DisbarApril 6th, 2011

When I was admitted to the bar 30-some years ago, I took on the responsibility to police my profession. It’s right there in our first canon of legal ethics: “A Lawyer Should Assist in Maintaining the Integrity and Competence of the Legal Profession,” says the American Bar Association’s Model Code of Professional Responsibility.

To this end, I am instructed to “maintain high standards of professional conduct and . . . refrain from all illegal and morally reprehensible conduct. Because of his position in society, even minor violations of law by a lawyer may tend to lessen public confidence in the legal profession. Obedience to law exemplifies respect for law. To lawyers especially, respect for the law should be more than a platitude.” So says the code.

I question whether my brothers at the bar, Attorney Obama, President, and Attorney Holder, Attorney General, have violated this first canon of legal ethics by their advocacy of extra-judicial proceedings in the prosecution of Khalid Sheikh Mohammed and four others. Holder announced a few days ago that the alleged terrorists will be tried at the prison on the naval base at Guantanamo, Cuba, in a military court.

Holder’s order is in direct contravention of the Bill of Rights. The Sixth Amendment states that “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury.” A trial before a panel of military officers nine years after the alleged crime in a prison Americans can’t gain admittance to on a foreign island Americans aren’t allowed to travel to doesn’t suffice, and Holder and his boss have an ethical duty to point that out. It’s true that the military brass have gotten away with this in the past, but it’s still illegal. A court-martial might be able to hang these five Arabs, but lawyers could risk their licenses in letting that happen. Attorneys aren’t allowed to misstate the law, and they’re not allowed to advocate illegal proceedings.

Holder, probably on Obama’s instructions, faulted members of Congress for forcing the civil authorities to cede the case to the military, but members of Congress have no power to affect criminal prosecutions, and the restrictions Holder complains about do not have the force of law. On the contrary, it‘s a federal crime for a person in a position of authority, even a congressman, to interfere in a federal prosecution, as Holder says members have done, and this makes his deflection of responsibility itself a corrupt act.

The only precedent in the administration’s favor is the Bush-Clinton doctrine, which states that presidents and their minions are above all laws, but this doctrine is still evolving, and it‘s not clear yet that it exempts government lawyers from legal ethics. Clinton did get disbarred, remember.

It’s my duty to tell you this: lawyers should be working toward the disbarment of Holder and Obama, for this offense and this offense alone. It has the potential to be a solid legal challenge to the Bush-Clinton doctrine, and it’s also a way of vindicating constitutional rights without having to get arrested, beaten, or trampled.