Disclaimer: I am not a lawyer but I am married to one. And I did stay at a Holiday Inn Express last night as well (ok, that part isn’t true...)
Unless there is a special exemption that would allow this nation’s top ranking prosecutor the right to, well, break laws and run afoul of any of the ethical and other conduct codes by the American Bar Association (which all other attorneys must follow), how does Alberto Gonzales still have a license to practice law?
This past week, members of his own Harvard Law School class came pretty close to asking him to step down. But, if impeachment isn’t going to happen (and it certainly is warranted for him), and if he isn’t going to step down (mind you, my prediction from almost exactly two months ago is still holding up), and he isn’t going to be fired, then why can’t he be disbarred for his actions?
And wouldn’t that be a fine mess – our own nation’s top lawyer being disbarred and not allowed to practice law? Actually, it would be fitting, and probably make him even more qualified in Bush’s mind to hold the position he holds….But, I digress.
It is clear that, at a minimum, even if we lower the bar to “egregiously illegal” with respect to Gonzales’ actions, as opposed to what you can “get away with” - clearly there were violations that would result in many MANY other attorneys receiving punishment, whether it be sanctions, suspension, warnings, reprimand, probation or even disbarment.
From the American Bar Association’s own standards for sanctions (warning: .pdf), here are the four general factors that are considered when deciding on sanctions for an attorney:
- The duty violated;
- The Lawyer’s mental state;
- The potential or actual injury caused by the lawyer’s misconduct;
- The existence of aggravating or mitigating factors.
Now, there are also a number of different violations which are laid out in the ABA’s standards, coupled with the types of violations that would warrant disbarment, suspension, reprimand, etc. I’ll post some pertinent ones below:
Lack of Candor: Absent aggravating or mitigating circumstances, the following sanctions are generally appropriate in cases where the lawyer engages in fraud, deceit or misrepresentation directed toward a client:
Disbarment is generally appropriate when a lawyer knowingly deceives a client with the intent to benefit the lawyer or another, and causes serious injury or potential injury to a client.
Suspension is generally appropriate when a lawyer knowingly deceives a client, and causes serious injury or potential injury to a client.
Now, this is tough to prove but I wanted to point this out here. The question with the Attorney General is really who his client is – is it “We the People”? Is ANYONE really his client? However, there was clearly an attempt to deceive when Gonzales lied to reporters or most likely lied to Congress.
Failure to maintain the public trust: Absent aggravating or mitigating circumstances, the following sanctions are generally appropriate in cases involving public officials who engage in conduct that is prejudicial to the administration of justice or imply an ability to influence improperly a government agency or official:
Disbarment is generally appropriate when a lawyer in an official or governmental position knowingly misuses the position with the intent to obtain a significant benefit or advantage for himself or another, or with the intent to cause serious or potentially serious injury to a party or to the integrity of the legal process.
Suspension is generally appropriate when a lawyer in an official or governmental position knowingly fails to follow proper procedures or rules, and causes injury or potential injury to a party or to the integrity of the legal process.
Bingo!!! At a minimum, suspension should be considered here. illegally re-certifying the wiretapping program certainly seems to fit this bill. As does the firing of US Attorneys who weren’t “loyal enough Bushies” and just so happened to be investigating prominent republicans or not chasing after bogus cases against Democrats. Obstructing justice? That remains to be seen at this point, at least from a legal perspective. But certainly this caused potential injury to the integrity of the legal process
False statements, fraud and misrepresentation: Absent aggravating or mitigating circumstances, the following sanctions are generally appropriate in cases involving conduct that is prejudicial to the administration of justice or that involves dishonesty, fraud, deceit or misrepresentation to a court:
Disbarment is generally appropriate when a lawyer, with the intent to deceive the court, makes a false statement, submits a false document, or improperly withholds material information, and causes serious or potentially serious injury to a party, or causes a significant or potentially significant adverse effect on the legal proceeding.
Suspension is generally appropriate when a lawyer knows that false statements or documents are being submitted to the court or that material information is improperly being withheld, and takes no remedial action, and causes injury or potential injury to a party to the legal proceeding, or causes an adverse or potentially adverse effect on the legal proceeding.
Again, this one may only apply to “legal proceedings” or issues that are before a court. I am not sure whether Congress would fall under this. However, Patrick Fitzgerald’s investigation into the Plame outing seems like it would qualify. And we do remember the 12 hour window that Gonzales and Card were involved with when it came to document preservation over the issues surrounding the outing of Plame’s identity. While there may not have been any actual injury as a result of this, there certainly appears to be a “potentially adverse effect on the legal proceeding”.
Now, these are three of the roughly dozen or so that are in the ABA’s standards publication. I am not sure if there are others. However, he has ignored subpoenas. Additionally, if he wasn’t outright lying to protect himself and others in the Administration (which I think would be grounds for disciplinary action), then he CERTAINLY isn’t fit for duty as he doesn’t even know what is going on in his own Justice Department when it comes to acts that are virtually unprecedented and documented to cause a political uproar. That seems to fall under the “unfit for duty” category (ok, a bit of an exaggeration but still….)
There were many many injured parties as a result of Gonzales’ actions – not just the generic “We the People” or the Constitution. People were tortured. People had habeas corpus taken away from them. US citizens were illegally spied on. US Attorneys were fired for political and certainly questionable if not outright nefarious reasons. Documents were hidden, lost, purged, “misplaced”; emails were deleted (I know, “mistakes were made”…).
Even if these actions don’t rise to the level of disbarment, they certainly seem to appear to rise to the level of suspension. At an absolute minimum, there should be some sort of warning or reprimand from the American Bar Association.
Which would not send a political message as those on the right would cry if impeachment charges were to be brought. It would be a strong message from the nation’s ethical and professional standard setter for attorneys – a message that this nation’s top attorney is engaging in conduct that, to many, give a clear appearance that he is unfit to continue being an attorney.