Patterico's Pontifications

2/23/2010

Eric Holder’s 9+ Little Conflicts

Filed under: Government,Law,Obama,Politics — DRJ @ 2:53 pm



[Guest post by DRJ]

From the indefatigable Byron York:

“A number of lawyers who work on terrorist issues at the Justice Department represented terrorist detainees before joining the Obama administration. At a hearing three months ago, Sen. Charles Grassley raised the possibility of a conflict with Attorney General Eric Holder.

Grassley, a senior Republican on the Senate Judiciary Committee, posed three simple questions: Who are they, who did they represent, and what are their duties at the Justice Department today?”

Grassley knew some of the answers:

“At the time, Grassley knew from press reports that two high-ranking department officials now working on detainee issues had previously worked for detainees: Principal Deputy Solicitor General Neal Katyal once represented Osama bin Laden’s driver, and Jennifer Daskal, an official in the National Security Division, worked on behalf of detainees at the liberal organization Human Rights Watch.

“This prior representation, I think, creates a conflict of interest problem for these individuals,” Grassley said, asking Holder to supply the names of all political appointees who had represented or advocated for detainees, the cases they worked on, and their terror-related responsibilities in the Justice Department.”

Holder’s response? Read the link for the complete chronology but Holder basically stonewalled until finally providing a partial answer that “at least nine” lawyers had previously represented detainees. And “all department appointees understand that their client is the United States.”

It is a conflict of interest and misconduct if an attorney’s representation of one client adversely affects another client. Law firms sometimes create fictional Chinese walls to separate one part of the firm, representing a party on a deal or litigation, from another part with contrary interests. The government could do that, too, by preventing the detainee lawyers from working on detainee matters and segregating them from lawyers who do.

Grassley is still waiting on that response.

York and the Republicans also ask: Will a fictional Chinese wall protect America’s national security interests? Jamie Gorelick probably thinks it will. Eric Holder must think so, too.

— DRJ

51 Responses to “Eric Holder’s 9+ Little Conflicts”

  1. “The government could do that, too, by preventing the detainee lawyers from working on detainee matters and segregating them from lawyers who do.”

    It seems like this would mean that DOJ can’t hire lawyers with detainee experience and apply them to other detainee cases. That’s a shockingly short cited view, and one that doesn’t jibe with how conflicts are calculated.

    Also you’re forgetting that these lawyers likely have professional obligations to former clients. That also bars them from certain work.

    No doubt a lawyer can’t just switch sides on a piece of litigation. But clearly lawyers can switch from being prosecutors to defense counsel, from being plaintiff’s lawyers to representing doctors, etc… If anything the experience they bring to their new employer is an asset.

    imdw (78ece3)

  2. No need to look beyond Occam’s razor for this one. They are what what we always knew they were.

    j curtis (5126e4)

  3. an official in the National Security Division, worked on behalf of detainees at the liberal organization Human Rights Watch.

    If nothing else symbolizes the rank political tilt of these budding reactionaries, this description will suffice.

    Dmac (799abd)

  4. Any vermin that represented the scum of the earth detained at GITMO have absolutely no fing business representing the USA in any matters concerning freakin detainees period. Good God Man! Have you lost your fing soul? My 8 year old can figure this out. Why not put career mob defense lawyers in charge of prosecuting mobsters? This conflict of interest is greater the fing GRAND CANYOPN for crying out loud!

    Yeah,m yeah everyone is due thier day in court and due their representation b.s. Tell that to Daniel Pearl! Tell that the 3,000 people who died on 9-11. These monsters are scum of the deadliest kind and need to be taken out period. How do you fight an enemy that considers it an honor if he kills himself as long as he takes some innocent women and children with him? You can’t fight these kinds of insane warriors. The ONLY solution is to kill them before they kill any innocents! PERIOD!

    Well gee, only 78 of them have gone back onto the battlefied and killed more Americans and innocent civilians, only 78….. That is 70 fing 8 too god damn many! Send them to Allah before they can kill any innocents. Not the final solution, the only solution otherwise we might as well just low our own fing brains out ourselves.

    J. Raymond Wright (d83ab3)

  5. Plus there’s the other way of looking at it: that obama and holder are such fascinating figures that they can turn human rights advocates into supporters and enablers of their detainee policies.

    imdw (e66d8d)

  6. Although I have to give them credit for finally stepping up and taking on Castro and the Iranian mullahs, after decades of virtual silence on the regimes.

    Dmac (799abd)

  7. you’re forgetting that these lawyers likely have professional obligations to former clients

    Professional obligations did not motivate these lawyers. They defended the terrorists pro-bono and out of their own convictions. That’s admirable, in a sense. But it does suggest that they have deep-seated convictions on this issue which they will not be able to set aside and which will influence any further decisions they make while in government.

    Subotai (7236b0)

  8. Kill them, kill them all, kill them fast, kill them before they can kill any innocents. Anything less is suicide!

    J. Raymond Wright (d83ab3)

  9. imdw:

    It seems like this would mean that DOJ can’t hire lawyers with detainee experience and apply them to other detainee cases. That’s a shockingly short cited view, and one that doesn’t jibe with how conflicts are calculated.

    But that’s how our legal system works, and perhaps you are the one being short-sighted. If we let lawyers switch sides, then we need new rules that actively police how they represent their new clients and allow real time investigations into whether their actions are in their old or their clients’ best interests. Do we really want to go there?

    DRJ (6a8003)

  10. all department appointees understand that their client is the United States

    I’m sure that they do. But what do they think of that client? Do they think it is in the right or the wrong? Do they think that their ex-clients in Gitmo are in the right or the wrong? To which client does their true loyalty lie?

    Subotai (7236b0)

  11. Perhaps Holder can put those lawyers with conflicts to work finding ways to punish the legitimately elected government of Honduras. That work seems well in line with their interests and skill sets.

    daleyrocks (718861)

  12. “To which client does their true loyalty lie?”

    Subotai – To the living Constitution as interpreted by them, of course.

    daleyrocks (718861)

  13. It’s never too early to start the Sami Al Arian pardon application. That could absorb a few pro-jihadi lawyers

    daleyrocks (718861)

  14. OK, some will think this is too PC, but its ethical wall, not Chinese Wall.

    49er Fan (2082b6)

  15. Heh. It probably is in today’s law schools. Thank goodness I’m not still in law school.

    DRJ (6a8003)

  16. 49er Fan – The term Chinese Wall, stemming from the Great Wall of China, implies no communication between people on opposite sides of the wall. It IS way too PC to take issue with the description.

    daleyrocks (718861)

  17. The blindness of some of these lefties is interesting. Let’s do a thought experiment. It’s the Bush administration and they have a bunch of political appointees who have been defending the Klan pro bono for the past ten years. Now, they are assigned to the Civil Rights Division enforcing the Voting Rights Act.

    How does that work for you ?

    Mike K (2cf494)

  18. Been a while since I looked, but the ethical rules for government attorneys are somewhat different than those for private attorneys, no?

    Hadlowe (061332)

  19. DRJ, what specific conflict rule are you applying?

    I ask because the result can vary dramatically depending upon which jurisdiction’s ethics rules you use. In California, for example, I am only prohibited from taking on a matter adverse to a prior client if I obtained confidential information material to the new matter from the prior client. (Cal. R. Prof. Cond. 3-310(E).)

    The ABA Model Rule, on the other hand, would seem to bar me from taking on the new matter if it (1) was the same or substantially related matter, and (2) the new client’s interests are materially adverse to the old client’s interests. (ABA Model Rule 1.9)

    The DC Rule, on the other hand, are skull-crushingly vague. (D.C. R. Prof. Cond. 1.7.)

    Conflict of interest law is governed by very specific rules. With all respect, your generalization “It is a conflict of interest and misconduct if an attorney’s representation of one client adversely affects another client” is too general and ambiguous to be useful to resolve the legal question.

    So what standard, exactly, do you believe applies?

    Ken (c97a0c)

  20. “they have a bunch of political appointees who have been defending the Klan pro bono for the past ten years.”

    Mike K – I only see that as a realistic scenario under a Nor Luap administration and he doesn’t have a shot in hell of being elected, just sayin’.

    daleyrocks (718861)

  21. It’s the Bush administration and they have a bunch of political appointees who have been defending the Klan pro bono for the past ten years. Now, they are assigned to the Civil Rights Division enforcing the Voting Rights Act.

    How does that work for you ?

    Nice analogy, Mike K.

    Address the analogy, lefties. Fail to address the analogy and you concede the obvious pro-jihadist tendencies of Obama, Holder and these DOJ lawyers.

    j curtis (5126e4)

  22. I only see that as a realistic scenario under a Nor Luap administration

    Just curious – where does this belief that Ron Paul is a Klansman originate from?

    Subotai (7236b0)

  23. Subotai – I did not say he was a Klansman. His writings and affiliations in the 1990s suggest he has some very questionable attitudes on race. A lot of this came out last year if you care to look.

    daleyrocks (718861)

  24. Hadlowe,

    I don’t know what the government rules are on conflicts of interest but Senator Grassley tangentially addressed the issue at his website. He also quotes from a Washington Times article that states there have been recusals at the DOJ:

    According to documents obtained exclusively by The Washington Times, Associate Attorney General Thomas J. Perrelli, No. 3 official in the Justice Department, had to recuse himself on at least 13 active detainee cases and at least 26 cases listed as either closed or mooted.
    ***
    Mr. Perrelli’s recusals presumably stem from the work that either he or his former firm, Jenner & Block LLP, did on behalf of detainees while Mr. Perrelli served on the firm’s management committee and on its appellate and Supreme Court practice groups. And Mr. Perrelli is just one official; a number of other Justice Department officials apparently did private-sector work on detainee cases.

    And this is why the Washington Times’ editors think the issue is important:

    None of this is to say that Mr. Perrelli did anything wrong. His recusals are proper, but the extent of the recusals raises questions about whether the attorney general has enough unbiased advisers around him to have made good judgments about how to try Khalid Shaikh Mohammed and other detainees. He certainly did seem terribly ill-informed when asked basic questions at the Senate Judiciary Committee hearing on Wednesday about how Miranda rights for detainees would be treated in civil courts and if any enemy combatant from a foreign battlefield had ever been tried in American civil courts. Columnist Charles Krauthammer justly called Mr. Holder’s responses “utterly incoherent.” If the incoherence stems from an inherent bias among President Obama’s appointees at the Justice Department, senators and the American public have the right to know it.

    DRJ (6a8003)

  25. That is a good analogy, Mike K.

    DRJ (6a8003)

  26. Thanks for the response. My impression of government employee conflict rules was along the lines of those in the Washington Times article, just didn’t want to offer up specifics without looking at the actual rules.

    Hadlowe (061332)

  27. I did not say he was a Klansman.

    You strongly implied it.

    His writings and affiliations in the 1990s suggest he has some very questionable attitudes on race.

    Why so evasive? Anyway, this is off topic, I just wondered at all the “Paul is a racist” comments I see around. I won’t drag it out of you if you don’t want to talk about it.

    Subotai (7236b0)

  28. No prosecutors or defense lawyers should ever become judges, either?

    nk (db4a41)

  29. Grassley is full of sugar. Lawyers know what duty is and they fulfill it. Case by case.

    nk (db4a41)

  30. No prosecutors or defense lawyers should ever become judges, either?

    Not of people they’ve prosecuted or defended, no.

    Subotai (7236b0)

  31. “Professional obligations did not motivate these lawyers. They defended the terrorists pro-bono and out of their own convictions.”

    Yes but violating these will get them disbarred. Maybe I mislabe led when I called them “professional obligations”

    “But that’s how our legal system works, and perhaps you are the one being short-sighted”

    Take a look at the model rules (I don’t know if they are at answers.com) and teach me about how the legal system works. You can’t switch sides in a particular case. But you can certainly switch from representing people accused of crimes to people doing the accusing.

    imdw (e66d8d)

  32. violating these will get them disbarred

    It’s practically impossible for a lawyer to get disbarred, absent a criminal conviction. Who is going to disbar these guys? Their fellow lawyers?

    Subotai (7236b0)

  33. “It’s practically impossible for a lawyer to get disbarred, absent a criminal conviction. Who is going to disbar these guys? Their fellow lawyers?”

    Uhhhh. If someone represented a detainee and then turned around and violated that confidence and turned info over to the government? There are plenty of lawyers willing to take that on.

    And likely plenty of emptyheaded detainee apologists to cover it though.

    imdw (7b07d2)

  34. Witnessing Eric Holder’s late Friday afternoon release of the report that completely cleared Jay Bybee and John Yoo tells me all I need to know about the lack of character of our Attorney General.

    The man should be ashamed of himself.

    GeneralMalaise (0428a9)

  35. imdw,

    The issue isn’t switching sides, it’s whether the lawyers recused themselves from the detainee cases they worked on, from working on related detainee cases, or from making policy that affects those cases. We don’t know the answers because Holder hasn’t responded to those questions.

    DRJ (6a8003)

  36. “We don’t know the answers because Holder hasn’t responded to those questions.”

    Nor will he… ever.

    GeneralMalaise (c58b20)

  37. “The issue isn’t switching sides,”

    See, things like this:

    “it’s whether the lawyers recused themselves from the detainee cases they worked on, from working on related detainee cases, or from making policy that affects those cases.”

    Are what I mean by “switching sides” in the same case. They can’t do that by their obligations to their former detainee clients. Except that I don’t know what you mean by “related.” They can’t now work for a new client doing something against their former client. But they can certainly go ahead and help the united states against other detainees.

    Now you say ‘the issue is’ but there was one other you mentioned:

    “Will a fictional Chinese wall protect America’s national security interests?”

    imdw (89ba95)

  38. I’m having to speak generally about this because without the facts, all we have are generalities. But I think the issues are whether the lawyers who previously represented detainees are now prosecuting detainees (their own or others); whether they are making policy decisions that affect the detainee cases; and whether there are additional national security questions that raise concerns about having the same people involved in prosecuting the war on terror that were previously opposing it. This is especially true now that the Obama Administration wants to put lawyers the front-line of the War on Terror.

    DRJ (6a8003)

  39. “But I think the issues are whether the lawyers who previously represented detainees are now prosecuting detainees (their own or others)”

    Their own is a no-no — but that’s a duty they owe their former clients, not the US. Others is fine.

    “whether they are making policy decisions that affect the detainee cases”

    They can’t directly work against the interests of hteir former clients. But they’ll be able to affect general policy. Imagine an lawyer for Exxon going to work at EPA, or at Interior, and helping to make oil policy. You think that can happen?

    “and whether there are additional national security questions that raise concerns about having the same people involved in prosecuting the war on terror that were previously opposing it.”

    But that wouldn’t be a conflict of interest by attorney rules. What kind of “national security questions” are raised by Obama convincing former human rights defenders to now be enablers of his detainee policy?

    “This is especially true now that the Obama Administration wants to put lawyers the front-line of the War on Terror.”

    Sure and a lawyer can’t make the decision to bomb one of his former clients. But having had an afghani client, a lawyer can decide to bomb other afghanis.

    imdw (d19661)

  40. I just wondered at all the “Paul is a racist” comments I see around.

    I don’t know if he’s a racist, but he seems to have one too many supporters who most definitely are – while I don’t hold him responsible for those individual’s right to support whomever they choose, he has had a problem distancing himself from them at times. I’m thinking specifically of the donation he accepted from a known white supremacist group (aka Neo – Nazi) during the last primary, and he only gave it back after the resultant uproar. He’s also associated himself with a veritable who’s who of the nutbag crowd – Truthers, those who believe that the US policy towards Israel caused 9/11, Holocaust Deniers, etc. I remember an appearance he made on a local radio show here, and his crazed fanboys jammed the phone lines in an attempt at stifling discussion of his many bizarre viewpoints.

    http://www.americanthinker.com/2007/11/the_ron_paul_campaign_and_its.html

    I personally think he’s got more than a few screws loose, but what do I know?

    Dmac (799abd)

  41. If someone represented a detainee and then turned around and violated that confidence and turned info over to the government? There are plenty of lawyers willing to take that on.

    I’m more concerned about lawyers who now in theory are representing the United States but who still have the best interests of their “former” clients at heart. Will they be in trouble with the bar? Probably not.

    And there is grounds for concern because these lawyers are not mere professionals, but True Believers in the innocence of these men. This was pointed out to you but you ignored it.

    Subotai (7236b0)

  42. Those are valid arguments, imdw. Why isn’t Eric Holder willing to talk about them? Maybe he believes the answers are so self-evident that they aren’t worth discussing, but that’s a curious decision from people who think the policies of the prior Administration were always worthy of debate.

    DRJ (6a8003)

  43. “I’m more concerned about lawyers who now in theory are representing the United States but who still have the best interests of their “former” clients at heart. Will they be in trouble with the bar? Probably not.”

    Say what? Of course. competence is the minimum

    “Maybe he believes the answers are so self-evident that they aren’t worth discussing, but that’s a curious decision from people who think the policies of the prior Administration were always worthy of debate.”

    I think he’s telling Grassley that he is a moron for thinking his lawyers are committing malpractice or that the DOJ can police that just fine.

    imdw (8f8ead)

  44. Competence is not the minimum. The highest standard of professionalism, competence and care is the minimum.

    imdw, I think you should stay out of this discussion because you don’t know what you’re talking about — you’re just reflexively defending Obama and making yourself look like a fool.

    nk (db4a41)

  45. I don’t know any defense attorneys who became prosecutors, but I do know both defense attorneys and prosecutors who became excellent judges, and prosecutors who became excellent defense attorneys. It is a case by case thing and the question is the exercise of independent judgment on behalf of the client before you.

    nk (db4a41)

  46. Been a while since I looked, but the ethical rules for government attorneys are somewhat different than those for private attorneys, no?

    The cynic in me says that there can’t be any difference since “attorney ethics” is an oxymoron.
    But, I’ll settle for just ROTFLMFAO!

    AD - RtR/OS! (af3002)

  47. I am proud of my profession, the way I practice it and the way other lawyers I know practice it, and I do not like someone who could not hack it as a lawyer and went into politics instead (Grassley) making speculative accusations.

    nk (db4a41)

  48. Of course. competence is the minimum

    Competence as defined by who?

    Obama can stock his administration with anyone he likes. And we can make judgements about his competence based on who those people are. As a rule, they seem to be far left ideologues with a distinct penchant for dishonesty. Rather like their boss and his supporters. Rather like you.

    Subotai (7236b0)

  49. “Competence as defined by who?”

    Ask nk apparently I’m the one around here that doesn’t know what they’re talking about.

    imdw (016fbb)

  50. “Why so evasive? Anyway, this is off topic, I just wondered at all the “Paul is a racist” comments I see around. I won’t drag it out of you if you don’t want to talk about it.”

    Subotai – I’m not being evasive and I didn’t say he was a Klansman. Don’t put words, implied or otherwise in my mouth.

    Ron Paul published a newletter(s) starting in the 1980s, possibly 1970s, that he turned over to others at some point during the 1990s. It often published some pretty hinky stuff about race. It attracted a survivalist and white supremacist crowd to Paul. Some of the other writers were also pretty creepy. Some of this stuff surfaced during one of Paul’s elections around 2000, I believe, and caused a stir, leading Paul to downplay his involvement. A lot of this was rehashed during the 2008 campaign. Personally, I think he has some serious issues with race based on what I read in 2008. He’s nucking futz. Google it, it’s there.

    daleyrocks (718861)

  51. When you say “terrorist detainees,” you mean they were all found guilty, right?

    Santana Jones (ab64cf)


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