Eric Holder for AG, Again!

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As a retired law professor, once Articles Editor on the Harvard Law Review (1977-78), I have a special perspective on the post of Attorney General. It makes me long to see Eric Holder return to his good work. This post explains why. The practice of law has two equally vital aspects. The first is the law’s language: the words of the Constitution, statute or ordinance in question. The second is facts: the real-life situations to which the law applies. Human language is inescapably abstract, vague and fuzzy. It’s even more so in our Constitution, ratified in 1791. Today, we have to apply its language to things like vaccines and large-magazine automatic weapons, which were beyond dreams at that time. Language is always subject to interpretation and “spin.” So non-lawyers often take it to be the law’s principal preoccupation. But what non-lawyers often fail to appreciate is that the facts are equally important. Our Constitution doesn’t let our courts rule or make law in the abstract. That is Congress’ bailiwick. Our courts can only apply the law to “Cases and Controversies,” that is, to specific sets of facts, determined by careful investigation and revealed in oral, written and recorded evidence. In my 75 years, I’ve seen a few Attorneys General. I’ve seen criminal toadies like Nixon’s AG John Mitchell. I’ve seen professionals like Mike Mukasey, who bend their professionalism in the service of politics. And I’ve seen Bill Barr, who bent his lawyer’s license and his weak professionalism to the breaking point in disgracefully “spinning” the Mueller Report and obsequiously serving an imperial Executive. Hardly ever have I seen an AG like Holder. Two things, I think, make him nearly unique. First is his calm, measured and invariably understated way of speaking. His personal manner befits a lawyer. Sometimes we want our pols to speak forthrightly and with emotion. But those of us trained in the law most want our chief lawyers never to overstate. The second and most important thing about Holder is his approach to facts. When police killed Michael Brown in Ferguson Missouri, Holder didn’t mouth off. He didn’t make any assumptions. He didn’t grandstand or “view with alarm.” He assembled a team and went to Ferguson to find the facts. After several months, Holder’s team produced two reports, which he summarized here. One found no basis to prosecute the officers involved in Michael Brown’s death. But the second report showed how Ferguson and surrounding communities had built a system— disproportionately affecting Black people—that milked citizens for revenue with excessive policing and fines for traffic, parking and other minor violations. This second report was so effective that eventually six city officials resigned or were fired, and the City of Ferguson agreed to a DOJ consent decree to reform its system. This was lawyering at its finest. It wasn’t spinning legal language and obscure histories to speculate on what our Founders would have thought about modern developments of which they in fact never dreamed. It was finding out what was actually happening on the ground in our nation today. Today facts and reality are under challenge as part of a wholesale political assault on truth. So what we most need in our law enforcement is a dogged and relentless emphasis on facts. Holder personifies that emphasis. Lawyers like Rudy Giuliani and Bill Barr have become parodies of the legal profession, the butts of late-night comedy. In contrast, Holder is a professional’s professional. When you consider his low-key, pleasant, understated personality, you will find it hard, if not impossible, to find a lawyer with better qualifications and personal qualities, let alone such recent and successful on-the-job experience. I, for one, will be disappointed if Holder doesn’t get the chance to build on the excellence he brought to Justice under President Obama. Our rule of law would be poorer without him: he has proved his mettle under fire.

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