Legal Ethics Forum

Revisiting Sally Yates' decision

Today's ruling from the SCOTUS upholding large portions of President Trump's executive order 9-0 gives us grounds to revisit the earlier decision by then Acting Attorney General Sally Yates to order DOJ personnel not to defend any portion of President Trump's first executive order. In the comments to a post by Milan Markovic and elsewhere, I and others argued that Yates was free to disagree with the EO and to resign on that grounds, but that because of the legal arguments in support of at least parts of the EO her order to other DOJ personnel overstepped her proper role as lawyer. Given that even Ginsburg, Kagan, and Sotomayor upheld large portions of the second EO, and given the rationale in the court's per curiam opinion and in the now-vindicated dissent from the Fourth Circuit, isn't it clear that Yates' order went too far? [edited since posting] [also, as pointed out in the comments, the SCOTUS decision was only regarding injunctions below, so my use of the verb "upholding" was poor. as i discuss in the comments, there's still plenty of reason to conclude that Yates' order was improper.]

Why Mueller is Not Conflicted

There is has been some loose talk about Mueller being conflicted because Comey is his friend. Let's stipulate that a prosecutor cannot prosecute a crime where his or her friend is the victim. But this begs the question.

a. What does it mean to be a "friend" for this purpose? Do their families socialize? Or are they just former DOJ colleagues who think well of each other and perhaps have lunch now and then (they lived in different cities)?  In US v. Harrelson (1985), the 5th circuit said the latter was insufficient to keep a judge from presiding in the trial of the defendant charged with killing a fellow judge. Here is how the court described the relationship between the judges. And keep in mind that the standard for recusing a judge is stricter than those for recusing a prosecutor. That is, it is harder to disqualify a prosecutor.

"Appellants were tried before Judge William S. Sessions, a federal judge of the Western District of Texas, on charges arising from the murder of John H. Wood, Jr., also a federal judge of that district. Judge Sessions had known and worked with Judge Wood for eight or nine years at the time of the latter's death and admired him. The relationship was collegial and there is no evidence of any special social relationship between the two judges or between *1165 the Wood and Sessions families. Judge Sessions was an honorary pallbearer at Judge Wood's funeral and eulogized him at several memorial ceremonies. Because of the murder, Judge Sessions was guarded 24 hours a day until December 2, 1980. The appellants contend that these facts are sufficient to render the trial court's denial of their motion for recusal reversible error."

b.  What does it mean to be a "victim?" Comey was not assaulted or harmed. He lost his job but his reputation improved. A lot, I would say. He is quite marketable to BigLaw.  If that's victimhood, we need a new definition of victim.

c. The question we must ask: Is there an objectively reasonable basis to anticipate that Mueller will fail to exercise proper prosecutorial discretion in order to "get even" with Trump for firing Comey?  The answer is no.  Any motion to recuse Mueller on these facts, even assuming a Mueller-Comey bromance which has not been shown, will lose.

 

DOJ lawyers must be honest with the Court

Lawyers may not misrepresent facts to the court. FRCP Rule 11.

Department of Justice (DOJ) lawyers in particular have an obligation accurately to inform the court about executive branch action that is challenged as illegal or unconstitutional. Our civil liberties may turn on the court having accurate factual information about what the government is doing. A little over a year ago, some Obama Administration DOJ lawyers landed in hot water when a federal judge in Texas imposed sanctions for what he believed to be inaccurate representations about the President’s executive order on immigration

https://www.nytimes.com/2016/05/20/us/andrew-hanen-immigration-texas-court.html?_r=1

We may now confront a similar situation with President Trump’s travel ban. DOJ lawyers have asked the Supreme Court to reverse a lower court order striking down the travel ban as unconstitutional. The briefing in the case implies, if not outright says, that the Administration believes that the travel ban for which review is sought meets the security needs of the Country and conforms to the Constitution. The Court is not told that the Administration is seeking approval of this travel ban only for purposes of testing the waters, with the real intention of substituting another stricter ban in its place. The Court furthermore is not being told that it is a “travel ban” at all, such terminology being artfully avoided in the briefing papers.

President Trump’s Tweets now tell a different story.

The first issue is whether the DOJ lawyers knew or should have known of the President’s intentions on the travel ban, and in particular his intention to ask for a stricter travel ban. Did the DOJ lawyers know, at the time they submitted their briefing to the Supreme Court, that the President viewed the travel ban as being insufficient to protect the Country from terrorism? These are important issues for the Court to consider when deciding whether the travel ban is Constitutional under the circumstances (if it won’t work anyway because it is too “watered down” the Administration really should consider other options for keeping terrorists out of the United States). If the DOJ lawyers misrepresented material facts to the Court they should be sanctioned as the Obama DOJ lawyers were in the Texas immigration case. The Supreme Court should ask these lawyers what they knew and when about the Administration’s intentions on the travel ban (now that the President has openly admitted that it IS A TRAVEL BAN, the pretense that it is not can also be dispensed with). If the DOJ lawyers did not tell the Court what they knew about the travel ban, the Court should inquire as to why not.

The second issue is where to go from here. The Supreme Court is entitled to truthful disclosure of the Administration’s intentions with respect to the travel ban. If the Court approves it by reversing the lower court will the Administration implement the travel ban as it was described to the Court or will the Administration do something entirely different? Is the Administration’s plan to implement the first travel ban but then also seek to impose a stricter travel ban, with the advantage of knowing how each of the nine justices responded to the first one? If the President intends that this exercise in judicial review be only part of an incremental process of imposing ever stricter travel bans subject to judicial review in a series of cases, the Court is entitled to know that before it rules on this one. These are only some of the critically important facts that need to be disclosed by DOJ lawyers to the Court before it makes this decision. It is their professional responsibility to do so, and if they cannot be honest with the Court they should not be allowed to practice before it (admission to the bar of the Supreme Court is a privilege, not a right).

A manipulative child whose bedtime is eight may beg his parents to stay up until 9, and if successful use his knowledge of which arguments succeeded with which parent, to beg one or both of them to stay up until nine thirty and perhaps then ten. The child of course is not telling the truth if at eight he said that his intention was only to stay up until nine when in fact ten was his goal. Such games may or may not be appropriate with the kindergarten set. But that is not how the President is to deal with the Supreme Court. And DOJ lawyers certainly cannot play that game with him.

Imposing on law students' "moral independence"

DePaul law prof Julie Lawton has posted a new article, “Teaching Social Justice in Law Schools: Whose Morality is It?” Professor Lawton argues that “requiring law student participation in pro bono and legal clinics serving the indigent, as a condition of their graduation, is an improper imposition of my personal social justice morality upon my students.”  She explains:

When there are a limited number of legal clinics at each law school and the majority of those legal clinics are serving low to moderate-income clients, mandating legal clinics is akin to mandating participation in social justice issues, similar to mandatory pro bono service. This mandate of social justice service suggests an unwarranted imposition on a student’s moral independence.

An imposition on “a student’s moral independence?” I always assumed that one core purpose of a profession is to identify and maintain prudent impositions on its members’ “moral independence.”  If independence from such fundamental (I thought) moral claims as serving the poor is a virtue to be cultivated among our students, should we also avoid requiring them to participate in any exercise that may risk inculcating within them a respect for the rule of law or commitment to personal integrity?  And should we be urging the ABA to pull back from its insistence on imposing particular views on the wisdom of confidentiality, competence, diligence, and candor?

Should law faculty proceed carefully when teaching contested moral and political issues to make sure that students are exposed to the best arguments on all sides? Absolutely.  That's a worthy pedagogical objective to ensure that we're training critical thinkers who are effective advocates.  It's not about equipping our students for lives of "moral independence," whatever that means.  Navigating our biases effectively as teachers does not mean that a law school needs to avoid staking out a position on the basic moral norms that contribute to the animating vision for a particular school or the profession as a whole. We should be explicit and deliberate in discerning and conveying those basic moral norms.  This is (I hope) obvious for those of us who work at Catholic law schools, but the conversation about moral norms shouldn't be absent from non-religious law schools either.  Such conversations are a big part of what it means to be a profession.