Government lawyers in the Department of Justice's Office of Professional Responsibility (OPR) appear to have leaked to the press parts of a confidential--and classified--draft report concerning the actions of Bush administration lawyers. The report calls for state bar associations to investigate, and perhaps discipline, attorneys who provided sensitive legal advice to President Bush's administration concerning the legal limits of coercive interrogation methods against high-level al Qaeda terrorists. That advice was, of course, controversial. It is now, in the current political climate, highly unpopular in certain circles. OPR has determined, apparently, that it was "unethical" to give it and that the lawyers involved should be punished.
How many things are wrong with this picture? From the perspective of legal ethics, constitutional law, and good government, I count at least five big problems.
1. The leak itself: Trial by innuendo and media exploitation is a McCarthyite tactic and is forbidden by the canons of legal ethics. So too is a breach of a lawyer's duty of confidentiality. Here, the original leak dates back to December, and it is not hard to discern a reason behind it: OPR's draft report was emphatically rejected by then-Attorney General Michael Mukasey. What's a bureaucrat to do, when his views are repudiated by his boss? In Washington, the answer is to leak the views to the press. But for a lawyer, such conduct is among the most fundamental of ethical violations: The ABA's Rules of Professional Conduct state: "A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent."
Violating client confidentiality is a grave ethical breach. It is the type of conduct for which shoddy lawyers are routinely disbarred or suspended from the practice of law. In this case, to the extent the disclosure involves classified information, such conduct may well be a federal crime.
If the leak came from, or involved the knowing assistance of, lawyers in the OPR or elsewhere, they should be investigated and disciplined. It is outrageous to think that government "ethics" lawyers would engage in such blatantly unethical conduct. Who watches these watchdogs? OPR's reported actions suggest that the real need is for an ethics investigation of the Justice Department's ethics office.
2. Unconstitutionally outsourcing federal ethics responsibility: Then there is OPR's cowardly attempt to farm out ethics investigations to state bar authorities. This is a transparently political maneuver. It is also contrary to longstanding federal policy--and arguably to the Constitution. The Department of Justice has maintained that regulation of the ethics and conduct of federal government attorneys is a matter for the federal government, acting through the attorney general--not for state bar panels. Were it -otherwise, state officials could interfere with the conduct of federal officials. (Constitutional lawyers will recognize this as a problem under the Supreme Court's famous 1819 decision in McCulloch v. Maryland, which held that state laws may not interfere with federal officers' actions.)
Why would OPR recommend this? To impose political punishment (of a sort) on Bush attorneys, but without bearing accountability. The Obama Justice Department is, rightly, reluctant to take "disciplinary" action itself with respect to the attorneys who advised the prior administration. In the first place, it is not clear what it meaningfully could do since those involved no longer work for the executive branch. Second, it would smack of partisan payback (which it is). What better solution than to outsource the task to "neutral" bar authorities? But this is a transparent façade that should fool no one. And it is a ruse that would come back to harm Democratic as well as Republican administrations: Whenever you disagree strongly with lawyers' advice from a previous administration, don't just change the legal advice, ask state bar associations to investigate. This is an excellent formula only if your goal is to chill candid legal advice and government service by licensing retaliation against lawyers in prior administrations with whose views you disagree.
3. Incompetently assessing lawyers' professional roles: OPR seemingly has no comprehension of the basic principle of legal ethics that a lawyer does not endorse everything his client may wish to do, within the bounds of the law. A lawyer acts properly when he seeks to help his client figure out exactly where the lines are. ABA Rule 1.2(d) provides that lawyers may not counsel clients to engage in conduct they know is illegal, but that a lawyer "may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law." It is plain from reading the memos involved that this is exactly what the Bush Justice Department lawyers were doing--discussing with their clients the legal consequences of what they proposed to do and endeavoring to assist them to ascertain the meaning and scope of the laws and constitutional provisions involved.
The leaks suggest that OPR has reviewed internal emails and found what it thinks are indications that the client agencies (the CIA or the White House) wanted the Department of Justice attorneys to come out a certain way or consider specific issues or arguments--that they had a desired or preferred outcome, which would permit harsh interrogations to go forward. Surprise! Clients always have a desired result in mind and would prefer that their lawyers say yes rather than no. Government agencies are, in my experience, no different from any other client in this regard.
But so what? In the absence of smoking-gun evidence that the lawyers had concluded that a proposed course of conduct was illegal, but that they then agreed to provide a "cover" memo whose advice was contrary to that conclusion, there is no ethical problem here at all. There is nothing wrong with a lawyer exhaustively studying all plausible legal avenues that might sustain a client's desired course of conduct. There is nothing wrong with exploring additional arguments that may support a client's proposed course of action, even if those might not have been part of a lawyer's initial thinking. There is nothing wrong even with a lawyer reconsidering or modifying his initial views in the course of such a process.
For OPR to suggest anything else--to suggest that this is a violation of legal ethics principles--would be, in my opinion, an incompetent analysis of the law of legal ethics.
4. Incompetence about competence: Which brings me to a fourth huge flaw in what OPR is said to be reporting: the suggestion that the Bush administration lawyers' legal work failed to satisfy professional standards of "competence." The notion is that failure to cite some specific case, or to discuss some historical precedent, renders the Bush team's legal analysis incompetent.
As a matter of legal ethics law, as applied to the memos in question, this is simply ludicrous. One may well disagree with the conclusions reached in one or more of the memos, or with some of the arguments contained therein. One may well think that the memos should have been written differently--discussed certain points not included, omitted certain arguments that were included; said less, said more. But there is a world of difference between Monday-morning quarterbacking and incompetent lawyering. Anyone who does not recognize that is not thinking straight--is either not himself a good lawyer or is blinded by a partisan agenda. One can make many fair criticisms of the legal memos, but incompetence is not a charge that can fairly be made.
5. Incompetence about the underlying law: Constitutional law, in addition to legal ethics, is one of my areas of teaching and scholarship. In my opinion, the most basic problem with any suggestion of incompetence is that the memos' essential legal conclusions are correct. There is a fundamental distinction in the law between what constitutes actual, legal "torture" under applicable standards and what may be harsh, aggressive, unpleasant interrogation tactics but not, legally, "torture." Reasonable people will come to different conclusions as to where that line is, but the Bush administration's lawyers' conclusions are certainly defensible and, I think, ultimately correct. As a matter of constitutional law, moreover, the Bush administration memos' most sweeping and categorical conclusion--that at all events no statute or treaty may limit the president's sole constitutional powers as military commander in chief to direct and conduct the use of U.S. force--is in my opinion unquestionably correct.
This view is informed by my experience both as a law professor and, nearly two decades ago, as an attorney in the Office of Legal Counsel (OLC) of the Department of Justice--the same office that provided the advice in question during President George W. Bush's administration. The types of constitutional and statutory arguments made in the disputed memos are consistent with longstanding OLC positions with respect to presidential power under Article II of the Constitution. They involve subtle niceties of constitutional law and history. OPR attorneys are, as a rule, not as conversant in such matters. To put the point in terms of legal ethics: Were the Office of Professional Responsibility to purport to pass judgment on the competence of the constitutional and statutory analysis of the OLC memos, it would be straying far beyond its areas of purported competence.
When I teach legal ethics, I tell my students that one aspect of competence is to know what you know and to know what you don't know, and to stay away from the latter. It is fair to wonder whether staff attorneys in OPR--whose actions with respect even to the law of legal -ethics appear so dubious--possess the requisite professional skill, expertise, and knowledge to competently evaluate (let alone second-guess) OLC lawyers' analysis of constitutional law, treaties, international law, and complicated criminal statutes. We will see: If OPR's leaked report becomes public and indeed takes the Bush team to task on grounds of professional legal competence, it will be fair to ask whether OPR attorneys really understand the substantive law they are talking about--or whether the charge of incompetence falls more heavily on their own heads.
Unethical leaks and confidentiality violations; outsourcing federal responsibilities; basic misunderstandings of legal ethics principles; incompetent analysis of constitutional, international, treaty, and statutory law. What more could be wrong with an ethics office's actions? It is hard to know for sure--without seeing OPR's report--the full extent to which it contains all of these problems. But leaked accounts of the OPR's draft report so far call that office's ethics and professionalism into question more than they do those of anyone else.
Michael Stokes Paulsen is university chair and professor of law at the University of St. Thomas, in Minneapolis. He was an attorney-adviser in the Office of Legal Counsel from 1989-91.