Legalities
Life, Politics and the Law From ABC News Correspondent Jan Crawford Greenburg
Jan Crawford Greenburg is a correspondent for ABC News' bureau in Washington DC. She covers politics, the Supreme Court and provides legal analysis for ABC News. She is a graduate of the University of Chicago's law school and is a member of the New York bar.
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Tortured Timing
May 06, 2009 11:31 AM
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. What would be the relevance, for example, of details of at least one CIA interrogation that went horribly wrong—if that interrogation had gone beyond 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.
UPDATE: My friends at Volokh are commenting that Yoo could be disciplined in Washington D.C., where he practiced. But Yoo wasn't admitted in DC. And while ABA Model Rule 8.5a indeed says non-admitted lawyers may be disciplined if they provide legal services in the jurisdiction, DC took that very sentence out when it adopted the model rules. DC bar rules, in other words, don't have the comparable provision for non-admitted attorneys that's found in the ABA Model Rules. So the way I read these various rules--whether you look at the McDade Amendment (which says DOJ attorneys are subject to state rules "to the extent as" private attorneys) or through DC rules, Yoo is not subject to discipline in DC.
May 6, 2009 | Permalink | User Comments (17)
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OK now we punish the lawyers - Ok - now what punishment should be given to the congressional memebers who knew of the EIT? If I were the lawyers - I would want a public trial. Would not the ACLU demand this a they are innocnet unitl proven guilty?
Posted by: jamescbuilder | May 6, 2009 12:30:15 PM
jamescbuilder:"OK now we punish the lawyers - Ok - now what punishment should be given to the congressional memebers who knew of the EIT?"
The lawyers are being investigated for providing falsified or grossly derelict professional advice. In a licensed field, this is actually a crime.
" If I were the lawyers - I would want a public trial."
This is a board issue, not a criminal trial. If you were the lawyers, you would understand the absurdity of requesting a public trial or involving the ACLU in local board disciplinary actions.
Posted by: jhw539 | May 6, 2009 12:41:11 PM
Oops, dropped a word, that should have said: "This is NOW a board issue, not a criminal trial."
The investigation was to determine if criminal charges should be filed and the answer was no, hence it is now a board matter (but too late due to what looks like political stalling).
Posted by: jhw539 | May 6, 2009 12:42:55 PM
jwh539 - You misunderstood me - I know that bar preceedings are private and not a public trial - What I meant was, as a lawyer and in this matter, I would prefer to be criminally charged and then you would have the opportunity to depose all parties concerned. The entire issue is entirely political. If it were not and it was soley about the "legal" treatement of detainees, then would not the Clinton lawyers be disciplined for advising on redention?
Posted by: jamescbuilder | May 6, 2009 1:47:05 PM
You are all missing the point .. they (Holder/Obama/etc.) don't care if there are any consequences. In fact it is *better* for them if here is no prosecution, because without prosecution there can be no exoneration.
This is all about cover to continue the character assassination and characterization of the previous administration as evil.
Posted by: Tom J. | May 6, 2009 3:20:44 PM
If an OLC lawyer suggests to the Penn bar that Yoo be disbarred for incompetent lawyering without checking as to whether there is a statute of limitations, is that incompetent lawyering?
Note, tho, that there might be a question as to when the statute of limitation begins to toll (is that the word?). When was the memo made public? Is that the time, or was it whenever somebody in the OLC read the memo and thought it was poorly written?
Posted by: Eric Rasmusen | May 6, 2009 9:25:00 PM
Another question:
The Yoo memo was superseded by a revised OLC memo a couple of years later, that left out some of his legal arguments. The replacement memo didn't change the conclusions, though. So how bad can Yoo's lawyering be if after great effort, the OLC still agreed with his bottom line? (Alternatively: why aren't people going after the OLC staff of 2004-2009?)
Posted by: Eric Rasmusen | May 6, 2009 9:28:03 PM
Jan, you are the only person that I respect @ ABC! No lawyer here, but you have laid it out without legalese.
Thank you very much!!!
Posted by: plainsm | May 6, 2009 11:52:00 PM
We have low-ranking soldiers serving long prison sentences for doing the things these idiots proposed, yet all of those that created and gave the orders will get off free.
"It's almost an out-of-body experience to me to listen to this debate going on," said General Barry McCafferey in an MSNBC interview last month, scolding pundits and policymakers who openly advocate a criminal torture regime. "We should never, as a policy, maltreat people under our control--detainees. We tortured people, unmercifully, we probably murdered dozens of them," he said. McCaffrey supports an investigation of the government lawyers who knowingly advocated illegal torture, and he specifically cited Bush's White House counsel and attorney general in the same discussion, emphasizing that "we better find out how we went so wrong."
I agree with the General. Let's find out the truth, and not hide it.
Posted by: James B. | May 7, 2009 6:37:18 AM
Substantial doubts have been raised over at the Volokh Conspiracy legal blog regarding Jan Crawford Greenburg's conclusion that Yoo "cannot be disciplined."
Some commenters, quoting the D.C. bar rules, believe that Yoo is subject to the D.C. bar, even though he is not admitted there.
Posted by: Just an Observer | May 7, 2009 10:05:23 AM
It is my understanding that the reason that President Obama doesn't want anything other than bad publicity for the former White House is that his Justice Department is using the same legal logic that Yoo used to deport an accused Nazi war criminal. If they succeed in nailing Yoo, they will have to allow the Nazi to stay in the U.S. along with assorted terrorists, etc. that they are working on deporting. It is a fine example of American law. Because we have abandoned a reference to an absolute standard and have gone to 'case' law, our mishmash of conservative and liberal judges have created a maze that Solomon couldn't navigate. Shakespeare must have been prescient when he said 'kill the lawyers first!'.
Posted by: RonG | May 7, 2009 10:32:23 AM
"In a licensed field, this is actually a crime."
Really? Can you cite us to the relevant statute?
Posted by: Fascist Hyena | May 7, 2009 10:47:11 AM
What is the statute of limitations for whatever crimes the CIA guys and the lawyers are alleged to have committed? The memos are six years old, and so far as I am aware the interrogation measures in controversy ceased in 2003.
Wasn't any discussion of criminal prosecution moot from the beginning?
Posted by: Fascist Hyena | May 7, 2009 10:49:23 AM
"Note, tho, that there might be a question as to when the statute of limitation begins to toll (is that the word?)."
Good question. (Lawyers would ask when the statute begins to "run." A "tolling" period refers to when the clock is suspended for some reason.)
I suspect that the statute began run no later than when the memo was read by the OPR people.
Posted by: Fascist Hyena | May 7, 2009 10:57:35 AM
See DC Bar Rule 49(c) for the exceptions to who has to be licensed in DC. Yoo clearly did not have to be licensed, so DC has no jurisdiction to reprimand him.
Posted by: cmugirl | May 7, 2009 4:35:08 PM
Nice report. One thing - you misread the langauge in the Disciplinary Board rule. You claim there is an exception for "concealing a crime." This is not in fact what the rule states. 85.10(b)(1) provides exceptions to the 4 year limit in three *distinct* cases:
1) Theft or misappropriation
2) Conviction of a crime
3) Knowing act of concealment
I read "knowing act of concealment" to mean that an Attorney knowingly commits an act that causes his/her violation(s) to be concealed from the client. It is possible, although very unlikely, that the Disciplinary Board could find that Yoo knowingly concealed his actions.
I imagine your misreading was caused by the drafter's choice to not use a comma after each item in the list thus giving the appearance that "conviction of a crime" was related to a knowing act of concealment.
Posted by: Anon | May 7, 2009 7:05:00 PM
So then a lawyer advised that Clinton could lie under oath, that lawyer should be prosecuted as well?
Nothing is "going to change." Military Commissions will remain, they'll tweak the rules, keep repatriating as many as they can (as they were already during under the Bush administration), and maybe change the name (to show "change") - when essentially it's the same show. KSM & ABZ aren't going anywhere.
Anyone who thinks things would have been any different if Bush had not been POTUS needs to quit drinking the Jim Jones kool-aid.
Posted by: Moman Pruett | May 7, 2009 9:50:00 PM
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