MAY 03, 2018

Former Attorney General Eric Holder: Be Introspective

This episode was originally released in November 2017.

About this episode’s guest:

  • Served under President Obama as the 82nd Attorney General of the U.S.
  • First African-American to hold the position
  • Currently provides legal counsel to companies and state legislatures
  • Holder’s report on Uber is the basis for the cultural reboot that the company is now executing
  • Important voice on diversity in corporate America

Topics covered in this episode:

Press Play to hear the full conversation or check out the transcript below. You can also subscribe to Office Hours on Apple Podcasts and PodcastOne.

Spencer Rascoff: Eric, great to see you, thank you for having me.

Eric Holder: Great to be here.

Rascoff: You’ve had this extraordinary career in public service from being a judge on the DC Superior Court to US Attorney for Washington, DC, Deputy Attorney General, Attorney General, and now back here at Covington and Burling. I want to start with your time on the bench and learn what lessons did you learn from being a judge that made you either a better prosecutor, better lawyer, or ultimately a better attorney general?

Holder: That’s actually a very interesting question because I was a judge here in Washington, DC when DC was the murder capital of the country. It was a time when we had a per capita murder rate that was higher than any other place in the nation and I saw coming before me on a daily basis this wave, this ocean of young, Black men who should’ve been the future of this city and who I had to send to jail for at times terms in jail that I thought were out of proportion to their conduct as a result of these mandatory minimum sentences that I had to impose as a judge and it was the reason really why I burned out pretty quickly as a judge; I only stayed on the bench for 5 years.

Rascoff: Were mandatory minimums typically on drug charges?

Holder: Yeah, if you possessed with the intent to distribute marijuana, marijuana or any other drug, you were looking at at least a 5-year sentence and then depending on the weight of the drug it could go as high to 10 to 20 years. And these would be non-violent crimes.

Rascoff: And one of the reasons you stopped being a judge was because you were uncomfortable with that lack of flexibility?

Holder: Yeah, I didn’t like that. It offended my sense of justice that I was meeting out these sentences that were inconsistent I thought with the level of misconduct that these people had been convicted of. Now I thought they should go to jail but the question was for how long. And so I transitioned from being a judge to being the US Attorney here in Washington DC where I thought I’d have a greater opportunity on the policies that were in place and that generated those long mandatory minimum sentences.

Rascoff: And has much changed in the world of mandatory sentences in that time?

Holder: Well I think they certainly did in 2013 on the federal level when I announced our Smart on Crime initiative where I remembered those experiences as a judge and announced a whole set of policies that really gave discretion to line prosecutors, to charge offenses in such a way that a person would go to jail for a proportionate amount of time. Now unfortunately my successor, Jeff Sessions, seems to have a different view and he is trying to undo a lot of the reforms that we put in place. And I think the interesting thing there is that those reforms really were among the few things in DC that had liberal and conservative support, Republican as well as democratic support, and his reversals to me are I think distressing and really politically not necessary.

Rascoff: It seems like a difficult environment to appear soft on crime in, and so I guess I hadn’t focused on how much of that is at the discretion of the attorney general rather than legislated at the state and federal levels.

Holder: Yeah, there are only – I say only – about 200,000 or so federal prisoners, you know 10 times that many in state and local jails, so I was talking about what we were doing on the federal level. But you have seen in the states and in some of the reddest states driven by a sense of morality but I think also there are fiscal concerns that have driven states to do the kinds of things that I announced in 2014 for the federal government where they are reducing mandatory minimum sentences and in California I guess you had a proposition out there that essentially let the voters decide how long since should be – what should be classified as a violent crime, how do you deal with the whole question of 3 strikes offenses.

Rascoff: What role does race play in the issue of mandatory sentences, either at the legislative or at the prosecutorial level?

Holder: Yeah, you know I think that there is so much in our nation that is – where race is an undercurrent and I think this is an example. When you think about the ’90s and the whole question of the use of crack the societal response to that was a criminal justice one. Now we’re talking about opioids and it is not seen necessarily as a Black crime. In fact, you see – people at least perceive it as being something that afflicts White communities to a greater extent and so we see it more as a public health problem and I think that’s the right approach.

I want to make very clear I think that the approach that we’re taking now with regard to opioids is exactly right. Public health to those people who are addicted to them, certainly a law enforcement response to those people who deal in opioids, but that’s also the kind of approach that we should have used back in the ’90s when we were as I said before taking those oceans, those waves of young, Black men and putting them in jail, some of whom – some of whom were selling drugs to support a habit.

Rascoff: Let’s shift gears to your time as attorney general and of course being attorney general is such an interesting position for so many reasons but not the least of which is that you’re responsible for – you report to the president but in many ways you’re also responsible for making sure the president flies straight. And so what is that relationship like between the attorney general and the president and where does that reporting relationship become strained because you’re also in a bit of a governance situation with the president?

Holder: Yeah, I think the relationship really kind of varies from president-to-president, from attorney general-to-attorney general. Obviously Bobby Kennedy and John Kennedy had a close relationship. Some attorneys general and their presidents have not been necessarily close and I saw that up close when I was Janet Reno’s deputy. She and Bill Clinton were not particularly close.

I was close to President Obama. We were and are friends and being attorney general while he was president put an unnatural wall in that relationship. There were certain things that I could not share with him as attorney general, things that were the responsibility of the attorney general, a law enforcement decision that I had to make that you could not share, I should not share with the White House.

Departments of Justice get into trouble when that wall is too low, when the White House has the ability to communicate with DoJ, to dictate to DoJ. President Obama is a number of things but he’s a good lawyer I think among many others and he understood that there had to be that distance between us given his role as president, my role as attorney general.

Rascoff: And that’s unique among cabinet secretaries. I mean I can’t imagine that really anywhere in corporate America or anywhere in the public sector somebody would be in a position where they would have to keep secrets from their manager and you’re saying that your manager, the President, you had to keep in the dark on some things.

Holder: No, that’s exactly right and I think Pat Leahy, senator from Vermont, long-time Judiciary Committee member and Chairman of the Judiciary Committee during much of my time as AG said it best. He told me that, “You are not the secretary of justice. You are the Attorney General of the United States and you are fundamentally different than any other cabinet member in this administration.” He said, “You’ve got to keep that in your mind.

Rascoff: One of the other interesting things about attorney general is the diversity of the workforce. So over 100,000 employees, more than half of whom are law enforcement, and only 10 percent of whom are what most listeners probably think of as Department of Justice employees, i.e. lawyers; only about 10 percent of DoJ staff are attorneys. So when you’re leading an organization that large and that diverse how do you do that? What are the tactics that you use to communicate with such a large and disparate and diverse workforce?

Holder: Yeah, a relatively small number of lawyers compared to the entirety of the Justice Department but it is still the largest law firm in the world. Well you know it is an organization of about 120,000 people all around the world and we try to make use of new age technology. I used to give almost weekly taped addresses that we sent out to the field. I was first attorney general in history to hit all 94 US Attorneys’ Offices. It took me 6 years to do it but I thought that there had to be a connection between the attorney general in Washington and the people who I led in different parts of the country and in different parts of the world.

I visited 44 countries while I was AG and always took lots of pictures, had open sessions where people had the ability to ask whatever it is that they wanted. I tried to be as open and as frank with members of the department as I could be and I think that is in large part based on the experience that I had at the beginning of my career. I started at the Department of Justice as just a line lawyer. I spent 12 years there and I remember how distant I felt from the AG. I never got to the 5th floor of the Justice Department where the attorney general sits.

And so when I would have big meetings in the conference room up there I would always say that in addition to whoever the assistant attorney general was, the deputy attorney general, I wanted to have the line lawyer in the conference room, the person who actually wrote the memo that we were going to be in the process of discussing. You could see people walk in as I would have with their eyes kind of wide open and they say, “Mr. Attorney General, can I take a picture,” and you know sure, that’s fine, and I tried to have that personal connection to the extent that it’s possible with that large an organization.

I think that’s important because I was going to ask these people to do pretty extraordinary things, to work long hours, to not get paid extremely well, but if I gave them I thought a sense of mission, a sense that what they did mattered to the leader of the organization that we would be ultimately more successful.

Rascoff: This is one of the themes that I explore in-depth with a variety of executives in this podcast and it’s amazing how consistent this is. Every great leader, whether it’s in the public sector or private sector, technology, non-technology, they say a similar thing here about the importance of connecting with their employees, making sure their employees understand how their work ties to the mission, and really investing in their people as the key to a successful organization so it’s no different at 115,000 employees at the DoJ.

Holder: No and it’s not any different historically. I mean Bobby Kennedy was famous for leaving the 5th floor and his security detail and going to eat lunch in the DoJ cafeteria. I wasn’t willing to make that kind of sacrifice. I know what the food was like down there and so I’d walk down there and shake hands and sit down and talk and maybe drink a Coke but I wasn’t…

Rascoff: The food on 5 is better?

Holder: The food on 5 is better, but I understand just to be fair that the cafeteria is much better now than it was when I was there.

Rascoff: Okay. So you know this is a perfect segue into something more recently now that you’re coming to. One of the tenants of your practice now is these corporate investigations and analyses around company culture and in particular around diversity and inclusion, but more generally about the importance of company culture. So from your perch where you look at all of these companies and look at their cultures and you see good ones, you see ones that are challenged, what should listeners who work at companies like these take away with respect to the importance of culture and what have you learned?

Holder: You know I think companies have, like human beings do, they have DNA. And there’s a culture to a company, there are personalities to companies that can be shaped, that can be molded. And I think that a focus on diversity, trying to make sure that you have people who are judged by their talents and that you do sometimes some things that are uncomfortable in the sense that you don’t hire people who look like you; you use the Rooney rule from the NFL. You require that for positions, for promotions that you look at women, that you look at minorities.

Rascoff: The Rooney rule says that any open position you should interview people from diverse backgrounds for that specific position from hiring anyone in particular, is that right?

Holder: Exactly, yeah, that you have to have a panel that consists of people who are historically underrepresented for whatever the position is.

Rascoff: Does the Department of Justice act in that way or did it under your watch?

Holder: Yep, we did that, and there was as there always is initial resistance to that until you see that it leads to better results, that you have people who you might not have initially considered and then you realize over time, “Wow, I’m getting really better candidates,” and an African-American can do this job in a way that I thought not possible; women in the tech industry are fully capable and simply need the opportunities. And so I think it’s incumbent upon leaders to foster that kind of environment. I think it’s important for the performance of people lower down the chain to be measured. What are you doing when it comes to diversity?

First of all diversity should be I think a prime marker for performance. What are you doing to make this organization function well but also make it more diverse? Because I think at the end of the day organizations that are more diverse, that have the ability to hear a variety of perspectives are going to be more nimble, they’re going to be more receptive to their customer base, and they’re ultimately going to be successful.

Rascoff: I couldn’t agree more. Can company cultures be changed once the cement has dried?

Holder: Yeah, yeah, I think so. I think any company where the cement has dried is destined to fail. You can’t be in the 21st Century and operate as a 20th Century company. You’ve always got to be putting a little water in the cement to use your metaphor and kind of mixing it up. And sure, I think that companies can always be introspective in the same way that we can be as individuals and ask tough questions of ourselves or as corporate entities. What are our strengths? What are our weaknesses? How can we do better?

You know it’s good every now and again and we’ve done this, I’ve done this to be called in by a company to take an objective look, not because they’re under suspicion or because they’re having some sort of public relations issue but just they want to have a fresh set of outside eyes come in and look at the company and say, “Where do you think we are having problems in specific areas?” whether it’s the foreign corrupt practices, diversity, whatever. And I think that’s always a good thing.

Rascoff: So in addition to company culture 1 of the other hallmarks of your more recent practice at Covington has been a marquee client, which is the State of California Legislature. What is the California Legislature hoping to gain from having you by their side?

Holder: California has led this nation in so many different areas, whether it comes to dealing with undocumented people, climate, healthcare, any number of areas and California is just unwilling to deal with an administration here in Washington that might roll back the progress that California has made.

Now I think the legislature has been very responsible in saying that we only want to respond to that which the government in Washington might do, we’re not looking to pick a fight, so where we have seen positions taken by the Trump Administration that are inconsistent with this notion of progress that California has made we have been prepared to challenge then. But where we’ve heard threats about things the Trump Administration is going to do but they’ve not actually done anything the legislature has been relatively quiet.

Rascoff: But the areas where their antennae are most up are around immigration, healthcare, and climate change?

Holder: Yeah, those are the 3 areas that we were engaged to help the legislature with with the understanding that representation could be expanded depending on what happened in DC.

Rascoff: Have you gotten calls from other states?

Holder: We have, none that we’ve made public yet, but California is working with other states and we are consulting with other entities.

Rascoff: Another aspect of your time here at Covington has been fascinating for me to watch, which has been your pretty active engagement on social media, which I don’t think you were engaged on social media when you were attorney general. At the time it probably would’ve been considered sort of outrageous for you to be engaged with social media as attorney general, but can you talk about your social media strategy? What are you hoping to accomplish? Why do you engage in social media and what’s it been like for you?

Holder: Well my social media footprint is not that large.

Rascoff: You’d be surprised though.

Holder: Really?

Rascoff: I mean I – so just this weekend when you chimed in on the Take a Knee controversy about the NFL your tweet challenging President Trump had 105,000 favorites and 42,000 shares or re-tweets and you had another tweet really challenging Jeff Sessions, you wrote, “Number of times over the 6 years that President Obama called and asked me to think about dropping a case, 0,” all caps. That had 30,000 re-tweets and 61,000 favorites. So people are listening.

Holder: Okay, well I don’t – all right, I guess I do have a bit of a footprint there. But my thought is that it’s a difficult thing because I have strong opinions unlike the president who’s got this – President Obama is this Zen personality, I’m this hot-blooded West Indian, and it’s a hard thing for me to see things that I think are being done that inconsistent with the way in which I think government should operate. It’s certainly difficult for me to see the dismantling of the things – the reform efforts that we put in place.

But I also think that it’s not the best thing in the world for a successor – a predecessor to unnecessarily go after his successor. So I’m reluctant to do that. On the other hand there are times when things happen where I feel obligated to speak with the thought that I have some platform as a former attorney general to be the voice for people who might otherwise be ignored or might otherwise not have the degree of attention placed on them. I’m a little surprised actually to hear those numbers. I do these tweets and my daughter says not well, but I’m trying, I’m learning.

Rascoff: I think you’re doing great and I encourage you to continue because it’s a great way for people to get a little glimpse of your unvarnished and unfiltered perspective and opinions on these really important issues.

Holder: Well you know it’s interesting because I put kind of an artificial limit. I said for at least 6 months pretty much whatever happened would just happen and I wouldn’t saw an awful lot and I thought I’d get to September and at that point, 6, 9 months out I’d start to be more vocal and I became more vocal a little sooner than I expected. And now given all that’s happened in the Trump Administration and how strongly I feel about them I’ll probably be a greater presence in social media.

Rascoff: So we’ll close with 1 last question about social media. The investigation into Russian tampering and the presidential election and their use of Facebook and Twitter to sew the seeds of discord in the country, I mean it appears that they were buying advertising trying to get people to show up to Black Lives Matter protests and then also disagree with Black Lives Matter and then other ways even as recently as this weekend on the NFL issue to sort of incite discord in the country. What is your perspective on this emerging scandal?

Holder: I mean it’s extremely disturbing to think that the Russians had that degree of sophistication, that ability to get at people in our nation in the way that they did, in the targeted way in which they did using the platforms that they and that are apparently doing given what happened as recently as this weekend. And so I think that an investigation is appropriate. I think this is something where congress needs to really examine what happened here but I also think it’s incumbent upon people in the tech industry to be a little more forthcoming and to ask themselves some tough questions. Is your platform being used by a foreign government to undermine our nation?

There is – this sounds a little corny but I think it’s real, there’s a patriotic component to American companies that I think needs to maybe say, “This isn’t strictly about business. This is about an attack, an electronic attack on our nation to influence how we are interacting with one another now and certainly an attempt to influence a presidential election.” And so I think a word to the wise would be for those in the tech industry unless you kind of get in front of this you’re going to have things imposed upon you by members of congress. This would be a time to take the lead as opposed to have things dictated to you.

Rascoff: It’s an area of great concern. I agree with you, the general tech MO with respect to the government comes from more of a libertarian bent, kind of “Leave us alone. We’re just an open platform. What people do in our social network or media platform that they will do,” but that philosophy as you point out is quite dangerous and might lead to greater government involvement than they might like had they instead run at the issue and tried to help get to the bottom of it.

Holder: I mean I generally agree with that notion that 1 of the great things about social media is the ability of people to speak with one another in an unfiltered way and I think we shouldn’t lose that. But you know when foreign entities are using these otherwise really productive mechanisms, methods of communicating, we’ve got to face that reality and we’ve got to protect – we’ve got to protect the things that we value the most and among them is the use of these new platforms, these new technologies to communicate with one another in ways that we have not before.

Rascoff: And what would you say to somebody who says, “Oh come on, America has probably influenced half of the elections around the world over the last 50 years. Russia just got caught and we’re always influencing elections all over the place through subterfuge?”

Holder: I’m not sure that I would necessarily agree with that. There are certain things in our history that I don’t think we should be proud of but you know the same nation that probably did some things that were inappropriate was also the entity that put out their radio-free Europe that I remember during the civil rights movement that reported pretty honestly about the issues that were going on in the United States, racial issues that were going on in the United States. So yeah, you know there is a historical concern I would have with some of the things that we have done but I have to deal with the here and now and the here and now worries me a great deal when I see the Russians in particular dealing with our nation, what they’ve tried to do in France, what they’re I’m sure going to try to do with other European electoral systems.

Rascoff: Attorney General Holder, Eric, thank you so much for the conversation and I greatly appreciate it.

Holder: Thanks for having me.

Rascoff: Thank you.