One of the most damaging developments in Washington over the last few years is the increasingly vicious attacks on government lawyers for providing legal opinions with which political opponents of President Bush disagree. I was blocked from confirmation to the Federal Election Commission because of legal opinions I provided to my superiors at the Department of Justice, and there are other lawyers experiencing the same attacks for the legal opinions they provided — Stephen Bradbury, nominated to the Office of Legal Counsel at DOJ, and John Yoo, who is not only being sued over his opinions, but whose post-government employment is being threatened. That we were not the final decision-makers is ignored; only that we provided legal opinions that other officials relied on in taking actions that certain senators and highly partisan advocacy organizations do not agree with politically.
Basic professionalism requires attorneys to provide their clients with objective (and confidential) legal opinions on issues, even when those issues are controversial or the subject of popular disapproval. By the same token, representing a client does not constitute approval of the client’s activities.
The critics seem to believe that government lawyers should provide political or moral (as opposed to legal) objections to controversial actions. Stephen Bradbury and John Yoo were asked whether certain interrogation techniques violated federal law; they apparently opined in the negative. It was not their decision whether such techniques would be used, or whether the use of such techniques might implicate certain moral considerations. Their job was simply to opine whether the techniques were legal. Similarly, it was not my job to tell my superiors what I thought morally, politically, or socially about voter-identification requirements (even though I personally think they improve election integrity, as does the Supreme Court); my job as a DOJ lawyer was simply to advise my superiors whether such a requirement was legal under federal law — and I did exactly that.
None of our legal opinions have been proven wrong in the courts (and even if they were, lawyers cannot always predict how courts will rule on issues); yet we are being punished for providing legal opinions on which others acted, and for apparently not voicing objections for nonlegal reasons. Of course, the career lawyers who leaked some of these confidential legal opinions are not being punished for their unethical behavior which would normally subject them to disbarment under the rules of professional conduct, and are instead treated as heroes by the media and political opponents of the administration.
The senators who objected to our nominations surely would not claim that the lawyers who have represented terrorists such as the freed Guantanamo detainee who recently killed seven Iraqis with a bomb are unqualified to hold public office. They are well aware that the public condemnation of attorneys who are ensuring due process even for the worst criminals would make it difficult to obtain legal representation. Yet they condemn attorneys in public service for providing legal advice because they disagree with the public policy implemented by the political leadership of the executive branch.
Even worse is the push for inspector-general investigations second-guessing the legal judgment of government lawyers. Inspector generals investigate waste and fraud — the idea that they should judge the legal opinions of lawyers is absurd. The claim that a lawyer who prepares a legal opinion that others disagree with has committed an ethical or professional violation would be laughed at anywhere outside of Washington. Does this mean that the Supreme Court needs an inspector general to investigate dissenting justices who take a completely different view on legal issues than those justices in the majority? Law is an inexact art, not a science, and lawyers routinely have differing opinions on complex legal issues. Trying to criminalize those differences is political revenge at its worst.
If Democrats win the White House this fall as they hope, the new administration will be faced with an array of complex public-policy issues. It will need sound legal opinions from government lawyers on the legality of the solutions it wants to implement. In a highly charged political environment, providing legal opinions on politically contentious issues can be very difficult, particularly when there is no legal precedent. What kind of legal opinions do Democrats think they will get if the lawyers they consult know that their legal opinions will be publicly released; they will be personally attacked, sued, or charged with ethics violations; and their advancement stymied if critics do not share those opinions?
The lesson for government lawyers is a dire one that damages the ability of public officials to receive objective advice when engaged in the difficult job of determining public policy, enforcing the law, and protecting the security of the country. The new administration certainly will not receive the frank and objective advice that is crucial to government leaders, Republican and Democrat alike. That will make it even harder to govern than it already is to the detriment of all Americans and the implementation of good public policy.
– Hans A. von Spakovsky was a career lawyer at the Department of Justice and a recess appointee to the Federal Election Commission. His recently withdrew his nomination for a full term as a Commissioner at the FEC.