No Comment — February 15, 2010, 10:42 am

Holder at Bay

A week ago, Jane Mayer’s important portrait of Eric Holder, “The Trial,” appeared in the New Yorker. Today, Jodi Kantor and Charlie Savage treat us to their own in-depth examination of Holder’s dilemma in The New York Times.

The two pieces give us not only a similar framing of the issues but also a similar analysis. A conclusion is now emerging: eight years of White House micromanagement of the Justice Department by Karl Rove and his helpers has now been replaced by a Justice Department which is—at least with respect to the most politically sensitive cases—not under the supervision of Eric Holder, but rather that of Rahm Emanuel and David Axelrod. Kantor and Savage signal this in the opening paragraphs:

Last winter, when Attorney General Eric H. Holder Jr. called the United States a “nation of cowards” for avoiding frank conversations on race, President Obama mildly rebuked him in public. Out of view, Mr. Obama’s aides did far more. Rahm Emanuel and Jim Messina, the White House chief and deputy chief of staff, proposed installing a minder alongside Mr. Holder to prevent further gaffes — someone with better “political antennae,” as one administration official put it. When he heard of the proposal at a White House meeting, Mr. Holder fumed; soon after, he confronted his deputy, David W. Ogden, who knew of the plan but had not alerted his boss, according to several officials. Mr. Holder fought off the proposal, signaling that his job was about the law, not political messaging.

A year later, he is no longer so certain. His most important plan — to try Khalid Shaikh Mohammed, the self-described architect of the Sept. 11 attacks, in federal court in Manhattan — collapsed before it even began, after support from the public and local officials withered. Now Mr. Holder has switched from resisting what he had considered encroachment by White House political officials to seeking their guidance. Two weeks ago, he met with advisers there to discuss how to unite against common foes. They agreed to allow Mr. Holder, who has not appeared on a Sunday talk show since entering office, to speak out more; he agreed to let them help hone his message.

But there are critical differences between the Rove and Emanuel Justice Departments: the former saw Justice as a tool to use to win elections and to menace or destroy political adversaries; the later intervenes out of fear that Republicans might be upset over some path that prosecutors have elected to pursue. As Mayer discovered, key to the Emanuel strategy is appeasement of Lindsey Graham, the South Carolina Republican who is seen as essential to forging links with the G.O.P.

After his family goes to bed, Mr. Holder often stays up past midnight at a round kitchen table in his Northwest Washington home, reading briefing material on death penalty cases or, last autumn, files related to his most important issue, the Sept. 11 trial venue. He studied two proposals: one by military lawyers who handled the case under the Bush administration, the other a new strategy from civilian prosecutors. At the White House, Mr. Emanuel was worried. He spoke frequently with Senator Lindsey Graham, a South Carolina Republican who has worked with the administration on closing the Guantánamo prison and on climate change legislation, but who is a staunch proponent of military prosecutions for terrorists. Mr. Emanuel urged Mr. Holder and Mr. Graham to talk.

“Of all the issues they have dealt with, this is the one that could bring the presidency down,” Mr. Graham said he told each, adding: “Most Americans don’t look at these folks as common criminals who were trying to rob the liquor store. They look at them as dangerous terrorists.” Mr. Emanuel, who favored a military trial for the Sept. 11 detainees, said his disagreement with Mr. Holder is rooted in different perspectives, not personalities. “You can’t close Guantánamo without Senator Graham, and K.S.M. was a link in that deal,” he said, referring to Mr. Mohammed.

Emanuel, in other words, believes prosecutorial decision-making should be dictated by political convenience, and he is prepared to apply the influence of the White House to implement that belief. The president and his advisors have an essential role to play in policy making as it affects the Justice Department, but not in the particular decisions about indicting and prosecuting individual defendants. That is an essential dividing line between a tyrannical state and the rule of law. Of course, Washington’s worldly-wise laugh at such distinctions, conversing steadily in terms of who “Obama should prosecute.” To his credit, Eric Holder appears to appreciate the need for independent professional judgment at the Justice Department in a manner that his recent predecessors have not. But is he made of stern enough stuff to resist the would-be puppet masters in the White House? That question is not really resolved either by Mayer or by Kantor and Savage.

“Do the right thing.” That’s advice that Holder is said regularly to dispense to his underlings. Yet political pressure on the Justice Department is heavy. Its object is to keep the G.O.P. happy and to avoid issues surrounding counterterrorism and accountability for eight years of outrageous abuses. Its effect is already apparent in a stream of decisions that can only be understood in terms of conflict avoidance. But there may yet be hope for an assertive and independent Eric Holder. He needs to recall the advice as Mark Twain put it: “Do the right thing. It will gratify some people and astonish the rest.”

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