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Presidents Are Neither Above nor Below the Law

Law: It is politics, not precedent, that is driving the move to disbar Clinton.

May 25, 2000|ALAN M. DERSHOWITZ | Alan M. Dershowitz is a professor at Harvard Law School and the author of "The Genesis of Justice" (Warner Books, 2000)

The recommendation to disbar President Clinton for his testimony in the Paula Jones case, if accepted by the Arkansas courts, would constitute a major setback in recent efforts to depoliticize the process of disciplining errant lawyers.

In the past, disbarment often was used as a political tool directed against unpopular lawyers. It was rarely used against establishment lawyers in large, commercial firms. In recent years, serious efforts have been made to professionalize lawyer discipline. Professional disciplinary boards staffed by experts have replaced ad hoc committees of politically connected lawyers. The result has been a dramatic increase in the credibility of lawyer disciplinary groups.

Now along comes Arkansas, where a committee consisting of five lawyers and a schoolteacher has recommended disbarring Clinton for an alleged offense that has never before been the basis for disbarment. A majority of the six members voted to recommend disbarment, without citing a single precedent that would justify this disproportionate punishment. Disbarment is, after all, the equivalent of capital punishment for a lawyer.

There are, of course, scores of lawyers disbarred each year. But these disbarment cases fit largely into three general categories. The first is when a lawyer, acting in his legal capacity as a lawyer, steals funds from his client or otherwise undercuts the client's interests. Lawyers are also occasionally disbarred for engaging in fraud on the court, when acting in their capacity as officers of the court. Even in such cases, however, the more common sanction is suspension or reprimand, especially for a first-time offender.

The other large category involves lawyers who have been convicted of serious crimes such as homicide, rape or tax fraud. I have been teaching legal ethics for a quarter of a century, and I am aware of no case in which a lawyer, who had not been convicted of a serious crime, has been disbarred for a single incident of misleading, though non-perjurious, testimony about immaterial aspects of his private sex life. I have challenged several of Clinton's detractors, including the Southeastern Legal Foundation, to come up with a precedent. Thus far, they have failed.

There are, however, many precedents against disbarment of prominent lawyers who have lied while not acting in their capacity as officers of the court.

The most relevant such recent case involves Caspar Weinberger, who was charged with lying under oath to Congress during the Iran-Contra scandal. Former President Bush headed off what would have been an embarrassing public trial by pardoning Weinberger. The act of pardoning an accused does not, of course, undo his crime. Weinberger, a prominent lawyer, willfully lied, yet he was not disbarred. Neither were the other Republican lawyers who lied under oath to Congress.

President Nixon was disbarred for committing serious crimes including obstruction of justice and subornation of perjury. He did not fight his disbarment, and so the courts never reviewed its propriety. But Nixon's crimes, which directly threatened our constitutional system, are not in any way comparable to what Clinton did in denying that he had engaged in sexual relations with Monica Lewinsky.

If Clinton were to be disbarred for acts that have never before been the basis for such serious punishment, the public would correctly see the process as political. This would decrease the credibility of lawyer discipline, just as the politically motivated impeachment of Clinton by a Republican-controlled House decreased the credibility of the impeachment process.

The appropriate sanction for what Clinton did would be a strong letter of reprimand. That is the sanction typically imposed in comparable cases. That is what the rule of law and precedent require. A president is not above the law, but neither is he below the law, especially when acting in his private capacity as a client. Unless the law is applied equally, it becomes just another partisan weapon to be wielded against political enemies. We all suffer when law becomes politics. We suffer even more when an important process designed to protect clients from their exploitative lawyers is trivialized for partisan purposes.

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