Is Criminalizing Attorneys For Their Legal Advice OK If You Are Really, Really Against It?

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Richard Painter has this recent post on The Volokh Conspiracy regarding the so-called "torture memos." In short, he suggests that, because John Yoo's memos did not opine on whether the arguments would prevail in court (i.e., on "the merits" of the position), that they provided "no useful advice," and were thus "inept legal advice" not meriting constitutional or free speech protection. [Update: the latter conclusion is drawn by another constitutional law professor discussing Painter's post -- Painter himself does not say this. My apologies.]

The argument derives from a clever gambit: instead of arguing the legality of the position, which is messy and political, argue the form of the legal advice, something more susceptible to legal argumentation. The argument so framed then becomes: whatever the position the memos took, they failed to analyze whether they would prevail in court, and thus were inept legal advice. Voila: we now needn't bother with any pesky free speech questions, natural law arguments, and structural constitutional questions of separations and delegations of authority.

But if we are going to confine our focus to a "client/counselor" analysis, let's take it seriously. For the president's counsel, the concern is not what the courts are going to do -- the nature of the issue means the result is going to be ends-oriented anyway. In other words, Painter's complaint is pure form over function, because, under his view, Yoo could have resolved the issue by offering a meaningless disclaimer, something like, "these are sound arguments, but predicting a judge's ruling would be impossible without knowing the politics of the particular judge." After all, the president has more discretion than most clients, and political capital is going to be a major component of his legal strategy. Coming up with even a colorable argument, combined with broad Article II discretion in foreign affairs and political capital, would likely be more than enough to constitute a competent legal strategy.

In this regard, one commenter hit the mark:

A memo is not the place to be spending 30 pages on some contingent analysis of all possible situations and legal theories: the memo lists the case law, some papers, and says "maybe." That's the state of the law: "maybe." More analysis is not going to change that.

And another:
These are lawyers doing research and finding conclusions about the state of the law. The president needs accurate information about the law to enable him to make appropriate decisions. Due to the near-total absence of law with respect to unlawful soldiers, the decision of how to treat them is ultimately a moral one. That's the realm of theologians and philosophers, not lawyers. I would not expect legal memoranda to contain detailed moral, philosophical, or theological discussions and conclusions. That's not what lawyers do. It would not be professional for them to do so when asked to render legal opinions. There's no reason to expect lawyers to have any particular expertise in those areas.

But clearly, moralizing is all Painter means to do, calling the arguments "specious" and "obvious[ly]" wrong without any analysis of his own. Ironic, given he has just finished suggesting that an unfinished analysis may be grounds from criminal prosecution. [Update: Ditto above. This conclusion is drawn by others, but not Painter.] Arguments such as Painter's, however cleverly conceived, still offer nothing to anyone not already converted to a particular political view. Strictly speaking, that's not argument -- it's bluster.

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