Monday, October 10, 2005

lawyers and perspective

Patterico notes that James Dobson has made a claim to some special knowledge about Miers or the nomination. Patterico wants Specter to subpoena Dobson to ask Dobson what he knows. I argued in the comments that this would be an abuse of power, Patterico disagrees. Then Angry Clam, another lawyer agreed with Patterico. And now, Xrlq, yet another lawyer, agrees with those two. All three of these guys are strong on other personal rights such as those embodied in the first and second amendments, but they just don't see a subpoena as a serious form of coercion.

I'm guessing there are two factors here. First, as lawyers, they have to go down to the courthouse all the time. They know how to get there (Xrlq has quite an extensive theory of LA freeways, don't ever ask him about how to get somewhere); they know where to park; they know the procedures for getting in. They are used to being told what to do, where to be, and when to be there by some judge. And they don't have to take time off from their other pursuits to do it, because that is their pursuit.

To those guys it is no big deal. To the rest of us it is an enormous imposition, made even more burdensome by the fact that we are being forced to do it under threat of prison. For Dobson, you can add to that the burden of travelling to another city so that it wastes a minimum of two days of his time.

In addition to not recognizing how much of a burden a subpoena is, I suspect that lawyers become so accustomed to using subpoenas that they lose a sense of the seriousness of threatening people with deadly force. They are like a butcher who kills animals without thought, or a physician who thinks nothing of sticking his fingers up someone's arse. They have lost the proper sense of grossness on this issue.

Yes, butchers, doctors, and lawyers are necessary, but it would still be wrong for a butcher to go around killing animals for no reason or for a physician to start fingering people for kicks. Likewise, a lawyer becomes a problem when he begins to see the coercive power of the law as something to be applied on a whim.

As Dwilkers pointed out in the comments, there is no reason to think that Dobson has anything to say that Congress has any right to subpoena him for. Dobson may have been lying. Rove may have been lying. Rove may have told Dobson something personal about Miers that is none of Congress's business. Or Rove may have told Dobson something serious about Miers that Congress may want to know, but that Congress has no right compelling someone to tell them. Miers does not give up her right to privacy just because she has been nominated to the Supreme Court and Dobson does not give up his right to have a private conversation just because he is talking to Rove.

When I argued that this would have a chilling effect on conversations between people and the Whitehouse, only Clam answered, and the only thing he said is that subpoenas haven't chilled other conversations. But I think he's wrong. The possibility of a subpoena does chill illegal conversations and conversations that may bear on illegal activity. I'll bet "don't tell me about it" is one of the most common phrases uttered by people who like to skate close to the edge of the law. Is that what you want people say when Karl Rove calls them?

Is this in your future?

Karl Rove: Hey, Patterico, the president wants me to call up some bloggers and tell them about our plans to ...

Patterico: Hold it, Mr. Rove. I'd love to get a story, but I'm involved in a critical prosecution right now and I just can't afford the possibility of getting yanked off to Washington to testify. Maybe another time.

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