The furor generated by the Liz Cheney ad – or rather the organization that Cheney run, Keep America Safe – is interesting to me. (Ad and story here)

Isn’t it all just a question of whether a current client should consent to a potential conflict with the interests of a former client? Or is it really something more?

By now, you’ve probably heard about this discussion (or rather shouting match). The organization produced an ad, demanding to know the identities of those current Justice Department lawyers who were hired by the Attorney General, are now engaged in formulating detainee policy (or prosecuting detainees), and who formerly represented alleged terrorists in custody. The furor has centered on the risk this ad has of demonizing (McCarthy-style) those who defend bad people:

The ad—in one frame, a headline refers to the DOJ as the “Department of Jihad”—has been denounced as McCarthyism by liberal critics. It’s also being condemned by a growing number of former George W. Bush administration lawyers. Ted Olson, who served as Bush’s solicitor general, says he has the “greatest respect” for lawyers who represented Gitmo clients; they were acting “consistent with the finest traditions of the legal profession,” he says. He calls the attacks on one of the targets, Deputy Solicitor General Neal Katyal, “outrageous.” Four years ago, Katyal represented Salim Ahmed Hamdan, Osama bin Laden’s former driver, in a landmark Supreme Court case that overturned the military tribunals that Bush created. (Katyal did a “marvelous job” on the case, says Olson.)

(links omitted)

I get that point. But I also get the importance of asking the question: does their prior representation of detainees impact the ability of these lawyers to carry out their duty in the Justice Department?

Setting aside the question of whether the ad itself is the most constructive way to raise this question, people have a right to ask the queston, right?

These lawyers are representing us today. Because their prior representation of the detainees could present a conflict isn’t the question merely one of an actual or potential conflict with a former client? If it is, shouldn’t it be disclosed and consented to by the lawyers’ clients? Or is the fact that they’re working for the government change the calculus?

It doesn’t work like that, I know. But raising the question is a way for a democratically-governed people to shed light on the potential conflict and, in a manner of speaking, consent to it. Is it not?

Setting aside whether there can really be a constructive dialogue over this or whether there is really a way to determine whether people consent to something like this, raising the question is not unreasonable it seems to me. Just as it’s not unreasonable to push back with concern asking the question at all (let alone in such a provocative fashion) would result in the demonization of those who have represented the accused.

Is it even possible to raise the point without unleashing the fury?

Dr. Bombay and I talked about the Citizens United decision recently. If your head has been so far in a casebook that you missed it, the bottom line is that the Supreme Court ruled that First Amendment protections apply to corporations as much as to individuals. Corporations as associations of individuals, therefore, may make independent expenditures to engage in “express advocacy,” calling for the election or defeat of specific candidates.

As with many things political right now, my response was rather ambivalent.

Frankly, I’m open to seeing how it works. I’m certainly sympathetic to the idea that the First Amendment provides a blanket protection for political speech, regardless of corporate identity. My gut also tells me that (a) corporations like Apple, Google, Microsoft, and Exxon-Mobil will tread lightly in this arena and (b) allowing such direct expenditures and requiring disclosure of donor identities to groups like Citizens United will increase transparency, a principle that should be central to political spending.

Because of this my negative reaction to the decision was more tempered than Dr. Bombay’s. However, I’m sympathetic to the notion that the use by corporations of economic power can distort the political marketplace. That’s really the heart of the competing strain of decisions. Frankly, I could care less whether corporations have the fundamental “right” to air advertisements in support of one candidate or another and I doubt the Framers felt they were granting such a right. Call me a raging liberal, but the idea of yet more money flooding the process does not sit right with me and the people should be able to control the flood gates.

Continue reading Random Rumination on Citizens United