Two months of silent preparation will reach a climax Thursday when Eric Holder Jr. enters the Russell Senate Office Building for his confirmation hearing to be attorney general. He will face the most difficult hearing of his life. His opponents will look for opportunities to question his judgment -- and perhaps score political points.
Helping Holder prepare has been a team of Washington lawyers led by Ron Weich, chief counsel to Senate Majority Leader Harry Reid, D-Nev., and including Covington & Burling's James Garland and Steptoe & Johnson's Reid Weingarten, and they're expressing confidence in their man. "There's no magic here. The record is as open as it could possibly be," Weingarten says.
Civil rights leaders and several law enforcement associations lined up behind Holder last week, and Senate Judiciary Committee Chairman Patrick Leahy, D-Vt., has even "guaranteed" that the Senate will confirm Holder.
But Republicans, led by Sen. Arlen Specter, R-Pa., are promising a prickly hearing.
Here are 11 things you're likely to see this week, and maybe one to hope for.
If it weren't for Marc Rich, Holder would likely be sailing through confirmation. But as soon as he was chosen by President-elect Barack Obama to be attorney general, Holder has faced questions about pardons granted by his old boss, President Bill Clinton. Holder was deputy attorney general in 1999 when Clinton granted clemency to 16 members of the Puerto Rican nationalist group FALN, and he was taking over as acting attorney general in 2001 when Clinton pardoned fugitive commodities trader Marc Rich and his partner Pincus Green. Republican senators are expected to comb over the details, including up to $500,000 in contributions from Rich's ex-wife to the Clinton Presidential Library and a meeting between Holder and Rich's attorney, Jack Quinn of Quinn Gillespie & Associates. Any new information would be surprising because Congress has looked at the controversies before, but Specter, the committee's ranking member, says he'll probe details previously hidden by executive privilege.
One of the many independent counsel battles of the 1990s centered on whether then-Attorney General Janet Reno should have appointed someone to look into the fundraising practices of the Clinton-Gore re-election in 1996. Among the allegations was that Vice President Al Gore improperly made phone calls from the White House asking for contributions. After preliminary inquiries, and with Holder's advice, Reno said in late 1997 that there was not enough evidence to appoint an independent counsel. This, too, has previously been scrutinized by Congress, but Republicans will still ask about it.
Around Washington, ears perked up last week when Specter compared Holder to former Attorney General Alberto Gonzales on the floor of the Senate, suggesting that Holder's involvement in the Rich pardon smacked of the kind of fealty Gonzales displayed, time and again, for his commander in chief -- even if it "appeared dismissive of Congress and the courts." If Republicans resort to the "yes man" option, expect Specter to raise more examples, such as the advice Holder gave Reno before she refused further investigation of Gore.
THE SIZE OF THE STAGE
Senators at confirmation hearings thrive on attention, but how closely will the media and the public be watching? Specter has generated anticipation with the Holder-Gonzales comparison. On the other hand, Holder's vetting during previous hearings -- three of his jobs have required Senate approval -- have removed some of the suspense. At least the setting will be dramatic: the Russell Building's Caucus Room, site of the Army-McCarthy hearings, the Senate Watergate hearings and Justice Clarence Thomas' confirmation hearing. (The preferred room, 216 Hart, was booked, a Democratic aide says.)
The same question that nearly upended Attorney General Michael Mukasey's confirmation will almost certainly rear its head on Thursday, Sen. Sheldon Whitehouse, D-R.I., says. (Whitehouse was the one who asked Mukasey whether waterboarding amounted to torture during Day Two of his confirmation hearings.) "I strongly suspect that that will be a subject of [Holder's] confirmation," Whitehouse says, though he declines to say whether he'll be the one doing the asking. The question poses obvious risks for Senate Democrats and Holder alike. If Holder says waterboarding is a form of torture (and thus a crime), he'll face enormous pressure to order an investigation if he's confirmed. If Holder demurs and Democrats embrace him anyway, expect the Republicans to make sport of it.
THE HOLDER MEMO
In 1999, when Enron and Worldcom were still humming, Holder, then the department's No. 2 official, set out to draft a clear set of guidelines for indicting corporations. Subsequent deputy attorneys general added their own tweaks, dialing up the heat on white-collar defendants. But central to all was Holder's original suggestion that a corporation's waiver of attorney-client and work product privileges could be weighed as a measure of its cooperation in a criminal investigation. This struck many -- including a powerful coalition of business organizations and a bipartisan group in Congress -- as an invitation for prosecutorial abuse. In 2008, rather than submit to a brittle piece of legislation, the Justice Department excised the bit about attorney-client and work product privilege as a measure of cooperation. Thus: the Filip Memo, named after the current deputy attorney general, was born. Congress has backed off for the time being, but you can be sure it will remember who gave birth to the waiver idea.
Senators have long memories. Some of them tangled with Holder or his colleagues during the 1990s, and Thursday offers a chance to fight their favorite battles one more time. One example was clear last week, when Specter spoke in detail -- and, to the extent possible, with passion -- about Reno's interpretation of the hearsay rule and its exceptions as they related to Gore's fundraising. "She just did not understand the law," Specter tells Legal Times. Watch for more senators to refer to their earlier work.
Holder's supporters say he's held every job you'd want in an attorney general, and they're sure to play up his experience every chance they get. After Columbia law school, he prosecuted public corruption for the Justice Department for 12 years and then became a D.C. Superior Court judge, U.S. Attorney, and deputy attorney general. All those positions were in the public spotlight, so critics might search for new material in Holder's eight years with Covington & Burling. His work in employment discrimination and white-collar investigations has gotten little attention from senators or interest groups.
The Justice Department that Holder aspires to lead is a very different place from the one he left in 2001. There's now a National Security Division, for one.
Mukasey recently issued guidelines that enhance the FBI's powers in criminal, national security and foreign intelligence surveillance. And Congress last year amended the Foreign Intelligence Surveillance Act, vesting the attorney general with increased responsibilities and powers in the surveillance of foreign enemies. There are immediate questions that interest both Republicans and Democrats: How will the attorney general approach existing Bush legal policies, such as those stashed in classified opinions from the Office of Legal Counsel. The issue of Guantanamo Bay looms ever larger, as more than 100 detainees challenge their confinement in federal court. Will Holder order a new litigation posture? Just last week a federal judge in San Francisco reinstated a lawsuit brought by a now-closed Islamic charity, which says it has evidence its communications with associates in the Middle East were wiretapped without a court order. Will Holder allow the nation a peek behind the curtain? Specter has said he intends to ask Holder about his views on FISA, and you can bet Republicans are itching to test the national security knowledge of a Democrat who exited government before the Sept. 11, 2001, terrorist attacks.
COMMITTEE IN CRISIS?
The hang-ups to filling seats from Illinois and Minnesota have kept the Senate from reorganizing committee assignments, so the Senate Judiciary Committee will have the same makeup as last year. Barring a resolution, that means the Democrats will have only a one-vote margin instead of the three- or four-vote margin they expect to have eventually. It also means one more confirmation hearing for departing committee members Ted Kennedy, D-Mass., and, if he doesn't recuse himself and hasn't resigned to become vice president, Joe Biden, D-Del. A reshuffled committee would have as many as four new Democrats. The question marks could affect the questioning, the tenor of the hearing, and eventually the committee vote.
Holder has testified before Congress at least 10 times since 1995, so don't expect the former judge to get rattled by senators. Other witnesses, such as an old foe hoping to settle a score, could provide more drama. As of press time, the Republicans on the committee had yet to finalize their witness list.
Few people expected a waterboarding question to complicate Mukasey's hearing. Don't rule out a surprise for Holder, though these things are by definition difficult to predict. Embattled Illinois Gov. Rod Blagojevich once tried to hire him for an investigation, but the state's attorney general intervened and there's been no evidence of wrongdoing by Holder. One liberal Web site, The Huffington Post, has questioned whether Holder would prioritize prosecutions against the adult film industry.