It appears that Eric Holder signed a brief in support of Jose Padilla’s legal position, but did not disclose this during his confirmation hearings. According to Bill Burck and Dana Perino, the brief argued that the government should not hold terrorists caught in the U.S. as enemy combatants, with no right to a criminal trial or to remain silent or to counsel during questioning, particularly if they are U.S. citizens.
The brief acknowledged that “these limitations might impede the investigation of a terrorist offense in some circumstances” because “in some hypothetical situation, despite the array of powers described above, the government might be unable to detain a dangerous terrorist or to interrogate him or her effectively.” The brief argued, however, that “this is an inherent consequence of the limitation of Executive power.”
Holder certainly had the right to advocate this position. However, he should have disclosed this advocacy. It seems he did not. According to Burck and Perino:
Holder apparently failed to disclose his involvement in this brief when he was up for confirmation early last year, even though the Senate questionnaire he was required to fill out specifically requested such information and directed him to provide to the Senate Judiciary Committee copies of any briefs filed with the Supreme Court. He disclosed three amicus briefs but made no mention of this one — or another one renewing his support for Padilla when the case returned to the Supreme Court again in late 2005. . . .Had Holder disclosed these briefs to the Senate Judiciary Committee, no doubt he would have been extensively questioned about the views expressed in them. It is disappointing, and perhaps troubling, that he did not.
The final sentence of this quotation could have done without the word “perhaps.”
This isn’t the only instance in which Holder was less than candid during the confirmation process. As I explained here, Holder was less than forthcoming with the Senate Judiciary Committee about his relationship, as a partner at Covington & Burling, with the corrupt governor of Illinois, Rod Blagojevich.
Holder claimed he performed no substantive legal work for Blagojevich, but in fact had issued a request for production of documents in furtherance of an investigation he was performing on the governor’s behalf. And Holder initially failed to disclose a press conference at which Blago announced that Holder would be handling the investigation.
Holder’s supporters like to talk about the “proud” tradition of lawyers defending unpopular clients. But Holder doesn’t seem to have been proud enough of this tradition to disclose important instances in which he followed it.