Near as I can tell from the NYT story, the OPR lawyers themselves found professional misconduct, but DOJ has rejected that finding and had David Margolis write a whitewash, saying that, gosh, you just had to be there:
He said the ethics lawyers, in condemning the lawyers’ actions, had given short shrift to the national climate of urgency in which Mr. Bybee and Mr. Yoo acted after the attacks of Sept. 11, 2001. “Among the difficulties in assessing these memos now over seven years after their issuance is that the context is lost,” Mr. Margolis said.I don't remember the "context defense" at Nuremberg, but perhaps I've forgotten. What is "national climate of urgency" in the original German?
... Ambinder predicts calls to impeach Bybee and disbar Yoo (fat chance); more interesting will be how each side uses the report in the Padilla case.
... Jack Balkin is scathing:
In deciding not to refer charges to state bar committees, Margolis does not tell us that Yoo and Bybee behaved admirably or according to the high standards that we should expect from Justice Department lawyers. Indeed, he says the opposite. Yoo and Bybee exercised poor judgment and let the Justice Department down. But Margolis argues that the Office of Professional Responsibility chose too high a standard to judge the professional responsibility of Yoo and Bybee. The OPR argued that Yoo and Bybee had "a duty to exercise independent legal judgment and to render thorough, objective, and candid legal advice." This standard, Margolis explained, is much too high a requirement and not one that Yoo and Bybee were previously warned was the standard to which they would be held.Interesting. If Yoo had a *duty* and violated it, that would seem to be at least negligence ....
I know what you are probably saying: shouldn't every government lawyer have to live up to this standard? Of course, they should, but the point is that this is a disciplinary proceeding. It's not about what people should do, but about how badly they have to screw things up before they are subject to professional sanctions.
Instead, Margolis argues that, judging by (among other things) a review of D.C. bar rules, the standard for attorney misconduct is set pretty damn low, and is only violated by lawyers who (here I put it colloquially) are the scum of the earth. Lawyers barely above the scum of the earth are therefore excused.Are we distinguishing here between advocacy and counsel? There is a world of difference between making a bad argument in court as an advocate, because it's all your client's got, and making a bad argument in a client memo, where you are supposed to be telling your client the unvarnished truth. Any professional code that ignores this distinction is worthless.
Margolis concludes that Yoo and Bybee exercised poor judgment and made bad legal arguments. But lawyers often make arguments that are bad or even laughably bad, and this by itself does not violate the very low standard set by rules of professional responsibility.
To show misconduct, according to the standard that Margolis finds most relevant, one would have to show that Yoo or Bybee intentionally made arguments that they knew were wrong and false or did so not caring whether they were wrong or false. That standard could not be met for Jay Bybee, because Bybee was, to put it bluntly, an empty suit who relied on the advice of others and didn't analyze the memos all that closely. He just signed the papers. This makes him pathetic, but not, in Margolis's view, someone who unambiguously violated existing rules of professional responsibility.Even on Margolis's standard, that doesn't wash. The issue is not and cannot be whether Yoo personally believed the law *should* agree with his ideology; the issue is whether Yoo knew, or did not care to know, that his analysis was false as a description of the law.
As for John Yoo, Margolis explains (although he puts it far more diplomatically) that Yoo was an ideologue who entered government service with a warped vision of the world in which he sincerely believed. Yoo had crazy ideas even before he entered government; which strongly suggests that he probably shouldn't have been hired in the first place. Therefore it is hard to conclude that Yoo deliberately gave advice that he knew was wrong to the CIA. Yoo isn't putting people on when he says the absurd things he says in these memos and elsewhere. He actually believes that the President is a dictator and that the President doesn't have to obey statutes that make torture a crime. He actually believes that you should read the torture statute so narrowly that it lets the CIA torture people. John Yoo used every trick in the book to twist the law because he actually believes in a law that is twisted.
I can just see a tax lawyer arguing that he shouldn't be sanctioned because, in his sincerely held opinion, income tax is unconstitutional, and he advised his client accordingly. That wouldn't fly; why should such an argument fly re: torture?