YouTube video

Reports indicate that Eric Holder will be Barack Obama’s nominee to the position of Attorney General. Bruce Fein believes that the choice of Holder is a poor one for a variety of reasons. The first being that Holder, according to Fein, has yet to demonstrate a critique of the Bush administration’s conduct that is grounded in an understanding of the constitution. Fein points to Holder’s recent call for the closing of Guantanamo Bay military prison as an example of this, opining that Holder’s criticisms of the prison are limited to the prison’s location and do not question the underlying right of the United States to keep prisoners without charging them. One issue that is sure to factor greatly in the discussion over Holder’s appointment will be his involvement in Bill Clinton’s last-day pardon of Marc Rich. Fein believes that Holder’s actions at that time reveal an unwillingness to stand up to his superiors, at that time represented by Clinton, a trait that Fein believes is central to the role of the Attorney General. Finally, by participating in the pardoning of Rich, Fein believes that Holder, and by association Obama, have lost the moral position necessary to denounce any of the potential pardons that many are expecting to see come from the desk of George W. Bush in his final days in office.

Story Transcript

Why I support the REAL News
(a short message from a supporter)

DANNY GLOVER, ACTOR, DIRECTOR, POLITICAL ACTIVIST: The Real News empowers us. It empowers us because it belongs to us. It doesn’t receive any money, any corporate funding; it receives money from you, and it depends upon you because it belongs to you.

Eric Holder for Justice

VOICEOVER: Reports indicate that Barack Obama has chosen Eric Holder to be his attorney general. To find out more about Obama’s pick, The Real News spoke to Bruce Fein, renowned constitutional lawyer and chairman of the American Freedom Agenda. Bruce served as assistant deputy attorney general under President Ronald Reagan.

BRUCE FEIN, AMERICAN FREEDOM AGENDA: Eric Holder is a longtime Democrat and probably most well known to the current audience as serving as deputy attorney general under then-attorney general Janet Reno. Largely a background of prosecution, trial work. And then, after he left the government, he served corporate clients in a variety of white collar investigations and things of that sort. What does leap out to me from his background is this huge lacuna of any real sophistication of checks and balances, war powers, executive privilege, all the constitutional issues that have so plagued the country since 9/11 and Bush-Cheney duumvirate decided that we were involved in perpetual warfare, with every square inch of the planet a battlefield. Then perhaps the most alarming indication was shortly after 9/11 he said something to the effect, you know, bureaucrats should get out of the way as we attempt to use military force against anybody and anywhere that we suspect is implicated with al-Qaeda—a unilateral, narrow-minded view of the need for freedom and balance, even at the highest intensity of conflict, if we are to retain a republic and not descend into executive despotism under the banner of fighting international terrorists. And that is quite a alarming statement to make that seems so shallow.

INTERVIEWER: His most recent speech that he gave to the American Constitutional Society, he came out all cannons blasting against the Bush administration for abuses of power in their pursuit of the war on terror. Are we to believe that he’s changed?

FEIN: Well, if you examine the particulars rather than generalizations about disagreeing with some of the Bush-Cheney excesses, for instance saying that Guantanamo Bay should be shut—


June 13, 2008
Eric Holder addresses American Constitutional Society

ERIC HOLDER, FORMER DEPUTY ATTORNEY GENERAL: Guantanamo Bay is an international embarrassment. Some of our closest allies now see this prison as a symbol of what America has become. We should close Guantanamo Bay, transfer the remaining prisoners to military prisons in the United States, and adopt an expedited and procedurally fair review process for determining who we prosecute for war crimes, detain as combatants under the laws of war, or, yes, release.


—that suggests, really, semantical difference with Bush-Cheney rather than substance, because the flaw in the constitutional thinking is to believe that we are at so-called war with international terrorism, a tactic that means we will never have a war ending, and a concept that also means the battlefield is everywhere, and also indicating that we would then be authorized to hold people without accusation or charge indefinitely, without access to lawyers, as enemy combatants. That’s the real issue. Where’s our authority to have anybody at Guantanamo in the first instance? Because if you don’t pass that threshold, you don’t need to think about an alternate housing site for Guantanamo detainees if they shouldn’t be there in the first instance, and you either charge them with crime and try them in civilian courts or release them. Anyway, these are specifics that Mr. Holder has not articulated, and he’s had plenty of time to do so. They’re not novel. I’ve done so; many others have done so. And silence on that matter would be a source of some concern, because these are not eighth-tier issues in the legal justice system; they’re front page stories every day.

VOICEOVER: Perhaps Holder is most famous for his role on Bill Clinton’s 11th-hour pardon of commodity trader Mark Rich. Rich had been on the FBI’s Most Wanted list for fleeing from charges of tax evasion and making illegal oil deals with Iran during the hostage crisis. Here is Rich’s attorney, Jack Quinn, testifying before Congress on Eric Holder’s role in the pardon.


February 14, 2001
Clinton Presidential Pardons Hearing
Senate Judiciary Committee

JACK QUINN, ATTORNEY: Mr. Holder told me that he had said to the White House counsel he was neutral, leaning towards favorable, on the pardon. I had a subsequent conversation with the White House counsel, and I said to her that Mr. Holder had told me that. Her response to me, while not confirming his advice in so many words, was if Mr. Holder had participated in this process, or something to this effect, this pardon wouldn’t have happened.


FEIN: Mark Rich and his wife had made huge contributions to Bill Clinton or his library. Mr. Holder, who was then acting attorney general, had submitted a memorandum saying that he approved the pardon, but it was not with great enthusiasm. But he certainly was not on record opposing with outrage, which certainly smacked of semi-bribery if not worse. Now, what does that mean with regard to Eric Holder? Number one, it shows that he, at least at that moment, did not have the personal strength to subordinate politics and the desires of his superior, the president, to what would be any honorable application of the constitutional power of pardon. He capitulated justice to fortunes of the president, and that is quite worrisome because that has been the earmark of attorneys general largely under President Bush. That is exactly what we don’t want in an attorney general. Now, the other element that I think is problematic about the Mark Rich pardon and Eric Holder’s involvement is that we may be confronting a situation, as Bush’s tenure comes to a conclusion, of wholesale pardons that Bush would issue to himself, to Dick Cheney, to those involved in criminal activity. It could be Ted Stevens; it could be now to Scooter Libby a full pardon. Who knows how far down the food chain it could go? I don’t think he’d reach Jack Abramoff, but maybe he would do that as well. And if that happens, what is going to be the moral authority for Obama and Mr. Holder to protest and say, “This is an outrage,” and try to deter its repetition? They, in my judgment, would almost have to be silenced, because Bush would simply be bettering the instruction of Clinton and Eric Holder themselves. There’s no doubt that under the Constitution there’s nothing that presents a president from abusing the pardon power. It’s not a question of legal ability to thwart a pardon; it’s the moral authority you have to criticize and to make someone held accountable in the eyes of history by denouncing it. There’s no doubt that under the Constitution there’s nothing that presents a president from abusing the pardon power, like in the Mark Rich case, but there can be political efforts to reduce this abuse, either by denunciations through the history books or otherwise. You may recall that President Ford’s pardon of Nixon probably cost him his presidency in 1976. [inaudible] I’m seeing the deterrent to abuses of pardons that comes from that moral authority to denounce misuse would evaporate with Eric Holder being the attorney general, because he has not stood against the kinds of outrages that would apply if Bush began to pardon himself and others involved in post-9/11 crimes.


Please note that TRNN transcripts are typed from a recording of the program; The Real News Network cannot guarantee their complete accuracy.

Creative Commons License

Republish our articles for free, online or in print, under a Creative Commons license.

Bruce Fein is the founder of the American Freedom Agenda. He served in the US Justice Department under President Reagan and has been an adjunct scholar with the American Enterprise Institute, a resident scholar at the Heritage Foundation, a lecturer at the Brookings Institute, and an adjunct professor at George Washington University. He was an advisor to Ron Paul. Bruce is also the author of the book "American Empire: Before the Fall."