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More Investigations for the Torture Lawyers

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I am just back from the Alliance For Justice’s panel discussion on the OPR Report, at which I spoke, at the Washington office of Wilmer Hale. The show-stealer was the presentation by Georgetown professor Michael Frisch, one of the District of Columbia’s leading legal ethics experts and a long-time enforcer for the D.C. Bar Council.

Frisch eviscerated both the OPR report and the David Margolis memo. The key ethics inquiry, he argued, was under Rule 1.2(d)—whether Yoo, Bybee, and Bradbury were actually counseling a crime. In this case, the evidence that their advice was designed to facilitate torture is clear-cut, torture is a felony, and multiple players putting a scheme in place to torture is a conspiracy to torture. Yet neither the OPR report nor David Margolis even considered this question, focusing all their energy instead on two weak and rarely enforced provisions of the ethics code dealing with the duty of candor and the duty to exercise independent professional judgment.

Frisch also reviewed Margolis’s disingenuous use of D.C. case law in some detail, noting that in one key passage Margolis distorted a case that Frisch managed for the D.C. Bar. Finally, he said that the Justice Department, when presented with evidence of a serious ethics lapse by its officers, had a duty under Rule 8.3 to turn the matter over to the D.C. Bar for action. Not only did it fail to do this, its memos suggest it wasn’t even aware of the obligation. The lesson to draw from this, Frisch suggested, is that the Justice Department has failed to show it is capable of self-regulation.

Frisch is certainly right about this. Indeed, he’s being charitable to the Justice Department. The solution that suggests itself is to abolish OPR and place its mandate in the hands of the Department’s inspector general, who is both autonomous and has demonstrated the competence and energy that the task requires. Eric Holder, however, suggests that everything is just wonderful at DOJ, this best of all possible worlds–even at OPR.

The New York Times had a sober editorial today, making some obvious points:

Poor judgment is an absurdly dismissive way to describe giving the green light to policies that have badly soiled America’s reputation and made it less safe. As the dealings outlined in the original report underscore, the lawyers did not offer what most people think of as “legal advice.” Mr. Yoo and Mr. Bybee were not acting as fair-minded analysts of the law but as facilitators of a scheme to evade it. The White House decision to brutalize detainees already had been made. Mr. Yoo and Mr. Bybee provided legal cover.

More to the point, the Times zeroes in on what strikes me as the fishiest part of the whole DOJ ethics escapade: the “disappearance” of John Yoo’s and Patrick Philbin’s emails. Emails at an institution like the Justice Department don’t just “disappear.” Someone deleted them. Moreover, for a deletion to be effective enough to avoid an investigation, extraordinary steps have to be taken. In a criminal investigation (as should have taken place), this would have been an act of criminal obstruction. What’s out there that they don’t want us to see?

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