Obstruction of justice - not a crime any more?

Attention is focusing, as it should, on the apparent fact that hundreds of John Yoo's e-mails from crucial periods in the drafting of the Torture Memos have vanished. Patrick Leahy focused on this at a Senate hearing today; a subpoena is long overdue. As Scott Horton notes, "Emails at an institution like the Justice Department don’t just “disappear.” Someone deleted them. Moreover, for a deletion to be effective enough to avoid an investigation, extraordinary steps have to be taken." Indeed. John Yoo couldn't have wiped servers from his own computer; he needed help. Or else they weren't wiped and are still retrievable but DOJ has not really tried. Frankly, I suspect the latter is more plausible.

Horton also discusses how the OPR reports missed the mark:

Georgetown professor Michael Frisch, one of the District of Columbia’s leading legal ethics experts and a long-time enforcer for the D.C. Bar Council, *** eviscerated both the OPR report and the David Margolis memo. The key ethics inquiry, he argued, was under Rule 1.2(d)—whether Yoo, Bybee, and Bradbury were actually counseling a crime. In this case, the evidence that their advice was designed to facilitate torture is clear-cut, torture is a felony, and multiple players putting a scheme in place to torture is a conspiracy to torture. Yet neither the OPR report nor David Margolis even considered this question, focusing all their energy instead on two weak and rarely enforced provisions of the ethics code dealing with the duty of candor and the duty to exercise independent professional judgment.

Frisch also reviewed Margolis’s disingenuous use of D.C. case law in some detail, noting that in one key passage Margolis distorted a case that Frisch managed for the D.C. Bar. Finally, he said that the Justice Department, when presented with evidence of a serious ethics lapse by its officers, had a duty under Rule 8.3 to turn the matter over to the D.C. Bar for action. Not only did it fail to do this, its memos suggest it wasn’t even aware of the obligation. The lesson to draw from this, Frisch suggested, is that the Justice Department has failed to show it is capable of self-regulation.

I think we already knew that, but it's good to hear it from an expert.