Lawyers for the Bush administration gave their clients very bad advice on a wide range of topics, including domestic surveillance, the detention and trial of terror suspects, and most notoriously, the interrogation of those suspects. Memos that have just been disclosed reveal the lawyers struggling mightily—and unpersuasively--to conclude that extremely harsh interrogation methods such as waterboarding do not constitute torture under the law. The furor that has arisen raises two questions. First, what limits a lawyer’s willingness to give advice that pleases a client? Second, if the lawyer ignores that limit, what punishment should result?

At the moment of taking office, each President takes an oath “to preserve, protect, and defend the Constitution.”  Each of the President’s lawyers takes a similar oath.  The lawyers have a second obligation. In representing any client, a lawyer is subject to an ethical rule that requires him or her to “exercise independent professional judgment and render candid advice.”  Franklin Roosevelt’s Attorney General Robert Jackson captured the core idea: “the value of legal counsel is in the detachment of the advisor from the advised.”  Detachment is crucial to the quality of the advice. We expect that distance from professionals of all kinds, our doctors for example. Independent judgment can be sympathetic. The incentives and culture within the Executive Branch surely guarantee that it will be. The hard part for the President’s lawyers is to preserve their necessary independence. Moreover, political advisors will reliably be advocates, and only the lawyers are likely to insist on the rule of law.

In their fervor to protect the nation after 9/11, President Bush’s lawyers lost sight of their core duties and became unrestrained advocates for actions desired by their clients. The memos that have caused such outrage were designed to shield investigators from legal jeopardy by providing legal opinions justifying harsh actions that had already occurred in at least some cases. Ironically, by stretching the law to protect their clients, the lawyers increased their own legal jeopardy. The Obama administration is disinclined to prosecute interrogators who relied on Justice Department legal opinions, and that decision may be correct. But what about the lawyers, who should have known better?

Some have called for criminal prosecution of the lawyers. Perhaps they were accomplices in actions that they knew were illegal. I am not a criminal lawyer and do not know how such prosecutions would fare. I do know, however, who should make that decision: the professional prosecutors in the Department of Justice and not anyone in the White House, where politics suffuses every decision. When the prosecutors decide whether to charge anyone, they should consider the serious risks that criminal liability would deter desirable behavior in the future. Much legal advice to Presidents occurs under severe time pressure that limits the opportunity to provide thorough legal analysis. Many of the legal issues concern topics where there are few clear precedents to guide the lawyers. The lawyers know, however, that no President lacks enemies who will assert that advice was legally and ethically defective. And they know that they will be judged with all the unfairness of hindsight. Therefore, it would be easy to make the President’s lawyers too cautious for the good of the nation when they are asked to give advice under great pressure of time and uncertainty. In other words, criminal prosecution may be too blunt a tool to use fairly or effectively.

There is another way to punish the transgressions of the lawyers, one more precisely attuned to their particular sins in the Bush administration. State bar associations have jurisdiction to impose sanctions on lawyers who fail to give candid and independent legal advice. There is a wide range of available sanctions, from reprimand to suspension to disbarment. The Justice Department is about to release a report on the ethics violations of the lawyers, which could help to inform the state authorities. Because of the problem of overdeterrence, the bar authorities should not take action unless serious and repeated ethical lapses are shown. Since regulation of lawyers by state bars is usually regarded as rather weak, the overdeterrence problem should be minimized. At the same time, there is a need to buttress the central obligation to provide independent legal advice against the constant pressure to say yes to anything. If this is the path taken, it will have the advantage of placing the responsibility to correct the lawyers’ misconduct in the hands of the profession whose standards have been violated.

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