Balkinization  

Wednesday, November 14, 2007

What's the OPR Investigation About, Anyway?

Marty Lederman

You may have read that the Department of Justice's Office of Responsibility has now been cleared to conduct an investigation of the role of Department attorneys in relation to the NSA domestic wiretapping program(s).

The letter from House members that triggered the investigation asked OPR to investigate a bunch of factual, historical questions about how the program was instituted, justified and changed. It's not clear to me, however, that such an investigation is within OPR's legal mandate.

According to a DOJ spokesperson, the OPR investigation will instead focus on two questions: whether DOJ attorneys "adher[ed] to their duty of candor to the court [presumably the FISA Court]"; and whether those attorneys "complied with their ethical obligations of providing competent legal advice to their client." (NOTE: "Officials said it was unlikely that either of the inquiries would address directly the question of the legality of the N.S.A. program itself : whether eavesdropping on American soil without court warrants violated the Foreign Intelligence Surveillance Act.")

Now, it's not at all clear to me exactly what "ethical obligations" are pertinent to, for example, OLC lawyers who are providing advice to the President in furtherance of his constitutional obligation to faithfully execute the law. Such lawyers have a very different sort of relationship with their client -- and their client has a very different sort of function -- than in the prototypical case of a private lawyer giving advice to a private client who wishes to avoid legal liability. Personally, I'd say that OLC's obligations are in some respects more demanding than those required by ordinary ethics rules -- but in any event, they're different; and my inclination is to say that ordinary ethics rules therefore don't really capture what is at stake here.

Moreover, what would it mean to conclude, for example, that John Yoo's legal advice on the NSA matter -- apparently that the President has an article II authority to disregard FISA -- breached an ethical obligation to his client (the President) because it was not "competent"? After all, unlike a private client, the President himself is the ultimate arbiter within the Executive branch of what is lawful and what is not -- it's his obligation to faithfully execute the law. OLC is "merely" helping him to do so. In this case, by all accounts, OLC acted exactly as the President expected it to do -- that is, not to identify the best or most orthodox, or most likely to be accepted, legal conclusions, but instead to push the envelope and to come up with any idiosyncratic legal analysis that would permit the President to engage in his desired course of conduct, as long as that analysis was not completely preposterous. (I've written about this here.) And even when confronted with numerous DOJ lawyers (Ashcroft, Comey, Goldsmith, Philbin, etc.) who told the President that Yoo's advice was unsustainable, the President concluded that Yoo was right and that the other DOJ lawyers were wrong. (He finally relented to some extent, reportedly, when they all threatened to resign, and eventually approved a somewhat modified program approved by Jack Goldsmith on a narrower legal theory. But we have no reason to think that the President does not continue to agree with the Yoo/Addington view of Article II.)

Thus, since John Yoo apparently was doing exactly what his client asked him to do, it is difficult for me to see how he could be said to have provided "incompetent" legal advice or to have breached a duty to a client who understood, and approved, exactly what the lawyers were doing. In other words, as Professor William Simon notes at the outset of a currently controversial article, this is one of those cases in which "lawyers gave
clients bad legal advice because the clients wanted it. . . . [T]he clients seemed happy to get the bad advice . . . because the advice made it easier for them to do things they wanted to do." This may be wrong -- it may even be unethical. But it is odd to suggest, I think, that it's wrong because it has breached a duty to the client to provide "competent" legal advice. (In the ordinary private setting, giving unorthodox legal advice to one's client ordinarily does constitute a lack of competence, and a breach of duty, especially if the client is not informed that the advice is idiosyncratic, because if the client acts on it, she will be placed in legal jeopardy. OLC advice to the President simply doesn't fit cleanly with this model, since the President is himself the chief law-enforcement officer.)

Unless.

Unless OLC actually has some obligation not to do what Bush asked it to do -- not to push the envelope and go right up to the line, but instead to provide the best possible, objectively accurate and fair, legal advice to the President. And, I would suggest, that is the case only if the President's own constitutional obligation requires him to try to ascertain, and execute, the "best" reading of the law. I think there is a case to be made for such a constitutional obligation. But it's not clear to me how helpful ordinary ethics rules are in examining that question. (I welcome my colleague and co-blogger David Luban to weigh in here.)

All of which is to say that I think it's a fairly interesting and difficult question what legal standards OPR should apply when assessing OLC's conduct. If OPR sees its role as simply second-guessing OLC's judgment on what it means to "faithfully execute the law," I'm not sure what useful purpose OPR would be serving. (Is there any reason to think that OPR's view on that should be preferred to OLC's?) On the other hand, OPR's report is conveyed to the Attorney General -- and of course ultimately it is for AG Mukasey (and the President) to decide what the proper standards for OLC advice are; so perhaps having OPR's views would be helpful.

For what it's worth, here's OPR's "analytical framework."

P.S. I should add that OPR might uncover information that demonstrates distinct ethical or other legal lapses -- such as a smoking gun showing that John Yoo and OLC did not really believe the advice they were giving; or evidence that OLC intentionally declined to seek the legal views of others within the Department because it knew that such views would undermine the office's desired conclusions; or evidence that DOJ and others provided fraudulent misrepresentations to telecoomunications providers in order to induce their cooperation; or, of course, evidence that DOJ lawyers dissembled to the FISA Court. It would be entirely appropriate for OPR to investigate, report and condemn such conduct. I just don't quite see the value in OPM evaluating the bona fides or "competence" of OLC's legal advice.

Comments:

Now, it's not at all clear to me exactly what "ethical obligations" are pertinent to, for example, OLC lawyers who are providing advice to the President in furtherance of his constitutional obligation to faithfully execute the law. Such lawyers have a very different sort of relationship with their client -- and their client has a very different sort of function -- than in the prototypical case of a private lawyer giving advice to a private client who wishes to avoid legal liability...After all, unlike a private client, the President himself is the ultimate arbiter within the Executive branch of what is lawful and what is not -- it's his obligation to faithfully execute the law. OLC is "merely" helping him to do so.

Marty, we are agreeing far too often recently. Your reputation is going to be in danger soon...

Anyway, I have been making your point here for months in response to Congress' various fishing expeditions seeking the testimony of executive branch attorneys on their privileged legal advice to the President in order to find dissenters with which to embarrass the President.

Beyond the privilege issues, this legal advice is simply irrelevant. The President is the only one who decides what legal position the President will take. If Congress wants to know what position the President has taken concerning FISA, it need only read the public and classified papers submitted by the Executive on the subject. If Congress wants clarification from the President on his positions, they might want to simply ask him.

However, I would disagree with your take that the OLC's job is not to help the President avoid legal liability. Goldsmith described his job at OLC as finding a legal way for the President to do the things he needed to do. In other words, the OLC helps the President navigate the shoals of often vague and untested law to do his job. This is not unlike the job of a corporate lawyer helping his client navigate the maze of securities and tax laws.
 

You might be interested in this article, which argues that OLC lawyers violated professional standards of competency in authoring the torture memos. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=901675#PaperDownload
 

Does it make any difference whether the President ever had any grounded knowledge of the preponderating understanding of the law before embarking on his peculiar reinterpretations? Does the OLC have any obligation to make the President aware of just how extreme a course he is plotting before offering navigational assistance?
 

Unless OLC actually has some obligation not to do what Bush asked it to do -- not to push the envelope and go right up to the line, but instead to provide the best possible, objectively accurate and fair, legal advice to the President. And, I would suggest, that is the case only if the President's own constitutional obligation requires him to try to ascertain, and execute, the "best" reading of the law. I think there is a case to be made for such a constitutional obligation.

More than just "a case to be made", I think. I think the only conclusion possible is that OLC has precisely the obligation to provide the "best" reading of the law.

I take it we all agree that the OLC can't give "preposterous" advice. There must be SOME limit. If this were not true, then either there would be no point to giving the advice to begin with, or we'd have to agree that the President gets to decide what the law is. Since the latter conclusion is inconsistent with very settled principles, both of political theory and of case law, we can reject it out of hand.

Once we agree that there must be SOME limit to the quality of the advice, we face a standard line-drawing problem. We have to decide where to draw the line between "best", at one extreme, and "barely plausible", at the other.

Again, it only makes sense to require "best". If we've already rejected the notion that the President gets to decide the law, then "barely plausible" is merely a sham to accomplish that unacceptable result. Thus, there's an inherent good faith requirement in the giving of advice.

Moreover, from an institutional point of view, the only advice we'd want the President to have is the "best". If the President is not acting as a private client (see below), but in a political capacity, then both theory and settled law demand that he be constrained by law. The less demanding we are of OLC, the less the restraint.

Finally, there is a Constitutional sense in which the President is in jeopardy when he follows OLC advice. He's at (legal) risk of impeachment. If OLC were to give a President legal advice which led to impeachment and conviction, that surely could qualify as "malpractice". In the proper circumstances, it might even be unethical. This reinforces the conclusion that there is indeed an ethical requirement to give "best" advice.
 

-- I think the only conclusion possible is that OLC has precisely the obligation to provide the "best" reading of the law. --

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FWIW, that won't be uniform, see Bybee memorandum on the one hand, and others that purport to repudiate parts of the Bybee memo.

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And even if the "internal" advice was uniform over time, the internal opinion of what constitutes "best" (being consensus of OLC) may be found incorrect by the judicial branch.

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The check and balance has to lie outside of the executive branch of government. It's the external check and balance that guides the formation and implementation of internal advice.
 

And even if the "internal" advice was uniform over time, the internal opinion of what constitutes "best" (being consensus of OLC) may be found incorrect by the judicial branch.

Agreed, but that just means that lawyers can sometimes be wrong. Just to be clear, I think there are two distinct issues here:

1. What standard should we expect OLC to follow? I gave my thoughts on this above.

2. What standard constitutes "unethical" advice? I think this standard should be much weaker than no. 1. I think of it as similar to Rule 11 or perhaps CA Rule of Professional Responsibility 3-110: "A member shall not intentionally, recklessly, or repeatedly fail to perform legal services with competence."

The OPR investigation should focus only on the latter.

The check and balance has to lie outside of the executive branch of government. It's the external check and balance that guides the formation and implementation of internal advice.

Where the President takes public action which can be adjudicated, I agree. Where the President's actions are secret -- especially where the President conceals them -- the OLC has to state the law fairly in order to provide restraint.
 

After all, unlike a private client, the President himself is the ultimate arbiter within the Executive branch of what is lawful and what is not -- it's his obligation to faithfully execute the law. OLC is "merely" helping him to do so.

I agree that there should be a difference in regards to the aim of the client vis-a-vis the law. To some degree, though, isn't this all about agency? Isn't the private client's responsibility for the actions of his/her attorney at some level in a manner similar to the President's ultimate responsibility for whatever decisions are made about constitutionality?
 

Or you might think more along the lines of tieing the lack of candor to the tribunals to the competency of legal advice and it might be that smoking guns are instead to be found in legal advice to the President to have his DOJ disregard valid orders of courts; or

knowingly misrepresent information to those courts; or

knowingly present false information from members of his administration, for example in connection with state secrets affidavits and averments of classification of "teh program" (which, under the current classificiation Executive order, could not be deemed classified if illegal and which had at least a period of time where OLC and the acting AG had determined there was no basis in law for finding the program legal.)
 

The 'controversial' ethics article by the Columbia law prof is a promising read at the outset.

The congressional letter seemed to me a generic response by the legislature to drive the executive toward more sunlight at a time when tangled new issues have tended to incubate policy in many vacuums, the very pitfalls which our constitution was designed to expose and balance. My reading elsewhere has revealed OPR's report likely will remain confidential within DoJ, though congress may have some satisfaction in reply to its letter by way of precis verison of the report for congress' eyes.

Although presidents evidently must rely upon OLC centrally, obviously there has been a parallel volume of rhetoric since 2003 concerning secrecy and the proportion of that sequestered information actually kept secret only based on bureaucratic inertia or baser motives.

Which, in a sense, travels the full loop of the William Simon consideration of a proxy question of when bad advice is the perfect ticket to a career in government. The answer is probably in some 'ethics' treatise which addresses the fields of politics and law, indeed an incongruous trine of intellectual endeavors in some potential interstices.

Although suspending judgment until I complete the Simon essay, I would like to highlight an additional aspect to the argumentation surrounding it which has received coverage widely and for a long time, namely, the historical ledger of the vitiation of key confidential institutions in the Weimar Republic; while deferring to the ample expertise of other persons regarding that sad time of slippage in early modern German government, I would suggest at the same time that it is important to protect the Office of Legal Counsel's traditional bond to the trust of the president. Throughout the study, both OPR and congress need to remain vigilant that the prospective OPR review of OLC's recent history include even OLC's personnel sharing arrangements whereby some individuals participated at DoJ proper as well as behind the scenes in privy counsels to the executive office of the president. Further, the OPR assessment of OLC needs to remain mindful of the paramount value of preservation of OLC's integrity and ethos to the extent that OLC's function will emerge from the scrutiny robust rather than subborned to some future executive's untoward proclivities in times even more jumbled than these past six years. Fortunately our electoral system offers the opportunity to entertain a different administration's future approach to restating and redefining many policies both public and secret affecting the viability and effectiveness of the mechanisms which sustain a vigorous executive while protecting the bill of rights.
 

I look forward to the development of a theory as to what the "best interpretation" of the law would be. I'm not a lawyer, but my own exposure to the practice of law suggests to me that the "best interpretation" is always that shows it's arguable the client can do what the client wants to do.
 

Arg. "that which shows..."
 

LOL

I think you guys are so close to the trees all you see is bark.
Doesn't the title "Department of Justice" mean anything at all?
How about "Legal Council". Does legal really fit in there anywhere?
 

"A member shall not intentionally, recklessly, or repeatedly fail to perform legal services with competence."

So, for example, where do we fit a memo addressing the president's wartime power to disregard statutory limitations on his power ... that doesn't even try to distinguish Youngstown Steel?

I think that's got to fall on the wrong side of the line. Ignoring not just *a* contrary authority, but the lead case on the subject, one included in every con law casebook in the United States ... any line that's *not* on the wrong side of, is drawn in the wrong place.
 

Prof. Lederman:

In the ordinary private setting, giving unorthodox legal advice to one's client ordinarily does constitute a lack of competence, and a breach of duty, especially if the client is not informed that the advice is idiosyncratic, because if the client acts on it, she will be placed in legal jeopardy. OLC advice to the President simply doesn't fit cleanly with this model, since the President is himself the chief law-enforcement officer.

True, but that hardly ends the inquiry.

The preznit is required to "faithfully execute the law", just as is everyone else expected to follow it. The Chief of Police in NYC may set policy more so than the cop on the beat, but that hardly means he gets to "make law". The preznit may ask for assistance of counsel to help him in doing so, but is untimately responsible himself, as is any lawyer's client, for his acts. If they are illegal, he has broken the law (just as would be the Chief of Police should they issue regulations or orders for indiscriminate tasering, for instance).

It is the role of the courts to decide what is legal or not, and it is the responsibility of the OLC not to provide counsel that would invite prosecution for actions pursuant thereto, at least not without a discussion of the risks and likely treatment of the acts by courts. That the preznit is the chief "law enforcement officer" (as the titular "boss" of even the AG) and can stymie any executive action to arrest himself for violations is hardly protection. Should the preznit break the law, he can be impeached, and a justice department that is no longer under his control may prosecute and convict him (note Ford's pardon of Nixon).

... the President himself is the ultimate arbiter within the Executive branch of what is lawful...

And within my house, I'm the "ultimate arbiter" of what is lawful ... until the police come and break the door down and I'm faced with an actual judge empowered to try me and rule on my innocence.

Cheers,
 

Oh sweet legal ethics. The fig leaf by which lawyers (like me) apply discretionary guidelines to regulate their own conduct--fox, henhouse, you get the picture. Let's say Yoo is found to have breached the applicable ethical guidelines. The consequences for John Yoo would be ... what exactly?
 

First of all, the President is not the employer of the DOJ lawyers, the Government of the United States is. To see the difference consider a president of a company asking the companies lawyers to give him legal advice allowing him to take money from the companies account and put it in his.

The DOJ lawyers take an oath serve the country and not the president.
 

The DOJ lawyers take an oath serve the country and not the president.

But isn't it the job of the President to decide what's best for the country, and what he decides to set loose is set loose, and what he decides to held bound is held bound?

Sorry, for some reason I was getting my radical constitutional theories crossed with apocalyptic religious authoritarianism.
 

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