Attorney-Client Privilege


By Joe Campbell
April 16th, 2008

[reddit-me]In commenting on the Torture Memo scandal (that has incidentally gotten far less attention than Bittergate), Stephen Gillers of The Nation brings up an important point:

The lawyers told the President what he wanted to hear, but the nation was their client, and its sole interest was in thorough and independent legal analysis. Neither the President’s political agenda nor the authors’ views of what the law should say can be allowed to slant the OLC’s work. So maybe the best and brightest lawyers got it so wrong because they forgot whom they served. Maybe they acted politically, not professionally. If so, we are dealing with a perversion of law and legal duty, a betrayal of the client and professional norms, not mere incompetence, which would be bad enough.  Whatever the reason, [H. Marshall Jarrett, counsel for the Justice Department’s Office of Professional Responsibility] should find that this work is not “consistent with the professional standards that apply to Department of Justice attorneys.” Jarrett must hold the lawyers accountable if he means to restore OLC’s reputation and vindicate the rule of law.

It’s an important point to make – and one which undermines those who argue that John Yoo and other lawyers who justified explicitly illegal actions were just providing legal advice to their client.  Not only was their advice bad, but they were bowing to the pressure of a third party that wasn’t their client.

At the same time, if the nation itself is their client, rather than the president, they are required to be more independent than the Bush administration’s view of the executive branch allows for.  Unlike in a monarchy, neither the president as an individual nor the presidency as an office is considered to solely represent or speak for the nation.  At least that was what the founders thought.