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. Margolis noted that it was a “close question” whether Yoo had “intentionally or recklessly provided misleading advice.” He added, “Yoo’s loyalty to his own ideology and convictions clouded his view of his obligation to his client and led him to author opinions that reflected his own extreme, albeit sincerely held views of executive power while speaking for an institutional client.” These are damning words, certainly. But such words won’t hurt as much as being disbarred.
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.
UPDATE 1: The OPR report notes that the Yoo and Bybee probe was “not a routine investigation”—partly because Yoo’s emails were deleted and because David Addington, Dick Cheney’s legal counsel, refused to cooperate with OPR investigators. Consequently, OPR investigators noted, “It remains possible that additional information eventually will surface regarding the CIA program and the military’s interrogation programs that might bear upon our conclusions.”