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Stark challenges in ethical choices

The White House. Public domain image.

By Tom Gallagher

As I prepare to teach the first class of my ethics course at UNLV Boyd Law School for the spring semester, I am struck by a number of coincidences. The day, 1/21/2020, will mark a milestone of 50 years as a lawyer after being admitted to practice in California in January 1970. It is also the date of the commencement of the impeachment trial of President Donald Trump, a man I have known for 32 years since I first went head to head with him for seven months in 1988 as Merv Griffin’s lawyer in the fight for control of Resorts International in Atlantic City.

But that is only the beginning of the coincidences. Trump’s two major lawyers are Ken Starr and Alan Dershowitz, both of whom I have also known for the same period of time. Dershowitz taught criminal law at Harvard Law School when I began my three years there in 1966. And Starr was clerking for the Supreme Court in 1971 when I served as chief counsel for Sen. John Tunney (D-CA) and handled Judiciary Committee work for Tunney as a member of that committee. After completing his clerkship, Starr later joined the same law firm, Gibson Dunn and Crutcher, that I had joined in 1969 following Law School. We became friends and colleagues.

More coincidences – the man who had most encouraged me to join Tunney as his counsel was William French Smith, a senior partner in the firm who would later serve as Ronald Reagan’s attorney general. Even though he was considered a hardline Republican conservative (then serving as chairman of the California Board of Regents), and I was firmly a Democrat, he encouraged me to join Tunney: “There is no greater service than public service,” he told me.

When Smith later joined Reagan in Washington, he brought with him Ted Olson, another Gibson Dunn lawyer and a friend and mentor to me at the firm, as the assistant attorney general for the Office of Legal Counsel. Olson subsequently became solicitor general in the George W. Bush administration, after serving as Bush’s lawyer in Bush v. Gore that put Bush in the White House. Unlike Starr, and notwithstanding Olson’s deep Republican (and Federalist Society ties), he had the sense to turn down Trump’s request to act as his lawyer. And finally, in one of life’s unimaginable tragedies, while serving as solicitor general in 2001, Ted’s wife, Barbara, was killed on 9/11 in the plane that crashed into the Pentagon.

All of which makes the coincidence of the date of my semester’s first class tomorrow with the commencement of the impeachment trial seem striking.

How can you teach ethics in any context without dealing with the ethical challenges that confront each participant in the trial?  What are the ethical obligations of senators who serve as jurors? What are the ethical obligations of a lawyer representing the president of the United States or those acting as his prosecutors? Can a lawyer make fundamentally contradictory legal arguments based purely on the identity of his or her client? And how do you begin to address such issues without falling into the chasm of tribal polarization that now prevails in our public discourse?

In trying to approach this, I have looked back at the roads I have traveled. Although I vehemently disagreed with Bill Smith on many partisan issues, I will never forget his deeply felt belief in public service. Similarly, although Ted and I disagreed on Bush, his later advocacy and victory in the gay marriage case in the Supreme Court confirmed my respect for his sense of duty.

And two years as Sen. Tunney’s chief counsel left me with enormous respect for his own innate sense of values. Early in his term, Sen. Phil Hart, another friend and mentor to both of us (and known as the “conscience” of the Senate), introduced an amendment to a bill on the floor dealing with handguns.  As we walked onto the Senate floor, Tunney turned to me and said: “Phil is only going to get seven votes on this amendment, but I’m going to be one of them.” He knew it would cost him politically and feed the meme that he was “the lightweight son of a heavy-weight father (Gene Tunney)”.

So, what do I say to my students as we open the course? “Watch closely what each player says and does in this trial. There will be no better illustrations of the ethical challenges and choices you may confront in your own lives. And ultimately the consequences of those choices.”

Tom Gallagher , a former partner in the firm of Gibson Dunn and Crutcher and later chief counsel to U.S. Sen. John Tunney , became CEO of Park Place Entertainment, the gaming spinoff of Hilton Hotels, in 2000. Gallagher now teaches at Boyd Law School. He is also a donor to The Nevada Independent. View all our donors here.

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