David, in 1995, “in conduct related to the practice of law” (to quote from the proposed ABA Model Rule on attorney’s speech), I submitted evidence to a court to the effect of, and argued to a jury that, there are commands to violence in the text of the Koran that were exploited by Sheikh Omar Abdel Rahman, using his authority as a renowned scholar of Islamic jurisprudence, to incite young Muslim men to plot and commit mass-murder attacks, which they thereupon did, expressly justifying their actions by these scriptures.
What I did in court satisfied jurors who unanimously found the defendants guilty on all the charges. Michael Mukasey, the highly regarded presiding judge who had ruled the evidence admissible and the arguments permissible under settled federal law, imposed lengthy sentences. In affirming the convictions, the United States Court of Appeals for the Second Circuit took the unusual step of praising the prosecution as being in the Justice Department’s highest tradition and the performance of the trial judge as exemplary — and, indeed, Judge Mukasey was later appointed attorney general of the United States. After the defendants were convicted and sentenced following the nine-month trial, I was presented with the Attorney General’s Exceptional Service Award, the Justice Department’s highest honor, and invited to the White House by President Clinton for the signing of the 1996 legislation that overhauled American anti-terrorism law.
Yet, as I now read the Model Rule, it appears that what I did in that case was “conduct related to the practice of law” because I was (a) representing my client, the United States of America, and (b) “interacting with witnesses, coworkers, court personnel, lawyers and others while engaged in the practice of law.” Moreover, I appear to have been engaged in what the Model Rule describes as “harass[ment] or discriminat[ion] on the basis of . . . religion” because my actions included “verbal . . . conduct that manifest[ed] bias or prejudice towards others because of their . . . religion.” To be clear, I did not take the position that all Muslims are terrorists — indeed, my main witness was a pro-American Muslim who infiltrated a terror cell as an undercover operative and helped us thwart a mass-murder attack that would have killed thousands of people. But I most certainly did (and do) take the positions that: Jihadist terror is a profound national-security challenge; all jihadist-terrorists are Muslims; and jihadist terrorists draw on Islamic scripture — which does literally say what they claim it says — in order to justify their atrocities.
So . . . if this lawyer speech-code goes into effect, do I get disbarred? Do I have to give my pretty award back? Does the Blind Sheikh get released from his life sentence (perhaps with an apology)?
More importantly, do prosecutors get to prove cases against jihadist terrorists anymore?