Attorney General Eric Holder Jr. stifled a smile as he approached the podium for a speech about civil rights in Orlando, Fla., hearing the applause and whistles from a Hispanic group on the same day Republicans held him in contempt of Congress.
“I tell ya, it’s good to be here and not uh, not to be in Washington D.C. right now, you know?” Holder said on a video of the June 28 event.
It was a moment that seemed to epitomize the way Holder has navigated through this campaign year: Remain on friendly turf during public appearances; try to stay out of the national media spotlight; avoid returning fire with critics — at least directly.
Cabinet officials, of course, aren’t supposed to go on the campaign trail lest they violate federal law preventing such activities. But they can serve a more subtle purpose. Former Attorney General Dick Thornburgh, who served under President Ronald Reagan, said that an attorney general’s role during a campaign is to continue initiating policy positions for the White House and advising the White House on policy ideas, but those roles “clearly stop at the water’s edge” of campaigning.
“Obviously, if there’s good news or accomplishments and the administration wants to promote them, they shouldn’t hesitate to have him as a spokesman in that regard, as long as it’s carefully couched in terms that are not blatantly partisan,” said Thornburgh, now of counsel to K&L Gates. “The real challenge is to tout accomplishments without putting them on a partisan basis.”
Holder has been on the stump on a few occasions, as in Florida, talking about civil rights issues and criticizing Republican-led voter identification initiatives. But in June, July and September, Holder escaped the country altogether making trips to meet with counterparts in places like Denmark and Singapore. A DOJ spokeswoman told The Washington Post that Holder’s international travel schedule was, in fact, “not news.” He remained in Washington during the Democratic National Convention in Charlotte, N.C. Two weeks later, when President Barack Obama was speaking to voters in Colorado and Republican nominee Mitt Romney was campaigning through Virginia, Holder was thousands of miles away, delivering remarks at the St. Regis Doha hotel in Qatar, talking about fighting corruption and recovering illicit assets.
A lay-low approach can only go so far, however. Last week, the U.S. Department of Justice’s inspector general blasted senior DOJ officials for their roles in the failed Operation Fast and Furious gun-smuggling program. (Holder, however, was cleared of personal wrongdoing.) More scrutiny of the issue by congressional Republicans is sure to follow, with Holder’s DOJ on the defensive. Top Republicans last week vowed to press on with a civil suit in Washington that seeks Fast and Furious material Holder has refused to disclose.
As much as Holder wants to continue running the department as business as usual, the Fast and Furious scandal will keep Holder off “center stage,” said Dickstein Shapiro white-collar defense partner Barbara “Biz” Van Gelder, who once worked for Holder at the U.S. Attorney’s Office for the District of Columbia. Van Gelder said if she were advising Holder, she’d encourage him to stick “to the most vanilla matters possible.”
“I think Eric has tried to do a lot not to politicize the Department of Justice,” Van Gelder said. “Specifically, with Fast and Furious handcuffing him, it wouldn’t make sense to distract the Democrats, adding fuel to the fire to that he is a political animal.”
Since December, Holder has testified on Capitol Hill at least nine times about Operation Fast and Furious, with Republicans repeatedly demanding his resignation and holding him in contempt of Congress in June for his refusal to turn over a cache of internal DOJ documents about the gun program. After the contempt vote in Congress, an Obama spokesman issued a statement in defense of Holder, calling him an “excellent attorney general.” Obama last week said in a forum in Florida that “Eric Holder has my complete confidence.”
While certainly more intense than previous skirmishes, this is not entirely unfamiliar territory for Holder. From the early days of the Obama administration, he has been one of the administration’s leading lightning rods for Republicans. Among their complaints: Holder at first decided to try five September 11 terror suspects in Manhattan’s federal trial court, just blocks from Ground Zero; he released top-secret documents about the methods used by CIA interrogators; and he criticized Arizona’s immigration law. His latest round of speeches on voting rights have won him few conservative friends as well. After going off script in a July speech comparing the state’s voter ID laws to a poll tax, Republicans cried foul.
Tracy Schmaler, a spokeswoman for Holder, said in an email that the “AG will continue to do what he’s always done — focus on his job and the department mission of protecting the rights and security of the American people.”
She also denied a change in the type of issues Holder has been addressing publicly, pointing to events in the last few months such as Holder reading the names of law enforcement officers who died in the September 11, 2001, terrorist attacks at a ceremony, and giving remarks at the investiture ceremony of a U.S. attorney in Michigan.
“Civil rights (voter rights, hate crimes, pattern and practice, fair lending) — have been and will continue to be priority, along with national security, fighting violent crime and financial fraud,” she wrote in an email.
On June 28, Holder addressed reporters in New Orleans about the Fast and Furious contempt vote, blasting Republicans for what he described as a “misguided” and politically motivated investigation in the middle of an election year that made him a “proxy” for attacks on the White House.
“Whatever the path that this matter will now follow, it will not distract me or the men and women of the Department of Justice from the important tasks that are our responsibility,” Holder said. “A great deal of work for the American people remains to be done — I’m getting back to it. I suggest that those who orchestrated today’s vote do the same.”
A COMMON EXPERIENCE
In many ways, Holder is experiencing what most recent attorneys general have gone through. Janet Reno was heavily criticized over the 1993 Waco siege of a Branch Davidian compound and the 1999 Miami immigration case of Cuban child Elián González. Attorney General John Ashcroft took fire from Democrats for his performance during George W. Bush’s first term. (During the 2004 presidential campaign, Howard Dean described Ashcroft as “a descendant of Joseph McCarthy” in a piece in The Atlantic.) Bush’s second attorney general, Alberto Gonzalez, resigned without explanation after criticism of a warrantless wiretap program and accusations he had politicized the office over the firings of a group of U.S. attorneys around the country.
That’s not to suggest the AGs were central campaign issues. If anything, their actions were used to rally hard-core supporters on both sides of the aisle. And the same has proven true in 2012. Romney has rarely mentioned Holder, and when he has it’s been on issues that are important to the GOP base: He has criticized the Department of Justice for its fight against GOP-led voter identification measures and for declining to defend the Defense of Marriage Act. And Romney did join calls for Holder to resign in December, but only after the conservative news outlet The Daily Caller pressed him for months. That same month, during a town hall meeting that CNN aired live in December, Romney answered a question from a voter by saying, “There’s not very much Eric Holder does that I agree with.”
Holder’s contempt-of-Congress charges and the details about Fast and Furious are only well-known to voters who regularly watch political news channels, Dan Judy, vice president of the conservative-leaning North Star Opinion Research. “Your average voter, particularly your average independent, might not have ever heard of Eric Holder and might not have heard of Fast and Furious,” Judy said. “[I]t can be difficult to make a criticism like that stick in the course of the campaign.”
On the other side, Holder’s actions seem tailor-made to rally committed Democrats. He has focused speeches around the country on gender equality and the protection of voting rights. In a speech in July in Las Vegas at the Council of La Raza annual convention, Holder said: “[W]e’ll do everything in our power to stand vigilant against any and all measures that threaten to undermine the effectiveness and integrity of our elections systems — and to infringe on the single most important right of American citizenship: the right to vote.”
The attorney general struck the same chord in remarks in June at the United Latin American Citizens annual convention in Orlando on June 28. “As you know, over the last 18 months, we’ve seen a rise in voting-related measures at the state level — including here in Florida — many of which could make it extremely difficult for many eligible voters to cast ballots this year,” Holder said. He mentioned Obama several times in the speech.
The attorney general has also traveled domestically in recent weeks to Philadelphia, New Orleans and the Wright-Patterson Air Force Base near Dayton, Ohio. In Philadelphia, Holder spoke about a violent crime reduction partnership. The attorney general in New Orleans in July addressed police abuses in that city. At the air force base, Holder touted DOJ’s efforts to “safeguard the rights of all American service members and their families.”
What hasn’t happened, however, are big moves on the issues that seemed most pressing at DOJ during the first years of the Obama presidency — like torture or the financial crisis. On August 9, for instance, the government announced it wouldn’t pursue criminal charges against Goldman Sachs Group Inc. or its employees over positions in mortgage securities. And on August 30, the DOJ issued a short press release announcing that no criminal charges would be filed in a three-year probe into CIA interrogation techniques — the same day the Washington media’s almost singular focus was on Mitt Romney’s speech at the Republican National Convention.
Bold action on issues is unlikely until after November. And even if Obama wins, it’s unclear if Holder will be the one taking them. With the exception of Reno, few AGs hold on for more than one presidential term. “It seems to me that if you are General Holder, an accomplished lawyer, would you want to continue to go through all of this?” said former Attorney General Gonzales, now a counsel to the Nashville office of Waller Lansden Dortch & Davis. “He may feel like he has done his duty for the American people and for the president. Putting aside the notion of whether the president wants the attorney general to stay on.”
Directly before being appointed to his DOJ post, Holder — a former deputy attorney under Reno in the Clinton administration and, before that, U.S. attorney for the District of Columbia — was a partner at Covington & Burling. When asked if discussions, even informal ones, were underway to bring Holder back to Covington next year, firm spokeswoman Rebecca Carr declined to comment.
For his part, Holder himself gave a lukewarm response when asked in June on Capitol Hill about his future. At a Senate Judiciary Committee hearing, Holder dodged questions about whether he would seek to remain attorney general if Obama won a second term. “I think you have to ask President Obama that question,” the attorney general said. When asked to predict what he would say if he were asked to stay on at DOJ, Holder said the job has been the highlight of his career.
“What my future holds, frankly, I’m just not sure,” Holder said.