▶ Watch Video: Eric Holder “extremely concerned” about Supreme Court elections case

The following is a transcript of an interview with former Attorney General Eric Holder that aired Sunday, Dec. 4, 2022, on “Face the Nation.”


MARGARET BRENNAN: We turn now to former Attorney General Eric Holder. He now heads up the National Democratic Redistricting Committee. And he has a book, “Our Unfinished March,” which examines the current state of America’s democracy. Welcome back to the program.

ERIC HOLDER: Good to see you, Margaret.

MARGARET BRENNAN: I have a number of things I want to get to with you. But I want to start on something I know is immediate this week. An organization that you run that we mentioned here that focuses on redistricting is involved in a Supreme Court case, Moore v. Harper. It’s going to be heard on the seventh of this week. And it boils down as I understand it to the question of what the Constitution means when it assigns state legislatures the task of regulating elections. That sounds really wonky, but you phrased it as the future of democracy being at stake. What are you worried is actually going to happen here?

HOLDER: Yeah, this case is all about something called the independent state legislature doctrine. It’s a fringe theory that North Carolina Republicans are trying to use to make sure that the North Carolina Republican legislature has the sole responsibility of doing redistricting in the state and excluding from that determination the state court system. It is something that if the Supreme Court goes along with it, would really upend our system of checks and balances. And it’s for that reason that I am extremely concerned. It is a fringe theory, this is something that if the Court I think does the right thing, you should have a nine to zero opinion by the court that rejects this notion of this independent state legislature doctrine that has been rejected by conservative scholars, by practicing Republican lawyers, by former Republican judges, and by this conference of state supreme court justices, as well. This is a very, very dangerous theory. It would put our system of checks and balances at risk.

MARGARET BRENNAN: So there were a number of Democratic senators who actually filed a brief urging the Supreme Court not even to hear the case. So there are some heavy hitters here saying don’t even talk about it. What does that tell you about the potential harm here? I mean, is there value in the Supreme Court hearing this and striking it down? Or does them hearing it at all indicate something more to you?

HOLDER: Yeah, it’s hard for me to see how this case was ever taken by the Court. I think the better thing would have been for the court to simply have rejected it. But now having taken the case, I would hope that the Court would drive a stake through this notion of this independent state legislature doctrine and get it off the- off the books and out of our consideration, once and for all. It truly is, I cannot emphasize this enough. It truly is a fringe theory that should result in a nine to zero rejection of the- of the theory.

MARGARET BRENNAN: So we mentioned you’re working on redistricting. Democrats are suing to overturn congressional maps in Alabama, Florida, Georgia, Louisiana, Ohio and Texas. I read a quote from you in the Washington Post that said the work you’ve been doing on redistricting has paid off in the most recent midterms. Do you think that your legal battles will help Democrats make gains in 2024? What are you trying to say there?

HOLDER: Yeah, I think that what we have seen, there been studies that said that we have had the most fair redistricting process in the last 40 years as a result of the work that we’ve done. 75% of the redistricting is considered to be fair, which also means that 25% of it is unfair, and that is still problematic. I think, for instance, the House of Representatives is going to be in play for the entirety of this decade, very contrary to where it was in the past decade where after the successful Republican gerrymandering that occurred in 2011 and in 2012, it was really difficult for Democrats to take the House back. I think Democrats will be able to take the House back as early as 2024. But it doesn’t ensure what we have done doesn’t ensure the Democrats are going to hold on to the House for the entirety of the decade. It will be for the American people to decide. Fairness will reign in that determination.

MARGARET BRENNAN: When you were last on this program in May you shared at the time that you had changed your mind recently that you did believe that the Justice Department and Attorney General Merrick Garland should hold former President Trump accountable for his actions. You previously thought it would be too divisive for the country. Now, where we are with this special counsel, what is your assessment? And how should Merrick Garland, who has to ultimately decide, weigh the question of a risk to political violence in this country from any decision he makes regarding the former president?

HOLDER: Well, I think the Attorney General has said it quite well, that he’ll make the determination without fear or favor. There is- Everybody has to be held accountable for the same system. The determination that he’s going to have to make will have to be based on the facts and the law. And we’ll just have to deal with the consequences. The reality is that if he makes a determination one way or the other, it is going to be divisive. And so the best thing simply is to make sure that everybody who is under consideration for possible criminal treatment, including the former president, is treated just like every other American. And that’s what that opinion out of the Circuit Court this week essentially said that you can’t craft things. As a district court judge you can’t craft things for a former president that don’t exist for regular American citizens. Treat everybody in the same way, make the determination based on the facts and the law. And the United States, I think, has the capacity to absorb a possible indictment and to deal with it fairly and to get on with the business of the country.

MARGARET BRENNAN: As someone who’s been an attorney general, I wonder as well, how you think about the case before the U.S. District Attorney in Delaware regarding President Biden’s son Hunter. CBS has reported the FBI has sufficient evidence to charge him with tax and gun related crimes. How would you handle this? A plea deal? Is the Attorney General boxed in to take a hard-line position because of working for the President?

HOLDER: No, I mean, you have- they left in place, the Republican, the Trump-appointed U.S. Attorney in Delaware to consider the case. You’ve got career lawyers working on it, career FBI agents. You want to listen to their recommendations and then again, make a determination based on the facts and the law. The defendant should not be treated any more harshly because of who he is, who he is related to, should not be given breaks because of who he is or who he is related to. He should be treated as former President Trump should be treated, just like any other American citizen. If there is culpability, that person should be held liable for his or her acts. And if there is not a basis for a case, a case should not be brought.

MARGARET BRENNAN: But it will ultimately come to the Attorney General’s desk.

HOLDER: That’s certainly the way I would have run the Justice Department. And my guess is also that that would be something that Merrick Garland will be doing as well. That determination will be made I suspect in Washington, D.C.

MARGARET BRENNAN: All right. General Holder, thank you very much for your time today.