News reports yesterday made much out of the fact that a draft report about the so-called “torture memos” doesn’t recommend criminal prosecution for DOJ officials John Yoo and Jay Bybee, but instead would only refer them to their state bars for disciplinary proceedings.
Setting aside that my friend Mike Isikoff reported this back in February, the flurry of reporting is baffling for another reason: It appears John Yoo cannot be disciplined or disbarred for writing those memos, even if the Office of Professional Responsibility says it has evidence he should be.
That’s because OPR’s five-year investigation—carefully timed for release only as Bush was leaving the White House and Obama was coming in—dragged on too long. As a result of that timing, OPR blew the deadline for referring possible misconduct allegations against Yoo.
John Yoo is admitted to the bar in Pennsylvania. But the Pennsylvania Disciplinary Board, which would investigate any complaints against him, imposes a four-year limitation for complaints.
Yoo wrote the memos in 2002 and 2003. This is 2009. You do the math.
Here’s the pertinent section, from the state’s Disciplinary Board Rules:
“The Office of Disciplinary Counsel or the Board shall not entertain any complaint arising out of acts or omissions occurring more than four years prior to the date of the complaint.”
There are a few exceptions—that the lawyer concealed a crime, for example--which don’t apply.
This is a huge issue for current DOJ officials and Attorney General Eric Holder. Because if Yoo--who wrote the memos and has been vilified as responsible for approving the interrogation program—can’t be disciplined under state bar rules, why then would OPR even refer the matter to state bar officials in the first place?
And what about Bybee? Now a federal appeals court judge, Bybee is admitted in DC and Nevada—those jurisdictions don’t have comparable limitations periods. But how strange would it be to only refer Bybee, when his involvement largely amounted making a few edits and signing Yoo’s legal work?
Then there’s the report itself. The bar for disciplinary action is incredibly high. Legal ethics experts, like Geoffrey Hazard at the University of Pennyslvania, say they expect nothing to happen, even if the state disciplinary boards were to investigate.
Hazard says Yoo and Bybee have a number of strong available defenses, and that it’s awfully hard to say the memo was so “outside the range of plausible lawyered judgment that no reasonable lawyer could render it.” Without that, he says, there’s no ethical violation.
When Mukasey read the report, he was so dissatisfied, he demanded Yoo and Bybee be allowed to comment—as Isikoff also reported back in February.
Mukasey then wrote a detailed response, also signed by Deputy Attorney General Mark Filip, that was harshly critical of OPR’s efforts, which he said veered far afield into matters that were irrelevant to whether Yoo and Bybee gave bad legal advice.
The report, for example, provides specific details of at least one CIA interrogation that went horribly wrong—an interrogation that was outside the scope of what the memos approved in the first place.
So all the talk about referrals, all the leaks about how the two men erred in judgment, starts to feel a little bit like old-fashioned politics. Especially when you think about the timing of the report—as Mukasey was packing up his office and a new administration coming in—and big-time blown deadlines.