Professional independence in the Office of the Attorney General.

• Author: Spaulding, Norman W.

INTRODUCTION I. SELF-RELIANCE, DISCIPLINE, AND THE ETHIC OF RESPONSIBILITY A. Independence as Self-Reliance B. Transcendental Conflict: Independence as Personal Detachment C. Independence Lost: From Detachment to Discipline II. INDEPENDENCE THROUGH POLITICAL ACCOUNTABILITY? A. Early History of the Office of the Attorney General B. From War and Reconstruction: A Department of Justice III. THE CURRENT ADMINISTRATION A. Independence as Moral Activism B. Independence as Legal Positivism C. Independence as Civic Republicanism D. Independence as Political Accountability INTRODUCTION

Warrantless surveillance, extraordinary rendition, indefinite detention, torture. These are the most serious charges of extralegal conduct by the present administration--conduct which, in one form or another, Attorneys General Ashcroft and Gonzales and their staffs have attempted to give the imprimatur of law. The charges are serious indeed. To them, lesser charges could be added (cronyism, distortion of enforcement priorities, abuse of prosecutorial discretion). (1) What are we to make of the fact that the nation's highest legal officers, not to mention a good number of their subordinates, have been drawn so willingly, it would appear, into a position of complicity with, if not outright endorsement of, extralegal conduct at odds with our most fundamental constitutional and democratic commitments?

As with prior instances of extralegal conduct by Attorneys General, the call is now nearly ubiquitous for a lawyer who would bring greater professional independence to the office, and hopefully thereby, more strict observance of relevant legal restraints, to the pursuit of the President's foreign and domestic policy agendas. (2) But what commentators and congressional critics mean by independence is far from clear. The term is easy to invoke, and it has a long pedigree, not only in debates about the proper role of a government lawyer, but in broader debates about the professional integrity of lawyers in private practice. (3) Still, it admits of no obvious definition.

ABA Model Rule of Professional Conduct 2.1 hints at an answer by providing that "[i]n representing a client, a lawyer shall exercise independent professional judgment and render candid advice." (4) Comment 1 emphasizes that the lawyer must say what she thinks even if her advice "involves unpleasant facts and alternatives that a client may be disinclined to confront." (5) The lawyer is not to be "deterred from giving candid advice by the prospect that the advice will be unpalatable to the client." (6) And of course a lawyer must withdraw when "the representation will result in violation of the rules of professional conduct or other law." (7) But the rules are equally emphatic that "a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law." (8) A lawyer should also "pursue a matter on behalf of a client despite opposition, obstruction or personal inconvenience to the lawyer, and take whatever lawful and ethical measures are required to vindicate a client's cause or endeavor." (9)

There is, too, when one examines the discourse on the office of the Attorney General in particular, a distinct tendency for solemn insistence on independence to be followed almost immediately by a concession that politics inevitably influences the role. (10) The concession is telling. On the one hand, we expect Attorneys General to be, borrowing a term from Justice Story, exemplary "public sentinels." (11) In both substance and appearance, we expect them to uphold the strictest fidelity not just to law, but to those basic rule-of-law values upon which the impartial enforcement of law depends. (12) An Attorney General who is seen to treat law with the casual indifference or opportunism of an apostate invites apostasy in all law officers, from the beat cop on up, and, conceivably, in the average citizen as well.

And yet we also expect the President to have the Attorney General of his choosing. In time of war, moreover, even if we do not say with the Romans, inter arma silent legis, we do insist (perhaps a little too quickly) that the Constitution is not a suicide pact. Just as importantly, in times of war and in times of peace we acknowledge that meaningful decisions about the enforcement of existing law and advice about how to pursue administration policies within the bounds of the law cannot possibly be made on the basis of law alone. Whether one sees law as a realist, as inevitably bound up with political judgment, and all the more so in the work of representing the government, or whether one sees legal reasoning as an autonomous discipline which, at least in the work of representing the government, must nonetheless take shape in response to distinctively political concerns, the result is all the same: the role of the Attorney General in enforcing existing law, advising and offering opinions on administration goals, and administering the Department of Justice is both political and legal.

And if that is so, one is left to wonder what kind of independence might operate in this context. If it is independence from the client, who is the client? Is it the same kind of independence the bar expects lawyers to exhibit in relation to private clients?

All too commonly, the call for independence functions merely to disguise dissatisfaction or disagreement with an administration's political goals (and actions taken to further them) in the ostensibly neutral language of professional misconduct. Rather than challenge the political goals directly, critics assail the professionalism of the lawyers charged with implementing or offering legal foundation for them. The same critics are, however, quite often silent or dismissive of professionalism concerns when their preferred party is in power. Much of the academic commentary on the office of the Attorney General, at least since Watergate, has this tendentious structure. (13) So too the confirmation and oversight hearings in Congress. (14) In any event, the structure of the discourse suggests, rather unhelpfully, that independence is a thoroughly dependent term--that its meaning is determined by the broader political terms in which the role of Attorney General is understood and according to which it is played.

If, as it happens, independence as an evaluative criteria for the office of Attorney General also arises primarily ex post, that is to say, in the wake of legal scandals, then independence may turn not just on general political concerns, but more specifically on the presence and perception of ultra vires action by the administration. Only then do Congress, critics, and commentators insist that the Attorney General stand independent of the President he or she serves and the administration's goals. But if the term becomes salient only after other checks on the abuse of power (and law) by an administration have failed, independence may depend for its value, its particular political and professional salience, on extralegal excess. If this is true, then independence is a doubly dependent term, and is thus of little help in gaining analytic purchase on the role of government lawyers.

Finally, there is the paradox that genuinely independent Attorneys General may be too independent to be trusted by an administration. If that leads to their exclusion from the process of decision making on how to achieve critical administration goals, their advice will independent, to be sure, but also irrelevant.

Is there more to professional independence in the office of the Attorney General? Would greater independence have prevented the extralegal conduct of the current administration? How should we account for the seemingly subordinate position of independence in a larger framework of political contestation? What explains our profoundly ambivalent and alternating desire for the legal restraint we expect would follow from independence and the aggressiveness we expect from its absence in the nation's chief law officer?

We might begin by thinking about what independence would mean if it is more than a dependent term. The traditional starting point in the literature on the professional responsibility of lawyers is with antebellum civic republican ideals of disinterested public service and public-minded counseling of private clients. (15) Without denying the importance of civic republican ideals, I believe a broader frame is more appropriate. Civic republican ideals bring into sharp relief the tension between self-interested and market-driven conceptions (some would say distortions) of professional work, on the one hand, and public-minded conceptions on the other. However relevant this tension is in private practice, the range of tensions present in government service is wider because the boundaries between public, personal, and client interest are considerably more opaque. Moreover, as I argue at some length below, a broader cultural and political discourse on independence emerged after and often in resistance to the Federalist and Whig civic republican ideal.

This Article traces a strain of the discourse on independence through the Civil War experience, focusing on the impact of the war for a class of elites who were instrumental in the general movement toward professionalization in the decades leading up to and following the war. The rise of the professions in the latter half of the nineteenth century is well documented. Mid-Victorian Americans used professional organizations, specialized education, and internal regulation to stake out exclusive jurisdictional claims for the provision of lucrative and socially necessary services. (16) The standard narrative, however, downplays both the overall significance of the Civil War and the internal conflicts in the ideas of independence that emerged from the experience of...