Dep’t of Easily Solved Problems

David Margolis clears Yoo and Bybee on the grounds that the dishonest memos they wrote to facilitate torture didn’t break any rules because they didn’t have “a duty to exercise independent legal judgment and to render thorough, objective, and candid legal advice.” Congress could fix that.

Jack Balkin of Yale Law School sums up Associate Deputy Attorney General David Margolis’s decision not to turn over the Yoo and Bybee files to Bar disciplinary committees:

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.

Please, let someone in Congress propose a new law, reading, “Every attorney employed by the United States Government shall have the duty to exercise independent legal judgment and to render thorough, objective, and candid legal advice.” If Republicans want to vote against it, let them.

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact: Markarkleiman-at-gmail.com

4 thoughts on “Dep’t of Easily Solved Problems”

  1. Now what about Berkeley, whose Boalt law school employs Yoo? The dean punted the movement by Brad deLong (and others?) to at least launch an inquiry into whether Yoo's professional malfeasance as a DOJ employee justified sacking him from a teaching post. The dean's argument as I recall it was that others had to act first. Now the DOJ has found that Yoo did act professionally like a cheap shyster. Is that the appropriate standard for a teacher in any professional school? Should cookery be taught by chefs who brush their teeth before spitting in the soup, or flying by pilots who only drink and snort coke half a day before getting into the cockpit?

  2. "The dean’s argument as I recall it was that others had to act first. "

    IIRC, the wh*reson (I refuse to call him 'Dean') basically said that he'd do squat until Yoo was prosecuted.

    That wh*reson's statement reminded my of lynching postcards. Ordinarily, one might not pose for a photo in front of the tortured corpse of somebody that one has helped murder – after all, that's why white hoods and darkness was invented.

    However, if the fix is in to the extent that it was in the American South, 1900-1930, it becomes a minor risk. For example, if that photo included the mayor, minister, and a couple of prominent citizens, the risk would be tiny.

    In an almost exact parallel, the fix is in on Yoo and Bybee. The GOP powers-that-be support them 100%, they could probably bring down a bunch of other GOP guys if prosecuted, and the Democratic leadership is fine with this – Obama has claimed a bunch of nasty-*ss powers which Bush & co. first claimed.

  3. That would be a very interesting law to pass. I wonder how the AUSAs feel about recent applications of "honest services" fraud. I'm sure that Jeff Skilling and Conrad Black might be interested in finding out whether each and every prosecutor believed in the interpretation of the statute as applied in each of these cases.

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