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Tuesday, March 27, 2007
Boom industry: Pre-paid legal insurance for public servants?
This New York Post op-ed from John Podhoretz takes as its fanciful premise someone applying for a job as a public servant in government. JPod uses the conversation during this hypothetical job interview to point out, sadly but correctly, that those who aspire to such positions these days are increasingly at risk of needing high-priced legal talent to defend them in court — and the higher their aspirations for service, he suggests, the more likely they are to have the need.
My first thought on reading this op-ed was: Yeah, that's true — and one's risk isn't even much diminished if one's already a lawyer oneself. Such was certainly the case for the public servant who I'm sure JPod had in mind when he wrote this op-ed, the just-convicted Scooter Libby. Libby had been a senior partner in a high-powered international law firm in between his positions in government. (There are, in fact, some who argue that Libby needed a better lawyer sooner, and that he erred in relying on a former law partner without deep experience in high-profile criminal matters during the initial FBI investigation and grand jury proceedings.)
My second thought was: Lawyers are actually at something of a disadvantage when charged with misconduct while acting as public servants, because everyone imputes to them a degree of cunning which they may or may not actually possess. For example, Libby's brilliant career, including his legal training and experience, provided the prosecution with powerful arguments against his defenders' claims that he'd had innocent lapses of memory.
Which led to my third thought: Of course, Clinton and Nixon were both lawyers too, and they certainly ended up paying millions in legal fees. At least one of them nevertheless did end up getting off lightly, and reasonable arguments can be made that both of them did. Certainly despite all the legal fees they paid, neither ever missed any meals or had to shop for their clothing at the Goodwill. Their troubles were of their own making; they brought upon themselves their own need for armies of lawyers to defend and represent them.
Which led to my fourth thought, which isn't ultimately inconsistent with the first three, or with JPod's op-ed: The risk of being called upon to hire lawyers to defend oneself in legal proceedings is indeed a dramatic and daunting one. But it does indeed go with the territory. By definition, public service entails responsibilities that may, and certainly should, outweigh its privileges; otherwise it is "self-service," isn't it? With great responsibility comes greater risk of close scrutiny and, indeed, unjust accusations. There's no way around that. We certainly don't want high public servants who are incapable of understanding those risks. When you agree to live in a glass house, you ought to expect to have to make other life-style changes besides just cutting back on your stone-throwing hobby.
And yes, finally, those risks should be at least as great for lawyers as for non-lawyers in public service. As professionals we purport to hold ourselves to higher standards. We are supposed to know better. And we ought not be immune, or less exposed, to the risks that others face as public servants — one of which, unquestionably, is the risk of having to spend money to pay lawyers to defend you on charges and claims that would never have arisen but for that public service.
JPod's hypothetical job interview is, then, only loosely metaphoric. We do want people for public service who will go through just the sort of questioning — at least self-questioning — that he proposes, and who will, nevertheless, answer, "Yes, I understand that I'll be at greater risk for needing to hire lawyers to defend me someday, but I do want this job anyway." That's true even for the lawyers among them; in fact, it's true especially for the lawyers among them.
Posted by Beldar at 06:22 PM in Law (2007), Politics (2007) | Permalink
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Comments
(1) David Blue made the following comment | Mar 27, 2007 9:11:40 PM | Permalink
Beldar: "We do want people for public service who will go through just the sort of questioning — at least self-questioning — that he proposes, and who will, nevertheless, answer, "Yes, I understand that I'll be at greater risk for needing to hire lawyers to defend me someday, but I do want this job anyway."
:P Who's "we", white man?
I want public officials who as far a possible are honest and ordinary people, and who avail themselves of no opportunities to enrich themselves via special friendships or other means that may come to hand in a career serving the public.
I want people who will take their salaries, do their jobs and go home, with their trusts faithfully discharged and neither swelling fortunes nor swelling egos.
People like that are practically barred from public office by John Podheretz's test, if they are wise - as he says.
They can't afford to be honest and modest because they need those fortunes for their lawyers.
They need to be people for whom the heavy legal risks will all be worth it for the payoffs.
What payoff justify the risk of losing your good name and freedom? BIG payoffs.
I don't want people going into public office with the idea in mind from Day One that they are going to go hard for the sort of payoffs that make even heavy risks of this nature look like a worthwhile bet.
Go back. Wrong way! (Just my 2c.)
(2) Beldar made the following comment | Mar 27, 2007 9:58:02 PM | Permalink
Mr. Blue, I take your point, and it's a very good one.
It's cynical of me to admit, but (I think) nevertheless true, that "ordinary people" don't much end up as elected public servants at a national level. Certainly they do at many important local and even state levels. But nationally, the "Jefferson Smith paradigm" was already a quaint memory in 1939, when Jimmy Steward pretended to go to Washington.
I do think that there are still a great many "ordinary people" who are non-elected public servants. I've written recently, for example, about the career prosecutors throughout the country who work under the direction of the U.S. Attorneys in all 93 judicial districts. Collectively, that's thousands of lawyers, almost all of whom could be making more money in private practice, and who, individually, have fairly modest amounts of power or prestige.
I tend to think that the people that JPod had in mind, though, are either elected public officials or else relatively high-ranking appointed ones (like Libby). There is no doubt that some of them are craven opportunists who (if we're lucky) are merely plotting on how to feather their nests after they leave office; and they come in both Democratic and Republican flavors. But there are also a fair number who, even though they don't quite fit the "Jefferson Smith" model, and even though they aren't quite "ordinary people," nevertheless are motivated by altruistic principles. I think those are the ones JPod is worrying that we'll lose. And they're also the ones who I agree are at risk, but whose altruism will persuade them to serve notwithstanding that risk.
(3) David Blue made the following comment | Mar 28, 2007 1:16:29 AM | Permalink
First, thanks for your kind words, Beldar.
And you make strong points. I want people in government to be "regular Joes" to the extent that can happen, but the extent to which that can happen is limited. In practice, other games are being played.
Beldar: "I think those are the ones JPod is worrying that we'll lose. And they're also the ones who I agree are at risk, but whose altruism will persuade them to serve notwithstanding that risk."
That's a good thing to hope for.
Are you satisfied that the emerging structure of reward and punishment provides a good foundation to hope that enough people will act the way you want them to?
Are you sure it's not that you just don't know how to de-criminalize politics, and so you're more or less saying "being drafted wasn't so bad, these army rations taste (*choke!*) g r e a t . . . :/ ?
Is it OK if you get less of the sort of people who will look at the prospects and say: "No. I have a wife and kids, and I don't have the kind of money that will let me take that heat if I'm not lucky. No honest person does, unless they're born rich. And, I just don't see myself as someone who is willing to risk being in the dock and maybe a felony rap to get what I want. I wasn't brought up that way." ?
If you get less of the kind of people who have a mental taboo about being on the wrong side of the law - is that OK?
Is it OK, if among those who are idealists (and not predators and sleazebags, who as you say are pervasive and ultimately a nonpartisan scourge) you get a higher share than you used to of "true believers"?
I mean people who think like this (and this is how I would think if I was going to take a choice like that): "If I do this, I'm completely unshielded, and if some legal shark comes at me, nothing I own is my own, least of all my good name. OK then. This is a crusade. I am going to try to make what I think is right (which with me would be the pro-life cause) win, and every day on the job I'm going to have my cause and _winning_ in mind. Because they are _definitely_ not paying me enough to do this just as a job."
If the reward and punishment structure adds up wrong for regular folk, and if you want idealists, and you don't mind true believers who are fighting for something they care a lot more about than whatever pittance they're being paid (in comparison to what they might otherwise earn), enough to risk being on the wrong side of the law, I think you can probably have that.
If that's the way to go, I think things may get pretty partisan. To the point where if you think things have gotten partisan so far, "b-b-baby you just ain't seen nothing yet."
Suicide bombers aren't particularly reasonable people. Political "suicide bombers" who want to get something done and are willing to see bars from the wrong side to do it may not be particularly reasonable people either. I think we'd be better off, on the whole, with fewer of them in government. And I'd still think that if I thought my side was going to win every crunch issue I care about if crusading zealot politics prevailed.
I think you will get more people on both sides than you used to who will think: "I'm ready to screw up my own life for this. (I knew that was the deal coming in.) And I'm the good guy. I'm definitely willing to stick it to those people on the other side, the wrong side, who I know are fanatics because you wouldn't take that job otherwise, and who are most unlikely to give me any charity if my luck runs out."
I'm not saying that would start to happen. Obviously it's always happened. But fortunately not too much, on the whole.
But isn't it reasonable think that if you let the balance of reward and punishment slide to the detriment of the fairly limited supply of "regular" types who want these jobs, then you are going to get more craven opportunists with limited inhibitions about being on the wrong side of the law, or more "true believers" who will think all kinds of risks and lousy reward structures are acceptable if they advance the cause (whatever cause they so strongly believe in), or both?
(4) Beldar made the following comment | Mar 28, 2007 5:12:20 AM | Permalink
Mr. Blue: The system is far from perfect, and in individual cases it may function very unfairly indeed.
Nevertheless, I retain faith that there are some important checks and balances in the system at all times, and that there is some precedent for the system making healthy adjustments in itself. As an example of the former, I'd point to the Constitutional power of the President to pardon (and yes, that too is subject to abuse, but that doesn't mean it's a bad thing in and of itself). As an example of the latter, I'd point to the expiration of the Independent Counsel statute based on a bipartisal realization and consensus that its potential for abuse had become a probability of abuse. Ultimately one must rely on small-d democracy to strike the right balance, and I continue to believe in that concept, at least over time.
(5) David Blue made the following comment | Mar 28, 2007 10:04:56 AM | Permalink
OK, Beldar, that I agree with. :)
(6) Rorschach made the following comment | Mar 30, 2007 1:27:49 PM | Permalink
Beldar, I certainly understand where both you and Mr Blue are coming from. I'd like to ask a related ethics question. If say, I as a minor elected official, were to violate ethics laws in the course of my employ by the public, would it be ethical for me to compel the public entity in which I, in part, control to pay to defend me? And no, this is not a hypothetical question. This is what has actually occurred at my local college district. Board members and employees of the district at the board's direction have been accused of violating election and ethics laws, and the district is paying a very prominent political lawyer here in town to defend the board members. Is that ethical?
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