A Cautionary Tale for the Idealistic Attorneys Who May Join the New Administration in 2009: Why High-Ranking Government Lawyers Have Too Often Made Things Worse, Not Better

By EDWARD LAZARUS
Friday, Oct. 24, 2008

This is my last column before the presidential election, which means that it coincides with a repeating migratory phenomenon that tracks the election cycle to perfection. Every four years, and especially when one presidential administration is going to be replaced by the next, a gigantic horde of that peculiar human species known as "lawyers" descends on Washington with the hope of becoming part of the next administration's power structure.

The vast majority of these lawyers make this move - or attempt it and fail - with very good intentions. They are driven to and drawn by Washington in significant part by a devotion to the idea of public service and a desire to, in some small way, nudge public policy in what they perceive to be a positive direction. To this end, they seek to use their lawyerly craft - their training in how to build and evaluate logical arguments - in the service of the nation.

Ambition naturally plays a part. It's heady stuff to join an Administration and hold or be proximate to the levers of power. For many lawyers, such an opportunity is worth considerable financial sacrifice. The existence of such personal - some might say selfish -- motives is neither surprising not terribly troubling. Sure, a few people will enter government for the wrong reasons - self-aggrandizement or the hope of private-sector payoffs down the road. But they are the exceptions. For most of these migrating lawyers, ambition is harnessed to a genuine desire to perform public (not private) service, and that can be a salutary and powerful combination.

Yet looking back over the history of the Bush Administration and even into the Clinton years, it seems almost self-evident that something has gone terribly wrong in the migratory process. Whatever the intentions of the lawyers flocking into the government, they have too often used the particular skills and ways of thinking that lawyers hone and cherish to advance a set of outrageous, sometimes unlawful, and terribly damaging initiatives.

A Dozen Years of Government Attorneys Failing to Fulfill Our Ideals - and Often Their Own Ideals as Well

What hath high-ranking government lawyers wrought over the last dozen years? Well, to start with, they cooked up the brilliant idea of impeaching a president (for only the second time in history) not for malfeasance with respect to a matter of state, but for lying about having an affair with a White House intern. And in addition to cloaking this transparently-partisan maneuver in the garb of high principle, they debased the office of the president (and their own enterprise) by crafting legal arguments that displayed a perverse and weirdly voyeuristic interest in the tawdry details of the president's sexual encounters. (If you doubt it, go back and read the Starr Report's footnotes, detailing what had been private sexual activity with clinical precision. Regardless of your political party, and regardless of how you felt about President Clinton, I think that, with the clarity of time having passed, you will agree that the Report went too far.)

And then there is lawyers' role in Bush v. Gore. Granted, it is perhaps unfair to blame that debacle on government lawyers given that the main sets of advocates were not part of the government. But it cannot be elided that a fiasco of law - the unjustified hijacking of the electoral process by our highest Court - gave birth to the Bush Administration. Nor it is reasonable to deny that, in crafting Administration policies, it might have been expected that the Bush Administration - including its lawyers - would take some account of the fact that they had assumed office having lost the popular vote, and as a result of one of the most politically-divisive events in American history. The reasonable response to the lack of a mandate and to the bitterly-divided nation would have been to reach across the aisle, and intentionally decline to use ill-won power to its fullest possible partisan extent.

No such reticence was forthcoming on the part of the Administration, of course. To the contrary, the lawyers who joined the Bush Administration set to work justifying an unprecedented expansion of purportedly unreviewable Executive Branch authority, including the authority to flout both international law and the express demands of Congress if they were seen by the President to be in conflict with the way he sought to play his role as Commander-in-Chief. Within this aggrandized vision of Executive Branch power, the Administration's lawyers put their skills to the task of justifying the use of torture, and the incarceration of large numbers of people indefinitely and without recourse to counsel or other outside contact for an indefinite period of time. To the extent that they have tried to prosecute terrorism cases in the federal courts, moreover, the government's lawyers have played so many hide-the-ball tactical games (for instance, seeking to proceed upon secret evidence that the defendant cannot rebut because he cannot see it) that even many conservative judges have become exasperated.

At the same time, these lawyers pushed for domestic surveillance programs of dubious legality while trying to make an end run anyone who raised objections, even the acting Attorney General. They also used extra-legal means to attack political critics, including leaking the identity of CIA agent Valerie Plame. And not least, they undermined the integrity, credibility, and morale of the Justice Department by pressuring U.S. Attorneys to bring prosecutions for partisan purposes and by filling rank-and-file civil service positions based on ideology, rather than merit.

In the Next Administration, Attorneys Should Carefully Recall Their Predecessors' Mistakes, Viewing Them as a Cautionary Tale

It is not my purpose here to catalogue all the myriad ways that lawyers have served as the tip of the spear in an assault on the rule of law - and then hidden behind every imaginable privilege to avoid accountability. We are poised for regime change in the White House and the Department of Justice. And the next president is certain to undo many of the more noxious policies and practices of the last eight years. But their lessons should not be forgotten.

For those lawyers who are about to embark on the great migration into government, a question still looms: How is it that, over the past twelve years, so many lawyers have managed to race past so many moral and ethical red lights?

It would be easy for anyone who is a critic of the Bush Administration to chalk this up to the idea that this Administration simply attracted a lot of ethically-challenged, ends-justify-the-means, ideologically-blinded acolytes. But for those who are polishing up their resumes to replace the incumbent crowd, it is worth considering how so many people managed to lose sight of some pretty basic notions of right and wrong - and managed to justify what they were doing both to themselves and to the world based on hyper-aggressive and wholly self-serving interpretations of law. When so many people fall prey to such a phenomenon, it is unwise and perhaps a bit arrogant to say, "That could never happen to me." Most likely, many of the attorneys involved would have said that too, before they joined their respective Administrations. But in the moment, influenced by the strong forces of partisanship, they made excuses and went forward regardless.

In the maelstrom where policy and law intersect in our bitterly-divided political culture, it is evidently all too easy for clever but unreasonable arguments and actions to be deemed reasonable and even right. That is a situation that can readily transcend ideology or party. The next group that ascends to power will be inheriting a colossal mess and will also have its members' own ethical compasses tested in unexpected ways. We need these attorneys to do a whole lot better than the last crew, and the time for them to prepare is before they ever get named.


Edward Lazarus, a FindLaw columnist, writes about, practices, and teaches law in Los Angeles. A former federal prosecutor, he is the author of two books -- most recently, Closed Chambers: The Rise, Fall, and Future of the Modern Supreme Court.