You Should Go to Jail Then

Robert Mueller doesn’t like defending the guilty.

Mueller, now 73, began his Department of Justice career in 1976 as an assistant US attorney in San Francisco, and during the decades that followed took only two breaks to try out the private sector, each lasting no more than a couple of years.  The stints were so short-lived because of a simple fact, according to Graff: Mueller couldn’t stand defending those he felt were guilty.  “He’ll meet with the client, they’ll explain the problem and he’ll say ‘Well, it sounds like you should go to jail then,'” Graff said. “There is not a lot of gray in Bob Mueller’s worldview.”

I think that this is a legitimate perspective.  People have an obligation not to work for bad causes.  You should not help people lie, cheat, and steal.  This concept even appears in our criminal law.  Accessories are persons who, knowing a crime has been committed, help the criminal get away with the crime.  The assistance to the criminal may be of any type, including emotional or financial assistance as well as physical assistance or concealment.  Obviously, the law provides an exception for a defense lawyer.  After all, when a defense lawyer exonerates an innocent person, we all benefit.  It’s hard to understate the good done by a defense lawyer in that situation.  But what good does a defense lawyer do when they try to exonerate the guilty?  Isn’t she just as immoral as an accessory without a law degree?

What if, through the skill of a lawyer, a guilty man goes free?  That is wrong.  And in that situation, the lawyer shares culpability with his client.  Take it a step further: what if the guilty client who has just been acquitted goes out and reoffends?  Isn’t the lawyer responsible for that as well?  What would the lawyer say to her client’s new victim?

I don’t think it’s necessary about having a moral compass or not having a moral compass. Defending criminal defendants, even ones that you are sure are guilty, is an important part of the system and integral to holding the government accountable.

This has the patina of reasonableness.  After all, who would want an unaccountable government?  But what exactly does that mean?  Does the government need to be “held accountable” when they have charged your guilty client and are seeking to convict him?  It’s one thing if the government is asking for an unfair punishment.  In that situation there’s nothing wrong with negotiating for a better one.  Sometimes prosecutors overcharge defendants.  There’s nothing wrong with fighting to narrow the charges.  But I’ve never been able to shake the feeling that trying to completely exonerate a guilty client is immoral.  And it seems like Robert Mueller agrees with me.

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