The Role of the Client: The President’s Role in Government Lawyering

Abstract

Discussions of whether Bush and Clinton administration lawyers have acted ethically have missed a fundamental point about the attorney-client relationship. It is the client—in this case, the government—who is ultimately responsible for making policy decisions, not the attorney. Too often, the question of what is “legal” has been substituted for what should actually be done, especially in the United States, where “legal” and “desirable” have become so intertwined. Governments should consult with attorneys, but should also be prepared to implement whatever policies they believe are “right,” and if necessary to explain any departures from what is “legal” to the pubic, to whom they are ultimately accountable.