5/23/00 12:45 p.m.
Applying The Standard To Clinton
The rules strongly suggest that the president should be disbarred.

By Daniel E. Troy, associate scholar, American Enterprise Institute

This story originally appeared in the Washington Times in 1998.

ill Clinton is a lawyer admitted to the Arkansas bar; his behavior, therefore, is governed by a code of professional conduct. Rule 8.4(c) of that code states that "[i]t is professional misconduct for a lawyer to . . . engage in conduct involving dishonesty, fraud, deceit, or misrepresentation." This rule extends to personal misconduct that reflects on an attorney’s fitness to practice law. Assuming that, as the evidence strongly suggests and as most of the American people believe, President Clinton has engaged in such conduct, he should be disbarred, as Richard Nixon was before him.

The comment on Rule 8.4(c), which is taken into account by courts in applying the rule, establishes that its purpose is to reach private conduct that manifests "moral turpitude" and which suggests that an attorney is not fit to practice law. In defining "moral turpitude," the comment notes that "that concept can be construed to include offenses concerning some matters of personal morality, such as adultery and comparable offenses, that have no specific connection to the fitness for the practice of law." "A lawyer should be professionally answerable," the comment continues, "for offenses that indicate a lack of those characteristics relevant to private law practice" such as "dishonesty, breach of trust, or serious interference with the administration of justice." The comment concludes: "A pattern of repeated offenses, even ones that are of minor significance when considered separately, can indicate indifference to legal obligation."

Applying this standard to Bill Clinton strongly suggests that he should be disbarred. He has admitted to committing adultery with Gennifer Flowers. He has also admitted that he was dishonest in his statements to the American people about that issue. Moreover, to quote National Journal writer Stuart Taylor, "unless Willey made up the whole thing, the President perjured himself about Willey during his Jan. 17 sworn deposition in the Paula Jones case. Not to mention possible perjury about Monica Lewinsky, Paula Jones, Gennifer Flowers, Dolly Kyle Browning, Betty Currie, and Arkansas state troopers Roger Perry, Larry Patterson, L.D. Brown, and Danny Lee Ferguson."

Of course, not every lawyer who has committed adultery or who has lied in his or her private life should be disbarred. But where an attorney has repeatedly brought disgrace on the profession by lying to the public and under oath, disbarment may be appropriate.

Establishing that the President should be disbarred would be considerably easier than proving that he violated a criminal prohibition, where the conduct in question must be proved beyond a reasonable doubt. By contrast, a petition for disbarment is granted if the complainant establishes by a preponderance of the evidence that an attorney violated the code. This means that, for the complaint to succeed, a complainant — who could be anyone — would only have to show that it was more likely than not that the President’s conduct involved "dishonesty."

There would be many advantages to an action to disbar the President. The President will not be indicted criminally, if only because Ken Starr apparently believes that a President is constitutionally immune from criminal prosecution while in office. Similarly, he is unlikely to be impeached — not only because of his political popularity, but also because it is not clear that Congress would consider adultery, repeated lying to the public, and lying under oath to be "high crimes and misdemeanors" for which impeachment is appropriate.

That President Clinton has not been — and may never be — indicted or convicted of perjury is no impediment to disbarment, however. For example, in 1995 the Oklahoma Supreme Court found that a lawyer should be disbarred because he had lied to his clients and then used "dishonesty or misrepresentation to conceal his misconduct." The Court wrote: "A conviction for criminal actions is not required before this Court may impose discipline on a member of the bar. This is true even for the most severe discipline of disbarment. Respondent’s actions clearly bring discredit upon the legal profession."

Most of the American people believe that President Clinton is lying about — at least — Monica Lewinsky and Kathleen Willey. This means that most Americans believe that President Clinton lied under oath. If it can be proven that they are right, President Clinton has brought "discredit upon the legal profession," "damaging the reputation of all lawyers," to quote the Oklahoma Court again.

More relevantly, in 1976, the Association of the Bar of the City of New York had Richard Nixon disbarred. Nixon had already resigned from the California and United States Supreme Court bars. After the City Bar Association moved against him, Nixon proferred his resignation to New York. The New York courts refused to accept his resignation, demanding that he sign an affidavit essentially admitting that he was guilty of the charges made. When he refused, the New York courts disbarred him, finding credible evidence that, among other things, "Mr. Nixon improperly obstructed an FBI investigation of the unlawful entry into the headquarters of the Democratic National Committee" and "improperly concealed and encouraged others to conceal evidence relating to unlawful activities of his staff."

The New York courts also rejected the argument that "while Mr. Nixon was holding office he was not acting in his capacity as an attorney." The court affirmed that its power "to discipline an attorney extends to misconduct other than professional malfeasance when such conduct reflects adversely on the legal profession and is not in accordance with the high standards imposed on members of the Bar."

As was the case with Nixon, disbarment would be a way of establishing for the historical record that President Clinton has lied repeatedly, and under oath. Moreover, disbarment would create this record without either the political or practical consequences that would attend indictment or impeachment. It could address to some extent the moral outrage that many feel that President Clinton is, apparently, "going to get away with it." Disbarment would also reaffirm something the organized bar constantly claims — namely, that the right to practice law is a privilege, and that attorneys should be held to a higher standard than that to which most other people are held.

In 1993, the New Hampshire Supreme Court upheld the disbarment — based on his failure to disclose a material fact in one pleading — of an attorney who had practiced for 20 years. In doing so, the Court wrote: "The practice of law is a privilege. This privilege, however, does not come without the concomitant responsibilities of truth, candor, and honesty. In fact, it can be said that the presence of these virtues in members of the bar comprises a large portion of the fulcrum upon which the scales of justice rest. Consequently, an attorney’s character must be beyond reproach." It is hard to imagine that President Clinton can meet this standard.