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.
Posted 9:06 PM by David Luban [link]