Balkinization  

Monday, May 21, 2007

Gonzales's Legal Ethics

David Luban

Reynolds Holding’s article in Time Magazine asks whether Alberto Gonzales – a member of the Texas Bar – violated Texas ethics rules by trying to get Attorney General Ashcroft to sign off on illegal wiretaps while Ashcroft was hospitalized, after Acting Attorney General Comey had already refused to do so. A Texas legal ethics expert, Nancy Rapaport, thinks not:


"The ethics rules let lawyers question each other's decisions....It's just a little icky when you do it to someone who's in the hospital. But I don't think it rises to the level of anything that's actionable. I think it just fails the would-my-mom-be-proud-of-me test."
Steven Gillers disagrees. "The lawyer for the President was asking the head of the Department of Justice to approve an illegal program. By seeking to advance an illegal scheme, Gonzales seriously interfered with the administration of justice. It's hard to think of a clearer example of a violation of" Texas’s rule forbidding lawyers from engaging in conduct constituting the obstruction of justice. Gillers also thinks Gonzales, by attempting to dupe Ashcroft, violated the Texas prohibition on conduct involving deceit.

I’m doubtful about the first of Steve Gillers’s arguments. Texas’s rule is worded differently from the parallel rule in most other states (and the ABA’s Model Rules). The other states' rules refer to conduct that is "prejudicial to the administration of justice," and if that’s what Texas’s rule said Gillers may well be right that Gonzales's hospital visit violated it. [LATE NOTE: Reynolds Holden has informed me that Gillers was opining about the ABA rule, not Texas's; the error is his, not Gillers's.] But on its face Texas's rule looks narrower: "obstruction of justice" is usually the name of a specific crime or family of crimes, and it’s not clear that Gonzales, even on the most unflattering construction of his conduct, was trying to commit one of them. The federal obstruction statutes, 18 USC 1501-1520, target corrupt or coercive obstruction of investigations, and they plainly don’t apply, since there was no investigation going on. In the Texas code, the closest obstruction statute I could find is a provision that forbids "coercion of a public servant." [Corrections welcome.] It’s a crime if "by means of coercion," a person "influences or attempts to influence a public servant in a specific exercise of his official power or a specific performance of his official duty or influences or attempts to influence a public servant to violate the public servant's known legal duty." This sounds closer to what Gonzales was up to (again, assuming the worst construction), except for the "coercion" part – unless you want to argue that importuning a sick man is coercive. That is not a frivolous argument, but it’s a stretch. Furthermore, we might wonder whether the Texas statute applies when it’s not a Texas public official and the coercion happens in Washington. And, lastly, at that moment Ashcroft was not a public servant, because he had temporarily handed off the AG power to Comey.

That's where the real ethics violation lies. According to Comey, Ashcroft rose up off his pillow to remind Gonzales and Andrew Card that Comey, not Ashcroft, was the acting attorney general. They knew that, of course. Their aim was apparently to get Ashcroft’s legally-meaningless signature – meaningless, because at that time he was not exercising the powers of the attorney general – so they would have a document that made it wrongly seem that the attorney general had signed off on the program. If Marty's speculation is right, the AG’s signature was important to reassure telecom companies cooperating with the program that doing so was on the right side of the law.

But suppose that wasn’t Gonzales's and Card's reason for seeking Ashcroft’s signature. The fact remains that any use of the signature would have been, quite simply, fraudulent - at least, if it falsely suggested that Ashcroft's legal authority as AG attached to what he was signing . The Texas rules forbid lawyers from engaging in conduct that involves dishonesty, fraud, deceit, or misrepresentation. Steve Gillers focuses on their attempt to deceive Ashcroft. But the more significant violation lies in trying to get Ashcroft’s signature for purposes of deceiving others. Deceiving others with a fraudulent document would amount to a mammoth political hoax; deceiving the ailing Ashcroft would have been "only" a small bit of foulness. (It would bear some resemblance to the facts underlying Ohralik v. Ohio State Bar, 436 U.S. 447, a 1978 case where the Supreme Court upheld the disbarment of a lawyer for visiting an accident victim in her hospital bed to solicit her as his client. This is the kind of overreaching that the bar usually thinks is rather worse than simply "a little icky" - but it's not as bad as passing off a document signed by Citizen John Ashcroft as a document signed by the de jure Attorney General of the United States.)

Again let me emphasize: this all assumes the most damning interpretation of the facts. There are more innocent interpretations. I'm assuming the worst only to see if it constitutes an ethics violation. I'm suggesting that it does. So I reach the same conclusion as Steve Gillers, by a somewhat different route.

Until we know which version of the facts is correct, the cloud of suspicion over Gonzales remains. That means the Texas bar counsel ought to open an investigation of his behavior. Holden’s article is right that such an investigation would probably not conclude until after Gonzales leaves office. But the same was true of President Clinton or, more recently, Clinton’s national security advisor Sandy Berger, who has just accepted voluntary disbarment over his 2003 pilfering of documents when he was preparing to testify before the 9/11 commission. A few days ago Byron York, in the National Review Online, engaged in some head-wagging and hand-wringing over the fact that because Berger volunteered for disbarment, further investigation is unlikely. That is four years after the fact; perhaps we won’t have to wait that long for the Gonzales investigation to find out what the real point was for his hospital visit.

Comments:

Gillers seems to crop up in media coverage of legal ethics -- he wrote the Legal Profession textbook I was assigned in law school -- but he always seems a bit too quick to find ethical/professional violations.

As my dad used to like to quote, to the soldier, nothing is safe; to the physician, nothing is wholesome; to the priest, nothing is pure ....
 

A Texas legal ethics expert ...

Is that anything like a Chinese gaucho?
 

A Texas legal ethics expert ...

Is that anything like a Chinese gaucho?


Here's a picture of some Chinese gauchos with the Cowboy in Chief.
 


Furthermore, we might wonder whether the Texas statute applies when it’s not a Texas public official and the coercion happens in Washington.

Perhaps Gonzales couldn't be prosecuted for it. But we are looking at the statute as a standard of conduct enforceable under the rules, not as creating a crime in itself (I imagine the likelihood of AGAG being prosecuted is approximately nil). That standard applies wherever the lawyer is. It is unlikely that the standard prescribes different conduct in and out of the state. Then again, things are different in Texas...

At any rate, of course, it is a stretch. Almost as much as saying that the AUMF impliedly suspends FISA, or that Article II invests the President with power to ignore the law. I say, live by the sword...
 

Re the Texas prohibition on conduct involving deceit.

Have a look at this statement by Gonzales dug up by Anonymous Liberal. Gonzales wrote this just two days before the Risen and Lichtblau story broke in the Times contradicting him:

All wiretaps must be authorized by a federal judge. In addition, investigators must show probable cause and comply with other requirements before the court may authorize the wiretap. This has always been the case, and the PATRIOT Act did nothing to diminish these safeguards.
 

It seems to me that lawyers always have trouble finding a crime in their own actions, or the actions of another lawyer. Presumably they have a duty to pursue things to the edge of reason, so motivations, those things which elevate mistakes and accidents to high crimes, are ignored.

In this case we have the same thing: lets ignore what came before and what was going to happen after the signature. Finally someone is looking at the intent to use the signature, but we have still left off the prior actions which raises the motivations to a much higher level: the preparation of the document to be signed.

When a criminal plans his crime, this is always used to show intent, and it should.

I imagine here, we had a piece of paper that needed the AG's signature. It probably even included the title near the blank signature line. The act of transporting this document into the hospital room provides all the evidence you need. The fact that someone stopped the process is unimportant. The fact that the document was never used is unimportant. The crime had already been committed, the attempt had already been made. Success is not necessary. Except of course when you are dealing with lawyers. Apparently it is their right to keep all options on the table, without motivation or intent.

I guess the only defense is if there is a legal method of instant restoration of AG authority. I don't know how this is done, or how instant it can be. Some regulation must cover this area, but it could probably be overridden by the president...
 

rmadilo:

I don't know that anything specific is required, so Ashcroft's signature as "Attorney General" on that very document you consider so nefarious could have operated as resumption of the duties and powers of the Office. Worse case scenario, for comparison's sake, here is Reagan's resumption as President on July 13, 1985 under the 25th Amendment, in its entirety:

"Dear Mr. Speaker (Mr. President:)

Following up on my letter to you of this date, please be advised I am able to resume the discharge of the Constitutional powers and duties of the Office of the President of the United States. I have informed the Vice President of my determination and my resumption of those powers and duties.

Sincerely,
Ronald Reagan"
 

Apparently, Charles is Rosie O'Donnell's doppleganger. Who knew?
 

Gross!!!
 

Charles,

Maybe you missed the point of my post: lawyers, a.k.a. 'attorney types', have a great racket, they can always claim that they had no specific intent, just planning for a theoretical possibility. So Gonzo can prepare a document in total innocence, and Ashcroft can sign it with full intention: who would ever sign a document without full intent? Impossible! If he had signed it under those conditions, it would only prove how much intention he had to do it. Thank God Gonzo gave Ashcroft a chance to restore himself to office, why wait 'til morning, or even full consciousness of time and place?
 

I think I dealt with your point and your "I don't know how this is done, or how instant it can be" as well -- all the specifics about "legal capacity" are too detailed for a blog post though -- let me know if you have any other questions.
 

You want "conduct that is 'prejudicial to the administration of justice'", look no further than Gonzales signing off on all the death sentences in Texas, and telling Dubya that there's 'nothing to see here, move alog, move along' in reviewing the petitions for clemency....

Cheers,
 

Charles:

[H]ere is Reagan's resumption as President on July 13, 1985 under the 25th Amendment, in its entirety:

"Dear Mr. Speaker (Mr. President:)

Following up on my letter to you of this date, please be advised I am able to resume the discharge of the Constitutional powers and duties of the Office of the President of the United States. I have informed the Vice President of my determination and my resumption of those powers and duties.

Sincerely,
Ronald Reagan"


Hate to tell you this, but: While he may not have been lying, he was wrong.....

Cheers,
 

charles: "please be advised I am able to resume the discharge of the Constitutional powers and duties of the Office of the President"

Please be advised that you're doing a nice job of defeating your own argument. Notice that Reagan did not signal that he was back on the job by simply jumping right in and starting to sign normal work. First he signed the note you posted, formally resuming his duties.

If Gonzales had been even slightly interested in doing the right thing, he would have sought Ashcroft's signature on a document such as the one you cited, before seeking Ashcroft's signature on anything else.

"I don't know that anything specific is required, so Ashcroft's signature as 'Attorney General' on that very document you consider so nefarious could have operated as resumption of the duties and powers of the Office"

It takes a unique talent to make a claim like this, and then in the next breath bring proof (Reagan's note) which undermines the claim.

If nothing "specific is required" in a situation like this, then there was no reason for Reagan to bother signing a document which had the express and sole purpose of signifying that he was ready to resume his duties.
 

The Office of Attorney General is not covered under the 25th Amendment. I was citing Reagan's example as a "worse case" scenario that Ashcroft would not have to do more than that. Think of it as an "in the alternative" argument, if that helps.
 

charles: "Ashcroft would not have to do more than that"

What Ashcroft would have to do it just "that." No one is suggesting that Ashcroft would have to do "more than that." Nice straw man you got there. The problem is not that Ashcroft failed to do "more than that." The problem is that Ashcroft failed to do even "that."

"The Office of Attorney General is not covered under the 25th Amendment."

Here's your stunning logic: the 25th Amendment says power is passed with a written declaration. "The Office of Attorney General is not covered under the 25th Amendment;" ergo, there was no need for a written declaration to pass power from Ashcroft to Comey and then back again.

Sorry, but I don't buy that. I think it's a safe bet that a written declaration was used to pass power from Ashcroft to Comey, and likewise for the reverse. This has nothing to do with the 25th Amendment. It has everything to do with common sense.
 

No, that's not my logic. I already said I don't know if anything specific is required. Your "logic" however is that the 25th Amendment requires a written declaration for the Office of President, the Office of Attorney General sounds the same, ergo, same requirement. As soon as you prove a written declaration was used to pass power from Ashcroft to Comey, I will go back to my position that Ashcroft could have written and signed the same revocation on the envelope if necessary (again, think "in the alternative" arguments).
 

But Charles, the point at the end of the day is that could Ashcroft have been considered competent to do so? Even if such a scenario played out, Card and Gonzales would have had to have some justification to believe that a man who was in the ICU just after major surgery and on narcotics could make a competent decision. It almost seems that there only basis for claiming he was competent would be that he agreed with them. That should also bring some doubts as to their competency.
 

jbg:

I think it's a safe bet that a written declaration was used to pass power from Ashcroft to Comey

charles:

As soon as you prove a written declaration was used to pass power from Ashcroft to Comey

The link I gave in the other thread to the MSNBC article shows that something regarding the transfer from Ashcroft to Comey not only was in writing but was faxed to the White House.
 

DoJ faxing the White House the actual written declaration passing power from Ashcroft to Comey is one thing -- faxing over the DoJ press release is another -- also, do we KNOW that Ashcroft was on narcotics?
 

Charles's arguments in this thread highlight the convenient inconsistency of the Administration and its dead-ender supporters. When it's time to send troops into Iraq, the least credible evidence suffices; no need to look too closely or actually confirm the "facts". When it's time to question the ethics of AGAG, every jot and tittle must be confirmed by the Pope before we can proceed to the next step.
 

Ouch -- all I was pointing out is that a DoJ press release is different than the actual written declaration -- no need to start painting with a broad brush like that.
 

charles: Your 'logic' however is that the 25th Amendment requires a written declaration for the Office of President, the Office of Attorney General sounds the same, ergo, same requirement"

No, that's not my logic. As I said, one doesn't need the 25th Amendment to understand that the clarity and formality of a written declaration are what's called for in a situation like this. All one needs is common sense.

"Ashcroft could have written and signed the same revocation on the envelope if necessary"

I'm not claiming they would need ceremonial parchment. I agree that "Ashcroft could have written and signed the same revocation on the envelope if necessary." Trouble is, that's not where Gonzales started. In other words, the proper procedure would have involved Gonzales saying something like this: "John, I have an important matter to discuss with you, but first I want to make sure you are in a proper condition for this discussion. I've met with your physicians and they've assured me that you are not on narcotics and are lucid. Therefore, if you agree, I'd like to start by asking you to sign a statement transferring AG authority from Comey back to you. Or, at the very least, I'd like to start by hearing you declare in front of the witnesses present that you consider yourself fit to conduct your professional duties."

Trouble is, that's not where Gonzales started. He started right in talking about the authorization he wanted Ashcroft to sign. In others words, as far as we can tell, Gonzales showed no concern whatsoever for the question of whether or not Ashcroft was currently incapacitated, and the related but separate question of whether or not AG power had been transferred to someone else, and therefore needed to be transferred back.

Gonzales' behavior showed that he cared only about the signature, and not whether it was based on sound judgment, and not whether it had legal validity.

"do we KNOW that Ashcroft was on narcotics?"

We know that he spent 90 minutes in an operating the room the day before, and then was reported in "guarded" condition. We know that he was recovering from a severe case of an illness known to cause excruciating pain. We know that he was in an intensive-care unit. We know that his wife had banned all visitors and calls. These are all strong clues that Ashcroft was probably filled to the gills with morphine. In any case, no reasonable person in such a situation would presume, without even bothering to ask, that Ashcroft was not on narcotics. The problem is that, as far as we know, Gonzales didn't even bother to ask. Gonzales acted is if he did "KNOW," without even asking, that Ashcroft was not on narcotics.

"a DoJ press release is different than the actual written declaration"

True. But please don't imply that you "KNOW" that what was faxed was a press release, or only a press release. It's possible that "the actual written declaration" is what was faxed, or also faxed.

"no need to start painting with a broad brush like that"

You've worked hard to earn the brushing.

mark: "convenient inconsistency"

Exactly. There's a stunningly selective skepticism.
 

For the record, I was not the devil's advocate against invading Iraq. Back on topic, though, I never implied that I "KNOW" what was faxed, or even whether Ashcroft was filled to the gills with morphine. Which is why I asked the questions I did.
 

Based solely on the testimony of Comey, and that which is reasonably inferred therefrom, Gonzo and Card knew, or had every reason to expect, that Ashcroft was sufficiently incapacitated that he would be an "easy mark".

They had also to know that Ashcroft was not at the time AG -- they had first gone to Comey as acting-AG, and he refused to sign.

All they cared about was getting the appearance of legality on paper in order to continue whatever the illegal program.

The whole scenario reeks of knowing and deliberate fraud.

And all of that clearly implicates ethics, including those which apply to lawyers. But, as a staffer of the Attorney Discipline entity in MA told me: "Why bother" submitting a complaint, because the lawyer will always get off. (I've yet to see a violation by a lawyer, in a case of malpractice, in which the court didn't agree with the lawyer's dumping of the responsibility on a handy at-hand paralegal, despite the Canon stipulation that the lawyer is responsible for the work/actions of his non-lawyer subordinates.)

Ultimately, what we get in such a discussion is lawyers "gumming it to death". Keep it in the realm of the abstract, and hypothetical. Generalize away from the specific. Just don't allow any concrete conclusion, or answer to the question.

Gonzo is clearly a fraud in word and action. But ultimately that's allowed becaue he's a lawyer.
 

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