The Margolis Memo
Legal ethicist David Luban delivers a coup de grâce to the Margolis memorandum in a piece at Slate entitled “David Margolis is Wrong”:
Margolis’ critique got Yoo and Bybee off the hook. So how strong is his position compared with OPR’s? The short answer: weak.
The focus of OPR’s investigation is two memos from Aug. 1, 2002. They were written in secrecy by John Yoo and an assistant in the Office of Legal Counsel whose name is redacted. Bybee, as head of OLC, signed off on the memos. One memo analyzes torture, executive power, and criminal defenses for interrogators accused of torture; the other approves 10 techniques for tormenting Abu Zubaydah in a secret CIA prison, including water-boarding him. The question for OPR was whether Bybee and Yoo had violated ethics rules by twisting the law to the breaking point to give CIA operatives maximum assurance and leeway.
Both the OPR report and Margolis agree that (in Margolis’ understatement) “these memos contain some significant flaws.” There they part company. The OPR report finds that Yoo and Bybee violated two rules of professional conduct: Rule 1.1, requiring competence, and Rule 2.1, requiring lawyers to “exercise independent professional judgment and render candid advice.” Margolis rejects OPR’s analysis and concludes that “poor judgment” rather than professional misconduct “accounts for the entirety of Yoo’s work” on the torture memos.
But that’s not the right characterization for memos that used extravagant legal reasoning to approve torture. It’s like saying that Iago’s advice to Othello showed poor judgment. OPR made a powerful case against Bybee and Yoo. In response, Margolis went after OPR like a defense lawyer, upped the burden of proof beyond what the ethics rules require, and minimized the liberties that Yoo and Bybee had taken with the law.
The Margolis memo simply doesn’t make sense as a discussion of legal ethics. It is a political document and has to be understood that way. It tells us that Department political interests trump ethics.
Over the past two years, I have consistently been told by insiders at Justice that an elaborate game was played to try to slow down or block the OPR’s report. Efforts were made to pressure OPR to rewrite its report, to adopt softer standards, to allow Yoo and Bybee to respond internally, and to require OPR to address the responses. I was told that one man was consistently behind these tactics: David Margolis. So, far from being an objective and impartial analyst, Margolis became engaged in the process at least by the fall of 2008, as an advocate for Yoo and Bybee and opponent of OPR.
The first question is simple: Why is a career Justice Department official with well-documented sympathies being put in the position of final reviewer? Margolis not only lacks serious grounding in professional ethics rules; his prior decisions reflect an attitude that borders on overt contempt for them.
But a couple of further points are necessary. One is that Margolis’s own memorandum weirdly mirrors the torture memoranda. He uses what legal academics call the doctrine of legal indeterminacy as a shield for these lawyers. He argues that the law is unclear, riddled with ambiguities. Of course, this is the key weapon used by Yoo in the torture memo and a number of others—he claims that the legal standards are unclear and that in the face of such uncertainty, the power of the president as commander-in-chief cannot be limited. Margolis proceeds to demonstrate that he knows next to nothing (and apparently cares very little) about U.S. law of war doctrine. His arguments are clever and cute—about the sort of thing one would expect of a very aggressive defense counsel.
Second, Margolis makes a great deal of OPR’s changes in its text. He suggests that this reflects a lack of clarity in the process and standards they apply. This is a dishonest argument, because the changes in the text resulted very largely from David Margolis’s own prodding and perversion of proper procedure. He was, we can now clearly say, setting them up for the fall.
Third, and this is very telling, Margolis really doesn’t think that the candor rules of the Code of Professional Responsibility should apply to the torture memo writers. They are just telling a client “what he can get away with,” Margolis tells us, quoting Jack Goldsmith. That’s a breathtaking statement. But it also reflects a longstanding battle in Washington, in which the Justice Department has argued that its lawyers should not be subjected to the ethics requirements of the various state bars but only to those of the D.C. bar—which are heavily influenced by the Justice Department. Specifically, the Justice Department has assailed the idea that its lawyers are required to deal with outsiders honestly, claiming that it should be exempted from this requirement in the interests of national security and effective criminal prosecution. Lying for country and to gain speedy convictions—how noble. Here’s a leaked Congressional Research Service review of the Justice Department’s shifty positions on these issues, setting much of the background. One Justice Department leader figures consistently behind the efforts to dodge bar ethics oversight: that’s right, David Margolis.
Let’s be clear about what makes David Margolis tick. He’s not a partisan Republican or a partisan Democrat. He has no real engagement in terms of partisan politics. He represents a culture of craven clientalism in which lawyers are not the champions of the law but instruments in the hands of their employers, dedicated to getting them the results they want. Margolis is prepared to do the bidding of his master, whether his name is Alberto Gonzales or Eric Holder. In the case of the torture memo writers, he also saw a threat to the culture he has promoted at the Justice Department. It would lead, he thought, to internecine warfare within the department between Democrats and Republicans. Indeed, prominent Republicans were threatening just that. Nothing would be so threatening to the matrix in which Margolis thrives as this, and he was determined to stop it. So the final outcome in the Bybee/Yoo case has nothing to do with legal ethics. It is driven by David Margolis’s assessment of pragmatic politics and his willingness to do whatever it takes to achieve his goals.