When I queried a range of Washington attorneys about Holder’s record for a June 2013 column, I found considerable criticism. Some questioned his supervision of major cases. Others faulted what they said was a failure to shape legal policy. Holder’s supporters countered at the time that the criticism was unfair, and that the attorney general was setting an agenda internally that would become clearer to the outside world.
A year later, a sharper focus at Justice has indeed been noted by many outside observers, including some who were critical of Holder before. “Being attorney general is about setting priorities, and Holder has done that during the second term,” says one prominent Washington lawyer who was earlier a skeptic.
“Holder deserves more credit than his critics give him,” says John Bellinger, who served as State Department legal adviser during the George W. Bush administration. “He’s launched some important domestic justice initiatives and has directed a series of successful terrorism prosecutions.”
One Holder priority has been a “Smart on Crime” initiative to adjust the federal government’s approach to drug offenses and other nonviolent crimes. Having been a U.S. attorney in Washington in the 1980s during the “War on Drugs,” with its harsh mandatory sentences, Holder saw that “the future was being thrown away” by imprisoning minorities and low-income people disproportionately, says a colleague.
Holder decided it was time to reverse this injustice. He sent a memo to the White House in December 2012 that noted: “The War on Drugs ... is not without certain successes. We have, however, expended substantial resources, incarcerated huge numbers of Americans and caused unexpected negative collateral impacts.” He told the White House he planned to examine Justice’s strategies and, where appropriate, “make necessary adjustments.”
The crime initiatives were rolled out starting last August, in some cases tracking a parallel effort by the U.S. Sentencing Commission, headed by Judge Patti B. Saris. To prepare the way, Holder spoke last fall with Drug Enforcement Administration agents and in March with U.S. attorneys. In addition to changing sentencing recommendations, Justice pushed for new probation, clemency and re-entry programs to help ex-convicts rejoin their communities.
“This administration has made it a priority to promote effective policies to aid former prisoners in re-entering society,” Holder wrote in an August 2013 internal memo. He’s held monthly meetings to follow up. Holder has been similarly focused in trying to enforce parts of the Voting Rights Act, despite a Supreme Court ruling last year that voided a key section.
The Justice Department is one of those huge federal bureaucracies that sometimes defy supervision, so Holder was challenged by implementation of the Supreme Court’s June 2013 decision in the Windsor case, striking down portions of the Defense of Marriage Act. Holder created a task force in the civil division to work with other federal agencies. He reported to President Obama on June 20 that after retooling over 1,000 laws and rules, “agencies across the federal government have implemented the Windsor decision to treat married same-sex couples the same as married opposite-sex couples for the benefits and obligations for which marriage is relevant.” This was the kind of policy coordination some observers had earlier found lacking.
Holder has also steered a steadier course in prosecuting terrorism cases. Critics complained about a 2011 reversal under political pressure of an initial decision to prosecute Khalid Sheik Mohammed in a civilian court in New York. But Holder stuck to his guns. Sulaiman Abu Ghaith, Osama bin Laden’s son-in-law, was convicted by a federal jury last March in New York. Ahmed Abu Khattala was indicted in Washington for the deaths of four Americans in Benghazi.
Some observers had expected that Holder would leave Justice soon after the 2012 election. By staying longer, he has put his stamp more firmly on an unwieldy agency and established clear policies in areas that mattered to him. Attorneys who ask what the Holder era accomplished now have a better answer.
David Ignatius is a columnist for The Washington Post.