Attorney general didn’t reveal all legal briefs from private practice during confirmation

AG Holder didn’t reveal all legal papers to Senate

WASHINGTON — Attorney General Eric Holder did not provide senators considering his nomination last year with all of the legal papers he had signed or written while in private practice, Justice Department officials disclosed Friday.

The department alerted the Senate Judiciary Committee about the lapse, listing seven cases in which Holder signed or filed legal briefs that were not previously disclosed. Six of those were so-called friend-of-the-court briefs, which were signed by numerous other ex-officials as well and offered positions on cases with which they were not directly involved.

“These briefs were inadvertently not supplied to the committee, which we regret,” said Justice Department spokeswoman Tracy Schmaler. “We have now supplied the committee with all briefs as counsel or amicus before the Supreme Court of which we are aware.”

The briefs are on issues like the Miranda rights of criminal suspects, terrorism cases, and procedures for challenging potential jurors. They are consistent with Holder’s long-held public positions dating back years from his tenure as a federal prosecutor, a judge, and deputy attorney general in the Clinton administration.

GOP senators have claimed that had they known of it they would have grilled Holder on a friend of the court brief he joined related to a terrorism suspect the Bush administration wanted to hold in military custody. But terrorism policies were much discussed at Holder’s confirmation hearings in early 2009, and when another Justice Department nominee came before the committee who had personally represented a terror suspect, he was not questioned in any detail about that.

The admission comes as Republicans have been on the attack against other lawyers in Holder’s Justice Department, questioning why a group of nine attorneys who did past work for terror detainee suspects should now be working for the government.

The criticism is part of a larger political charge being leveled by Republicans that the Obama administration is not tough enough on terror suspects. In the case of the lawyers’ past legal work, this criticism drew sharp rebuttals from other lawyers and even from fellow Republicans, who say the critics, in their bid to score political points, are ignoring the long-accepted legal practice of providing attorneys for all defendants.

Yet the issue is likely to be front-and-center when Holder testifies before Congress twice in the next two weeks. A spokesman for Sen. Jeff Sessions, the senior Republican on the Senate Judiciary Committee, said it was “simply unacceptable” for Holder not to provide the committee with all the relevant legal papers.

One of the briefs involved a case that hinged on Miranda rights — the requirement that police officers inform suspects that they have the right to remain silent. Holder was one of numerous former prosecutors and law enforcement officials who signed the brief.

Sharon Davies, a law professor at Ohio State University who also signed that brief, said the paper’s core argument was that “there’s no bait-and-switch allowed by police officers. They can’t deliberately withhold those warnings.”