Eric Holder’s recent statements about KSM’s NYC trial may run afoul of the ABA’s Model Rules of Professional Conduct
By Rick Saunders
The Obama administration’s decision to transfer 9/11 terrorist enemy combatants from the Guantanamo Bay detainee facility in Cuba–not a part of the United States, for those without the official White House map–to Manhattan, purportedly to show that “we are better than them,” may be pretty darned bad, but the conduct in advance of the trial itself is in fact beyond lunacy. Indeed, Attorney General Eric “We Will Convict and Execute, as Failure is Not an Option” Holder’s recent public statements about the case may well have already set the stage for the dismissal of the charges.
Stay with me here.
To begin with, just this past Wednesday Attorney General Holder testified in open session before the Senate Judiciary Committee, in the process virtually guaranteeing to incredulous senators from both parties that, among others, Khalid Sheikh Mohammed would be convicted. His boss said essentially the same thing — from Asia, President Barack Obama maintained that he supported the decision to bring the Gitmo transient to New York City for trial, adding that “those offended by the legal privileges given to Mohammed by virtue of getting a civilian trial rather than a military tribunal won’t find it offensive at all when he’s convicted and when the death penalty is applied to him.” Obama (or some CBS editor) quickly added that he did not mean to suggest he was prejudging the outcome of Mohammed’s trial. “I’m not going to be in that courtroom,” Obama was quoting as saying. “That’s the job of the prosecutors, the judge and the jury.”
And so who, exactly, will be in that courtroom? Perchance Eric Holder himself? You mean, the prosecutor who has already (as Mohammed’s lawyers will argue) so tainted the jury pool with “guarantees” of a conviction and assurances that the death penalty will be invoked that the trial will be a mere formality? That guy?
Memo to the masses: Holder is a lawyer and, as Attorney General, is the nation’s chief prosecuting attorney. And, as an attorney, he is bound–supposedly–by the rules of ethics, rules which are even more restrictive for prosecutors in criminal cases. These being the facts, perhaps we should turn to the American Bar Association’s Model Rules of Professional Conduct.
Rule 3.8 addresses the “Special Responsibilities of a Prosecutor.” The rule states, in material part (emphasis mine):
Rule 3.8 Special Responsibilities of a Prosecutor
The prosecutor in a criminal case shall … (f) except for statements that are necessary to inform the public of the nature and extent of the prosecutor’s action and that serve a legitimate law enforcement purpose, refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused and exercise reasonable care to prevent investigators, law enforcement personnel, employees or other persons assisting or associated with the prosecutor in a criminal case from making an extrajudicial statement that the prosecutor would be prohibited from making under Rule 3.6 or this Rule.
And so, what does Rule 3.6 say? Glad you asked:
Rule 3.6 Trial Publicity
(a) A lawyer who is participating or has participated in the investigation or litigation of a matter shall not make an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.
When these two ethical principles are taken together–a difficult enough task to manage given the players on the field–and superimposed over the recent public comments of Holder and his boss, what emerges is the disturbing potential that, by publicly stating that failure (i.e., an acquittal) was “not an option” and that “the death penalty will be applied,” Holder and Obama may well have set the stage for a dismissal of the charges.
Earth to Holder: Can you say “prosecutorial misconduct?”After all, where now can that poor soul Khalid Sheikh Mohammed get a fair trial and an impartial jury of his peers? Berkeley? Dearborn? Tehran?
Before you scoff at this potential, consider what would have been the reaction if, instead of Barack Obama’s Attorney General making these statements, they had been made by John Ashcroft under President George W. Bush.
I know. It’s a stretch to even consider it. That’s because unlike the current president, George W. Bush–despite all of his faults–thought about the safety and security of the United States of America and the American people first. Everything else, including politics, public relations and personal effect, came later. What a stark, stark difference.
Rick Saunders is a freelance writer who splits his time between endeavors in southern California and the American southwest. He began writing for America’s Right in December 2008.