Professor John Yoo and The Justice Case


Paul Kiel reported yesterday at TPMMuckraker that

the House Judiciary Committee authorized a subpoena for David Addington, Vice President Cheney’s Chief of Staff, to testify about the administration’s torture policy

And now the AP reports that John Yoo, probably the most infamous of the infamous characters that walked the halls of the Justice Department during the Bush administration, has agreed to testify as well without compulsion. That’s a departure from his original position, when he said that he could not testify about his role in authorizing the use of torture because he had not received the green light from the DoJ.

The AP adds: “Former Attorney General John Ashcroft, former Under Secretary of Defense Douglas Feith, and former Assistant Attorney General Dan Levin have also agreed to give testimony at a future hearing. Former CIA Director George Tenet is still in negotiations with the committee.”

Melissa, both at Left in Alabama as well as at her own Writechic Press, adds this:

Since our own Rep. Artur Davis is on the House Judiciary Subcommittee on the Constitution, Civil Rights, and Civil Liberties, God willing and the creek don’t rise, he’ll be there when torture lawyer John Yoo is questioned.

That’s right! An anonymous source has told The Raw Story that John Yoo, a former Justice Department lawyer who wrote the Torture Memos will testify before the House Judiciary Committee. The memos which gave carte blanche to human rights violations and laughed in the face of the Geneva Conventions have now been repudiated at DoJ though damned if the U.S. Attorney General will hold the Republican Freak Show accountable which is just another form of corruption (to throw Mukasey’s words in his face). Here’s a link to the committee members in case you want to suggest questions.

Davis’ presence will be a refreshing switch from the obsequious, Bush-booty kissing that Sen. Jeff Sessions does. Tear Yoo up, Artur, for all the citizens of Alabama who know torture is wrong and are mad about Yoo.

In the comments to my post on Professor John Yoo, Melissa asks “What questions can we send to Rep. Artur Davis?” Although I have complete faith that Rep. Davis will be well-prepared to properly examine Prof. Yoo, I would suggest that any examination include discussion of The Justice Case. As Professor Marty Lederman, lecturer Keith Jon Heller, Professor Scott Horton and others have discussed the Justice Case in far more detail and expertise than I have and can, I would note that much of this discussion has revolved around Professor’s Yoo’s potential criminal liability. From my standpoint, unsurprisingly, I would address (and have addressed here) Professor Yoo’s ethical obligations.

In introducing a guest post at Balkinization by Kevin Jon Heller, Senior Lecturer, University of Auckland Faculty of Law, Professor Marty Lederman writes:

There has been a great deal of discussion in the blogosphere and the legal academy about the question of whether the OLC torture memoranda were not merely wrong, horrifying and indefensible, but actually criminal. My own view, roughly speaking, is the following:

1. This is in some sense an academic question, in that criminal prosecution of the lawyers is virtually unthinkable absent evidence that one or more of them actually believed that the conduct they were blessing was, in fact, unlawful.

2. Such evidence of the lawyers’ belief in the illegality of the conduct they approved is unlikely ever to emerge because, in some important sense, John Yoo, David Addington, et al., believed in the “correctness” of the conclusions contained in the torture memos.

* * *

When, if ever, such “aspirational” constitutional interpretation by executive actors is appropriate — and whether it must be done openly, and with full candor — are very important and difficult questions. For now, my point is merely to describe what I think was going on here, in order better to understand why actual criminal prosecution is almost unthinkable.

3. * * * And, surely, the most prominent and substantial historical precedent here is the Justice Case in the Nuremberg tribunals, in which the U.S. itself led the prosecution of several Nazi Ministry of Justice officials — government lawyers — for their involvement in the execution of the infamous “Nacht und Nebel,” or “Night and Fog,” decrees. The Justice Case is often invoked as an historical analogy for the criminal culpability of Bush Administration lawyers. Like many others, therefore, I have been wondering whether that is in fact a fair analogy. What was it, exactly, that the U.S. prosecutors claimed the German lawyers did to deserve criminal punishment? Was it, for instance (as some have suggested), that the lawyers advised German officials that the “Nacht und Nebel” decrees were lawful under German domestic law, while failing to also tell their government clients that the decrees would nevertheless violate the laws of war and constitute crimes against humanity? If so, then perhaps the Justice Case might have a lot to say about our current situation, because John Yoo, et al., in effect advised the President that he could authorize torture and like conduct under domestic law, and further informed him that he could, at least as a matter of domestic law, simply ignore the laws of war.

All of which is a long-winded way of introducing the important work of a guest blogger, Kevin Jon Heller of the University of Auckland (and Opinio Juris), who is actually undertaking a comprehensive and very important new study of what, exactly, the prosecution’s theories of culpability were at Nuremberg, especially in the Justice Case. In a forthcoming post, Kevin argues that the Justice Case might have less to teach us about the possibility of criminal culpability of Bush Administration lawyers than has previously been suggested. I don’t know for certain whether Kevin’s account is subject to serious debate or question, since I haven’t yet been through the primary materials myself. But I do know that Kevin has looked more closely at this question than any other recent scholar, and that his very important work will be the starting place for any further discussion about the Nuremberg tribunals and the torture memos.

With that introduction, Mr. Heller provides a detailed analysis of The Justice Case:

Scholars who argue that John Yoo’s authorship of the infamous torture memos makes him complicit in various war crimes -– torture, illegal detention, etc. -– almost invariably cite the WWII-era case United States v. Alstoetter, commonly referred to as the Justice Case, for the proposition that a government lawyer can be held criminally responsible for giving erroneous legal advice to his political superiors. Here, for example, is what Scott Horton, an excellent scholar and one of our finest bloggers, has to say :

Can a lawyer at the Department of Justice be criminally liable for giving opinions that lead to the torture and abuse of prisoners in war time? The answer is: Yes. The precedent is United States v. Altstoetter. The sentence handed down was ten years, less time served awaiting trial. It’s a case for John Yoo to study in the period leading up to his inevitable prosecution.

I do not know enough about Yoo’s actions to venture a general opinion about their possible criminality. I do know something, however, about the Justice Case -– I am currently writing a book for Oxford University Press on the jurisprudence of that trial and the eleven other trials held in the American zone of occupation between 1946 and 1949, which are collectively known as the Nuremberg Military Tribunals (NMT). So I thought readers might be interested in a detailed look at what the Justice Case says -– or doesn’t say -– about the culpability of government lawyers who advise their clients that unlawful conduct is, in fact, lawful. The bottom line, in my view, is that as reprehensible as Yoo’s opinions were –- and they were indeed reprehensible -– the case provides far less support for prosecuting him than most scholars assume.

Before delving into the details of the case, it is important to note that reading NMT judgments can be an exercise in frustration, because they are far less legally precise than the judgments issued by modern international tribunals. In particular, the Tribunals rarely specify the mode of participation they use to convict a defendant -– ordering, aiding and abetting, joint criminal enterprise, etc. -– and often even fail to identify which of the defendant’s acts discussed in the judgment they consider criminal. The latter flaw is particularly troublesome when trying to apply the legal principles articulated in the Justice Case to Yoo’s situation, because –- as explained below -– none of the defendants in the case were acting simply as legal advisors to the Ministry of Justice. As a result, we can only speculate whether the Tribunal would have convicted any of the relevant defendants if they had held a position of authority similar to Yoo’s.

The Justice Case itself, which was held in Nuremberg between March and December 1947, involved 16 defendants who were associated in various capacities with the criminal-justice system in Nazi Germany. Some were judges and prosecutors in the Nazis’ infamous Special Courts and People’s Courts; others were officials in the Reich Ministry of Justice. The crux of the prosecution’s case, according to Telford Taylor, the NMT’s Chief Prosecutor, was that the defendants were guilty of “judicial murder and other atrocities, which they committed by destroying law and justice in Germany and then utilizing the emptied forms of legal process for persecution, enslavement, and extermination on a vast scale.” Particularly relevant to Yoo’s situation is Paragraph 13 of the Indictment, which alleged that the Ministry defendants were criminally responsible for their involvement in the execution of Hitler infamous “Nacht und Nebel” decree (for background on the decree, see Scott Horton’s post here ):

The Ministry of Justice participated with the OKW and the Gestapo in the execution of Hitler’s decree of “Night and Fog” whereby civilians of occupied territories who had been accused of crimes of resistance against occupying forces were spirited away for secret trial by certain Special Courts of the Justice Ministry within the Reich, in the course of which the victims’ whereabouts, trial, and subsequent disposition were kept completely secret, thus serving the dual purpose of terrorizing the victims’ relatives and barring recourse to any evidence, witnesses, or counsel for the defense. The accused was not informed of the disposition of his case, and in almost every instance those who were acquitted or who had served their sentences were handed over by the Justice Ministry to the Gestapo for “protective custody” for the duration of the war. In the course of the above-described proceedings, thousands of persons were murdered, tortured, ill-treated, and illegally imprisoned.

The Tribunal had little difficulty concluding that the Night and Fog decree had “no legal basis either under the international law of warfare or under the international common law as recognized by all civilized nations” (1131). The primary issue, then, was which of the defendants could be held criminally responsible for the war crimes and crimes against humanity committed pursuant to the decree. According to the Tribunal, such individual responsibility required the prosecution to prove “that a defendant had knowledge of an offense charged in the indictment . . . and that he was connected with the commission of that offense” (1093).

Three of the defendants in the Justice Case held positions in the Ministry of Justice that involved, among other things, giving legal advice to the Reich Minister: Wolfgang Mettgenberg, who was Representative of the Chief of the Criminal Legislation and Administration Division; Guenther Joel, who was Legal Adviser for criminal prosecutions; and Wilhelm von Ammon, who was Ministerial Counsellor of the Criminal Legislation and Administration Division. All three were convicted of war crimes and crimes against humanity and sentenced to 10 years imprisonment.

There is, however, a fundamental problem with citing these convictions as precedent for prosecuting John Yoo or other Bush Administration attorneys who “merely” advised that certain conduct was lawful: namely, that Mettgenberg, Joel, and van Ammon were not only legal advisors to the Reich Minister. On the contrary, all three men possessed considerable political authority, as well -– and repeatedly used that authority to actually enforce the Night and Fog decrees.

At this point, Mr. Heller discusses the details of Mettgenberg, Joel, and Von Ammon. These details can be found at the Balkinzation post here.

As these examples indicate, Mettgenberg, Joel, and von Ammon did not simply advise their political superiors that they could legally authorize the commission of actions that qualified as war crimes and crimes against humanity under international law. The defendants personally authorized the commission of those crimes. In other words, Mettgenberg, Joel, and von Ammon were among the political superiors who made the discretionary decisions that were necessary to implement the Night and Fog decree. It is thus difficult to argue that their convictions stand for the proposition that, to quote Scott Horton again, “lawyers who dispense bad advice about law of armed conflict, and whose advice predictably leads to the death or mistreatment of prisoners, are war criminals.” On the contrary, the Tribunal never -– literally never -– singled out a specific legal opinion offered by any of the Ministry defendants as being even partly responsible for their convictions.

Indeed, the only specific discussion of legal advice in the Justice Case seems to imply that “merely” giving such advice, no matter how erroneous or damaging, does not give rise to criminal responsibility.

* * *

To be sure, the Tribunal does not specifically say that a legal opinion could never give rise to criminal responsibility. Nevertheless, the quoted passage appears to draw a very clear distinction between offering an erroneous legal opinion, which is not criminal, and choosing to implement an illegal government policy, which is.

Does all of this mean that the Justice Case completely exonerates government lawyers who advise their political superiors that war crimes or crimes against humanity are lawful? That is a difficult question. It is certainly possible that the Tribunal would have been willing to convict one of the defendants in the Justice Case for giving such advice to the Reich Minister, particularly if that advice had been a necessary precondition for the creation and enforcement of policies that qualified as war crimes and/or crimes against humanity. Nothing in the judgment itself, however, directly supports that conclusion. Moreover, at a bare minimum, I think the Tribunal would have required the prosecution to prove that the defendant gave the legal advice knowing that the actions he approved actually violated international law. That requirement is implied, I believe, in the Tribunal’s repeated insistence regarding the Night and Fog decree that “[a]ll of the defendants who entered into the plan or scheme, or who took part in enforcing or carrying it out, knew that its enforcement violated the international law of war” (1038).

The Justice Case , in short, provides far less support for prosecuting government lawyers like Yoo than scholars have assumed, at least insofar as their role in promoting torture and illegal detentions was actually limited to providing legal advice. At most -– and I believe that the argument is unacceptably speculative -– the Tribunal’s judgment suggests that a government lawyer is liable for war crimes and crimes against humanity committed pursuant to his legal advice if he knew that certain actions violated international law, but nevertheless failed to inform his political superiors of that fact. Whether Yoo would be a criminal under that standard, I leave for others who know far more about his actions to decide.

BIBLIOGRAPHIC NOTE: all citations are to III TRIALS OF WAR CRIMINALS BEFORE THE NUERNBERG MILITARY TRIBUNALS UNDER CONTROL COUNCIL LAW NO. 10 (William S. Hein & Co. ed. 1997)

In the comments section to this post, Professor Scott Horton adds this comment:

We should always stress in going into this that the point of this exercise is not to compare John Yoo and his colleagues with the Nazis, but rather to distill the operating international law principles governing lawyers who dispense advice to governments in a war setting. (It’s worth a passing note that the Justice Case distinguishes itself from several other Nuremberg cases in that many of the defendants were career justice employees who were late-comers to the party, i.e., became party members after the Machtergreifung, when party membership was obligatory for those holding higher government posts). We should also note that this trial was one of the U.S. cases, not one of the international cases, for reasons which Telford Taylor and others have described — namely that the British and French were cold to the idea of trying the lawyers, fearing this would raise uncomfortable issues for themselves in their colonial rearguard mode.

Aside from the unwarranted flattery, this is a very good post– with good criticism — that does a solid job of summarizing some important details of the Altstoetter case. It’s regretable that much of the material from the case is difficult to access and research, and that the case record itself is rather rambling. But Kevin has done a good job of assembling and summarizing key parts of it.

I agree with Kevin that the evidence relating to the Nacht- und Nebelerlass defendants (NNE), especially von Ammon, is key for this point. Of course in the case of Altstoetter proper, the conviction did in fact turn specifically on three letters. But Kevin is correct that the defendants were all involved in the Justice Ministry’s actual administration of the program. We need to be much more careful in distinguishing what the Justice Ministry’s role was in this program. And I don’t agree with him as to the role of the legal opinions. The NNE was a counterinsurgency program designed to give military and occupation security authorities the power to apprehend civilians believed to be engaged in behind-the-lines attacks on Axis troops the authority to “disappear” persons without the need to go through the legal formalities that international law at the time would have required of an occupying power dealing with civilians. The internal records from the High Command (OKW) show that attacks on soldiers by civilians behind the lines of the East Front (especially in occupied Soviet territory) were the immediate inspiration. The original memoranda talk about a new kind of enemy which was fully disguised within the civilian population and was ideologically motivated and driven. These conclusions are correct — as CPSU documents reveal the party’s organization of such a terror campaign against German soldiers. As the proposal emerged from OKW, military and security authority was to be plenary and to rest on executive war-making notions. Von Ammon objected that this approach was a violation of the principle of legality, and he and his colleagues insisted that a process of adjudication be introduced; he also noted the need to arrange for wills, for the custody of children of the “disappeared” and the like. This was the role of the legal administration with respect to NNE. As Detlev Vagts has pointed out, the bulk of von Ammon’s proposals were ameliorative in nature.

The NNE program, and the court’s treatment of it in Altstoetter, has frequently been cited as the first international law authority on the concept of “disappearings,” which is a more modern crime against humanity. But an essential element of “disappearings” is that the person is treated outside the established legal regime (either that provided by the criminal justice system or the laws of armed conflict). The thrust of von Ammon’s position was to recognize this and to insist that a substitute judicial process be provided. This contrasts rather sharply with views articulated by the Bush Administration with respect to the “extraordinary renditions” program, for instance.

But his clearest offense was providing the legal rationale for evasion of the requirements of international law, for instance by providing for the projection of German domestic law into occupied territory. (Even on this point, note that von Ammon was very concerned about the operation of the special judicial process in occupied territory; he wanted the detainees to be transferred to Reich territory.)

The tribunal’s view was that von Ammon and his colleagues should have properly advised on the limitations of international law. They did not do so. If we had to put von Ammon’s mistakes on legal interpretation side-by-side with Yoo’s, the comparison would be very much in von Ammon’s favor, I think. That’s largely a result of the fact that many of the violations which the Tribunal noted really became crystalized after World War II, and at the time of the Justice Case were fairer game for argument than today.

Still, I am not trying to curry any sympathy for von Ammon — just the contrary, I think he got off lightly with his seven years served — but to make the point that the administration of the Justice Ministry’s plans was not the largest failing.

On the other hand, it did constitute an overt act in a sense in which the mere rendering of an opinion may not, also a significant point.

The bigger issues here are the JCE issues, which go to the notion introduced in the charge of “foreseeable” damage, among other things.

Philippe Sands’s key finding — if there is just one — is that the bottom up narrative that the Administration puts forward surrounding the introduction of torture techniques is a sham. He follows the story to its roots, and he finds that it is, to the contrary, a “top down” story, with a number of lawyers engaging in an elaborate scheme to cover it up with the paper trail that starts with the Diane Beaver memoranda. Key to this unraveling is the story of the senior lawyers’ trip to GTMO at the launch of the process, a trip about which Haynes repeatedly lied. Now it’s possible to explain this from a PR angle focused on domestic politics, which undoubtedly was a major focus of the White House throughout, but a prosecutor could just as well make the case that this shows recognition and belief that the scheme was essentially criminal (or presented substantial likelihood of criminal culpability) and thus needed to be concealed. In fact the key participants had been warned repeatedly at that point that regardless of their curious views about the laws of war, a large majority in the legal community would take a different perspective and could well view their conduct as criminal. This advice was clearly propelling their conduct.

The other striking parallel with the facts surrounding the NNE, which came out only with the examination of the records of the international law department at OKW at the close of the process, is that the German military lawyers had taken almost exactly the same stance that the American JAGs took on the Bush Administration’s detainee initiatives. They argued stringently for firm application of Geneva and Hague standards and said that this was driven by enlightened self-interest, i.e., to protect German soldiers. These views were overruled on the grounds that this was a “new kind of warfare” in which the principal foe, and the foe in the cross-hairs of the NNE, was terrorist in nature.

Several of the senior JAGs have now described to me their direct dealings with Yoo in which they stressed criminal liability as the major concern. Yoo’s response was consistently that he could “fix the problem” by getting the Criminal Division to issue get-out-of-jail cards for all concerned. And this puts Yoo a step closer to the implementation of a plan and a step away from the issuance of a detached opinion.

However, what we need now is to get to the bottom of all these carefully obscured dealings. It’s clear that will never happen before the Bush Administration leaves office, but after it’s gone, getting a clear picture of the lawyers’ dealings should be a priority.

Whether or not Professor Yoo committed a crime and, if he did, whether he will ever be prosecuted either here in the United States or in some other country, it is clear to me that Professor Yoo violated his ethical obligations and should at least lose the right to practice law. In my post stating why Professor Yoo should be investigated for violation of his obligations under the Pennsylvania and D.C. Rules of professional conduct , I quote with approval this post from Professor David Luban:

Of course it’s clear to [Professor] Marty [Lederman] that an OLC lawyer who goes to a party and tries to impress the admiring guests by blabbing about the hush-hush FISA opinion he is working on at the office has violated an ethical obligation – the obligation of confidentiality. And it’s clear that if the lawyer writes an opinion without doing the legal research, his negligence violates the ethical obligation of competence, because, in the words of the D.C. Rules of Professional Conduct , “Competent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.” I can’t believe that Marty thinks the basic rules of lawyer’s ethics are irrelevant just because the lawyer works for the Office of Legal Counsel. You might want to quibble about labeling all these rules “ethical obligations,” because Rules of Conduct don’t always have to do with ethics in the moralist’s sense. Sometimes they are just a regulatory code. But in the examples I gave, the ethical dimension is undoubtedly there: the rule against betraying confidences and taking the pains reasonably necessary for doing your job are regulatory rules with an ethical basis.

Now it happens that one of these rules is labeled “Advisor.” It reads: “In representing a client, a lawyer shall exercise independent professional judgment and render candid advice.”

“Independent” professional judgment means “independent of the client,” as the first comment to the rule makes clear: “Legal advice often involves unpleasant facts and alternatives that a client may be disinclined to confront….However, a lawyer should not be deterred from giving candid advice by the prospect that the advice will be unpalatable to the client.” And “candid” advice means telling the client what the law, in the lawyer’s best judgment, actually means. This rule, too, has an ethical basis. In the first place, it tells lawyers not to chicken out from hard conversations; it’s a requirement of a certain measure of guts. In the second place, it tells the lawyer that as an advisor, he or she is more than an instrument of the client’s will. This is true for lawyers in private practice, but I see no reason at all to think that a lawyer-advisor carries different obligations when the client is White House.

This obligation of the advisor is very different from the standard conception of the lawyer’s role as courtroom advocate. In the courtroom, the lawyer’s job is to press the client’s case, counting on the opposing lawyer to highlight its weaknesses, and on the judge to check the lawyer’s one-sided presentation of the law. In the advice-giving setting, there is no opposing voice and no judge. That’s why, for more than four decades, the codes of responsibility for lawyers have distinguished sharply between the advocate’s role and the advisor’s. The advocate, in the words of the 1969 Code of Professional Responsibility, “should resolve in favor of his client doubts as to the bounds of the law.” But not the advisor: the advisor is supposed to give the law to the client straight.

But what if the client doesn’t want the law straight? There’s an old legal adage attributed to Elihu Root: “The client never wants to be told he can’t do what he wants to do; he wants to be told how to do it, and it is the lawyer’s business to tell him how.” Root was a corporate lawyer, and he was cynically expressing – a century ago – the scofflaw attitude of business people who resent lawyers who say “no.” But lawyers who say yes to whatever the client wants (“Dr. Yes” was reportedly John Ashcroft’s nickname for John Yoo) violate basic ethical norms of what legal advisors are supposed to do. As I’ve written elsewhere , lawyers who write opinions saying yes to whatever their clients want are no better than indulgence sellers.

Marty thinks that OLC lawyers are in a fundamentally different relationship with their client than private lawyers of corporate clients. I think that’s partly right – but only partly. The part that’s right is that OLC opinions can bind the executive branch – if not by law, then by custom. That puts OLC opinions on a nearly-equal footing with decisions of the D.C. Circuit Court of Appeals, where most cases involving the executive branch get litigated. The big difference is that the OLC renders its opinions in secret, and without hearing adversarial arguments to satisfy the basic maxim of procedural justice – audi alteram partem , “hear the other side.”

That makes the duties of independence and candor even more crucial. Lawyers whose legal advice – including secret advice – writes the law for the most dangerous branch of government have an awesome responsibility. It’s a responsibility not only to the client and the law, but to a country that is, without knowing it, being governed by twenty unknown lawyers in the Justice Department. (Quite frankly, the OLC is a scandal to democratic government, but that’s a subject for a different day.) Marty is quite right that the OLC’s mission should be to help the President fulfill the duty of faithful execution of the laws. But he’s wrong if he thinks that mission substitutes for the basics of legal ethics. That mission is over and above the duties of legal ethics.

And he’s wrong if he thinks that indulgence-selling is fundamentally different when the lawyers are writing indulgences to the President rather than private clients. Indulgence-selling is fundamentally worse when lawyers are absolving the President rather than Enron – but that’s because the President’s public trust runs deeper, not because the nature of the sin is different.

* * *

The fact is, though, that the ethical conduct of the million lawyers is far more important to the legal system than the journeywork of the nine justices. As I have written in Legal Ethics and Human Dignity , the lawyer-client consultation is the primary point of intersection between “The Law” and the people it governs, the point at which the law in books becomes the law in action. Most law is outside the courts, not in it; and most legal “decisions” take place in conversations between lawyers and their clients – conversations that never leave the office. This is a familiar law-and-society theme – but familiar as it is, we often forget it.

Marty errs, if I’m right, in thinking that the constitutional tremendousness of what the OLC does puts it on a plane above ordinary legal practice. But it’s a mistake, in my opinion, to get swept up in the higher ecstasies of Constitutional Law and the Thrones, Powers, and Dominations who occupy Constitutional Law Heaven – the Justices, the clerks, the theorists (sorry, Jack!), and the high priests in the OLC and the Solicitor General’s office. The law, as the Book of Deuteronomy says, “is not in the heavens, that you should say, ‘Who among us can go up to the heavens and get it for us and impart it to us, that we may observe it?’” The law is very near. It’s what we find in our lawyer’s office on the fourth floor of the Kresge Building, three doors down from the orthodontist. (If you see the Home Depot on your left, you’ve gone too far.) It’s law’s ordinariness, and the extraordinary role that lawyers play in vending it to us, that is precisely why legal ethics is important: if the lawyers are just Holmesian Bad Men and Bad Women following Elihu Root’s cynical advice, the law might as well not be there.

And that is why ethical obligations matter in the Office of Legal Counsel. It’s perhaps odd that the OPR is investigating for violations of the maxim of competence. But it makes a certain amount of sense: a legal opinion that is deeply eccentric in its interpretation of the law is not much different from an opinion written without adequate research. I’ve suggested that the more genuine violation is of the rule requiring candid and independent advice. But it would be almost impossible to prove a violation of that rule: to show lack of candor would require showing that the lawyer knew how eccentric his opinion was, and that seems impossible.

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