Four days before what could be a pivotal hearing for Attorney General Eric Holder Jr., two Republican lawmakers have sent Holder a letter asking how he failed to disclose some background materials during his Senate confirmation process.
The letter, released today, comes from Sen. Jeff Sessions (R-Ala.), the top Republican on the Senate Judiciary Committee, and Sen. Jon Kyl (R-Ariz.), a member of the committee and the Senate’s GOP whip.
During Holder’s confirmation process in late 2008, a Senate questionnaire asked him to supply copies of Supreme Court briefs he participated in. Holder responded at the time with briefs from three cases, leaving out seven that he either wrote as counsel or signed as amicus curiae. The Justice Department disclosed the seven others a week ago after a story in National Review and subsequent questions from The National Law Journal.
Sessions and Kyl write to Holder that he “appears to have omitted two-thirds of your work as an amicus party before the Supreme Court.”
The department has called the omissions inadvertent but has not explained exactly how Holder and his assistants missed the briefs in preparing for the confirmation process. Sessions and Kyl ask Holder to describe the process they used, to name all the people involved in the process, and to “state whether you reviewed all responses for completeness and accuracy” before submitting them.
The senators’ letter also asks Holder to reconcile what they call “two seemingly contradictory positions” of his: a 2004 amicus brief (PDF) in Rumsfeld v. Padilla that says limits on executive power might inhibit effective interrogation of a suspected terrorist, and statements as attorney general that there is not necessarily a trade-off between fighting terrorism and protecting civil liberties.
UPDATE (12:43 p.m.): Justice Department spokesman Matthew Miller released this response to the senators' last point: "The Attorney General has always professed confidence in the ability of the criminal justice system to detain suspected terrorists, obtain intelligence from them and convict them to long sentences, as the Padilla brief argued.
"With respect to the 9/11 case, he is intimately familiar with the strength of the case the Department prepared and had good reason to be confident in it. The Attorney General also had reason to be confident in our handling of Abdulmutallab -- as he noted in the same letter the Senators quote, despite claims to the contrary, Abdulmutallab had already 'provided additional intelligence to the FBI that we are actively using to help protect our country.' The bottom line is that the criminal justice system has shown under administrations of both parties that it is one of the most effective tools available for fighting terrorism."
Umar Farouk Abdulmutallab is accused in the attempted Christmas Day bombing.
UPDATE (3/22): An earlier version of this post did not credit National Review.
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