January 3, 2021

A dark profession

       This week, Former Attorney General Eric Holder said he was “disturbed” that other lawyers would criticize his friend Neal Katyal for making what some think are "extreme" arguments in support of child slavery. Mr. Holder states that the justice system "cannot function at its best" if Mr. Katyal is criticized for defending his client in court, because if lawyers can't defend clients then there is no due process. That certainly makes perfect sense.

       Then you look into Mr. Holder's background. According to an article, Mr. Holder was the attorney who demanded that a judge seal evidence of his client Purdue Pharma’s wrongdoing with respect to opioids. As a partner at Covington & Burling, he demanded that information be hidden from the public. This evidence should have been released, because all trials are supposed to be public, but he insisted that it be sealed. I don't know if this Mother Jones article is correct; I only learned about Mr. Holder's past this morning, and I didn't pull up the docket and investigate what Mr. Holder did in 2004, but Mother Jones doesn't seem like the kind of periodical to just make up facts.

       And if it is right, Mr. Holder did one of the most evil things in American history because if that evidence were released to the public, it could have warned people and prevented hundreds of thousands of opioid deaths. This was no different than hiding evidence of a factory releasing toxic chemicals into a water supply, or hiding evidence that your client uses his position to rape women. Sure, Mr. Holder had a right to defend his client, but where did he get the right to settle out of court in a way that hid what his client was doing?

       There's other stuff about Mr. Holder. Here is an article accusing him of selling out the Department of Justice to the banking system during his tenure as attorney general. According to the reporter, Mr. Holder assumed a "brillian[t] disguis[e] as the attorney general of the United States, [while] actually working deep undercover . . . as the best defense lawyer Wall Street ever had." I don't know how you prove that he gave banks favorable settlements. I'm sure the banks think he was harsher than he needed to be, but it's possible.

       Mr. Holder is also viewed as the icon for the practice of “monetizing” a government position. This article suggests that Mr. Holder viewed his tenure as attorney general as an extension of his job at Covington & Burling. The firm didn't even fill his office during that period, because they knew he would be back when it was over. The article claims that this was the reason Mr. Holder was so easy on banks. Because deep down he wasn't the attorney general. He was a Covington & Burling partner who had hijacked government to advance the interest of his firm's clients. Again, there's a lot in that accusation and I did not review Mr. Holder's settlements with banks and, even if I did, I don't know you conclude that a settlement was too large or too small - but again this is all entirely possible.

       So let's get back to Mr. Holder's comment that the legal system "cannot function at its best" if lawyers criticize Mr. Katyal. The legal system apparently functioned at its best in his opioid case. Hiding evidence that could have prevented countless deaths, that's fine. That's what the justice system is supposed to do. It's supposed to hide and cover up wrongdoing, not stop it. Same with his tenure as attorney general. Allegedly selling out the Department of Justice to your firm's corporate clients is fine. That’s the justice system functioning at its best. He wasn't "disturbed" by any of those those things. The criticism of his friend's arguments in a child slavery case is what disturbs him. The world finally disturbed this man’s sensibilities.

       Despite Mr. Holder's concerns, the trend is to publicly criticize law firms for the things they do. Examples of this include the articles above, the recent criticism of Jones Day and Foley & Lardner over their arguably frivolous election lawsuits, and the astounding report that the Department of Justice dropped an investigation of Caterpillar, Inc. (Bill Barr's client at Kirkland & Ellis), just weeks after Mr. Barr took over the agency. None of this has anything to do with O’Melveny, but I write about it as a reminder that this blog might be about more than just O'Melveny & Myers. At times, this can be a dark profession.
Eric Holder, Covington & Burling, Neal Katyal, Hogan Lovells