On February 19, Attorney General Eric Holder took part in the time-honored Washington tradition of dumping undesired news on Friday afternoons or evenings. After weeks of leaks, the Justice Department officially exonerated Bush-era lawyers John Yoo and Jay Bybee, the authors of the original legal opinions on the lawfulness of the CIA interrogation program, which are known pejoratively as the “torture memos” to critics.
This is bad news for Holder and certain other Obama appointees at Justice — it undermines the story they’ve been telling for years that the lawyers who found the CIA program lawful were sadistic criminals committed to torturing poor souls such as Khalid Sheik Muhammad — but it is a vindication of an important principle that, prior to the Holder reign, had been adhered to across administrations: honestly held legal and policy opinions are not cause for prosecution or professional discipline.
For years now this principle has been under sustained attack by hard-core left-wing congressional partisans such as Rep. John Conyers and Sen. Patrick Leahy. It’s not much of a stretch to imagine some of the more wild-eyed among them searching for ways to revoke the law licenses of conservative Supreme Court justices. Fortunately, this country is not Venezuela — at least not yet; we should not rest easy.
This was a very narrow escape that came down to the brave decision of a long-time career official at Justice named David Margolis. Margolis is a widely respected 40-year veteran who has been tasked over the years with handling many of the more sensitive internal inquiries at the Justice Department. One of his responsibilities — which he has performed honorably for a number of different attorneys general in Democratic and Republican administrations — has been to oversee inquiries conducted by lawyers in the little-known Office of Professional Responsibility, or OPR. OPR is the office that recommended Yoo and Bybee be subject to disciplinary proceedings. Margolis rejected OPR’s recommendation and most of its analysis.
OPR is the equivalent of internal affairs at a police department, conducting inquiries of alleged misconduct by Justice Department lawyers and other staff and making disciplinary recommendations. OPR has an important role to play to ensure that misconduct is discovered and punished. But OPR’s investigation of the legal advice provided by Yoo and Bybee was, by its own admission, extremely unusual.
OPR annointed itself to review the constitutional and legal analysis of Bybee and Yoo while they were leading the Office of Legal Counsel, or OLC. Along with the Solicitor General’s Office — which, among other things, represents the federal government in cases before the Supreme Court — OLC employs the Justice Department’s best lawyers on the most difficult constitutional and legal issues. OLC is tasked with providing legal advice to the entire federal government, including the White House.
We don’t mean to be insulting, but the plain fact is that OPR is not, and has never been, equipped to second-guess OLC. The office’s role is a limited one focused on ethical violations; it is not staffed with experts on constitutional law or national security. It would be preposterous to rely on OPR’s judgment about hard questions of constitutional and statutory law over that of OLC or the Solicitor General’s Office. As Andy McCarthy has said, “having OPR grade the scholarship of OLC is like having the Double-A batting coach critique Derek Jeter’s swing.”
What makes this whole affair even more pointless is that OLC itself withdrew or superseded the relevant opinions of Yoo and Bybee during the Bush years. The purpose of OPR’s investigation was never clear to anyone — except OPR and people who hoped to use the results for political advantage, such as Conyers and Leahy,.
OPR spent more than five years and untold taxpayer dollars to give us its opinion that Yoo and Bybee committed professional misconduct. The basis for this conclusion? Embarrassingly shoddy “analysis” spread over 250-plus pages of turgid and incoherent prose. In college, OPR couldn’t pull a “gentleman’s B” for this report, even in the era of grade inflation. Since nobody fails any more, let’s call it D-minus work.
President Bush’s final attorney general, Michael Mukasey, and deputy attorney general, Mark Filip — former federal judges widely respected across the political spectrum for their intellect and command of the law — eviscerated a draft of the report. They had to do so quickly — OPR, knowing they were tough graders, dumped it in their laps near the end of their tenure — but they put their criticism in writing and provided it to the incoming Justice leadership. Holder did not see fit to release Mukasey and Filip’s letter last Friday night with the rest of the “bad news,” so Andy McCarthy did the honors.
Also defending Yoo is well-known Washington attorney Miguel Estrada, who emigrated from Honduras at 17, graduated from Columbia and Harvard Law School magna cum laude (much like President Obama), was an editor on the Harvard Law Review (also like the president), clerked for a Supreme Court justice, served as a federal prosecutor in New York, argued cases before the Supreme Court while in the Solicitor General’s Office at the Justice Department, and has become one of the nation’s leading appellate lawyers at a major international law firm. (Bush nominated him to an appeals court, but the Left blocked the nomination.) “Having seen OPR’s work and tactics up close,” Estrada told us, “I would have a hard time choosing one dominant trait in their approach. It is probably a three-way tie between stupidity, rank incompetence, and partisan malignancy.”
And what did Maureen Mahoney, who represented Bybee, think of OPR’s work? In the conclusion of her objections to OPR’s report, she sums it up with typical panache: “We have, in OPR’s report, the poor execution of a bad idea.” Ms. Mahoney is not just any lawyer. She was a senior official in the Solicitor General’s Office in the 1980s and went on to become a legendary litigator and appellate lawyer at a leading international law firm. Like Estrada, Ms. Mahoney is someone whose credentials and experience as a top-flight lawyer cannot be seriously doubted.
And what about Jack Goldsmith, who became head of OLC after Bybee and withdrew the most controversial opinions written by Yoo? Goldsmith is a well-known Harvard Law School professor and author of a book, The Terror Presidency, that describes the extraordinary challenges of his time at OLC. Some on the left praised that book, seeing it as a denunciation of Yoo and Bybee; but actually, Goldsmith’s arguments are complex and can’t be converted into soundbites. For example, although Goldsmith did not think highly of Yoo’s analysis in some of the memos, he agreed that none of the interrogation techniques, including waterboarding, violated U.S. law. He also believed that Yoo had come to his views honestly and did not merely use them as a cover to justify torture. Goldsmith warned OPR against second-guessing Yoo and Bybee, particularly without considering the context in which they were operating at the time, with 9/11 still fresh and the ever-present fear of a follow-on attack. OPR ignored Goldsmith’s warning.
Finally, we return to David Margolis, who was tasked with determining whether the OPR had adequately justified its conclusions about Yoo and Bybee. Margolis decisively rejects OPR’s report. Because of his position at Justice, Margolis is far more polite than Estrada or Mahoney, but no less devastating to OPR. He identifies numerous errors in OPR’s work, many of the embarrassing sort that are attributable only to carelessness and a lack of intellectual rigor, and consistently sides with Mukasey, Filip, Estrada, Mahoney, and Goldsmith.
Margolis explains that OPR’s theories continued to “evolve” from draft to draft, and that he could discern no coherent standard employed by OPR. Margolis does conclude that Yoo and Bybee exercised “poor judgment” in the analysis and conclusions they presented in one of the memoranda under review (but, notably, not the other two). But that is really no different than what the Justice Department concluded under Bush, which is why all three memoranda were either withdrawn or superseded years ago.
So, in one corner we have a legal all-star team of Mukasey, Filip, Estrada, Mahoney, Goldsmith, and Margolis. In the other corner, we have OPR operating far outside its comfort zone and area of expertise. This shouldn’t have been close — and it wasn’t, on the merits. The fact that OPR almost succeeded — and was stopped only because Margolis did the right thing and brought the curtain down on this farce — should remind everyone that partisan politics are alive and well at the Justice Department.