an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
It was widely reported last week that the head of DOJ's Office of Professional Responsibility (OPR), Marshall Jarrett, had written to Senators Durbin and Whitehouse to inform them that OPR is investigating OLC's legal advice with respect to waterboarding and other coercive interrogation techniques. But it appears that, for whatever reason, none of the news sources bothered to upload or link to Jarrett's letter, nor to the letter from DOJ Inspector General Glenn Fine, explaining that the IG lacks statutory jurisdiction to engage in an inquiry of OLC.
Jarrett writes that his investigation is looking into whether the advice in the OLC memoranda (not only John Yoo's, but subsequent memos as well) was "consistent with the professional standards that apply to Department of Justice attorneys."
I have previously questioned whether such an ethics-based investigation makes any sense. My colleague David Luban has argued, alternatively, that it does. Whatever the merits of that particular argument might be, there is something else a bit odd about the OPR investigation: The new Attorney General has effectively adopted and ratified the post-Yoo OLC opinions as reflecting current, official DOJ views. How could OPR, which is subordinate to the AG, promulgate the conclusion that the legal advice the AG has embraced is not "consistent with the professional standards that apply to Department of Justice attorneys"? As Emily Bazelon points out in an excellent recent column, OPR does not appear to have the independent authority to overrule the AG in that respect.
Emily regrets that the DOJ IG, Glenn Fine -- who arguably has more statutory independence than OPR -- will not be involved in the investigation. As she explains, and as Glenn Fine notes in his letter, the IG lacks statutory jurisdiction to investigate DOJ legal advice-giving. (Fine has been seeking such authority for years, and he states in his letter than the current House has passed, and the Senate is considering, a bill that would give it to him. If anyone can provide cites or links to the relevant statutes and bills, I'd appreciate it.)
Myself, I remain a bit skeptical of what could come from such an investigation, by either OPR or the IG. If either of them "found" that OLC's advice was wrong, or even egregiously wrong, it would remain the case that OLC, the AG and the President disagree. And they are the relevant decisionmakers on such questions within the Executive branch. What is needed is a repudiation of the advice at the OLC and AG level, something that is unlikely to occur, if at all, until a new Administration is in place. Posted
by Marty Lederman [link]
Myself, I remain a bit skeptical of what could come from such an investigation, by either OPR or the IG. If either of them "found" that OLC's advice was wrong, or even egregiously wrong, it would remain the case that OLC, the AG and the President disagree.
I think this misses the political consequences of a plausible finding that the Yoo-Bybee memo was something a 2L summer clerk would be embarrassed to present.
This is an important message to be gotten out that we have an investigatory shellgame going on. This reminds me of the Abu Ghraib investigations. Clearly the press has been led to believe this is something, when it really is not. Even if Glenn Fine had the investigation all he could do is make a recommendation to the AG to do something which the AG is not willing to do. The point is that it is a question of power. We have to push these powerful persons to do something that they do not want to do and to do it quickly. They will spin out games like this forever unless we call their bluffs on all this. Best, Ben
Section 8E of the Inspector General Act of 1978 (5 U.S.C. App.) is further amended in subsection (b) by striking "and paragraph (3)" in paragraph (2).
Paragraph 8E(b)(2) of IGA of 1978 is what is effectively preventing now IG from investigating DoJ attorneys in matters regarding providing legal advice.
--- Bonus material and a badly stinking one at that:
An unrelated section of this new bill HR 928, specifically 10(a) removes the requirement that IG reports immediately to the Congress when Attorney General orders him (as is his prerogative) to refrain from initiating any investigation on grounds that such investigation would:
require access to sensitive information concerning— (A) ongoing civil or criminal investigations or proceedings; (B) undercover operations; (C) the identity of confidential sources, including protected witnesses; (D) intelligence or counterintelligence matters; or (E) other matters the disclosure of which would constitute a serious threat to national security.
For those interested here is the relevant section (specifically - AG authority to block IG investigations on national security grounds and the prohibition on some investigations of DoJ attorney by Fine) in the Inspector General Act of 1978.
A colleague has told me that OPR can make referrals directly to state bar associations on the ethics violations without an AG approval. If that is the case, then one can see that the OPR can have an affect if it gets there. Best, Ben
I think the point that is missed is that, while the OPR investigation cannot really have any impact, even in a hugely egregious situation, where it can have benefit is in providing one more piece of armor for the Knights in Rusted Reasoning who entered the tournament lists to champion torture and Executive Branch cover up of toture and crime as "classified."
It isn't being pursued for what it could do if there were a problem, it is being pursued to help build the case that no one did anything "wrong" or outside of professional norms with soliciting torture.
It would be nice, for example, to have someone actually review how you slap "classified" on a memo that is all about, at its essence, covering up illegal and embarassing behaviour and not, under any stretch of rationale thought, about "national security."
But the investigation won't go there at all. It will simply find that while the opinions may or may not have been flawed, those who generated them followed standards reasonably consistent with minimal professional requirements.
That's all that any part of DOJ is good for these days, after years of acquiescing in, and even soliciting, depraved Executive Branch behavior - to be one more piece of a firewall.
You forgot the possibility that OPR or the IG could very well find that the OLC's advice broke no ethical rule. Indeed, I would not be surprised at all if DOJ's purpose here was to seek yet more legal cover against political attack.
Presumably, the point of the OPR investigation is not to determine whether the OLC's advice was "wrong" but whether its analysis complied with professional standards. For example, it has been argued that the original OLC torture memo failed to cite relevant authorities, failed to consider obvious counterarguments, misstated authorities, and did not adequately apprise the client of the risk of contrary findings by a court. The OPR could find some or all of these deficiencies without expressing an opinion on whether the ultimate conclusions were right or wrong.
I'm afraid I partially agree with Bart and Mary. Even if the OLC's advice were found to be lacking in professional standards, it seems to me that blame for acting upon that advise would slip off of the administrators and land solidly in the lap of those people deemed unprofessional in the investigation.
Overall, it's a win-win approach for the Administration.