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
Justice Department Will Not Punish Yoo and Bybee Because Most Lawyers Are Scum Anyway
At long last we have the Department of Justice report on the professional conduct of John Yoo and Judge Jay Bybee in writing the infamous torture memos, along with previous versions of the Office of Professional Responsibility report and responses by Yoo and Bybee. Upon reviewing the OPR's report and recommendations, Associate Deputy Attorney General David Margolis concluded in a 69 page memo that the DOJ should release the Office of Professional Responsibility report for public review but that the Justice Department would not refera finding of misconduct to state and local bar committees where Yoo and Bybee are members.
In deciding not to refer charges to state bar committees, Margolis does not tell us that Yoo and Bybee behaved admirably or according to the high standards that we should expect from Justice Department lawyers. Indeed, he says the opposite. Yoo and Bybee exercised poor judgment and let the Justice Department down. But Margolis argues that the Office of Professional Responsibility chose too high a standard to judge the professional responsibility of Yoo and Bybee. The OPR argued that Yoo and Bybee had "a duty to exercise independent legal judgment and to render thorough, objective, and candid legal advice." This standard, Margolis explained, is much too high a requirement and not one that Yoo and Bybee were previously warned was the standard to which they would be held.
I know what you are probably saying: shouldn't every government lawyer have to live up to this standard? Of course, they should, but the point is that this is a disciplinary proceeding. It's not about what people should do, but about how badly they have to screw things up before they are subject to professional sanctions.
Instead, Margolis argues that, judging by (among other things) a review of D.C. bar rules, the standard for attorney misconduct is set pretty damn low, and is only violated by lawyers who (here I put it colloquially) are the scum of the earth. Lawyers barely above the scum of the earth are therefore excused.
Margolis concludes that Yoo and Bybee exercised poor judgment and made bad legal arguments. But lawyers often make arguments that are bad or even laughably bad, and this by itself does not violate the very low standard set by rules of professional responsibility. These rules are set up by jurisdictions to weed out the worst offenders, leaving the rest of the legal profession to make entirely stupid, disingenuous and asinine arguments that normal people with functioning moral consciences would not make. That is to say, rules of professional misconduct are aimed at weeding out sociopaths and people driven to theft and egregious incompetence by serious drug and alcohol abuse problems; they do not guarantee that lawyers will do right by their clients, or, in this case, by the Constitution and laws of the United States of America. In effect, by setting the standard of conduct so low, rules of professional conduct effectively work to protect all those lawyers out there whose moral standing is just a hair's breadth above your average mass murderer. This is how the American legal profession simultaneously polices and takes care of its own.
To show misconduct, according to the standard that Margolis finds most relevant, one would have to show that Yoo or Bybee intentionally made arguments that they knew were wrong and false or did so not caring whether they were wrong or false. That standard could not be met for Jay Bybee, because Bybee was, to put it bluntly, an empty suit who relied on the advice of others and didn't analyze the memos all that closely. He just signed the papers. This makes him pathetic, but not, in Margolis's view, someone who unambiguously violated existing rules of professional responsibility.
As for John Yoo, Margolis explains (although he puts it far more diplomatically) that Yoo was an ideologue who entered government service with a warped vision of the world in which he sincerely believed. Yoo had crazy ideas even before he entered government; which strongly suggests that he probably shouldn't have been hired in the first place. Therefore it is hard to conclude that Yoo deliberately gave advice that he knew was wrong to the CIA. Yoo isn't putting people on when he says the absurd things he says in these memos and elsewhere. He actually believes that the President is a dictator and that the President doesn't have to obey statutes that make torture a crime. He actually believes that you should read the torture statute so narrowly that it lets the CIA torture people. John Yoo used every trick in the book to twist the law because he actually believes in a law that is twisted. And Margolis points out that other department lawyers, who, presumably, did have properly functioning consciences and were not seriously incompetent, looked at the torture memos and told Bybee that, on the whole, in the context of the limited audience for the memos, and putting aside their most ridiculous claims, the torture memos made defensible legal arguments of the kind that lawyers sometimes make on behalf of their clients. It is important to understand that Margolis reached this conclusion not because Yoo's arguments were just or sensible, or even plausible, but because lawyers can make really really crazy arguments and still avoid professional sanction. This is less a defense of Yoo than an indictment of the doctrines of professional responsibility.
Margolis concludes (p. 67), perhaps more in sorrow than in anger, that Yoo did not intentionally give incorrect legal advice, although, Margolis admits that "[i]t is a close question." He notes that "OPR's findings and my decision are less important than the public's ability to make its own judgments about these documents and learn lessons for the future."
Margolis' last point is especially important, since the former Vice-President of the United States is now going around the country telling people that he supports waterboarding and actively sought to use it when he was in office. Put differently, there is at least one member of the previous Administration walking around that is an admitted war criminal, although, to be sure, confessing to the elements of a war crime on television apparently does not, at least in this country, lead to any serious danger that one will actually be prosecuted for such crimes.
Whether or not the DOJ refers Yoo and Bybee for professional discipline, no one should think that either man behaved according to the high standards we should expect of government attorneys. They, and the government officials who worked with them, shamed this nation. They dragged America's reputation in the dirt. They severely damaged our good name in the eyes of the world. They undermined the values this country stands for and that the legal profession should stand for. Nothing the DOJ does now--or fails to do--will change that.