All the president's lawyers.

All the president's lawyers.

All the president's lawyers.

The law, lawyers, and the court.
Dec. 22 2004 4:32 PM

All the President's Lawyers

Should the attorney general be the president's yes man?

Gonzales: plumber or judge?
Gonzales: plumber or judge?

Rich clients aren't like you and me.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate and hosts the podcast Amicus.

One of the most striking legacies of my brief foray into the wonderful world of divorce law was the observation of this difference between wealthy clients and normal ones: The wealthy clients, particularly CEOs and business owners, tended to believe that the role of a divorce lawyer is to deliver precisely the legal outcome they desire, regardless of what the law itself demands. Whether it was an issue of custody, child-support payments, or Christmas visits, these clients would instruct us on precisely what they wanted and wait to have it implemented.

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This is the "plumber" model of an attorney; they are expected to arrange the pipes to dump water where the client wants it. Divorce law doesn't always work that way, though. Counsel is constrained by precise child- and spousal-support formulae, and family law judges have almost limitless discretion to do what they deem to be in the best interest of the children. First comes the child, then comes the statute, and only then come the wishes of the client.

I spent many, many hours trying to explain to rich men that while they may want to pay $200 per month in support and have visitation only on alternating golf days, the law just could not be wrestled into compliance. This is the "judge" model of an attorney. One offers best guesses about what the law will permit, then tries to persuade the client to live with it.

In a sense, President Bush is the quintessential rich divorce client. It's not just that he's wealthy; it's that he's accustomed to having cadres of lawyers flitting to and fro, waving their sparkly lawyer's wands and making his every dream come true. And this is why soon-to-be Attorney General Alberto Gonzales really is any president's dream come true. His prevailing legal principle appears to be to deliver whatever the client wants, whenever the client wants it. And one of the questions we need to contemplate is whether that's the kind of lawyer we want for the next attorney general.

Gonzales is in a little bit of trouble just now. Democrats are threatening to muck up his confirmation hearings with a clutch of memos that have him either offering or ferrying along some shockingly bad legal advice to the president. A troubling piece by Michael Isikoff, Daniel Klaidman, and Michael Hirsh in this week's Newsweek describes the legal process that animated the now notorious Aug. 1, 2002, "torture memo"—a document drafted by DoJ lawyer John Yoo, (now teaching at Berkeley Law School) and signed by Assistant Attorney General Jay Bybee (now a judge on the 9th Circuit Court of Appeals). The memo, among other things, argued that torture isn't really torture unless it was "specifically intended" to cause harm and that only physical damage rising to the level of "death, organ failure or the permanent impairment of a bodily function" actually meets the legal definition of torture.

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Gonzales similarly played the role of master plumber to Bush's CEO in another notorious memo, this one authored by him, a Jan. 25, 2002, document arguing to the president—against the explicit urgings of Colin Powell—that the protections of the Geneva Conventions do not apply to the conflict with al-Qaida. Dismissing the Geneva protections as "obsolete" and "quaint," Gonzales helped the administration stake out a legal position that was far more extreme than necessary, a style of advocacy Gonzales himself labels "leaning forward."

And this loaded legal "advice" perfectly mirrors the kind of plumber-style lawyering for which Gonzales was known back when he advised then-Gov. George Bush on grants of clemency to death row inmates in Texas. As writer Alan Berlow chronicled in this now famous Atlantic Monthly piece, Gonzales failed to give the governor highly relevant legal advice in memos regarding imminent executions. Gov. Bush ended up signing off on all but one of the 152 executions that crossed his desk in his six years as governor, in part because his "lawyer" did not see fit to advise him of possibly crucial mitigating circumstances—including ineffectiveness of counsel and claims of actual innocence.

In some senses, the clemency memos are a more egregious example of the dangers of yes-man, plumber-style lawyering than the torture memos. When Gov. Bush was charged with making last-minute determinations about sparing the lives of those sentenced to death, he was acting as de facto judge. He ought never to have been in an adversarial position with regard to the accused in the first place. His job, and therefore Gonzales' job as his adviser, was to weigh all the mitigating evidence and determine whether there was any basis on which to spare a human life. By failing to meet even minimal standards of legal objectivity, Gonzales offered substandard legal advice.

The torture memos—specifically, Gonzales' January memo opining that Bush need not answer to the requirements of the Geneva Conventions—are a closer call. For one thing, Gonzales does lay out arguments on both sides, which he failed to do in the clemency memos. For another, the memos were part of the larger information-gathering process regarding U.S. executive power during wartime, rather than a summary of all relevant legal arguments—as the clemency memos ought to have been.

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Next month the Senate will face the difficult task of winnowing out which of these memos, if any, represent Gonzales' views and whether this strident and often one-sided legal advocacy represented any kind of ethical lapse.

Yesterday, a memorandum from a group of former Office of Legal Counsel attorneys was sent to Attorney General John Ashcroft, Alberto Gonzales, and Acting Assistant Attorney General Daniel B. Levin. Its stated purpose was to clarify the practices and principles of the OLC going forward, especially in light of the August 2002 torture memo. The OLC is directed by the attorney general, and one of the concerns underlying this memo is that what passed for legal "advice" when Gonzales acted as White House counsel can have no place in the OLC. Gonzales' plumber style of advocacy, while problematic in a lawyer for the White House, would be disastrous if it were implemented by OLC. Pointing out that the role of the OLC is to advise and guide the president and the executive agencies, the memo argues that the main task of this office is to provide "reliable legal advice" as opposed to adopting "[t]he advocacy model of lawyering, in which lawyers craft merely plausible legal arguments to support their clients' desired actions."

Advice to the president cannot, these lawyers continue, ignore whatever inconvenient legal constraints might impede the desired course of the executive branch, particularly because the president is charged with protecting the entire Constitution and not just executive power. The authors urge the president's legal advisers to show respect for the courts and Congress, as well as deference to the president. Finally, the memo seeks a lot more transparency from the president's lawyers with respect to what they are advising and why. In sum, the former OLC lawyers are asking Gonzales to adopt the model of lawyer-as-judge, as opposed to lawyer-as-plumber, in his role as the next attorney general.

Of course the distinction between these two models of lawyering is never that simple. Most attorneys weave back and forth between acting as hired gun and wise counselor 20 times a day. And despite a haze of repression, even I can recall that whole legal-ethics classes were devoted to the question of when an attorney should answer solely to her client and when she is obligated to act according to the greater good. Particularly in the context of the criminal law, these lines are often blurry at best. But the OLC memo provides a pretty good template for the Senate to use in assessing Gonzales' suitability to become a judge type of lawyer.

On the one hand, Gonzales has already proven, when he sat on the Texas Supreme Court, that he is perfectly capable of principled legal thinking and that he needn't be anyone's yes guy. In that sense, he may have been a better choice for the U.S. Supreme Court than for attorney general. The question posed yesterday by the OLC's former lawyers, and the question that needs to be resolved next month, is whether Gonzales is capable of representing Congress, the courts, and the Constitution rather than just carrying water for his boss.