The Unethical and Illogical Smearing of Justice Dept. Lawyers

The Senate Republicans, bolstered by the political Right, are angrily criticizing Attorney General Eric Holder for having former Gitmo defense lawyers on the Justice Department anti-terror team.  This demonstrates many things, none of them good, some of them sad.

At least seven Justice Department lawyers previously worked on the legal defenses of Guantanamo Bay prisoners. Apparently this makes them terrorist sympathizers in the eyes of the Angry Right. This is the sad part. A flat learning curve is always sad.

Back in 2007, Bush Administration Deputy Defense Secretary Cully Stimson did a radio interview in which he condemned the attorneys from large law firms who were representing Guantanamo Bay detainees pro bono. Stimson told the interviewer, “I think, quite honestly, when corporate CEO’s see that those firms are representing the very terrorists who hit their bottom line back in 2001, those CEO’s are going to make those law firms choose between representing terrorists or representing reputable firms, and I think that is going to have major play in the next few weeks. And we want to watch that play out.” To help ensure this would “play out”, Stimson read the names of the firms involved.

Stimson, a lawyer himself who should have known better, was encouraging retribution against lawyers who represented unpopular clients, a particularly silly thing for a member of the Bush Administration to do at that time, as he might well have needed such representation in the very near future. Response to his comments was appropriately furious. Karen J. Mathis, then president of the American Bar Association, said, “Lawyers represent people in criminal cases to fulfill a core American value: the treatment of all people equally before the law. To impugn those who are doing this critical work — and doing it on a volunteer basis — is deeply offensive to members of the legal profession, and we hope to all Americans.” Prof. Stephen Gillers, a legal ethics specialist of note, said, “This is prejudicial to the administration of justice. It’s possible that lawyers willing to undertake what has been long viewed as an admirable chore will decline to do so for fear of antagonizing important clients.” Christopher Moore, a lawyer at the New York firm Cleary, Gottlieb, Steen & Hamilton continued the assault. “We believe in the concept of justice and that every person is entitled to counsel,” he told the New York Times. “Any suggestion that our representation was anything other than a pro bono basis is untrue and unprofessional.”

Stimson eventually had to apologize over the incident, claiming demonic possession or something similar. Never mind. Republicans and conservatives apparently didn’t learn a thing from the episode. From conservative journalists like Byron York, to radio talk show hosts like Sean Hannity, to the blogosphere, the cry is that the Justice Department has intentionally recruited “pro-terrorist lawyers,” because their representation of Gitmo detainees make them presumptively terrorist sympathizers.

You know…like Perry Mason, Clarence Darrow, F. Lee Bailey, Johnny Cochran and Atticus Finch were pro-murder, killer sympathizers. True, such a concept strikes at the heart of the American system of justice, but what’s a core principle when there are some cheap political points to be scored with those voters who couldn’t tell the Constitution from the back of a Wheaties box?

This is irresponsible, unfair, incompetent, dishonest, un-American.

And sad.

The other claim, most prominently articulated by GOP Senator Charles Grassley, is that the prior representation of the Gitmo prisoners creates a conflict of interest.

Well, it just doesn’t. It would be a conflict of interest if the Justice Department attorneys worked on the cases of the individuals they had represented, but Justice cures this problem with the use of ethical screens: none of the lawyers get within a metaphorical country mile of the cases involving their former clients. This is, by the way, for the protection of the former clients, not the Justice Department. The ethics rules want to make certain that lawyers switching sides can’t use confidential information received from defendants, when they trusted the lawyers as their legal counsel,  in any way to the former clients’ detriment. The presumption is that the loyalties of the attorneys lie with their current employers, not their former clients.

Ah, but that’s not what Rush, Laura, Marc and Sean think is the conflict of interest here, and apparently Grassley has the same idea. They think that when a lawyer goes to work for the U.S. Government, he or she is conflicted because their sympathies are still with the terrorists.

This tells us that the critics either do not comprehend what a conflict of interest is, or are too full of distrust to use their heads. It is an all too common, foolish, untenable concept that crawls out from some rock  every now and then, usually when there is an excess of suspicion and distrust in the air. As Eric Holder responded to the questions about the seven attorneys, “all department appointees understand that their client is the United States.” Their client is the United States, and lawyers know that their loyalties reside with their current clients. The fact that their current client may be adverse to a former client does not change that presumption of loyalty, nor should it.  When you change jobs, are you inclined to help your former employer over your new one? Is any one? This fear of a reverse conflict of interest can only be explained by paranoia, usually induced by rapid partisanship. For instance…

Example #1: Harvey Pitt, President Bush’s first and most able head of the S.E.C., was dogged by Democratic accusations that he would favor the accounting firms and Wall Street companies that had been his previous clients. In fact, Pitt was determined to strengthen the S.E.C specifically because of what he had learned working with the financial wheeler-dealers. His loyalties, properly, were with his new employer, but unfounded accusations from the Left that he would naturally favor his old ones drove Pitt out of the job. Would Harvey Pitt have built an S.E.C. that wouldn’t have been asleep at the switch while Bernie Madoff was stealing billions under its nose? We’ll never know. Personally, I think he would have.

Example #2: The Left’s accusation that Vice President Dick Cheney was an in-house lobbyist for Halliburton in the Bush Administration persisted despite all logic and authoritative non-partisan efforts to debunk it. Why did Cheney’s enemies believe this? They believed it because they couldn’t muster the fairness and respect to accept that someone they strongly disagreed with on policy issues could still be patriotic and have the best interests of the country in mind. But Cheney was (and is) such a public servant, not a secret “mole” for the private sector.

The same is true of the Justice Department lawyers. Their willingness to represent accused terrorists in no way raises legitimate questions about their trustworthiness and loyalty, and thus, contrary to the GOP’s contention, Holder was under no obligation to “alert” Congress that the Justice Department was hiring them.

They are not “pro-terrorism,” and they are not conflicted. They are lawyers, and lawyers work diligently for their current clients.

3 thoughts on “The Unethical and Illogical Smearing of Justice Dept. Lawyers

  1. Jack said:
    This tells us that the critics either do not comprehend what a conflict of interest is, or are too full of distrust to use their heads. It is an all too common, foolish, untenable concept that crawls out from some rock every now and then, usually when there is an excess of suspicion and distrust in the air.

    If only, Jack, if only.

    If these guys had the problems you describe, at least it would be defensible. Foolishness and purblind ignorance is at least theoretically curable and worthy of regret, even pity.

    These guys, including all the people you mentioned, are suffering from an incurable disease known as “Scoring partisan points trumps reason and ethical behavior.” They know what they are doing violates every form of ethical discourse in this matter, and they are perfectly fine with it, because — score!

    A pity these fools think you have to check you ethics at the door because your opponent might. Politics may be bloodsport, but to sacrifice all reason on the altar of a political attack is just abysmal, dastardly behavior whose only redeeming quality is instructional value — on how not to behave.

  2. You are right, of course, but I have a lot of anecdotal evidence that people really DON’T understand how conflicts work, and that it’s the prior client, not the current one, who is at risk. Same with Cheney—you just cannot convince some people that he was only taking a huge pay cut to serve his country in order to funnel contracts to his old employers. It makes zero sense, it was debunked repeatedly, but they just refused to believe it.

    • Yeah, that’s a good point. Some people are so sold on the idea that politics is all about corruption that even if God himself appeared before them and told them the truth, they would reject it.

      In the case of Rush Limbaugh, Sean Hannity et. al., these guys know better. They are not so cynical that they cannot distinguish between the reality and the partisan in this case. They simply chose the partisan.

      If the shoe had been on the other foot, and former terrorist prosecutors had somehow been appointed as defense lawyers for the terrorists by the court, they would be all-out defending their ability to zealously represent their client fairly — and arguably, rightly so. Wasn’t it Aristotle who said that the law was “Reason free from passion?”

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