At a recent social gathering, someone asked: Why hasn’t the Justice Department done more to contain WikiLeaks and Assange, and how in the world could a lawyer – any lawyer – have represented him given his indefensible release of U.S. military secrets? And, to complicate matters even though arguably an ancillary point, the lawyer was a strong supporter of Hillary Clinton, the victim of many of Assange’s recently released documents. Needless to say, everyone had an opinion; some people several opinions.
To put this into context, although it is a winding road, indeed: Julian Assange is under inquiry, in Sweden, accused by two women in 2010 of having raped them, and Sweden requested his extradition from England so that he could be questioned in a preliminary investigation. In the face of an arrest warrant to interview him (under Swedish law suspects must be questioned before they can be indicted) and an unsuccessful challenge to extradition, Assange decamped to the Ecuadorian Embassy in London where he has been living for four years. He denies the rape charges, but claims he cannot go to Sweden because he would then be extradited to the U.S. to face charges relating to WikiLeaks’ release of military files, an investigation which appears to be on-going, even though no formal charges have been brought. Sweden, for its part, says it does not know whether Assange will be extradited to the U.S., because there is no actual request by the U.S. for it to consider.
Now, Assange takes the position that what he has been doing with WikiLeaks has constitutional “free speech” implications – many have said he is doing “God’s work.” But this article is not about Assange. Anyone who isn’t on a return flight from Mars knows that under the American Justice System, both in theory and in practice, everyone is entitled to have a lawyer represent him – no matter how offensive his alleged conduct. This would have included even the likes of Osama bin Laden, had the U.S. government put him on trial. Justice works best when it works fairly, even (maybe especially) for the worst of us!
So when a criminal lawyer is faced with the question “How could you?”, she reflexively answers: “ Under our Constitution, everyone is entitled to a defense.” Rote though it may be, it is the truth. No matter how horrendous the client’s (alleged) conduct may have been, we all expect that he will (and should) be permitted to defend himself. And, notwithstanding the public’s upset with a lawyer’s willingness to defend him, he will be entitled to legal representation. Ethical lawyers have represented Charles Manson, the Unibomber and the guy who shot John Lennon – just as it should be.
Still, what about when, although the pending charge relates to past conduct, it is clear that the defendant will continue his criminal wrongdoing? For example, he is charged with narcotics trafficking that presumably concluded in 2015, but while he is “out” waiting for trial, he continues his trade (and, by the way, everyone suspects it). Or he is charged with having previously distributed child pornography, yet the public and law enforcement suspect he is still engaged even though he is not charged with anything ongoing.
In those instances, the lawyers who represent such people time and again will be seen as “drug lawyers” or “kid porn” lawyers. They will earn those reps even though their clients, no matter how unappetizing it may be (particularly to the general public), have a constitutional right to be represented, and even though the lawyers have no specific information about their ongoing activities. Attorneys are permitted and willing (often, I hate to say it, if the money is right) to undertake such representations even if they know in their hearts – if not with evidence presented to them – that the clients remain engaged in business as usual.
But let’s look at Assange and his counsel. At least until recently, Amal Clooney was a member of his legal team notwithstanding that she is known as a world class human rights lawyer (yes, and a celebrity). It seems that she and Assange have gone their separate ways, maybe because, as reported, she and her politically-minded husband, George, were strong supporters of and contributors to Hillary Clinton. Had she been successful in stopping his extradition, it would have assured him complete liberty (at least for the time being) and thus the freedom to hack and continue to do his dirty work as a plumber, work which he now performs at the Ecuador consulate, although Ecuador recently announced it would cut off his internet access. Stated otherwise, if Clooney could successfully hold Sweden at bay, she would empower Assange to do what he was intent on doing, regardless of whether she had any idea – and we suspect she had no idea – what his next, specific plan of action in leaking harmful and likely confidential information might be.
Let’s assume there is no legal or ethical obligation here – a lawyer may represent a client even if she believes the client will continue to take acts that may theoretically be charged as a crime (remember, the U.S. appears not to have charged Assange). And, clearly, a lawyer has no ethical obligation to share the views of the client who is engaged in a type of conduct, and cannot be constrained from representing a client merely because they disagree, as long as the lawyer is able to put aside her differences with the client’s ultimate objectives and represent him on the merits. Nonetheless, one might quarrel with the substantive “morality” of the lawyer’s representation.
But such a quarrel ignores our system of justice. There is simply no requirement – nor can there be – that a lawyer look at the “big picture” when representing a client. Lawyers aren’t required to be inspectors general of their clients’ behavior. They represent a client on the issues then before the court and that representation does not amount to an attestation that the client will stop or alter his behavior. While seeming counterintuitive in the eyes of the public, lawyers are required to follow far different rules and protocols than people believe conventional morals might dictate.
Think of it in this context: A physician is required to treat those who are ill. There is no distinction between treating those who are morally “good” and those who are not. If a physician pulls a bullet out of a modern day Jesse James and, to the surprise of no one, Jesse James murders the next person who gets in his way while he is robbing a bank, virtually no one would argue that the doctor should have let him die. And lawyers must be given the same pass, if you will. When Dick the Butcher, a henchman of the rebel leader in Henry VI, Part 2 said “The first thing we do, let’s kill all the lawyers,” Shakespeare meant it as a compliment to lawyers – for it is they who are called upon as guardians of the rule of law; it is lawyers who are called upon to stand up to injustice.