As I explained here and here in 2015, the process of judicially determining whether the Defense of Marriage Act was constitutional or not was unethically sabotaged by threats to and improper lobbying of the law firm that had agreed to defend it. The Justice Department and the President had refused to do their sworn duty to uphold the laws of the United States, and same-sex marriage activists pressured the biggest client of the firm that had accepted the case to pass the pressure along. It worked. The firm dropped the case, precipitating a resignation by the partner handling it and this ringing assertion of traditional legal ethics:
“…[D]efending unpopular positions is what lawyers do. The adversary system of justice depends on it, especially in cases where the passions run high. Efforts to delegitimize any representation for one side of a legal controversy are a profound threat to the rule of law.”
This was, we are learning, not an anomaly. On the Volokh Conspiracy, law professor Josh Blackmon relates how the same strategy of applying of unethical political pressure, and the unprofessional capitulation of major law firms to it, nearly made a legitimate challenge to illegal payments to insurers under Obamacare impossible. He explains in part:
In House of Representatives v. Burwell, the House challenged the legality of subsidies the Obama administration paid to insurers. Judge Rosemary M. Collyer ruled that the House as an institution had standing and that the payments were made without an appropriation. ..
In 2014, David Rivkin of the Baker Hostetler law firm and Florida International University law professor Elizabeth Price Foley wrote a series of articles, sketching a theory of why the House would have standing to challenge the president’s implementation of the Affordable Care Act. At the time, their writings focused on the White House’s delay of the employer mandate. Behind the scenes, Rivkin, Foley and their colleagues at Baker Hostetler were advising the House on how to take legal action.
With their counsel, on June 25, 2014, then-Speaker John A. Boehner (R) circulated a memorandum to the House GOP caucus [arguing that]
“..for the integrity of our laws and the sake of our country’s future, the House must act now” to stop the president’s illegal executive actions. In July, Boehner would bring legislation to the floor to authorize the House general counsel “to file suit in the coming weeks in an effort to compel the president to follow his oath of office and faithfully execute the laws of our country.”
…After the House authorized the suit, Rivkin and Baker Hostetler signed a contract to litigate the case, which was capped at $350,000. The reaction from Democrats was swift. The White House called the suit “unfortunate.” Minority Leader Nancy Pelosi (Cslif.) criticized the case as a waste of “time and taxpayer dollars.” Rep. Louise M. Slaughter (D-N.Y.) called the suit a “sorry spectacle of legislative malpractice” and “political theater.”
…Soon, the law firm was ridiculed on late-night television. Jimmy Fallon aired a fake infomercial for Baker Hostetler on “The Tonight Show.” The parody featured an ambulance-chasing lawyer pitching his firm. “At Baker Hostetler, we specialize in one thing,” the actor said, “suing the president. For instance, have you ever been forced to pass Obamacare, even though you didn’t like it? We can help you waste thousands of dollars in taxpayer money to fight for what you sort of believe in.”
The New York Times reported that Rivkin was “under pressure after facing criticism” from his colleagues “that he had taken on an overly partisan lawsuit.” Partners at his firm, the Times wrote, “feared the case against Mr. Obama could drive off potential clients and hurt Baker Hostetler’s credibility.”
…Within a week after the contract was announced, partners at the firm started to receive urgent calls from general counsels of clients in the health-care industry. Baker Hostetler represents many hospital management firms and insurance companies, particularly at its office in Columbus, Ohio. All the calls from the general counsels had the “identical” message: They were under pressure and could not continue to associate with Baker Hostetler if it litigated the House’s lawsuit.
The attorney I spoke with said it was “suspicious” that they all gave the “same” message very shortly after the contract was announced. There was a concern — confirmed by at least one general counsel — that the Obama administration was quietly pushing health-care companies to drop Baker Hostetler. After these calls came in, Rivkin’s colleagues told him, “You can’t do this.” The contract with the House prohibited partners at Rivkin’s firm from any “lobbying or advocacy” concerning the ACA. Many of Rivkin’s colleagues lobbied for health-care reform. Although the House was willing to amend the contract to strike this provision, all of the parties agreed that this would be a valid basis to cancel the representation.
Note: This was the same justification used by King and Spalding to drop the DOMA defense.
…The House, without a lawyer for its case, frantically approached many of the top firms in Washington. They asked veteran litigator Chuck Cooper, who served in the Reagan administration, to take the case. The founding partner of the Cooper and Kirk law firm declined. The House also asked Michael Carvin and Greg Katsas of Jones Day. Katsas had argued alongside Carvin before the Supreme Court in NFIB v. Sebelius. Jones Day also declined the House’s case. An attorney at the firm told me they did not think it was a winning argument to challenge the delay of the employer mandate. Specifically, the employer mandate would go into effect in 2016, thus potentially mooting the case before it worked its way up to the Supreme Court. President Obama made a similar point in ridiculing the suit. In a July speech in Kansas City, Obama said, “It’s estimated that by the time the thing was done, I would have already left office. So it’s not a productive thing to do.”
After a harried search, the House selected D.C. lawyer William Burck of Quinn Emanuel Urquhart & Sullivan LLP. I learned that Quinn Emanuel was deemed a better option because it was a litigation firm that did not lobby on behalf of the health-care industry. However, three weeks later, without any explanation, Burck withdrew from the case under similar pressure from his firm…
After two attorneys dropped out in one month, the House could not afford another miscue. An attorney advised Boehner that they needed an academic to litigate the case who “would not have any conflicts.” Bulgaria)….They soon chose Jonathan Turley, a law professor at George Washington University. Turley, though a liberal who supported national health care, had been a staunch critic of President Obama’s executive actions. Months earlier, he warned that “what the president is doing is effectively amending or negating the federal law to fit his preferred approach. Democrats will rue the day if they remain silent in the face of this shift of power to the executive branch.” On Nov. 18, Turley was officially hired. House Democrats still objected to the case. Rep. Robert Brady (Pa.) carped that Turley should not allow unpaid law students who have “not passed the bar” to be “exploited” by working on this case.
On Nov. 21 — nearly four months after the House authorized the suit — Turley filed House of Representatives v. Burwell. In addition to the employer mandate claim, Turley’s complaint also asserted that the Obama administration was paying subsidies to insurances companies that were not appropriate. This additional claim proved decisive, as the court dismissed the mandate-delay claim. In May 2016, Collyer ruled that the payments were illegal. The case is already on appeal to the D.C. Circuit and will probably be argued in early 2017.
What’s going on here?
What’s going on is epic unethical conduct by the government, Democrats, Obamacare advocates and most of all, the legal profession.
A President and his political party should seek to act only in accord with the Constitution and the limitations to power and process described therein. For a President and his allies to adopt the attitude that unconstitutional or arguably unconstitutional means should be employed as a matter of expediency, with their task being to prevent judicial examination of whether that means is legal or not, is wilful defiance of the Rule of Law. Worse, it constitutes a cynical attitude that threatens due process and democracy. An ethical, democracy-supporting leader and his party should insist on a judicial test of such questionable methods, not try to slip them through unchallenged.
This is not an ethical President, and his party is thoroughly contemptuous of the Constitution, as this episode demonstrates.
What was done to these law firms to intimidate them out of taking on a legal challenge to possible over-reach by the President is antithetical to the process dictated by the Constitution and the principles underlying it. As I wrote in the earlier posts, lawyers and law firms are ethically and professionally bound to resist such efforts, which literally create a conflict of interest, just as it is a conflict if a lawyer is told to drop a client or risk having his home bombed. The profession of law, however, is supposed to rise above the business of law. The sad fact, which lawyers will acknowledge behind closed doors, is that money and profit usually rule. When that is so, justice, the Rule of Law, the Constitution and democracy itself is endangered.
I wrote before…
The requirements of big business are incompatible with the integrity required of legal professionals. Fiduciary duties in a business require responsible management decisions in the quest for profits; legal professionalism dictates that lawyers put their personal beliefs and financial needs aside in order to ensure that unpopular people, movements, organizations and positions are represented, defended and given a chance to prevail in our system on their merits. … It is unethical in every way for a lawyer to even discuss another client’s matter with a second client’s representative. Nobody, literally nobody, disputes it. And yet when I ask if a firm would meet with its biggest client if it expressed concerns about an adverse reaction to the firm’s high-profile representation of an unpopular cause, every lawyer agrees that they would. In the real world, they won’t sacrifice millions of dollars worth of annual business for principle, even though it is among the defining principles of the profession….Bias has infected a profession that makes the avoidance of bias a core value, and the legal profession’s financial realities are corrupting its integrity.
That’s one problem. Another, even more worrisome because it is existential for a democracy, is that this administration exploited this Achilles heel in our legal system to avoid Constitutional oversight.
Totalitarians think like that, and operate like that. It is called “the ends justify the means,” and its embrace by those in power should trigger bi-partisan alarms.