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New AG Holder May Have Conflict In Blagojevich Probe

PETE YOST | December 13, 2008 12:48 PM EST | AP

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In this Dec. 1, 2008, file photo, Attorney General-designate Eric Holder speaks during a news conference with President-elect Barack Obama, right, in Chicago. Holder may have to consider removing himself from overseeing the Chicago corruption probe that ensnared Illinois Gov. Rod Blagojevich, legal experts say. Holder was a co-chairman of Barack Obama's presidential campaign, joining it in 2007 when the long-running, high-profile Chicago investigation focused on a businessman who had been among the biggest fundraisers for Obama and Blagojevich. (AP Photo/Charles Dharapak)

WASHINGTON — If confirmed as attorney general, Eric Holder may have to consider removing himself from overseeing the Chicago corruption probe that ensnared Illinois Gov. Rod Blagojevich, legal experts say.

Holder was a co-chairman of Barack Obama's presidential campaign, joining in 2007 when the long-running investigation focused on a businessman who had been among the biggest fundraisers for Obama and Blagojevich.

The legal ethics issue that Holder may have to deal with, called recusal, could arise if Holder had conversations about the Chicago investigation with Obama or his staff.

"It's reasonable to ask Holder to recuse because he is a prospective witness," said Ron Rotunda, author of a book entitled "Legal Ethics: The Lawyer's Deskbook on Professional Responsibility."

"If I were Holder I would just recuse myself from the whole thing in order to ensure the integrity of the process," added Rotunda, who was a paid consultant in independent counsel Ken Starr's perjury and obstruction investigation of President Bill Clinton and former White House intern Monica Lewinsky.

The United States Attorneys' Manual governs the conduct of federal prosecutors. It requires Justice Department lawyers to withdraw from matters where a conflict of interest exists or where there is an appearance of a conflict of interest or loss of impartiality. The question of removal arises "as a result of a personal interest or professional relationship with parties involved in the matter," the manual states.

On Saturday, an Obama transition aide said that if Holder becomes attorney general, he will follow all department guidelines on recusals.

Senate Republicans have not brought up the issue, but they are warning Obama that he should not expect swift confirmation of Holder. Democrats want a Jan. 8 confirmation hearing. Republican Sens. Arlen Specter of Pennsylvania and Jon Kyl of Arizona are looking at mid-January as an alternative.

There is one highly publicized blemish on the attorney general-designate's record and Republicans are sure to bring it up: Holder's role in Clinton's pardon of fugitive financier Marc Rich eight years ago.

In regard to the Chicago corruption probe, "I don't see main Justice and Holder getting terribly involved in this case. I see keeping this out in the U.S. attorney's office in Chicago," said Wayne State University law school professor Peter Henning, who teaches classes in legal ethics and white-collar crime.

"That said, having Holder recuse himself and not having any of the people involved with Obama involved in this case would be the wisest course," Henning added.

The Chicago investigation run by U.S. Attorney Patrick Fitzgerald has played out in two parts. The second unfolded in the past week with the sensational charge that Blagojevich had tried to sell Obama's U.S. Senate seat.

Act One was the years-long investigation, trial and conviction of Chicago businessman and prolific political fund-raiser Antoin Rezko. By the time Holder joined Obama's campaign, the candidate had already dealt with one bit of controversy involving Rezko.

Rezko's wife sold a strip of a vacant lot to the Obamas for $104,500. The strip was next to Obama's newly acquired home. Later, Obama called his purchase of the land boneheaded and a mistake on his part, saying that people might think he had gotten a favor from Rezko.

The American Conservative Union jumped on the transaction, filing a complaint with the Senate ethics committee alleging that the purchase of the adjoining lot was an improper gift to Obama from Rezko and his wife.

Three months ago, it became clear that Rezko, facing a lengthy prison term, had begun cooperating with the investigation in Chicago _ and that cooperation is continuing.

Rezko offered Obama a job when he finished law school, but Obama did not take him up on the offer. Later, it was Rezko's prowess as a fundraising powerhouse that made him such a valuable asset to Blagojevich and Obama.

Another issue that Holder may have a role in unless he removes himself from the Chicago probe is the future of Fitzgerald, the U.S. attorney.

Ordinarily, an incoming administration of the opposite political party replaces U.S. attorneys in offices around the country. The politically sensitive nature of the Chicago investigation has led Obama, U.S. Sen. Dick Durbin, D-Ill., and Senate Judiciary Committee Republican Charles Grassley of Iowa to weigh in on the side of retaining Fitzgerald.

If there were ever a time for continuity and nonpartisanship, it is now, Grassley said Thursday after meeting with Holder.

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On the Web:

U.S. Attorneys Manual: http://tinyurl.com/5hudvf

Filed by Ben Goldberger  |  Report Corrections