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In a late Friday afternoon document dump, the Justice Department finally released a heavily redacted report addressing the ethical lapses of the torture lawyers: John Yoo, now a professor at the University of California at Berkeley; Jay Bybee, now a judge at the United States Court of Appeals for the Ninth Circuit; Steven G. Bradbury, now a partner at Dechert LLP; and others at the Office of Legal Counsel. The professional staff in the Office of Professional Responsibility, charged with reviewing OLC actions, concluded that Yoo and Bybee had engaged in serious professional misconduct and that their cases should be referred to appropriate state bar disciplinary organs for review and further action. In an unusual addendum, however, Associate Deputy Attorney General David Margolis overruled the OPR findings, concluding that the conduct of the OLC lawyers did not rise to the level of “professional misconduct.” Margolis argued that OPR had failed to elaborate clear standards against which the lawyers could be judged.
The Margolis addendum, by arguing essentially that nothing can be done, raises a critical question: Is the Justice Department any longer capable of policing itself? The question has little to do with the torture issue, important as that is, or with partisan politics in general. It is clear now that the OPR itself is totally dysfunctional. The institutional ethos is now simple: the client is the president, and the department should do what it takes to make the client happy. Lawyers who serve their client will be protected and exonerated, even if they commit serious crimes in the process. Lawyers who cross the client are in serious trouble, even if they have only acted because of ethics requirements.
This mindset has survived the recent transition. Consider, for instance, the much ballyhooed public-integrity prosecution of former Alaska Senator Ted Stevens, a Republican. A conviction was secured, but soon thereafter it became apparent that the prosecution team had committed public corruption crimes potentially more serious than those they had charged against Stevens. The prosecutors now face a criminal inquiry themselves—and none of this happened as a result of internal Justice Department ethics action. Indeed, the Justice Department reacted to repeated warnings and inquiries by Judge Emmett Sullivan by doing absolutely nothing.
Or consider the New Year’s eve decision by Judge Ricardo Urbina to dismiss the department’s highest profile prosecution of seven Blackwater guards in connection with the shooting of seventeen Iraqi civilians in 2007. In a 91-page-opinion, Urbina catalogued a pattern of outrageously abusive conduct by prosecutors.
Or the December 15 hearing in Santa Ana, California, in which Judge Cormac J. Carney acquitted a group of Broadcom executives. The judge proceeded to excoriate the prosecutors. They had pressured an innocent man to accept a guilty plea to help lay the foundations of their case, Carney charged. In a manner reminiscent of authoritarian societies, they had intimidated the thirteen-year-old son of one defendant in an effort to get him to provide evidence against his father. The Justice Department’s conduct had been “shameful and contrary to American values of decency and justice,” the judge said.
The cases of Don Siegelman, Paul Minor, Charles Walker, and others reflect still more egregious misconduct, often with a strong political element. These cases were not undertaken by out-of-control youngsters. They are among the highest profile cases in the department; they were under supervision at the highest levels. David Margolis himself repeatedly hovers in the background of these cases, saying that everything is just fine when ethics failings are spotlighted by outsiders. Margolis presents himself as an ethics expert. But his views are incomprehensible in terms of ethics. They are far better understood in terms of political convenience.
Boston NPR affiliate WBUR recently did a series of reports on the ethics implosion in the Justice Department. In the final episode, “The Judges’ Rebellion,” they reviewed how federal judges finally became so disgusted with the institutionalized misconduct and the Justice Department’s refusal to discipline misbehaving lawyers that they began disciplining the prosecutors themselves—taking the same approach adopted by Judge Sullivan in Washington.
Fordham law professor Bruce Green, a former federal prosecutor, recently provided the ABA Journal with a disturbing slogan for OPR. “I used to call it the Roach Motel of the Justice Department,” he said. “Cases check in, but they don’t check out.” A year after the arrival of a new president and a new attorney general, the roach motel remains in business.
More from Scott Horton:
Conversation — March 30, 2016, 3:44 pm
Joseph Hickman discusses his new book, The Burn Pits, which tells the story of thousands of U.S. soldiers who, after returning from Iraq and Afghanistan, have developed rare cancers and respiratory diseases.
In Havana, the past year has been marked by a parade of bold-faced names from the north — John Kerry reopening the United States Embassy; Andrew Cuomo bringing a delegation of American business leaders; celebrities ranging from Joe Torre, traveling on behalf of Major League Baseball to oversee an exhibition game between the Tampa Bay Rays and the Cuban national team, to Jimmy Buffett, said to be considering opening one of his Margaritaville restaurants there. All this culminated with a three-day trip in March by Barack Obama, the first American president to visit Cuba since Calvin Coolidge in 1928. But to those who know the city well, perhaps nothing said as much about the transformation of political relations between the United States and Cuba that began in December 2014 as a concert in the Tribuna Antiimperialista.
Chances that a Republican man believes that “poor people have hard lives”:
A school in South Korea was planning to deploy a robot to protect students from unwanted seductions.
Nuremberg’s Neues Museum filed a criminal complaint against a 91-year-old woman who completed a crossword puzzle that was in fact a $116,000 piece of avant-garde Danish art.
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“Matt was happy enough to sustain himself on the detritus of a world he saw as careening toward self-destruction, and equally happy to scam a government he despised. 'I’m glad everyone’s so wasteful,' he told me. 'It supports my lifestyle.'”