Against All Enemies, Foreign and Domestic

It’s been rather interesting watching the family feud that has become Obama vs. Cheney (they’re distant cousins, I understand, although I doubted whether Vice President Cheney was even represented in the human genome). The shift in anti-terrorism policy represented by the Obama administration flows, I think, from one central fact: President Obama is a lawyer, and Vice President Cheney is not.

As a Congressman and Vice President, I’m sure Vice President Cheney took the same oath President Obama did as an attorney and as a state senator and U.S. Senator: To defend the Constitution against all enemies, foreign and domestic. However, at the risk of sounding elitist, I think an attorney has a better understanding of what it means to defend the Constitution against all enemies, foreign and domestic.

As an attorney, it means that you don’t get to choose the outcome you want – in this case, national security at all costs -- and twist the Constitution to try to justify it. It means being willing to walk away – or rather, having to walk away – when others would subvert the Constitution and try to use you as an attorney to do so. As someone who has taught legal ethics, I’ve had to impress upon law students the full meaning of defending the law regardless of the outcome. It means that if your client is a corporation with employees bent on wrongdoing, you have to inform the corporate officers of the wrongdoing, and if they choose to ignore it, you have to quit. Yes, leave your job. As an officer of the court, you can’t be a party to subverting the law.

As a prosecutor, it means turning over exculpatory evidence even if there’s a chance that a defendant you know in your heart is guilty of the crime he's charged with or others may go free.

As a criminal defense attorney, it means not putting your client on the stand if you know he is going to lie or, if he insists on testifying and you’re not certain if he's lying, letting him tell his “narrative” without your assistance.

I deal with these issues every day in the work that I do. I have to take a dispassionate, unbiased look at the record and the body of law before me and make a recommendation to my boss as to how I think a case should be decided. I have to let the law lead me to the results, regardless of where it takes me, because the very integrity of the organization I work for is always at stake with each decision it makes. I don’t get to choose the outcomes; the law chooses them for me. More than most, I am bound by the rule of law because I took an oath to uphold it when I was sworn in as a member of the California Bar.

You can’t be a party to subverting the law and take an oath to uphold it.

Why? Because we’re a nation bound to the rule of law. Imagine what chaos would ensue if every attorney thought the notion of defending the Constitution was a fuzzy, fluid concept they could bend at will to get the outcome they want? What, then, would distinguish us from Myanmar, Somalia, or Cuba?

I don’t fault Vice President Cheney’s patriotism and desire to keep this country safe. But you don’t get to bend the Constitution to do so, because it’s what sets us apart from all other nations as a defender of freedom. The Constitution and the rule of law, not men, is why we have been as stable a democracy as we have been for over 200 plus years. It’s like the Bible – you don’t get to pick and choose the parts you want to follow to get the result you want.

As an attorney, President Obama gets that. I do, too.