How does the nation’s highest ranking lawyer forget what a lawyer’s job is? If I had to guess, I would say it could happen when the U.S. Attorney general in question is thinking about politics more that the law, and has been under such continuous fire from the public and the media for repeated bungles that he no longer knows who he’s working for.
But that would just be speculation on my part.
We know for certain, however, that U.S. Attorney General Eric Holder delivered a statement announcing that Khalid Sheikh Mohammed and his four co-conspirators would be tried by a military tribunal at Guantanamo, and not in civilian trials in the U.S. as the Obama Administration had preferred. In the middle of this statement, Holder says,
“Had this case proceeded in Manhattan or in an alternative venue in the United States, as I seriously explored in the past year, I am confident that our justice system would have performed with the same distinction that has been its hallmark for over two hundred years. Unfortunately, since I made that decision, Members of Congress have intervened and imposed restrictions blocking the administration from bringing any Guantanamo detainees to trial in the United States, regardless of the venue. As the President has said, those unwise and unwarranted restrictions undermine our counterterrorism efforts and could harm our national security. Decisions about who, where and how to prosecute have always been – and must remain – the responsibility of the executive branch. Members of Congress simply do not have access to the evidence and other information necessary to make prosecution judgments. Yet they have taken one of the nation’s most tested counterterrorism tools off the table and tied our hands in a way that could have serious ramifications. We will continue to seek to repeal those restrictions.”
This is a bright line violation of Holder’s duty as an attorney to his client, which is not the Obama Administration, and not the President, but in this matter and at this time, the entire U.S. Government, which has told him, in clear terms, what it wants its legal representative to do. His job is to do it, not to tell the public how wrong, ill-informed and stupid he thinks his client is. All the professional rules governing lawyers, including Holder, include Rule 1.16, which says that if a client’s lawyer believes that the client’s decision in a matter is imprudent or repugnant, he can withdraw from the representation….quietly. No matter how wrong a lawyer thinks his client is, he may not publicly criticize of attack the client, or as in this case, act adversely to his client by trying to build public sentiment in opposition to the client’s stated interests.
Holder’s statement also proves that he has a conflict of interest sufficient to require his resignation. He is asserting the position of one branch of the government against another, when the client’s decision—that is, the decision of the whole Government, with participation of all branches—has been made and is clear. D.C. Rule 1.7 (b) states…
…. a lawyer shall not represent a client with respect to a matter if:
(1) That matter involves a specific party or parties and a position to be taken by that client in that matter is adverse to a position taken or to be taken by another client in the same matter even though that client is unrepresented or represented by a different lawyer;
(2) Such representation will be or is likely to be adversely affected by representation of another client;
(3) Representation of another client will be or is likely to be adversely affected by such representation;
(4) The lawyer’s professional judgment on behalf of the client will be or reasonably may be adversely affected by the lawyer’s responsibilities to or interests in a third party or the lawyer’s own financial, business, property, or personal interests.
I think Holder is four for four…his statement violates all of the above. He seems to feel that his primary loyalties should be to one of his clients—the White House—over his most important client, the Government. He is wrong, and acting in such a manner is a professional violation. The last line is particularly unprofessional: “We will continue to seek to repeal those restrictions.” Who is “we”? Holder is speaking for the Executive branch, but this is not his place. He is telling his main client, the Government itself, “I don’t like your goals, and I’m going to work against it.” You fire your lawyer when he tells you that.
Brookings scholar Benjamin Wittes writes,
“…. the tone of Holder’s comments today seems to me all wrong. He, and the Obama administration generally, still talk as though this administration does not own the policies it is implementing. The detainees are a legacy of the last administration–notwithstanding the litigating positions of this administration. Guantanamo is an illegitimate diplomatic eyesore that must be closed–even though this administration will not close it and relies every day on the legitimacy such statements undermine. Military commissions are an embarrassing cousin of the justice system, another legacy of the last administration–notwithstanding the legislation this administration sought and received enshrining them in law and the fact that it will now use them in this highest-profile of cases. Eventually, this administration needs to face the fact that these are its policies. Yes, Obama was dealt a bad hand–in part by the last administration. Guess what? Bush was dealt a really bad hand too. It is time for the administration to stop talking in a fashion that delegitimizes the tools it is, in fact, committed to using.”
Yes, this is true: no President and no administration in history has so persistently rejected accountability as a core principle of leadership and continued to treat our government as a series of coups rather than a continuum, constantly blaming predecessors and sometimes other branches rather than accepting the inherited responsibility for all that has gone before as well as the policies going forward. But in Holder’s case, following this pattern is worse than “all wrong.” It is unethical, and a violation of his professional responsibilities as the U.S. government’s chief counsel.
10 thoughts on “U.S. Attorney General Ethics, Rule #1: Remember What Your Job Is”
What do we expect from an attorney general who, from day one, has done nothing but foster and implement the political agenda of the person who appointed him?
Without challenging your assessment, we should always expect lawyer to behave ethically toward their clients.
Tough call. On the one hand, Congress cannot “promulgate” (one of that verb’s meanings is “to put a law into action or force”) laws. It can pass them, but they do not become “the law of the land” until the Chief Executive signs (promulgates) them. So Congress cannot dictate to nor command the Executive Branch.
On the other hand, you may be correct, Holder’s client is not just the Executive.
Tough call; glad I don’t have to make it.
On the latter point, I am correct. There isn’t any legitimate dispute about it. That doesn’t mean that most Atty. Generals tend to behave otherwise.
Sorry Eric old boy, you do work for US (not just the USA but us, its citizens). I’m no lawyer, but have never seen the point of trying Khalid Sheikh Mohammed and his four co-conspirators in a regular criminal court. Don’t things like the rules of discovery then apply? Would not the prosecutors be forced to share information and evidence with Khalid et.al.’s attorneys? Might there be some classified information involved here that would not serve the nation when splashed above the fold of The New York Times? Perhaps Jack can answer that for me.
As for working for Obama, it seems clear (and I do know a little about this), the requirements for being the lead attorney for the United States does place ethical restrictions (and, dare I say it, aspirations) that do not apply to other political appointees. The law has rules of professional conduct because (in part) the requirements of both prosecution and defense are so fraught with opportnities to do the unethical (if effective or practical or self-serving) act, that basic rules have been written to assist attorney decision-making. Holder, as an attorney and, I presume, member of some bar association should know this. It sets him apart from say Hillary Clinton, who happens to be a lawyer but is not practicing law in behalf of the United States. Other cabinet members and “czars” are equally free of the special requirement of being the primary lawyer for an entire country.
Would someone please send Holder a copy of the American Bar Associations Model Rules of Professional Conduct? He needs it. badly.
Might there be some classified information involved here that would not serve the nation when splashed above the fold of The New York Times? Perhaps Jack can answer that for me.
I can answer that for you. When law enforcement uses classified information to prosecute bad guys, they maintain two parallel case files: one classified and one unclassified. The classified file never goes to court. It is only used to assist with the investigation. The case made against the defendant uses ONLY information from the unclassified file.
But when the prosecutor knows something to be true, but can’t say WHY, it makes it much easier to know what unclassified information to find and/or subpoena so that the case can be proven without the secret sauce.
When classified information goes to court by mistake, people get in BIG trouble.
Bringing a BIG ‘terrorist’ to real court brings our Constitution back into play. And we, as a country, could have begun to walk the walk again about being for freedom and the rule of law. Military tribunals are exactly what ‘we’ say are BAD in other countries. The Israelis have a separate, but equal, court system for terrorism cases. And I know that’s a loaded descriptor, but seriously, the only real difference from what I recall is SPEED. They don’t dispense with rules of evidence and juries, etc. like our tribunals will, they just track differently. And I think we can agree that perhaps Israel plays with terrorists in court more often than we do? I was all for using OUR justice system to bring about justice. But I’m in the minority.
Assuming the military tribunals use the Uniform Code of Military Justice for the prosecutions, I wonder how many people who condemn military justice have ever read it?
I don’t condemn military justice, and I have read UCMJ 1951. But do not assume that the Gitmo trials would use UCMJ. As I understand it, the late and unlamented Bush Administration came up with a bunch of trial rules for their “military tribunals” that have little to do with UCMJ, concerning admissibility of evidence, standing of witnesses, etc., applying only to the Gitmo “military tribunals” and not to regular UCMJ courts-martial (CM). In other words, a stacked deck.
There are 3 levels of CM, summary, special and general. Summary CM and special CM try what on the outside would be infractions and misdemeanors. General CM is akin to felony trial.
Summary CM is before one officer. Special CM is usually before 5 officers (and may include enlisted men/women if the accused so desires). In Special CM prosecution and defense do not have to be graduate lawyers. In General CM, both must be graduate lawyers.
I am not a lawyer. Back in the day, as an Infantry officer I served as prosecution several times, and as defense counsel in a number of Special CM.
For those who condemn military justice: it is my considered opinion (and experience) that an accused person stands a better chance of getting a fair trial in a CM under UCMJ than they would in a civilian court of similar jurisdiction.
But, of course, the Gitmo prisoners won’t be tried under UCMJ.