The first anxiety might be triggered if one believes: (1) lawyers "just doing their jobs" should not be criticized for the bad deeds of clients that might be facilitated in some way by the lawyer's work, or for deeds lawyers perform within the accepted bounds of professionalism.
If one believes that and also believes (2) abusive treatment is invariably morally wrong, then one might feel anxious about about whether belief (1) could withstand the internal psychological tensions generated by moral condemnation of abuse sanctioned by statutory interpretation.
If the lawyer in question worked incompetently or in bad faith, however, then he could be condemned precisely for traducing professional norms, and thus without conflict with (1). My conjecture, therefore (and it is no more than that, for I cannot speak for anyone else), is that the memoranda create a facial tension between (1) and (2), and that this tension creates conflict that increases the appeal of the conclusion that OLC lawyers violated professional norms: That conclusion resolves the conflict in a satisfactory way.
The second anxiety is that if these memoranda are competent then law is so elastic it is pointless to talk of a rule of law perspicuous to the reasonable observer, and thus pointless to argue that the memoranda undermine it. This anxiety corresponds roughly to the importance to this debate of morality and interpretation--two forces Stanley Fish famously identified as threats to the notion of law as an autonomous thing ("The Law Wishes to Have A Formal Existence).
Professor Fish's point was that the law does not have an autonomous existence but does shape and constrain the practices that constitute the law. Plain meanings are never plain in the colloquial sense, for example, but are achieved through the manipulation of frames and arguments that are accepted as constituting plausible legal discourse. More generally, "the law is continually creating and recreating itself out of the very materials and forces it is obliged, by the very desire to be law, to push away."
We don't want to take this point too literally, for that would understate what Llewellyn called the "reckonability" of the law, which is substantial. But it is right to say that at the margins the law is not autonomous and it is misleading to think otherwise. It is always checking itself against premises and probable consequences as they appear in the light of new situations and adapting itself in ways that seem desirable, relative always to debatable ends.
For these reasons, when strong moral objections to abusive treatment are translated into arguments about unlawful lawyering, and suggestions that such lawyering places the rule of law at risk, then it seems to me the arguments negate themselves. For they gain strength from the relation between law and morality, and the permeability of law to moral concerns, that they profess to deny.
If it is right to say that the rule of law is at stake in the OLC memoranda, in other words, it is not because the memoranda threaten to undermine the general reckonability of law.* Any such claim would be hyperbole unsupported by experience. It could only be because of the high moral stakes of abusive treatment, which is to say because those memoranda touch on areas in which many people want moral considerations to weigh more heavily than they would if the memoranda concerned a UCC lien check. That does not show the autonomy of law from moral concerns, it shows the reverse.
The same is true of professionalism arguments. The notion of professionalism as a norm sufficiently detached from other norms to resist assault from them is undermined when the boundaries of professional norms are contested to satisfy the demands of moral conviction.
But--and this is the point--that is always the case. It is always available to an advocate to say, in essence, "you know, it is morally wrong for defense attorneys willfully to avoid knowledge of their clients' guilt just so they can put on testimony that in all likelihood is perjury. Let's start condemning that practice as unprofessional." Whether that move works (it won't) is then a question of tactics, rhetoric, and probable consequences, not of some ontological truth about lawyering.
If all this is right, then it is a mistake to use the OLC experience as an effort to prop up either some particular conception of practice or of some notion of the rule of law. The experience does more to make transparent the tensions underlying these concepts than to bolster any particular conception of them.
And if that is right, perhaps it would be better to satisfy ourselves with learning the facts, which could then be used to alter and further construct these conceptions, rather than to insist on the present record that these conceptions have fixed boundaries we already know have been traduced. Insisting it is so will not make it so, but it might impede the gathering of facts.
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*I acknowledge this implies that law is no more than a coordinating device with no necessary relation to any particular moral system. That implication seems to me to fit the facts of the world better than any competing conception.
DM