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(uplifting music) - [Narrator] And now the Crosscut Ideas Festival featuring a selection of curated sessions from this year's festival.

Thank you for joining us for Defending the Rule of Law with Eric Holder Jr. Moderated by Mark Baumgarten.

Before we begin, a special thank you to our session sponsor Metis Construction.

We'd also like to thank our equity track sponsor, Waldron, and our founding sponsor, the Kerry and Linda Killinger Foundation.

Finally, thank you to our title sponsor, Amazon.

(audience applauds) - Hello everyone.

Welcome to the Crosscut Ideas Festival.

My name is Mark Baumgarten.

I'm the managing editor at Crosscut, where I oversee a newsroom of dedicated journalists telling the stories of Seattle and the Pacific Northwest.

My guest today, Eric Holder, is best known for his time as the US Attorney General, a role he was appointed to by President Barack Obama, and that he held from 2009 to 2015.

Since stepping down as Attorney General, he has continued working on voting rights.

His book, "Our Unfinished March," is a history of the fight for voting rights in the United States.

And he currently chairs the National Democratic Redistricting Committee.

General Holder, thanks for being with us.

- Thanks for having me.

(audience applauds) - So you're very familiar with the place where the rule of law meets the world of politics, and that is an intersection that is of high interest today.

So I wanted to start by talking about maybe the most high profile example of that, the indictment of Donald Trump, of former President Trump.

And my question is, would you have brought those indictments given what we know about the case?

- Yeah, I suspect that I would have.

People have tended to dismiss that case and I don't think that you necessarily should.

We have to understand that was a very close election.

If a few thousand votes had switched, in I don't know, three, four, five states, the result might have been different.

I mean, Hillary Clinton won by 2.6 million, almost 3 million votes, whatever.

The electoral college was a little different.

If that information had come out about payoffs to a porn star and the circumstances under which they had occurred, that might have swayed the election.

So I think that substantively, there is a basis to say that that's worthy of a criminal indictment.

And then when you also look at the fact that Michael Cohen was charged and went to jail for being a part of that same scheme, there almost seems to be an equality thing here that would dictate that result.

So I think that what Alvin Bragg did in Manhattan was totally appropriate.

- [Mark] Hmm.

- And I would've done the same thing.

- So this is the first case, but it is not the only case.

We are expecting that we may see an indictment in the case in Georgia.

And we'll let you talk about the other cases, but I was wondering if you could talk about what you see when you look at those cases and what case do you feel is the strongest in showing that the former president had criminal intent?

- Ooh, that's an interesting case.

I mean, I think the January 6th case, which I'd call that one.

Just based on what we saw from the January 6th committee, people have always said, "well, how do you show Donald Trump's intent?

That's gonna be really hard."

No, it isn't.

(audience laughs) He called, he made a phone call to Georgia and said, find me 11,780 votes.

He told the people at the Justice Department, just go out there and say that there was fraud and we'll take care of the rest.

In addition to all the other stuff the January 6th committee has put out there.

Tons and tons of his advisors saying there was no fraud, there was no fraud.

His Attorney General, not a fan, I'm not a big fan of Bill Barr, but Barr comes out and says, "there's no fraud."

So the January 6th, I think, case can be brought, should be brought, I think will be brought.

And given what the aim of that effort was, to subvert our democracy, to stop the transfer of power, that is in some ways the most important of the cases.

But I would also say that, we don't know all the facts surrounding what happened with those classified documents.

And then the Georgia case itself.

I mean, trying to tamper with the electors who are gonna go to the electoral college from the state of Georgia.

I mean, all of that stuff I think is important.

And I think ultimately, all three cases are gonna be indicted.

- And so a president has been indicted, that line has been stepped over- - That aint never happened before.

- No longer unprecedented.

It may happen again.

The next unprecedented act may be that a president is convicted.

What do you think will happen if Donald Trump is convicted in any one of these cases?

What are the political repercussions of that?

How does that play out?

- Well, I think first off, this notion, the doomsayers who say this will split the country and that there'll be violence in the street.

I think this nation has the capacity to absorb an awful lot.

We have absorbed a lot in our past, and I don't think that that necessarily is true.

Now, will a certain part of his base be energized?

And because everybody's got guns in this country, does that worry me?

Yes, to some degree.

But I think the nation can handle it.

I think we have to look at it the other way as well.

Suppose he's not indicted.

Suppose he's not convicted.

What is to prevent somebody 10 years from now, 20 years from now, 30 years from now, 50 years from now, some president to say, "well, you know what, I think I'm gonna lose this election, so I think I'll try to come up with a way in which I can, in essence, steal it.

And the worst that'll happen is that my reputation will be damaged.

I won't have to face any kind of criminal sanction?"

We have to remember that part of the criminal law is to deter people from doing things that we deem to be antisocial.

So I think the nation can handle it.

I think it makes sense for us to bring these cases.

And then it'll be interesting to see what the judges in those cases, assuming there are convictions, what do they do then with a former president of the United States?

- So getting really deep into the political ramifications, and I feel like I know what the answer is gonna be to this, but is there an argument to be made for a pardon at any point in the interest of the country being able to move forward?

I mean, this is what we saw from Gerald Ford with Richard Nixon, in another unprecedented time.

But is that something that you think about at all?

- For the longest time, I've been a fan of the Ford pardon.

I did an interview with David Axelrod probably about three, four years ago at this point.

And I expressed at that point, a real hesitance to bring charges against a former president because of the divisive nature of such an act.

But given what happened and given what the stakes were- - This is before January 6th?

- This is before January 6th.

So I could not envision in my mind that we would have a president who would in essence try to, as I said, subvert our democracy.

Given that fact, I've really kind of moved and said, a pardon would not be appropriate.

I mean, the case needs to be laid out to the American people and for history, for people to understand, for history to understand what were the aims, what was actually done, who was involved, and then who ultimately is held accountable?

We have to think of this not only in the moment, which is important, but also to think about what it means for our nation going forward.

- So these Trump cases, they're about elections.

They're about people's right to vote.

The belief that people should be able to make an informed vote and the right to have that vote count.

And this is where so much of your work resides.

So I just want to be clear, we're not just asking you to comment on the news of the day.

Your interest is really in elections and democracy and there's so many different fronts in that battle right now.

And so let's maybe move on to some others.

- Yeah, let's talk about something other than Donald Trump.

- Yeah.

(audience laughs) (audience applauds) We've got that done and now there's a lot of other things to talk about.

- Sure.

- One of the things...

I wanna go ways back and talk about the Voting Rights Act.

And I think that the decision in 2013, the Supreme Court decision to "gut" the Voting Rights Act as people have called it, was a really pivotal decision in this modern era of voting rights work that you're doing.

And you were intimately involved in that.

Your name is on the case, "Shelby County versus Holder."

And I was wondering if you could just share with us briefly how that case, how that decision has affected voting rights over the last 10 years, and as a way to sort of set up the rest of our conversation about voting rights.

- Yeah.

The Shelby County case.

I'd never call it Shelby County versus Holder.

I don't want my name associated with it.

That's like having your name on there Dred Scott versus Holder.

So I'm like, you won't want your name associated with the case.

We saw almost immediately after the case in 2013, under the guise of protecting the right to vote, the proliferation of unnecessary photo ID laws for people to have to vote.

We've seen at least 1700 polling places closed around the country.

We have seen voter purging happen in places disproportionately in communities of color.

All of these things that have happened probably would not have happened with a strong Voting Rights Act and with a Justice Department inclined to use the power that it had pursuant to that Act.

And that closure of 1700 polling places, when you see these long lines, that's a function of a couple of things.

First off, it's interest that people have, but it's also a function of the fact that in a lot of places, there just aren't as many places to vote and that has meant that you see these long lines.

And so then it makes sense when Georgia passes a statute that says, "well, you can't give anybody who's in line water or food."

I remember when I was thinking about that, I was thinking, what is that?

What's that all about?

But then you think, long lines, can't give people water or food.

I don't know, maybe it's a warm day in November or something in Georgia, if you're waiting in line, or maybe earlier couple weeks during early voting.

And if you get one or 2% of the people who are waiting in line to decide, "well, I'm not gonna vote.

I just can't handle it."

Well, if you look up the Ossoff race, the Warnock race, the Joe Biden victory in Georgia, that one 2% might have had- - Yeah, and runoffs too, right?

- Right.

Might've had an impact.

And all of this happens as a result of the Shelby County case.

- So there's been some effort to restore the Voting Rights Act.

There was some legislation named after John Lewis, Congressman Lewis, and it did not get passed when the Democrats had majorities in DC.

Is there a path forward for a restoration of the Voting Rights Act in your eyes?

- Well, first off, let's say this, and with all due respect to any Democrats in the House, and I'm one of them, Democrats blew it.

We had the ability to pass legislation that would in essence, have done away with all the harms of the Shelby County case, but we were not willing to do away with the Senate filibuster.

The House passed a bill, it did not get to a vote in the Senate because a couple of senators decided that they were not gonna do away with the filibuster or to come up with a carve out for the filibuster when it came to electoral things.

And there were a number of ways in which you could have crafted it, but we had the power to do that which should have been done.

And I think that really is the path going forward.

Congress is gonna have to put in place legislation that says, "you can't gerrymander on the basis of race or on a partisan basis, guarantee a certain number of days for early voting."

There's a whole bunch of kind of in the weeds, mechanical stuff that I think that Congress is going to have to do.

And the next time you have a Democratic Congress, whether a democratic president, we've gotta have within us the guts to turn our back on something that is not in our Constitution.

I mean, the filibuster, that's not of constitutional dimension.

That's just something that was put in place and not used very often until Barack Obama became president.

You see the use of the filibusters kind of like this, and usually, basically against an attempt to pass a civil rights bill.

And then Barack becomes president, and it becomes almost a matter of course.

And now people will say, "well, you need 60 votes to get anything past the Senate."

No, you don't.

No, you don't.

You have to get 50 votes.

It's the filibuster that says you have to get to 60.

- So for this part of the conversation, I wanted to talk a little bit about the Supreme Court.

We mentioned them a little bit.

- They've been in the news a little bit.

- They've been in the news.

They make some news.

- I've noticed that recently.

(audience laughs) - And we're still just staying in this realm of voting rights, of elections.

There is a case before the court right now about the independent state legislature doctrine.

So this basically means that state legislatures can pick the winner of a presidential election, more or less.

If that doctrine is upheld, what does that mean for our electoral landscape?

- Yeah, well, the independent state legislature case that's before the court doesn't actually go quite that far.

The case that's before the court is a question whether or not the legislature, independent of the governor, independent of the courts, can decide the drawing of electoral districts.

That's the case that is before the court.

The danger is, and they point to a sentence in the Constitution, it talks about legislature shall have the ability to determine the means and manner by which districts are drawn.

If you go up a couple of paragraphs, it also says that the state legislature shall have the ability to decide who goes to the electoral college.

First understand, this whole notion of this independent state legislature doctrine is a fringe theory.

I mean, it's a fringe theory.

This is a case that should be decided by the Supreme Court nine to zero, not eight to one, not seven to two, not six.

This should be a nine-zip case.

And the fact that four justices said this is a case worthy of consideration, disturbs me a great deal.

Now, I think ultimately, if the case, some procedural reasons, the case might get kicked, but if it doesn't, I think we'll win the case.

But it would be a disheartening thing to see anything other than a unanimous decision, because I'd like to see what the dissenters, what they would write to say that the independent state legislature doctrine has some validity to it.

And it has the danger that you said, if you extrapolate from "state legislature can draw lines without any interference of the courts," look up couple of paragraphs, well, maybe they can also decide who goes to the electoral college without any interference by the courts or by the governor.

- Hmm.

So maybe just an indicator that we would be on that path.

- Potentially.

Given what we saw around January the 6th, and the number of people who were prepared to do things inconsistent with the desires of the voters, this is not something that we should say is beyond the realm of possibility.

I mean, if you'd asked me this question five years ago, I'd said that would never happen.

And yet January 6th, we have to learn from what happened on January the 6th and protect our democracy.

We have to learn from history.

I don't wanna be too scary here, but the reality is that authoritarian regimes rose in Europe in the 20th century, fascism rose in Europe in the 20th century, not 'cause fascism was strong but because the defense of democracy was weak.

And that is, I think, something we need to keep in mind as we look at America in 2023.

We have to defend our democracy, understand that our democracy is at risk, that it's under attack.

And regardless of whether you're a republican, democrat, conservative, liberal, we ought to all agree on the notion that our democracy is precious.

Let's operate within the parameters of the rules set out by the founders when they put this imperfect nation together.

(audience applauds) - So one last question from me before I'll turn it over to the audience questions.

And that is continuing on with what you were just saying.

Looking at 2024, so major election, the biggest election of our lifetimes, again.

What is the landscape for that election?

What are the things that you're looking at that you're concerned about for that election?

And what can happen between now and then that will shape how that election... Not in how it is run, and maybe what the results are.

Not necessarily the political conversation taking place between the candidates.

- Well, I tell you, the thing that worries me immediately is exactly...

Which is that we weren't gonna talk about and that is, what are the rules gonna be for the election in '24?

Who's gonna get to vote?

There's a whole raft of things being considered in state legislatures now.

Something now in Texas that applies only to Harris County, which is the largest county in Texas, largely democratic, Georgia legislatures put in place some new voting restrictions.

Those things will have an impact on the election in '24.

So between now and '24, I'm concerned about that.

What we talked about at the very beginning.

What happens with Donald Trump will have an impact on '24.

Will he be the nominee?

Will he be crippled by these indictments that I expect are going to happen?

I'm not sure we'll have trials by November of 2024 so there's a whole range of things.

And then the issues.

Where this nation has clearly indicated a desire to protect a woman's right to choose.

All the polling shows that.

In every state where a poll has been done, you have seen people say they didn't want Roe versus Wade overturned.

And that's true in New York, it's true in Texas.

Now, the margins may be slightly different, but there's not been a poll where a state said, "yeah, we want Roe versus Wade overturned."

So that's gonna be an animating thing, I think, for the electorate.

The defense of democracy, I think that is something that's starting to seep into the consciousness of the American people.

I think that will be an animating thing as well.

Who gets to choose?

Why are we putting in place these laws that discriminate against, discourage certain groups of people from voting?

And young people, I think are really going to be a factor to a degree that we have not necessarily seen before.

When I was in Wisconsin, I was very heartened to see the huge number of young people who came out to vote, animated I think in large part by the abortion positions of the two candidates for the Supreme Court Justice.

But I think that once you get a taste of it, and when you see the power that you have, and I think young people need to understand they are now the largest voting block in this country.

I'm part of the boomer generation and we don't have as many people as there are young people.

We have greater power because we vote to a much greater degree, proportionally, we vote to a larger degree than young people do.

So issues that will animate the involvement of young people is also something that I think, is already out there.

And that I think it will not only be something that we saw in 2022, some elections in 2023, but I think it'll also animate people in 2024.

- Hmm.

All right, well, let's move on to the audience questions.

There are some really great questions here, so thank you all.

What needs to be done about the Supreme Court's ethical issues?

Not gonna name any particular members, right?

No particular justices here.

- Okay.

(audience laughs) - No, no, I'm kidding.

- It is clear that the court needs to have a code of ethics and needs to be under the same code of ethics as all other federal judges.

(audience applauds) I mean, yeah.

The notion that Supreme Court justices are taking trips that billionaires are paying for, that they're having houses paid... Or a justice having a house, his mother's house paid for by a billionaire.

These are the kinds of things that get to the legitimacy of the court.

At the end of the day, they gotta remember they're public servants.

If you wanted to take trips to, I don't know, New Zealand and say see St. Petersburg and all of that, and you needed the money to do it, well, maybe you shouldn't have been a Supreme Court justice.

You ought to work for a law firm, make an awful lot of money, and then buy your own tickets and take yourself over there.

As opposed to having the benefits of being a member of the Supreme Court, and with all of the prestige and benefits of that and all that you get.

And then in addition to that, want to have all the material things that in some ways, I think as a public servant, I was willing to forego.

That code of ethics, I think is really important, generally.

And then I think the specific incidents have to be examined to see exactly who did what and why.

- Besides legislation to protect voting rights, what else can be done?

For example, what's the chance of having Voting Day as a national holiday?

But I'd like to add onto that.

What do you want to give to the people in this room, to the people listening at home?

What are things that you think people can do to further the efforts that you have been working on?

- Yeah.

I mean, this notion of making election day a national holiday is actually one of the proposals that I have in the book.

I mean, think about it.

We vote on a Tuesday.

Think about that.

Now, it has something to do with the 19th century and bringing crops to market.

My guess is that, and I don't wanna offend anybody here, but I suspect many of you have not brought crops to market for some time.

(audience laughs) That's just an assumption.

And so, yeah- - There's a good farmer's market culture here in Seattle though, so you never know.

- All right, well, I apologize.

I apologize.

But make it a national holiday or just how about election day on Saturday?

So people don't have to decide between their jobs and having the ability to vote.

And what I would say more generally is this, Dr. King said that the arc of the moral universe is long and it bends towards justice, right?

But here's the deal, it doesn't bend on its own.

It only bends when people like us, when people like you put their hands on that arc and pull it towards justice.

And what you've gotta ask yourself, what you have to ask yourself, what are you doing?

What are you doing?

What are you gonna do after this conversation?

What are you gonna do, hopefully, after you read my book?

What are you gonna do after you get so upset about something that you see on television?

What are you doing to change this system of ours?

Every generation of Americans has been called upon to defend our democracy.

Whether it's in the battlefields of Gettysburg, to the beaches of Normandy, from Selma to Montgomery, at Stonewall, every generation of Americans has been called upon to defend democracy.

This can't be the first generation that fails at that task.

We have the capacity within ourselves.

We underestimate the power that we have as a committed, focused, active people to bring about positive change.

People always tell me, "well, why are you so optimistic?"

Well, here's the deal, 'cause as you look in the book, throughout history we have seen people decide the system's wrong and we're gonna change it.

Women said, we're gonna get the right to vote.

It didn't happen simply because the time had come, it happened because women fought for it, died for it, sacrificed for it.

Civil rights movement.

We destroyed a system of American apartheid, not because its time was over but because people fought for it, sacrificed for it, died for it.

And we have gotta be as committed now in the defense of our democracy as our predecessors have been in the past.

I'm actually confident that we can do this.

If we will stay focused, if we will stay committed, we can make more perfect this nation that I love, has given me great opportunities, but it's gonna take activism, it's gonna take commitment, it's gonna take work but we can do this.

We can do this.

(audience applauds) - Okay, now we are out of time.

(audience laughs) - Four minutes and 19 seconds over, I'd say.

- Attorney General, thank you so much for joining us here.

(audience applauds) And thanks to everybody in the room and watching at home.

Really appreciate you being here with us as well.

(upbeat music)