The Department of Justice, created in 1870, was initially formed in part to enforce Reconstruction era laws aimed at ensuring voting rights for formerly enslaved people. Yet, nearly 150 years later, voting access is still under attack. Eric Holder made history as the first black U.S. Attorney General, serving in the Obama administration. Holder now serves as the chairman of the National Democratic Redistricting Committee, which focuses on fighting back against gerrymandering to achieve fair maps. He joins WITHpod to discuss the fight for voting rights, growing redistricting concerns nationwide and how concerned he is about the possibility of former president Donald Trump being reelected.
Note: This is a rough transcript — please excuse any typos.
Eric Holder: I’m scared. I am nervous, but I’m also hopeful. And I am determined to try to do all that I can, to simply make our system fair. You know, let the people decide. Let’s have as neutral a system as we can. Let’s make this a battle of ideas as opposed to who’s best at drawing the lines. Let’s make this a battle of ideas as opposed to who can misuse power as I think Trump inevitably would do.
Chris Hayes: Hello and welcome to “Why Is This Happening” with me your host, Chris Hayes.
You know, we spend a lot of time in our lives now thinking about the Department of Justice and what it does because it’s such a central player, particularly in the world of attempting to hold Donald Trump legally accountable. Jack Smith works with the Department of Justice; the special counsel, Robert Hur, who released his report on Biden’s handling of classified materials as appointed by the attorney general and Department of Justice.
And it’s funny to think about the fact that the Department of Justice is a post-reconstruction, post-Civil War creation. It’s only about 150-plus years old. It’s created in 1870, 1878 and 71 and 72, basically to handle the enormous amount of litigation the government has to deal with in the aftermath of the Civil War and through reconstruction. And one of the first things it does is attempt to enforce the Reconstruction laws that try to give genuine equality to black men and black folks more broadly, specifically on voting, the black men.
And it’s also interesting to think that though the position of attorney general begins with the United States back in 1789, throughout the nation’s history, it was not until Eric Holder was sworn in as attorney general under Barack Obama in 2009 the nation had a black attorney general, which is also wild to consider, when you think of the brief of what the Department of Justice has so often done. And at its best has been one of those sort of the safeguards and guarantors of civil rights.
At its worst has been a sort of arm of persecution of all sorts of folks. So, I was really, really thrilled when I got word that the man who became the first black attorney general and one of the most interesting legal minds that I know, Eric Holder, was available to come on “Why Is This Happening.” And I don’t want to burn up any more time before we get to our conversation. So, Eric Holder welcome to the program.
Eric Holder: Always good to be with Chris. How you been?
Chris Hayes: I’ve been great. I’m going to start out just by like noting this. You told me to call you Eric. It feels slightly insufficiently, respectful and differential, but I’m going to call you Eric. It would be weird like —
(Crosstalk)
Eric Holder: I’ve been called a lot worse than Eric, trust me. So, I’m comfortable with this.
Chris Hayes: Okay. So, I want to start with gerrymandering. And the reason I wanna start with that is, it was a really interesting thing to me. You obviously have had an incredible career. You were the first black attorney general in the United States history and a very accomplished lawyer before that. And you chose, you got out of the Department of Justice and pretty quickly focused on this issue, on the issue of how maps for both congressional districts and state legislatures get drawn.
And you’ve been very focused on this issue tenaciously for years now. And I want to start with like why? Of all the things that you could work on, and you could work on anything, and you have many areas of expertise, why that grabbed you so fully?
Eric Holder: Yes, I mean as I left the department and I was thinking about what is it that I wanted to do in my post-government life, I mean I know I wanted to continue to be involved in those issues that animated my professional life. And I had a few priorities that I worked on while at the Justice Department. And the protection of voting rights, it seemed to me was the place that I wanted to continue to work. And then it was a question well, when it comes to protecting voting rights, what is it about our system that we find to be most troubling?
And I looked back at the course of the decade, from the 2011 redistricting and the impact of that gerrymandering that occurred by Republicans, which Princeton University said was the worst gerrymandering of the past 50 years. And I looked at the impact that had in our state legislatures, the impact that it had on the Obama administration to try to get things through a gerrymandered House of Representatives. And also, figured out you know what negative impact, very pernicious thing.
But nobody is paying an awful lot of attention to something that is kind of an infrastructure issue, not particularly sexy, not particularly newsworthy. But if corrected, could have a huge impact on a whole range of issues. And what I determined was that there are a whole range of things that are tied to this kind of ethereal, wonky, you know, structural issue.
If you care about a woman’s right to choose, if you care about climate reform, if you care about voter protection when it comes to voter suppression issues, if you care about criminal justice reform, all of these things are connected to who serves in our state legislatures and who serves in our House of Representatives. And so that is a long convoluted explanation as to why I decided to focus on gerrymandering.
Chris Hayes: Well, one of the things, and I think this is partly a credit to you, but also has been the product of a lot of other people having a similar realization and kind of working on this issue is that from the time that you started working on it to now, I feel like it has really exploded into people’s consciousness. I mean all of this is relative, right? I think the sort of median voter, who’s not consuming news all the time isn’t necessarily thinking about this.
But within the circle of people that do work in politics and focused on politics and people thinking about structural reform and particularly thinking about the vibrancy of American democracy, this issue, it seems to me, and I am wondering if you agree, really has exploded in salience and people’s consciousness.
Eric Holder: No, I totally agree with that. And that was actually one of the things that we determined first off, that we had to raise the consciousness of people, both in the political class and in the public more generally about the importance of gerrymandering. I remember when we announced the formation of the National Democratic Redistricting Committee, the NDRC, back in January of 2017 at the Center for American Progress. And you could see, you had a lot of cameras there, and you could see the cameramen looking at their watches, their eyes were glazed over, you know.
Chris Hayes: It’s the vaunted cameraman test. One that I’ve often used. If I am doing a monologue and the folks, my crew, if they are chuckling or they are into it, I am always like, okay, I’m good here, I’m good.
Eric Holder: Right, right. Well and I realized coming out of that press conference, you know, I can talk about the substance but I’ve got to make people understand that what I’m about to talk to you about is important to your lives. And so one of the things that we early on determined was to talk about gerrymandering, but almost to immediately to pivot to, and this is the impact that gerrymandering has on this issue that matters to you. And make it an issue, specific thing, as opposed to something that was structural.
And then just to talk about the unfairness of it, I mean fairness is really something that resonated with people. When we did some field testing and some polling, when we talked about, would you like to have a fair system when it comes to how the districts are drawn? And this is the impact that it has and people were kind of like Republicans, Democrats, well, yes, I would like it —
Chris Hayes: Yes.
Eric Holder: — to be fair. And so fairness and focus on issues was the way in which we raised the consciousness of people.
Chris Hayes: I wanna zoom in on Wisconsin for a little bit, because that’s a place that you’ve been very active, your organization’s been active. And I think is probably, amount the most, I would say, the most egregious examples. There’s a bunch of examples.
Eric Holder: Yes.
Chris Hayes: North Carolina is up there, but I think with Wisconsin. So just first walk me through what the Wisconsin Republican Party was able to do, you know, with their last gerrymander before 2020 and then again in 2020 with that big 2010. So, people know this, there’s a Decennial Census, every 10 years there’s a census. The census comes out. The census is the basis for new maps and different states have different methodologies for drawing those maps. The most common being often the state legislature basically draws its own maps.
And if they have a majority, they can draw maps to help themselves, and there’s a whole bunch of different questions. Sometimes you get state legislatures that just want to protect incumbents, and there’s a kind of, sort of tacit truce between the two parties where no one is going to be too aggressive about pushing up their numbers. So, that all the incumbents kind of stay protected. Then, there’s other places where the majority party in this particularly true Republicans gets very aggressive and tries to get as many seats for themselves. So, tell me what the Wisconsin vision looked like.
Eric Holder: Well, the Wisconsin vision is really all about drawing, I think, the worst existing gerrymander in the country that favors Republicans. And a little bit of history there, you know, so there was the 2010 shellacking that Barack Obama famously talked about. I mean you saw substantial Republican victories. You saw victories in Wisconsin among other states. And the Republicans there decided to use that majority, that they won in 2010, to draw themselves into perpetual power for the course of that decade.
And the way they did it was pretty interesting. They didn’t go to the legislature and talk about what are we going to do here? They actually went to a law firm across the street from the Wisconsin capital, drew up some maps, small number of Republicans, brought them back and said, these are the maps. These are the lines that we are drawing. Even some of the Republicans didn’t know, like what are you guys talking about? And they just said, leadership said, just vote on these. These are going be the lines.
And we know this because a young Republican aide told everybody about what happened. He was disgusted by what he had seen. And what they put in place was an extremely effective gerrymander where over the course of the decade, in spite of the fact that Democrats won on a four or five times when elections were held, statewide, for the legislature. Democrats got a majority of the votes, but never got more than maybe 40 percent of the vote.
And when Republicans won, Democrats found themselves with only maybe 35, 37 percent of the seats in the state legislature. And this has been something that has been enduring. You know, it’s one thing when you put voter suppression mechanisms in place and people will stand in line. You close the polling places, reduce the number of polling places, people will stand in line to vote. It is hard to overcome a well-constructed gerrymander. And so what we have been doing is elect as many public officials as we could, started with the governor.
Tony Evers has been great in that regard. Then, we realized it’s going to be litigation is going to crack this gerrymandering. And so, we worked on state Supreme Court racism. We now have four justices on the Wisconsin Supreme Court who say that they want to have a fair maps and are willing to look at the maps that have been put in place. But they use their power, garnered in 2010, put in place of gerrymandering in 2011 that has had a decade long impact.
Chris Hayes: Yes. And just to sort of zoom in on the math here, it’is a little hard to do in a non-visual medium, because sometimes you could visualize this. So you get these huge, you know, landslide districts and then that means that you can spread Republican votes out more effectively, right? So, that you can create more majority Republican districts.
And to me, the 2018 election is the sort of masterpiece of this map, which is an election that Democrats won statewide. So in terms of the raw amount of votes cast for Democratic state legislative candidates versus Republicans, there were more. And they ended up with like 40 percent, like the Republicans almost had a super majority in a year they lost the majority.
Eric Holder: Right, exactly right. I mean they ended up with like close to 65 percent of the seats in the Wisconsin State Legislature, even though they had fewer of the popular votes. And that is a testament to the gerrymander that they drew in the way that I described back in 2011. And that has meant a whole bunch of things in the lives of the people of Wisconsin where, you know, you’ve not seen the expansion of Medicaid, where you have seen these Right-to-Work laws put in place.
All things that don’t necessarily, you have guns insanity in Wisconsin, a whole range of things, reproductive rights, a whole range of things that are inconsistent with the desires of the people of Wisconsin. And yet you can do them because if you’re in a gerrymandered safe seat doesn’t really matter. You can do things inconsistent with the desires of your constituents and face no electoral consequence.
Chris Hayes: Yes, I think one way to put it is that the governance of Wisconsin has been far to the right of the median Wisconsin voter. Like —
Eric Holder: Sure.
Chris Hayes: — it is governed like a Southern state in many ways. I mean like a state that’s a 65/35-state. And there are states like that and those states are governed that way. And that’s kind of, it is what it is. Wisconsin is not that. It has been gerrymandered into that and that is allowed the Republican Party to govern it this way. Now there was this sort of multi-year process of winning, first winning the state with Tony Evers and then winning this election for the state Supreme Court. That state Supreme Court has thrown out these maps now as being inconsistent with and violations of the state constitution.
Before we get to that, one obvious thing you would say is, look, the constitution guarantees to every citizen of a state, a republican form of government. That’s taken to mean a democracy. Like the constitution means that the state of Alabama can’t decide we’re going to be a dictatorship. That violates the U.S. constitution. It gives the states a lot of leeway in how they structure their governments, but they have to be democracies.
And I think there’s a case you can make, a strong one, that Wisconsin hasn’t really been a functioning democracy under this set of maps. That they’ve essentially untethered democratic accountability. The Supreme Court ultimately ruled that it was not going, under John Roberts and the sort of conservative majority, that it was not going to wade into that, right. That the Supreme Court basically closed off the avenue that says you could challenge these maps that are partisan gerrymanders at the Supreme Court.
Eric Holder: Yes, Supreme Court made the determination that these were, in essence, political questions that were not capable of being resolved in the federal court system. In spite of the fact that when those cases were progressing, the challenges were progressing through the federal court system at the district court level. And even at the appellate court level, federal judges had the ability to say, no, this is inconsistent with the United States constitution and therefore, these maps need to be redrawn.
You get to the United States Supreme Court and five Justices, five-four decision, ultimately make the determination that these are, in fact, the kinds of things that should not be brought, cannot be brought in federal courts. And as a result, we had to start bringing litigation in the state court system. But the decision by the Supreme Court to, and again, five Justices of the Supreme Court, as opposed to all the other judges on the Supreme Court and all the other judges at lower levels who looked at these. But that judgment has really had a negative impact on our ability to get at this problem of partisan gerrymandering.
Chris Hayes: And we should say, and I don’t want to go too deep into the sort of jurisprudential weeds here, but we’ll just say what Wisconsin’s doing isn’t some new thing, the Wisconsin legislator invented. It has been used for decades and had been used as a means of guaranteeing white supremacy, particularly in the south. So, here’s an example, let’s say you have a city that’s 50 percent white and 50 percent black, okay. Well you draw four districts for your city council. Three of them are in the white portion and one of them represents the black portion of the city. And lo and behold, look what you got. You got a three-one majority —
Eric Holder: Yes.
Chris Hayes: — all the time, guaranteed. And there was a combination of the Voting Rights Act and all this, and a line of cases starting with Baker v. Carr, and the one-person, one-vote jurisprudence, that basically says like, you can’t do this, you know.
Eric Holder: Right.
Chris Hayes: And what’s happened is the court has ended up in a place in which it’s still technically unconstitutional and a violation statutorily of the Voting Rights Act to do that kind of thing for racial reasons. But you can draw very anti-democratic partisan gerrymanders and the court says it’s okay.
Eric Holder: Yes and that’s a hell of a thing to say, when you think about it, you know. The court says, all right, racial gerrymandering is inappropriate because of the Voting Rights Act. But you can, in essence, disenfranchise people on a partisan basis and well, you know, that’s okay with us. That’s just part of the American political system, as opposed to saying, well, you know, that’s inconsistent with our founding ideals, inconsistent with the constitutional notion that the American people decide, voters decide the direction, the policy direction of the nation.
And the court has simply wiped its hands of that and said, no, that’s something for you all to deal with. And they also do that in spite of the fact that there’s empirical evidence that shows what the negative impact of partisan gerrymandering is. It’s not as if we’re talking about something that’s theoretical. We can look at what that has been and we can also look at history. You know, I certainly I’m focusing on what Republicans are doing over the course of these last 10, 12 years or so.
But Democrats did a heck of a lot of gerrymandering. Both parties have done a lot of gerrymandering during the course of the history of this nation. And you know, what we have always said is we’re not trying to gerrymander for Democrats. I’m simply trying to make the system fair because I actually think that if the system’s fair Democrats, progressives, you know, we’ll do just fine. We don’t have to put our thumb on the scale.
Republicans are concerned that if the people truly have the ability to express themselves through voting, that they are not going to win. And they’ve made peace with the notion that they will be a minority party in terms of popular support that has majority power. They’re okay with that. They’re okay with what I’ve come to call, a political apartheid system. They’re fine with that.
Chris Hayes: And in Wisconsin, they have been fine with that. And they have been, even though they lost the governor’s house, they’ve had this, I think, super majority or near super majority in one or two of the Houses for a lot of that time.
Eric Holder: Right.
Chris Hayes: They then lost this Supreme Court race, that they’ve now lost this court case. And there are now, I mean it seemed improbable. I remember talking to a few people who were working on this a few years ago and they said, well, we got to keep the governor’s mansion, got to win that statewide race. And then, there’s going to be this opening of the Supreme Court. And then we got to win that. And then we got to bring this case and then maybe we can get new maps.
I thought, whew, that’s quite a parlay that you’ve put together for yourself. And yet lo and behold, basically, I think, a few days ago the Republican Assembly Speaker knocked over his king and said, we can’t control where these maps are going to be. We’re going to get new maps.
Eric Holder: Yes, what you just said is really important to focus on. Yes, it did take a long-term effort. I mean we were actively engaged in like four Supreme Court races, won three of them, worked hard to get Tony Evers elected. And it was going to take time and that’s one of the things that we’re trying to do at the NDRC, which is to play the long game. You know, Democrats and progressives, we get episodically engaged, involved in our civic life, in things political.
And that’s not the way in which you’re going to get the kind of systemic changes that are necessary. Sometimes it can be an election and things can change that way. Sometimes you get passed in a state, as we did in Michigan, put in place an independent redistricting commission and that changed everything. But in other states, it means it’s going to take five years, six years, seven years, you know, three, four election cycles of different races.
But that’s what we were committed to then and is what we’re committed to now. Because the reality is we’re still in an era, you know, normally, as you said, you had the census one year, redistricting the following year, but now this redistricting battle goes on and on. We are now actually almost in a perpetual redistricting fight.
Chris Hayes: And part of the reason we’re in that battle, at least this is true at the congressional level, where we’ve also seen a bunch of fights and we’ll get to that. But before we get to those congressional cases, we’re talking about state legislative districts in the case of Wisconsin, is that we should go back to remind everybody of Shelby County. Because there used to be a sort of built in redundancy, there used to be a built in check to this system, which is the Department of Justice reviewing proposed changes to make sure that they weren’t violating these sort of basic democratic principles, the Voting Rights Act and the Constitution that was called preclearance.
And the Roberts’s court in 2013 destroyed that provision, just basically got rid of it on sort of weird technical grounds about the formula for who was subject to it and who wasn’t. But what effect, I mean we’re living in the post-Shelby world but basically there was this process that used to run through a Justice Department that you oversaw —
Eric Holder: Right.
Chris Hayes: — that was doing all this work that just, we got rid of that.
Eric Holder: Yes, I mean the Shelby County case in 2013, another five-four decision, the court essentially took away from the Justice Department, and we’ll have to get all little technical stuff, but essentially took away from the Justice Department the ability to preclear election-related changes in states that were covered by the Voting Rights Act, principally states in the south. But not always, there were other portions of the country, right.
Chris Hayes: Parts of New York.
Eric Holder: Parts of New York were actually covered by the VRA. And as a result of taking that preclearance authority away, it meant that states were free to do a whole variety of things that the Justice Department would have challenged, would have won in court. But the other thing was, it also had a prophylactic effect with the Justice Department having that ability. States didn’t even try to do the kinds of things that they knew would violate the Voting Rights Act.
One really stark example, we were suing Texas for a bunch of voter suppression, things that they were doing. Election was held, Donald Trump becomes president, Jeff Sessions becomes attorney general. And he moves the Justice Department from suing Texas to defending Texas.
Chris Hayes: Right.
Eric Holder: In the same lawsuit. The impact of that decision has been pretty stark. Since Shelby County in 2013, we’ve seen at least 1,700 polling places around the country closed, would have not happened if we had the authority, if the Justice Department had the authority that it once had. We’ve seen huge voter purges disproportionately happening in communities of color. That would not have occurred otherwise.
And so this is, when you see these long lines in communities of color, especially in the south, you know, part of it might have to do with local administration of elections. But a lot of it also has to do with the way in which the state legislatures, not federated by a strong Voting Rights Act, has simply allocated resources or drawn the lines or done things to encourage or discourage the ability of people to fully participate.
And it’s also why Georgia puts in place. People say, well, why does Georgia say that you can’t give people food and water while they’re waiting in line? Well, alright so you do things, so that you create these long lines. And then you say, you can’t give people in the hot Georgia sun, whatever, you know, food or water with the hope that maybe 1, 2, 3 percent of the folks will say, I can’t do this and leave the line. And we know in these close elections, 1, 2, 3 percent difference in the black vote can mean the difference between a Senator Warnock or his opponent.
Chris Hayes: More of our conversation after this quick break.
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Chris Hayes: Getting rid of preclearance to me also has been bad. It’s bad on the substance for all the reasons you said. But I think it’s also been like very insidious for our politics because it’s meant as opposed to having some sort of actual formal system in the civil service, in the bureaucracy of the government to sort of go through and evaluate, okay, what will this effect be? It’s this constant kind of Hobbesian battle now, right?
So, the states maximally push as far as they can, you know, Texas or Georgia, and then they get sued and then it all takes on this sort of partisan valence, right? It’s like there’s Marc Elias, who’s a Democratic lawyer is suing Georgia, which is a Republican state. And like the old way I think was just actually better for civic unity, for lack of a better phrase, than this kind of —
Eric Holder: Yes.
Chris Hayes: — contest in the courts every single change.
Eric Holder: No, I think that’s right. You know, Donald Trump has had a negative impact on the perception of the Justice Department. But I do think that people when they hear the Justice Department is suing, fill in the name of the state, because of, filling the name of the reason, there is a feeling that something neutral is —
Chris Hayes: Right.
Eric Holder: — happening here as opposed to, and you know, I love Marc Elias and —
Chris Hayes: Yes.
Eric Holder: — Marc has worked with us at the NDRC, but people see him as a person who has a partisan bent (ph) and that’s fine, you know. I mean they —
Chris Hayes: Yes, it’s just different than the Department of Justice. I mean the Department of Justice —
Eric Holder: Right, right.
Chris Hayes: — represents all of us.
Eric Holder: Right, yes. And so that, you know, by taking that preclearance authority away from the Justice Department, it reduced the ability to police that which states were doing or actually pushed the ability to police what states were doing into organizations and lawyers like Marc Elias, NAACP, Legal Defense Fund, you know, Common Cause, all of whom and all of which seemed to have kind of a progressive, left-leaning tint to them.
And people have the ability then to look at these cases and say, well, this is just something that’s political, as opposed to something that it really is, which is, this is democracy challenging folks. And this is not good for the system.
Chris Hayes: Let’s talk about the Department of Justice since we just talked about it. And we talked about it as a sort of not neutral arbiter, but at least representationally embodying the American people because it’s an arm of a federal government that elects a president, who is elected by the whole nation, although using a cockamamie scheme called the electoral college. I have come to see the Department of Justice, we end up thinking about it a lot because I think it’s a strange part of American constitutional structure.
So, I want to start with a little bit of an abstract question, if you will indulge, and you could, you know, say, I don’t know. What do you think the founders would make of the modern Department of Justice? It doesn’t sort of exist in the Constitution, its operations. There’s an attorney general starting in 1789, but he’s kind of different than what the attorney general would become. The Department of Justice gets sort of stood up after reconstruction. It’s part of a kind of judicial reform though.
It also works on enforcement of sort of Anti-KKK laws in the south and the reconstruction south. But the modern Department of Justice has a strange status as both part of the Executive under Article II an independent of it in certain crucial ways. And that tension to me is an unresolvable one. And I wonder what you think the founders would make of it.
Eric Holder: Yes, I think you have two sets of founders to ask that question up. Those folks who put the government together back in, you know, the late 1780s and then that second set of founders after the Civil War.
Chris Hayes: Yes.
Eric Holder: And I think that second set of founders would have said, you know, the Justice Department, as it exists now, when it is functioning properly and that’s a big if, when it’s functioning properly is actually kind of consistent with the way in which we think a Justice Department ought to be. And it’s a positive thing for our democratic system. It’s neutral, it’s enforcing federal laws, it’s trying to protect the rights of various people.
The early founders, I’m not sure. I’m not sure how they would have seen it. They might have thought, well, you know, this is something that’s protective of people and not protecting, you know, moneyed interests, not protecting those people who actually put the nation together. It might have looked a little askance —
Chris Hayes: Yes.
Eric Holder: — at this independent DOJ. But I think that notion of independence while being a part of the administration and recognizing that there is that tension is something that’s critical. I remember doing my confirmation hearing. Senator Pat Leahy, been Chairman of the Judiciary Committee, he said, you know what? You got to understand something. You’re the attorney general of the United States. You’re not going to be the Secretary of Justice.
Chris Hayes: Right.
Eric Holder: You’re different —
Chris Hayes: Right.
Eric Holder: — than every other cabinet officer. And that’s going to necessarily potentially bring you into conflict with your president and AGs who don’t understand, that sometimes you got to do something that the White House doesn’t want, but the guy who gave you the job doesn’t want. If you don’t have that understanding, that’s where Justice Department’s get in trouble.
Chris Hayes: Well, this independence of the Justice Department is such an important point right now because it ends up being an enormously important constitutional protection. And as we conceive of what might be a second Trump term, possibly, where he has basically said, he’s going to use it to prosecute his enemies. Now Jeff Sessions, I think, was a terrible attorney general in most ways. But on this question of independence was decent.
He was not completely a supplicant to Trump. He didn’t just do what was ordered. And he had some sense, I think, deep within his person and how he conducted himself of this notion of independence. That it was important that he be independent. He appointed a special counsel. He did a bunch of other things. William Barr, much less so, right. William Barr much more of a sort of lackey.
The question becomes like, imagine a second term with a vacancy appointment, right? So, a temporary AG, not confirmed by Senate. And Donald Trump says, I want you to open criminal investigations into Joe Biden and Michigan Governor, Gretchen Whitmer, and Chuck Schumer and —
Eric Holder: And Eric Holder.
Chris Hayes: And Eric Holder. So, what is protecting us from that eventuality, other than the norm abiding of an attorney general, who recognizes that’s totally unacceptable?
Eric Holder: Well, you got at least one protection and that’s the career folks who work at the Justice Department. But I caution everybody what Donald Trump says he is going to do, which not to politicize the Justice Department but to weaponize the Justice Department, is something that could come to pass. And he’s had a term to learn how to weaponize the Justice Department.
And so it won’t be just who is the attorney general. It will also be who is the deputy attorney general, who is the head of the criminal division in the Justice Department, who are the various U.S. attorneys who populate the U.S. attorney’s offices around the country, who will these U.S. attorneys hire? Because you could have a whole bunch of career people say, you know, that’s crazy. We’re not going to do that kind of stuff. But new employees hired by these new U.S. attorneys could in fact go to courts, in panel, grand juries and start up investigations of the very people who you just talked about.
Now you may ultimately get to a place where even though these are bogus investigations that they have done, that you can’t win in court, you will generate cases that undoubtedly will be reported on, that will have a negative impact on the reputations of the people who come under investigation and will have, I suspect, some kind of cowing impact on people who are the enemies or perceived to be enemies by the president in terms of the way in which they express that opposition.
You know, if you’re a congressman and you’re against what Trump’s going to try to do with NATO and you want to raise your hand and you know that if you do that, well, the Justice Department is going to just start picking through your life to see if there’s a way in which they can just gin up an investigation. Forget about a prosecution or a victory in a criminal case, just an investigation.
Chris Hayes: Yes.
Eric Holder: And what’s the impact of that going to be on your reelection efforts and just your reputation, you know, more generally. So, this is something I think we got to take, you know, be very, very mindful of, but it is really kind of the norms. It is the norms that have to hold and I think that he will just try to blow through.
Chris Hayes: Yeah, I mean at one level, right, there’s a constitutional protection for due process, which this kind of thing would be a violation of. And there’s the protections of a grand jury and, you know, for actual prosecution. But your point, which I think is the really scary one, right, is that you can make a lot of pain for a person through just investigation. And he seems very focused on that. I mean he basically is threatening to do it.
Every time he says, look, if I don’t get immunity, then every ex-president will be subject to this. I read as him saying, we’re going to do this to Joe Biden, if I get into office. I mean I think it’s plain as day that’s the promise but it’s more than just a criminal division. I mean one of the forgotten stories of the Trump administration —
Eric Holder: Yes.
Chris Hayes: — is that the Trump Department of Justice stepped in to block a merger that Time Warner wanted to do with AT&T I believe. And they blocked it. It was sort of surprising because the sort of progressive anti-monopoly folks wanted them to block it, and that was not the people running the Trump Justice Department. And later it was revealed, I don’t think it’s quite smoking gun, but I think we have sufficient evidence that it was because he was mad at CNN, which is owned by Time Warner for their coverage and its First Amendment protected speech.
That’s really wildly dangerous stuff. And we’ve seen in places like Turkey and Hungary and other places, that is a very common means by which authoritarian sort of presidential dictatorships influence democratic landscapes. And I’m curious to hear what your thoughts are on that.
Eric Holder: Yes, people, in a way that I just described, focus a great deal on what the authority of the Justice Department is when it comes to its criminal authorities. You know, the ability to investigate and to indict people, indict corporations, so that’s one thing. But the Justice Department is composed of a whole range of other divisions that can be used improperly to advance the agenda of a corrupt president or to go after, again, the perceived enemies of a president.
There’s an antitrust division, there is a civil division, there’s an environmental, natural resources division. There are a whole range of divisions within the Justice Department, that if used inappropriately, can have an impact on almost every component of our lives, whether it’s in commerce, whether it has to do, as we talked about before, with the criminal law, when it comes to the media.
I mean there are a whole range of things. I mean if General Motors decides that it wants to, you know, continue making electric cars and emphasizing that, and this is something that, for whatever reason, Donald Trump thinks that he doesn’t want to have occur.
Chris Hayes: Yes, he said that.
Eric Holder: Just go through the menu of, you know, what’s at the Justice Department, which division should we sic on —
Chris Hayes: Right.
Eric Holder: — General Motors to go after them and come up with a way in which we make that conversion to EVs difficult, if not impossible.
Chris Hayes: We will be right back after we take this quick break.
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Chris Hayes: One of the other areas where you get sort of wrapped around the axle a bit with the Justice Department is when the Justice Department has to investigate people in the administration, that the sitting administration that is the president that appointed the attorney general. This happens from time to time. We’ve seen, in my lifetime, multiple special counsels be appointed. Patrick Fitzgerald under George W. Bush, who was a U.S. attorney who’d been appointed by Bush. So, it wasn’t from the opposite party.
Robert Mueller appointed by Jeff Sessions and Robert Hur, a Trump appointee, who was brought back into the Justice Department for his role investigating of Joe Biden’s handling of classified materials. First of all, as a person who wielded that power as attorney general, what’s the calculation there? When you’ve got to figure out, am I naming a special counsel and who’s it going to be?
Eric Holder: Yes, I mean, you know, for me, there were a couple of instances where the Republicans were howling about the need for a special prosecutor, special counsel to look at. I remember there were some leaks or something, it’s stuff that involved people in the administration. And what I decided to do was to farm those cases out, take them out of main justice, which is perceived as being more directly under the control of the attorney general tug.
Just give them to sitting U.S. attorneys, people who I thought had, you know, good judgment who had a good amount of experience and just had them do the cases. I think going to a special counsel is something that you should do extremely reluctantly. Now, sometimes the political pressure and the desire for a decision to be seen as apolitical kind of pushes you in that direction.
And if there are allegations against the president or a former president, I can see how, you want to go with a special counsel. But you’ve then got to be really careful about who are the people who you appoint. And I looked at a, I thought it was very interesting, looking at, I think, of tweet or thread that you did. We see all the special counsels are Republicans.
Chris Hayes: All of them.
Eric Holder: You know, they are all Republicans. And it’s almost as if Democrats don’t have the capacity to be fair or to be perceived as fair. And that tweet is something that I think ought to be kind of posted someplace in the Justice Department. So that if this ever happens again, people don’t default to, well, who was last Republican, fill in the blank, who might be the one to appropriately conduct this investigation?
Chris Hayes: Well, I think that gets to the point that you made about perception, right? Because what’s interesting about all these questions that we’re talking about, about sort of executive power flowing through the Department of Justice is it’s the place where sort of law and politics and will to power all meet, right? There’s two ways of thinking about the law.
Two extremes, one pole is like this kind of, and sometimes I hear this on our air, it’s like prosecutors operate under the rules of evidence and the law and there’s no political consideration. And everyone is just these, you know, law blindfolded, legal robots doing their thing and la-la-la. And then Trumpian vision, which is like this totally cynical will to power. The law is just fancy language to dress up force coercion and all these things, right?
And politics and sort of war by other means. And those are these two poles of thinking about it. And I think neither is true. And the truth is somewhere in the middle, but the Department of Justice is where you’re dealing with all this. So, when you say, you’re thinking about this perception, right, this sort of public perception. It’s like, that’s where you get appointing the Republican, because your sense is this won’t have credibility to the audience of the American people I wanted to have, Republicans, if it’s a Democrat, because they don’t trust them.
Whereas in the other direction, I’m less concerned about that, right, because there’s some asymmetry here. We see it in the polling, right. So then you’ve got a situation where you’ve got Robert Hur writing this report which, I don’t know if you’ve read it, parts of it struck me as, again, to go back to those two poles, parts of it struck me as very fair-minded, legal analysis. And parts of it struck me as just like dripping with like partisan condescension from the first page where he’s sort of talking about Joe Biden as this narcissist who thinks —
Eric Holder: Right.
Chris Hayes: — he’s a great man and wants to save all his papers.
Eric Holder: Yes, I mean you have Hur report, for lack of a better term, where you’ve got a bunch of, I think, pretty good legal analysis wrapped in a whole bunch of unnecessary, inappropriate political analysis and even personal analysis, I guess. As you said on page two, you know, talking about Joe Biden thinks of himself as a person of presidential timber. I’m not exactly sure what that has to do with the determination of whether or not he held onto inappropriately classified materials.
Chris Hayes: Also, by the way, he was correct. Like the other thing is like the whole subtext there is like, get a load of this guy. It’s like, the guy is the president, so —
Eric Holder: He is the President.
Chris Hayes: — if he thought he will be president someday, you know, maybe he was right.
Eric Holder: Yes, yes, yes. And so, you know, the way I’ve looked at it, as I’ve read the report, I’ve read most of it, skimmed all of it, is that you’ve got in Hur a person who is unbelievably unsophisticated. Because what you have to remember is RT drafts the report, you know, the lawyers for President Biden have an ability to look at it.
And they raised with him the very things that he’s being criticized for now which is, you know, you’ve kind of talked about his inability to remember things, sympathetic old man and all that kind of stuff. And nevertheless, decided to keep that in the report, so it’s unsophisticated to think, well, you know, this has gone, I’m walking into a political firestorm, if I do that. So, he’s either unsophisticated, a rube, I suppose or —
Chris Hayes: He knew what he was doing.
Eric Holder: — he knew exactly what he was doing and made the determination or part of his calculus was, you know, I’m a young guy and I want to be appointed to some other position by a Republican President. Fill in the blank what that position might be and so I’m going to do all that I can to ensure that I don’t lose my Republican bona fides here. And I will put in, although I’m going to say that we’re not going to prosecute President Biden, I’m going to throw enough dirt in here so that I will at least be seen as somebody who’s palatable, who still has a Republican future.
Chris Hayes: Since you occupied this position as attorney general, and I really think it’s one of the most fascinating unique positions in the entire U.S. government. I don’t want to end on a kind of scary note because I think that the place that we started about, the gerrymandering conversation is a very hopeful one. I mean even just in the fact that Wisconsin is going to have new maps and what seemed an improbable uphill battle really for restoring a Republican form of government in that state, is now on the threshold of victory basically.
But as we look at the possibility of one of the two nominees for each party, being Donald Trump, and what he’s promising. Like how freaked out you are, that the thought of him returning on a scale of 1 to 10, particularly the DOJ component? The sort of, they can see appointment, you know, someone gets put in there temporarily without Senate confirmation. Because I do think Senate confirmation is a pretty important check and going buck wild basically.
Eric Holder: I mean I don’t know how you want to describe this. I don’t know, scale of 1 to 10, 10, 3, or 4 alarm fire. I don’t know whatever the highest number.
Chris Hayes: Yes, the highest, yes.
Eric Holder: Yes, it is that. The concern that I have for the reelection of Donald Trump, whether it is with regard to breaking up NATO, the weaponization of the Justice Department, there’s a whole range of things that give me, you know, that make me quite concerned, fearful of his potentially having presidential power again. But from that fear comes a determination on my part to try to make sure that, in fact, that does not happen.
And also, to ensure that other parts of our system are as fair as they possibly can be. That the democracy that exists outside of Washington, D.C. is strengthened, is enhanced. The “New York Times” said looking at the efforts, our efforts in terms of gerrymandering, that this is the fairest redistricting that we’ve seen in the last 40 years, what happened in 2021 and is continuing. About 78 percent of the state congressional delegations are now considered to be fair.
It’s up from like, you know, in the 50s before we started. And that’s a pretty good number, but that also means that 22 percent are not fair. And you see those located in places where you have Republican trifecta control, you know, Texas, Florida, Georgia, places like that, used to be in Wisconsin. So, you know, the work that we have done makes me hopeful, but I think our history also tells us that unless you have an engaged and focused American people, all kinds of inappropriate things can happen.
And I do think that we have an awakened American electorate here. You know, the Dobbs decision certainly has awakened people when it comes to reproductive rights. I think as the campaign wears on and people hear about the kinds of things that Trump is proposing, we will get more people engaged. So, I’m scared. I am nervous, but I’m also hopeful and I am determined to try to do all that I can, to simply make our system fair. You know, let the people decide.
Chris Hayes: Yes.
Eric Holder: Let’s have as neutral a system as we can. Let’s make this a battle of ideas as opposed to who’s best at drawing the lines. Let’s make this a battle of ideas as opposed to who can misuse power as I think Trump inevitably would do.
Chris Hayes: Eric Holder, former attorney general, first black attorney general in this country’s history. He won’t be the last, I’m confident in saying. A son of the Bronx, born in the Bronx, though not raised there, raised in Queens, if I’m not mistaken and a graduate of Stuyvesant High School. Though, we will not hold that against him. Eric Holder, it’s great to have you on.
Eric Holder: Let’s hear it for Stuyvesant High School.
Chris Hayes: Once again, great thanks to Eric Holder, former U.S. Attorney General, first black U.S. Attorney General, Chairman of the National Democratic Redistricting Committee.
We’d love to hear your feedback on this one as always e-mail at WITHpod@gmail.com. Get in touch with us using the #WITHpod on various social networks. You can follow us on TikTok by searching for WITHpod. I’m also on TikTok under chrislhayes. You can follow me on threads and other places, chrislhayes threads, Bluesky, and what was formally known as Twitter.
“Why is This Happening” is presented by MSNBC and NBC News. Produced by Doni Holloway and Brendan O’Melia. This episode was engineered by Fernando Arruda and Harry Culhane. And it features music by Eddie Cooper. Aisha Turner is the executive producer of MSNBC Audio. You can see more of our work, including links to things we mentioned here by going to nbcnews.com/whyisthishappening.
“Why Is This Happening?” is presented by MSNBC and NBC News, produced by Doni Holloway and Brendan O’Melia, engineered by Bob Mallory and featuring music by Eddie Cooper. Aisha Turner is the executive producer of MSNBC Audio. You can see more of our work, including links to things we mentioned here by going to NBCNews.com/whyisthishappening?