In an episode of Dharma and Greg – don’t blame me, my wife told me about it – the male title character joins the Army Reserve, to his free-spirited wife’s dismay. When she shares her fear that he will die in combat, he notes that he joined as a Reserve Judge Advocate officer, and as much as America may thrill to the idea of a suicide squad of lawyers, that isn’t a likely outcome. The joke (from what I can tell, one of the few in that show) works on a number of levels, not least of which being that lawyers don’t change the world. While a hard thing for idealistic law students to accept, with maturity and wisdom, a lawyer realizes that as a lawyer, he does not actually add value to the world. His clients act and cause and change and shape. He aids them, he provides guidance, he defends them or advances their causes in court, he sits in their place or with them in negotiations, but the substantive decisions always belong to the client, not the lawyer.

The Democratic Party is declaring war on the practice of law, and in so doing, threatening the social compact that has held together our Republic for over two centuries. I don’t think they remotely understand the forces they are unleashing. I fear they don’t care.

In the last few days, Congressman Jerrold Nadler – always a staunch believer in clearly demarcated lines of politics – has advocated impeaching Judge Jay Bybee for a memorandum Judge Bybee wrote before he reached the Federal bench, when he was an attorney advising the Bush Administration on whether proposed interrogation techniques would be considered torture under U.S. law. (The American Civil Liberties Union kindly hosts that memo and the other “torture memos” on its own pages. I wholeheartedly encourage everyone to download them and read them.) For those of you not following at home, a United States Congressman – who, incidentally, graduated from law school – recommended impeaching a Federal judge for performing research and writing in his capacity as a lawyer for the Executive Branch before he became a judge; or if you prefer, for doing precisely the same thing lawyers across the country are doing for clients private and public as we speak, before he ever took his oath of office.

This is unusually stupid, as Article III makes clear that Federal judges hold their offices during “good behavior.” The consensus is that generally, this means Federal judges receive lifetime appointments so long as they do not commit “treason, bribery, or other high crimes and misdemeanors” – the bases for impeachment and conviction under Article II — while in office.

This is a list of the impeachments undertaken in the history of the Republic. Through the course of two centuries, through different positions – elected and appointed – there is a common thread: Each of those impeachments was undertaken for acts done while in the office susceptible to impeachment. Congressman Hastings was not impeached for memoranda he wrote as a private lawyer; he was impeached and convicted for bribery and perjury while sitting on the bench. Presidents Nixon and Clinton were impeached (well, Nixon resigned first) for acts undertaken after they’d taken their oaths of office.

I think we can therefore treat Congressman Nadler’s procedural suggestion with significantly less gravitas than the weightiness to which we are accustomed from that august defender of a non-politicized rule of law. The real problem is that he is suggesting that the act of analyzing proposed acts in light of prevailing legal authority, at his client’s request, is a high crime or misdemeanor.

One Congressman does not a movement make. Of course, if you add a sitting Democratic Senator (who also graduated from law school and practiced law), you have the outlines of such a movement. And if you add the direction of the President — the Democrat holding the highest elected office in the land — to his attorney general, you have a movement, one that threatens not only the practice of law, but also the compact that American politicians would not use the levers of official power against each other, a compact vital to the maintenance of the Republic.

Before we go any farther, it might be a good idea to gaze into the horrors so profound that President Obama felt it vital to share them with America, for the good of its soul. Behold some of the raw evil on display in Bybee’s own writing:

Section 2340A makes it a criminal offense for any person “outside the United States [to] commit[] or attempt[] to commit torture.” Section 2340(1) defines torture as:

an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody of physical control.

18 U.S.C. § 2340(1). … You have asked us to assume that Zubayadah is being held outside the United States, Zubayadah is within U.S. custody, and interrogators are acting under the color of law. At issue is whether the last two elements would be met by the use of the proposed procedures, namely, whether those using these procedures would have the requisite mental state and whether these procedures would inflict severe pain or suffering within the meaning of the statute. …

Even when all of these methods are considered combined in an overall course of conduct, they still would not inflict severe physical pain or suffering [as we interpret the statutes earlier in the memorandum]. As discussed above, a number of these acts result in no physical pain, others produce only physical discomfort. You have indicated that these acts will not be used with substantial repetition, so that there is no possibility that severe physical pain could arise from such repetition. Accordingly, we conclude that these acts neither separately nor as part of a course of conduct would inflict severe physical pain or suffering within the meaning of the statute.

Try not to quail in terror tonight as you reflect on those words. This is a classic IRAC — Issue, Rule, Analysis, Conclusion — a tool for legal analysis every American law student learns by heart, a tool we all use daily in writing memoranda for our clients. It is this sort of depravity – practiced by corporate attorneys, real estate lawyers, litigators, government lawyers, public defenders, prosecutors, U.S. attorneys, and in-house counsel, among others – that the President believes may be indictable by his Attorney General.

Whether out of political timidity – from President Obama, perish the thought – or as a result of his own, apparently highly uncertain, deeply-held belief that he arrived at sometime early this week, the President and head of the Democratic Party has explicitly authorized his Attorney General to indict a handful of men for providing good-faith legal opinions. (That this movement is clearly an attempt to strike at the Administration’s Republican predecessor is clear from the White House’s decision to redact praise for the subject memos from a memo from the National Intelligence Director the White House released last week.) Whether those opinions are objectively correct or not is not the point; political bloviating notwithstanding, they are merely legal guidance for actors whom the political branch has already refused to prosecute. Lawyers advise. Clients act. But here, the clients go free, and the lawyers face jail.

What lawyer would ever advise his client on whether the client’s proposed action is legal, given that the act of giving advice itself might be criminal? What environmental lawyer will ever advise his client to build or design in such a way that any Environmental Protection Agency, ever, might find amiss? Which lawyer will outline the legality of a merger between two market actors when there’s a possibility that the new entity might conceivably run afoul of the antitrust statutes? What lawyer will give an opinion when the attorney-client relationship is turned from a shield into a sword aimed at the lawyer’s liberty?

As never before in my lifetime, or indeed, arguably in the history of our nation, the practice of law is under a direct assault from the political branches. I ask again: Where is the American Bar Association? The core function of a lawyer is under attack. Some might say it’s too soon for there to be an ABA position. That would be fatuous nonsense. In mid-April of 2005, responding to Tom DeLay’s and Tom Coburn’s criticism of the judiciary in early April of 2005, the President of the American Bar Association gave a speech excorciating “the draconian stance against the judiciary by some of this country’s lawmakers.” So, less than two weeks after off-hand remarks by a handful of Congressmen, the ABA had a position. We’re now almost a month into this insanity that began with a Spanish judge and now continues with American officials, and still nothing.

The inescapable conclusion is that the ABA does not care about the practice of law, when it is being practiced by Republicans, or at the very least, Bush appointees. All of that Sturm und Drang over the “attacks” on the judiciary — a political entity, a co-equal branch of the government fully capable of defending itself from remarks by a Houston-area Congressman, as any number of suddenly defensive judges mentioned at the time – is absent when attorneys face indictment by the Executive Branch of the United States government for performing research and writing at the request of their client.

The implications of this movement go beyond the practice of law. In the spirit of good faith, I simply presume no one has yet bothered to think this through. Let me help bring home the implications here for everyone involved.

Ladies and gentlemen, meet Barack Obama. Barack was a lawyer in private practice whose clients allegedly included the Association of Community Organizations for Reform Now (”ACORN”). I say “allegedly” because Barack has been less than forthcoming about his past representations, almost as if he’s afraid of something. Anyway, ACORN, as you may have heard in the last few months, has run into rounds of legal trouble over something called “voter fraud,” which, as you may guess, is a crime — a felony, in fact. Through a combination of stick-to-it-iveness and good luck, Barack recently scored himself a position that is subject to impeachment for “high Crimes and Misdemeanors” under the United States Constitution. If Barack wrote legal memoranda concluding that something we now believe to be illegal was legal for ACORN or any other client, it would appear that President Obama — who’s apparently no relation – and Congressman Nadler have just called for the House Judiciary Committee to craft Articles of Impeachment against Barack.

This is Russ Feingold. Russ was an attorney at Foley & Lardner, a well-respected national law firm, for about eight years before entering public office. Foley & Lardner has an extensive published list of clients, some of whom were undoubtedly clients of the firm back when Russ was employed there. How many of those have been indicted for criminal activity? How much of that criminal activity was cleared by lawyers first?

This is Kirsten Gillibrand. She was an attorney at Davis Polk & Wardwell, whose role in helping tobacco companies engage in behavior we now believe to be illegal – including allegations that she gave specific advice to those companies to help them thwart liability for their actions – has recently come under intense scrutiny.

This is Hillary Clinton. Mrs. Clinton was once an associate and partner at a boutique firm in Little Rock, Arkansas, that counted among its clients a whole host of multinational corporations who are and have been indicted for a host of legal violations by State and Federal authorities. By all accounts, Mrs. Clinton was a talented associate and partner at the Rose Law Firm, who was much in demand by the firm’s most elite clients. Presumably, she did not simply bake them bread and cookies.

Let me bring it home a different way. In the last three months, a staff attorney or appointee or leftover attorney in any number of Executive Branch positions wrote a memorandum ultimately for the President that began like this: You have indicated that the United States government intends to continue a bombing campaign in Northwest Pakistan, in areas where differentiating between high-value al-Qaeda targets and ordinary civilians is very close to impossible. You have indicated that the United States will find it virtually impossible to minimize collateral damage and death. You have indicated that there is a real security interest for the United States in continuing this bombing. After reviewing the case law, statutes, and treaties, we conclude that the United States may continue this bombing campaign… Whoever wrote that memorandum should not be sleeping soundly tonight.

What lawyer in his right mind would volunteer for Executive Branch service? The next Administration may just be a Republican one. Control of Congress may just shift to the GOP. Then it’s just inside the range of likelihood that the Democrats may retake one or both branches. After that, it’s a matter of time until the memos are leaked and the indictments come down.

Moreover, so many actors in our government are, alas, lawyers, that if the mere act of providing a legal opinion is now a crime, their political opponents not only can, but will turn the mechanism of justice into a political weapon. This is human nature. It is how Republics fall. It is not even the end-point of the slippery slope, but rather the first step down it.

This cannot stand. It must not. Every lawyer and everyone who might someday care if there is a legal system should stand against it. If we value the practice of law; if we value lawyers providing their clients candid advice; if we value a Republic where a change in government does not definitionally end in jail time for the prior officeholders; if we value a rule of law that is not a political weapon, it must end now.