Thursday, March 27, 2008

kanBARoo court. 32nd Installment. Disbarment of a President

Attorney responses to the 29th Installment, posted to a law newsgroup last month, reveal distortion of civic discourse wherever a State Bar imposes its bureaucratized moralism. First, the merits.

Installment 29’s argument showed that disbarring Bill Clinton conflicted with the Supremacy Clause because, to prove its case, the State Bar adverted to acts in Clinton’s performance of Presidential duties. Posters bypassed this argument, as they argued that federal law never preempts the State Bar, authorized to regulate the practice of law. ["It disciplined an Arkansas lawyer for his conduct. That's what the Arkansas Bar does."—Seth.] Posters contended applying the preemption defense, like the double jeopardy defense, depends on similarity of governing clauses, not identity of regulated transactions. If state law does not control Presidential conduct qua Presidential conduct, posters believed regulating Bill Clinton during his performance of Presidential duties does not affect the office of the Presidency.

The case law on Presidential immunity refutes posters’ contentions that the Supremacy Clause only prohibits states from transparent regulation of Presidential conduct. Preemption has specific and general forms, the specific form of preemption—constituting a qualified immunity—requiring that the preempted rule contradict a federal statute; the general form—constituting an absolute immunity—that it merely regulate a field the federal government indicated its intent to occupy. Judges, prosecutors, and especially Presidents, enjoy absolute immunity for acts taken in the course of their duties, a President's broad absolute immunity from civil suit undisputed. (Nixon v. Fitzgerald (1982) 457 U.S. 731, 756 [“In view of the special nature of the President's constitutional office and functions, we think it appropriate to recognize absolute Presidential immunity from damages liability for acts within the "outer perimeter" of his official responsibility.”].) Since a disbarment proceeding is civil on the one hand, but not for damages on the other, Presidential immunity is first impression. But Presidents with arguments less tenable have challenged jurisdiction wherever possible, when facing constraint by Congress or courts. (See for example, United States v. Nixon (1974) 418 U.S. 683.) If preemption/immunity failed, a still stronger case would remain for invoking federal removal jurisdiction. (28 U.S.C. § 1442, subd. (a)(3).)

The posters’ arguments help show why Clinton did not argue preemption or immunity. Many attorneys, if not the public, assume the Bar benign. Attorney Mike Jacobs explained:

"That's a pretty extreme interpretation of what disbarment is about. Being admitted to the Bar, meaning one is permitted to act as attorney representative for someone else's legal interests, is a privilege, not a right. It carries a heavy responsibility to both the client and the system of justice to act at all times in accord with ethical standards, because if clients can't trust their lawyers, the whole system can fall apart. It's not like 'the man' (the establishment) is 'out to get' the attorney who is disbarred, in most cases, even if abuses may occur from time to time because even the judges of the highest State court are human."

Even a President proves reluctant to challenge the jurisdiction of the State Bar. The electorate presumed his guilt, as attorneys still do, reflexive bureaucratic procedure plus moralistic veneer impressing more than trial. The insertion of the State Bar into U.S. Constitutional controversy deflects clarification by litigation or commentary.

State Bar involvement in punishing Presidential conduct conflicts with the Supremacy Clause. Minimally, all federal officers have general immunity for acts related to their duties, and the President's immunity is broadest. The rationale for the President's absolute immunity to civil litigation is that Presidential civil liability illegitimately places conflicting demands on Presidential conduct. (See Nixon v. Fitzgerald, supra, 457 U.S. at p. 751.) In analyzing Bill Clinton's State Bar case, lawyers disparaged functionally necessary federal constraints on state action. The opinion of a President's home State Bar supplies one of the worst bases of influence on a Presidential decision.

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