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  • January 6

How Eric Holder Sees the Jan. 6 Case Against Donald Trump Unfolding

6 minute read

Eric Holder, who led the Department of Justice as attorney general under President Obama, criticized the Biden Justice Department's approach to prosecuting the Jan. 6 insurrection at the U.S. Capitol in an interview at the inaugural TIME Impact House in Martha's Vineyard on Tuesday.

“To be frank, I think that the Justice Department could have done a better job,” Holder said, noting that the focus on members of the mob who stormed the building came at the expense of attempts to bring to justice the alleged architects of the plot, including former President Donald Trump.

In the wide-ranging interview, Holder, a leading advocate for the Democratic Party’s voting rights and redistricting efforts, also called on business to defend affirmative action practices and projected the odds of Trump being convicted before the 2024 election.

In your recent book“Our Unfinished March,” you describe the moment when you went to Selma with President Obama and Rep. John Lewis. You said one of the reasons you wanted to be there was because, you wrote, for the first time, Americans were making it harder, not easier, to vote. Would you say that's still true today?

Yeah, I think it's definitely true. The arc of American voting history has been with stops and starts. But generally, the arc has been to make it easier to vote, make the vote more inclusive….There are a whole range of anti-democracy things that are going on in our nation right now.

What do you make of the recent lawsuit against the Fearless Fund in Atlanta, filed by affirmative-action opponent Edward Blum’s group, American Alliance for Equal Rights?

I think it's almost inevitable that what we saw in the Supreme Court decision, to essentially gut affirmative action when it came to higher education, was going to spawn similar lawsuits with regard to other aspects of our society—business being among them.

This lawsuit is something that I think has to be fought in every way that we can. And I think the business community, too, typically underestimates the strength that it has. If the business community were to say, Don't do anything, Supreme Court, to hinder our ability to do things, to keep ourselves diverse, to keep our focus on making us a more inclusive society…the studies show this has an impact on our bottom line.

Companies that are perceived to be or have the reputation for being more diverse do better than another company that is seen as or has a reputation for being less diverse. If the business community can make the moral case, and then also make the economic case, that I think can have a huge impact.

Do you see progress happening in that effort?

We see where the Supreme Court has gone with regard to affirmative action in higher education. So now, what will happen in another sector? Will we get into the fetal position? Or will there be a robust response to say, “Not here. Not this sector.”

The U.S. justice system is not designed to move quickly. What is the likelihood that we could have a complete trial and conviction of the former President Trump prior to the 2024 presidential election?

I think that the last case that was indicted, the Jan. 6 case with the former President as the single defendant, that case is designed to be tried before the election…That's the way the case was constructed.

Logically, you would have tried that case and charged also the un-indicted co-conspirators…But I think the determination was made by the Justice Department to go against only the former President…And those folks will be indicted later on.

I think there's a better than 50% chance that that case will actually go to trial and be decided before the election. But I think that will be at the expense of the case in Manhattan, the case that will be brought in Georgia, and probably at the expense of the documents case in Florida as well. I think this will be the first case.

To be frank, I think that the Justice Department could have done a better job. 

In what way?

By focusing more on those who constructed Jan. 6, while at same time focusing on the foot soldiers. They’ve done a great job…with regard to the people who are actually in the building. I think the initial thought was, well, we'll start from the bottom and work our way up. And I think that has that cost the Justice Department time. I think the appointment of the Special Counsel really sped up the Justice Department process, but I would have hoped that the Justice Department’s focus would have been on the architects of Jan. 6 a little sooner than it was. I think the Jan. 6 Committee was really the spur to the Justice Department.

You said earlier this summer that if the former President is convicted of a crime, and then elected President, that you expect the Senate to impeach him and remove him from office. What gives you reason to believe that the Senate would do that?

I keep waiting for sanity, logic to raise its wonderful head….Let's just assume this case goes to trial. Donald Trump has been convicted. Donald Trump is elected. I'm not sure that you can pardon yourself. There's a real legal question as to whether or not you can pardon yourself.

So let's assume that that he can. And he actually takes office. But there's also nothing in the Constitution that says, if you're a convicted felon, you can't serve if you're in prison. These are mind-boggling kinds of things. The Founding Fathers did not anticipate this. And it would seem to me that if he, in fact, were convicted, and a convicted felon were head of the United States government, that, some degree of sanity, some degree of logic would say that that's an impediment to a well-functioning executive branch, and the Congress would use its powers to remove him.

This interview has been condensed and edited.

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Write to Sam Jacobs at sam.jacobs@time.com