John Yoo and Jay Bybee shouldn't be home free.

The law, lawyers, and the court.
Feb. 22 2010 11:49 AM

David Margolis Is Wrong

The Justice Department's ethics investigation shouldn't leave John Yoo and Jay Bybee home free.

Also in Slate, Dahlia Lithwick writes that the overturning of the OPR report means there are no legal limits for torture.

Jay Bybee.
Jay Bybee, former assistant attorney general for the Office of Legal Counsel

After more than a year's delay, the Department of Justice released the Office of Professional Responsibility's report on whether government lawyers who wrote two notorious torture memos violated professional ethics. OPR is the Justice Department's internal watchdog, and it has the authority to recommend referring errant DoJ lawyers for professional discipline or even criminal prosecution. The 260-page OPR report, plus two earlier drafts released at the same time, harshly condemn the torture memos and recommend discipline for the lawyers who wrote them. But Friday's document dump also included a 69-page memo by David Margolis, the senior DoJ attorney who resolves challenges to negative OPR findings like this one. Margolis ripped into OPR and rejected the ethics office's recommendations that Jay S. Bybee (now a federal judge) and John Yoo (now a law professor) should be referred to their state bars for discipline. Margolis' decision means that Judge Bybee and Professor Yoo will be spared further ethics investigations. They are home free.

The blogosphere has been crowded with initial reactions. (Two pieces on Balkinization are particularly good: here and here. And James Fallows' comment here is indispensable; he rightly notices how heavily Margolis leans on post-9/11 panic to excuse the lawyers for shredding the law against torture.)

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I'd like to delve deeper. Margolis' critique got Yoo and Bybee off the hook. So how strong is his position compared with OPR's? The short answer: weak.

The focus of OPR's investigation is two memos from Aug. 1, 2002. They were written in secrecy by John Yoo and an assistant in the Office of Legal Counsel whose name is redacted. Bybee, as head of OLC, signed off on the memos. One memo analyzes torture, executive power, and criminal defenses for interrogators accused of torture; the other approves 10 techniques for tormenting Abu Zubaydah in a secret CIA prison, including water-boarding him. The question for OPR was whether Bybee and Yoo had violated ethics rules by twisting the law to the breaking point to give CIA operatives maximum assurance and leeway.

Both the OPR report and Margolis agree that (in Margolis' understatement) "these memos contain some significant flaws." There they part company. The OPR report finds that Yoo and Bybee violated two rules of professional conduct: Rule 1.1, requiring competence, and Rule 2.1, requiring lawyers to "exercise independent professional judgment and render candid advice." Margolis rejects OPR's analysis and concludes that "poor judgment" rather than professional misconduct "accounts for the entirety of Yoo's work" on the torture memos.

But that's not the right characterization for memos that used extravagant legal reasoning to approve torture. It's like saying that Iago's advice to Othello showed poor judgment. OPR made a powerful case against Bybee and Yoo. In response, Margolis went after OPR like a defense lawyer, upped the burden of proof beyond what the ethics rules require, and minimized the liberties that Yoo and Bybee had taken with the law.

OPR's analysis changed between the drafts and the final report, and Margolis goes on for pages about that, quoting liberally and uncritically from Bybee's and Yoo's objections and insinuating that OPR's efforts to respond are worrying signs of "a shift in OPR's reasoning"—although he admits that he was the one who recommended that OPR solicit and review the objections. Originally, OPR looked to the rules of ethics of the D.C. bar instead of OPR's own more lawyer-protective framework. The OPR standard requires not just an ethics violation, but an ethics violation that the lawyer committed intentionally or in reckless disregard of the rules of conduct. In other words, OPR's framework requires proof of a guilty mental state over and above what the ethics rules themselves require.

This difference is not simply an arcane technicality. Proving mental states is always hard for prosecutors to do, and the more you ask them to prove, the less likely a finding of guilt becomes. Even so, in the final report OPR concluded that Yoo and Bybee should be referred for discipline under the OPR framework. At which point Margolis slams OPR because "its misconduct findings do not identify a violation of a specific bar rule"—although, in fact, OPR cites the same rule its earlier drafts accused Bybee and Yoo of violating. In a catch-22, Margolis faults OPR for switching to the framework he insists is the proper one.

To be sure, one problem for OPR is that very little case law exists interpreting the rule requiring lawyers to give candid, independent advice, and none of it deals with facts remotely like this case. In its early drafts, OPR spelled out standards for when an opinion clearly violates candor and independence:

 1. Exaggerating or misstating the significance of the authority that supported the desired result; 2. Ignoring adverse authority or failing to discuss it accurately and fairly; 3. Using convoluted and counterintuitive arguments to support the desired result, while ignoring more straightforward and reasonable arguments contrary to the desired result; 4. Adopting inconsistent reasoning or arguments to favor the desired result; 5. Advancing frivolous or erroneous arguments to support the desired result.

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