Trump's Lawyers Are Not the Most Contemptible Attorneys of this Season

Neither is it Texas Attorney General Ken Paxton whose plea for a pardon attempt to invalidate all the votes in 4 states was dismissed by the Supreme Court. 

In fact, the lawyer in question wasn't working on the election at all.

Rather it was Democratic Party establishment (There is no Democratic Party establishment) stalwart and Clinton confidant Neal Katyal who aggressively supported the use of slaves by Nestle on chocolate farms, explicitly stating that companies that participated in the Holocaust should not be held to account for their actions.

Every one has a right to a lawyer, no mater how contemptible that client is, and the lawyer has an obligation to provide a competent and rigorous defense, but there is a ethical requirement that you not simply argue on behalf on evil.

Lawyers are not just advocates, they are officers of the court, and there is a requirement for basic human decency, and Neal Katyal has failed that test. (I need to note that I am an engineer, not a lawyer, or ethecist, dammit!^*)

The United States has a political class that mistakes its professional norms for ethics. Mainstream political journalists mindlessly grant anonymity to professional liars. Elected officials put collegiality and institutional procedure over the needs and interests of their constituents. And as for lawyers, they have refined this tendency into what amounts to a religion of self-justification.

The Sixth Amendment to the Constitution establishes that every American has the right to “the Assistance of Counsel” if they are prosecuted for a crime. This was a pointed rejection of English common law, which barred felony defendants from hiring counsel to represent them. Over time, the Assistance of Counsel clause came to mean that everyone prosecuted for a crime had the right to competent and effective representation, even if they could not afford it. From that right, the American legal community developed a core tenet: Everyone deserves representation.

But once the American legal community invented corporate law and the large firm, it continued developing that tenet until it became so divorced from notions of liberty or equality under the law that it now works as a kind of force field preventing lawyers from facing any social or professional repercussions for their actions on behalf of their clients. Everyone has a right to counsel, and every lawyer has a right to earn a buck.

It is that mutated creed that explains why Neal Katyal went to the Supreme Court last Tuesday to argue that children enslaved to work on cocoa plantations should not be allowed to sue the corporations that abetted their enslavement.

Katyal is among the most prominent and decorated attorneys in the country. He is a Democrat who has been in and out of government since Bill Clinton’s second term. He returned to his private firm, Hogan Lovells, after serving as acting solicitor general for Barack Obama’s Justice Department. He is omnipresent on television and newspaper op-ed pages as a voice of “The Resistance” to Donald Trump. He is about as close as you could come to the embodiment of Big Law’s connection to the institutional Democratic Party.

And last week he argued that because the corporation that supplied Zyklon B to the Nazis for use in their extermination camps was not indicted at Nuremberg, Nestle and Cargill should not be held liable for their use of child slave labor. In his argument before the court, Katyal espoused a view of corporate immunity so expansive that even the conservative judges seemed skeptical. If you took him at his word, he was effectively asking the Supreme Court to make it impossible for any foreigner to sue any company for any harm done to them, up to and including kidnapping and enslavement.

An argument that repulsive coming from such a high-profile attorney—someone who could very likely serve in the incoming Biden administration or end up a judge—naturally caught the attention of left-of-center critics of corporate power. Most of them were not very impressed with the argument and expressed some less-than-flattering opinions about the person making it.

As always, public criticism of a successful attorney led inevitably to the creation and publication of a new version of the inexhaustible opinion piece classic: It is simply unfair to criticize a lawyer for making any argument on behalf of any client.

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The point is not that Katyal should be disbarred or something for representing a client. The point is that the cases Katyal chooses to take, the arguments he chooses to make, even the firm he chooses to work for, all speak to his values. He cannot separate his politics, whatever he thinks they are, and whatever he wants everyone else to think they are, from his decision to defend Nestle against the threat of potential lawsuits from enslaved children. That is a statement about how one believes the world should be organized and on whose behalf the legal system should operate.

To defend an accused murderer or rapist in a criminal trial is a straightforward endorsement of the idea of the presumption of innocence, not an endorsement of murder or rape. That’s the act enshrined in our Bill of Rights. To make a career out of defending and expanding corporate power at the expense of employee and consumer power, on the other hand, is simply to endorse those things.

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Instead of continuing to argue about these ideas in public, the American legal community largely decided to close ranks around a highly ideological understanding of professionalism and independence that happens to support the right of an elite attorney to make a fortune. Now any time someone—take, for example, Richard Kahlenberg, who went to Harvard Law and wrote a book about how that institution turns would-be idealists into corporate stooges in training—broaches concerns like Berle’s, they are met immediately with derisive sneers from law professors about not understanding the majesty of the legal profession.

People like those law professors and Neal Katyal illustrate something I wish more professional Democrats understood: The professional norms of the political class are not only not a substitute for actual values, they are, frequently, actively harmful to the project of liberalism these people claim to be advancing.

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Neal Katyal’s professional project—one that I believe to be sincerely ideological and not simply mercenary—has been to protect corporations from the consequences of harming consumers and workers. Liberals should find that horrifying. If you want to make a fairer society or more equitable economy, Katyal is not your ally, no matter how many good deeds he has done. The professional norms that allow people like Katyal to get a pass on their lucrative private sector work are not actually essential components of our political system; they exist because no one in revolving-door Washington wants to feel bad about how they pay the bills.

The Democratic Party establishment (There is no Democratic Party establishment) is a product of this amoral calculus.

They are subscribing to the philosophy of Ayn Rand crush William Edward Hickman, who said, "What is good for me is right."

William Edward Hickman also  kidnapped a 12 year old girl, ransomed her, and dismembered her, which is pretty much what the Democratic Party establishment (There is no Democratic Party establishment) has done to both the party, and the American people.

^*I love it when I get to go all Dr. McCoy!