The Senate Judiciary Committee has cause to consider finding Attorney General Eric H. Holder Jr. in contempt of Congress. During his confirmation process last year, Mr. Holder withheld a tremendously important legal brief from the committee. Combined with a series of other occasions on which the attorney general has stonewalled congressional queries, this new revelation reflects so badly on Mr. Holder’s ethics that it puts in doubt his fitness for office.
This wasn’t just any old legal brief. It was a brief (actually, two of them on the same basic case) before the Supreme Court regarding one of the most important and controversial cases of the past several decades. This case had direct bearing on the single most important issue of Mr. Holder’s tenure so far as attorney general.
When the committee was considering Mr. Holder’s confirmation, it asked, as is standard practice, for copies of any briefs he had filed with the Supreme Court. According to National Review Online’s Dana M. Perino and Bill Burck, he provided three “friend of the court” briefs - but failed even to mention the two most important ones, namely those concerning the case of Jose Padilla, the U.S. citizen accused of plotting with al Qaeda to blow up an American city. The Padilla case raised the question of whether American citizens can be held as enemy combatants and whether they have rights of access to American courts.
This is still an issue of virulent public dispute. In the Padilla case, Mr. Holder joined former Attorney General Janet Reno in arguing that an American citizen cannot be held as a detainee. His position on that question was of major interest during his hearing, yet he failed to disclose to the committee the fact of his involvement.
A Justice Department spokesman on March 10 offered this lame explanation: “In preparing thousands of pages for submission, it was unfortunately and inadvertently missed.” That excuse is farcical. An AG nominee might inadvertently forget to provide a memo written to a law partner about whether the firm should accept a big tax case, but “inadvertently” forgetting a major Supreme Court brief is implausible in the extreme.
Mr. Holder has cited the Padilla case several times in communications to Congress in the past few months - somehow without jogging his memory about having never disclosed to Congress his prior involvement. Andrew C. McCarthy of the National Review Institute, who successfully prosecuted the perpetrators of the 1993 World Trade Center bombing, has noted that Mr. Holder actually misrepresented the ultimate decisions in the Padilla case and that his arguments to Congress were so “strikingly similar to the arguments in the missing brief” that they seemed to be lifted from the brief itself.
This puts more negative light on Mr. Holder’s three-month-long refusal to disclose the names and cases of Justice Department attorneys who previously worked on detainee cases. This stonewall only crumbled after The Washington Times and other news outlets unearthed the names. This gives the impression that Mr. Holder was trying to block department attorneys from criticism and, worse, cover up his own lack of candor during his confirmation hearings.
In the summary section of their brief on the Padilla case, Mr. Holder’s team asserted that the big question on detainee issues is “one of accountability.” Now it’s time to hold Mr. Holder accountable as well.