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

Rich clients aren't like you and me.

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.

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 9^th 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.

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.