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Government,
Ethics/Professional Responsibility

Jun. 27, 2022

Government lawyers, professionalism and the January 6 Committee

Marc D. Alexander

Of Counsel, AlvaradoSmith, APC.

Email: malexander@alvaradosmith.com

Marc mediates and publishes the blog California Mediation and Arbitration [www.calmediation.org]. He practices as a civil litigator with AlvaradoSmith, APC.

Tolerance, the First Amendment, the rule of law and professionalism are four pillars upon which our republican form of government rests. The last of those, professionalism, is perhaps the least discussed but extremely important. It was certainly on display during the testimony of three attorneys on June 23 before the House January 6 Committee: Jeffrey Rosen, former Acting Attorney General; Richard Donoghue, former Deputy Attorney General and Steven Engel, former U.S. Assistant Attorney General for the Office of Legal Counsel.

In his book On Tyranny: Twenty Lessons from the Twentieth Century, Yale Professor Timothy Snyder offers as lesson five: “Remember professional ethics. When political leaders set a negative example, professional commitments to just practice become more important. It is hard to subvert a rule-of-law state without lawyers, or to hold show trials without judges. Authoritarians need obedient servants…”

What is at the core of our professionalism as lawyers? Is it not the attorney-client relationship and our obligation to serve the client and put client interests first? Who is the client of the Attorney General of the United States? The professional obligation of the United State Attorney General is set forth in the Oath of Office. The AG does “solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God.” Thus, the solemn oath is to support and defend the Constitution, not a person or a party, and this is an obligation and duty to “well and faithfully discharge.” 5 U.S.C. 3331. The Oath of Office recognizes that we are to have a government of laws, not of men.

The testimony of the three DOJ attorneys evoked memories of Dragnet and Jack Webb’s mantra demanding an unembellished recitation, “just the facts, ma’am.” A television audience hoping to catch displays of emotion in the testimony of the former DOJ attorneys may have been disappointed, but the crisp and direct delivery of the attorneys enhanced their credibility. Though all three attorneys had been appointed under a Republican administration, listeners would be unable to identify their party affiliation based on their testimony alone.

The June 23 hearing focused on efforts by the former president to directly interfere in the business of the DOJ, and on his persistent efforts to pressure DOJ attorneys to stray from their professional duties. This was part of a larger frame in which persons were pressured to stray from professional duties, as shown by earlier testimony. Extreme pressure was put on former Vice President Michael Pence to not just participate in a tally of electoral votes, but to delay the count, and to move the electoral outcome to the House of Representatives where a “contingent election” would be held under the Twelfth Amendment, with each state legislature casting one vote, ensuring the president would receive another term of office. The former president relentlessly pressured Georgia Secretary of State Brad Raffensperger, who protested in a recorded conversation that the evidence was not there to “find” enough votes to overturn election results in his state.

Emblematic of the assault on professionalism targeting the DOJ was the former president’s effort to install attorney Jeffrey Clark as Acting Attorney General. An environmental lawyer in the civil division of the DOJ, Clark lacked the professional experience and qualifications to head the DOJ. He had never tried a criminal case, never appeared before a trial jury, never appeared before a grand jury, never worked in the criminal division of the DOJ. His most important quality was not his professional experience or his professionalism, but rather his loyalty, his willingness to serve the president, and his readiness to launch a letter addressed to Georgia’s Governor, Speaker of the House, and President Pro Tempore of the Georgia Senate, beginning: “The Department of Justice is investigating various irregularities in the 2020 election for the President of the United States.” Such a move would have stood professionalism on its head, because it would have placed the interests of a person and a political party first, despite overwhelming evidence within the DOJ that such a letter was unsupported by evidence. Clark would have been the obedient servant to a man, rather than to the rule of law.

The assault on professionalism is also illustrated by the former president’s telephone conversation with Richard Donoghue, who took contemporaneous notes. Based on actual investigations, witness interviews, and document review, Donoghue pushed back against unfounded claims of fraud. According to Donoghue’s notes, Trump told him: “Just say it was corrupt and leave the rest to me and the Republican congressmen.” Rare are the examples of public officials who resign over matters of conscience and professional duty. One example that comes to mind is Secretary of State Cyrus Vance’s decision to resign after President Jimmy Carter failed to follow Vance’s advice to forgo the ill-fated mission to rescue American hostages in Iran. An American patrician, Vance probably did not fret too much about having to earn his daily bread.

It is significant that when Donoghue, Rosen and Engel met with the former president during his last-ditch effort to appoint Jeffrey Clark as Acting Attorney General and to send out a letter stating that the DOJ was investigating fraud, all – except Clark– said they would resign and that there would be mass resignations in the DOJ. Even Pat Cipollone, who was White House Counsel, closed ranks and refused to go along with the scheme. Indeed, Cipollone told Donoghue that the notorious letter Clark wanted to send was “a murder-suicide pact. It’s going to damage everyone who touches it. And we should have nothing to do with that letter.”

Lawyers did not uniformly play an admirable role surrounding the efforts to overturn the 2020 presidential election results. Being a member of the legal profession and observing professionalism can be two different things. If government lawyers abandon professionalism under the pressure of politics, polarization and careerism, one pillar of our Republic will collapse.

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