Preet Bharara:

From CAFE and the Vox Media Podcast Network, welcome to Stay Tuned. I’m Preet Bharara.

Eric Holder:

If I were the AG, I would expect, at some point, a prosecution memo that would probably lay out all the reasons why charges should be brought against the former President, other people in the White House, people at the Justice Department, and people outside of government.

Preet Bharara:

That’s Eric Holder. He served as the United States Attorney General in the Obama administration, from 2009 to 2015. Since leaving office, Holder, who was the first African American to lead the Justice Department, has focused on voting rights. He has written a new book on the subject, called Our Unfinished March: The Violent Past and Imperiled Future of the Vote. The former attorney general joins me as the House January 6th Committee holds its first public hearings, and as the Department of Justice faces increasing pressure to hold former President Trump and those around him accountable for inciting the insurrection.

Preet Bharara:

Holder and I discuss whether DOJ will indict Trump, but we also have a wide ranging conversation about justice and the rule of law, including Holder’s foot against partisan gerrymandering and what he makes of the so-called progressive prosecutor movement. That’s coming up. Stay tuned.

QUESTION & ANSWER:

Preet Bharara:

Now, let’s get to your questions. This question comes in an email from Caitlin, who asks, “What is the significance of republican lawmakers asking former President Trump for pardons, as it relates to the January 6th hearings?” Caitlin, you’re obviously referring to a little bit of a bombshell that was dropped by Liz Cheney, the vice chair of the committee, at the first hearing on June 9th.

Preet Bharara:

What’s interesting about it is, I guess, several things. One, unlike some other things that she talked about and that Bennie Thompson talked about, it was a mere preview of what the evidence will, in the future, show. It didn’t provide any evidence or corroboration or anything, for that matter, other than a blanket statement that members of Congress, republican members, including one that they names specifically, Representative Scott Perry, had sought pardons from Donald Trump in between, I guess, sometime in between January 6th and the end of his term, noon on January 20th.

Preet Bharara:

Now, that’s significant, as even a layperson can understand, why would you seek a pardon unless you thought that you were guilty of something, guilty of something of a criminal nature, or at the very least, you had some reason to expect or worry that charges could be filed against you? Why else would you seek a preemptive pardon? In the context of a hearing like this, when the committee writes its report, if it has real evidence of the seeking of pardons by Perry and others, that gives an impression of consciousness of guilt, something that prosecutors call it when people exhibit some behavior or some conduct that shows they have some awareness that they might be guilty of something. In a way, it’s a version of a kind of confession. It says something very real about the state of mind of the people who are seeking a pardon, which is, by the way, itself an extraordinary form of relief, and particularly extraordinary when it’s sought preemptively, without there having been a charge or even an investigation, at that point.

Preet Bharara:

What I think is also interesting is that the named member of Congress, the Republican Representative Scott Perry, very stridently denied that he had sought a pardon, so you have a strident statement by Liz Cheney that pardons were sought. One of the people who sought a pardon was Scott Perry. Scott Perry denies it.

Preet Bharara:

We’ll see how the hearings unfold, but one of the things I’m looking forward to is seeing what the evidence is, seeing what the corroboration is, seeing how strong it is, and whether or not Scott Perry’s going to have to eat his words, or he’s just going to call people who testify to that liars, which I suppose is possible, as well. Either way, at some point soon in these hearings, either Liz Cheney or Scott Perry will have egg on their face. So far, on matters relating to January 6th, Liz Cheney has the credibility here.

Preet Bharara:

This question comes in an email from Todd, who says, “What is important about the testimony we’ll hear on Thursday from former White House Lawyer Eric Herschmann recalling the conversation he had with John Eastman?” Well, this is very important. I’m recording this on Wednesday morning. On Tuesday, during the day, Liz Cheney released on social media and elsewhere a preview of some of the testimony we’re going to hear at the Thursday afternoon hearing, and it’s a bit of a clever preview and eyebrow raising.

Preet Bharara:

Liz Cheney specifically decided to let people have a glimpse about what was to come. She said on Tuesday, “In our next hearing on Thursday, the select committee will examine President Trump’s relentless effort on January 6th and in the days beforehand to pressure Vice President Pence to refuse to count lawful electoral votes.” She says, also, “President Trump plotted with a lawyer named John Eastman, and others, to overturn the outcome of the election on January 6th.” Then she plays a clip of Eric Herschmann testifying behind closed door with staff to the committee.

Preet Bharara:

You’ll recall that John Eastman was a campaign lawyer for Donald Trump and wrote that memo, the Eastman Memo, that outlined a bogus way that Trump could sway the election back to him after he had lost it in a free and fair election. What we’ll see is a description of an extraordinary conflict between two lawyers, both nominally in the service of Donald Trump, except one was a lawyer for the White House and represented the institution of the presidency and the other a personal campaign lawyer, who represented Donald Trump’s personal interests. John Eastman is the campaign lawyer, and Eric Herschmann was a member of the White House Counsel’s Office, and he tells the following story.

Preet Bharara:

He says it was the day after, meaning the day after January 6th, and he’s talking about a conversation he had on the telephone with John Eastman. Herschmann doesn’t remember the exact nature of the call, but understands that it’s about Georgia and preserving something potentially for appeal, so it’s an example of John Eastman, after the violent insurrection of January 6th, when the country is reeling from the scenes that they had seen of people overrunning the Congress, chanting, “Hang Mike Pence,” looking for Nancy Pelosi. This man, John Eastman, is persisting in efforts to change the results of the election, and Herschmann, who’s a lawyer in the White House Counsel’s Office for Donald Trump, says…

Eric Herschmann:

I said to him, “Are you out of your F-ing mind?” I said, “I only want to hear two words coming out of your mouth from now on, orderly transition.” Then I screamed and said, “I don’t want to hear any other F-ing words coming out of your mouth, no matter what, other than orderly transition. Repeat those words to me.”

Preet Bharara:

Herschmann goes on to say that, eventually, Eastman obliged and said, “Orderly transition.” This is my favorite, and I think the most interesting part of the Herschmann statement.

Eric Herschmann:

I said, “Good, John. Now I’m going to give you the best free legal advice you’re ever getting in your life. Get a great F-ing criminal defense lawyer. You’re going to need it.” Then I hung up on him.

Preet Bharara:

Now, obviously, the ultimate question of whether or not John Eastman broke the law, the view of another lawyer, in telling him, in so many words, that he needed a criminal defense lawyer, and he maybe had criminal exposure, is not dispositive of what was in the mind of John Eastman, but boy, just like the seeking of pardons in the question I answered previously, in this context, the fact that you have Trump White House lawyer, who is adamant that Eastman should not persist in this kind of talk and probably needs to get a criminal defense lawyer, it sure paints a bad picture of the people around Donald Trump, and guess what? John Eastman ended up getting a criminal defense lawyer, Charles Burnham. Don’t know if he’s a great F-ing criminal defense lawyer, but he is one.

Preet Bharara:

I think one thing to watch for in the hearing is what other testimony Eric Herschmann and others give about the persistence of John Eastman and Donald Trump and the other people around him, even after the insurrection of January 6th, to continue to try to overturn the election. That bears on Donald Trump’s state of mind, as well. We’ll be right back with my conversation with Attorney General Eric Holder.

Preet Bharara:

In 2012, democrats running for Congress collectively received 1.4 million more votes than republicans. Despite that, the GOP won 33 more House seats. That’s because republicans had aggressively gerrymandered the congressional map following the 2010 midterms. As the chair of the National Democratic Redistricting Committee, Eric Holder has spent the last few years working to make sure that doesn’t happen again.

THE INTERVIEW:

Preet Bharara:

All right, this is going to be fun. Former Attorney General Eric Holder, welcome to the show.

Eric Holder:

Preet, it’s always a pleasure to talk to you.

Preet Bharara:

Congratulations on the new book, a very important book, Our Unfinished March: The Violent Past and Imperiled Future of the Vote. We’ll talk about voting issues, which I know is the issue that drives you since you left public office. As you say, the right to vote is the right that ensures all our other rights, but before we get to that, just because it’s on everyone’s mind-

Eric Holder:

Sure.

Preet Bharara:

And it’s newsworthy. You used to be the attorney general. I’m wondering what you think about how the current Justice Department is handling the insurrection of January 6th. There have been two hearings so far. I should note for the audience that we’re recording this on Tuesday afternoon, June 14th, so there have been two hearings. By the time this airs, there will have been another hearing. Have you been watching? If so, what’s your impression?

Eric Holder:

Yeah, I have been watching. I think what I find unbelievably amazing is that, as bad as I thought the Trump administration was, there is even more dysfunction there than I thought, to hear Team Normal, as opposed to whoever the other people were, the descriptions of former President Trump, and his inabilities to deal with reality. It’s been a pretty amazing look at what I think is probably one of the worst administrations we’ve ever had. With that low bar that I had, we’ve gone even below that.

Preet Bharara:

How do you think the committee is handling itself, both in the investigation and in the referrals made to the Justice Department, and in the public hearings themselves?

Eric Holder:

I think, in the conduct of the hearings, I think they’ve done a good job. I think they’ve paid attention to the notion that this has to be compelling television. It has to be a compelling presentation that they’re doing, and so I think the use of video clips and the way they have used them makes a great deal of sense. The live witnesses, who were on yesterday, I thought were… The way in which they were examined, I thought, was done well, also.

Eric Holder:

With regard to the referrals for contempt, I think that was appropriate, and the Justice Department has made determinations against the… with regard to two of the four to proceed. I think the committee’s actually done quite well. I think that the presence of Representative Cheney has had a real impact. I think that the democrats are quite capable, but I think she brings a certain dimension to the committee that is going to help them, I think, get to a good place.

Liz Cheney:

Tonight, I say this to my republican colleagues, who are defending the indefensible. There will come a day when Donald Trump is gone, but your dishonor will remain.

Preet Bharara:

I totally agree with you, particularly about Representative Cheney. Do you think there’s an argument that has some merit about the illegitimacy of the committee, because there’s no one on there who is sort of a pro-Trump figure?

Eric Holder:

No, not really. I mean, I think facts are facts, and clearly there was a desire to create a truly bipartisan commission, well yeah, a commission to start, and a committee, I guess, is a fallback, where you’d have maybe an equal number of people, but I think at the end of the day, instead of hearing this stupid and silly partisan wrangling that we would’ve been subjected to, we’re just getting a group of people determined to find out what the facts were and then share those facts with the American people. I don’t think that… I think seriousness is more important than partisan representation. The fact is, I think that both Cheney and Kinzinger, I think, are very serious people and taking the job seriously, as well as the democrats.

Eric Holder:

There is… You do have the capacity to say that it’s bipartisan, in the sense that you have very conservative, and I mean, you’ve got to understand this, they are very, very conservative republicans here, who have, as we say all the time, but I think it’s worth saying here, they’ve put country before party.

Preet Bharara:

Is it, as not just the former attorney general, but the former deputy attorney general, former U.S. attorney, you have had a lot of intimate experience with the Department of Justice and understand the values that it’s supposed to stand for, and have tried to guard those, both in and out of office. Is there some aspect of the shenanigans going on at DOJ towards the end of the Trump term that disturbs you the most? I’ll give you one option, and that is the collusion of a hitherto unknown and un-famous official named Jeffrey Clark with the president, to try to do something to overturn the election in Georgia. Is it that, or is there something else that disturbs you the most, as a veteran of the DOJ?

Eric Holder:

All right, well, we don’t have enough time to go through all the things that disturbed me about the Trump Justice Department, but looking at the end, I mean, yeah, the role that Jeffrey Clark appears to have played in colluding to, in essence, forming a coup here in the United States to stop the transfer of power is extremely disturbing to me, and it is something that I hope will be looked at by the existing Justice Department. I hope it will be explored by the committee. I understand that there was supposed to be a segment that they are going to be looking at, at the Justice Department itself.

Eric Holder:

I also hope that people don’t fall for the Bill Barr presentation of himself, in a sense that he’s trying to make himself out to be a hero. He says stuff was bullshit, and the reality was that, immediately after the election, he reversed a longstanding Justice Department norm that says you don’t really launch investigations until the votes are certified, before the election, and this is while Trump was in the process of making those outlandish, unsupported claims. Earlier in the year, he was trying to push his U.S. attorneys to do a great deal with regard to finding of voter fraud. There’s a lot of information that Barr could have shared in a more timely way, such that it might’ve affected his book sales, but also might have had a positive impact on the nation.

Preet Bharara:

Did you know Bill Barr from before? If so… I imagine you did. Do you think he changed, or there were aspects of him that you just didn’t appreciate?

Eric Holder:

Yeah, I didn’t know him well. I think we only met a couple of times. Actually, it was when he was, I guess, the GC at…

Preet Bharara:

Was it Verizon?

Eric Holder:

At Verizon, yeah, when Verizon merged with a company that I was on the board of directors of. I think we just met briefly then. I actually thought that his appointment, after Jeff Sessions left, was going to be a good thing for the Justice Department, because my-

Preet Bharara:

You and I both, and we were both incorrect.

Eric Holder:

Totally. We were totally incorrect. I mean, my perception of him was formulated on the basis of what I thought he was during his prior time as attorney general. Upon closer examination of that, and I didn’t do that, I should’ve been a lot more worried than I was. I should not have been as optimistic about his appointment as I was.

Eric Holder:

He was an utter disaster for the Justice Department. He compromised the independence of the department. He trashed norms for partisan and ideological reasons. He was an extremely divisive force in the nation and a poor leader for an institution that you and I both revere.

Preet Bharara:

What do you think happened at the end? This was a guy, as you mentioned, who was pushing the department, who was interfering in cases of cronies of Donald Trump, including Michael Flynn and Roger Stone, and then was also pushing conspiracy theories about what would happen with the vote, and how there would likely be fraud, and ballots would be coming in from foreign countries. Then, at the end, middle or late December, he bailed. Do you have a theory as to why he did that?

Eric Holder:

Yeah, I mean, I think Barr, unlike a lot of the other people in the Trump orbit, is actually pretty smart. He saw where this was going, and he… There was cray-cray, but there were limits for how far-

Preet Bharara:

That’s a legal term. What statute is cray-cray in?

Eric Holder:

It’s 18-USC-15041, section C. There was a limit for him about how cray-cray he was going to go. Then, beyond that, I think he also realized that the pushing that Trump was doing, and the assistance he was getting from hacks like this guy, Eastman, and other people, was potentially pushing them into Title XVIII, where you see it’s the United States Criminal Code, and so I think that, both in terms of not wanting to be seen as just plainly crazy, and also wanting to limit his potential criminal liability is what I think ultimately made him decide to get out of the department. But let’s also remember that glowing letter that he wrote upon his resignation. It wasn’t like he was saying, “I’m leaving as a matter of principle, because I don’t like what the president is doing with regard to our electoral system.” I mean, he praised Trump up and down and made it seem as if he was totally in sync with the things that the president had done and, in fact, was doing.

Preet Bharara:

It’s a little bit odd, also, from my perspective because, unlike some other people, who have remained sycophantic, Bill Barr is not running in a Republican Primary for Congress, so he doesn’t need the endorsement. That’s one of the reasons, at the beginning, when he was named, that I was a little bit more optimistic, because he’s not a politician, he’s at the end of his career, and he said as much, “I’m not running for anything. I’m not doing any other job after this.” Didn’t matter. Do you have a view on Rod Rosenstein, the former deputy attorney general, and how he conducted himself?

Eric Holder:

Yeah, I’ve known Rod for a fair number of years, and I hoped that he, again, would be another place where, another source of both sanity and tradition within the department. Then, as you examined the role that he played with Sessions, with regard to how kids at the border, trying to get into the United States at the Mexican border, were treated. That was, to say the least, extremely disturbing.

Eric Holder:

I think a lot of people got a little too close to power and maybe didn’t have within them the moxie that you need to be able to tell a superior no or to go against a policy that you know, that you have to know, is just wrong, that’s inhumane. I would say that, as much as I’ve liked Rod and work with him, I would say that his performance as deputy was deficient in a lot of ways.

Preet Bharara:

Yeah, I mean, yeah, I agree with that. The main question that people have on their minds is separate and apart from what the committee is doing. What is the likelihood that there will be criminal accountability with respect to Donald Trump? Have you seen enough… This is the question I always get, so it’s nice to be able to ask someone else, who used to outrank me, the same question. Have you seen enough evidence to make the case that Donald Trump violated a statute?

Eric Holder:

Well, first off, let’s just clear something up here in a quick 20 seconds. I was the Attorney General of the United States. Preet was the United States Attorney for the Southern District of New York. If you think that, in any way, I was Preet’s boss, or that he was anything other than the Lord of Manhattan and related environs…

Preet Bharara:

It’s a fiefdom.

Eric Holder:

It’s a fiefdom, yes, so let’s just make that perfectly clear. We were colleagues. Let’s put it that way.

Preet Bharara:

I was insubordinate only infrequently.

Eric Holder:

You were actually one of our best… All kidding aside, one of our best U.S. attorneys, and actually, I think, will go down in history as one of the best U.S. attorneys for the Southern District of New York. When I say that, that is a substantial compliment.

Preet Bharara:

You think better than Rudy?

Eric Holder:

It’s close. It’s close. Yes, yes, I think substantially better than Rudy, but it’s interesting. Rudy has to be viewed not only for what he did in the Southern District, not only what he did as mayor, but his… I don’t know. How do you put it? His subsequent career, which diminishes everything that happened, everything that he did before.

Preet Bharara:

How many occasions can you recall when you and I spoke, and I was providing a briefing about a case, where I was apparently inebriated?

Eric Holder:

As best I know, Preet, you always seemed to be in charge of your faculties. I didn’t deter any slurring in your speech. You always seemed coherent and kind of conversant with the topics that we were talking about.

Preet Bharara:

I tried to be, when I was speaking with the attorney general, but to go back to the issue, which I digressed from, criminal liability. Do you see it?

Eric Holder:

Yeah, I certainly see the potential there. I think, first off, this notion that people say, “Well, it’s going to be hard to prove his intent,” I think that’s actually the easy part.

Preet Bharara:

Really?

Eric Holder:

Yeah, I mean, all this… Trump either had to be… He’s either a liar, or he has to be delusional. I mean, how could it… The intent thing all revolves around whether or not he actually believed that he was cheated out of a victory, and so that would somehow be the reason why he was participating in all these schemes that are now being examined. On the basis of all the evidence that we’ve seen, the interactions that he had with people who told him, “You lost the election,” and also just with regard to the profound craziness of the issues that they raised, I mean, bringing in ballots in barrels and all the stuff that has been talked about, it seems clear to me that he either, as I said, knew that it was all a lie, or that he is truly delusional, and I don’t think he is delusional to such an extent that that would be a defense that he could use or, frankly, that he would use. I think the intent part is going to be relatively easy to prove.

Eric Holder:

The question then is, is he connected to one of two things, either what happened on January 6th, that is the physical storming of the Capitol, or was he a part of and can you link him to this effort to actually pull off the coup through, not the physical means, necessarily, but through the so-called legal means that Eastman and other people were trying to perpetrate. In that latter one, I mean, you also have to take into consideration what he said to those folks in Georgia, “Find me 11,780 votes,” or whatever it is. I mean, that could be a specification for a conspiracy charge that you might bring in Washington DC. It remains to be seen, I think, if you can link him to one of those two things. But if you can, I think the charges will be available to be brought.

Preet Bharara:

If you were the attorney general at this moment, would you be expecting to have on your desk a draft indictment or not yet?

Eric Holder:

I don’t… It’s hard to know exactly where the Justice Department is, in terms of their investigation, and I have to presume that an investigation is underway. If I were the AG, I would expect, at some point, a prosecution memo that would probably lay out all the reasons why charges should be brought against the former president and other people in the White House, people at the Justice Department, and people outside of government. I think we know enough, at least at this point, that a prosecution memo could be, could be written.

Preet Bharara:

In the works, right.

Eric Holder:

Now, the question… Interesting, as you know, interesting timing questions. If that prosecution memo was to hit your desk, oh, I don’t know, say in September or August of this year, is that too close to the November election? Do you then push off a determination about what you’re going to do with it until post-November of this year, Justice Department policy being that you don’t do things that interfere with an election? So do you wait until December or early 2023? I think we might actually… That is something that actually might push a DOJ determination into the next year.

Preet Bharara:

Yeah, and that’s a real consideration. As you put it, we’re already in the middle of June. Nothing is going to be immediate. I mean, we don’t even know if the DOJ is going to be interviewing many of these people close to Trump, who are testifying before the committee.

Eric Holder:

Mm-hmm.

Preet Bharara:

If you were the attorney general, would you have been asking agents and prosecutors to be interviewing some of these people, like Bill Stepien and Mike Pence and Mike Pence’s chief of staff, and others?

Eric Holder:

Sure, yeah. I think so. I think, if this were centered in the Southern District, or if you were involved, or if I was making calls as attorney general, I think both of us would have had agents out there talking to these people, and it is entirely possible that agents have talked to these people.

Preet Bharara:

But don’t you think we would’ve heard that? There would’ve been leaks about that?

Eric Holder:

You actually anticipated what I was going to say next, which is… That’s the thing that I find a little concerning and confounding. The fact that we’ve not had leaks of grand jury appearances or the receipt of grand jury subpoenas or indications that certain people have been interviewed by the FBI gives me some pause to think, well, is this investigation unlike any other? It is, maybe, unlike any other, but as you know, typically in an investigation, these things become public because somebody close to a person who has received a subpoena knows about it, tells somebody in the press. I mean, the word gets spread around in some form or fashion, and this one has been very quiet. Navarro said that he got a grand jury subpoena, I guess, a couple weeks or so ago, but other than that, I’m not sure I’ve heard anybody say, or have heard any reports of anybody getting grand jury subpoenas or being interviewed by the FBI.

Preet Bharara:

One more question about this, and then we’ll get to voting. If it is true that the department is waiting for the January 6th committee to do its work and to turn over its transcripts, do you have any explanation as to why it would take that approach?

Eric Holder:

No, and that one actually kind of surprised me. The fact is that the department has to act independently, make its own independent determinations about what it’s ultimately going to do, and it has to be based on actions and investigations, interviews, that it, itself, has done. I’m just not sure. I don’t think that you’d have to wait for the January 6th folks, the committee, to finish their work or to have their work product in your hands, though that could be extremely helpful and might actually shorten the amount of time that you have to spend in the field making determinations about who it is you want to interview or whose credibility do you want to test?

Eric Holder:

It appears, the way the January 6th committee is working, that by the end, I think all of the things that prosecutors, investigators will want to have done will at least have been previewed in a very substantial way. If nothing else, if nothing else, and I suspect it’ll be more than that, if nothing else, it’ll be one of the best guides that an investigation could ever have.

Preet Bharara:

Yeah. We’ll be right back with more of my conversation with Attorney General Eric Holder after this.

Preet Bharara:

I want to get into a discussion about voting rights and the voting opportunities that people have in this country, by way of a Supreme Court case that has your name in it. I think you’re only one of two guests, who I’ve had on the show, who have been a named party.

Eric Holder:

Okay.

Preet Bharara:

The other is Lee Bollinger, whom you know, obviously.

Eric Holder:

Yep.

Preet Bharara:

The case is Shelby County v. Holder. It’s been discussed on this pod earlier. Could you just remind people, in a sentence or two, what that case was about and why it was terrible?

Eric Holder:

Yeah, well, first off, I only call it the Shelby County case. I never want my name-

Preet Bharara:

You leave out the Holder?

Eric Holder:

Yeah, I mean, it’s like otherwise it’s like Dred Scott versus Holder or something. You’d never want to be that guy.

Preet Bharara:

That’s fair. That’s fair.

Eric Holder:

I don’t want to be… So forevermore, whenever you refer to it on your podcast, or in private life otherwise, call it the Shelby County case. The Shelby County case was decided 5-4 by the Supreme Court in 2013, and essentially gutted the Voting Rights Act by looking at a component of the act coverage formula. Just to kind of boil it down, it essentially took away from the Justice Department the ability to pre-clear electoral changes in so-called covered jurisdictions around the country, largely states in the South, but actually parts of New York State were covered by the Voting Rights Act of 1965.

Eric Holder:

By taking that ability to pre-clear, which was to, in essence, say if you want to change polling places or polling times, or you’re trying to purge voters or something in a covered jurisdiction, you have to get the approval of the Justice Department to do these things. Taking that ability to pre-clear away from the Justice Department freed up states and localities to do a whole variety of things that they did almost immediately after the decision, the imposition of these unnecessary photo ID laws. Since the Shelby County decision in 2013, we’ve seen almost 1800 polling places closed around the country, almost disproportionately in those states that were once covered by the act, and disproportionately in communities of color. That decision, I think, along with Citizens United and the Rucho decision, where the Supreme Court, again 5-4, said that they would not consider whether or not partisan gerrymandering was violative of the United States Constitution.

Eric Holder:

I think those three cases will be viewed 50 years from now, maybe shorter than that, in the same way that we look now at the… I may be getting a little too technical, at the Lochner era cases of the Supreme Court in the early part of the 20th Century.

Preet Bharara:

Lochner v. Holder, right?

Eric Holder:

No, I was not around for those, but those early… Those, the Lochner era cases, were ones that were used early on to knock out significant portions of the New Deal, and are seen as really bad decisions, or a bunch of bad decisions by the court. I think, when it comes to looking at the protection of our democracy, the protection of our electoral system, those three cases will be seen as kind of Lochner era cases for the Roberts court.

Preet Bharara:

I want to get to the particular scenario of gerrymandering that you talk about a lot in your book, Our Unfinished March, but generally speaking, what is the greatest impediment to widespread voting, particularly on the part of minority communities and others at this moment?

Eric Holder:

That’s an interesting question. You know the difficulties that people have. They’ve thrown up so many impediments to make it more difficult, it’s almost hard to pick one. Registering is something that should be more simple than it is. That’s why in the book we call for automatic registration. Closing polls at certain times; restricting the number of early voting days; now restricting, apparently, the use of mail-in ballots, when we saw that really supercharge our electoral system in 2020, without any indication of any significant fraud; the use of unnecessary photo IDs to prove who you are, you claim to be, when you want to vote. I’m for voter ID, as opposed to photo ID.

Eric Holder:

I think it’s all of those things, and there’s a certain ingeniousness in the way in which the people who draw up these statutes come up with ways in which they make it more difficult to vote for certain people, disproportionately people of color, young people, urban dwellers, people who are perceived to be supporters of the Democratic Party. I’m not sure I could pick one, as opposed to-

Preet Bharara:

Yeah, well, we should do a whole bunch of things.

Eric Holder:

Yeah, as opposed to pointing to this constellation of inappropriate things that they’ve gotten behind.

Preet Bharara:

Now, gerrymandering is a term that is not ancient, although the concept goes back. You describe it, as some other people describe it, as a method by which, instead of having a system in which voters choose their politicians, the politicians choose their voters.

Eric Holder:

Right.

Preet Bharara:

What’s so bad about that?

Eric Holder:

Well, this grand experiment of ours, this American nation, was founded on the notion that the people should ultimately decide the direction of the nation, the fate of the Republic, and gerrymandering flips that on its head, allows politicians to pick their voters, and in doing so, allows for the possibility, and we’re now seeing it play out, where a minority in the country, and I don’t mean a racial minority, but I mean a popular minority, a minority by population, can dictate to the majority the direction in which the nation ought to go.

Eric Holder:

Pretty practically, we’re all concerned about what’s going to happen with regard to the Mississippi case and whether or not Roe versus Wade gets overruled. The Supreme Court is looking at statutes that have really cut back on Roe or want to have Roe overruled, passed by gerrymandered state legislatures, state legislators who are doing things inconsistent with the desires of their constituents, but because they’re in gerrymandered, safe districts, face no electoral consequence. Gerrymandering is just fundamentally inconsistent with who we say we are as a nation and what we fought for, when we took on the mightiest empire in the world, when this country was born.

Eric Holder:

Now, it is something that republicans, in the last few decades, have become expert at, especially after the or during the 2011 cycle, when they had a thing called Project Red Map, but democrats have been guilty of it, as well. In fact, in the book, I talk about, as best I could find, the first instance of gerrymandering is when Patrick Henry gerrymandered, so that… It was either James Madison or James Monroe, he didn’t like one of the Jameses. He drew a district in such a way to ensure that one of our future presidents, one of our founding fathers, either James Madison or James Monroe, could not get a seat to which he was otherwise entitled. Gerrymandering goes back that far.

Preet Bharara:

What’s the solution? Who should be determining electoral maps, because there’s controversy even when a special master gets appointed by a judge, who’s supposedly going to be independent, and then they draw up the map. This has happened in New York’s 10th District. I don’t know if you’ve been following that. We had Mondaire Jones on recently, who’s going to run in that district, and our former colleague, my friend, Dan Goldman, who’s going to run in that district. But then there’s criticism that an unelected, appointed, single individual has drawn up the map. How should we be determining what the districts are?

Eric Holder:

Yeah, I mean, I think that… I’ve looked at a variety of ways in which it’s done around the country, and I ultimately come down on the side of these independent commissions, but the commissions have to be well constructed. They have to be staffed with people, or people have to be the commissioners who are, in fact, going to focus on doing things in a fair way. It doesn’t mean you can’t have republicans or/and democrats on it, but you have to have a substantial number of people who are truly independent. California’s system works pretty well. Michigan’s has worked pretty well. The one that was set up in Virginia did not work particularly well. The one that is in Arizona, and traditionally has worked pretty well, did not do that well this time.

Eric Holder:

But this notion of independent commissions, which the citizens in Michigan voted for, but they also voted for it in Utah and Missouri, as well. Whenever citizens have the opportunity to express their preferences, they always vote for, in these statewide initiatives, the creation of these independent commissions, and I think that’s actually the best way to do it, but any commission… All commissions are not created equal. As I said, Virginia’s was not good. California’s is good.

Preet Bharara:

Can you give some color or flavor of that? What was wrong in Virginia and some other states?

Eric Holder:

Well, the way in which the Virginia one was constructed, it had kind of an equal number of democrats and republicans, and you could see that, the way it was constructed, it was going to lead to deadlock. This is something that I predicted. A lot of good government types were like, “No, you just want to leave the democratic legislature and governor in charge of doing the redistricting.” As predicted, they ended up deadlocking, and so they were unable to agree on a map. Ultimately, the Virginia Supreme Court had to draw the maps, and to be fair to them, I think they drew some pretty fair maps.

Eric Holder:

Truly independent commissions with true power, I think, is probably the best way to do it. Now, no system is perfect, and there are going to be mistakes made, even by commissions, but if you take the people who are most interested in the result, that is sitting politicians, out of the equation, I think you get closer to a guarantee that you’re going to have the best result.

Preet Bharara:

Do you see a trend in that direction, or is this hopeful thinking?

Eric Holder:

Well, it’s probably a bit of hopeful thinking. Every place where we found that there was a way through the state constitution where you could put before the people, through a ballot initiative, say to the people, “Do you want to have an independent commission draw the lines?” People said yes. This was, as I said, in Utah, Missouri, red states, blue states, Michigan, Colorado. That, I think, is… The people, that’s what they want to do, but to ask state legislatures to actually create them, that’s a little more difficult.

Eric Holder:

Now, to be fair, democrats in Virginia actually gave up power and ceded it to that commission that was not drawn or constructed as well as it could have been. I think, I’m not sure there are any more places that we’re going to be able to find where we can do these ballot initiatives. It’s going to be hard to have state legislatures, in essence, give up power.

Preet Bharara:

Yeah, and when people see, democrats in particular, see the consequences of the change in Virginia, does that have a negative effect on reform in other states?

Eric Holder:

Yeah, I guess it could if you focused only on Virginia, but if you look, as I said, at Michigan, Colorado, California, other places where commissions have actually worked, and produced state legislatures and then congressional delegations that more accurately reflect the political makeup of the states, I think that there’s a good counter-argument against those who would say that commissions are not a good tool.

Preet Bharara:

I want to change gears for a moment and ask you about the state of law enforcement in the country and the state of criminal justice in the country. There was this moment, not just a moment, but, and some may think we’re still in that moment, after George Floyd was murdered by a police officer. Now there are a lot of concerns about rising crime, and people have debates and disagreements about the nature of the rise, the extent of the rise, what the causes are. We have this popular slogan, which is no longer popular in many places, called, “Defund the police.” Let me ask you first about the so-called progressive prosecutor movement, and the San Francisco district attorney being recalled. There’s again a debate about what that means, and is it being over-interpreted? Are democrats wrong to be alarmed by that? Do you have a reaction to the recall in San Francisco?

Eric Holder:

Yeah, I don’t know enough about exactly what happened there, but I do have an instinctive negative reaction to even the term, progressive prosecutor. I mean, I’d like to think that I did a lot of progressive, nonpolitical progressive things as attorney general. I think you certainly did a lot as U.S. attorney in Manhattan, but progressive prosecutor, to me, is kind of a… That has a political ring to me, as if you’re bringing an ideological view into what essentially is the criminal justice system, which you’d hope would be immune from that.

Eric Holder:

It doesn’t mean that you shouldn’t have policies that are more humane policies in place, that are really consistent with the notion of deterrence, rehabilitation, accountability, all of those things, but I think that sometimes you can take a concept a little too far and infuse it with, as I said, ideological things, and that, at times, that will run intention with what I think a good, functioning criminal justice system should look like, because you’ve seen it from the other side, where the tough on crime crowd put in place these really draconian drug laws, where people with nonviolent offenses would go to jail for five, 10, 15 years, perhaps longer than that. I kind of recoil a little bit at the notion of being a so-called progressive prosecutor in the same way that I recoiled at the notion of… You know, we’re not good on the democratic side with slogans, it appears.

Preet Bharara:

We should stop with the slogans, actually.

Eric Holder:

I mean, with this notion of defund the police. It’s like, well, what does that mean? You talk to people in our most distressed communities, they don’t necessarily want the police defunded as much as they want to be treated fairly. They want punishment to be commensurate with the nature of the conduct. They’re looking for just equality in the criminal justice system, not necessarily a pullback of those forces that are put in communities to keep regular citizens safe.

Preet Bharara:

Yeah, people don’t want crime to come back. It’s interesting. You see a lot of people show these charts that show, well, crime was very, very bad, and violent crime in particular was very, very bad in 1992. The crime rate now is well below that, but that’s not how people think, and that’s not how people think about the stock market.

Preet Bharara:

The stock market, the S&P 500 just went into bear market territory. It is not pleasing to people, because that’s how human brains function, to say, “Well, yeah, but the S&P 500 is way above the level it was at in 1992.” People care about current trends, and if it’s less safe than it was two years ago, that’s much more important to people than it’s more safe than it was 30 years ago. Do you think that the balance can be struck between public safety and fair justice and equality, and how is that best struck?

Eric Holder:

Yeah, I don’t think that there’s a tension between keeping the American people safe and doing so in such a way that the criminal justice system is viewed as being a fair one. It means arresting people when they commit crimes, holding them accountable, and then coming up with sentences that are commensurate with, again, with their conduct. It means thinking about alternatives to incarceration. It means, also, dealing with the underlying social problems that tend to breed crime.

Eric Holder:

It’s interesting to me that when we were dealing, I guess, in the ’90s, the early 2000s with the crack problem, society’s response was simply to use the criminal justice system. Let’s lock people up in huge numbers and for disproportionate amounts of time. Now we’re dealing with a drug problem that is not necessarily seen as a drug problem of the inner city, of people of color, synthetic drugs, things of that nature, and dealing with people who are White, part of the majority community, and there is a much greater view that we should use, see this as a public health crisis.

Eric Holder:

I think that there needs to be a mix of… I’m not saying we should go back to the old days and just use criminal justice as the response, but I think the more enlightened approach that we’re taking now is something that we should’ve probably used during the crack epidemic, and that would’ve had, I think, a whole bunch of positives that would’ve flowed from it.

Preet Bharara:

I have another question in this vein, and it is how you talk about the police. Obviously, as a U.S. attorney, I worked with law enforcement agents and with the New York City Police Department. You have been a supporter of police and law enforcement your whole life. I think various police organizations endorsed you for the various positions that you’ve had, and then George Floyd gets murdered by a police officer, and these other shootings that are not justifiable, and I’m sure you’ve come across people who have a very, very terrible view of the police generally, and you, particularly as attorney general, had to preside not only over law enforcement actions, in which you partnered with law enforcement agents and the police, but also take civil rights actions and do reports, like was done in Missouri during the time you were attorney general. I guess my long-winded question, boiled down to its essence, is how do you talk to people about the police in a way that they find understandable, given the various roles that you’ve had?

Eric Holder:

Yeah, you know, it’s interesting, Preet. As much as I’d like to think of myself as a supporter of the police… My brother is a retired cop, and I served most of my professional career in law enforcement positions within the Justice Department. There are people on one side of the political spectrum, who think that Eric Holder hates the police. Eric Holder hates people in law enforcement, which I always find just totally-

Preet Bharara:

Laughable.

Eric Holder:

Befuddling to me. On the other hand, there are people on the other side of the spectrum, who think that I’m an apologist for police misconduct, totally inconsistent with the fact that we brought record numbers of these pattern of practice investigations against police departments around the country. I mean, I think that the reality is that most cops, not most, but the vast majority of cops and agents are good people trying to do a tough job.

Eric Holder:

Now, as there are bad lawyers, there are bad doctors, and there are bad cops. There are people who shouldn’t be cops. The guy, Chauvin, who kept his knee on George Floyd’s neck, obviously should never have been a police officer.

Eric Holder:

What I try to say is that we have the capacity within us to come up with better law enforcement by having better law enforcement policies, with regard to what our law enforcement priorities are going to be. Policing can be done better. We need to understand that there is a historic distrust between communities of color and people in law enforcement. That’s just a reality that we have to somehow confront, and so dialogue has to be engendered between those two entities, or we can fall into these simplistic kinds of things. You’re pro law enforcement or your pro community, and you have to choose between them, when the reality is that we have to deal with this crime problem that is now surfacing.

Eric Holder:

It’s real in the minds of people, and you’re right, the levels are lower than 1992, but it’s real in the lives of people in 2022, and there’s going to have to be a law enforcement response to it, but it doesn’t have to be what we did in the ’90s and the early 2000s, when we just throw out dragnets and come up with stop and frisk and all these other things that, at the end of the day, I’m not sure were all that effective and certainly had a negative impact on the relationship, the necessary relationship, between law enforcement and communities of color.

Preet Bharara:

Yeah. I want to end by talking about what inspires you. I know you have many sources of inspiration, and you’ve inspired many people, but you talk in your book about something that I’d just love you to mention to the audience. Tell us the story about your sister-in-law at the University of Alabama in 1963 and what that meant to you.

Eric Holder:

Yeah, June of 1963, my not then, but subsequently became my sister-in-law, Vivian Malone was one of two Black students who integrated the University of Alabama in that famous stand in the schoolhouse door, where George Wallace prevented them from enrolling until President Kennedy nationalized the National Guard there and, in conjunction with Deputy Attorney General Nicholas Katzenbach, who was actually on the scene, and Attorney General Robert Kennedy, who was commanding everything from Washington DC, she was allowed to register at the University of Alabama and became, ultimately, its first Black graduate.

Eric Holder:

The guy, who went in with her, James Hood, did not last for more than, I guess, a couple of months or so. Vivian actually stayed for the full time and, as I said, was the first Black graduate. Everybody remembers the stand in the schoolhouse door, how elegant she was, how poised she was. What people don’t know is that she was shunned for her time while she was at the University of Alabama. There were bombings that occurred nearby, and that were designed to threaten her and get her to leave. The place where she was going to stay before she was going to register was actually, a Black hotel, was actually fire-bombed, and so she was held in secret at the home of the secretary of the head of the local NAACP until the day in June, when she and James Hood were taken to enroll.

Eric Holder:

Vivian’s poise, her courage, her ability to focus on the mission, which was her family, my wife’s family. They’ve been Alabama residents going back to, as best we can figure out, to the 18th century, and yet they were denied the ability to go to their state school, simply because of the color of their skin. She always… We lost her too soon, but she continues to be an inspiring presence in my life, not only for what she did, but it always reminds me of the countless other people, especially in the South, especially people of color, too often women who have been forgotten, who sacrificed, who committed themselves, who risked their lives, so that I would have opportunities that they did not.

Eric Holder:

The anniversary of her integrating the University of Alabama was just about two, three days ago, and it is always something that I tweet about on the day of that anniversary, to remind people of people like Vivian, whose names are not maybe known to us now, but who are, nevertheless, architects of the better America in which we all live.

Preet Bharara:

Did those events directly inspire you to eventually go to the Justice Department?

Eric Holder:

Yes, they did. I mean, that event I remember watching from Queens, in my basement in East Elmhurst, on a black and white TV, and being struck by the enormity of what was going on. At the time, I was 12, and all the things that were going on in the South were kind of… I didn’t totally understand, as a northern kid, northern Black kid, but I came to understand what was going on there, the Freedom Rides, John Lewis and the Edmund Pettus Bridge. By that time, I’m 14 years old, and all of that really kind of made me want to be like them and to fight for the things that they fought for. It was later on that I decided that the law would be the vehicle that might best suit me to help in the cause, in the way that they did.

Preet Bharara:

You went to a terrific law school, if I may say so myself.

Eric Holder:

Yes. The law school.

Preet Bharara:

The law school.

Eric Holder:

That would be The Columbia Law School, that would be right.

Preet Bharara:

The Columbia Law School. Final question, sir, and you’ve mentioned Queens. Are you a New Yorker, or are you a creature of the District of Columbia?

Eric Holder:

You know, I will forever be a New Yorker.

Preet Bharara:

Okay, good.

Eric Holder:

I’ve lived in Washington now, I guess, probably the majority of my life, and yet when I come, when I say I’m coming… I was just about to say whenever I come home, and that means I’m coming home to New York. We landed at LaGuardia Airport last night, and I asked the driver to go right past my house, which is very close to LaGuardia. I just wanted to look at it, at 24th Avenue and 101st Street. Malcolm X lived just four blocks down from where I lived.

Eric Holder:

This is a special city. This is a special place. This is the most exciting city in the world. It’s the city that formed me. It’s the city that supported me. It’s the city that I continue to love.

Preet Bharara:

Attorney General Eric Holder, thank you for this important book, Our Unfinished March, and thank you for your service and your continued service. I wish you well.

Eric Holder:

Well, thanks, Preet. It’s great talking to you. Thank you for your service. You were a great U.S. attorney, and you’re an even better friend.

Preet Bharara:

Thank you, sir.

Preet Bharara:

My conversation with Attorney General Eric Holder continues for members of the Café Insider community. To try out the membership for just $1 for a month, head to café.com/insider. Again, that’s café.com/insider.

BUTTON:

Preet Bharara:

I’m going to end the show this week, not talking about the violence in Ukraine or about the January 6th Committee or about the doings of Congress, but something near and dear to my heart, the public library. Like many of you, I love public libraries. When I was a kid, I used to go to the Eatontown Public Library, and I cherished my library card. I think, during the time I was growing up, I read every single book that was available, especially all the science fiction books in the Eatontown Public Library. When I got to high school, I needed a larger library, in the days before Google and the internet, when you had to do a term paper, to what seemed to me to be a gigantic library, the Monmouth County Library.

Preet Bharara:

Libraries are one of those great public goods that we sometimes take for granted. A few stories related to libraries, if you can believe, caught my eye this week, and I wanted to share them with you. That’s right, multiple stories about libraries.

Preet Bharara:

First, I came across the sad news that Philip Baker Hall, the great and beloved actor, passed away on Sunday. If you watch Seinfeld, you’ll remember him as Lieutenant Bookman, a detective for the New York City Public Library. The famously hilarious library cop character pursued decades of overdue fees and patrolled the library after hours. He was deadpan and committed to doing justice by the New York City Public Library.

Preet Bharara:

Jerry Seinfeld could clearly barely keep it together in his scenes with Hall. The Seinfeld role opened up many doors for Hall, who later became a favorite of the director, Paul Thomas Anderson, and appeared in several of his films. Hall lived to be 90 years old.

Preet Bharara:

Just days before the news of Hall’s passing, another story had caught my attention, this one from a library in Tooting, South London. As the BBC reported, a man named Tony Spence, who now lives in Port Moody, British Columbia, returned a book by mail to the Tooting Library that he had taken out in 1974. The copy of A Confederate General from Big Sur that he returned 48 years late technically had an overdue fine of, get this, 6,170 pounds, but the library in South London agreed to waive it, which is a good thing.

Preet Bharara:

The library said it was surprised and delighted to have the book returned, after not even realizing it had been missing. Why didn’t they realize it? Because Tony Spence had checked out the book before the library had upgraded to a computer system. As Mr. Spence told the BBC, “I just want to apologize for taking this amount of time to return it, and I hope the people who were on the hold list, waiting for it to come in, are not too angry with me.”

Preet Bharara:

Here’s another story. Ted Sams, a 77-year-old from California may be able to relate to Mr. Spence. The Washington Post reported this week that Mr. Sams was denied his high school diploma in 1962 because of a $4.80 fine for a missing textbook.

Preet Bharara:

Sams told the Post, “I didn’t have a lot of money, and that amount would’ve filled my car with gas or paid for a dinner date, so I figured, forget it. I walked away and went off to enjoy the rest of my summer,” but it bothered him over the years that he never got his diploma.

Preet Bharara:

As the 60th anniversary of his missed graduation came up this year, his kids had an idea. They contacted the old high school’s registrar, explained their father’s situation, and asked if the diploma might still be around decades later. The school registrar went digging, and what did she find? A dusty, 60-year-old, sleeved diploma, with Ted Sams’s name on it. The school forgave his $4.80 fine, worth about $45 today, and invited him to come back to the school to walk with the 2022 graduates, and he did, proudly clad in a bright royal blue cap and gown. Sams said about the experience, “It was almost like being a teenager again.”

Preet Bharara:

These stories together remind me, and should remind you, that it’s never too late to do what’s right, even something as small as returning an overdue book, and it’s never too late for forgiveness either. Of course, my condolences to the family of Philip Baker Hall. For the record, Lieutenant Bookman would’ve never let those books disappear for all those years. May his legacy live on.

Preet Bharara:

Let me know if you have any great stories about your library. I’d love to hear them. Write to me at letters@cafe.com.

Preet Bharara:

Well, that’s it for this episode of Stay Tuned. Thanks again to my guest, Attorney General Eric Holder.

Preet Bharara:

If you like what we do, rate and review the show on Apple Podcasts or wherever you listen. Every positive review helps new listeners find the show. Send me your questions about news, politics, and justice. Tweet them to me @PreetBharara with the hashtag #askpreet, or you can call and leave me a message at 669-247-7338. That’s 669-24-PREET, or you can send an email to letters@cafe.com.

Preet Bharara:

Stay Tuned is presented by Café and the Vox Media Podcast Network. The executive producer is Tamara Sepper. The technical director is David Tatasciore. The senior producers are Adam Waller and Matthew Billy. The CAFE team is David Kurlander, Sam Ozer-Staton, Noa Azulai, Nat Weiner, Jake Kaplan, Sean Walsh, Namita Shah, and Claudia Hernandez. Our music is by Andrew Dost. I’m your host, Preet Bharara, Stay Tuned.