Earlier this year, Jeffrey Toobin, the legal correspondent for The New Yorker, profiled Attorney General Eric Holder — and reported that Holder would step down this year. He was right. Today, news broke that Holder will leave the Department of Justice as soon as President Obama finds a replacement.
Toobin has described Holder as having "two tenures" as attorney general. In a phone conversation today, he described them to me.
Ezra Klein: What's the single most important thing Eric Holder did as attorney general?
Jeffrey Toobin: I think throwing the weight of the Justice Department behind the cause of gay rights will be seen as enormously important. Announcing support for the lawsuit against the Defense of Marriage Act [DOMA] was the biggest specific item in that regard, but in every possible way, the Justice Department has committed itself to the idea that discrimination against gay people is unlawful. That's had enormous implications, and it will continue to reverberate as same sex marriage works its way through the courts.
EK: Has Holder been effective as attorney general?
JT: I see a real bifurcation in his tenure. I think during the first term Holder ran an inbox operation. He did what crossed his desk. He tried to close Guantanamo and it was a fiasco. He did a criminal investigation of the financial collapse which went nowhere. He struggled with Fast and Furious which occupied a lot of time if not importance. There were not a lot of accomplishments that first term.
But once President Obama was reelected and Holder saw the tremendous backlash against civil rights in the states that elected Republicans in 2010, he said, the hell with it. I want to be known for something important even if it gets criticism.
EK: Earlier this year, when you profiled Holder's struggle on civil rights, it seemed to be an open question whether he would be successful. Is that still true?
JT: The Shelby County decision, striking down Sections Four and Five of the Voting Rights Act, was a transformational event in the history of voting rights. It opened the door to really major efforts to limit the franchise. Now because they Voting Rights Act itself is effectively gone it's not clear that the Justice Department can do much about this. The Texas and North Carolina lawsuits are legally on questionable ground.
But I do think Holder deserves a lot of credit for saying if voting rights are going to die, we're going to do whatever we can to try to keep it alive. I think that's a very consequential attempt. Where it succeeds or not is far from clear.
EK: I want to go back for a second to Guantanamo and the banks. Part of the reason Holder is attorney general today is he impressed Barack Obama with a speech predicting a "reckoning" for the Bush administration's war on terror policies. Obama certainly took office amid widespread fury with the banks. But the Obama administration has been resistant to aggressive prosecution on the major issues that propelled them to office. And particularly on the war on terror, it seems to me that the Obama administration has taken a much more expansive view of the president's authority there than many supporters would have predicted.
JT: In every single speech Barack Obama gave when running for president he said he would close Guantanamo. Every single one. His failure to do so is one of the great failures of his administration. How and why that's failed is a complicated subject. But I think Holder bears a lot of responsibility for it. His announcement that he would try Khalid Sheikh Mohammed in a federal criminal trial in New York led to the political backlash in Congress that, through legislation, tied Obama's hands on closing Guantanamo. It was really a wall-to-wall disaster. Not all of it is Holder and Obama's fault. They had very important adversaries in this issue of closing Guantanamo. But he is the president, it was a major campaign promise, and he utterly failed.
EK: What about the war on terror issues that have emerged on Obama's watch, like Edward Snowden, or the prosecution of journalists like James Risen, or the decision to use drone strikes against American citizens living abroad?
JT: It is true that the Obama administration has not departed from Bush administration war on terror policies nearly as much as his supporters hoped. But I am inclined to view these issues one by one and I think some positions are more defensible than others. I'm not an Edwards Snowden fan and I think that they're perfectly justified in prosecuting him. The subpoenas to journalists are a different matter.
I think part of this is the Justice Department as an institution is devoted to aggressive enforcement of criminal laws. That continues from administration to administration. I think the occupants of the top offices get captured by that approach regardless of what attitudes they brought in. I think also that things look different when you are the people who are responsible for protecting the US in a very dangerous world. If you sit there in the briefings and you hear what the dangers are that it is a major challenge to the civil libertarian instincts you brought into office.
EK: What about the banks? There's been reporting that in 2012, the Obama administration's political team was pressuring Holder to prosecute some top bankers. But it went nowhere.
JT: The major unanswered question I have is every other major financial collapse in American history has led to major criminal prosecutions. The S&L Crisis of the 1980s, insider trading in the 1990s. And here we have the biggest collapse since the Depression and not one person of consequence is even prosecuted, much less goes to prison. Now, the people in charge say this is because, as Mike Kinsley used to say, "the scandal is what's legal." What went on at Lehman Brothers and AIG and all these places wasn't criminal. It had been vetted by lawyers. I think that is a very debatable proposition. I don't pretend to have the answer but it is a very strange thing that no one went to prison as a result of the 2008 collapse.
EK: This seems like the sort of thing where an attorney general who wanted to prosecute could have found ways to try to make the case.
JT: The challenge with white-collar prosecutions is always the issue of criminal intent. Did these actors know and believe they were violating the law in what they did? Otherwise it's not criminal. What Holder and his subordinates have always said is that the CEOs did not believe what they were doing was criminal. They were making bets that failed spectacularly but that's not a crime.
I am enough of a former prosecutor myself to know these cases are very hard to make against prominent people surrounded by lawyers who can say, "I consulted my lawyers before making any of these deals." But that doesn't explain why they didn't make a single one.
EK: Let's go back to Holder's work on LGBT rights. Back when Holder decided not to defend DOMA in court, I remember a number of folks who believed DOMA should be overturned, but also believed the DOJ has a responsibility to defend the laws of the federal government.
JT: Holder didn't just say that DOMA was unconstitutional. He said that no reasonable argument could be made that DOMA is constitutional. That is a very different thing. It is the job of the Justice Department to defend the laws of the United States. That's what the Justice Department does in virtually all circumstances in virtually all administrations. In a very small handful of cases the Justice Department says one of the laws is indefensible. But remember, this was a law passed in the 1990s with an overwhelming congressional majority and signed by Bill Clinton, a Democratic president. It was institutionally risky for Holder and Obama to say that this law was not just unconstitutional but beyond the pale.
I think history will vindicate them in a dramatic way. We appear to be approaching a moment where any law that draws a distinction between gay and straight people looks like a water fountain that says "colored only". I think Holder saw that and he got the Justice Department on the right side of history faster than others might have.