Why was the Arkansas Disbarment of Bill Clinton Unethical and Unlawful?
stephen
on disbarment as a mark of Cain, to anchor coercive power: the 5-year
disbarment of a sitting U.S. President, when the Arkansas Supreme
Court disciplined then-President Bill Clinton, after a majority of the
U.S. Senate failed to convict, and not a single Democratic Senator
voted for conviction. The outcomes implied that one may be ethically
qualified for the United States Presidency, yet lack the morals to
practice law in Arkansas, a conclusion that the cynical and the
idealistic both must reject. Either the U.S. Senate or the State of
Arkansas's State Bar Court equivalent was out of touch with American
morals, and it wasn't the Senate. Clinton's approval rating soon rose
to an unprecedented 73%.
Clinton was disbarred based on a federal district court's order citing
Clinton for contempt in the Jennifer Flowers proceeding. The allegedly
contumacious conduct consisted of false statements Clinton provided in
deposition, violating the court's discovery order. The court focused
on two false statements: that Clinton had never been alone with Monica
Lewinsky and that he had never had sexual relations with her. The
Arkansas Supreme Court, through its Bar-apparatus, invoked Arkansas
professional practice rules 8.4(c) and 8.4(d), which make it
professional misconduct for a lawyer to:
(c) Engage in conduct involving dishonesty, fraud, deceit or
misrepresentation;
(d) Engage in conduct that is prejudicial to the administration of
justice
For one living and litigating under the California Constitution, which
declares privacy on par with life and liberty in its inalienability,
requiring under the Federal Rules that a litigant inform on his sexual
partners seems barbaric. Without a direct showing of relevance to the
present lawsuit, a federal plaintiff can force exposure of the most
personal information. While a court should assign some culpability for
the generalized offense of lying in court, it should also consider the
altered ethical context, depending on the personal decision the
respondent actually faced. Bar Rules typically distinguish different
grades of unethical conduct, and the Arkansas rules offer this
discussion of moral turpitude:
-------
Comment [2] (Moral turpitude)
Many kinds of illegal conduct reflect adversely on fitness to practice
law, such as offenses involving fraud and the offense of willful
failure to file an income tax return. However, some kinds of offenses
carry no such implication. Traditionally, the distinction was drawn in
terms of offenses involving "moral turpitude." That concept can be
construed to include offenses concerning some matters of personal
morality, such as adultery and comparable offenses, that have no
specific connection to fitness for the practice of law. Although a
lawyer is personally answerable to the entire criminal law, a lawyer
should be professionally answerable only for offenses that indicate
lack of those characteristics relevant to law practice. Offenses
involving violence, dishonesty, breach of trust, or serious
interference with the administration of justice are in that category.
A pattern of repeated offenses, even ones of minor significance when
considered separately, can indicate indifference to legal obligation.
-------
There are other relevant measures of ethical magnitude, however, such
as between breach of basic moral rule (malum in se) and breach of
administrative regulation (malum prohibitum). Both malum in se and
malum prohibitum infractions have some ethical relevance, but only
malum in se violations are usually taken to indicate turpitude,
because malum prohibitum infractions reflect only the single trait of
law abidingness. While the rule against lying in sworn proceedings is
malum in se in form, the underlying obligation to allow routine
discovery of one's sexual partners is malum prohibitum. There is no
moral inevitability today for judicial access to all information
potentially relevant to civil litigation; no moral inevitability today
to afford civil litigants easy intrusion into an opponent's sexual
relationships; no moral inevitability today about holding the threat
of future judicial inquest over every unconventional private act a
person performs. California privacy law proves the absence of such
moral inevitability. Lying to protect personal information from an
ethically dubious intrusion is malum in se, insofar as it involves
lying, and malum prohibitum, insofar as it involves a failure to
comply with the discovery order requiring disclosure. The Arkansas
Supreme Court Bar arm didn't consider the ethical dimension in
sufficient depth, because it responded with the bureaucratic reflex
and moralistic rigidity typical of the State Bar establishment, using
the single amorphous concept of moral turpitude to erase distinctions.
The ethical crudeness of the Clinton disbarment decision, however, was
not its main failing. The Arkansas Supreme Court should have been
subject to federal preemption. It exceeded its jurisdiction in
disciplining a President for his conduct as a Federal office-holder.
The states have no jurisdiction to control the exercise of
Presidential power or of the President's performance of his duties.
The court might have agreed, as it created the impression of imposing
the sanction for conduct it observed during the Flowers proceeding,
involving personal rather than Presidential conduct. Clinton's grand
jury testimony during the Special Prosecutor's investigation of his
Presidential conduct impeached his Flowers testimony, said the court,
but the same logic allows that the Flowers testimony impeached
Clinton's statements to the Starr grand jury. While the district court
judge wrote that she directly observed the contumacious conduct, she
was mistaken in her evidentiary characterization. She actually
observed only a conflict between two testimonial acts. The judge
observed or was entitled to take judicial notice of a conflict between
Clinton's testimony in his Flowers deposition and his testimony before
the Kenneth Starr grand jury, indicating that in one of the two
instances of testimony, Clinton was lying, leaving the question a
mixed State and federal law question, pre-empted by federal law. The
Arkansas court was not entitled to disbar Clinton.
Stuart Bronstein
> One event demolished the State Bar establishment's effective
> reliance on disbarment as a mark of Cain, to anchor coercive
> power: the 5-year disbarment of a sitting U.S. President, when the
> Arkansas Supreme Court disciplined then-President Bill Clinton,
> after a majority of the U.S. Senate failed to convict, and not a
> single Democratic Senator voted for conviction. The outcomes
> implied that one may be ethically qualified for the United States
> Presidency, yet lack the morals to practice law in Arkansas, a
> conclusion that the cynical and the idealistic both must reject.
The issues and standards are legally different. Just as OJ Simpson
could be found guilty of murder in a civil trial but not guilty in a
criminal trial.
Stu
David Chesler
> One event demolished the State Bar establishment's effective reliance
> on disbarment as a mark of Cain, to anchor coercive power: the 5-year
> disbarment of a sitting U.S. President, when the Arkansas Supreme
> Court disciplined then-President Bill Clinton, after a majority of the
> U.S. Senate failed to convict, and not a single Democratic Senator
> voted for conviction. The outcomes implied that one may be ethically
> qualified for the United States Presidency, yet lack the morals to
> practice law in Arkansas, a conclusion that the cynical and the
> idealistic both must reject. Either the U.S. Senate or the State of
> Arkansas's State Bar Court equivalent was out of touch with American
> morals, and it wasn't the Senate. Clinton's approval rating soon rose
> to an unprecedented 73%.
None of "failing to maintain ethical conduct", "failing to have
morality", "being discovered never to have had morality", "inability
to keep one's fly zipped" or "failure to maintain an approval rating"
are impeachable offenses.
> The ethical crudeness of the Clinton disbarment decision, however, was
> not its main failing. The Arkansas Supreme Court should have been
> subject to federal preemption. It exceeded its jurisdiction in
> disciplining a President for his conduct as a Federal office-holder.
> The states have no jurisdiction to control the exercise of
> Presidential power or of the President's performance of his duties.
I wouldn't have been concerned if Arkansas treated the POTUS
specially, but they were disciplining him as an Arkansas lawyer, not
as a US President. Is there some sort of privilege that comes of
being the chief of the executive branch?
Going further into the political, I'm not sure of the difference
between "We do not talk about our sex life because it is private" and
"We do not talk about how we screwed up and sent an innocent person to
be tortured because it is secret". Of course Clinton didn't say the
former, rather he lied. I am sure those are different.
--
- David Chesler <che...@post.harvard.edu>
Free Cory Maye
Seth
stephen <srdi...@gmail.com> wrote:
>One event demolished the State Bar establishment's effective reliance
>on disbarment as a mark of Cain, to anchor coercive power: the 5-year
>disbarment of a sitting U.S. President, when the Arkansas Supreme
>Court disciplined then-President Bill Clinton, after a majority of the
>U.S. Senate failed to convict, and not a single Democratic Senator
>voted for conviction. The outcomes implied that one may be ethically
>qualified for the United States Presidency, yet lack the morals to
>practice law in Arkansas, a conclusion that the cynical and the
>idealistic both must reject.
The Constitution states the requirements for becoming President. I
don't see ethical qualifications mentioned anywhere; can you point out
what I'm missing?
> Either the U.S. Senate or the State of Arkansas's State Bar Court
>equivalent was out of touch with American morals,
Which of them is required to act based on "American morals" and where
does that requirement appear?
> and it wasn't the Senate. Clinton's approval rating soon rose
>to an unprecedented 73%.
The Constitution and state laws and bar requirements don't say
anything about "approval ratings".
>Clinton was disbarred based on a federal district court's order citing
>Clinton for contempt in the Jennifer Flowers proceeding. The allegedly
>contumacious conduct consisted of false statements Clinton provided in
>deposition, violating the court's discovery order.
"allegedly" needn't be used after a court has ruled.
> The court focused
>on two false statements: that Clinton had never been alone with Monica
>Lewinsky and that he had never had sexual relations with her. The
>Arkansas Supreme Court, through its Bar-apparatus, invoked Arkansas
>professional practice rules 8.4(c) and 8.4(d), which make it
>professional misconduct for a lawyer to:
>
>(c) Engage in conduct involving dishonesty, fraud, deceit or
>misrepresentation;
>(d) Engage in conduct that is prejudicial to the administration of
>justice
>
>For one living and litigating under the California Constitution,
there is no relevance to that and the Arkansas requirements.
> which declares privacy on par with life and liberty in its
>inalienability, requiring under the Federal Rules that a litigant
>inform on his sexual partners seems barbaric.
Are you asserting that California wouldn't have disbarred him under
similar circumstances? Does that matter?
> Without a direct showing of relevance to the present lawsuit, a
>federal plaintiff can force exposure of the most personal
>information.
Provided, that is, the "indirect showing" suffices for a court to
rule.
>The ethical crudeness of the Clinton disbarment decision, however, was
>not its main failing. The Arkansas Supreme Court should have been
>subject to federal preemption.
How is a state Supreme Court, ruling on admission to that state's Bar,
supposed to be pre-empted by the Federal Government?
> It exceeded its jurisdiction in
>disciplining a President for his conduct as a Federal office-holder.
It disciplined an *Arkansas lawyer* for his conduct. That's what the
Arkansas Bar *does*.
>The states have no jurisdiction to control the exercise of
>Presidential power or of the President's performance of his duties.
What does that have to do with a state controlling the exercise of law
in that state?
> The Arkansas court was not entitled to disbar Clinton.
Who do you suppose to be the final arbiter of Arkansas Bar membership?
Seth
Mark A
news:stb8r3hj27rnpppf3...@4ax.com...
> One event demolished the State Bar establishment's effective reliance
> on disbarment as a mark of Cain, to anchor coercive power: the 5-year
> disbarment of a sitting U.S. President, when the Arkansas Supreme
> Court disciplined then-President Bill Clinton, after a majority of the
> U.S. Senate failed to convict, and not a single Democratic Senator
> voted for conviction. The outcomes implied that one may be ethically
> qualified for the United States Presidency, yet lack the morals to
> practice law in Arkansas, a conclusion that the cynical and the
> idealistic both must reject. Either the U.S. Senate or the State of
> Arkansas's State Bar Court equivalent was out of touch with American
> morals, and it wasn't the Senate. Clinton's approval rating soon rose
> to an unprecedented 73%.
Courts are not supposed to rule based on the popularity of the defendant..
There is a federal law which allows a plaintiff in a sexual harassment suit
to ask the defendant under oath about past sexual relationships of the
accused in the workplace, especially where there is a presumption of sexual
harassment (such as sexual relationships with subordinates). No other
questions about a person's sexual history may be asked. And the defendant
has the right to invoke the 5th amendment rights and not even answer the
questions. Ironically, this law is strongly supported by liberal groups and
feminists. I have not heard of anyone asking that this law be repealed (only
that it not be enforced when used against someone they like).
> The ethical crudeness of the Clinton disbarment decision, however, was
> not its main failing. The Arkansas Supreme Court should have been
> subject to federal preemption. It exceeded its jurisdiction in
> disciplining a President for his conduct as a Federal office-holder.
> The states have no jurisdiction to control the exercise of
> Presidential power or of the President's performance of his duties.
Disbarment in the state of Arkansas has nothing to do with the president's
ability to conduct business as a Federal officeholder.
> The court might have agreed, as it created the impression of imposing
> the sanction for conduct it observed during the Flowers proceeding,
> involving personal rather than Presidential conduct. Clinton's grand
> jury testimony during the Special Prosecutor's investigation of his
> Presidential conduct impeached his Flowers testimony, said the court,
> but the same logic allows that the Flowers testimony impeached
> Clinton's statements to the Starr grand jury. While the district court
> judge wrote that she directly observed the contumacious conduct, she
> was mistaken in her evidentiary characterization. She actually
> observed only a conflict between two testimonial acts. The judge
> observed or was entitled to take judicial notice of a conflict between
> Clinton's testimony in his Flowers deposition and his testimony before
> the Kenneth Starr grand jury, indicating that in one of the two
> instances of testimony, Clinton was lying, leaving the question a
> mixed State and federal law question, pre-empted by federal law. The
> Arkansas court was not entitled to disbar Clinton.
There is not pre-emption of federal law, and there is no law that said what
Clinton did was legal. Clinton settled the sexual harassment case out of
court, so there was not a court that ruled in his favor.
The impeachment is a special case, since there is no acquittal possible,
even if he is not convicted, unless of course there is not even one senator
who votes for conviction (which would be equivalent to an acquittal). A
person may not be convicted if only 50% of the jury votes for conviction,
but that is not an acquittal either.
Mike Jacobs
> One event demolished the State Bar establishment's effective reliance
> on disbarment as a mark of Cain, to anchor coercive power:
Um, where are you coming from on this? 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.
> the 5-year
> disbarment of a sitting U.S. President, when the Arkansas Supreme
> Court disciplined then-President Bill Clinton, after a majority of the
> U.S. Senate failed to convict, and not a single Democratic Senator
> voted for conviction.
Impeachment, criminal conviction, civil suit for damages, and grounds
for disbarment are apples, oranges, peaches and bananas. There are
different requirements and standards for each, and despite superficial
appearances of subject matter they have little in common. One's
actions can be investigated and punished under any of those methods
even if one has already been cleared of any wrongdoing under all the
other approaches.
> Clinton's approval rating soon rose
> to an unprecedented 73%.
I liked Bill too. But this point is, of course, completely
irrelevant to disbarment proceedings.
> Clinton was disbarred based on * * * false statements Clinton provided in
> deposition, * * * that Clinton had never been alone with Monica
> Lewinsky and that he had never had sexual relations with her. The
> Arkansas Supreme Court, through its Bar-apparatus, invoked Arkansas
> professional practice rules 8.4(c) and 8.4(d), which make it
> professional misconduct for a lawyer to:
>
> (c) Engage in conduct involving dishonesty, fraud, deceit or
> misrepresentation;
> (d) Engage in conduct that is prejudicial to the administration of
> justice
And you don't think lying under oath, as a witness in a court
proceeding, meets that standard?
A lawyer who is arguing for a client has a lot of flexibility to
interpret the facts in the best possible light for his client. When
average foax say "All lawyers lie" ISTM that is what they are
referring to, and they are wrong in fact, because the lawyer is not
"lying", he is arguing for one interpretation over another. But a
lawyer who is a witness testifying under oath is, if anything, even
more closely bound to tell the truth than is a lay witness, since the
lawyer should be well aware of the dire consequences to his profession
from lying under oath, and also is presumably far more alert to the
exact meaning of the words he uses than the average lay person.
> For one living and litigating under the California Constitution, which
> declares privacy on par with life and liberty in its inalienability,
> requiring under the Federal Rules that a litigant inform on his sexual
> partners seems barbaric.
Well, first of all, none of this happened in California. Why do you
even raise _that_ issue?
In general, I agree that private matters should be allowed to remain
private, if that sexual history has nothing directly to do with the
case at issue -- but this wasn't a probingly improper question at a
news conference directed to his conduct as President, it was a
question about his sexual relations with women, in a lawsuit brought
by Ms. Flowers, a woman who accused him of taking unwanted sexual
liberties with her. So his sexual history was not only relevant, it
was central, to _that_ case. Perhaps what Bill should have done is
refuse to answer the questions at deposition if they were indeed
irrelevant. But IIRC the judge had already rejected that argument and
he was under a court order to answer, I suppose his only option at
that point would have been to plead the Fifth Amendment. I'm just
guessing that the collateral (bad publicity) consequences of choosing
that path kept him from doing so.
> Without a direct showing of relevance to the
> present lawsuit, a federal plaintiff can force exposure of the most
> personal information.
Disagree. Why do you think such personal details can be probed in a
garden variety case they have nothing to do with? They can't.
Conversely, why do you feel an alleged perp's prior sexual history is
immaterial to a lawsuit accusing him of improper sexual advances?
That context is exactly where they _are_ relevant.
> While a court should assign some culpability for
> the generalized offense of lying in court, it should also consider the
> altered ethical context, depending on the personal decision the
> respondent actually faced. Bar Rules typically distinguish different
> grades of unethical conduct, and the Arkansas rules offer this
> discussion of moral turpitude:
<snipped>
So engaging in adultery and keeping it a secret is not the kind of
dishonesty that would render an attorney unworthy of the trust placed
in him by his bar admission. I agree. But the Arkansas court
wasn't acting upon the adultery itself, it was acting upon the fact
that, as a witness in a court proceeding, Bill lied under oath.
Now, don't start on me there. I know that Bill and his lawyers were
being very careful in their choice of words and went thru all kinds of
motions in the Flowers case to have the judge in that case legally
define the terms of the question so that if what they meant by "having
sex" required fully consummated intercourse, the witness could
truthfully deny "having sex" with Monica if all they did together was
something else. I'm not passing judgment on whether the AR court was
factually correct in determining that Bill lied under oath. But if
he did, as the court's findings found he did, that is certainly
grounds for disbarment.
> The ethical crudeness of the Clinton disbarment decision, however, was
> not its main failing. The Arkansas Supreme Court should have been
> subject to federal preemption. It exceeded its jurisdiction in
> disciplining a President for his conduct as a Federal office-holder.
Huh? I can only conclude that you have lost touch with reality for
ideological reasons. The AR court was _not_ disciplining Bill for his
conduct as President, they were disciplining him for lying under oath,
as a witness, in a civil lawsuit brought by a woman who accused him of
sexual misconduct. That had nothing to do with his role as a federal
office-holder.
> The states have no jurisdiction to control the exercise of
> Presidential power or of the President's performance of his duties.
OK, and which Presidential power is it that was implicated in the
Flowers case? Keeping in mind, of course, that this was a pre-Cheney-
administration event, and that with the expansion of executive power
and executive secrecy that has occurred under the Dick administration,
Bill may well have had other options to invoke Presidential privilege
to keep his mouth shut.
Moreover, disbarment by that one State's court had no effect on Bill's
presidential duties, or any other rights or privileges he had, except
the privilege of appearing as counsel before the state courts of
Arkansas. The highest court of each State has the inherent right to
regulate and set standards for who may appear before that court as an
attorney. The disbarment decision, standing alone, doesn't even have
that effect as to any _other_ state's courts or as to Federal courts.
Although eventually, most states would apply a reciprocal disbarment
for conduct that was sanctioned in another state, at least initially
an attorney who is admitted in more than one jurisdiction could
continue to practice before the Bar in all those other jurisdictions
except the one which has disbarred him. Where do you get a Federal
pre-emption argument out of that?
> The court might have agreed, as it created the impression of imposing
> the sanction for conduct it observed during the Flowers proceeding,
> involving personal rather than Presidential conduct.
Of course they did. Why on earth would you conclude that was just a
pretext?
<rest of argument snipped>
Query, why are you raising this issue now, a decade after it
happened? When it has already been fully litigated by hordes of
competent lawyers on both sides? In the middle of the campaign
season? Since you seem quite ready to attribute sinister ulterior
motives to virtually everyone and every act, what axes are _you_
trying to grind?
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal
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For confidential professional advice, consult your own lawyer in a
private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300