Above The Political Fray

Tensions in Colonial America were high over England's decision to garrison British troops in Boston to enforce the Townshend Acts taxes. On March 5, 1770, the tensions exploded as British soldiers shot into a crowd killing five colonists in what would quickly be called the Boston Massacre. The massacre stood as a rallying cry for colonials and the British soldiers indicted for murder were vilified and despised. There was no one less popular to the press or to the people than these British soldiers. To the shock of many, the most prominent attorney in Boston risked his reputation and career to defend Captain Thomas Preston, the commanding officer for the soldiers the night of the Boston Massacre. Why would this attorney with an eye towards a political future put it all on the line to defend the hated British captain? Why would he risk his career and future representing someone despised by the press? Why would he stand for those who were despised by the intellectuals of the day? In short, his belief in fidelity to the law.

In his closing argument that historians agree earned Captain Preston's acquittal, he stated:

[t]he law, in all vicissitudes of government, fluctuations of the passions, or flights of enthusiasm, will preserve a steady undeviating course; it will not bend to the uncertain wishes, imaginations, and wanton tempers of men. ... On the one hand [the law] is inexorable to the cries and lamentations of the prisoners; on the other it is deaf, deaf as an adder to the clamours of the populace.

He recognized that the law is supposed to be above the political fray and at times it is the duty of an attorney to represent a client and take positions that he finds personally repugnant. Adherence to the law above all else has been the very foundation of the legal profession for centuries. Even today, the Virginia State Bar's Rules on Professional Conduct recognize this responsibility as best explained in a comment to Rule 1.3 providing:

[a] lawyer should pursue a matter on behalf of a client despite opposition, obstruction or personal inconvenience to the lawyer.

It does not portend well for the future of our great nation when attorneys no longer turn a deaf ear to the popular thinking and desires of the day. But that is exactly what Attorney General Mark Herring did when he made the decision to not only refuse to defend Virginia's Marriage Amendment, but to actively argue against it. He succumbed to the temptation to "bend to the uncertain wishes, imaginations, and wanton tempers of men." He chose to pander to his liberal base and media elite to gain a leg up on his competition for the Democratic gubernatorial nomination in four years.

One can learn a lot from history. That attorney who stood for the law even when that position was unpopular and threatened his career went on to great things because his integrity and fidelity to the law meant he could be trusted and relied upon. Even those who disagreed with his decision ultimately respected him for it. He went on to serve in the Continental Congress, to sign the Declaration of Independence, and serve as vice-president and, ultimately, President of the United States. This great statesman was none other than John Adams, who risked his political career to defend Captain Preston because his belief in the law no matter how unpopular was of paramount importance.

We'll see how history treats Attorney General Herring, who has charted a vastly different course from one of our greatest founders.