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.
Posted 6:11 AM by Marty Lederman [link]