Other Takes: Rating the tenure of outgoing U.S. Attorney General Eric Holder
Holder let top execs off the hook in the financial crisis
Attorney General Eric Holder has efforts and achievements to be proud of, no doubt, but will probably be remembered above all for something he didnt do: prosecute top executives for their role in the 2008 financial crisis.
He declined to hold senior executives accountable not because he wished to be soft on financial crime but because of a strategic error. In a 1999 memorandum, written when he was deputy attorney general under President Bill Clinton, hed explained how prosecutors could charge corporations as criminal enterprises. In 2002, the testing of that doctrine on Enron Corp. auditor Arthur Andersen caused the company to fold, and thousands of innocent people lost their jobs.
During and after the financial crisis, Holder kept the focus on corporations but moved more cautiously. The inhibition was understandable. Yet it arose because, under Holders leadership, prosecutors lost sight of what mattered most: holding individuals, not companies, accountable for crimes.
Holders successor should strive to put this right. First, insist that prosecutors taking action against companies charge individuals, too. Second, eliminate nonprosecution agreements, in which prosecutors settle without pressing charges. Third, ask Congress or the Judicial Conference, which drafts changes to the rules of criminal procedure to give judges power to review deferred prosecution agreements.
Its too late for prosecutors to change their approach to what happened in 2008. But that wont be the last financial crisis. Holders successors need to do better.
Excerpted from a Bloomberg View editorial, published Friday.
There were plenty of disappointments during the Holder years. He tried to put Khalid Shaikh Mohammed on trial in New York, then pulled back in the face of congressional opposition. He tiptoed around the financial crisis, led overzealous attempts to punish officials who leaked to journalists and was held in contempt of Congress for refusing to cooperate with an investigation of gun trafficking at the border.
Holders close relationship with President Barack Obama they often vacation together fueled suspicion among critics that the attorney general has failed to vigorously pursue allegations of governmental wrongdoing, from the gun trafficking case to the claim that the IRS targeted conservative groups.
Most of those allegations are nonsense and serve as a reminder that Holder has spent much of his tenure in combat with shrill partisans. Thats not his fault, and his irritation with those critics has been understandable. Like Obama, hes faced obdurate, unreasonable opponents; also like Obama, though, hes occasionally deserved their criticism.
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Other Takes: Rating the tenure of outgoing U.S. Attorney General Eric Holder