The excuse most often offered by the Bush Administration for
many of its blatantly illegal acts, including torture, secret detention, extraordinary
rendition, and the use of signing statements to refuse to enforce selected parts
of Congressional legislation, is that these actions were justified as legally
defensible, or simply legally non-controversial, by the Administration’s
attorneys, including John Yoo, Alberto Gonzales, and now-Supreme Court Justice
Samuel Alito, among others. The Administration claims to have merely relied on
the advice of the government’s own lawyers, so how could they possibly be
held liable for criminal legal violations when they were told by government
officials that those actions were in conformance with existing law?
A recent California Supreme Court case, in conjunction with
existing U.S. Supreme Court precedents, points to a powerful jurisprudential
argument for holding government officials legally liable for criminal acts
taken under advice of counsel. In a line of cases beginning with Raley v. Ohio, the High Court recognized that constitutional Due Process required that
citizens not be deprived of a legal defense when they rely on legal advice from
the government. The legal defense goes by the abstruse name of ‘entrapment
by estoppel’. It means that the person would not have done the illegal act
but for the advice they got from government lawyers telling them that action
wasn’t illegal at all. Seems fair. And for private citizens, reasonable
reliance on such advice from government attorneys is, in fact, a valid defense
to prosecution.
The problem crops up when a government official, who has an independent responsibility to discharge his duties with integrity and fidelity, tries to hide behind a government lawyer’s advice. The problem is especially acute when the attorney whose advice was relied upon serves at the pleasure of the official, or officials advised, and worse when that attorney’s duty is to advocate on behalf of the office the defendant holds. This situation was recently addressed by the California Supreme Court this February in People v. Chacon. The Chacon Court recognized the problems inherent in allowing government officials to assert such a defense, and found there can be no affirmative defense of entrapment by estoppel for governmental officials, except perhaps if the lawyers were strictly insulated against any political pressure. As the recent USA firings demonstrate, that would be a rare circumstance indeed where the President of the United States is involved. Perhaps Supreme Court advisory opinions might qualify, but our Supreme Court wisely doesn’t issue advisory opinions. The Chacon situation is exactly analogous to that of President Bush and his cadre of compliant White House lawyers. To allow a defense of entrapment by estoppel in such a case would be antithetical to the strong public policy interest of enforcing conflict of interest statutes, the ethical standards of the legal profession, and would undermine the personal responsibility we demand of our public officials.
Chacon is not U.S. Supreme Court precedent, but it may yet come to pass that our Supreme Court will have to consider the validity of a defense in entrapment by estoppel by Bush Administration officials. Chacon provides a powerful and well-reasoned argument the Court would have to overcome in order to apply such a defense to government officials.
When deciding which paralegal schools might suit your needs in the area of paralegal training then you may want to consider online paralegal training or at least take a look at the pros and cons of an online paralegal certificate and see if it is right for you.