The Questions Eric Holder Should Be Asked

The Nation. Posted January 15, 2009.

How important is the Attorney General of the United States? Remember the Saturday Night Massacre. In the fall of 1973, rather than follow President Richard Nixon's order to fire special prosecutor Archibald Cox, both Attorney General Elliott Richardson and Deputy Attorney General William Ruckelshaus resigned in protest. Then-Solicitor General Robert Bork ascended to the top office at Justice, and Nixon got his most immediate demand -- Cox was sacked. But a nation and Congress were enraged; articles of impeachment were filed. Nixon declared, "I am not a crook!" But in less than a year, Nixon's goose was cooked, and he resigned.

Though Republicans appointed by a Republican president, Richardson and Ruckelshaus acted to defend the Constitution, preserve checks on executive power and maintain the rule of law. In comparison, George W. Bush's attorneys general and the Justice Department they led were a tragic farce. Whether it was flouting the Geneva Conventions, spying on Americans, allowing torture, suspending habeas corpus, curtailing free speech or running roughshod over Congress and the Constitution, Bush had no greater legal allies than the troika of John Ashcroft, Alberto Gonzales and Michael Mukasey. As Andrew Gumbel pointed out in these pages, under Bush the Justice Department was politicized to an extraordinary degree -- its mission gutted, its civil servants demoralized and pushed out.

That's why Barack Obama's nomination of Eric Holder as the next attorney general deserves special scrutiny. Not because we expect criminality of the sort authorized by Ashcroft and company but because merely to undo eight years of official corruption will require an extraordinary attorney general -- a principled, visionary, independent upholder of law and justice. With those hopes and concerns in mind, we asked legal eagles from our orbit for questions they would pose to Holder, who faces confirmation hearings on Thursday. --The Editors

from DAVID COLE, Georgetown University Law Center:

Several months ago, you made a speech very critical of the Bush administration's assaults on the rule off law, including its authorization of torture and warrantless wiretapping of Americans. You concluded by proclaiming that "we owe the American people a reckoning." What will you do as attorney general to ensure that there is a "reckoning"?

from JOHN NICHOLS, Nation Washington Correspondent:

Shortly after the USA Patriot Act was signed into law, at a point when the Bush administration was proposing to further erode barriers to governmental abuses, you argued that federal government officials who questioned the wisdom of eliminating established protocols and lines of separation between federal agencies -- many of which were designed to protect against the concentration of executive power and the abuses that flow from it -- should be fired. Specifically, you said in 2002 on CNN, "We're dealing with a different world now. Everybody should remember those pictures that we saw on September the 11th. The World Trade Centers aflame, the pictures of the Pentagon, and any time some petty bureaucrat decides that his or her little piece of turf is being invaded, get rid of that person. Those are the kinds of things we have to do." Why should you be trusted to uphold the Constitution and serve as the nation's chief law-enforcement officer -- as opposed to a mere legal extension of the unitary executive?

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