I am an attorney by training and by my professional practice of the law for a number of years. Although I am no longer practicing (this blog and motherhood taking up a substantial amount of my time), I do keep my mind in the game by reading a lot of the newer opinions and trying to keep my knowledge of my areas of legal practice up-to-date. That includes keeping up with any changes or proposals for new bar rules or other ethics questions.
As such, I have a dilemma to post to the legal beagles out there — and to the readers at large: say you have two United States Senators, who are not only officials elected to a high office in the legislative branch of our government who are sworn to uphold the Constitution in the performance of their duties, but both men are also attorneys, highly trained — one a former United States Attorney and one still a current JAG attorney.
Now imagine that both of these men have attempted to defraud the highest Court in our nation by staging a bogus colloquy on the floor of the United States Senate after hours so that it could be inserted into the Congressional Record as if others were around for a debate (which they were not). And that said colloquy was staged solely to provide cover for their argument on the legislative history of the particular law in question — in other words, such behavior was designed solely to shore up their argument and for no other reason whatsoever, and only after the fact when it was clear that their argument was headed for failure.
Sen. Jon Kyl of Arizona and Sen. Lindsey Graham of South Carolina ought to be ashamed of themselves. But more than that, they should be facing state bar sanctions, and an ethics investigation in the Senate. Both Kyl and Graham issued a press release after the Hamdan decision came down but, not surprisingly, it has no mention that both of them were fraudulent liars who tried to skew the results in the Supreme Court.
Knowingly filing false information with a court is grounds for disbarment in my state, and I would be very surprised if Arizona and South Carolina didn’t have the same standards — this sort of behavior skews the entire legal process and it cannot be tolerated. Period.
I cannot emphasize enough how much this is NOT done as an attorney, and how it clouds every single thing you ever do from that point forward. No judge, anywhere, is going to believe anything either man ever does or files after this without triple checking it. And when you don’t have your integrity and your honesty as an attorney, you are useless to your clients over the long run.
John Dean has an exceptional article on this entire mess — and everyone should read it. It is appalling. We have been talking quite a bit about the deception that Kyl and Graham tried to pull over on the US Supreme Court in the comments for quite a while now, but after reading Dean’s article (which puts the entire story into context from start to finish with some great links) I am so infuriated that I’ve pulled this issue up to the top of the page.
PS — The next time Hayseed Graham or Jon Kyl are on some talking head show to talk about the "war on terra," the host had better damn well be asking them about this after a federal judge on the US Court of Appeals for the DC Circuit pointedly refused to accept their fraudulent amicus brief in the wake of Hamdan.
UPDATE: Ha. Kyl’s defense to a local newspaper who followed up on this, "everybody does it."
The Supreme Court outed Kyl and Graham last week for their not-ready-for-real-time performance by bringing it up in a footnote in its decision in the landmark case Hamdan v. Rumsfeld.
“Those statements appear to have been inserted in the Congressional Record after the Senate debate,” Justice John Paul Stevens wrote.
The justices frequently turn to the Congressional Record to gauge the intent of lawmakers who drafted the laws in question.
Legal experts said they rarely see senators go to that extent to make the dialogue appear real.
“If it’s done in order to persuade the court that the Senate meant something that maybe it didn’t mean, which I think it was done for, that’s more than trivial,” said Arizona State University law professor Paul Bender, who has argued more than 20 cases before the high court.
U.S. Senate historian Richard Baker told The Washington Post that the actions were unprecedented.
Sounds like things may be heating up a bit for Kyl. Good. Anyone see anything in the SC papers on Graham? Let me know…
UPDATE #2: Even more from the very conservative Arizona Republic newspaper. (Hat tip to reader GWPDA.) Is there no coverage in South Carolina on this whatsoever? I’ve been looking all day and haven’t found anything. If someone finds coverage on this in Graham’s home state, please let me know…