Sen. John McCain (R-Arizona) hammered lawyer Keith Harper’s human rights record involving American Indians at a September 24 hearing of the U.S. Senate Foreign Relations Committee. The hearing was part of the Senate confirmation process for Harper to become a U.S. representative to the United Nations Human Rights Council in Geneva – an ambassador-rank post that would have him addressing human rights issues around the world. If confirmed, Harper would replace Eileen Chamberlain Donahoe, a longtime human rights advocate.
McCain said he could not support Harper’s nomination in contrast to strong support offered to the lawyer by President Barack Obama, who nominated him for the position in June. Harper had been a major fundraiser for the Obama campaigns, raising over $500,000 last year alone for the president. Harper also worked on Obama’s transition team on Indian issues and in his administration as a member of the Commission on White House Fellowships. He has concurrently worked for the Kilpatrick Stockton law firm where he notably served as co-counsel in the Cobell v. Salazar litigation settlement.
The National Congress of American Indians, the Cherokee Nation (of which Harper is a citizen) and other tribal leaders and advocates have strongly supported his nomination.
But McCain said a letter promoted by the Cobell legal team during the appeals period of that $3.4 billion Indian trust case last year prevented him from supporting Harper. The letter included the names and addresses of four Native Americans who were in the midst of launching an appeal of the settlement. The letter encouraged class members to contact the appellants. A wide range of Indian country legal experts decried the letter, but at the time Harper would not comment on it. This silence would cost him support from McCain, as the senator made clear during the hearing.
Harper placed responsibility for the letter squarely on Dennis Gingold, his co-counsel on the Cobell case, saying Gingold handled the writing of the letter and its posting online. “When we learned of the letter, our firm had discussions with our co-counsel to pull the letter off the web,” Harper said.
“So, everything’s okay?” responded McCain, former chair of the U.S. Senate Committee on Indian affairs during the Jack Abramoff tribal lobbying scandal.
“No,” Harper said.
Then McCain noted that both Harper and Gingold refused to respond to media requests about the letter after it was posted, questioning why Harper didn’t publicly rebuke the letter at the time if he felt it was wrong.
“At the time, we were in active litigation,” Harper responded, later saying he didn’t think publicly rebuking the letter was in the best interest of his clients.
“So you couldn’t answer for a letter that mentioned people’s names, addresses, phone numbers—encouraging people to call and harass them?” McCain asked.
Harper responded by saying he thought the letter was a bad idea at the time, and he didn’t know anything about it prior to its publication.
“You should have known,” McCain said. “He was your class [co]-counsel.”
“I should have been informed, but I was not informed,” Harper replied, laying full accountability with Gingold.
“So the dog ate your homework,” McCain said, adding that he felt the letter was “a terrible thing to do.” He later read words from the letter, calling it “one of the more provocative letters he has ever seen.”
The senator further hammered Harper for not condemning the letter at the time, saying that decision made him question the lawyer’s ability to be a human rights advocate. “You’re talking about human rights here,” McCain told Harper. “I think these four people’s human rights were abused.”
Harper admitted during questioning that the Cobell counsel should not have “actively engaged” in putting the letter out there. “I did not participate in that,” he said. “I have colleagues and nobody from my firm, from my understanding, participated in that. We did not have any control….”
McCain said he did not believe Harper, but Harper maintained he was “surprised” when the letter “hit the press.”
Harper then said that his firm asked Gingold to remove the letter from the counsel’s website, “and he did remove the letter from the website,” Harper said.
Brian Rogers, a spokesman for McCain, told Indian Country Today Media Network after the hearing that Harper spoke in error or was perhaps disingenuous about the letter’s removal. “During his testimony to the committee and Sen. McCain, Mr. Harper claimed that the controversial ‘Ask Elouise’ letter dated January 20, 2012 had been removed from class counsel’s website IndianTrust.com,” Rogers said. “In fact, the letter is still up.” Rogers offered a time-stamped screen capture showing that the letter was still posted online at the website run by Harper and the other Cobell lawyers.
McCain concluded his questioning by saying he has further questions about lawyers’ fees involving Harper on tribal trust settlements, as well as on the relationships between Harper’s firm and individual tribes.
“Right now, Mr. Harper, I cannot support your nomination,” McCain concluded.
Sen. Barbara Boxer (D-Calif.), who chaired the confirmation hearing, said she was “blindsided.” She said, “I agree with the senator that this is a problem.” She later urged Harper to provide more information to the committee in writing on the issue as it considers his nomination.
McCain’s staff later reiterated that the senator is investigating troublesome claims by other tribal leaders pertaining to Harper’s representation of them as a lawyer.