Your note looks at the Article I issue about the appointment and authority of inferior judicial officers and administrative judges. But there is a separate Article II problem, one resting in the lawyer’s Code of Professional Conduct. (I know this is honored in the breach than in the observance, but still . . . and it forms a serious issu…
Your note looks at the Article I issue about the appointment and authority of inferior judicial officers and administrative judges. But there is a separate Article II problem, one resting in the lawyer’s Code of Professional Conduct. (I know this is honored in the breach than in the observance, but still . . . and it forms a serious issue that Trump could raise).
A search warrant issued on an ex parte basis. Lawyers generally have no obligation to disclose adverse facts or law; the DoJ’s duty to “seek justice” is less than a fig leaf over a venereal disease outbreak. But when application is made without opposition, the ethical rules read that unfavorable material and adverse law must be submitted to the tribunal. Remember for instance the hullabaloo over whether Carter Page’s background was sufficiently disclosed in a footnote to a FISA application — that was part of the deal.
A case can be made for disqualifying all counsel who dealt with the SW for professional disciplinary violations. No sane person expects any such results, but the shadow of SCOTUS in the background will concentrate the minds of lawyers as well as the judges. And an order to unseal all material showing how the DoJ informed the magistrate about adverse legal authority would bring attention to the cancer at the heart of the system.
Pace Andy McCarthy, perhaps we should Defind the DoJ.
Excellent point. Others have weighed in on the duty to disclose all relevant facts, including those that work against, but I like your emphasis on doing justice and the ethical obligations.
Your note looks at the Article I issue about the appointment and authority of inferior judicial officers and administrative judges. But there is a separate Article II problem, one resting in the lawyer’s Code of Professional Conduct. (I know this is honored in the breach than in the observance, but still . . . and it forms a serious issue that Trump could raise).
A search warrant issued on an ex parte basis. Lawyers generally have no obligation to disclose adverse facts or law; the DoJ’s duty to “seek justice” is less than a fig leaf over a venereal disease outbreak. But when application is made without opposition, the ethical rules read that unfavorable material and adverse law must be submitted to the tribunal. Remember for instance the hullabaloo over whether Carter Page’s background was sufficiently disclosed in a footnote to a FISA application — that was part of the deal.
A case can be made for disqualifying all counsel who dealt with the SW for professional disciplinary violations. No sane person expects any such results, but the shadow of SCOTUS in the background will concentrate the minds of lawyers as well as the judges. And an order to unseal all material showing how the DoJ informed the magistrate about adverse legal authority would bring attention to the cancer at the heart of the system.
Pace Andy McCarthy, perhaps we should Defind the DoJ.
Excellent point. Others have weighed in on the duty to disclose all relevant facts, including those that work against, but I like your emphasis on doing justice and the ethical obligations.