Monday, May 28, 2007

some answers: "why did james comey only now reveal the march 2004 events?"

or, how the DC code of professional
responsibility departs from the code
governing almost all other jurisdictions. . .

over at the nexthurrah (and elsewhere),
there's been a some discussion, and con-
sternation, about why james comey "took
so long
" to come forward about march 2004.

the top-line: perhaps it is time
to "modernize" the d.c. code of
professional responsibility -- and
bring it into harmony with new york,
california and the vast majority of
other jurisdictions -- on the matter
of "continuing unlawful conduct"
disclosure-exceptions to the attorney-
responsibility rules. . .

now, i'll offer some
thoughts and answers,
here -- but first -- a

W A R N I N G:

this is a work-in-progress; and will
be a very geeky-weedy-d.c.-code-review.

i'll add to it after my memorial day
barbeque, in the hopes of saying it
in "plain[er] english". . .

okay, now -- the d.c. code departs from
the majority rule -- the rule in effect
in most other states -- that governs
the non-disclosure of client
confidences. the d.c. code
rule does not provide
for the broadened "unlawful
" exception to the
general rule of non-disclosure
of client (and former-client)
confidences. . .

that is -- the standard in d.c.
is: "unless mr. comey reasonably
believed death or substantial
bodily harm to a person
likely to result, absent his disclosure
of the events of march 2004
he could not lawfully
them -- unless
directly asked by a tribunal
of competent jurisdiction

and that is what these congressional comittees are.

thus, the delay. moreover, because there was
"a plan" (hah!) to bring the wire-tapping into compliance
with FISA, or otherwise comply with the constitution's
fourth amendment strictures, during late march of
2004 -- and that plan was apparently dutifully carried-
out -- mr. comey was duty-bound to keep the
confidences of even this former-client,
until directly asked by the committee
about the episode. . .

note that no one at the hospital was proposing
a future homicide -- and in that respect, d.c.
differs from other jurisdictions, inasmuch as
elsewhere -- in new york, california, colorado,
illinois or new hampshire, for example, a future
financial crime of very significant magnitude may also
be the basis for a limited disclosure of a confidence.

but not in d.c. -- in d.c. (and nevada, if memory
serves), unless it will involve death or serious
bodily injury to a natural person -- a human -- it
must be held in confidence. and the lawyer's sole
avenue is to make a noisy withdrawal -- citing
"irreconcileable differences" with the client.

and that is what ashcroft, comey and about
30 other attorneys, we now learn, were prepared
to do; including f.b.i. director mueller. . .

alright, then -- let's take a look at the
actual rules here -- from the district
of columbia rules of professional conduct

Rule 1.6 — Confidentiality of Information

(a) Except when permitted under paragraph (c) or (d), a lawyer shall not knowingly:

(1) Reveal a confidence or secret of the lawyer's client;

(2) Use a confidence or secret of the lawyer's client to the disadvantage of the client;

(3) Use a confidence or secret of the lawyer's client for the advantage of the lawyer or of a third person.

(b) "Confidence" refers to information protected by the attorney-client privilege under applicable law, and "secret" refers to other information gained in the professional relationship that the client has requested be held inviolate, or the disclosure of which would be embarrassing, or would be likely to be detrimental, to the client.

(c) A lawyer may reveal client confidences and secrets to the extent reasonably necessary:

(1) To prevent a criminal act that the lawyer reasonably believes is likely to result in death or substantial bodily harm absent disclosure of the client's secrets or confidences by the lawyer; or

(2) To prevent the bribery or intimidation of witnesses, jurors, court officials, or other persons who are involved in proceedings before a tribunal if the lawyer reasonably believes that such acts are likely to result absent disclosure of the client's confidences or secrets by the lawyer.

(d) A lawyer may use or reveal client confidences or secrets:

(1) With the consent of the client affected, but only after full disclosure to the client;

(2)(A) When permitted by these rules or required by law or court order; and

(2)(B) If a government lawyer, when permitted or authorized by law. . .

(f) The lawyer's obligation to preserve the client's confidences and secrets continues after termination of the lawyer's employment.

(g) The obligation of a lawyer under paragraph (a) also applies to confidences and secrets learned prior to becoming a lawyer in the course of providing assistance to another lawyer. . .

(j) The client of the government lawyer is the agency that employs the lawyer unless expressly provided to the contrary by appropriate law, regulation, or order.



. . .[3] Almost without exception, clients come to lawyers in order to determine what their rights are and what is, in the maze of laws and regulations, deemed to be legal and correct. The common law recognizes that the client's confidences must be protected from disclosure. Based upon experience, lawyers know that almost all clients follow the advice given, and the law is upheld.

[4] A fundamental principle in the client-lawyer relationship is that the lawyer holds inviolate the client's secrets and confidences. The client is thereby encouraged to communicate fully and frankly with the lawyer even as to embarrassing or legally damaging subject matter.

Relationship Between Rule 1.6 and Attorney-Client Evidentiary Privilege and Work Product Doctrine

[5] The principle of confidentiality is given effect in two related bodies of law: the attorney-client privilege and the work product doctrine in the law of evidence and the rule of confidentiality established in professional ethics. The attorney-client privilege and the work product doctrine apply in judicial and other proceedings in which a lawyer may be called as a witness or otherwise required to produce evidence concerning a client. This Rule is not intended to govern or affect judicial application of the attorney-client privilege or work product doctrine. The privilege and doctrine were developed to promote compliance with law and fairness in litigation. In reliance on the attorney-client privilege, clients are entitled to expect that communications within the scope of the privilege will be protected against compelled disclosure. The attorney-client privilege is that of the client and not of the lawyer. The fact that in exceptional situations the lawyer under this Rule has limited discretion to disclose a client confidence does not vitiate the proposition that, as a general matter, the client has a reasonable expectation that information relating to the client will not be voluntarily disclosed and that disclosure of such information may be judicially compelled only in accordance with recognized exceptions to the attorney-client privilege and work product doctrine.

[6] The rule of client-lawyer confidentiality applies in situations other than those where evidence is sought from the lawyer through compulsion of law; furthermore, it applies not merely to matters communicated in confidence by the client (i.e., confidences) but also to all information gained in the course of the professional relationship that the client has requested be held inviolate, or the disclosure of which would be embarrassing or would be likely to be detrimental to the client (i.e., secrets). This ethical precept, unlike the evidentiary privilege, exists without regard to the nature or source of the information or the fact that others share the knowledge. It reflects not only the principles underlying the attorney-client privilege, but the lawyer's duty of loyalty to the client. . .

Disclosure Adverse to Client

[12] The confidentiality rule is subject to limited exceptions. In becoming privy to information about a client, a lawyer may foresee that the client intends serious harm to another person. However, to the extent a lawyer is required or permitted to disclose a client's purposes, the client will be inhibited from revealing facts that would enable the lawyer to counsel against a wrongful course of action. The public is better protected if full and open communication by the client is encouraged than if it is inhibited. Nevertheless, when the client's confidences or secrets are such that the lawyer knows or reasonably should know that the client or any other person is likely to kill or do substantial bodily injury to another unless the lawyer discloses client confidences or secrets, the lawyer may reveal the client's confidences and secrets if necessary to prevent harm to the third party.

[13] Several situations must be distinguished.

[14] First, the lawyer may not counsel or assist a client to engage in conduct that is criminal or fraudulent. See Rule 1.2(e). . .

[15] Second, the lawyer may have been innocently involved in past conduct by the client that was criminal or fraudulent. In such a situation the lawyer has not violated Rule 1.2(e), because to "counsel or assist" criminal or fraudulent conduct requires knowing that the conduct is of that character.

[16] Third, the lawyer may learn that a client intends prospective conduct that is criminal and likely to result in death or substantial bodily harm unless disclosure of the client's intentions is made by the lawyer. As stated in paragraph (c), the lawyer has professional discretion to reveal information in order to prevent such consequences. The lawyer may make a disclosure in order to prevent homicide or serious bodily injury which the lawyer reasonably believes is intended by a client. The "reasonably believes" standard is applied because it is very difficult for a lawyer to "know" when such a heinous purpose will actually be carried out, for the client may have a change of mind.

[17] The lawyer's exercise of discretion in determining whether to make disclosures that are reasonably likely to prevent the death or substantial bodily injury of another requires consideration of such factors as the client's tendency to commit violent acts or, conversely, to make idle threats. In any case, a disclosure adverse to the client's interest should be no greater than the lawyer reasonably believes necessary to the purpose. A lawyer's decision not to take preventive action permitted by subparagraph (c)(1) does not violate this Rule. . .


[18] If the lawyer's services will be used by the client in materially furthering a course of criminal or fraudulent conduct, the lawyer must withdraw, as stated in Rule 1.16(a)(1). If the client persists in a course of action involving the lawyer's services that the lawyer reasonably believes is criminal or fraudulent, or if the client has used the lawyer's services to perpetrate a crime or a fraud, the lawyer may (but is not required to) withdraw, as stated in Rule 1.16(b)(1) and (2).

[19] After withdrawal under either Rule 1.16(a)(1) or Rule 1.16(b)(1) or (2), the lawyer is required to refrain from making disclosure of the client's confidences, except as otherwise provided in Rule 1.6. Giving notice of withdrawal, without elaboration, is not a disclosure of a client's confidences and is not proscribed by this Rule or by Rule 1.16(d). Furthermore, a lawyer's statement to a court that withdrawal is based upon "irreconcilable differences between the lawyer and the client," as provided under paragraph [3] of the Comment to Rule 1.16, is not elaboration. Similarly, after withdrawal under either Rule 1.16(a)(1) or Rule 1.16(b)(1) or (2), the lawyer may retract or disaffirm any opinion, document, affirmation, or the like that contains a material misrepresentation by the lawyer that the lawyer reasonably believes will be relied upon by others to their detriment.

[20] Where the client is an organization, the lawyer may be in doubt whether contemplated conduct will actually be carried out by the organization. Where necessary to guide conduct in connection with this Rule, the lawyer may make inquiry within the organization. See Comment to Rule 1.13. . .

Disclosures Otherwise Required or Authorized

[26] The attorney-client privilege is differently defined in various jurisdictions. If a lawyer is called as a witness to give testimony concerning a client, absent waiver by the client, subparagraph (d)(2) requires the lawyer to invoke the privilege when it is applicable. The lawyer may comply with the final orders of a court or other tribunal of competent jurisdiction requiring the lawyer to give information about the client. But a lawyer ordered by a court to disclose client confidences or secrets should not comply with the order until the lawyer has personally made every reasonable effort to appeal the order or has notified the client of the order and given the client the opportunity to challenge it. . .

Former Client

[28] The duty of confidentiality continues after the client-lawyer relationship has terminated. . .

Government Lawyers

[35] Subparagraph (d)(2) was revised, and paragraph (i) was added, to address the unique circumstances raised by attorney-client relationships within the government.

[36] Subparagraph (d)(2)(A) applies to both private and government attorney-client relationships. Subparagraph (d)(2)(B) applies to government lawyers only. It is designed to permit disclosures that are not required by law or court order under Rule 1.6(d)(2)(A), but which the government authorizes its attorneys to make in connection with their professional services to the government. Such disclosures may be authorized or required by statute, executive order, or regulation, depending on the constitutional or statutory powers of the authorizing entity. If so authorized or required, subparagraph (d)(2)(B) governs.

[37] The term "agency" in paragraph (i) includes, inter alia, executive and independent departments and agencies, special commissions, committees of the legislature, agencies of the legislative branch such as the General Accounting Office, and the courts to the extent that they employ lawyers (e.g., staff counsel) to counsel them. The employing agency has been designated the client under this rule to provide a commonly understood and easily determinable point for identifying the government client. . .

quite a bit to digest, here, but we'll need
to look at one other d.c. code section for the
complete picture of comey's dilemma in march 2004. . .

Rule 1.16 — Declining or
Terminating Representation

(a) Except as stated in paragraph (c), a lawyer shall not represent a client or, where representation has commenced, shall withdraw from the representation of a client if:

(1) The representation will result in violation of the Rules of Professional Conduct or other law. . .

(b) Except as stated in paragraph (c), a lawyer may withdraw from representing a client if withdrawal can be accomplished without material adverse effect on the interests of the client, or if:

(1) The client persists in a course of action involving the lawyer's services that the lawyer reasonably believes is criminal or fraudulent;

(2) The client has used the lawyer's services to perpetrate a crime or fraud;

(3) The client fails substantially to fulfill an obligation to the lawyer regarding the lawyer's services and has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled. . .



[1] A lawyer should not accept representation in a matter unless it can be performed competently, promptly, without improper conflict of interest, and to completion.

Mandatory Withdrawal

[2] A lawyer ordinarily must decline or withdraw from representation if the client demands that the lawyer engage in conduct that is illegal or violates the Rules of Professional Conduct or other law. The lawyer is not obliged to decline or withdraw simply because the client suggests such a course of conduct; a client may make such a suggestion in the hope that a lawyer will not be constrained by a professional obligation. . .

Optional Withdrawal

[7] A lawyer may withdraw from representation in some circumstances. The lawyer has the option to withdraw if the withdrawal can be accomplished without material adverse effect on the client's interests. Withdrawal is also justified if the client persists in a course of action that the lawyer reasonably believes is criminal or fraudulent, for a lawyer is not required to be associated with such conduct even if the lawyer does not further it. Withdrawal is also permitted if the lawyer's services were misused in the past even if that would materially prejudice the client. . .

so -- we see that mr. comey's only real
avenue, under the d.c. code, anyway, in
march of 2004, was to threaten a mass-
wtihdrawal. he still would have been
prohibited from disclosing what he knew,
until a court or congressional committee
specifically asked about it -- in the
pursuit of the administration of justice.

so -- after many many electrons, we are
right back where we started: mr. comey
did everything he was lawfully allowed to
do in the situation. now -- lest it seem
unclear -- i am not so much looking to
cannonize comey, as i am arguing to modernize
the district of columbia code of professional
responsibility -- it is antiquated, and
[under the extreme blast-furnace-like
conditions all-too-often engineered by this
adminstration] prejudicial to the effective
administration of justice. . . it is not so
in all, nor perhpas most, cases -- but at the
extreme edge of the envelope, or beyond it -- in
short, where cheney, rumsfeld, wolfowitz, perl,
rove and gonzales often go -- dragging bush
along with them, for the ride -- its flaws
seem manifold. . . and manifest.

here endeth my sermon.


Anonymous said...

Prosecuting Domestic Enemies

Putting aside the views of the author, interested in you comments on prosecuting a sitting President. [Ref: Jonathan Turley, "From Pillar to Post": The Prosecution of Sitting Presidents, 37 American Criminal Law Review 1049-1106 (2000)]

Congress isn't impeaching; your views on a non-impeachment, direct prosecution of cheney and Bush; then going after Members of Congress who similarly refuse to protect the Constitution?

What would it take -- not what congress refses to act -- to organize lgeal counsel to make this happen: Timeline, funding, stfaf requirements, and scope of discovery.

priscianus jr said...

This is certainly a fundamental question! We really need to be thinking about it. I'm not remotely a lawyer, but it seems to me the next question is, who would have standing to bring such an action? Organizations representing: voters, members of the military, telephone and internet users, etc.? Individuals who have suffered injury? etc.

nolo said...

welcome, anonymous --

i admit that i have seen, and
been intrigued, by your myriad
posts on this topic at many
other blogs. . . i may take a
look at the referenced law
review article -- given its
date, it likely argued for the
prosecution of president clinton.

not that it should matter, but i
will note that many of the pro-
republican-party legal theories
advanced at that time were, erh. . .

how to say this, politely, here. . .

uh. . . bullshit.

yeah. that's it.

so -- i suspect that dog won't
hunt, given its provenance. . .

when i get a few free hours, i
may go pull the article, just the
same. . . color me a curious sort.

Anonymous said...

Priscianus Jr.,

Thank you for your interest. Prosecuting a President would be a criminal matter. You asked, "who would have standing to bring such an action? Organizations representing: voters, members of the military, telephone and Interest users, etc.? Individuals who have suffered injury? etc."

"standing" would apply to the State, and the Attorney General of the State would be the lead counsel to prosecute the President. Grounds: State citizens have been denied the guaranteed enforcement mechanism under the law; and equal protections.

"The United States shall guarantee to every state in this union a republican form of government": If the Congress refuses to impeach, then we do not have an enforcement mechanism; and the states have been denied a republican form of government, which requires enforcement of the law.

All attorneys take an oath to protect the Constitution from domestic enemies. This is not an issue of a person against the President; but We the People -- of one of the fifty United States -- against the President. Arguably, the State of Virginia, or Maryland, or any of the other 48 could do this.

Remember, the Constitution is between the states -- it is agreement of the 50 states acting on behalf of We the People. "shall be sufficient for the establishment of this Constitution between the states"

Any state-level prosecution of the President could be recognized as valid in any of the other 49 states: Congress already made the rules of evidence and procedure how the President can be prosecuted by any of the 50 states.

All citizens of all states are entitled to have this Constitution enforced; and the President cannot expect the Constitutional protections for Libby to only be available to LIbby, but not all people.

The 14th Amendment says it all: States cannot enforce, respect, or recognize laws, rules, procedures, or guidlines which refuse to enforce the law against the President: "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; . . . nor deny to any person within its jurisdiction the equal protection of the laws. We the People are entitled to protection from this President's illegal activity. Congress has no power to compel us to force us to assent to that through inaction; nor can the states lawfully recognize unequal protection of the laws against some, and not all.

The X Amendment reserves the right to the states to prosecute a sitting President. The constitution delegates to Congress the power to impeach; but is silent on whether the States can prosecute the President.

nolo said...

priscianus jr -- welcome!

i think standing is an important
barrier -- and, now, as i look at the
rest of turley's scholarship, available
online -- it seems i may have
been entirely too hasty in think-
ing it dismissable. . .

i will look, but if someone
could point me to a link for
the actual article, i'd be
grateful. . .

immunity for governmental-acts
set a pretty high bar -- that
was why impeachment was generally
suggested -- it was, historically,
"the check" written to
"balance" just such an
immunity. . .

we'll see. . . but i wouldn't
bet the farm on it working. . .

nolo said...

anon -- we posted between each
other -- i will look into this
tomorrow, but now i must sleep.

p e a c e. . .

Anonymous said...

I understand: "i may take a
look at the referenced law
review article -- given its
date, it likely argued for the
prosecution of president clinton."

Turley's not the only one who's written on it. If you get a chance, may want to review Bybee's commentary -- yes, the same one as who wrote the torture memo. I understand you may think it is BS; I'm not convinced that the answer is "obviously no." Rather, I think a fair case can be made -- especially given Congress' decision to do nothing.

Check Turley's citations: He covers both the pro- and con-arguments with other citations to other journal articles on the same topic. Perhaps someone has a good reason why this option isn't valid other than, "It isn't familiar." I don't see a Constitutional rule that says this is illegal; nor any rule in the Constitution that says only the Congress can oversee the President through impeachment.

It's beyond my comprehension that the world/Congress is acting like nothing can be done. That, in my view, is. . .[someone . . .I can't remember who . . .said this so well. . .]
"how to say this, politely, here. . .
uh. . . bullshit.
yeah. that's it."

[/snark] LOL

Also, in light of Nuremberg which found that civilized nations do impeach, the converse applies: A nation that refuses to impeach when it should is not civilized: "Under any civilized judicial system he could have been impeached and removed from office or convicted of malfeasance in office on account of the scheming malevolence with which he administered injustice . . ."

Thanks for your thoughts, I accept that you may not necessarily support the idea. Know of someone else who may be doing what Congress refuses to do: Enforce the law against a sitting President -- someone who would be willing to prosecute the case?

Anonymous said...

Nolo: "immunity for governmental-acts set a pretty high bar"; indeed, but there is qualified immunity, as you well know -- in re Nixon and Clinton/Jones, President still accountable, and not absolutely immune to suit, prosecution, claims, or court action.

The article isn't available. Ref Ref Here's some of Turley's other work as of 2001.

Anonymous said...

Here's Turley's contact information, maybe someone might want to talk to him on the phone, get a fax copy sent to you, and you could have a lawyer-to-lawyer pow-wow.

Anonymous said...

[Summary: Prosecution is one option; impeachment is a second:]

Here's some more bad news for the President: Even Ashcroft mentioned prosecuting a sitting President. Isn't this the second time we heard good news from Ashcroft -- the other was Comey's revelations on FISA.

Ashcroft [My comments]: "My first preliminary thought: the president would appear to be subject to the compulsory process of the criminal law. Put simply, the Constitution and our history appear to reflect the fundamental principle that no man is above the law. The president is subject to the law, not above it. If he violates the law, he can be prosecuted. "

Ashcroft: "But there is a second important question, and that is this: Assuming a president can be prosecuted, should he be prosecuted, when impeachment is a viable option? [Comment: It's not an option when it's "off the table"] I think not. Prudence dictates that absence extraordinary circumstances [Which we have with Bush], that when impeachment is available to address presidential misconduct, prosecution should await the resolution of the impeachment question by the Congress."

Ashcroft: "The prudential factors favoring impeachment over indictment should influence both prosecutors and the Congress. Just as a prosecutor may deem it wise to forgo the option of indictment when underlying criminal conduct is also an impeachable offense, so too the Congress must act promptly when confronted with serious allegations of impeachable conduct." [Ergo: When Congress refuses to act, or does not swiftly move, then prosecution remains on the table, outside impeachment.]

Ashcroft: "The nation's business demands that our president be exonerated or impeached with all dispatch -- not left to twist in the wind while legislators campaign for reelection."

Ashcroft: "Although a criminal indictment and prosecution [may or] may not be the most appropriate response to the president's misconduct, the questions before this hearing have clear, practical implications for the painful circumstances into which President Clinton's confessed conduct has thrust this country [Bush confessed to not getting FISA warrants; Eastern European abuse]. The most obvious practical implication is that the president can be subpoenaed to a grand jury and required to answer its questions. I believe the president, like all Americans, must answer a subpoena and reply truthfully to proper questions posed in a court or before a grand jury. Had this been made clear prior to the onset of the current scandal, and a consensus attained on this point, the country and presidency could have been spared the pain and injury inflicted by President Clinton's repetitive and frivolous assertions of privilege and immunity for himself and others. [As Bush has done with US Attorney e-mails, FISA violations, warrantless surveillance, prisoner abuse, Iraq WMD; NSA oversight]"

Anonymous said...

Here's another commentary: John H. Kim, Esq

Of note, "Although there was clear evidence of Nixon’s participation in 'a conspiracy to obstruct justice,' Jaworski declined to prosecute him because he believed that the 'impeachment process should take precedence over a criminal indictment.' " Today with Bush, we know three things: Congress refuses to act; and they have no plan to appoint an investigation team in Congress to review the impeachable offenses; and are silent on a special prosecutor.

When impeachment is off the table, impeachment cannot "take precedence" over prosecution; rather, by removing impeachment, there is only one option: Prosecution.

Said another way to highlight the absurdity of Congress in re impeachment: That which is removed cannot at the same time have precedence. A decision "not to impeach" cannot magically become a "decision we will wait until later on, therefore it is taking precedence". That is non-sense. Either we have a plan to impeach; or we accept there is no plan to impeach -- and prosecution remains the only option. Now.

Anonymous said...

FAQ: What Can I Do To Help Prosecute the President?

This is what you can do:

1. Share the Blogswarm

A blog swarm on prosecuting Bush outside impeachment: Visit here/Click this link.

2. Share this discussion thread at IndictCheney.blogspot

Encourage your friends to visit this blogspot and read the comments you are reading now/click this link. This is happening. And you're seeing it.

3. Contact Your Local/state Prosecutors: Share Their Reactions

Visit here: Find someone who wants to call your State Attorney General/local district attorney to listen to the idea: When impeachment is not being used, the only option is prosecution of a sitting President.

4. Talk about the Ashcroft Comments

Refer them to the Ashcroft statement above: Bush's former attorney general -- then a Senator -- mentioned prosecuting a President. Bush knew this statement about Ashcroft when he appointed him. Is anyone suggesting Bush made an error and ignored Ashcroft's comments on prosecuting a sitting President? LOL This is more evidence that Bush's "expertise" in making decisions is coming back to haunt him, like Comey.

5. Find Local Activists Working State Proclamations For Impeachment -- We're going into Phase II

Phase II of the House Rule 603 effort is the surprise. Now that The states have refused to pass proclamations calling for impeachment, they cannot say they didn't have a chance. Rather, the refused, and have shown that prosecution -- outside impeachment -- in the only option.

What you can do: Find people who have been working on the House Rule 603 effort -- state proclamations for impeachment, like here: Click these people -- and let them know: You've done your best; the states and Congress have proven they have refused to act despite pressure in all 50 states. Congress has taken impeachment off the table; Prosecution is the only option.