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Sunday, May 08, 2011

Beldar quibbles with McCarthy to show that Holder's conflicts are even worse than McCarthy's revealed

Andrew C. McCarthy led the team of federal prosecutors who obtained convictions in 1995 against Sheik Omar Abdel Rahman (a/k/a "the Blind Sheik") and eleven others in connection with the 1993 World Trade Center bombing. Since he left the Justice Department in 2003, he's been among the most articulate critics of those who'd respond to international terrorism as if it were merely a civilian criminal offense. As someone who's actually done as well as can be done in such cases in our civilian criminal courts, I accord him credibility on this topic that's roughly the size, shape, and mass of the Rock of Gibraltar. I rarely find myself disagreeing with what he's written as a contributor to National Review and other conservative outlets.

I agree entirely, for example, with Mr. McCarthy's verbal thrashing of Attorney General Eric Holder in an NRO column from yesterday entitled Holder vs. Holder. In it, Mr. McCarthy explains why Eric Holder is a particularly leaky vessel into which to entrust the profound obligation of serving as chief counsel for the United States of America, and in particular why that's so when it comes to prosecuting/fighting the Global War on Terrorism (a term that Holder himself, like his master at the White House, has disavowed).

My one quibble is with a shortcut that Mr. McCarthy has taken in this opinion article — one which I think actually detracts from its overall persuasiveness.

Mr. McCarthy begins thusly:

Why does the Obama Justice Department seem to have trouble mounting a full-throated, compelling legal defense of Osama bin Laden’s killing? The problem for Eric Holder the attorney general could be Eric Holder the private attorney.

In 2004, Mr. Holder chose to file an amicus brief on behalf of Jose Padilla, the al-Qaeda terrorist sent to our country by bin Laden and Khalid Sheikh Mohammed to carry out a post-9/11 second wave of attacks. In the brief, Holder argued that a commander-in-chief lacks the constitutional authority to do what his boss, the current commander-in-chief, has just done: determine the parameters of the battlefield. By Holder’s lights — at least when the president is not named Obama — an al-Qaeda terrorist must be treated as a criminal defendant, not an enemy combatant, unless he is encountered on a traditional battlefield.

It would be useful if staffers at congressional oversight hearings passed around copies of Holder’s Padilla brief. It is a comprehensive attack on Bush counterterrorism, an enthusiastic endorsement of the law-enforcement approach in vogue during the Clinton era (when Holder was deputy attorney general under Janet Reno, who also signed on to the Padilla brief). This might explain why Holder sometimes has difficulty answering seemingly easy questions. That’s what happened this week, when the Senate Judiciary Committee quizzed the attorney general on the lawfulness of the U.S. military’s targeted killing of bin Laden.

I have a problem with that line of argument. It's wrong, and dangerous, to presume that a lawyer privately supports every element of every cause, or every aspect of every defendant, whom he champions in court. And I know Mr. McCarthy knows this principle, and I believe he likely believes in it. Mr. McCarthy went around this hurdle — ignored it — when it's fairly easily overcome in this specific case, however:

Holder didn't take on Padilla as a paying client because he (Holder), like every lawyer, needs to put bread on his family's table. Holder didn't in fact represent Padilla at all, and the Second Circuit brief to which Mr. McCarthy refers wasn't filed by Mr. Holder in his capacity as a lawyer, pro bono or otherwise, for anyone. Holder wasn't among counsel of record in the case.

Rather, Holder — with Janet Reno and two other former Clinton Administration lawyers — were themselves the "amici curiae," literally "friends of the court," who sought and received permission to address the Second Circuit on legal issues relating to Padilla's pending appeal. The lawyers who actually signed and filed the brief, acting in the role as counsel to the "amici curiae" including Holder, were from Arnold & Porter — one of the main (but mainly friendly) cross-town rivals of the Washington, D.C. firm at which Holder was then employed, Covington & Burling.

So attributing the views in this brief to Holder personally is entirely appropriate: The "mouthpieces" who may or may not have agreed with the "clients' position," but who figuratively and literally "signed off" on the brief, were the Arnold & Porter lawyers. Holder, although he had no stake in the case other than as a bystander and "friend of the court," was himself their client. Holder wasn't insisting on being heard by the Second Circuit through counsel because he was at the same risk of imprisonment or death that Padilla himself was in. Rather, Eric Holder, as a private lawyer whose only special credibility arose from his past government service, went out of his way to align himself with Padilla not as an advocate, but as a fellow principal interested in the same matters (albeit in the limited capacity of an amicus). 

It's thus entirely fair — and indeed, much more fair than with other legal briefs in which Holder was merely a paid, or even volunteer, advocate for some client — to attribute the views in this amicus brief to Holder personally. Once the A&P lawyers agreed to represent these "amici curiae," the A&P lawyers were obliged to diligently advocate for Holder's (and his felllow amici curiae's) interests. They spoke not for themselves, but for Eric Holder — and it is to him that their arguments and positions must be attributed. Otherwise, the clients upon whose behalf the brief was filed lacked any authority even as a "friend of the court" to be heard at all.

Holder can't, in other words, hide behind the usual — and oftentimes entirely legitimate — beard that "I was only representing my client's interests, and I don't necessarily agree personally with everything I said on the client's behalf." Rather, everything said in the amicus brief in the Padilla case was said specifically on behalf of Holder; he was the client of the lawyers who wrote and filed it.

Holder's own law degree and licensure and experience is also important, however, because it utterly deprives him of any possibility of saying now, "Oh, I really didn't grasp all the implications of the legal arguments my lawyers from Arnold & Porter were making on my behalf." Even moreso than the average client who lacks legal training and skills, it's not just a conclusive legal presumption that the Arnold & Porter lawyers were fairly and accurately representing Holder's views, it's a practical fact. It's simply inconceivable that this brief could have been filed without Holder (and Reno and the other two Clintonista lawyers) having a chance to review and participate substantively in the editing of its contents.

I suspect Mr. McCarthy would agree with all this, and perhaps he omitted it in the interests of concission. I lack his gift for that, but I also have a very strong attachment to the underlying general rule that for the Rule of Law to function, the lawyers participating in its administration must be free from the strictures that would come from attributing personally to them every principle or cause they've supported as an advocate.

Posted by Beldar at 05:55 PM in Ethics, Global War on Terror, Law (2011), Politics (2011), SCOTUS & federal courts | Permalink


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(1) Beldar made the following comment | May 8, 2011 6:07:23 PM | Permalink

Editing note: Some of this post I'd previously written as a comment to Mr. McCarthy's piece at NRO.

(2) Beldar made the following comment | May 8, 2011 6:14:52 PM | Permalink

This same capacity argument that I've made here also makes it all the more ethically inexcusable that Holder didn't disclose the existence of this brief to the U.S. Senate in connection with his confirmation hearings.

(3) Boyd made the following comment | May 8, 2011 6:25:50 PM | Permalink

I'm certainly approaching this from the innocence of a layman, but that notwithstanding, AG Holder is now representing his client, the United States of America, correct? Cannot he now legitimately say, "I am only representing my client's interests, and I don't necessarily agree personally with everything I say on the client's behalf?"

(4) Gregory Koster made the following comment | May 9, 2011 12:08:36 AM | Permalink

Dear Mr. Dyer: Where's that darned fly on the wall when you need him? What Holder told The One in re Osama would be mighty interesting to learn. A capture, live Osama would be an intolerable burden for The One, let alone Holder. A trial would drag on for years, with everyone in the world taking turns criticizing EH's conduct, the Left when the hangman's noose had the slightest chance of tightening, the Right when he followed his natural instincts and training and tried to spit in Geo. W.'s eye. There were only two ways out: let Osama escape, or kill him. The choice is obvious. As a follow on, the choice to kill Osama can only have caused friction with The One's other mob of imbecilies, e.g. Jarrett, who bawled the true faith, and wanted to let Osama go. Such ciphers figured that they could do this without any consequences to themselves. EH, being closer to the firing line, knew better. How he must resent being called on his previous idiocies.

Sincerely yours,
Gregory Koster

(5) Beldar made the following comment | May 9, 2011 1:11:02 AM | Permalink

Boyd (#3), a layman's view is valid when it comes to the Attorney General of the United States and his master, the POTUS. It's a unique position, and a unique type of attorney-client relationship. In terms of the Constitution, laws, and precedents, though, as a general matter it's fair to condense things down to one rule: After confirmation by the Senate, the Attorney General serves at the pleasure of the POTUS. Short of impeachment by Congress, only corrective for unethical conduct by an attorney general is to refuse re-election to the POTUS who appointed him.

If you think that's a hint, you're right.

In a civilian setting, viewed in the light most favorable to Holder (and most ethically flexible, which amounts to the same thing), the conflict of interest would absolutely, positively be one that ought to be disclosed — and thereafter, the client may choose to make a knowing waiver of his/its rights to complain of the conflict. And yes, some clients might choose to keep the lawyer who's just made a disclosure like this:

I've previously concealed from you, in my sworn answers to your questions when you hired me in 2009, that in my personal capacity, back in 2004, I took a whole bunch of positions in writing in an appellate brief that are exactly opposite to the ones that need to be argued on your behalf now for you to have any chance of winning. And, uh, I felt so strongly about it that I did this for free, in a case to which I wasn't even connected. Indeed, I felt so strongly then that your present positions are wrong that I couldn't possibly stay silent. I simply felt I owed it to the courts to tell them, back then in 2004, exactly how wrong your present positions (now in 2011) really are. But don't worry, I can still be your lawyer, as long as you say it's okay. [wink-wink nudge-nudge]

But most rational clients would want a new lawyer after hearing that disclosure. Wouldn't you? It's not like lawyers are hard to find in Washington; you can't swing a dead cat without hitting four of them.

In a civilian setting, Holder's failure to disclose a conflict of interest as material as this one would be legal malpractice; it might also threaten one's law license. It's wrong, and if the client goes on to lose (even with new lawyers), it's usually nearly impossible for the lawyer who perpetrated the fraud to convince anyone that the quality of his legal advice, judgment, and/or representation were entirely uncompromised.

Holder has admitted he ought to have disclosed this brief before the Senate voted on his nomination. Had he done so, the GOP minority would have beaten him about the head and shoulders with it; whether it would have been enough to defeat the nomination, no one will ever know, since that would require us to speculate about the ethics, and ethical electoral sensitivities, of Democratic senators. But to those who say Obama could have put whoever he wanted in his cabinet, no matter what their disclosures or constituencies, and the Dem majority in the Senate would have confirmed them anyway, I've got two names you need to account for first with that theory: Hillary Clinton and Robert Gates. (And that's before we even start to look back under the bus.)

At a bare minimum, it's fair to say that whatever margin of credibility Holder brought with him to the job is eroded by this kind of ethical shortfall. But the revelation of his participation as an amicus, and his failure to disclose it to the Senate, was back in 2010. Holder's still apparently pleasing his master sufficiently for that master to prefer continuing Holder in service.

It would not be silly, however, to expect Holder to develop a sudden need to spend more time with his family before November 2012 — and not just because of his patent ineptitude on handling GWoT detainee issues.

(6) Boyd made the following comment | May 9, 2011 2:07:26 AM | Permalink

I'm not familiar with the disclosure requirements or procedures for cabinet officers, but I'll just say this: if the Republican minority in the Senate weren't aware of Holder's amicus brief in that case, then they're the ones who should be removed from office. I'm just a good ol' boy from Brownwood (but now in Austin), retired from the Navy and trying to make it as a software developer, and I damn sure knew about his amicus brief on Padilla's case.

If they didn't beat Holder about the head and shoulders over Padilla when they should have, that says a damn sight more about the Republican Senators than Holder.

I hasten to add, not that I disagree with your fundamental point that Holder has no place being AG, but Geithner has no place at Treasury, either. And yet, here we are.

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