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.