Legal ethicists no doubt cringed earlier this year when Attorney General William Barr preempted Special Counsel Robert Mueller’s report by announcing that “no collusion” had occurred between President Donald Trump’s campaign and Russia. That was not what Mueller had actually said. Instead, the special counsel emphasized that “collusion” is not a legal concept and therefore made no finding on that point. As the top prosecutor in the nation, Barr had an ethical obligation to describe the law and the facts accurately to the American people.
But Barr’s misrepresentation was only the first of several legal abominations from federal-government attorneys—whose duty is to the American public and the agencies that act on the public’s behalf—behaving instead like Trump’s personal lawyers. This is no small ethical lapse.
Government attorneys are not like those in private practice, whose job it is to execute their clients’ wishes, to the extent that ethical norms and the law permit. Attorneys for the Justice Department and the White House represent the interests of the government and the public, not the individual interests of the president. The American Bar Association’s Rule 1.13(b) accordingly provides that “if a lawyer for an organization knows that an officer, employee or other person associated with the organization is engaged in action … that is a violation of a legal obligation to the organization … and that is likely to result in substantial injury to the organization, then the lawyer shall proceed … in the best interest of the organization.” For the White House counsel and the Justice Department, that organization is the United States of America.
I worked under Independent Counsel Kenneth Starr during his investigation of Bill Clinton. In those proceedings, Clinton was represented primarily by his private attorneys. Under Trump, the lines that should separate the president’s personal interests from those of the American populace have blurred. Even as news reports have described Trump’s personal attorney, Rudolph Giuliani, as being improperly enmeshed in diplomatic communications with Ukraine, lawyers for the Justice Department and the White House have taken dubious legal postures to impede lawful investigations of Trump’s conduct.
When an intelligence-community insider accused Trump of using American military aid as a lever to make Ukraine pursue a baseless investigation of Joe Biden and his son, for example, the governing statute legally obligated the acting director of national intelligence to hand over the complaint to Congress. Instead, Barr’s Justice Department issued an irresponsible legal opinion to justify keeping the whistle-blower complaint from Congress—despite the inspector general’s official determination that the complaint was “credible” and of “urgent concern,” thereby triggering congressional oversight.
The whole purpose of inspectors general and whistle-blower laws—which pre-date the Constitution itself—is to make sure that legitimate insider information of wrongdoing within the executive branch sees the light of scrutiny by a co-equal branch of government. The laws exist to protect the public. Justice Department lawyers know this.
The latest troubling missive came from White House Counsel Pat Cipollone, whose October 8 memo lays out the president’s rationale for keeping the entire executive branch from cooperating with the House’s impeachment inquiry. In his letter to Congress, Cipollone advances a host of frivolous arguments. He insists that President Trump “cannot permit his Administration to participate in this partisan inquiry under the circumstances,” and that the inquiry “lacks any legitimate foundation” under the Constitution. Cipollone goes on to posit that impeachment itself is constitutionally improper because it “seek[s] to overturn the results of the 2016 election and deprive the American people of the President they have freely chosen.”
This gripe is one to take up with the Framers of the Constitution, which allows for the impeachment and removal of a president for grievous misconduct. The inquiry’s legitimate foundation lies in Article II, Section 1 of the U.S. Constitution, which states that the House “shall have the sole power of impeachment.” This is as black-and-white as the law gets.
While it’s not unprecedented for political appointees to back the president, Richard Nixon’s attorney general, Elliot Richardson, resigned his post rather than execute a presidential directive that he fire the prosecutor charged with investigating his boss. Richardson’s predecessor, John N. Mitchell, stood by the president, but went to jail for his Watergate-related crimes.
No evidence has surfaced of criminal activity by Justice Department officials or White House lawyers. But if either the Cipollone memo or the Justice Department’s legal opinion on the whistle-blower complaint had appeared in an actual filing in federal court, it would likely violate Rule 11 of the Federal Rules of Civil Procedure, which is designed to sanction attorneys for making arguments that are frivolous or have no legal support.
Other sections of the American Bar Association’s Model Rules of Professional Conduct also shed light on the propriety of these lawyers’ work on behalf of the American people. ABA Rule 2.1 provides that “in representing a client, a lawyer shall exercise independent professional judgment and render candid advice,” while taking into account “moral, economic, social and political factors.” ABA Rule 8.4 outlines when attorney misconduct warrants disciplinary action: “It is professional misconduct for a lawyer to … engage in conduct involving dishonesty, fraud, deceit or misrepresentation,” or to “engage in conduct that is prejudicial to the administration of justice.” Obstructing a congressional investigation—and fostering an office of the presidency that defies the checks and balances inherent in the Constitution—violates this rule as well.
Trump’s legal position is growing more precarious by the day. On Thursday, Acting White House Chief of Staff Mick Mulvaney openly acknowledged that Trump had conditioned aid to Ukraine on an investigation that would help him politically. (Mulvaney later disavowed his comments.) If further news reports, witnesses in the House impeachment inquiry, or public statements by Trump underlings reveal additional evidence—as seems likely—bearing on possible conspiracy to defraud the United States, federal campaign-finance violations, obstruction of justice, or other offenses, then lawyers inside the White House and Justice Department have an ethical obligation to their clients to administer justice under the rule of law. But they must recognize that their client is the American public—not Donald Trump.
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