No Comment — June 23, 2009, 10:13 am

Lawyers’ Opinions and Crime

Remember when former Attorney General Michael B. Mukasey insisted—in response to Congressional calls for accountability for the torture lawyers–that the notion that attorneys could be criminalized for writing a legal opinion was “absurd”? Of course, those who seriously tracked the issue recognized that Mukasey’s remarks were not serious. The Justice Department in fact regularly prosecuted lawyers for writing opinions, when it reckoned that the opinions were part of a larger conspiracy to commit a crime. Why would that same reasoning not apply to the case of the torture lawyers? In fact it would, and in fact, Congress expressly created a crime—conspiracy to torture—which covers it. The New York Times has reported on another recent case in which a group of tax lawyers and accountants and a foreign bank conspired to introduce a tax shelter product that they offered to their clients. The lawyers participated by issuing legal opinions, as the Justice Department stresses in its own press release covering the matter. So why is this not a perfect precedent justifying the criminal prosecution of the torture team? Major distinctions between the cases—torture is a vastly more serious crime than games with tax shelters, and the tax shelter case turns on issues of tax law as to which reasonable minds might differ, unlike the torture case—cut in favor of a prosecution of the torture lawyers. The decisive difference may simply be that the United States Department of Justice holds its own attorneys to a far lower standard of accountability than it holds ordinary attorneys. Ask the lawyers who head the Department’s own Public Integrity Section. They’re now the targets of a special prosecutor investigating their criminal misconduct. It’s revealing that the criminal probe into the misconduct of federal prosecutors in political cases occurred by special action of a federal court, not as a result of any internal action of the Justice Department itself. When complaints were brought to the attention of the Justice Department it consistently reacted the same way, sweeping them under the carpet. Often enough, we have to ask on which side of the law enforcement divide the Justice Department stands. The answer often disappoints.

Share
Single Page

More from Scott Horton:

Conversation August 5, 2016, 12:08 pm

Lincoln’s Party

Sidney Blumenthal on the origins of the Republican Party, the fallout from Clinton’s emails, and his new biography of Abraham Lincoln

Conversation March 30, 2016, 3:44 pm

Burn Pits

Joseph Hickman discusses his new book, The Burn Pits, which tells the story of thousands of U.S. soldiers who, after returning from Iraq and Afghanistan, have developed rare cancers and respiratory diseases.

Context, No Comment August 28, 2015, 12:16 pm

Beltway Secrecy

In five easy lessons

Get access to 165 years of
Harper’s for only $45.99

United States Canada

CATEGORIES

THE CURRENT ISSUE

February 2017

Blood and Soil

= Subscribers only.
Sign in here.
Subscribe here.

A Grim Fairy Tale

= Subscribers only.
Sign in here.
Subscribe here.

Trump: A Resister’s Guide

= Subscribers only.
Sign in here.
Subscribe here.

Little Things

= Subscribers only.
Sign in here.
Subscribe here.

The Patient War

= Subscribers only.
Sign in here.
Subscribe here.

Remainers

= Subscribers only.
Sign in here.
Subscribe here.

view Table Content

FEATURED ON HARPERS.ORG

Post
Discussed in this essay: Age of Anger: A History of the Present, by Pankaj Mishra. Farrar, Straus and Giroux. 416 pages. $27. I am writing from Germany, the world’s last major stronghold of liberal democracy. The United Kingdom fell to Brexit in June; the United States fell, with the election of Donald Trump, in November. We can dispute whatever “the West” was for as much time as humanity has left, but that it collapsed on Tuesday, November 8, 2016, seems to me beyond question. Perhaps Angela Merkel, the German chancellor, is the heart still beating faintly within its brain-dead body, but …
Photograph (detail) by Philip Montgomery
Post
Illustration (detail) by Steve Brodner
Article
The Patient War·

= Subscribers only.
Sign in here.
Subscribe here.

Discussed in this essay: Age of Anger: A History of the Present, by Pankaj Mishra. Farrar, Straus and Giroux. 416 pages. $27. I am writing from Germany, the world’s last major stronghold of liberal democracy. The United Kingdom fell to Brexit in June; the United States fell, with the election of Donald Trump, in November. We can dispute whatever “the West” was for as much time as humanity has left, but that it collapsed on Tuesday, November 8, 2016, seems to me beyond question. Perhaps Angela Merkel, the German chancellor, is the heart still beating faintly within its brain-dead body, but …
Photograph (detail) © Andrew Quilty/Oculi/Redux
Article
Little Things·

= Subscribers only.
Sign in here.
Subscribe here.

Discussed in this essay: Age of Anger: A History of the Present, by Pankaj Mishra. Farrar, Straus and Giroux. 416 pages. $27. I am writing from Germany, the world’s last major stronghold of liberal democracy. The United Kingdom fell to Brexit in June; the United States fell, with the election of Donald Trump, in November. We can dispute whatever “the West” was for as much time as humanity has left, but that it collapsed on Tuesday, November 8, 2016, seems to me beyond question. Perhaps Angela Merkel, the German chancellor, is the heart still beating faintly within its brain-dead body, but …
Photograph (detail) of miniatures by Lori DeBacker by Thomas Allen
Article
Blood and Soil·

= Subscribers only.
Sign in here.
Subscribe here.

Discussed in this essay: Age of Anger: A History of the Present, by Pankaj Mishra. Farrar, Straus and Giroux. 416 pages. $27. I am writing from Germany, the world’s last major stronghold of liberal democracy. The United Kingdom fell to Brexit in June; the United States fell, with the election of Donald Trump, in November. We can dispute whatever “the West” was for as much time as humanity has left, but that it collapsed on Tuesday, November 8, 2016, seems to me beyond question. Perhaps Angela Merkel, the German chancellor, is the heart still beating faintly within its brain-dead body, but …
Illustration (detail) by Nate Kitch

Years that a Nigerian woman appealing a sentence of death by stoning in March will be allowed to live to wean her baby:

1.5

Movie editing was found to have evolved toward the natural pattern of human attention, which corresponds to the natural rhythm of the universe; Rebel Without a Cause, in particular, was found to possess a near-perfect universal rhythm.

Rodrigo Duterte, the president of the Philippines, announced that he has ordered the country’s navy and coast guard to bomb the ships of kidnappers even if civilian hostages are on board.

Subscribe to the Weekly Review newsletter. Don’t worry, we won’t sell your email address!

HARPER’S FINEST

Who Goes Nazi?

= Subscribers only.
Sign in here.
Subscribe here.

By

"It is an interesting and somewhat macabre parlor game to play at a large gathering of one’s acquaintances: to speculate who in a showdown would go Nazi. By now, I think I know. I have gone through the experience many times—in Germany, in Austria, and in France. I have come to know the types: the born Nazis, the Nazis whom democracy itself has created, the certain-to-be fellow-travelers. And I also know those who never, under any conceivable circumstances, would become Nazis."

Subscribe Today