Attorney General Holder: A Good Man Leaving

[For brief comment on the Woody Allen test and the importance of voting this November, click here. For brief comment on Attorney General Holder’s role in letting the bankers walk and vigorously prosecuting leakers, click here. For brief comment on Holder’s vindication in his approach to terrorism cases, click here.]

Quod per sortem, sternit fortem, mecum omnes plangite. (Latin: “That Fate fells a strong man, all weep with me.”) —Ancient Latin verse, per Carl Orff, Carmina Burana (last two lines of oratorio) Amidst all the hubbub about the nascent war against IS and the now-dormant civil war in Ukraine, an important event yesterday was barely noticed. Attorney General Eric Holder announced that he would be leaving his post as soon as his successor can be confirmed. Holder’s departure will be a sad day for both law and justice. Unfortunately, the two do not always coincide. But for the better part of six years, Holder has served both with grace, elegance and consummate skill and intelligence. He is one of the longest serving members of Obama’s Cabinet, outlasting Hillary by a year and nine months. Holder’s many detractors make a lot of noise. But as far as I can tell, they have only two complaints of any substance. The first is that Holder wanted to try Khalid Sheikh Mohammed (KSM), the operational mastermind of 9/11, in civil court in Manhattan, rather than in a secret military tribunal. The President overruled him. The second is that Holder has been too vigorous for some in fighting laws that make it harder for Americans to vote. I have written a whole post about trying KSM, and I won’t repeat it here. I’ll just make a few simple points. After World War II, a stunned, grieving and exhausted world wanted to wage peace and forget. But our great political leaders and jurists didn’t want our species to forget Nazi atrocities or the Holocaust. So we Yanks organized and led the Nuremberg Trials. Justice Robert H. Jackson, one our most able and distinguished Supreme Court Justices, presided over the Trials. They lasted over seven months. They presented voluminous evidence, translated simultaneously into multiple languages. They proved the convicted defendants’ guilt beyond a shadow of a doubt, openly, transparently and before the entire world. In the process, the Nuremberg Trials accomplished three things. First, they showed the world that Nazi atrocities and the Holocaust really did happen, and that they were far beyond the pale of ordinary military operations. Second, they showed precisely who—what individuals—was responsible. Third, they showed that we Yanks and the Allies were not out to punish the German people collectively, as the Allies had stupidly done after World War I, but to expose and punish perpetrators of crimes against all humanity. As I have analyzed, the Nuremberg Trials marked a decisive step in human social evolution and the advance of civilization. For the first time in human history, they held individual leaders responsible for crimes against humanity and civilization. And they did so with impeccable legal procedure and close attention to facts and evidence. Now contrast what we did with KSM. We are trying him in a mostly secret proceeding, with little openness and transparency, and accordingly with little publicity. The contrast with the Nuremberg Trials could not be starker. What Holder wanted was an open and public civil trial, in Manhattan, where the worst part of the crime occurred. If he had gotten his way, twelve ordinary men and women of New York would have decided KSM’s fate, just as jurors have done for centuries past, in all English-speaking societies. KSM, whose only remaining joy in life was bragging about his spectacular atrocity, could have been induced to confess it, at length and in grotesque detail. The results would have been supremely beneficial. KSM would have condemned himself in his own words. All the grotesque rumors that we Yanks, or Jews, had planned 9/11 for political purposes, or to discredit Islam, would have been quashed forever. The people most hurt by 9/11—New York’s many survivors—would have had an open and active part in doing justice. And the strength, resilience, even-handedness and effectiveness of our Anglo-American system of laws and courts would have been on global display. Instead, we have a dark military proceeding which anyone (without effective contradiction) can accuse of being a kangaroo court. Isn’t that what banana republics do, not great democracies? Only furtive Torquemada Cheney could have conceived a plan so inconsistent with our Yankee history, legal traditions and values. I don’t fault the President for overruling Holder, at least not too much. He had lots of other things on his plate, including health-insurance reform. His political judgment is superb, and the reason for his decision was clearly political expediency. Nor is the President alone in making tactical decisions that, in retrospect, proved morally wrong and practically inadvisable. Lincoln, for example, freed the slaves too late. FDR approved the Internment of Japanese-Americans, in the absence of any evidence of disloyalty or sabotage, and didn’t live long enough to apologize for doing so. But I cannot imagine any lawyer worthy of the name who would, based solely on law and justice, have made the same decision as the President on KSM’s trial. The President’s decision was political, not Holder’s. It may have been expedient. It may even have been necessary. But it was not right. History will vindicate Holder. As for Holder’s work on voting, his detractors ignore one simple, self-evident point. All the laws that Holder is challenging as AG—voter ID laws and restrictions on early voting, absentee voting, and voter registration—make it harder to vote. No one denies that, not even avid supporters of these laws. Why, oh why, should we Yanks want to make it harder to vote? As we all have been told over and over again with respect to the upcoming midterm elections, we need more voters, not fewer. If history is any guide, around thirty or fewer percent of eligible voters may determine the outcome of our upcoming elections, at least in a few key states and districts. So why, oh why, should we want to discourage voting? Study after study has proved so-called “voter fraud” nonexistent, or so far down in the noise of our society as to merit little attention. The only reason support for restrictions on voting makes any sense at all is that some folks want to discourage voting by those who don’t agree with them. Is that democracy? Doesn’t democracy mean persuading eligible voters with whom you disagree, rather than making it harder for them to vote? And with all the power of the history’s most effective propagandists on their side (namely, Fox and the Antichrist Rupert), don’t the right-wing supporters of making voting harder have ample means to persuade? No, Holder’s efforts to expand the franchise are hardly the assault on the rule of law that his detractors claim. His lawsuits and his hard work go to the essence of preserving and perfecting our democracy and our supremely effective “melting pot” of all peoples. I taught law for over twenty-four years. I practiced it full time, part time or as a consultant for 32. I taught in four American states and on four continents: in our country, Japan, Korea, France, Australia and (as a Fulbright Fellow) the Russian Federation. In so doing I met and observed lawyers, jurists and law professors from all over the globe. Few are even in Holder’s league. None that I can recall exceed his skill and effectiveness. His tall grace, sweet face, and gentle delivery combine with superb elocution and articulation and a gift for consistently “going for the jugular” in a nonthreatening but absolutely precise and irrefutable way. Holder’s unmatched gifts have ennobled our American legal profession, which is ever at risk of venality and corruption. Holder is ever true both to the rule of law and to the value of justice that underlies law and legitimatizes it. Law without justice can degenerate into tyranny. Holder has consistently worked hard to keep that from happening here. We and our common profession will miss you, Mr. Holder. Thank you, thank you, for your distinguished service to our nation, our profession, and the cause of human civilization. After a well-deserved rest, may you continue to serve all these things, perhaps as dean of one our great law schools: Harvard (my alma mater), Yale, Stanford, Michigan or Chicago. The faculty and students of any one of them would be honored, privileged and ennobled to call you their leader. So would I.

Coda: Two More Points of Cavil

Before leaving the subject of Attorney General Holder’s record, I would like to address, very briefly, two additional points of complaint against him. Some lament that Holder didn’t get the bankers, and that he has prosecuted government leakers too vigorously.

I, too, have lamented (several times—see 1, 2 and 3) that the bankers who destroyed our global economy walked free. Not only didn’t they go to jail; they didn’t even lose any money.

All that did indeed happen, but Holder is not at fault. The law itself is.

Three features of Anglo-American law conspire to give errant bankers virtual immunity from individual responsibility for their sins. The first—and by far the most important—is an established feature of Anglo-American tort and criminal law. There is no such thing as financial or economic negligence.

You can be liable for unintentionally killing someone on the road or in an industrial accident, but not for unintentionally destroying a national or the global economy. You will walk no matter how stupid, greedy, and unreasonable your actions might have been, because the very concept of negligence does not apply to financial or economic damage. In both criminal and civil court, you must be shown to have had evil intent.

Insofar as criminal liability is concerned, there is another hurdle that prosecutors must jump to put errant bankers away. Not only must they show evil intent (because there is no such thing as banking negligence). They must also prove it beyond a reasonable doubt.

Getting evidence of that intent is, to put is mildly, not easy. Bankers may be stupid and greedy, but they didn’t really intend to do anyone any harm. They just didn’t think much about the consequences of their actions. That’s not criminal or tortious intent; it’s negligence, which doesn’t exist in the law for banking or other economic sins.

Anyway, despite their self-evident greed and stupidity, bankers (at least the top ones) are smart enough to have learned one lesson. They don’t put incriminating things in writing, or even in e-mails. All they do is wink and nod to their underlings. Honor among thieves prevents the underlings from testifying. And even when they do, clever lawyers discredit their testimony by pointing out the immunity that prosecutors often grant them for giving it.

So if you think the law is set up to let bad bankers walk, you’re right. It could not be more cleverly designed for that purpose if Goldman Sachs had drafted every provision of the law governing bankers. (Unless we strengthen the law, another gratuitous financial crash is just a question of when, not if. That’s why giving the law sharper teeth is far more important than prosecuting past malefactors of great wealth, let alone blaming Holder.)

But even that’s not all. The worst bankers walked not because of Holder, but because his deputy in charge of financial matters when Holder took his job bought the “save bankers to save our economy” ploy hook, line and sinker. [search for ”fifth“ point in linked source]

The Justice Department has over 10,000 lawyers nationwide. When you are in charge of that many people, you have to delegate. Holder did. To blame him for the result—and for the longstanding abysmal state of Anglo-American law governing financial misfeasance and malfeasance—is nonsense.

As for pursuing leakers vigorously, Holder serves at the pleasure of the President. And as you may have noticed, both Holder and the President are “black.”

Just as Hillary has to be a hawk because she’s a woman, “black” men in high positions in our country have to be hard on leakers in order not to be tarred as soft on national security. If you want to blame anything for the Obama Administration’s far-too-tough line on leakers, blame our tortured national history of race.

You also may recall that Obama’s immediate predecessor, Dubya, spent four years trying to find a leaker and had to appoint a special prosecutor to convict him. Perhaps the current President and his Attorney General could be excused for wishing to avoid such a four-year distraction from good government, while dealing with the most extreme examples of hazing of a president and congressional obstruction in American history. To blame Holder as if he had a free hand in the matter, ruled only by his own personal conscience, is nonsense.

We are in the midst of a presidentially declared “war against terror,” declared by the President’s predecessor. The President has tried to wind down two unnecessary national theaters of that war, in Iraq and Afghanistan. Excessive security and persecuting leakers—despite our long tradition of a vigorous Fourth Estate—won’t subside until after we have utterly defeated the Islamic State.

The fear now is just too high. That’s why Edward Snowden is still hiding in Mosow. And that’s why he’s a hero, just as much as the NSA spooks and analysts who protect us every day. Democratic societies tend to get the balance of liberty and security wrong while danger persists and is real, let alone during wartime. Just recall the Japanese Internment. To blame Holder for all that is, to resort to Obamanian understatement, unjustified.

Footnote 1: A literal translation of the Latin is: “That a strong man dies through fate, all weep with me.” (emphasis added.) Attorney General Holder, thank God, is not dying. I have no idea why he really is leaving. He may be tired. He may be sick. The President, whose political judgment I respect, may think his leaving will help the Dems in the upcoming election.

But the verse from Carmina Burana came unbidden to mind when I thought of his departure. We have too few people of his caliber in leadership positions in our nation. That’s why the border of this piece is blue. Blue is how I feel, and how anyone who cares about both law and justice should feel, at the mere thought of Holder’s leaving.

Footnote 2: I hate the word ”black” as applied to people. Not only does it ignore obvious shades of hew and racial origin. It also ignores that fact that, for reasons of the sexual desire of white male slave owners, the vast majority of so-called “African-Americans” are of mixed race. But it has the sole virtues of being a single syllable, and (because of our nation’s unenviable racial history) of being unfortunately comprehensible to all.

Footnote 3, Holder’s Instant Vindication: Today (10/22/14) the New York Times published an early vindication of Holder’s approach to trying terrorists in civilian court, rather than in secret military tribunals as a banana republic would. To quote the Times’ free online summary, “The success of Attorney General Eric H. Holder Jr. in reversing the Bush administration's emphasis on trying terrorism suspects in secret prisons or at offshore military tribunals may be one of his most significant achievements.” It’s not often that a good public servant receives the respect he deserves even before he leaves office. But Holder has and will again; he’s that good.

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