Let me suggest that you cannot really understand the disputes in the U.S. Department of Justice over the recusal of Matthew Whitaker or William Barr on issues relating to Robert Mueller’s investigation without parsing three variants of “ethical language” that are in play. People are talking past one another on this topic, and in this post I will try to pull apart these differences.

In an earlier post I detailed the differences in “ethical language” between the concepts of legality versus morality. Let me add a third “language” that has come into the picture in the DOJ/Mueller issues, and that is the language of professional ethics. I find the Venn diagram below to be helpful in talking about the differences.

The circles represent not whether something is illegal or immoral, rather what kind of language we use in describing these different “spheres” of ethics. The top two circles are relatively easy to differentiate. If you get a speeding ticket for five miles per hour over the speed limit, your “wrong” is completely defined by the larger part of the blue “Legality language” circle above, the language of “Is my action legal?” None but the most fanatically religious people would see your traffic ticket as a “moral failing.” Driving 20 miles per hour over the speed limit in a school zone, however, would push your offense across the red line into the overlapped “language” of “Am I acting morally?” Reckless driving has both legal and moral ramifications.

Likewise, most telling of intentional untruths, for instance lying about your whereabouts last night to your spouse, is a moral offense in most cultures, residing conceptually in the larger portion of the red “Morality language” circle. Your lie has not broken any law. However, if you start lying about money, you are now working your way across the blue line into the “Legality language” overlap, an offense we call “fraud.”

People do confuse these two spheres of ethics all the time, in such statements as, “If my action is not illegal, then it I should be able to do it,” or “If it is immoral, then there ought to be a law against it.” Legality and morality are two very different things that happen to overlap on occasion (see that earlier post to understand more about why).

Adding the “Professional ethics” circle

Law, accounting and medicine are three professions that have learned over the centuries that a third category of ethical language is required in order to address some natural conflicts of interest in their practices outside of the legal and moral languages. I first entered into the formal study of ethics after watching my fellow Certified Public Accountants nearly drive their profession off a cliff in the wake of the Savings and Loan scandals of the mid-1980s. [1]

In the years leading up to the collapse of that segment of the banking business, auditing firms had become far too “cozy” with many of their S&L clients. The natural conflict of auditors is that they are paid by the company for which they are supposed to render an “independent” opinion as to the condition of their accounts and viability as a business (which in this case was not good). If they act too aggressively, the firm will use a different auditor the next year. And yet, investors, customers and employees depend on that audit to be “independent” and unbiased. If a CPA has a conflict of interest and is not truly independent, then that system of trust goes out the window, and the profession becomes irrelevant.

Before I received my CPA certification, I was required to pass an additional state-administered test on the subject of professional ethics for CPAs. The “Professional Ethics language” of accountants has a long history going back to the Franciscan friar Luca Pacioli, who articulated the practice of double-entry bookkeeping in 1494. In his treatise, he stated that the books of account should be attested by writing on them the pledge, “a sui laude et gloria” (“for the praise and glory of God”). [2]

Lawyers and the language of professional ethics

And what about lawyers? They are basically certified “officers of the court” who are tasked with being fair advocates for their clients in matters coming before the courts. Even if their client is “as guilty as sin,” their role is to make sure that the client is availed of all appropriate fairness in matters of justice before the court. The American Bar Association has established “Model Rules of Professional Conduct” that prescribe how attorneys are to implement that fairness without prejudice for their own clients. The most extreme penalty for violating these rules is disbarment.

For the lawyers working on the side of the prosecution, there is a corresponding professional duty to see that “justice is served” while at the same time respecting as much as possible the constitutional rights of that person under prosecution. Both attorneys for the defense (Section 3.6) as well as for the prosecution (Section 3.8) are warned against making “extrajudicial statements” in the media that can prejudice a case:

“(a) A lawyer who is participating or has participated in the investigation or litigation of a matter shall not make an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.”

This is why Robert Mueller has been remarkably silent in his role as Special Counsel investigating the election fraud issues surrounding the President. And it appears pretty clear to me that the appointments of both Matthew Whitaker (as acting head) and William Barr to head the Department of Justice run headlong into the above provision. Both were publicly vocal, without knowledge of any of the classified evidence uncovered by Mr. Mueller, in their opposition to this investigation. They clearly should recuse themselves from any matters relating to Mr. Mueller’s investigations. They have, in my reading, clearly placed themselves inside the green circle above, where the relevant “Professional Ethics language” of their profession has called them out for their actions.

The position of the Department of Justice as part of the Executive Branch of the government presents a gigantic conflict of interest whenever there is possible wrongdoing within the Executive Branch itself or with its officeholders, especially the President himself. In the George W. Bush administration, the Department of Justice found itself deeply entangled in the “enhanced interrogation techniques” controversy relating to conduct authorized by the President and Vice President in Afghanistan and Iraq. The stain remains, especially with the Guantanamo Bay detention facility still open and holding prisoners extra-judicially over a decade later. Had this natural conflict of interest been properly handled at the time, it is likely a lot of nasty business could have been prevented.

On one hand the Department of Justice is required to fairly investigate and charge credible crimes against the laws of the United States through Constitutional processes. On the other hand, as Bob Dylan wrote, “Even the president of the United States sometimes must have to stand naked!” [3] Bob, we are again at that point.

An old clip of Bob Dylan is worth viewing here:

Notes:

1. For more about the Savings and Loan crisis of the 1980s, see this post. Many CPAs and their professional partnerships were punished severely for their actions in failing to call out excessive risks taken by S&Ls. The larger financial community did not learn the lesson, however, which directly led to the even larger 2008 real estate mortgage market collapse.
2. Weis, William L., and David E. Tinius. “Luca Pacioli: Accounting’s Renaissance Man.” Cengage Learning, July 1991.
3. From the song “It’s Alright, Ma (I’m Only Bleeding).”