Eric Holder’s Damnable Legacy: Impunity for the Rich and the Death of Due Process

By Glen Ford

October 1, 2014

By any rational standard, Eric Holder has done unprecedented harm to the most fundamental principles of due process and equal protection of law in the United States. Over the course of six years, and in closest collaboration with fellow Black Ivy league lawyer Barack Obama, Holder has also tinkered around the (mainly rhetorical) edges of the Mass Black Incarceration State, and sought to preserve some safeguards against the return of certain Jim Crow electoral practices. However, on balance, the first Black attorney general’s record is an insult to the very concepts of human equality and the rule of law – a societal disaster.

Eric Holder’s legacy must be weighed and measured in ways that history is likely to judge him, based on the effects of his decisions and actions on future generations. Legacies are not yesterday’s headlines; they are the enduring impacts of men and women on their fellow humans and the physical world. It is true that Benedict Arnold was a very capable general and Adolph Hitler achieved full employment with rising wages in Germany, but such facts do not define these men’s historical legacies.

Eric Holder’s record on voting rights and criminal justice reform – a mixed bag, at best – pales in historical significance to his explication and application of his boss’s preventive detention law. In interpreting the National Defense Authorization Act of 2011 as meaning that due process does not necessarily mean having access to the courts, Holder quite literally puts the lives and liberties of every human being within reach of American “law” in heretofore unprecedented danger, subjecting them to imprisonment without charge or trial for as long as the State feels necessary. It is as if the Magna Carta never happened. 

Although President George W. Bush claimed inherent executive power to imprison without trial, he never dared attempt to enshrine that claim in statute, knowing Congress would reject it. It took two Black Democrats – a Constitutional lawyer and his “most liberal” cabinet member – to push preventive detention through Congress.

Having abolished due process, this dynamic duo vastly expanded the dark universe of “secret law” – laws that cannot be defined, or their justifications explained, to the public that is governed by these laws. “Secret law” is, of course, no law at all; it is whatever the State says it is, or refuses to say – the slamming of the prison gate on the rule of law.

Under Eric Holder’s supervision, the U.S. Justice Department has institutionalized immunity from prosecution for the ruling financial class. There is no precedent in U.S. history for such an abomination except, possibly, the impunity enjoyed under slavery and the post-Civil War Black Codes by white men who committed crimes against Blacks. Blacks were effectively barred from testifying against whites in criminal cases, to protect the white supremacist order. In testimony to the Senate Judiciary Committee, Holder admitted that, in deference to the harm that might befall the national and world economic order, he hesitates to prosecute large banks  – they are too big to jail.

With these two history-shaking initiatives Obama, with Holder on point, has negated due process of law for the general public of all races, while simultaneously bestowing impunity from criminal prosecution to an overwhelmingly white male financial class. The word “regression” does not begin to describe the giant leap backward that is Eric Holder’s historical legacy. Nothing else Holder or Obama has said, done, or verbally indicated they would like to do, remotely compensates for the immense barriers to civilizational progress they have jointly erected since 2009. They have laid the legal cornerstones for fascism under the rule of the white filthy rich. Damn them to eternity!

As a counterpoint to these high crimes against democracy in general – and, especially against those classes historically oppressed by wealthy whites in the U.S. – Holder’s boosters and apologists cite his defense of the Voting Rights Act, most notably, the Justice Department’s opposition to Voter ID laws. There is nothing heroic about Democrats defending the voting eligibility of Black people, who make up 25 percent of the Democratic Party. On a practical and moral level, nothing less should be expected.

Yet, the Holder Justice Department refused to challenge Michigan’s draconian emergency financial manager legislation that effectively disenfranchised the people of Detroit and over one-half the Black population of the state. Clearly, Holder and his boss don’t give a damn about Black voting rights when it conflicts with corporate plans to bankrupt and then remake the nation’s largest remaining “Chocolate City.” The financial ruling class’s interests trump Black citizenship rights every time, at the Holder Justice Department.

Moreover, the Detroit bankruptcy precedent will be applied to cities across the nation in coming years, as corporations move ever more aggressively to seize public assets and ethnically cleanse valuable urban land through relentless gentrification. Eric Holder has helped set the stage for a new wave of assaults on urban Blacks and their electoral rights as a class – a legacy that far outweighs his politically required due diligence in opposing Voter ID laws.

Regarding mass Black Incarceration, the Obama administration has not led the way in criminal justice reform, although it has talked a good propaganda game. Since the mid to late Nineties, even right-wing Republicans have spoken out against mandatory minimum sentencing and unsustainable growth in prison populations – a stain on the American international image that is comparable to the stench of Jim Crow in the Forties, Fifties and early Sixties. The U.S. Congress had for some time been in a mood to repeal 100 to 1 crack cocaine penalties (in favor of 18 to 1). The administration didn’t need to spend much political capital in supporting these issues, and showed its true colors by opposing retroactive release of thousands of inmates convicted under the old law.

Holder brags that the federal prison system, over which he is boss, last year registered its first decline in population since 1980. However, federal prisons have lagged behind the states on that score during most of Holder’s tenure. Aggregate state prison populations declined for three straight years – 2010, 2011 and 2012 – before registering a slight increase in 2013. The general trend is widely attributed to state government cost cutting, while Holder has regularly asked for and gotten budget increases for the federal prison system. On balance, Holder’s performance on prisons compares badly with the aggregate of the 50 states, 29 of which are run by Republican governors. His prison reform legacy is weak, if not outright phony.

Black people want desperately that the Obama administration be viewed as “successful” – by whatever standard is employed. African Americans fear the fitness of The Race will be judged by the Obama team’s performance – that the Obama-Holder legacy is Black America’s collective legacy. Most white people probably think that way, too.

However, the reality is that Eric Holder and his boss have done incalculable damage to the life prospects of Black people, who are most in need of a society based on the rule of law, rather than the whims and prejudices of whites, and who have been most victimized by the rich white financial class that Eric Holder has made immune from all legal constraints. If anyone should condemn these men to a legacy of eternal shame, it is Black people.

BAR executive editor Glen Ford can be contacted at