Jonathan Turley

USATODAY

The resignation of Eric Holder as attorney general is an unavoidably symbolic moment for an administration that appears to be limping toward the end of a troubled second term. Holder truly personifies an administration of unrivaled ambitions colliding with reality.

Holder proved a fierce friend to President Obama, but that loyalty might have worked to the disadvantage of both men. Obama (like President George W. Bush) might have been better served by an attorney general who was less of a friend and more a defender of the Constitution.

Possible successors

Unfortunately, as the short list of candidates emerges, Obama appears again to be looking to reliable friends as opposed to outstanding lawyers for the top position at Justice. The list includes Massachusetts Gov. Deval Patrick, Sens. Amy Klobuchar and Sheldon Whitehouse, and some administration insiders.

Holder has secured a well-earned position in history as the nation's first black attorney general. He is an American success story. The son of a father born in Barbados, Holder went to Columbia University. President Reagan made him a judge on the local D.C. court; President Clinton appointed him U.S. attorney for the District of Columbia and, later, deputy attorney general.

Holder's life should be both an inspiration and a cautionary tale for young lawyers. As he grew in power, Holder was increasingly viewed by critics as a bit too political. That reputation was affirmed with Clinton's last-minute pardon of fugitive Democratic donor Marc Rich. By any measure, Rich was one of the least deserving pardon recipients in history — with 65 criminal counts, from tax evasion to wire fraud to racketeering to illegal trades with Iran. Though his companies pleaded guilty to 35 criminal counts, Rich fled to live the good life in Switzerland and cultivated a long list of friends close to Clinton. Clinton, in turn, had Eric Holder.

Holder was accused of short-cutting normal procedures to push through the pardon. Former FBI director Louis Freeh said Clinton had "used" Holder to keep the FBI and the Department of Justice from being heard on the pardon.

In his confirmation hearing, Holder promised not to allow politics to influence future decisions, one promise that he would have been wise to keep.

It did not take long, though, for Holder's Mr. Smith Goes to Washington story to become All the King's Men. When the president was confronted with demands to prosecute Bush administration officials for torture, Holder faced an early test. He failed. The DOJ blocked any prosecution despite our obligation under international treaties and the president's (and Holder's) acknowledgment that waterboarding is torture.

Tortured law

To quote Jerry Maguire, Obama had Holder at "hello" in seeking unbridled presidential authority. However, Holder racked up a series of losses in cases seeking massive reductions in privacy and due process protections for citizens. He unwisely pursued cases such as Canning, where a unanimous Supreme Court pushed back against broad claims of presidential authority.

Holder personally announced Obama's "kill list" policy, in which the president claimed the right to kill any U.S. citizen without a charge, let alone conviction. Holder's department used the controversial Espionage Act of 1917 to bring twice as many prosecutions as all prior presidents. He oversaw Nixonian surveillance of journalists and led a crackdown on whistle-blowers. Holder fought to justify massive warrantless surveillance and unchecked presidential authority.

Holder's confrontations with Congress came to a head in a series of scandals, including "Fast and Furious" in which the government allowed Mexican drug gangs to walk away with high-powered weapons. In that and other scandals, the administration withheld documents and key witnesses from Congress, which ultimately held him in contempt.

While Holder did not shy away from our race conflicts, calling the U.S. a "nation of cowards" on race was divisive. In the end, however, his positive work on civil rights will be eclipsed by his destructive legacy on civil liberties and constitutional government.

Holder could have been truly great, not simply as the first black attorney general, but as a man of principle who put law over politics and friendship. In one of history's huge lost opportunities,, Holder will finish his tenure as he began it: a man with tremendous but still unrealized potential.

Jonathan Turley,the Shapiro Professor of Public Interest Law at George Washington University, is a member of USA TODAY's Board of Contributors.



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