The Letter of the Law

Friday, July 15, 2005

The Letter of the Law

As Demagogue's resident (or, more romantically, living in exile) lawyer, I've been giving some thought to the technical legal questions about whether Rove or the other "senior administration official" mentioned in Novak's story committed felonies. It seems to me that Ugyur is right: whether or not it was a crime, the leak was wrong, wrong, wrong. In other words, whether or not Rove or anyone else is indicted or convicted for the leak, they should be out of government posthaste, and the GOP should suffer politically if its leadership continues to defend the decision to keep the evildoers around.

However, Atrios is also right: the legal questions are quite distinct from the political/ethical ones. And, especially as a lawyer, I think we shouldn't forget that when it comes to the legal process, observing the letter of the law is itself a very important value.

In other words, Rove's defenders, and his lawyer in particular, have a point when they say things like the CIA might not actually have been trying to protect Plame's covert status, or Rove may not have known enough to have been acting "knowingly" as required by the criminal statute. I'm not saying that their claims are true; I'm saying that if they are true, Rove should not be indicted and should not be convicted. And the important thing is that he shouldn't be indicted and convicted even though it's clear that he did something that was morally wrong, potentially harmful to the country, and potentially threatening to the lives of various people who had had contact with Plame.

We don't throw people in jail in this country just because they do things that are wrong, the dreams of John Ashcroft and Alberto Gonzales notwithstanding. There has to be a law against it before the person acts; the prohibition on ex post facto laws is so fundamental that it was one of the few rights to be included in the original Constitution (not in the Bill of Rights) and explicitly made applicable to the states. And the right under the Due Process Clauses to have notice of what's illegal so that you can conform your conduct to the law has been reaffirmed repeatedly by the Supreme Court.

So much for my message my lefty friends: remember that the "legal technicalities" that the law-and-order types so often deride, and that they're now deploying on Rove's behalf, do matter and are worth defending.

My message to the GOP and the punditocracy, if they were ever to listen to me, would be that although it's important to protect Rove's legal rights and not to abuse the criminal process against him, the fact (if it turns out to be a fact) that he didn't commit a crime doesn't mean that what he did was OK. The leak was what the more academic members of the legal community call a malum in se: it was wrong, not because it was illegal, but because it was wrong in and of itself. So if he isn't indicted, or if he isn't convicted, it doesn't mean that he did nothing wrong, and it doesn't mean that Bush shouldn't fire him forthwith.

In the formal sense, this case is like Clinton's famous "It depends what the meaning of 'is' is" or Gore's defense of his fundraising techniques by saying there was "no controlling legal authority" against what he did. Clinton in particular had a point, because he was being accused of the crime of perjury, and the "is" thing was, however technical, a legitimate defense to that accusation. But as a political or moral question, what he did was quite wrong. During a deposition, his lawyer said regarding Clinton and Lewinsky, "There is no relationship," and Clinton didn't correct this statement. Now, it may have been true that, at the time of the deposition, there was no relationship any longer between Clinton and Lewinsky, so that the lawyer's statement that there "is" no relationship (i.e., there is no relationship right now) might have been literally correct. But in context, the implication was that there never had been a relationship, which was of course false. Because the statement was literally true, perhaps Clinton had no legal obligation to correct the misimpression that it created. But, legal or not, it was wrong of him not to do so.

Just as, whether or not he violated every element of the criminal statute, what Rove did in leaking Plame's status to several reporters was wrong.

One thing I try to remind clients is that there can be a difference between what you are legally entitled to do and what the right thing to do is. If you want to press your legal rights to their limit, as your lawyer, I'm obligated to do my best to help you, and I will. But just because the law allows you to do something doesn't mean you should do it. And it doesn't mean people aren't entitled to criticize you for doing it, and it doesn't mean the president should keep you as his Chief of Staff, and it doesn't mean that you shouldn't be despised as the slime that you are.

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