Today's Judiciary Committee hearing may concern the nomination of Eric Holder to the job of attorney general, but expect former Attorney General Alberto Gonzales to make a few cameo appearances. He's certainly been dominating the conversation leading up to the hearing.
"After our recent experience with Attorney General Gonzales, it is imperative that the attorney general undertake and effectuate that responsibility of independence," observed Sen. Arlen Specter, the ranking Republican on the committee. "I am convinced that many of Attorney General Gonzales' missteps were caused by his eagerness to please the White House. Similarly, when Mr. Holder was serving as [deputy attorney general] to President Clinton, some of his actions raised concerns about his ability to maintain his independence from the president."
Yowch. But the chair of the Judiciary Committee, Sen. Patrick Leahy, proved to his Republican colleague that more than one legislator can use the disgraced Bush official as a political bludgeon. On a conference call with reporters Tuesday, he pointedly noted that Specter had been Gonzales' champion during his confirmation hearings and that Republicans voted unanimously for the administration loyalist's confirmation.
No one is disputing Holder's qualifications. How could you? A degree from Columbia Law, a staff position at the Department of Justice, a stint as a judge in D.C.'s Superior Court, then U.S. attorney, then as deputy attorney general, now a partner at a major law firm, legal adviser to the president-elect, and chief vetter of Obama's vice president. That's one reason that nearly every major civil-rights group, law-enforcement organization, and crime victim's lobby in the country have endorsed Holder's nomination. But anyone with a resume so extensive also has had plenty of time to have a few skeletons accumulate in his closet. And after the dismal record of the Department of Justice during the last administration, a politically independent attorney general is more important than ever.
What concerns Specter -- and should concern us all -- is Holder's role in the Clinton administration during two pardons and a campaign-finance controversy. One pardon concerned members of a Puerto Rican nationalist group, FALN, that had committed violent acts in the United States. The members had served long prison terms, and their clemency appeal had the support of various religious and Hispanic groups and some members of Congress; Holder submitted an options memo to Clinton, who pardoned 16 of the prisoners. Congress passed resolutions protesting this decision.
The more well-known pardon was that of fugitive financier Marc Rich. Holder himself has characterized his actions during that process as a mistake, and a rereading of the history suggests negligence: Holder had contact with some of Rich's lawyers independent of the pardon process and ended up submitting a "neutral, leaning toward" favorable recommendation to Clinton. Congressional investigations and a federal grand jury found no wrong-doing. And, as Leahy himself put it, "Holder said he made a mistake on that, so he should testify about it. But does anyone doubt, no matter what Eric Holder said, that Bill Clinton was going to give that pardon? If you're going to criticize anyone for that pardon, you criticize the person who gave that pardon. I did at the time."
Specter also criticizes Holder for the role he played -- exactly what the role was is unclear -- in then-Attorney General Janet Reno's decision to not to appoint a special prosecutor to investigate Vice President Al Gore's fundraising practices. Then-FBI director Louis Freeh, who argued in favor of an independent prosecutor, has now endorsed Holder's nomination.
All this could raise concerns about independence, but there are other data points to consider: Holder was the prosecutor who put Congressman Dan Rostenkowski in jail for corruption when the Chicago representative was one of the most powerful Democrats on Capitol Hill. Holder also recommended an expansion of Kenneth Starr's independent investigation into the Clinton administration, while serving in the Department of Justice, and recommended an independent prosecutor to investigate Clinton's secretary of the interior, Bruce Babbitt, for allegations that political donations influenced a regulatory decision. Holder also supported a special counsel to investigate federal law-enforcement officials -- including his own boss, Janet Reno -- for their handling of the siege at the Branch Davidian compound in Waco, Texas. Given all this, it's hard to say definitively how independent Holder will be, but he's clearly no administration stooge. Today's hearing will hopefully reveal a man who has learned from his mistakes.
"Nobody's trying to be obstructionist by any means," cautions a Senate Republican aide, who framed questions about Holder's nomination as due diligence for a public servant who is not as well known as some of his higher-flying counterparts. "Holder has been involved in issues that quite frankly have drawn some fire," the aide continued. "It's our responsibility to explore those issues and evaluate his fitness for the office."
And, barring an embarrassing revelation or a truly dismal performance from Holder, exploring the issues is all the Republicans can do; Leahy has publicly guaranteed confirmation and isn't likely to be proved wrong. Even Utah's Republican senator Orrin Hatch has said he will vote for Holder after asking him some tough questions. But that won't stop at some politicking: Republicans have called two witnesses, one the son of man murdered by the FALN in 1975 and the other a former FBI agent who investigated the group. Neither witness is likely to shed any light on the legal and procedural questions surrounding the pardons, but their testimony will lather up concerns over Holder's record on terrorism. In response, Democrats will call Frances Townsend, a former top counterterrorism official during the Bush administration, to endorse Holder. The GOP's other witness is an attorney from Virginia specializing in Second Amendment cases who will likely direct fire at Holder's pro-gun-control record.
Now that Treasury Secretary nominee Tim Geithner is facing questions about mistakes in his own past, Holder may lose his status as the most controversial of the Obama nominees. But call me a supporter of second chances: It's a fool's errand to try to bar quality officials from service for relatively small errors in judgment they may have made in decades of public service -- as long as the mistakes have been thoroughly investigated and any debts, fiscal or otherwise, have been paid. Holder has been endorsed by a number of Republican officials--in addition to Freeh, former Attorney General William Barr and former Congressman Bob Barr have both expressed their support. Perhaps most important, former Deputy Attorney General James Comey, whose service in the Bush administration was distinguished by his integrity, has endorsed Holder's nomination. Comey was also, appropriately enough, the chief prosecutor of the Rich case and opposed that pardon.
"Mr. Holder's role in the Rich and Green pardons was a huge misjudgment, one for which he has, appropriately, paid dearly in reputation," Comey wrote in a letter to the Judiciary Committee. "Yet I hope very much he is confirmed. I know a lot of good people who have made significant mistakes. I think Mr. Holder's may actually make him a better steward of the Department of Justice because he has learned a hard lesson about protecting the integrity of that great institution from political fixers."
