BANK PROSECUTIONS: Certain institutions, not clients, but certain institutions might not want to work with me, and that’s fine, Eric Holder Jr. said. (Diego M. Radzinschi)
Eric Holder Jr. has returned home to Covington & Burling after more than six years as U.S. attorney general, and he said it is the “last stop” in his legal career. He even ruled out a U.S. Supreme Court appointment, if he is asked.
That means that if Hillary Clinton were elected president and offered him a seat on the high court, he would have an answer ready.
“I’d say, ‘Madame President, with all due respect, you need to pick somebody who’s a) younger and b) who’s a lot more interested,’ ” Holder said in a candid interview with The National Law Journal at Covington’s new office in downtown Washington.
Holder, 64, explained that after he served as a District of Columbia Superior Court judge for five years earlier in his career, he decided that judges were referees, and “I want to be a player.”
Reflecting on his legacy as attorney general and the next chapter in his professional life, Holder acknowledged that his “appropriately aggressive” challenges to financial and corporate fraud could mean that certain institutions “might not want to work with me, and … that’s fine.”
The same goes for certain members of Congress. Holder regularly found himself the target of Republican ire over voting-rights enforcement and the gun-trafficking sting Operation Fast and Furious, which has been blamed for the death of a border agent. House Republicans in June 2012 held Holder in contempt amid a dispute over access to Justice Department files about the gun sting.
“There are certain members of certain committees that I probably will not be having great relationships with,” Holder said. He jokingly singled out former House Oversight chairman Rep. Darrell Issa, R-California, and Louis Gohmert, R-Texas, as congressmen “I was looking forward to working with.”
Holder applauded the Supreme Court’s June 26 ruling declaring the right of same-sex couples to marry, and he expressed pride that he helped shape the pro-marriage position of what he said had been a “divided Justice Department” about whether to defend the Defense of Marriage Act in 2013. He foresees legal challenges on religious-liberty issues that could make their way to the high court.
Holder spoke also about the opportunities he will have at Covington, in addition to his practice, to advocate for his long-running causes—including improving race relations and access to justice, reforming criminal justice and encouraging pro bono service and diversity in the legal profession. He recently joined Twitter to broadcast his views.
“I would not come to a place where I thought my voice would be stilled,” Holder said.
Holder sat with Covington chairman Timothy Hester during the June 30 discussion, one day after the firm’s partners unanimously elected Holder as a partner. The firm plans to announce Holder’s return on Monday. The NLJ was one of four publications he agreed to speak with prior to the formal announcement.
The interview below was edited for length and clarity.
NLJ: Why come back to Covington? Why come back to any corporate defense firm so soon after leaving the Justice Department?
Eric Holder: Well, coming back to Covington, in some ways, that’s easy. This is home for me. It’s a collegial place that has great lawyers who are engaged in really interesting, cutting-edge kinds of things. It’s got a client base that is worldwide in nature, even more global than it was when I left in 2009. The firm’s emphasis on pro bono work and being engaged in the civic life of this country is consistent with my worldview that lawyers need to be socially active.
Can you be specific about what areas of pro bono you would want to be in, and whether you feel that there needs to be more pro bono at this firm or across the legal industry?
There’s no question that there needs to be more pro bono across the board. I started at the Justice Department this office called the Access to Justice Initiative, which we started out with [Harvard Law School professor] Larry Tribe. That was in recognition of the fact that too many people in this country make consequential legal decisions without the assistance of counsel. It’s a shocking thing to see. You have juveniles who plead guilty without ever talking to a lawyer. You have child-custody disputes that are resolved oftentimes in front of a judge but without a lawyer.
You previously said that when you left Justice, you would build an entity that would be part of a larger organization to bridge communities of color with law enforcement.
We’re working on that, and that will be something we’ll be talking about, I think, probably in September or October.
Back to the criminal side, during your tenure, you made criminal justice reform a big priority. Are you frustrated with how far you got or didn’t get, and is that something you can work on at Covington also?
I’m actually kind of satisfied with where we got. The job’s not done. You know, I think we did as much as we could using executive branch discretion, but now it’s up to Congress to put in place measures that will last beyond this administration. We made a sea change from the policies that I inherited and consistent with kind of my own experience as just a line lawyer at the Justice Department for 12 years. Put more discretion in the hands of those line lawyers, who I have great respect for. But now Congress needs to act.
Do you think there really is a chance in this Congress?
I think we have a moment in time where the left and the right seem to agree that [for] criminal justice reform the time has come, for different reasons.
I had a meeting in my conference room where we had representatives from the ACLU, the founder of the Tea Party, the Koch brothers, and it was like, wow. [I thought,] people need to see who’s here. Pretty conservative Republicans, and me. So I’m satisfied with what we did, but the job is not done. And I would hope in this Congress, not the next one, but in this Congress, that legislation will pass.
It has been interesting to see [Republican Sen.] Rand Paul at the forefront.
Yeah. He and I had lunch. It was breathtaking to see the amount of agreement that we had on this subject. As he left he said, ‘But I’m suing you.’ I said, ‘OK, fine.’ I don’t know what he’s suing me for, but he was suing me for something else.
Are you surprised to see the Confederate flag issue suddenly take off as an issue in the aftermath of the Charleston shootings, or is it a distraction?
No, it’s a serious issue. I’m surprised at the pace of change. Given the history of the Confederate flag, I think the quick response to that makes a great deal of sense. I’m always kind of amused when I hear at least some people say that it’s about heritage. And then you think, well, the flag didn’t fly in South Carolina till 1961 or 1962, 100 years after the Civil War, so it wasn’t really about heritage then. It was about something a little darker.
You played a big role after Ferguson, and a lot has happened since then, including Charleston. Can you still have a voice in this area?
Sure. Look at my tweets. I think I can. I would not come to a place where I thought my voice would be stilled, or there would be a desire for me not to speak. I’m in a different role, you know. I’m not going to be the attorney general of the United States, where I had a particular responsibility, I thought, to speak on certain issues, but my interest remains. One of the things I realized, painfully, I suppose, early on, it’s only as the attorney general that everybody listens to what you say, or virtually everybody. That, I don’t think, will be the case anymore. The former attorney general doesn’t have quite as large an audience, but that doesn’t mean that I won’t continue to speak out about things that matter.
Is that why you joined Twitter now?
You know, I was so affected by what happened in Charleston at Mother Emanuel, that I just felt the need to express feelings that I had. And so I always said I wasn’t going to go on Twitter, and I wasn’t going to go on Facebook—and I’m not going to go on Facebook—so I did a tweet [ @EricHolder.]
Are you writing them yourself?
Yeah, this is pure Eric.
One of the natural enemies of the Justice Department in the past six years was the financial-services industry. How do you reconcile doing work or having the firm with those clients, and how do you pivot back towards that?
I think that what we did in the department was, I always like to say, appropriately aggressive. There may be clients that, for whatever reason, will not decide to work with me. Certain institutions, not clients, but certain institutions might not want to work with me, and that’s fine.
But I would think even in those sectors where we were doing record-breaking kinds of things, and beyond the financial sector, there was a maybe grudging recognition that what we did was appropriate. And I think that there are feelings, relationships that will allow certain entities to get beyond that. We’ll see.
And you didn’t have the friendliest relationship with several members of Congress, especially in the House. Do you see yourself interacting with Congress now?
It’s an interesting thing. There are certain members of certain committees that I probably will not be having great relationships with. That’s just kind of the way it is. You have to understand that a lot of what goes on up there in the hearings is theater, and when the lights are off, the ability to communicate and talk about things in a substantive way exists. With the House Judiciary Committee, there will be a substantial number of those members who I’ll be able to work with. … I was looking forward to working with Louie Gohmert and Darrell Issa, those are the guys I was looking forward to working with. (Laughter.)
What was your reaction to the Supreme Court’s ruling on same-sex marriage [declaring a right for same-sex couples to marry?] Were you surprised?
I have to say I was proud. It was something that was very heartwarming, especially the way in which Justice [Anthony] Kennedy continues to write. I think about all the struggles that we as a nation have gone through. I think about the civil rights movement, and I think this is another part of that continuum. I don’t think people should overread it or expect too much from this opinion. We’re talking about one component of the lives of people in the LGBT community. There are still a lot of other things that have to be dealt with, but boy, this puts us on the path to full equality for members of that community.
Did you have a significant role writing the government’s brief in that case?
No. I certainly talked to [Solicitor General] Don Verrilli, and we would meet every week and then more frequently when it came to particular positions in cases, and I saw the briefs before they got submitted. Solicitors general are extremely guarded in their independence within the department, but he’s not necessarily that guy. He’s a very collaborative person and he’d say, ‘This is the way I think we want to go with this argument.’ He kind of just bounces things off of people, and he and I have a good relationship. I think he is going to be seen as an extremely consequential SG, I think one of our greatest SGs.
Did you help the president in his evolution on the issue of same-sex marriage?
You know, I don’t think I can say that. I remember when we were discussing the question of what position we were going to take on defending [the Defense of Marriage Act]. We had a kind of divided Justice Department and ultimately I had to make the call.
I remember going over to the White House for a social event and I was going to take the president aside and tell him that this is where I wanted the Justice Department to be. I took him aside and he said, ‘Eric, I just want to talk to you about DOMA. This is where I think we ought to be.’ And he and I were in exactly the same place. I said, ‘Well, that’s why I was taking you aside, to tell you that.’ There are instances along the way like that that make me understand why I wanted this guy to be president and I supported him early on.
Looking ahead, there is talk about religious-liberty issues flowing from the decision. Do you see litigation coming in that area?
I expect that it will be. I think that will be the next ground upon which the battle will be fought. The conflict of LGBT rights, the same-sex marriage rights with individual religious liberties. So I suspect that we will see litigation in that area, and we may end up back in the Supreme Court at some point.
Those are the toughest decisions I had to make as attorney general. You have all these recommendations that come to you from the line lawyers, through the supervisors in the U.S. attorney’s office, through the U.S. attorney, through the Capital Case Committee. By the end of the day, as attorney general, you sit there with the files and the recommendations, and these are the things I use to take home at night. Kids go to bed, wife’s gone, and I just would sit there at the table in my kitchen and try to decide.
I am personally opposed to the death penalty, and yet I was obligated as attorney general to follow the law as it exists for that and for the consequences that were involved. I hope that we as a nation will get to a place where we don’t impose the death penalty, where we join the vast majority of the rest of the world.
When you look at our system of justice, it is the best in the world, but it’s imperfect. I think that at some point in our history we have probably executed an innocent person, and that’s irreversible. And as wonderful as our system is, it is still made up of men and women who are imperfect and I worry about that, especially when you look at the levels of representation at the state level. I just think we can do better as a nation.
Speaking of the Supreme Court, would you like to argue before the Supreme Court? I don’t think you did as attorney general, but some AGs have.
I thought I was a pretty good trial lawyer. I was an OK appellate lawyer, but it’s not something that I necessarily liked. So it would depend obviously on the client and the situation, but it’s not something that I feel if I don’t do that, my legal career would be incomplete.
What if Hillary Clinton wins the election and calls up and says she’d like to appoint you to the Supreme Court. What would you say?
I’d say, ‘Madame President, with all due respect, you need to pick somebody who’s a) younger and b) who’s a lot more interested.’ That’s not something I want to do.
I was a [D.C. Superior Court] judge for five years. With all due respect to judges and justices—and maybe it’s different on the Supreme Court, I suppose—but an analogy I’ve used that has infuriated my former colleagues is that I feel like you’re a referee in the middle of a game where I want to be a player. That’s why I left the bench.
I sat here during the crack wars in Washington, D.C., in this wave of young black men who should have been the future of this community but were being sent to jail for drug-related offenses. And it seemed to me that if I was the U.S. attorney, which I became, I could have a much greater impact on this community than I could as a judge who was simply in receive mode. So I still have my robes, but I don’t plan on putting them on anytime soon.
Would you return to politics?
Politics? The attorney general is not a political person. No, I greatly enjoyed my career in public service and I’ll stay involved in political life in some form or fashion, but in terms of my own career, I think this is my last stop. I’m here at Covington until I decide I’m not going to be a lawyer anymore. So I hope to be here for a good number of years.
Are you still in touch with the president?
Sure, oh yeah. He’s kind of a busy guy, but yeah. I’ll see him next week for the Fourth of July. Our relationship obviously has been professional, but it’s personal as well. Our wives are very close. He’s a person who has great respect for the need for the independence of the Justice Department and so I’m sure there are things he’s wanted to tell me about decisions that I’ve made as attorney general that I’m sure I’ll hear. Maybe when he’s not president, or maybe now that I’m not attorney general, he may ask, ‘Why did they do that?’ But we have a good and ongoing relationship.