Eric Holder’s Parting Shot: It’s Too Hard to Bring Civil Rights Cases

Mike Allen, Politico, February 27, 2015

Attorney General Eric Holder plans to push, during his final weeks in office, a new standard of proof for civil-rights offenses, saying in an exit interview with POLITICO that such a change would make the federal government “a better backstop” against discrimination in cases like Ferguson and Trayvon Martin.

In a lengthy discussion ranging from his own exposure to the civil rights movement of the ’60s to today’s controversies surrounding the shootings of Trayvon Martin and Michael Brown, Holder also acknowledged that he felt some of his own struggles with Republicans in Congress during his six years in office were driven partly by race.

“There have been times when I thought that’s at least a piece of it,” Holder said, adding that “I think that the primary motivator has probably been political in nature . . . [but] you can’t let it deflect you from . . . your eyes on the prize.”

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“I think some serious consideration needs to be given to the standard of proof that has to be met before federal involvement is appropriate, and that’s something that I am going to be talking about before I leave office,” Holder, 64, said.

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The Justice Department announced Tuesday that the Martin investigation had been closed, with “insufficient evidence to pursue federal criminal civil rights charges” against George Zimmerman, the neighborhood watch coordinator who shot the unarmed black teenager to death back in 2012.

Asked if the bar for federal involvement in the civil rights offenses is too high for federal prosecutors to make cases in shootings like those of Martin and Brown, Holder suggested it was.

“I think that if we adjust those standards, we can make the federal government a better backstop–make us more a part of the process in an appropriate way to reassure the American people that decisions are made by people who are really disinterested,” he said. “I think that if we make those adjustments, we will have that capacity.”

Lawyers in the Justice Department are looking into various possible reforms of civil rights law. Depending on their determination, it’s possible that Holder will simply argue about the need for a lower standard of proof rather than propose a specific legislative remedy. Possible changes include toughening hate-crimes laws, which were under consideration in the Martin case, and establishing a broader standard for what constitutes a “deprivation of rights under color of law,” the provision that could apply to the police shooting in Ferguson.

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But when he was asked what book he would recommend to a young person coming to Washington, like his 32-year-old aide Kevin Lewis, who started at the White House at age 26, Holder made a revealing choice: “The Autobiography of Malcolm X.”

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—Considering returning to his former law firm of Covington & Burling, where he was a litigation partner in Washington. He plans to remain involved in President Barack Obama’s My Brother’s Keeper, a mentoring and youth-empowerment program that Holder has said might be the president’s greatest legacy.

—Hoping to work with a university or think tank about setting up an Eric Holder Institute for Race and Justice. Such an organization could serve as a repository for his papers, and as a platform for him to continue his efforts on post-Ferguson issues–building trust between police and communities of color.

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Holder had only praise for Obama, the man who appointed him, disputing the claims of some African-American leaders that the first black president hasn’t really delivered for the black community: “You know, very often, empty barrels make the most noise. And I think there are any number of measures by which you can say that this presidency has been successful in a whole variety of ways, and especially when it comes to people of color.”

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[Editor’s Note: Al Sharpton has also proposed a lower bar for federal civil rights cases.]

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