That's because there's nothing outlandish about trying to hold lawyers accountable for actions taken on their clients' behalf, if those actions can be proved to be illegal. Government lawyers, like other officials, have recourse to immunity. But they're not necessarily entitled to absolute immunity—the kind that ends a suit before it starts. As Luban explains, the list for absolute immunity is a short one: The president gets it. Judges get it. So do prosecutors. But Justice Department lawyers who aren't working in a prosecutorial capacity? It appears not. In the 1985 case Mitchell v. Forsyth, a Haverford College physics professor sued former Attorney General John Mitchell for authorizing a wiretap of his phone without a warrant. Mitchell argued that he had absolute immunity because he was working in the interests of national security. The Supreme Court disagreed. The court reasoned that while prosecutors are subject to the checks of the judicial process, there were no "similar built-in restraints on the Attorney General's activities in the name of national security."
The court said that DoJ folk might nevertheless be entitled to qualified immunity, which all government officials can seek. The standard here is that you can't be held liable for working in your official capacity, as long as your actions didn't violate "clearly established" constitutional or legal rights that a reasonable person would have known about. In other words, you're protected unless you knowingly violated the law or you were plainly incompetent. The Supreme Court reasoned that qualified immunity would provide most officials with enough protection to do their jobs freely, without giving them a pass to blithely disregard the law. Money quote: "Where an official could be expected to know that his conduct would violate statutory or constitutional rights, he should be made to hesitate." (The court's italics.)
Some of the critics of the Yoo-Padilla suit worry about the effect it will have on other government lawyers. The concern is that they'll fear being sued and hedge their bets accordingly, even if they're not doing anything as exotic as embroidering a rationale for torture. But in Mitchell, the court said that sometimes catching a bit of a chill is a good thing. It's also worth noting, in this context, that Yoo isn't facing financial ruin or even risk: Following Padilla's wishes, the suit asks for damages of exactly $1. And DoJ has to offer to provide and pay for Yoo's defense.
Maybe Yoo's lawyers will be able to show he is entitled to qualified immunity. Maybe what he did wasn't illegal, or maybe he shouldn't have been expected to know that it was, as he would certainly argue. Here's the defense of his actions that he published today. And maybe the legal advice he gave in the torture memos can turn out to have been wrong—there's close to consensus about that, at least—without being blunderingly incompetent. It's also possible that the chain from Padilla's mistreatment to Yoo's memo writing and policy-making is ultimately too attenuated to hold him legally accountable.
These are familiar questions—the sort that many a Bivens suit raises. They are also questions for a judge to decide. Arguing that Yoo could or should win is different from denouncing Yale's clinic for bringing the suit in the first place. And think about the broader implications of the WSJ's tirade against the law school. The dean should have stopped a clinic from suing an alumnus on behalf of a client? What kind of standard of legal advocacy or academic freedom would that set—faculty members can write whatever they want in academic articles, but clinical lawyers can only file suits vetted for politically palatability? That seems like the entirely wrong place to end up. It's what comes of mixing up David and Goliath.
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