Professional Misconduct vs Poor Judgment

Via Nick Baumann at Mother Jones.

John Yoo and Jay Bybee, the Bush administration lawyers responsible for the bulk of the so-called "torture memos," were guilty of "professional misconduct," according to a June 2009 report by the Justice Department's in-house watchdog, the Office of Professional Responsibility (OPR).

But in the wake of massive pushback from Yoo and Bybee, the Justice Department refused to adopt the conclusions of that report, according to a January 5, 2010, memo released on Friday afternoon on the website of the House Judiciary Committee.

If the Justice Department had endorsed the OPR's conclusions, Yoo and Bybee could have faced potential disbarment. But David Margolis, the deputy associate attorney general responsible for reviewing the report, concluded in a 69-page memo explaining his decision that the authors of the torture memos had demonstrated "poor judgment" and produced seriously flawed legal analysis, but that this was not done in bad faith.

Newsweek finds this noteworthy.

The shift is significant: the original finding would have triggered a referral to state bar associations for potential disciplinary action—which, in Bybee’s case, could have led to an impeachment inquiry.

Two of the most controversial sections of the 2002 memo—including one contending that the president, as commander in chief, can override a federal law banning torture—were not in the original draft of the memo, say the sources. But when Michael Chertoff, then-chief of Justice’s criminal division, refused the CIA’s request for a blanket pledge not to prosecute its officers for torture, Yoo met at the White House with David Addington, Dick Cheney’s chief counsel, and then–White House counsel Alberto Gonzales. After that, Yoo inserted a section about the commander in chief’s wartime powers and another saying that agency officers accused of torturing Qaeda suspects could claim they were acting in “self-defense” to prevent future terror attacks, the sources say. Both legal claims have long since been rejected by Justice officials as overly broad and unsupported by legal precedent.

A Justice official declined to explain why David Margolis softened the original finding, but noted that he is a highly respected career lawyer who acted without input from Holder. Yoo and Bybee (through his lawyer) declined requests for comment.

Jeff Kaye at the Seminal has an interesting perspective of David Margolis.

The role of Margolis, and the man himself, deserve a closer look. It does not take long to see that 40+ year DoJ veteran David Margolis has some skeletons in his closet, and that his track record is not unblemished. [...]

Now this may all be a lot of smoke, but when one adds in the latest role played by Mr. Margolis in spiking the initial results of misconduct on behalf of Yoo, Bybee, Addington, et al. (if we can believe the Newsweek leak), his appearance in this role does not seem so remarkable. Margolis appears to have a long history of involvement in government frame-up and/or obfuscation of internal misconduct by the FBI or Justice Department prosecutors.

Will we see the intrepid U.S. press look more deeply into this? One could wish this were true.

Scott Horton at Harper's has an interesting article on the skeletons that are beginning to rattle.

Associate Deputy Attorney General David Margolis is the stuff of legends within the Department of Justice. He came to the institution in 1976, and is now the most senior career employee. In a glowing review published in the Legal Times, (sub. req’d) he is described as:

one of the Justice Department’s most respected officials, a lawyer with a sterling reputation earned over 42 years of service at the department. “Taking him on is a losing battle,” says the source. “The guy is Yoda. Nobody fucks with the guy.” [...]

But if Margolis really is Yoda, the powerful but diminutive figure from the “Star Wars” series, then the Force may no longer be with him. Indeed, maybe we should be wondering whether he has gone over to the Dark Side.

It is now up to Congress.

The department's experts in professional conduct saw this as a slam-dunk case. Yoo, they found, "committed intentional professional misconduct when he violated his duty to exercise independent legal judgment and render thorough, objective, and candid legal advice." Bybee, they noted, acted in "reckless disregard" of his obligations to provide independent legal analysis. Yet because Margolis believes Yoo and Bybee committed these significant errors in good faith, he has given them a pass.

Congress plans hearings on the report, and the Center for Constitutional Rights has issued a statement saying that Bybee, who is currently serving as a federal appeals court judge, should be impeached.

The question that we are really left with is, "Why is the Obama administration once again protecting members of the Bush crime family?"