them demanded a review of the U.S. Attorney’s decision, and Holder vowed to provide one.
"I will review that determination,” he told Sen. Dianne Feinstein, the first Democrat to ask about it. “Given the findings in the inspector general’s report,” he said, “I want to know why the determination was made not to pursue charges, criminal charges.”
The Democrats aren’t likely to see much political gain in long, messy prosecutions of the Bushies who abused the Constitution in the name of national security—people like Alberto Gonzalez and, yes, Dick Cheney. And while Holder was not willing to rule out such prosecutions, he was far more interested in promoting what is bound to be known as the Holder doctrine. “The president acts most forcefully and has his greatest power when he acts in a manner that is consistent with congressional intent,” he repeated again and again.
But Schlozman and his colleagues in the Civil Rights Division may face an entirely different calculus. Some of the Senate’s most powerful Democrats are enraged by the insult of Schlozman’s perjury. And Holder used some of his most emphatic rhetoric when talking about the mess Bush’s cronies have made of the division.
“What we have seen in that report I think is aberrant, but is also I think one of the major tasks the next attorney general is going to have to do. You have to reverse that,” Holder told Feinstein. Then later, to Sen. Chuck Schumer, “It is my intention to devote a huge amount of time to the Civil Rights Division and restoring” its “great traditions.”
One of those traditions is rooting out and holding accountable racist thugs who abuse power. Let’s hope that’s the first one Holder restores.
Kai Wright is a regular contributor to The Root.