Blog on the Run: Reloaded

Thursday, February 25, 2010 11:39 pm

Lock him up

More evidence, were more needed, that Justice Department official David Margolis has crossed a line no lawyer should cross.

Who watches the watchers?

Related: During his tenure as chairman of the Senate Intelligence Committee between 2002 and 2007, Republican Sen. Pat Roberts of Kansas told the CIA that destroying evidence of crimes was just dandy with him. Have I mentioned lately how much I miss Nancy Kassebaum?


  1. I’ll call your Harper’s and raise you one Forbes.

    Justice Is Done: by Richard Epstein

    “As a small government libertarian, I regard these memos as bunk. So, evidently, do many in the Obama Department of Justice. In late July 2009, its Office of Professional Responsibility issued a report that found both men guilty of professional misconduct which they urged should lead to disciplinary action against before their respective state bars. This past week David Margolis, a career official in DOJ, issued a long-awaited report that rejected the finding of professional misconduct even as it excoriated the memos.

    It is easy, of course, to applaud the decision if you believe, as many people do, that Yoo’s muscular interpretation of presidential power is warranted on either textual or political grounds. It is equally easy to denounce the report if you think that Yoo made up the entire legal structure out of whole cloth. But hats off to Margolis whose institutional savvy led him to split the difference.

    On the sanctions question, Margolis accepted the view that the pressures of the moment excused the poor legal work given the good faith of its authors. It takes no imagination to realize that the threat of a repetition of 9/11 weighed heavily on executive branch officials who desperately sought slack in the war against this shadowy but deadly enemy.

    On reflection, however, the courageous Margolis reached the right result for the wrong reason. It is a mistake to make the protection afforded government officials facing political charges depend on that key finding of good faith, on which people acting in good faith could easily differ. To get the needed information on mental state requires extensive investigations that necessarily put many other public officials in the crosshairs, which could in turn make able people more reluctant to take up the thankless task of public service.

    Given these institutional risks, good faith is not the right test. What is needed is absolute immunity from investigation. Discipline should be left to cases like bribery, insubordination, and unauthorized document leaks. It should not extend to errors in legal judgment, however egregious. The argument for this position does not seek perfect justice. Instead it is consciously content to accept a lesser evil in the case to preserve the larger gain to DOJ as a whole.

    The invocation of absolute immunity is not without precedent. A 1959 decision of the late Justice John Marshall Harlan in Barr v. Mateo gave official immunity to a public official for actions taken within the “outer perimeter” of his official duties. Subsequent legal decisions, most notably the 1978 case of Butz v. Economou substituted a qualified for the absolute immunity, thereby allowing suits to go ahead on proof of the “actual malice” of the public official charged with wrongdoing.

    Unfortunately, in these matters there is no way to keep the door to liability only ajar; it is either wide open or shut tight. Liability against government officials is not sought for negligent acts. It is always demanded for conscious decisions that in the light of hindsight could easily be called malicious. It is therefore difficult in civil litigation for government officials to get summary judgment in baseless cases bought by kooks. I can still recall hearing the late Edward Levi’s bitter complaints about having to defend himself against frivolous lawsuits even after he stepped down as Attorney General.

    The retort is, of course, that private lawsuits are one matter, but disciplinary proceedings are quite another. Indeed one solid argument for absolute immunity in civil litigation is that disciplinary proceedings provide a more focused sanction than countless lawsuits. What legal sanction, it may be asked, is available against Yoo or Bybee if both private lawsuits and public discipline are foreclosed?

    The correct answer is none. The political risks of using legal sanctions are just too great. The risk is evident even when discipline is exacted against a public officer by his own party, and risks are vastly multiplied when one administration seeks sanctions against the political actors of its predecessor. In a functioning democracy the correct sanctions are solely social and political. Speak and denounce if you will. Appeal to the court of history. Teach the memos unto the next generation to expose their many weaknesses. I for one have attacked the Yoo position in the media, debated with Yoo (who is, for the record, depressingly effective), opposed him in amicus briefs, public speeches and academic writings.

    But there I draw the line. Let’s thank David Margolis for putting a stop to a legal crusade before it turned into a legal vendetta. Yet, with hindsight, a prudent DOJ should not have started on this inquiry at all. To steal a line from William Tecumseh Sherman, ‘Investigations are hell.’ ”

    Richard A. Epstein is the James Parker Hall Distinguished Service Professor of Law, The University of Chicago, the Peter and Kirsten Bedford Senior Fellow, Hoover Institution, and a visiting law professor at New York University School of Law. He writes a weekly column for

    Comment by Fred Gregory — Friday, February 26, 2010 1:09 pm @ 1:09 pm

  2. Fred, there is a large and still-growing body of evidence that Yoo/Bybee undertook this exercise not as a good-faith inquiry into what the law does and does not allow but to justify actions both planned and already taken. It is cynicism at best, and arguably lying, for Epstein to suggest that Y&B’s work was a good-faith inquiry and that Margolis believed it was a good-faith inquiry.

    Comment by Lex — Friday, February 26, 2010 1:51 pm @ 1:51 pm

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