WASHINGTON — Eric Holder, a former No. 2 Justice Department official, has been told that he can become the nation's first African-American attorney general, a person with firsthand knowledge said Tuesday.
While Barack Obama hasn't formally tapped Holder, one person with direct knowledge said "it's his if he wants it." This individual asked to remain anonymous because of the sensitivity of the matter.
Beyond being a history-making appointment, Holder would be faced with some of the nation's most divisive legal controversies, including the Bush administration policies on torture, electronic eavesdropping, the extent of presidential power and the imprisonment of terror suspects without charges, trials or the right to challenge their detention.
People close to Holder said that his wife, Dr. Sharon Malone, an obstetrician/gynecologist in Washington, has voiced reservations about his returning to public service. In a past interviews with the Legal Times, Holder said that his wife "was almost a single parent" while he was in government in the 1990s, and that as far as his returning to government, "That ain't gonna happen." The couple has three children.
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A friend of Holder's, however, said: "How can you say 'no' to being the first African-American attorney general of the United States?"
Word of the likely nomination brought a strong endorsement from Democratic Sen. Patrick Leahy, the chairman of the Senate Judiciary Committee, which would have to approve Holder's
Top aides to president-elect Barack Obama also have made calls to senators of both parties asking whether Holder would win Senate confirmation. Leahy, however, gave no indication that the Obama camp had advised him that Holder was the choice.
However, Leahy said that Holder "would make an outstanding nominee, and should have the support of senators from both sides of the aisle if President-elect Obama were to choose him for this critical position."
West Virginia Sen. Jay Rockefeller, the chairman of the Senate Intelligence Committee, said he hadn't been called, "but I've heard it's going to happen."
An Obama transition staff member, who wasn't authorized to speak publicly, said that no one had been officially offered or accepted the post of attorney general. It wasn't clear whether Obama's transition team has finished the process of vetting Holder or trying to identify potential problems that could pose problems to Holder's confirmation.
Holder, 57, would take the reins at a department whose reputation has been battered by more than a year of revelations over alleged partisan decision-making under former Attorney General Alberto Gonzales, who resigned in September 2007. Investigations of some of those allegations are still pending.
"The next attorney general will confront many continuing challenges, and can do much to restore our commitment to the rule of law and public confidence in federal law enforcement,'' Leahy said.
Holder, who served as deputy attorney general under President Bill Clinton from 1997 to 2000, is a friend of Obama, served as co-chairman of his presidential campaign and has for months been presumed to be a leading contender for the nation's top law-enforcement post.
In a quarter century of public service, Holder has served as a federal prosecutor, a Superior Court judge in the nation's capital, the first African-American U.S. attorney in the District of Columbia and as the first black deputy attorney general. The National Law Journal has identified Holder, a Columbia University Law School graduate, as one of the nation's 50 most influential minority lawyers.
One controversy that could arise in the event of a Holder nomination stems from his decision to sign off, in his final weeks as deputy attorney general, on Clinton's 11th-hour pardon of fugitive financier Marc Rich, who had fled to Switzerland while accused of evading more than $48 million in taxes and 51 counts of tax fraud. Rich's ex-wife, Denise Rich, had donated about $70,000 to First Lady Hillary Clinton's 2000 Senate campaign and $450,000 to Bill Clinton's presidential library fund, leading to allegations that the Riches bought the pardon.
The controversy, along with several other Clinton pardons, prompted congressional investigations and created a furor in Washington.
One Democratic Senate aide said the pardon would likely pose as the only sticking point for Holder, and whether it would be "is up to the Republicans."
A friend of Holder's, who declined to be named, called that a "hiccup" — a mistake that Holder later acknowledged in congressional testimony.
"It was a last minute thing," this friend said. "He should have paid more attention to it, and he said so. To the extent that anybody tries to raise serious concerns about that, I would strongly urge them to look at their own pencils and see if they have erasers.
"The best way to learn often times is by mistakes. He made one, and it would make him better for the job."
Also while Holder was deputy attorney general, his boss, Attorney General Janet Reno, ordered young Cuban Elian Gonzalez returned to his father in Cuba from Florida in 2000. Relatives in Miami resisted the order, triggering the controversial raid by federal agents who took him into custody.
Since leaving government in 2000, Holder has been a partner in the Washington law firm of Covington & Burling, handling several high-profile criminal and civil cases.
Washington lawyer Jim Cole, a longtime friend, said a Holder nomination "would make complete and total sense."
"There's a screaming need for someone to come into the department with professionalism," he said, an obvious reference to last year's controversy over the firing of nine U.S. attorneys and the politicization of the Justice Department.
"He's been a career trial attorney, a judge, a U.S. attorney, deputy attorney general," Cole said. "I don't know what else there is to ask for in a person to be attorney general. And I don't know who else has all of that."
(David Lightman contributed to this article.)
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