As K-Lo notes, I have an article (posted on the homepage this afternoon) which recounts how the Obama administration is urging the Sixth Circuit U.S. Court of Appeals to adopt the same interpretation of federal torture law that it is investigating former Bush administration lawyers for developing. (And why shouldn’t AG Eric Holder rely on the memo written by Jay Bybee and John Yoo in 2002? After all, the Third Circuit Court of Appeals already adopted it as the law of the United States in a ruling last year — as I also recount in the article).
But now there’s more. As Jan Crawford Greenburg reports at her ABC News blog, Legalities, the Justice Department’s Office of Professional Responsibility — by playing partisan politics — has blown the critical filing deadline for referring Prof. Yoo for professional sanctions. Don’t get me wrong, this is a very good thing — as I’ve been arguing, there is no legal or ethical basis to pursue this cockamamie investigation. But this is an episode that should be studied given all the blather about how it was Republicans who politicized the Justice Department.
OPR, like the Civil [ACM CORRECTION:] RIGHTS Division, is largely a bastion of the Left at DOJ. But to get some things done, the career lawyers need sign-offs from political appointees, so they butt heads with the brass from time to time if a Republican administration is in power. Patently, they slow-walked the ethics investigation of Yoo and Bybee for years, waiting for President Bush to be on his way out and a more agreeable Democrat administration to come in. In the waning weeks of the Bush administration, they tried to slide their report by AG Michael Mukasey — perhaps figuring he was on his way out the door and wouldn’t pay it much attention. Wrong! As Jan Greenburg Crawford recounts:
It appears John Yoo cannot be disciplined or disbarred for writing those memos, even if the Office of Professional Responsibility says it has evidence he should be.
That’s because OPR’s five-year investigation—carefully timed for release only as Bush was leaving the White House and Obama was coming in—dragged on too long. As a result of that timing, OPR blew the deadline for referring possible misconduct allegations against Yoo.
John Yoo is admitted to the bar in Pennsylvania. But the Pennsylvania Disciplinary Board, which would investigate any complaints against him, imposes a four-year limitation for complaints.
Yoo wrote the memos in 2002 and 2003. This is 2009. You do the math….
This is a huge issue for current DOJ officials and Attorney General Eric Holder. Because if Yoo–who wrote the memos and has been vilified as responsible for approving the interrogation program—can’t be disciplined under state bar rules, why then would OPR even refer the matter to state bar officials in the first place?
And what about Bybee? Now a federal appeals court judge, Bybee is admitted in DC and Nevada—those jurisdictions don’t have comparable limitations periods. But how strange would it be to only refer Bybee, when his involvement largely amounted making a few edits and signing Yoo’s legal work?
Then there’s the report itself. The bar for disciplinary action is incredibly high. Legal ethics experts, like Geoffrey Hazard at the University of Pennyslvania, say they expect nothing to happen, even if the state disciplinary boards were to investigate. Hazard says Yoo and Bybee have a number of strong available defenses, and that it’s awfully hard to say the memo was so “outside the range of plausible lawyered judgment that no reasonable lawyer could render it.” Without that, he says, there’s no ethical violation.
When Mukasey read the report, he was so dissatisfied, he demanded Yoo and Bybee be allowed to comment—as [Michael] Isikoff also reported back in February.
Mukasey then wrote a detailed response, also signed by Deputy Attorney General Mark Filip, that was harshly critical of OPR’s efforts, which he said veered far afield into matters that were irrelevant to whether Yoo and Bybee gave bad legal advice. What would be the relevance, for example, of details of at least one CIA interrogation that went horribly wrong—if that interrogation had gone beyond what the memos approved in the first place?
So all the talk about referrals, all the leaks about how the two men erred in judgment, starts to feel a little bit like old-fashioned politics. Especially when you think about the timing of the report—as Mukasey was packing up his office and a new administration coming in—and big-time blown deadlines.