Reflections on Criminal Punishment and Disbarment in the Aftermath of Watergate

"I have expressed to the appropriate authorities my view that no individual holding, in the past or present, a position of major importance in the Administration should be given immunity from prosecution." —Richard M. Nixon, April 17, 1973

With the resignation of former President Richard M. Nixon in the wake of his admission of early complicity in the Watergate coverup, much debate has arisen as to whether Mr. Nixon should be criminally prosecuted or disbarred, or whether he has already been punished enough by becoming the first American President to resign.

At its annual convention in August, the American Bar Association House of Delegates unanimously adopted a carefully worded resolution opposing leniency for high offenders—without mentioning Mr. Nixon by name. Meanwhile, the bars of New York and California have each begun preliminary investigations to determine whether Mr. Nixon should be banned from practicing law again.

With respect to the question of criminal prosecution, it seems clear from his own admission that Mr. Nixon is guilty of the federal crime of obstruction of justice, aside from other evidence of criminal wrongdoing. Although the issue has been the subject of heated controversy, we can see no reason why a criminal should not be prosecuted merely because he has resided in the White House for several years. Because he was President is not an argument for immunity, but for prosecution, to show that no person who commits a crime—not even a former President—should be above the law. The principle of equal justice requires that all the Watergate defendants be prosecuted if the evidence warrants, without singling out the principal co-conspirator for immunization. From the standpoints of general deterrence and retribution, the purpose of criminal punishment would be appropriately served by the Watergate special prosecutor proceeding against Mr. Nixon.

Although the debate centers largely around the question of criminal prosecution, we consider the meaningful question to be whether Mr. Nixon should be disbarred. We strongly urge that Mr. Nixon not be disbarred, and we go on record as opposing the disbarment of other lawyers directly involved in the Watergate affair including those already disbarred, John W. Dean III and G. Gordon Liddy, and those who still face possible disbarment: John D. Erlichman, John Mitchell, et al.

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"The right to make a living is among the greatest of human rights.…" —Georgia Supreme Court (1925)

"[O]n the theory that an attorney has a vested property right in maintaining a practice already established,…'To disbar an attorney is to deprive him of what, within the meaning of our constitutions of government, may fairly be regarded as property.'" —California Supreme Court (1966)

"It would be giving too dangerous a power to governments were they allowed to exclude anyone from professions…for alleged deficiency of qualifications.…" —John Stuart Mill, ON LIBERTY

The issue of disciplining lawyers by disbarment has gained national focus with the number of lawyers involved in Watergate and with the recent disbarment of former Vice-President Spiro Agnew after his pleading "no contest" to a change of income tax evasion.

The rationale behind disbarment of attorneys is founded on the notion that membership in the bar is a privilege conferred by the state and one which is open only to those who have and maintain good professional and private character, and that the public must be protected from attorneys whose conduct demonstrates unfitness to practice. Disbarment is claimed not to be a form of punishment, but a necessary means of regulating the bar in the "public interest."

In pursuit of this goal, lawyers have been permanently barred from the practice of law for acts such as violating the prohibition laws (a 1926 Kansas case said that having a single bottle of liquor on an attorney's kitchen shelf was sufficient to show moral turpitude), evasion of income taxes (Spiro Agnew was not the first to be disbarred on this ground), regularly putting slugs into parking meters (an unusual 1951 Maryland case), actively participating in the work of an "Anticonscription League" which had the aim of opposing the Selective Service Act during World War I (Idaho Supreme Court, 1921), and advising men seeking to escape military service during World War I and refusing to represent individuals not claiming a draft exemption (Washington Supreme Court, 1920).

In deriving positive lessons from Watergate, it is appropriate to reexamine widely-held assumptions about the power of government over the individual. The Watergate scandal has provided the public with a deeper insight into the weaknesses and limitations of government, thus helping to demythologize the workings of government and government officials.

It is a hallmark of an authoritarian system to treat transactions between individuals as transactions between the individual and the state—so that private wrongs are translated into public crimes, and an injury is not treated as committed by one person against another, but by the person against the state itself. Similarly, the authoritarian system uses the coercive powers of the state to determine what occupation individuals may pursue and what prices they may charge for their services. Unfortunately, this approach has not been confined to Communist countries, but is inherent in the vast, widespread use of occupational licensing. As shown by Walter Gellhorn in his valuable book, Individual Freedom and Governmental Restraints, the thrust of occupational licensing is towards "attaching legal consequences to essentially private determinations of what are ethically or economically permissible practices," in addition to decreasing competition by restricting access to the occupation.

Necessarily involved in the grant of exclusive privileges to a licensed occupation is the power to exclude the unlicensed from their exercise. Even though an accountant may know more about tax law than many lawyers, the government allows prosecution of accountants (and other nonlawyers such as trust officers, labor relations advisers, etc.) for offering services which are deemed to constitute the practice of law. The Wisconsin Supreme Court boldly declared in a 1962 case: "We need not and we should not acknowledge a layman's right to practice law in a specialized field because the layman appears to be competent in it."

Instead of licensing, we advocate the use of certification, which may be handled by private, voluntary associations, such as professional or consumer organizations. If membership in a particular bar association is meaningful in terms of the competence and moral character of its members, consumers will patronize nonmembers at their peril. A voluntary bar association can set whatever standards it desires for membership. But let the public decide for itself if it is willing to patronize an attorney who may have been guilty of drinking during prohibition, or evading his income taxes, and because of that is not a member of a particular bar association.

Certification is distinct from licensing, because it would not restrict anyone from practicing without a certificate. Under a system of certification, it is up to individual consumers to choose whether to use the services of a practitioner who is certified, or one who is not. This is the system which is used in many states in the field of accountancy, where anyone can be an accountant, but only those who pass a particular examination can hold themselves out as a Certified Public Accountant (C.P.A.).

We believe that the power of the state to license occupations and restrict individuals from earning a living as they choose is both wrong and counterproductive. It violates a fundamental human right, and operates primarily to benefit members of a licensed occupation at the expense of excluding potential competitors (including significant numbers of blacks and other minority groups), resulting in higher fees for those who are licensed.

In a discussion of occupational licensing in Capitalism and Freedom, Milton Friedman persuasively demonstrates how assurances of quality can emerge in the absence of licensing, and how, in the case of medical practice, licensure has reduced both the quantity and quality of medical service. The current attempts to prohibit the practice of acupuncture by nondoctors illustrate the means used to restrict individuals from obtaining treatment they desire from practitioners of their choice.

Is there any justification for government control over an individual's economic activities? Perhaps the primary argument for licensing is the paternalistic claim that individuals are incapable of satisfactorily selecting their own lawyer, physician or barber. But if this were true, how can we trust individuals to select their elected representatives? Considering the workings of the market place as contrasted with the political process, it is clear that consumers are much more capable of spending their money for products or services they desire than they are able to go to the polls to vote for a politician who will perform satisfactorily.

We can see a case being made for prohibiting politicians from holding elective office if they lie or otherwise show they are not morally fit to hold office. It makes sense to advocate that individuals (lawyers or otherwise) who infringe the rights of others or show a want of integrity should be barred from running for public office, to help assure that government officials—who feed at the public trough—possess the virtues of truth, candor, honesty and respect for individual rights. But in contrast to officials whose salaries are derived from public taxation, we believe that fallen politicians, including Mr. Nixon and Mr. Agnew—while they should be held accountable for their crimes—should be allowed to practice law or any other livelihood they choose so long as they are able to find clients voluntarily willing to pay them for their services. After all, why should a lawyer have to pay a higher price—by forfeiting his profession—than a nonlawyer who commits the same crime? To disbar Mr. Nixon ought to be prohibited as an unconstitutional deprivation of his property without due process of law, and should be barred by the constitutional proscriptions against double jeopardy (were disbarment to follow prosecution) and cruel and unusual punishment—but, unfortunately, these constitutional arguments carry little weight today. In a free society, we should insist on protecting the fundamental freedom to choose one's livelihood—even for ex-politicians.