Despite a conflicting opinion from their own Office of Professional Responsibility, the Justice Department announced on Friday that Jay Bybee, the head of the Office of Legal Counsel under George W. Bush, and John Yoo, one of his deputies, did not commit professional misconduct when they gave the White House legal advice which permitted some forms of torture (pdf). Deputy Associate Attorney General David Margolis overruled an internal ethics report (pdf) which charged Bybee and Yoo with professional misconduct and called for them to be turned over to their state bar associations for disciplinary hearings. A charge of professional misconduct can lead to disbarment.
Margolis, a career prosecutor and the highest-ranking nonpolitical lawyer at the DOJ, chose to overrule the recommendations of the OPR, which were drafted during the Bush administration, because, he said, the ethics office’s standards for ethical misconduct are not clearly defined.
Yeah, take a moment with that one.
In the absence of clearly defined ethical standards governing the performance of the nation’s most powerful lawyers, Margolis held that Bybee and Yoo were guilty of nothing more actionable than a “performance deficiency” and “poor judgment,” albeit poor judgment that dovetailed remarkably neatly into John Yoo’s “loyalty to his own ideology and convictions” and “extreme, albeit sincerely held, views of executive power.” Also, 9/11. Which was really stressful. All the same, his decision, he said, was not to be taken as a sign that the DOJ approved of the “flawed” work of the two lawyers, much of which was sufficiently flawed that the Bush administration eventually disavowed it.
Nonetheless, Yoo and Bybee, who objected strenuously to previous drafts of the OPR report they were repeatedly provided with by the Bush-era DOJ, immediately took a victory lap. “I am heartened,’ said Yoo, “that Mr. Margolis understood that our work in the immediate months after 9/11 was done in good faith, under demanding pressures, to protect our nation from more terrorist attacks.” A lawyer for Bybee said that he was vindicated by Margolis’ decision, and that attacks on his performance were “misinformed.”
Yoo teaches law at UC Berkeley now. Bybee’s a federal appeals court judge.