No Sale
I keep hearing people make this argument and it is done from ignorance of the legal system, especially the Federal system.
When the torture memoranda were written, Harriet Miers was Counsel to the President and David Addington was Counsel to the Vice President. They functioned as “defense attorneys” for the White House, and, as such, any opinions, no matter how off the wall, written in support of what their “clients” wanted to do was normal “lawyering”.
The memoranda were written in the Office of Legal Counsel of the Department of Justice by Jay Bybee, Assistant Attorney General, and John Yoo. Their “client” is essentially the people of the United States, not the Office of the President or the Office of the Vice President.
The Supreme Court of the United States, unlike the highest court in many states, does not issue advisory opinions. They don’t make a ruling unless a case progresses through the lower courts to them. Because of this, the Office of Legal Counsel provides the advisory opinions. The OLC is supposed to keep people out of trouble by telling them whether what they want to do is Constitutional and legal, based on the current laws and court rulings.
It isn’t the job of the OLC to find a way of doing something, it is to determine if it is legal and that’s why lawyers are calling for disbarment. Instead of doing their job, Bybee and Yoo were doing the job of the White House counsels. They were billing one “client” while working for another.
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I hadn’t thought of it in quite that way Bryan, but you are correct from my understanding of the system there, which is somewhat less than your’s. It makes sense to me! 🙂
yeah, they should be debarred. Then tarred and feathered, then hung from a tree for a week or two by the ankles. I know, I have a rather old fashioned (some might say Old Testament) view of Justice and punishment. But, I tend to reserve that for those who truly deserve it! 🙂
In most systems there is a normal channel for determining the legality of what the government wants to do. The US system is not straight forward, and if you have never been involved with Federal law enforcement, you probably wouldn’t even be aware of the OLC.
Normally you are dealing with the US Attorney, the Federal prosecutor for your area, but if you want to do something a bit different, you need to get clearance, and the best clearance is from the OLC. When the OLC starts playing games, local prosecutions can be lost because of bad decisions.
I definitely agree with the notion of disbarring them. As you say, there’s certainly reason to do so — they were effectively serving as the President’s personal attorneys while being paid by the OLC, which is misuse of client funds at the very least, something which regularly leads to attorneys being disbarred if not prosecuted for fraud.
On the other hand, prosecuting them for issuing legal opinions would be, in my opinion, a bad thing to do. Rule of law relies on lawyers being able to write legal opinions without fear of being prosecuted for the content of that opinion if someone in power disagrees with them. You start prosecuting lawyers for practicing law, you don’t have rule of law, you got rule of thug. This is despite the fact that I detest and despise the legal opinions that they issued and feel that they are horrible and evil. But rule of law isn’t about whether I like their legal opinions or not, rule of law is decided in courts of law, not in courts of public opinion. But as you say, there’s certainly reason to disbar them for other reasons, irregardless of the detestable nature of the legal opinions they issued.
Ah, that is a separate issue, and they are culpable because they knowingly and intentionally conspired to violate the laws of the United States. Lawyers, even defense lawyers, are charged and convicted of crimes that assist in the defense of their clients, suborning perjury is a common charge.
The Magna Carta established the concept that no one is above the law, and that is a founding principle of our legal system. Attempting to claim that the President is above the law for any reason is not acting as an attorney.
In point of fact, when you cast the President as Commander in Chief of the military, you subordinate him to Congress, because the military operates according to the provisions of the Unified Code of Military Justice, which is written by Congress in accordance with Article I, Section 8, Subsections 10 through 16. War powers are the sole province of Congress, and the President, as Commander in Chief, is expected to carry them out. As has already been established Congress is not allowed to transfer its Constitutional responsibilities to the Executive [Clinton v City of New York, 524 U.S. 417 (1998)].
The opinions that were written were used to convince others to violate the law, as the lawyers knew they would be. That is why they should be charged and prosecuted. No one is above the law, and even lawyers cannot advocate breaking the law.
Lawyers give bad legal advice to their clients all the time. It’d be damnably hard to prove that these folks were advocating breaking the law, as vs. being idiots. On the other hand, being idiots — and being idiots who were working for one client while being paid for that time by another client — is certainly sufficient reason to disbar them.
In general, I am *very* paranoid about the notion of prosecuting a lawyer for practicing law. We saw some of this during the Bush era where at least one of the lawyers for a convicted terrorist was charged with “material support of terrorism” for holding press conferences asserting her client’s innocence. One of the first thing right-wing dictatorships do is to suppress rule of law, generally by arresting and imprisoning any lawyer who makes arguments in court or in public on behalf of their client that the dictator doesn’t like. In general, while I might detest some of the arguments that lawyers make on behalf of their clients, I believe that prosecuting a lawyer for practicing law is a slippery slope to which there can be no good end.
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They weren’t “practicing law” and that is why they can be prosecuted. Torture is specifically illegal under US law and case law clearly shows that that these “enhanced interrogation techniques” have been prosecuted as torture in the United States.
What the OLC did was produce a finding that was used to convince others that what Bush wanted to do was legal. To do that they had to ignore the relevant case law on the issue, they had to not do their job.
Their findings were classified, so there was absolutely no testing of their “conclusions”, which would have been shredded in a legal journal or open court. They apparently willingly participated in a conspiracy to break the law, and should be tried, just like any other attorney would be tried if they break the law.
Lawyers are tried all the time. Many lawyers are tried for offenses that are directly related to their practice, as in cases of fraud involving client funds, bribery, perjury, all kinds of offenses. In many of those cases their action may, in fact, assist their clients, but they are still illegal. If a client tells their attorney that they are going to commit a crime, the attorney is required to report it, even though an attorney-client privilege exists covering old crimes.
The problem is that the lawyers in the OLC weren’t doing their jobs. They were acting against the rule of law and against the best interests of their “clients”. They can espouse their views all they want off the clock, and write articles for anyone who will publish them, but as officers of the court, and government officials they have to follow the law. They weren’t practicing law, they were perverting it.
If they are prosecuted, they will get a trial and can defend themselves. They won’t be subjected to torture or a military tribunal, guarantees that they helped to strip from others. They were supporting the law, they were advocating dictatorship.
Well, the problem is, I’ve seen the same argument made about left-wing lawyers who advocated for their clients or against bad laws too loudly and publicly. Prosecuting lawyers for the content of their legal output just doesn’t sit well with me, because I’ve seen too many times where muzzling lawyers would have been just what the incipient fascists wanted, whether we were talking the civil rights movement, free speech issues, the export of encryption software, whatever. This to me is a Nazis marching in Skokie kind of issue, where we have to put up with some nonsense in order to assure that a right guaranteed by the Constitution remains a right.
That said, disbarring bad lawyers is a quite valid and viable thing to do, and I have no problem with that. These lawyers gave quite horrible legal advice that didn’t meet even the most lenient standards of truthfulness or legal scholarship. On the other hand, I believe lawyers should be disciplined for legal malpractice that does not cross the line into the lawyer himself doing an illegal activity by the law profession, not by criminalizing the practice of law. The legal profession may be slow to discipline its members, but I don’t like the alternative at all, because that way lies the death of the 6th Amendment entirely (not that the 6th Amendment is particularly healthy at the moment, but at least it’s not totally dead).
There is a basic difference between what lawyers on the outside and lawyers in government do – lawyers in government have the full force of the government behind them.
Government lawyers have to be held to a higher standard, especially when they are advocating throwing aside the rule of law. They are government employees. If they wanted to advocate for their views, they were free to resign.
This was malfeasance. They were government employees and they did not do their jobs properly. Private attorneys can’t be charged with malfeasance. They acted to deny a class of people their civil rights. With power comes the responsibility, and to be meaningful, they need to be prosecuted.
You were a teacher. As a public school teacher you weren’t as free to say what you wanted about a lot of things that would have been perfectly acceptable coming from a plumber. Part of public service is a reduction in your freedom to say what you want. There are restrictions, because, in theory, public employees have more power that regular citizens.