"It profits me but little that a vigilant authority always protects the tranquillity of my pleasures and constantly averts all dangers from my path, without my care or concern, if this same authority is the absolute master of my liberty and my life."

--Alexis de Tocqueville, Democracy in America

Thursday, June 21, 2012

Is Holder's Assertion of Executive Privilege Sanctionable?

When a lawyer does something unethical, we lawyers say that the conduct is "sanctionable," meaning that it warrants discipline by the bars to which the lawyer belongs.   So the question arises, is Eric Holder's assertion of the "deliberative process" version of executive privilege sanctionable, when it utterly fails to acknowledge the relevant precedent, the Espy case, which holds that the privilege "disappears" in cases where Congress is investigating government misconduct?

I think it is.   Holder is a member of the District of Columbia Bar.   Under Rule 3.3(a)(3) of the Rules of Professional Conduct for D.C., entitled "Candor to the Tribunal,"

 A lawyer shall not knowingly:... Fail to disclose to the tribunal legal authority in the controlling jurisdiction not disclosed by opposing counsel and known to the lawyer to be dispositive of a question at issue and directly adverse to the position of the client.  

In my opinion, failing to disclose the importance of the Espy decision to the analysis of executive privilege in this case does, in fact, violate this rule of ethics.   Holder would thus be theoretically sanctionable.

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