Tuesday, May 22, 2007

David Luban's Commentary on the Comey-Gonzales-Ashcroft Debacle

Posted by Jeff Lipshaw

I have decided to go public with the fact that we have been trying to entice the esteemed David Luban 283 (Georgetown, left), a friend, colleague, and neighbor of Mike Frisch, to do the occasional guest-blogging stint over here at LPB.  There is, of course, far more in it for us than for David, as he brings more credibility and readership to us than we would bring to him.  I'm not quite sure where we stand in this intense negotiation (we offered to let him go home when he wasn't blogging, a la Roger Clemens), but David has significant commitments, including his contributions to Balkinization, and we are happy to take whatever we can get.

This morning, David suggested we cross-post his Balkinization comments on speculation whether then Counsel to the President Gonzales violated Texas ethics rules by his involvement in the attempt to get then AG Ashcroft to sign off on the illegal wiretaps.  (I should note they include a quote from our own Nancy Rapoport which includes the "would my mom be proud?" corollary to the "front page" test discussed below.)  David's comment are typically subtle:  the issue is not whether there was obstruction of justice (there probably wasn't) but whether the whole thing involved a plan to deceive not Ashcroft but others:

According to Comey, Ashcroft rose up off his pillow to remind Gonzales and Andrew Card that Comey, not Ashcroft, was the acting attorney general. They knew that, of course. Their aim was apparently to get Ashcroft’s legally-meaningless signature – meaningless, because at that time he was not exercising the powers of the attorney general – so they would have a document that made it wrongly seem that the attorney general had signed off on the program. If Marty's speculation is right, the AG’s signature was important to reassure telecom companies cooperating with the program that doing so was on the right side of the law.

But suppose that wasn’t Gonzales's and Card's reason for seeking Ashcroft’s signature. The fact remains that any use of the signature would have been, quite simply, fraudulent - at least, if it falsely suggested that Ashcroft's legal authority as AG attached to what he was signing . The Texas rules forbid lawyers from engaging in conduct that involves dishonesty, fraud, deceit, or misrepresentation. Steve Gillers focuses on their attempt to deceive Ashcroft. But the more significant violation lies in trying to get Ashcroft’s signature for purposes of deceiving others. Deceiving others with a fraudulent document would amount to a mammoth political hoax; deceiving the ailing Ashcroft would have been "only" a small bit of foulness.

And as long as you are over there, check out the links to You Tube on this subject in the Marty Lederman post just below.   And remember: leave the gun; take the cannoli.


Bar Discipline & Process, Blogging, Ethics, Professional Responsibility, Rapoport | Permalink

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