Starting to notice but not quite there.

At The Nation, Professor Stephen Gillers is correct when he writes in The Torture Memo that:

The press tends to overlook the lawyers when scandal breaks, focusing instead on their clients. That’s understandable, but in public and commercial life no serious move is possible (no corporate maneuver, no new financial instrument, no war, no severe interrogation tactic) without legal approval. Even if the advice proves wrong, the client, if sued or indicted, can claim reliance on counsel.

When lawyers in private practice mess up, they face serious jeopardy. They can be fired, sued for malpractice, disbarred or prosecuted. Yoo and Bybee face no such risks. The President won’t protest. He got what he wanted. And while a state disciplinary body can investigate, that is unlikely without Justice Department help.

I disagree that the involvement of the Department of Justice is required to instigate an investigation of Mr. Yoo, Mr. Bybee or any other unethical attorney in the service of the federal government. As I note here , anybody, from any state, can file an ethics complaint against any attorney practicing anywhere in the 50 states and Washington, D.C. Mr. Gillers continues:

In his book The Terror Presidency, [Bybee’s successor, Jack] Goldsmith, now a Harvard law professor, writes that the torture memos had “no foundation” in any “source of law” and rested on “one-sided legal arguments.”

* * *

How could two really smart guys authorize torture using “one-sided legal arguments” that have “no foundation” in law? How could they be guilty of a “stunning failure of lawyerly craft”? The sad answer seems to be that they knew what the President wanted and delivered: torture is OK if you call it something else. Detainees are outside the protection of due process and civilized law. The President’s authority is close to absolute. Anyway, no court can review him. (On this last point, the Supreme Court disagreed.)

* * *

So maybe the best and brightest lawyers got it so wrong because they forgot whom they served. Maybe they acted politically, not professionally. If so, we are dealing with a perversion of law and legal duty, a betrayal of the client and professional norms, not mere incompetence, which would be bad enough. Whatever the reason, Jarrett should find that this work is not “consistent with the professional standards that apply to Department of Justice attorneys.” [H. Marshall] Jarrett[, counsel for the Justice Department’s Office of Professional Responsibility,] must hold the lawyers accountable if he means to restore OLC’s reputation and vindicate the rule of law.

I agree with Mr. Gillers’ characterization of these attorney’s actions but must again strongly disagree that it is Mr. Jarrett that must hold anybody accountable. To repeat myself: anybody, from any state, can file an ethics complaint against any attorney practicing anywhere in the 50 states and Washington, D.C.

In his response at Balkinization to Boalt (Cal Berkeley) School of Law Dean Chris Edleyn’s defense of John Yoo, Scott Horton explains in more detail why John Yoo should be held to account :

[T]he facts establish that the torture policies were settled upon and had in fact been implemented. The principal authors were facing severe blow back from career lawyers inside the government. And John Yoo was carted in to use the powers of OLC to silence lawyers protesting the illegality of what was done. I believe that an objective examination of the facts will show that this is precisely how John Yoo understood his role. In essence, he was not an independent legal advisor. He had become a facilitator, an implementor of the torture policies. His role had shifted from passive advisor to actor, pushing a process forward.

Dean Edley then states that the ethical accountability and legal liability of the legal advisor cannot be compared to those of the policy maker. This statement rests on a false understanding of the facts. But it also reflects a misconception of the established law. Indeed, Dean Edley asks what appears to be a rhetorical question:

Did the writing of the memoranda, and his related conduct, violate a criminal or comparable statute?

The answer to that question is “yes.” The liability of an attorney dispensing advice with respect to the treatment of persons under detention in wartime is subject to a special rule. It cannot be viewed in the same manner as advice given in a complex commercial dispute, for instance.

This principle was established by the United States in one of the most dramatic of the post-World War II proceedings, United States v. Altstoetter, the “lawyers’ case.” Following on the guidelines established by Justice Robert H. Jackson, the U.S. chief prosecutor, Telford Taylor, and his deputy, Charles M. La Follette, established clear principles of accountability for lawyers dispensing legal advice in circumstances virtually identical to those faced by John Yoo. There are three major principles relevant to John Yoo’s case that appear from the charge, accepted by the Tribunal. First, the case dealt with persons under detention in wartime (not POWs, in fact most of the cases in question addressed persons not entitled to POW or comparable protections). Second, it had to be reasonably foreseeable that the advice dispensed would result in serious physical or mental harm or death to a number of the persons under detention. Third, the advice given was erroneous. In fact several of the lawyers in Altstoetter were able to articulate far better defenses for their erroneous legal advice that John Yoo had, but the standard did not require it to be “outrageously” false, just incorrect.

Each of these criteria is satisfied with respect to Yoo’s advice under the torture memoranda. They explicitly address persons under detention. It was reasonably foreseeable that persons would suffer serious physical or mental harm or death as a result of the application of the techniques (in fact there have been more than 108 deaths in detention, a significant portion of them tied to torture). And the analysis was false, a point acknowledged ultimately by the OLC itself. Accordingly, a solid basis exists under the standard articulated by the United States under which John Yoo may be charged and brought to trial. * * *

However, my point here is not to make the prosecutor’s case against Yoo. It is to show that what he did raises not merely ethics issues, but actual criminal culpability . * * * (Emphasis supplied).

Also at Balkinization, Professor John Balkin asks whether John Yoo and Jay Bybee violated the canons of professional ethics. In drawing his conclusion, Professor Balkin considered, among others, the Gillers and Horton arguments that I highlighted above, and wrote:

My own conclusion is that Yoo and Bybee did violate their professional obligations to the President as constitutional actor, and to the country as a whole. The reason is a combination of their outrageous theory of presidential dictatorship and their all too eager assistance in what appears to be a conspiracy to commit war crimes. But I do not pretend that the question is at all an easy one.

Note that even if I am right that Yoo violated the canons of professional ethics, he has not been sanctioned by any court or professional organization, much less convicted of any crime by a domestic court or international tribunal. This is important to keep in mind in the debate over whether the University of California should discipline or investigate him.

While I also do not pretend that the question of whether these attorneys violated the canons of professional ethics is an easy one, I am confident that the answer to the question is ultimately yes. And if the answer is yes, then the question becomes what can you and I do to hold these attorneys accountable for their actions in addition to lobbying Congress, writing blog posts and comments, praying and waiting?

Consider first this from Mr. Horton in his response to Dean Edley:

A final aspect of Dean Edley’s memorandum troubles me. He is appropriately concerned about freedom of expression for his faculty. But he should be much more concerned about the message that all of this sends to his students. Lawyers who act on the public stage can have an enormous impact on their society and the world around them. They can make great sums of money. They can be a force for social good. And they can also be vessels of horrendous injustice and oppression. Indeed they can foment and advance a criminal design. * * *

Much of the nobility of this profession lies in the duty of a lawyer to exercise independent professional judgment and to warn a client from an enterprise which is not merely foolish but at times actually immoral and criminal. Elihu Root famously termed this the lawyer’s first calling. When confronted with a trying circumstance, John Yoo not only failed to give proper warning — He became an active part of an enterprise bent on overriding the most fundamental legal and ethical prohibitions. Perhaps a criminal enterprise. And that is and will likely be seen by future generations as a far more troublesome matter than Dean Edley recognizes.

Edley owes it to his institution and to the students it is training to accept the full ethical and legal challenges that the case of John Yoo raises, and to treat them earnestly. * * * (Emphasis supplied).

And also this from Mr. Horton from April 3, 2008:

It’s also time for the organized bar to act decisively. So far bar organizations have denounced the torture memoranda and issued learned reports and articles. But I’m still haunted by a question a student put to me following a presentation I made at Columbia University on Tuesday evening. “If the bar is so serious about this,” the student said, “then explain to me how it’s possible that John Yoo and his confederates haven’t been disbarred.” I started to answer about the complexity of the disbarrment process, but I stopped. The student was right. If the bar were serious about this, it should have used its disciplinary tools to deal with it. This is not a case of an eccentric academic mouthing some cock-eyed theories. It is about a government official using the power of a government office to induce people to commit serious crimes.

* * *

Silence will buy us a continuation of this corruption of our nation. But isn’t it worth raising your voice and articulating your anger to get our country back? It should start with insisting that Congress use the tools it has–oversight and the budget–to force changes. Say “no” to torture; it’s an easy first step on the road back to decency. (Emphasis supplied.)

I noted in response to this post then, and reiterate today, that appealing to this Congress is insufficient and that it is now for direct action by you, the citizen/activist. Each of you can file a grievance against each and every one of these attorneys whether you live in the same or a different state and whether you are personally involved in the matter or are just an interested citizen. By doing so, you can force these bar associations to investigate these matters. Take action: file a grievance.

And remember, it’s not just Yoo and Bybee. There’s Alberto Gonzales, Harriet E. Miers, Kyle D. Sampson, Senator Lisa Murkowski, Judge Mark Everett Fuller and many others.

E.M.

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John Yoo

Personal Information:

  • Name: John Yoo
  • Bar: Pennsylvania
  • ID No.: 69500
  • Status: Active

To file a grievance against Mr. Yoo in either or both Pennsylvania and Washington, D.C., print and complete the official Pennsylvania and Washington, D.C., Complaint Forms, print and attach this page to the Complaint Form and send to the address noted on the forms.

Grievance Information: Pennsylvania

Grievance Information: Washington, D.C.

Allegations:

John Yoo provided advice to his client that violated his ethical obligations to provide independent, professional and competent advice in authoring and issuing the “Torture Memo” in March of 2003. This advice provided violated both the Pennsylvania Rules of Professional Conduct (large .pdf file) and the D.C. Rules of Professional Conduct (effective January 1, 1991 through January 31, 2007), including the following rules:

Pennsylvania:

  • Rule 1.1 Competence: A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.
  • Rule 1.2 Scope of Representation and Allocation of Authority Between Client and Lawyer: (d) A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law.
  • Rule 1.13 Organization as Client: (b) If a lawyer for an organization knows that an officer, employee or other person associated with the organization is engaged in action, intends to act or refuses to act in a matter related to the representation that is a violation of a legal obligation to the organization, or a violation of law which reasonably might be imputed to the organization, and is likely to result in substantial injury to the organization, the lawyer shall proceed as is reasonably necessary in the best interest of the organization.
  • Rule 1.16 Declining or Terminating Representation: (a) Except as stated in paragraph (c), a lawyer shall not represent a client or, where representation has commenced, shall withdraw from the representation of a client if: (1) the representation will result in violation of the Rules of Professional Conduct or other law….
  • Rule 2.1 Advisor: In representing a client, a lawyer should shall exercise independent professional judgment and render candid advice. In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social and political factors, that may be relevant to the client’s situation.
  • Rule 3.1 Meritorious Claims and Contentions: A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law. A lawyer for the defendant in a criminal proceeding, or the respondent in a proceeding that could result in incarceration, may nevertheless so defend the proceeding as to require that every element of the case be established.
  • Rule 4.1 Truthfulness in Statements to Others: In the course of representing a client a lawyer shall not knowingly: (a) make a false statement of material fact or law to a third person; or (b) fail to disclose a material fact to a third person when disclosure is necessary to avoid aiding and abetting a criminal or fraudulent act by a client, unless disclosure is prohibited by Rule 1.6.
  • Rule 5.4 Professional Independence Of A Lawyer: (c) A lawyer shall not permit a person who recommends, employs or pays the lawyer to render legal services for another to direct or regulate the lawyer’s professional judgment in rendering such legal services.
  • Rule 8.5. Disciplinary Authority; Choice of Law: (a) Disciplinary Authority. A lawyer admitted to practice in this jurisdiction is subject to the disciplinary authority of this jurisdiction, regardless of where the lawyer’s conduct occurs. A lawyer not admitted in this jurisdiction is also subject to the disciplinary authority of this jurisdiction if the lawyer provides or offers to provide any legal services in this jurisdiction. A lawyer may be subject to the disciplinary authority of both this jurisdiction and another jurisdiction for the same conduct. (b) Choice of Law. In any exercise of the disciplinary authority of this jurisdiction, the rules of professional conduct to be applied shall be as follows: (1) for conduct in connection with a matter pending before a tribunal, the rules of the jurisdiction in which the tribunal sits shall be applied, unless the rules of the tribunal provide otherwise; and (2) for any other conduct, the rules of the jurisdiction in which the lawyer’s conduct occurred, or, if the predominant effect of the conduct is in a different jurisdiction, the rules of that jurisdiction shall be applied to the conduct. A lawyer shall not be subject to discipline if the lawyer’s conduct conforms to the rules of a jurisdiction in which the lawyer reasonably believes the predominant effect of the lawyer’s conduct will occur.

Washington, D.C.:

  • Rule 1.1 — Competence (a) A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation. (b) A lawyer shall serve a client with skill and care commensurate with that generally afforded to clients by other lawyers in similar matters.
  • Rule 1.16 – Declining or Terminating Representation (a) Except as stated in paragraph (c), a lawyer shall not represent a client or, where representation has commenced, shall withdraw from the representation of a client if: (1) The representation will result in violation of the Rules of Professional Conduct or other law….
  • Rule 2.1 – Advisor In representing a client, a lawyer shall exercise independent professional judgment and render candid advice. In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social, and political factors, that may be relevant to the client’s situation.
  • Rule 3.1 – Meritorious Claims and Contentions A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis for doing so that is not frivolous, which includes a good-faith argument for an extension, modification, or reversal of existing law. A lawyer for the defendant in a criminal proceeding, or for the respondent in a proceeding that could result in involuntary institutionalization, shall, if the client elects to go to trial or to a contested fact-finding hearing, nevertheless so defend the proceeding as to require that the government carry its burden of proof.
  • Rule 3.3 – Candor Toward the Tribunal (a) A lawyer shall not knowingly: … (2) Counsel or assist a client to engage in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good-faith effort to determine the validity, scope, meaning, or application of the law.
  • Rule 4.1 – Truthfulness in Statements to Others In the course of representing a client, a lawyer shall not knowingly: (a) Make a false statement of material fact or law to a third person; or (b) Fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by Rule 1.6.
  • Rule 5.4 – Professional Independence of a Lawyer … (c) A lawyer shall not permit a person who recommends, employs, or pays the lawyer to render legal services for another to direct or regulate the lawyer’s professional judgment in rendering such legal services.

Mr. Yoo’s conduct is not the typical conduct that is a violation of the applicable rules of professional conduct, such as stealing from a trust account, failing to communicate with a client or a violating advertising rules. Professor David Luban explains:

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.

[Professor] Marty [Lederman] 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.

Marty is a constitutional lawyer, and an extraordinarily good one. If I were to venture a diagnosis, I think that fact makes him suspicious that ethics rules – mere ethics rules – miss the special, exalted status of constitutional lawyering at the upper reaches of government. He thinks that ethics rules don’t capture the refracted sunbeams of the Faithful Execution Clause.

Constitutional law, in the eyes of many, is the Holy of Holies in American law. It’s up there in the Empyrean. Ethics rules, by contrast, are the lowliest of the low. They are court rules rather than statutes, they are state rather than federal, and they govern a million people rather than 300 million. They are also, to be perfectly frank, very dull. Constitutional law is exciting and charismatic. It’s the province of The Supreme Court of the United States. Legal ethics is the province of grubby little grievance committees. It’s what you cram for before you take the multistate professional responsibility exam. (As one of my students remarked some years back, the MPRE is like the written part of the driver’s test.)

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. (Emphasis supplied.) * * *

* * * 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. (Emphasis supplied.)

When analyzing whether Mr. Yoo’s conduct comports with applicable Rules, including both the violations described by Professor Luban above the additional violations noted below, it is important to note that his statements of denial are not to be taken at face value in making a determination. Specifically, Rule 1.0 Terminology of the Pennsylvania Rules of Professional Conduct and the D.C. Rules of Professional Conduct: Terminology provide that whether someone ‘believes’ something or whether someone ‘knows’ something is to be inferred from the circumstances and whether the conduct, belief or knowledge of the attorney is ‘reasonable’ or not is based on the “reasonably prudent and competent lawyer”, requires “that the circumstances are such that the belief is reasonable” and “denotes that a lawyer of reasonable prudence and competence would ascertain the matter in question”.

The basic facts of Mr. Yoo’s authorship of The Torture Memo were reported on April 2, 2008, by Dan Eggen and Josh White of The Washington Post:

The Justice Department sent a legal memorandum to the Pentagon in 2003 asserting that federal laws prohibiting assault, maiming and other crimes did not apply to military interrogators who questioned al-Qaeda captives because the president’s ultimate authority as commander in chief overrode such statutes.

The 81-page memo, which was declassified and released publicly yesterday, argues that poking, slapping or shoving detainees would not give rise to criminal liability. The document also appears to defend the use of mind-altering drugs that do not produce “an extreme effect” calculated to “cause a profound disruption of the senses or personality.”

* * *

Nine months after it was issued, Justice Department officials told the Defense Department to stop relying on it. But its reasoning provided the legal foundation for the Defense Department’s use of aggressive interrogation practices at a crucial time, as captives poured into military jails from Afghanistan and U.S. forces prepared to invade Iraq .

Sent to the Pentagon’s general counsel on March 14, 2003, by John C. Yoo, then a deputy in the Justice Department’s Office of Legal Counsel, the memo provides an expansive argument for nearly unfettered presidential power in a time of war. It contends that numerous laws and treaties forbidding torture or cruel treatment should not apply to U.S. interrogations in foreign lands because of the president’s inherent wartime powers.

“If a government defendant were to harm an enemy combatant during an interrogation in a manner that might arguably violate a criminal prohibition, he would be doing so in order to prevent further attacks on the United States by the al Qaeda terrorist network,” Yoo wrote. “In that case, we believe that he could argue that the executive branch’s constitutional authority to protect the nation from attack justified his actions.”

Interrogators who harmed a prisoner would be protected by a “national and international version of the right to self-defense,” Yoo wrote. He also articulated a definition of illegal conduct in interrogations — that it must “shock the conscience” — that the Bush administration advocated for years.

“Whether conduct is conscience-shocking turns in part on whether it is without any justification,” Yoo wrote, explaining, for example, that it would have to be inspired by malice or sadism before it could be prosecuted.

* * *

The document is similar, although much broader, than a notorious memo primarily written by Yoo in August 2002 that narrowly defined what constitutes illegal torture. That document was also later withdrawn.

In his 2007 book, “The Terror Presidency,” Jack Goldsmith, who took over the Office of Legal Counsel after Yoo departed, writes that the two memos “stood out” for “the unusual lack of care and sobriety in their legal analysis.”

The documents are among the Justice Department legal memoranda that undergirded some of the highly coercive interrogation techniques employed by the Bush administration, including extreme temperatures, head-slapping and a type of simulated drowning called waterboarding.

* * *

Yoo, now a law professor at the University of California at Berkeley, defended the memo in an e-mail yesterday, saying the Justice Department altered its opinions “for appearances’ sake.” He said his successors “ignored the Department’s long tradition in defending the President’s authority in wartime.”

“Far from inventing some novel interpretation of the Constitution,” Yoo wrote, “our legal advice to the President, in fact, was near boilerplate.”

Yoo’s 2003 memo arrived amid strong Pentagon debate about which interrogation techniques should be allowed and which might lead to legal action in domestic and international courts.

After a rebellion by military lawyers, then-Defense Secretary Donald H. Rumsfeld in December 2002 suspended a list of aggressive techniques he had approved, the most extreme of which were used on a single detainee at the military prison at Guantanamo Bay, Cuba. The prisoner, military investigators later would determine, was subjected to stress positions, nudity, hooding, exposure to dogs and other aggressive techniques.

Largely because of Yoo’s memo, however, a Pentagon working group in April 2003 endorsed the continued use of extremely aggressive tactics. The top lawyers for each military service, who were largely excluded from the group, did not receive a final copy of Yoo’s March memo and did not know about the group’s final report for more than a year, officials said.

Thomas J. Romig, who was then the Army’s judge advocate general, said yesterday after reading the memo that it appears to argue there are no rules in a time of war, a concept Romig found “downright offensive.”

* * *

In a 2004 memo for the Navy inspector general’s office, then-General Counsel Alberto J. Mora objected to the ideas that cruel, inhuman or degrading treatment could be allowed at Guantanamo and that the president’s authority is virtually unlimited.

Mora wrote that he spoke with Yoo at the Pentagon on Feb. 6, 2003, and that Yoo “glibly” defended his own memo. “Asked whether the President could order the application of torture, Mr. Yoo responded, ‘Yes,’ ” Mora wrote. Yoo denies saying that.

Glenn Greenwald explains further,on April 2, 2008, how Mr. Yoo’s conduct violated the canons of professional conduct:

Yet again, the ACLU has performed the function which Congress and the media are intended to perform but do not. As the result of a FOIA lawsuit the ACLU filed and then prosecuted for several years, numerous documents relating to the Bush administration’s torture regime that have long been baselessly kept secret were released yesterday, including an 81-page memorandum (.pdf) issued in 2003 by then-Deputy Assistant Attorney General John Yoo (currently a Berkeley Law Professor) which asserted that the President’s war powers entitle him to ignore multiple laws which criminalized the use of torture:

If a government defendant were to harm an enemy combatant during an interrogation in a manner that might arguably violate a criminal prohibition, he would be doing so in order to prevent further attacks on the United States by the al Qaeda terrorist network. In that case, we believe that he could argue that the executive branch’s constitutional authority to protect the nation from attack justified his actions.

As Jane Mayer reported two years ago in The New Yorker — in which she quoted former Navy General Counsel Alberto Mora as saying that “the memo espoused an extreme and virtually unlimited theory of the extent of the President’s Commander-in-Chief authority” — it was precisely Yoo’s torture-justifying theories, ultimately endorsed by Donald Rumsfeld, that were communicated to Gen. Geoffrey Miller, the commander of both Guantanamo and Abu Ghraib at the time of the most severe detainee abuses (the ones that are known).

It is not, of course, news that the Bush administration adopted (and still embraces) legal theories which vest the President with literally unlimited power, including the power to break our laws. There are, though, several points worth noting as a result of the disclosure of this Memorandum:

(1) The fact that John Yoo is a Professor of Law at Berkeley and is treated as a respectable, serious expert by our media institutions, reflects the complete destruction over the last eight years of whatever moral authority the United States possessed. Comporting with long-held stereotypes of two-bit tyrannies, we’re now a country that literally exempts our highest political officials from the rule of law, and have decided that there should be no consequences when they commit serious felonies.

John Yoo’s Memorandum, as intended, directly led to — caused — a whole series of war crimes at both Guantanamo and in Iraq. The reason such a relatively low-level DOJ official was able to issue such influential and extraordinary opinions was because he was working directly with, and at the behest of, the two most important legal officials in the administration: George Bush’s White House counsel, Alberto Gonzales, and Dick Cheney’s counsel (and current Chief of Staff) David Addington. Together, they deliberately created and authorized a regime of torture and other brutal interrogation methods that are, by all measures, very serious war crimes.

If writing memoranda authorizing torture — actions which then directly lead to the systematic commission of torture — doesn’t make one a war criminal in the U.S., what does?

* * *

Yoo wasn’t just a law professor theorizing about the legalization of torture. He was a government official who, in concert with other government officials, set out to enable a brutal and systematic torture regime, and did so. If this level of depraved criminality doesn’t remove one from the realm of respectability and mainstream seriousness — if not result in war crimes prosecution — then nothing does.

* * *

(4) Since the Nuremberg Trials, “war criminals” include not only those who directly apply the criminal violence and other forms of brutality, but also government officials who authorized it and military officials who oversaw it. Ironically, the Bush administration itself argued in the 2006 case of Hamdan — when they sought to prosecute as a “war criminal” a Guantanamo detainee whom they allege was a driver for Osama bin Laden — that one is guilty of war crimes not merely by directly violating the laws of war, but also by participating in a conspiracy to do so.

That legal question was unresolved in that case, but Justices Thomas and Scalia both sided with the administration and Thomas wrote (emphasis added):

“[T]he experience of our wars,” Winthrop 839, is rife with evidence that establishes beyond any doubt that conspiracy to violate the laws of war is itself an offense cognizable before a law-of-war military commission. . . . . In [World War II], the orders establishing the jurisdiction of military commissions in various theaters of operation provided that conspiracy to violate the laws of war was a cognizable offense. See Letter, General Headquarters, United States Army Forces, Pacific (Sept. 24, 1945), Record in Yamashita v. Styer, O. T. 1945, No. 672, pp. 14, 16 (Exh. F) (Order respecting the “Regulations Governing the Trial of War Criminals” provided that “participation in a common plan or conspiracy to accomplish” various offenses against the law of war was cognizable before military commissions).

* * *

The fact that a lawyer does something in his capacity as a lawyer does not mean it’s proper, legitimate or legal. The fact that an argument is packaged in lawyerly wrapping doesn’t mean it’s reasonable or offered in good faith. All sorts of lawyers — from those representing crime families to those representing terrorists — have been convicted of crimes because they concealed and/or promoted their clients’ illegal acts. Lawyers aren’t any more immune from the rule of law than anyone else.

Harper‘s Scott Horton makes the point in much the same way:

These memoranda have been crafted not as an after-the-fact defense to criminal charges, but rather as a roadmap to committing crimes and getting away with it. They are the sort of handiwork we associate with the consigliere, or mob lawyer. But these consiglieri are government attorneys who have sworn an oath, which they are violating, to uphold the law.

Along those lines, Marcy Wheeler and Slate’s Emily Bazelon both demonstrate how un-lawyerly Yoo’s opinions were. Yoo wasn’t acting as a lawyer in order legally to analyze questions surrounding interrogation powers. He was acting with the intent to enable illegal torture and used the law as his instrument to authorize criminality.

Professor Marty Lederman explains that Mr. Yoo’s authorship of the Torture Memo was contrary to established federal law and protocol:

I’ve now completed reading the March 14th OLC Opinion. As you might expect, there is a great deal within it that warrants very careful attention and analysis. There is nothing like it in our long legal history, as far as I know. After all, how often is it that a Department of Justice memo is issued that matter-of-factly argues that the Commander in Chief can authorize pouring corrosive acid on a detainee — can authorize cutting out a tongue and poking out an eye — nothwithstanding a statute that would prohibit that very conduct?

* * *

An OLC legal conclusion does establish the official views of the Executive branch unless overruled by the President, the Attorney General, or OLC itself (as Jack Goldsmith did in the last week of 2003). Therefore, it’s a very solemn function for the Office to have. Actually, by law the function has been assigned to the Attorney General ever since the Judiciary Act of 1789; but in recent decades, the AG has delegated the opinion-rendering function to OLC.

Well, not to OLC, exactly, but to an officer of the United States, the “Assistant Attorney General, Office of Legal Counsel.”

On Friday, March 14th, 2003, that officer was Jay Bybee. [UPDATE: Post corrected to reflect fact that Jay Bybee remained AAG on the 13th.] Yet John Yoo issued the Opinion in his own name. John Yoo did not have the legal authority to issue this opinion . . . unless either Jay Bybee or John Ashcroft delegated Yoo the authority to issue such a momentous opinion without the supervision of the head of the office.

* * *

This [the issuance of the March 14, 2003 OLC Opinion under the name of John Yoo] was, in my view, a serious abuse of authority and/or violation of protocol. And it demonstrates exactly why it is so important to abide by such procedural norms — so that an unconfirmed, rogue deputy in OLC can’t just go around offering the most important and ground-shifting legal advice in the Executive branch without that advice having been thoroughly scrubbed and critiqued by others who are more accountable and more seasoned.

Professor Marty Lederman also notes that “[i]n late 2004, new OLC head Jack Goldsmith reviewed the March 2003 memo, was stunned by what he later called the “unusual lack of care and sobriety in [its] legal analysis” — it “seemed more an exercise of sheer power than reasoned analysis” — and immediately called the Pentagon to implore them not to rely upon it. Later, the next head of OLC, Dan Levin, wrote the Pentagon to confirm that they rescind any policies that had been based on the Yoo memo.

Writing about Philippe Sands’s article “The Green Light” in Vanity Fair, which as he notes is a teaser for Sands’ forthcoming book The Torture Team, Scott Horton notes, on April 2, 2008 in his article The Green Light that Mr. Yoo’s conduct does not meet the threshold required by the ‘Adviser’ rules described by Professor Luban, as noted above:

We’ve all heard ad nauseam the Administration’s official torture narrative. This is a different kind of war, they argue. Each invocation of “different” is to a clear point: the Administration wishes to pursue its war unfettered by the laws of war. Unfettered, indeed, by any form or notion of law. But Sands’s work is important because he has looked carefully at the chronology: what came first, the decision to use torture techniques, or the legal rationale for them?

Gonzales and Haynes laid out their case with considerable care. The only flaw was that every element of the argument contained untruths. The real story, pieced together from many hours of interviews with most of the people involved in the decisions about interrogation, goes something like this: The Geneva decision was not a case of following the logic of the law but rather was designed to give effect to a prior decision to take the gloves off and allow coercive interrogation; it deliberately created a legal black hole into which the detainees were meant to fall. The new interrogation techniques did not arise spontaneously from the field but came about as a direct result of intense pressure and input from Rumsfeld’s office. The Yoo-Bybee Memo was not simply some theoretical document, an academic exercise in blue-sky hypothesizing, but rather played a crucial role in giving those at the top the confidence to put pressure on those at the bottom. And the practices employed at Guantánamo led to abuses at Abu Ghraib.

The fingerprints of the most senior lawyers in the administration were all over the design and implementation of the abusive interrogation policies. Addington, Bybee, Gonzales, Haynes, and Yoo became, in effect, a torture team of lawyers, freeing the administration from the constraints of all international rules prohibiting abuse.

Sands notes the focal role that the torture lawyers saw for the Attorney General’s opinion power. It was, as Harvard law professor Jack Goldsmith suggested in a recent book, a device that could be used to give a sort of pardon in advance for persons undertaking criminal acts.

And of course, the torture lawyers fully appreciated from the outset that torture was a criminal act. Most of the legal memoranda they crafted, including the March 2003 Yoo memorandum released today, consist largely of precisely the sorts of arguments that criminal defense attorneys make–they weave and bob through the law finding exceptions and qualifications to the application of the criminal law. But there are some major differences: these memoranda have been crafted not as an after-the-fact defense to criminal charges, but rather as a roadmap to committing crimes and getting away with it. They are the sort of handiwork we associate with the consigliere, or mob lawyer. But these consiglieri are government attorneys who have sworn an oath, which they are violating, to uphold the law.

* * *

Of course they missed some things along the way. The legal analyses were so poorly crafted–making the sorts of sophomoric arguments that would land a law student a failing grade on an examination, that Justice was forced to rescind them. (Emphasis supplied.)

* * *

They also missed the established precedent I have cited repeatedly here, namely United States v. Altstoetter, under the rule of which the conduct of the torture lawyers is a criminal act not shielded by any notions of government immunity.

In his response at Balkinization to Boalt (Cal Berkeley) School of Law Dean Chris Edleyn’s defense of John Yoo, Scott Horton explains in more detail why John Yoo should be held to account for additional actions that violate the ‘Adviser’ rules, by failing to even address applicable and established law, let alone distinguish or otherwise explain how it is not relevant:

[T]he facts establish that the torture policies were settled upon and had in fact been implemented. The principal authors were facing severe blow back from career lawyers inside the government. And John Yoo was carted in to use the powers of OLC to silence lawyers protesting the illegality of what was done. I believe that an objective examination of the facts will show that this is precisely how John Yoo understood his role. In essence, he was not an independent legal advisor. He had become a facilitator, an implementor of the torture policies. His role had shifted from passive advisor to actor, pushing a process forward.

Dean Edley then states that the ethical accountability and legal liability of the legal advisor cannot be compared to those of the policy maker. This statement rests on a false understanding of the facts. But it also reflects a misconception of the established law. Indeed, Dean Edley asks what appears to be a rhetorical question:

Did the writing of the memoranda, and his related conduct, violate a criminal or comparable statute?

The answer to that question is “yes.” The liability of an attorney dispensing advice with respect to the treatment of persons under detention in wartime is subject to a special rule. It cannot be viewed in the same manner as advice given in a complex commercial dispute, for instance.

This principle was established by the United States in one of the most dramatic of the post-World War II proceedings, United States v. Altstoetter, the “lawyers’ case.” Following on the guidelines established by Justice Robert H. Jackson, the U.S. chief prosecutor, Telford Taylor, and his deputy, Charles M. La Follette, established clear principles of accountability for lawyers dispensing legal advice in circumstances virtually identical to those faced by John Yoo. There are three major principles relevant to John Yoo’s case that appear from the charge, accepted by the Tribunal. First, the case dealt with persons under detention in wartime (not POWs, in fact most of the cases in question addressed persons not entitled to POW or comparable protections). Second, it had to be reasonably foreseeable that the advice dispensed would result in serious physical or mental harm or death to a number of the persons under detention. Third, the advice given was erroneous. In fact several of the lawyers in Altstoetter were able to articulate far better defenses for their erroneous legal advice that John Yoo had, but the standard did not require it to be “outrageously” false, just incorrect.

Each of these criteria is satisfied with respect to Yoo’s advice under the torture memoranda. They explicitly address persons under detention. It was reasonably foreseeable that persons would suffer serious physical or mental harm or death as a result of the application of the techniques (in fact there have been more than 108 deaths in detention, a significant portion of them tied to torture). And the analysis was false, a point acknowledged ultimately by the OLC itself. Accordingly, a solid basis exists under the standard articulated by the United States under which John Yoo may be charged and brought to trial. * * *

However, my point here is not to make the prosecutor’s case against Yoo. It is to show that what he did raises not merely ethics issues, but actual criminal culpability . * * * (Emphasis supplied).

In addition to the points addressed by Scott Horton above, Phillipe Sands elaborates on Mr. Yoo’s conduct in his article The Green Light. In this case, the issue is Mr. Yoo’s independence. As confirmed by Mr. Feith to Mr. Sands, the purpose of these documents was to permit conduct that was criminal and otherwise forbidden by the Constitution, the Geneva Conventions and federal statutes.

Relating to this was a second document, one that had been the subject of media speculation for some weeks. The authors of this document, a legal opinion dated August 1, 2002, were two lawyers in the Justice Department’s Office of Legal Counsel: Jay Bybee, who is now a federal judge, and John Yoo, who now teaches law at Berkeley. Later it would become known that they were assisted in the drafting by David Addington, then the vice president’s lawyer and now his chief of staff. The Yoo-Bybee Memo declared that physical torture occurred only when the pain was “equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death,” and that mental torture required “suffering not just at the moment of infliction but … lasting psychological harm.” Interrogations that did not reach these thresholds—far less stringent than those set by international law—were allowed. Although findings that issue from the Office of Legal Counsel at Justice typically carry great weight, at the press conference Gonzales went out of his way to decouple the Yoo-Bybee Memo from anything that might have taken place at Guantánamo. The two lawyers had been asked, in effect, to stargaze, he said. Their memo simply explored “the limits of the legal landscape.” It included “irrelevant and unnecessary” discussion and never made it into the hands of the president or of soldiers in the field. The memo did not, said Gonzales, “reflect the policies that the administration ultimately adopted.”

* * *

In the administration’s account there was no connection between the decision on Geneva and the new interrogation rules later approved by Rumsfeld for Detainee 063; its position on Geneva was dictated purely by the law itself. I asked Feith, just to be clear: Didn’t the administration’s approach mean that Geneva’s constraints on interrogation couldn’t be invoked by anyone at Guantánamo? “Oh yes, sure,” he shot back. Was that the intended result?, I asked. “Absolutely,” he replied. I asked again: Under the Geneva Conventions, no one at Guantánamo was entitled to any protection? “That’s the point,” Feith reiterated. As he saw it, either you were a detainee to whom Geneva didn’t apply or you were a detainee to whom Geneva applied but whose rights you couldn’t invoke. What was the difference for the purpose of interrogation?, I asked. Feith answered with a certain satisfaction, “It turns out, none. But that’s the point.”

That indeed was the point. The principled legal arguments were a fig leaf. The real reason for the Geneva decision, as Feith now made explicit, was the desire to interrogate these detainees with as few constraints as possible. Feith thought he’d found a clever way to do this, which on the one hand upheld Geneva as a matter of law—the speech he made to Myers and Rumsfeld—and on the other pulled the rug out from under it as a matter of reality. Feith’s argument was so clever that Myers continued to believe Geneva’s protections remained in force—he was “well and truly hoodwinked,” one seasoned observer of military affairs later told me.

* * *

Meanwhile, unbeknownst to Dunlavey and the others at Guantánamo, interrogation issues had arisen in other quarters. In March 2002 a man named Abu Zubaydah, a high-ranking al-Qaeda official, was captured in Pakistan. C.I.A. director George Tenet wanted to interrogate him aggressively but worried about the risk of criminal prosecution. He had to await the completion of legal opinions by the Justice Department, a task that had been entrusted by Alberto Gonzales to Jay Bybee and John Yoo. “It took until August to get clear guidance on what Agency officers could legally do,” Tenet later wrote. The “clear guidance” came on August 1, 2002, in memos written by Bybee and Yoo, with input from Addington. The first memo was addressed to Gonzales, redefining torture and abandoning the definition set by the 1984 torture convention. This was the Yoo-Bybee Memo made public by Gonzales nearly two years later, in the wake of Abu Ghraib. Nothing in the memo suggested that its use was limited to the C.I.A.; it referred broadly to “the conduct of interrogations outside of the United States.” Gonzales would later contend that this policy memo did “not reflect the policies the administration ultimately adopted,” but in fact it gave carte blanche to all the interrogation techniques later recommended by Haynes and approved by Rumsfeld. The second memo, requested by John Rizzo, a senior lawyer at the C.I.A., has never been made public. It spells out the specific techniques in detail. Dunlavey and his subordinates at Guantánamo never saw these memos and were not aware of their contents.

The lawyers in Washington were playing a double game. They wanted maximum pressure applied during interrogations, but didn’t want to be seen as the ones applying it—they wanted distance and deniability. They also wanted legal cover for themselves.

At The Nation, Professor Stephen Gillers adds in The Torture Memo that Mr. Yoo was neither independent nor competent in rendering his legal advice on torture:

In his book The Terror Presidency, [Bybee’s successor, Jack] Goldsmith, now a Harvard law professor, writes that the torture memos had “no foundation” in any “source of law” and rested on “one-sided legal arguments.”

* * *

How could two really smart guys authorize torture using “one-sided legal arguments” that have “no foundation” in law? How could they be guilty of a “stunning failure of lawyerly craft”? The sad answer seems to be that they knew what the President wanted and delivered: torture is OK if you call it something else. Detainees are outside the protection of due process and civilized law. The President’s authority is close to absolute. Anyway, no court can review him. (On this last point, the Supreme Court disagreed.)

* * *

So maybe the best and brightest lawyers got it so wrong because they forgot whom they served. Maybe they acted politically, not professionally. If so, we are dealing with a perversion of law and legal duty, a betrayal of the client and professional norms, not mere incompetence, which would be bad enough. Whatever the reason, Jarrett should find that this work is not “consistent with the professional standards that apply to Department of Justice attorneys.” [H. Marshall] Jarrett[, counsel for the Justice Department’s Office of Professional Responsibility,] must hold the lawyers accountable if he means to restore OLC’s reputation and vindicate the rule of law.

Finally, at Balkinization, Professor John Balkin asks whether John Yoo and Jay Bybee violated the canons of professional ethics. In drawing his conclusion, Professor Balkin considered, among others, the Gillers and Horton arguments that I highlighted above, and writes:

My own conclusion is that Yoo and Bybee did violate their professional obligations to the President as constitutional actor, and to the country as a whole. The reason is a combination of their outrageous theory of presidential dictatorship and their all too eager assistance in what appears to be a conspiracy to commit war crimes. But I do not pretend that the question is at all an easy one.

Note that even if I am right that Yoo violated the canons of professional ethics, he has not been sanctioned by any court or professional organization, much less convicted of any crime by a domestic court or international tribunal. This is important to keep in mind in the debate over whether the University of California should discipline or investigate him.

Mr. Yoo has engaged in conduct that is not independent, not competent and not reasonable. His conduct, including but not limited to the facts and analysis described above, is a violation of the rules of professional conduct of both Pennsylvania and California and more than amply demonstrates that he is unfit to practice law. Take action: file a grievance.

Text and comments of the Pennsylvania and Washington, D.C., Rules of Professional Conduct violated by Mr. Yoo

Alberto Gonzales

This morning, Attorney General Alberto Gonzales announced that he will leave the Department of Justice, after two and a half years of service to the department. Al Gonzales is a man of integrity, decency and principle. And I have reluctantly accepted his resignation, with great appreciation for the service that he has provided for our country. * * * After months of unfair treatment that has created a harmful distraction at the Justice Department, Judge Gonzales decided to resign his position, and I accept his decision. It’s sad that we live in a time when a talented and honorable person like Alberto Gonzales is impeded from doing important work because his good name was dragged through the mud for political reasons.

President George W. Bush, August 27, 2007

Personal Information:

Name: Gonzales, Alberto
Bar: Texas
ID No: No. 8118550
Status: Active

Grievance Information: Texas

Bar Home Page: State Bar of Texas
Main Grievance Page: Texas Client Assistance & Grievance
Ethics Rules: Texas Procedural and Conduct Rules
Complaint Form: Office of the Chief Disciplinary Counsel Grievance Form (.pdf)
Attorney Search: Texas Member Directory

Allegations:

Knowing Attempt to Coerce Execution of Legal Document by Incompetent Person

On March 4, 2004, then-Attorney General John Ashcroft was stricken with pancreatitis for which he underwent gall bladder surgery. Prior to being admitted to the hospital, Ashcroft executed a formal document transferring the powers and responsibilities of the office of Attorney General to his Deputy Attorney General James Comey. This transfer of power was communicated to the White House. Knowing specifically that Ashcroft had both transferred power to Comey and had also not reclaimed his position, Alberto Gonzales, then-White House Counsel, visited the hospital intensive care bedside of Ashcroft on March 10, 2004 in an attempt to pressure Ashcroft to execute a legal document as the Attorney General. Ashcroft, who was barely conscious at the time, refused. Testifying to the Senate Judiciary Committee, acting-Attorney General James Comey stated that

I was concerned that, given how ill I knew the attorney general was, that there might be an effort to ask him to overrule me when he was in no condition to do that.

Comey further testified that, after witnessing Gonzales’ visit, that

I was angry. I thought I had just witnessed an effort to take advantage of a very sick man who did not have the powers of the attorney general.

An excerpt of Comey’s testimony to the Senate Judiciary Committee on May 15, 2007, further explains the improper conduct of Gonzales:

COMEY: We had — yes. We had concerns as to our ability to certify its legality, which was our obligation for the program to be renewed.

The attorney general was taken that very afternoon [March 4, 2007] to George Washington Hospital, where he went into intensive care and remained there for over a week. And I became the acting attorney general.

And over the next week — particularly the following week, on Tuesday — we communicated to the relevant parties at the White House and elsewhere our decision that as acting attorney general I would not certify the program as to its legality and explained our reasoning in detail, which I will not go into here. Nor am I confirming it’s any particular program. That was Tuesday that we communicated that.

The next day was Wednesday, March the 10th, the night of the hospital incident. And I was headed home at about 8 o’clock that evening, my security detail was driving me. And I remember exactly where I was — on Constitution Avenue — and got a call from Attorney General Ashcroft’s chief of staff telling me that he had gotten a call…

SCHUMER: What’s his name?

COMEY: David Ayers. That he had gotten a call from Mrs. Ashcroft from the hospital. She had banned all visitors and all phone calls. So I hadn’t seen him or talked to him because he was very ill. And Mrs. Ashcroft reported that a call had come through, and that as a result of that call Mr. Card and Mr. Gonzales were on their way to the hospital to see Mr. Ashcroft.

SCHUMER: Do you have any idea who that call was from?

COMEY: I have some recollection that the call was from the president himself, but I don’t know that for sure. It came from the White House. And it came through and the call was taken in the hospital.

So I hung up the phone, immediately called my chief of staff, told him to get as many of my people as possible to the hospital immediately. I hung up, called Director Mueller and — with whom I’d been discussing this particular matter and had been a great help to me over that week — and told him what was happening. He said, “I’ll meet you at the hospital right now.”

Told my security detail that I needed to get to George Washington Hospital immediately. They turned on the emergency equipment and drove very quickly to the hospital. I got out of the car and ran up — literally ran up the stairs with my security detail.

SCHUMER: What was your concern? You were in obviously a huge hurry.

COMEY: I was concerned that, given how ill I knew the attorney general was, that there might be an effort to ask him to overrule me when he was in no condition to do that.

SCHUMER: Right, OK.

COMEY: I was worried about him, frankly. And so I raced to the hospital room, entered. And Mrs. Ashcroft was standing by the hospital bed, Mr. Ashcroft was lying down in the bed, the room was darkened. And I immediately began speaking to him, trying to orient him as to time and place, and try to see if he could focus on what was happening, and it wasn’t clear to me that he could. He seemed pretty bad off.

SCHUMER: At that point it was you, Mrs. Ashcroft and the attorney general and maybe medical personnel in the room. No other Justice Department or government officials.

COMEY: Just the three of us at that point. I tried to see if I could help him get oriented. As I said, it wasn’t clear that I had succeeded.

I went out in the hallway. Spoke to Director Mueller by phone. He was on his way. I handed the phone to the head of the security detail and Director Mueller instructed the FBI agents present not to allow me to be removed from the room under any circumstances. And I went back in the room.

I was shortly joined by the head of the Office of Legal Counsel assistant attorney general, Jack Goldsmith, and a senior staffer of mine who had worked on this matter, an associate deputy attorney general. So the three of us Justice Department people went in the room. I sat down…

SCHUMER: Just give us the names of the two other people.

COMEY: Jack Goldsmith, who was the assistant attorney general, and Patrick Philbin, who was associate deputy attorney general.

I sat down in an armchair by the head of the attorney general’s bed. The two other Justice Department people stood behind me. And Mrs. Ashcroft stood by the bed holding her husband’s arm. And we waited.

And it was only a matter of minutes that the door opened and in walked Mr. Gonzales, carrying an envelope, and Mr. Card. They came over and stood by the bed. They greeted the attorney general very briefly. And then Mr. Gonzales began to discuss why they were there — to seek his approval for a matter, and explained what the matter was — which I will not do.

And Attorney General Ashcroft then stunned me. He lifted his head off the pillow and in very strong terms expressed his view of the matter, rich in both substance and fact, which stunned me — drawn from the hour-long meeting we’d had a week earlier — and in very strong terms expressed himself, and then laid his head back down on the pillow, seemed spent, and said to them, “But that doesn’t matter, because I’m not the attorney general.”

SCHUMER: But he expressed his reluctance or he would not sign the statement that they — give the authorization that they had asked, is that right?

COMEY: Yes. And as he laid back down, he said, “But that doesn’t matter, because I’m not the attorney general. There is the attorney general,” and he pointed to me, and I was just to his left. The two men did not acknowledge me. They turned and walked from the room. And within just a few moments after that, Director Mueller arrived. I told him quickly what had happened. He had a brief — a memorable brief exchange with the attorney general and then we went outside in the hallway.

SCHUMER: OK. Now, just a few more points on that meeting. First, am I correct that it was Mr. Gonzales who did just about all of the talking, Mr. Card said very little?

COMEY: Yes, sir.

SCHUMER: OK. And they made it clear that there was in this envelope an authorization that they hoped Mr. Ashcroft — Attorney General Ashcroft would sign.

COMEY: In substance. I don’t know exactly the words, but it was clear that’s what the envelope was.

SCHUMER: And the attorney general was — what was his condition? I mean, he had — as I understand it, he had pancreatitis. He was very, very ill; in critical condition, in fact.

COMEY: He was very ill. I don’t know how the doctors graded his condition. This was — this would have been his sixth day in intensive care. And as I said, I was shocked when I walked in the room and very concerned as I tried to get him to focus.

SCHUMER: Right. OK. Let’s continue. What happened after Mr. Gonzales and Card left? Did you have any contact with them in the next little while?

COMEY: While I was talking to Director Mueller, an agent came up to us and said that I had an urgent call in the command center, which was right next door. They had Attorney General Ashcroft in a hallway by himself and there was an empty room next door that was the command center. And he said it was Mr. Card wanting to speak to me.

I took the call. And Mr. Card was very upset and demanded that I come to the White House immediately. I responded that, after the conduct I had just witnessed, I would not meet with him without a witness present.

He replied, “What conduct? We were just there to wish him well.”

And I said again, “After what I just witnessed, I will not meet with you without a witness. And I intend that witness to be the solicitor general of the United States.”

SCHUMER: Let me ask you this: So in sum, it was your belief that Mr. Gonzales and Mr. Card were trying to take advantage of an ill and maybe disoriented man to try and get him to do something that many, at least in the Justice Department, thought was against the law? Was that a correct summation?

COMEY: I was concerned that this was an effort to do an end-run around the acting attorney general and to get a very sick man to approve something that the Department of Justice had already concluded — the department as a whole — was unable to be certified as to its legality. And that was my concern.

(Emphasis added.)

Robert S. Mueller, Director of the FBI, arrived at Ashcroft’s hospital room moments after Gonzalez left. In notes memorializing his observations of Ashcroft, Mueller described Ashcroft as “feeble, barely articulate, clearly stressed.”

Mr. Ashcroft himself confirms Mr. Comey’s observation that Mr. Ashcroft was ‘a very sick man’ and Mr. Mueller’s observation that Mr. Ashcroft was ‘feeble, barely articulate, clearly stressed.’ In Never Again – Securing America and Restoring Justice, former Attorney General John Ashcroft described his stay in the hospital and the subsequent period of recuperation in this manner (emphasis supplied):

They tubed me up with intravenous lines so they could shut down my pancreas and digestive system. … I felt weak and emaciated, but my doctors assured me that when they got me patched up, [i.e., removed his gall bladder,] over time, I’d be close to good as new.

The doctors kept me in intensive care, lying on my back for almost ten full days, pumping me full of antibiotics and morphine. They then sent me home, where I needed another three (3) weeks to recuperate. Following my bout with acute pancreatitus and the necessary surgery, I returned to work in the early spring of 2004. I had relinquished my official responsibilities as attorney general during my stay in the hospital and through the recuperation. I was in no position to exercise judgment or to make decisions on behalf of the United States Government.

John Ashcroft, Never Again – Securing America and Restoring Justice, p.235.

Clearly, Mr. Comey’s statement that he was concerned that Mr. Gonzales was trying ‘to do an end-run around the acting attorney general and to get a very sick man to approve something that the Department of Justice had already concluded — the department as a whole — was unable to be certified as to its legality’ is supported by the facts. Mr. Gonzales’ explanation, however, does not.

In explaining his conduct, Gonzales testified to the Senate Judiciary Committee on July 24, 2007 that he went to the Ashcroft’s hospital at the behest of the “Gang of Eight” bipartisan congressional leaders who, according to Gonzales, had demanded that the program continue. Former Senator Tom Daschle, a member of the Gang of Eight, however, states that:

I have no recollection of such a meeting and believe that it didn’t occur. I am quite certain that at no time did we encourage the AG or anyone else to take such actions. This appears to be another attempt to rewrite history just as they have attempted to do with the war resolution.

Additionally, Gonzales’ testimony was further contradicted by other members of the Gang of Eight:

Rep. Nancy Pelosi (Calif.) and Sen. John D. Rockefeller IV (W.Va.), who were briefed on the program at the time, said there was no consensus that it should proceed. Three others who were at the meeting also said the legal underpinnings of the program were never discussed.

“He once again is making something up to protect himself,” Rockefeller said of the embattled attorney general.

Ashcroft undergoes successful gall bladder removal, doctor says, USA Today, March 9, 2004

White House pressed Ashcroft on wiretaps , USA Today, May 15, 2007

Gonzales slammed for visiting hospitalized Ashcroft on wiretapping, USA Today, May 15, 2007

Transcript of testimony of Deputy Attorney General James Comey to Senate Judiciary Committee , Salon.com, May 15, 2007

In sickbed showdown, principle trumps power , USA Today, May 16, 2007

Senators renew call for Gonzales’ resignation, USA Today, May 16, 2007

Leahy asks Gonzales to clarify testimony, USA Today, July 18, 2007

Attorney General faces new questions, USA Today, July 19, 2007

Daschle: Gonzales Trying to “Rewrite History” by Blaming Congress for Ashcroft Spying Crisis, TPMMuckraker, July 24, 2007

Pelosi: I Objected to Spying When Comey Did, TPMMuckraker, July 24, 2007

Gonzales, Senators Spar on Credibility, Dan Eggen and Paul Kane. July 25, 2007

FBI chief’s notes detail Ashcroft visit, USA Today, August 16, 2007

Special Gonzales Top 10 (video), Talking Points Memo, August 28, 2007

Rules Violated:

  1. Rule 3.04 Fairness in Adjudicatory Proceedings
  2. Rule 3.05 Maintaining Impartiality of Tribunal
  3. Rule 3.10 Advocate in Nonadjudicative Proceedings
  4. Rule 8.04 Misconduct

False Statement to Congress

In testimony before the Senate Judiciary Committee on February 6, 2007, Gonzales testified about a White House Situation Room briefing to inform congressional leaders about the pending expiration of and DoJ objections to an unidentified program. Then-Deputy Attorney General Jim Comey led the objections and questioned the program’s legality. Specifically, Gonzales stated that:

The dissent related to other intelligence activities. The dissent was not about the terrorist surveillance program. … It was not [about a program called the Terror Surveillance Program]. It was about other intelligence activities.

According to the Washington Post,

Gonzales, testifying for the first time in February 2006 about the Terrorist Surveillance Program, which involved eavesdropping on phone calls between the United States and places overseas, told two congressional committees that the program had not provoked serious disagreement involving Comey or others. “None of the reservations dealt with the program that we are talking about today,” Gonzales said then. No Dissent on Spying, Says Justice Dept. , Washington Post, R. Jeffrey Smith, May 17, 2007

The New York Times adds that

Mr. Gonzales insisted before the Senate this week that the 2004 dispute did not involve the Terrorist Surveillance Program “confirmed” by President Bush, who has acknowledged eavesdropping without warrants but has never acknowledged the data mining. Mining of Data Prompted Fight Over U.S. Spying , New York Times, Scott Shange and David Johnston, July 29, 2007

However, a May 17, 2006 memo from then-Director of National Intelligence John Negroponte addressed to then-House Speaker Dennis Hastert confirms that the briefing on March 10, 2004, was indeed about the TSP and detailed “the classification of the dates, locations, and names of members of Congress who attended briefings on the Terrorist Surveillance Program[.]” As noted by reporter Spencer Ackerman,

As the world knows, Gonzales testified on Tuesday that James Comey, the former deputy attorney general, may have had legal objections to … to… well, to some “intelligence activities” by the Bush administration, but not to the surveillance program announced by President Bush in December 2005, known as the Terrorist Surveillance Program. Stunned lawmakers immediately began talking about perjury charges: the previously-unknown “program” came as very convenient for Gonzales, who had told the Senate on February 6, 2006 that no one within the Justice Department had dissented from the program the “president described.”

* * *

If Gonzales concedes that the March 10, 2004 meeting was about the TSP, he’ll be conceding that Comey’s objections were indeed about the TSP — and that means that his February 6, 2006 testimony misled the Senate. In other words, unless Gonzales can prove that the March 10, 2004 meeting wasn’t about the TSP, he’s going to be hounded by perjury charges for the rest of his tenure.

Additionally, Jack Goldsmith testified on October 1, 2007, that

And counter to former Attorney General Alberto Gonzales’ testimony to Congress, Goldsmith said there were “enormous disagreements about many aspects of the Terrorist Surveillance Program.” Goldsmith repeatedly used the plural when describing those disagreements, making it clear that it was not a single aspect of the program that was at issue. Goldsmith: Legal Basis for Surveillance Program was “Biggest Mess” , TPMMuckraker, October 1, 2007

Senators renew call for Gonzales’ resignation, USA Today, May 16, 2007

Another Surveillance Program or a Lie?, TPMMuckraker, May 22, 2007

Ashcroft: Officials fought over snooping, USA Today, June 21, 2007

Leahy to Gonzales: Start Trying to Remember Now, TPMMuckraker, July 18, 2007

Today’s Must Read, TPMMuckraker, July 18, 2007

Documents contradict Gonzales’ testimony, USA Today, July 25, 2007

Letter from Sens. Schumer, Feinstein, Feingold and Whitehouse to Solicitor General Paul Clement , July 26, 2007

Rules Violated:

  1. Rule 3.04 Fairness in Adjudicatory Proceedings
  2. Rule 3.05 Maintaining Impartiality of Tribunal
  3. Rule 3.10 Advocate in Nonadjudicative Proceedings
  4. Rule 8.04 Misconduct

Texas Professional Ethics Opinions:

OPINION 473, June 1991
Tex. Comm. on Professional Ethics, Op. 473, V. 56 Tex. B.J. 705 (1993)
Section 3.03(a)(2) of the Texas Rules of Professional Conduct requires a lawyer to disclose a fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act….

Attempt to Improperly Influence a Witness and False Statements to Congress

On May 23, 2007, former Justice Department aide Monica Goodling testified to the Senate Judiciary Committee that a conversation with Gonzales about his recollections of the dismissal of eight U.S. attorneys made her “uncomfortable.” According to Goodling in her testimony to Congress, Gonzales recounted his recollection of events surrounding the firing of up to nine (9) United States Attorneys before asking for her reaction. Goodling testified that Gonzales began telling Goodling what he remembered about the firing process and then asked her if she had “any reaction” to his memory. “I didn’t know that it was maybe appropriate for us to talk about that,” she said, adding that it made her “uncomfortable.” She said Gonzales’ comments discomfited her because both Congress and the Justice Department had already launched investigations of the dismissals. Additionally, Goodling’s testimony contradicted Gonzales’ testimony to Congress that he could not remember numerous details about the prosecutors’ dismissals because he had purposely avoided discussing the issue with other potential “fact witnesses.” This matter is also under investigation by the U.S. Department of Justice, Office of the Inspector General.

Goodling Testifies about Gonzales Meeting , TPMMuckraker, May 23, 2007

Letter to Sens. Leahy and Specter from US DoJ, OIG, TPMMuckraker, May 23, 2007

Gonzales Meeting With Aide Scrutinized , The Washington Post, June 15, 2007

Leahy asks Gonzales to clarify testimony, USA Today, July 18, 2007

Leahy to Gonzales: Start Trying to Remember Now, TPMMuckraker, July 18, 2007

Gonzales: Witness Tampering? No, It Was Witness Consolation, TPMMuckraker, July 24, 2007

Letter from Sens. Schumer, Feinstein, Feingold and Whitehouse to Solicitor General Paul Clement , July 26, 2007

Rules Violated:

  1. Rule 1.06 Conflict of Interest: General Rule
  2. Rule 3.04 Fairness in Adjudicatory Proceedings
  3. Rule 3.05 Maintaining Impartiality of Tribunal
  4. Rule 3.10 Advocate in Nonadjudicative Proceedings
  5. Rule 8.04 Misconduct

Texas Professional Ethics Opinions:

OPINION 473, June 1991
Tex. Comm. on Professional Ethics, Op. 473, V. 56 Tex. B.J. 705 (1993)
Section 3.03(a)(2) of the Texas Rules of Professional Conduct requires a lawyer to disclose a fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act….

Complicity in Violations of the Presidential Records Act

During investigation of the firing of nine (9) United States Attorneys, the House Oversight and Government Reform Committee learned that Republican National Committee e-mail accounts, that were supposed to be used only to conduct political work, were in fact used to evade the federal law on retaining presidential records. The existence of such communications were discovered in the investigation of the firing of nine (9) U.S. attorneys last year. In a letter to White House Counsel Fred Fielding, Rep. Henry Waxman noted e-mails from senior aides who were using the RNC and other e-mail accounts that were controlled by the Bush-Cheney ’04 campaign.

Since March, the Committee has been examining why White House officials used e-mail
accounts operated and controlled by the Republican National Committee for official government
business, apparently in violation of the Presidential Records Act. I am writing to request your
assistance in obtaining documents and interviews relevant to the Committee’s investigation.
On June 18,2007 ,I released an interim report prepared by the majority staff on the status
of the Committee’s investigation. This report found that at least 88 White House officials had
RNC e-mail accounts, more than the White House had previously acknowledged. It also found
that although the RNC has preserved 674,367 e-mails to or from White House officials on RNC
accounts, there was extensive destruction by the RNC of White House e-mails. Of the 88 White
House officials who received RNC e-mail accounts, the RNC preserved no e-mails for 51
officials. In general, the RNC appears to have destroyed most of the e-mails sent or received by
White House officials prior to 2006.

The interim report described evidence that the Office of White House Counsel under
Alberto Gonzales may have known that White House officials were using RNC e-mail accounts
for official business, but took no action to preserve these presidential records. In a deposition
before the Committee on May 10, 2007, Susan Ralston, Karl Rove’s former executive assistant,
testified that she and Mr. Rove searched for e-mails on his political accounts in response to
requests from two separate investigations. Ms. Ralston stated that in 2001, Mr. Rove was asked
to search his political computer in response to a request relating to an investigation involving
Enron. She testified that the White House Counsel’s office would have known about these searches “because all of the documents that we collected were then turned over to the White
House Counsel’s office.”2 According to Ms. Ralston, this investigation was related to the Vice
President’s energy task force and contacts with Enron.’

In addition, Ms. Ralston testified that Mr. Rove searched his RNC e-mail account in
response to several subpoenas from Patrick Fitzgerald during the investigation into the leak of
the identity of CIA officer Valerie Plame Wilson. She testified that the White House Counsel’s
office also knew about these searches and received copies of the search results.

It would be a matter of serious concern if Mr. Gonzales or other attorneys in the Office of
White House Counsel were aware that White House officials were using RNC e-mail accounts to
conduct official White House business, but ignored these apparent violations of the Presidential
Records Act.

Letter from Rep. Henry Waxman to Fred Fielding, July 25, 2007

Letter from Sens. Schumer, Feinstein, Feingold and Whitehouse to Solicitor General Paul Clement , July 26, 2007

Rules Violated:

  1. Rule 1.06 Conflict of Interest: General Rule
  2. Rule 8.03 Reporting Professional Misconduct (regarding any improper use of e-mails by Harriet Miers)
  3. Rule 8.04 Misconduct

False Statements to Congress regarding abuses of USA Patriot Act by FBI

In testimony to the Senate seeking to renew the USA Patriot Act two years ago, Gonzales testified that the FBI had not abused its use of national security letters. Specifically, he stated on April 27, 2005 that “There has not been one verified case of civil liberties abuse.” However , six (6) days earlier,

the FBI sent Gonzales a copy of a report that said its agents had obtained personal information that they were not entitled to have. It was one of at least half a dozen reports of legal or procedural violations that Gonzales received in the three months before he made his statement to the Senate intelligence committee, according to internal FBI documents released under the Freedom of Information Act.

The acts recounted in the FBI reports included unauthorized surveillance, an illegal property search and a case in which an Internet firm improperly turned over a compact disc with data that the FBI was not entitled to collect, the documents show. Gonzales was copied on each report that said administrative rules or laws protecting civil liberties and privacy had been violated.

The reports also alerted Gonzales in 2005 to problems with the FBI’s use of an anti-terrorism tool known as a national security letter (NSL), well before the Justice Department’s inspector general brought widespread abuse of the letters in 2004 and 2005 to light in a stinging report this past March.

Gonzales Was Told of FBI Violations , John Solomon, Washington Post, July 10, 2007

When Did AG Gonzales Know About FBI Abuses? , TPMMuckraker, July 10, 2007

Today’s Must Read , TPMMuckraker, July 10, 2007

Gonzales: NSL Abuses Weren’t Really Abuses , TPMMuckraker, July 24, 2007

Letter from Sens. Schumer, Feinstein, Feingold and Whitehouse to Solicitor General Paul Clement , July 26, 2007

Rules Violated:

  1. Rule 3.04 Fairness in Adjudicatory Proceedings
  2. Rule 3.05 Maintaining Impartiality of Tribunal
  3. Rule 3.10 Advocate in Nonadjudicative Proceedings
  4. Rule 8.04 Misconduct

Texas Professional Ethics Opinions:

OPINION 473, June 1991
Tex. Comm. on Professional Ethics, Op. 473, V. 56 Tex. B.J. 705 (1993)
Section 3.03(a)(2) of the Texas Rules of Professional Conduct requires a lawyer to disclose a fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act….

Conflict of Interest and/or Failure to Procure Written Waiver of Conflict

Murray Waas of the National Journal, writes that

Shortly before Attorney General Alberto Gonzales advised President Bush last year on whether to shut down a Justice Department inquiry regarding the administration’s warrantless domestic eavesdropping program, Gonzales learned that his own conduct would likely be a focus of the investigation, according to government records and interviews.

Bush personally intervened to sideline the Justice Department probe in April 2006 by taking the unusual step of denying investigators the security clearances necessary for their work.

It is unclear whether the president knew at the time of his decision that the Justice inquiry — to be conducted by the department’s internal ethics watchdog, the Office of Professional Responsibility — would almost certainly examine the conduct of his attorney general.

Sources familiar with the halted inquiry said that if the probe had been allowed to continue, it would have examined Gonzales’ role in authorizing the eavesdropping program while he was White House counsel, as well as his subsequent oversight of the program as attorney general.

Both the White House and Gonzales declined comment on two issues — whether Gonzales informed Bush that his own conduct was about to be scrutinized, and whether he urged the president to close down the investigation, which had been requested by Democratic members of Congress.

* * *

Stephen Gillers, a law professor at the New York University School of Law and an expert on legal ethics issues, questioned Gonzales’s continued role in advising Bush in any capacity about the probe after he learned that his own conduct might be scrutinized: “If the attorney general was on notice that he was a person of interest to the OPR inquiry, he should have stepped aside and not been involved in any decisions about the scope or the continuation of the investigation.”

Bush Blocked Justice Department Investigation, Murray Waas, National Journal, July 18, 2006

Internal Affairs, Murray Waas, National Journal, March 15, 2007

Gonzales: Don’t Blame Me, Blame Bush, TPMMuckraker, March 23, 2007

Memorandum to the Senate Judiciary Committee from Chairman John Conyers, pp. 14 -5, July 24, 2007

The Case Against Gonzales , The Anonymous Liberal, July 27, 2007

Rules Violated:

  1. Rule 1.06 Conflict of Interest: General Rule
  2. Rule 8.04 Misconduct

Texas Professional Ethics Opinion:

OPINION 325, December 1966
[Citing] Opinion 173 (March, 1968):
“Public officials should act with the utmost caution at all times to avoid any suspicion on the part of the public that there is some influence operating on the Court in the handling of matters before it and they should not conduct themselves in such a way as to impair the confidence which the community has in the administration of justice.”
The same policy carries forward to the conduct of an attorney after his retirement from public office and he should not accept employment in any matter which might be calculated to arouse suspicion of impropriety in the public mind.

OPINION 367, March 1974
Ethical Consideration 9-3 of the Code of Professional Responsibility provides “after a lawyer leaves judicial office or other public employment, he should not accept employment in connection with any matter in which he had substantial responsibility prior to his leaving, since to accept employment would give the appearance of impropriety even if none exists.

OPINION 441, March 1987
Tex. Comm. on Professional Ethics, Op. 441, V. 50 Tex. B.J. 618 (1987)
A lawyer may not represent an interest adverse to a client’s or a former client’s interest if the two matters are substantially related. Such adverse representation is prohibited in order to avoid conflicts of interest.

OPINION 494, February 1994
Tex. Comm. on Professional Ethics, Op. 494, V. 57 Tex. B.J. 786 (1994)
Is an attorney disqualified from representing a client in a situation where the husband had a brief consultation with the attorney in 1986, and the wife consulted the attorney in a subsequent divorce action in 1992?
* * *
Were the factual matters involved in the representation so related that there is a genuine threat that confidences gained in the former representation will be divulged to the attorney’s present client?
ANSWER
Yes. The wife seeks to have the attorney represent her in a divorce from her husband, after the husband consulted with the attorney about a possible divorce from his wife. Obviously this factor is met. In a similar opinion, (Opinion 294, TBJ, September 1964) the committee found that an attorney who represented the wife in a prior divorce action, which was dismissed upon reconciliation, could not ethically represent her husband in a subsequent divorce suit filed against her by her husband. The committee reasoned that an attorney’s duty to preserve a client’s confidence outlasts his or her employment, and employment which involves the disclosure or use of these confidences to the disadvantage of the client.
CONCLUSION
The attorney’s representation of the wife would be in violation of the Texas Disciplinary Rules of Professional Conduct.

OPINION 527, April 1999
Tex. Comm. on Professional Ethics. Op. 527, V. 62 Tex. B.J. 4 (1999)
SUMMARY OF APPLICABLE RULE
Prior applicable ethics opinions, decisions of the Texas Supreme Court, and the provisions of Rule 1.09 may be summarized as follows:
1. Rule 1.09 prohibits an attorney who has personally represented a former client from representing a person in a matter adverse to the former client if such new representation would violate any of the provisions of Rule 1.09(a).
2. If an attorney is prohibited under Rule 1.09(a) from accepting a representation adverse to a former client, each attorney currently associated with such disqualified attorney is vicariously prohibited from accepting such representation under Rule 1.09(b).
3. If an attorney who personally represented a former client leaves a law firm, the lawyers who remain at the firm are thereafter prohibited from knowingly representing a person adverse to that former client only if a lawyer presently associated with the firm is personally disqualified from accepting the representation under Rule 1.09(a) or the firm’s proposed representation involves the validity of the departed lawyer’s legal services or work product for such former client while he was associated with the firm, or the proposed representation will with reasonable probability involve a violation of Rule 1.05 with respect to the confidential information of such former client.
4. If, as in this ethics opinion, a lawyer terminates his association with a law firm and such firm retains as a client a person whom the departing lawyer personally represented while he was associated with the firm, any subsequent representation by the departed lawyer adverse to such former client is governed by Rule 1.09(a). And, all lawyers currently associated with the departed lawyer are treated the same by reason of Rule 1.09(b). The departed lawyer and members of his new firm can represent a person adverse to such former client only if the representation does not violate Rule 1.09(a)(1),(2), or (3).

False Statements to Congress regarding Intentions to appoint US Attorneys pursuant to USA Patriot Act

On January 18, 2007, Alberto Gonzales testified before the Senate Judiciary Committee and stated:

“I am fully committed, as the administration’s fully committed, to ensure that, with respect to every United States attorney position in this country, we will have a presidentially appointed, Senate-confirmed United States attorney.”

CAUGHT ON TAPE: Gonzales Lies Under Oath, Think Progress, March 16, 2007

Again on April 19, 2007, Gonzales testified that had rejected a White House plan to appoint United States Attorneys pursuant to recent amendments to the USA Patriot Act which would permit the Attorney General to appoint United States Attorneys without having the appointments confirmed by the United States Senate and further stated that he never considered the plan. However, Gonzales’ former chief of staff Kyle Sampson testified in March to the Senate Judiciary Committee that Gonzales did not reject the idea of circumventing the Senate until after Gonzales had spoken with Sen. Mark Pryor (D-AR) in mid-December about Tim Griffin’s appointment as a United States Attorney in Arkansas. Sampson testified that he did discuss the idea with Gonzales and that Gonzales did not reject the outright.

Schumer Tears into Gonzales, TPMMuckraker, April 19, 2007

Rules Violated:

  1. Rule 3.04 Fairness in Adjudicatory Proceedings
  2. Rule 3.05 Maintaining Impartiality of Tribunal
  3. Rule 3.10 Advocate in Nonadjudicative Proceedings
  4. Rule 8.04 Misconduct

Texas Professional Ethics Opinions:

OPINION 473, June 1991
Tex. Comm. on Professional Ethics, Op. 473, V. 56 Tex. B.J. 705 (1993)
Section 3.03(a)(2) of the Texas Rules of Professional Conduct requires a lawyer to disclose a fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act….

Conflict of Interest

In his letter to Senator Patrick Leahy and Congressman Paul Hodes, Attorney Paul Twomey states:

We are writing to you in order to bring to your attention to what appears to be disturbing evidence of a pattern of political interference in the Department of Justice’s investigation of the phone jamming in 2002 United States Senate election in the State of New Hampshire.

On November 5, 2002, operatives working on behalf of the New Hampshire Republican Party entered into a criminal conspiracy which had as its goal the total disruption of the political communications of the New Hampshire Democratic Party in order to gain an unfair advantage in what was a very closely contested United States Senate election. To date, four individuals have been indicted and convicted including Charles McGee, the 2002 Executive Director of the Republican Party and James Tobin, a long time Republican operative who was at that time Regional Political Director for both the Republican National Committee (RNC) and the National Republican Senatorial Committee. (NRSC)

Additionally, a civil suit was brought on behalf of the New Hampshire Democratic Party against the New Hampshire Republican State Committee, the Republican National Committee and the National Republican Senatorial Committee. Throughout both the criminal prosecution and the civil suit, there were repeated actions of commission and omission on the part of the Department of Justice that give rise to serious questions as to whether or not there was political interference which operated to distort the judicial process.

* * *

After the filing of the criminal charges when an attorney acting for the Democratic Party, Finis Williams, was informed by the prosecutor that the delays were
due to the extreme difficulty in obtaining authorization from higher levels at DOJ for any and all actions in the case. We have been further informed by Attorney John Durkin (counsel for Republican criminal defendants, Allen Raymond) that he was told by a DOJ prosecutor that all decisions in this case had to be made subject to the approval of the Attorney General himself who had to sign off on all actions in this case. As will be discussed below, the two individuals who served as Attorney General during this case both have actual conflicts of interest that would appear to rule out ethical involvement in the investigation and prosecution of the phone jamming.

* * *

As stated above, prosecutors in this case have indicated that both that the slow pace of this case has been occasioned by delays caused by individuals at the highest levels of the Department of Justice and that all decisions had to be reviewed by the Attorney General himself. Given the extreme and critical importance of an assault on free elections by high officials in a major political party, is it certainly appropriate for attention to be given to the case by at the highest levels at the Department of Justice. However, the attention so given should be of assistance in the expeditious and efficacious prosecution of those involved. In this case, however, the attention of the higher ups in the Justice Department served only to delay, if not deny, justice.

Both Attorney General’s Ashcroft and Gonzalez had personal conflicts of interest which should have resulted in them recusing themselves from all action in the case. Attorney General Ashcroft, at the time of these events, had recently been a United States Senator and a member of the National Republican Senatorial Committee, one of the organizations for which James Tobin was working when he undertook his criminal activities. The conflict for Attorney General Gonzalez is even more apparent. At the time of the phone jamming, Attorney General Gonzales was legal counsel to the White House. During the course of the criminal conspiracy, defendant, James Tobin, made literally hundreds of calls to the political office of the White House. In the civil case, a deposition was taken of Alicia Davis, Deputy to Ken Mehlman, who was then the Political Director of the White House regarding her conversations with both Tobin and Jayne Millerick, a Republican operative on Election Day 2002. The New Hampshire Democratic Party sought to have documents produced from the White House concerning these contacts. (This request was denied by the White House on the grounds of executive privilege, although the documents sought only related to the non-official actions of the White House Political Office would not appear to be subject to executive privilege. In fact, the phone records sought were for phones that could not be paid by public funds according to the terms of the Hatch Act).

It is perfectly clear that there were significant questions regarding the involvement of the political office of the White House in this case. When it came to light that the Republican National Committee had paid several million dollars for the legal fees of James Tobin, former, RNC Chair Gillespie told a reporter that the decision to pay these legal fees made in consultation with the White House.
As Attorney General Gonzalez was then counsel for the White House, it is totally inappropriate for him to have taken any part in investigation and prosecution of the phone jamming case where part of the inquiry would involve the possible involvement of individuals working for the White House.

Letter to Sen. Leahy and Cong. Hodes, Paul Twomey, Esq., March 21, 2007

Rules Violated:

  1. Rule 1.06 Conflict of Interest: General Rule
  2. Rule 8.04 Misconduct

Texas Professional Ethics Opinions:

OPINION 325, December 1966
[Citing] Opinion 173 (March, 1968):
“Public officials should act with the utmost caution at all times to avoid any suspicion on the part of the public that there is some influence operating on the Court in the handling of matters before it and they should not conduct themselves in such a way as to impair the confidence which the community has in the administration of justice.”
The same policy carries forward to the conduct of an attorney after his retirement from public office and he should not accept employment in any matter which might be calculated to arouse suspicion of impropriety in the public mind.

OPINION 367, March 1974
Ethical Consideration 9-3 of the Code of Professional Responsibility provides “after a lawyer leaves judicial office or other public employment, he should not accept employment in connection with any matter in which he had substantial responsibility prior to his leaving, since to accept employment would give the appearance of impropriety even if none exists.

OPINION 441, March 1987
Tex. Comm. on Professional Ethics, Op. 441, V. 50 Tex. B.J. 618 (1987)
A lawyer may not represent an interest adverse to a client’s or a former client’s interest if the two matters are substantially related. Such adverse representation is prohibited in order to avoid conflicts of interest.

OPINION 494, February 1994
Tex. Comm. on Professional Ethics, Op. 494, V. 57 Tex. B.J. 786 (1994)
Is an attorney disqualified from representing a client in a situation where the husband had a brief consultation with the attorney in 1986, and the wife consulted the attorney in a subsequent divorce action in 1992?
* * *
Were the factual matters involved in the representation so related that there is a genuine threat that confidences gained in the former representation will be divulged to the attorney’s present client?
ANSWER
Yes. The wife seeks to have the attorney represent her in a divorce from her husband, after the husband consulted with the attorney about a possible divorce from his wife. Obviously this factor is met. In a similar opinion, (Opinion 294, TBJ, September 1964) the committee found that an attorney who represented the wife in a prior divorce action, which was dismissed upon reconciliation, could not ethically represent her husband in a subsequent divorce suit filed against her by her husband. The committee reasoned that an attorney’s duty to preserve a client’s confidence outlasts his or her employment, and employment which involves the disclosure or use of these confidences to the disadvantage of the client.
CONCLUSION
The attorney’s representation of the wife would be in violation of the Texas Disciplinary Rules of Professional Conduct.

OPINION 527, April 1999
Tex. Comm. on Professional Ethics. Op. 527, V. 62 Tex. B.J. 4 (1999)
SUMMARY OF APPLICABLE RULE
Prior applicable ethics opinions, decisions of the Texas Supreme Court, and the provisions of Rule 1.09 may be summarized as follows:
1. Rule 1.09 prohibits an attorney who has personally represented a former client from representing a person in a matter adverse to the former client if such new representation would violate any of the provisions of Rule 1.09(a).
2. If an attorney is prohibited under Rule 1.09(a) from accepting a representation adverse to a former client, each attorney currently associated with such disqualified attorney is vicariously prohibited from accepting such representation under Rule 1.09(b).
3. If an attorney who personally represented a former client leaves a law firm, the lawyers who remain at the firm are thereafter prohibited from knowingly representing a person adverse to that former client only if a lawyer presently associated with the firm is personally disqualified from accepting the representation under Rule 1.09(a) or the firm’s proposed representation involves the validity of the departed lawyer’s legal services or work product for such former client while he was associated with the firm, or the proposed representation will with reasonable probability involve a violation of Rule 1.05 with respect to the confidential information of such former client.
4. If, as in this ethics opinion, a lawyer terminates his association with a law firm and such firm retains as a client a person whom the departing lawyer personally represented while he was associated with the firm, any subsequent representation by the departed lawyer adverse to such former client is governed by Rule 1.09(a). And, all lawyers currently associated with the departed lawyer are treated the same by reason of Rule 1.09(b). The departed lawyer and members of his new firm can represent a person adverse to such former client only if the representation does not violate Rule 1.09(a)(1),(2), or (3).

False Statements to Congress regarding reasons for firing nine (9) US Attorneys

Gonzales testified to the Senate Judiciary Committee that he would ‘never, ever make a change in a United States attorney position for political reasons…. I just would not do it.” This is claim is directly contrary to the known facts that United States Attorney Bud Collins and other United States Attorneys were asked to resign so that Tim Griffin, as a replacement for Mr. Collins, and others to “build there resumes [and] get in (sic) experience Attorney as a United States attorney.”

Memorandum to the Senate Judiciary Committee from Chairman John Conyers, pp. 14 -5, July 24, 2007

Rules Violated:

  1. Rule 3.04 Fairness in Adjudicatory Proceedings
  2. Rule 3.05 Maintaining Impartiality of Tribunal
  3. Rule 3.10 Advocate in Nonadjudicative Proceedings
  4. Rule 8.04 Misconduct

Texas Professional Ethics Opinions:

OPINION 473, June 1991
Tex. Comm. on Professional Ethics, Op. 473, V. 56 Tex. B.J. 705 (1993)
Section 3.03(a)(2) of the Texas Rules of Professional Conduct requires a lawyer to disclose a fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act….

False Statements to Congress regarding Conversations with Senator Pete Domenici

Gonzales testified to the Senate Judiciary Committee that in a conversation that occurred he spoke to Senator Pete Domenici who, according to Sen. Domenici, criticized the performance of United States Attorney David Iglesias. William Moschella, an attorney with DoJ, testified that he was present during each of these phone conferences, that it was his impression that each conversation regarded only the allocation of additional funding and that Gonzales had never relayed to him that the calls were critical of Iglesias. An e-mail regarding a phone conference further states that “Senator Domenici would like to talk to the AG regarding his concerns about staffing shortages” which supports Mr. Moschella’s contention that that conversation(s) were about funding issues only.

Memorandum to the Senate Judiciary Committee from Chairman John Conyers, pp. 14 -5, July 24, 2007

Rules Violated:

  1. Rule 3.04 Fairness in Adjudicatory Proceedings
  2. Rule 3.05 Maintaining Impartiality of Tribunal
  3. Rule 3.10 Advocate in Nonadjudicative Proceedings
  4. Rule 8.04 Misconduct

Texas Professional Ethics Opinions:

OPINION 473, June 1991
Tex. Comm. on Professional Ethics, Op. 473, V. 56 Tex. B.J. 705 (1993)
Section 3.03(a)(2) of the Texas Rules of Professional Conduct requires a lawyer to disclose a fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act….

Failure to report Unethical Conduct

Then-White House Counsel Harriet Miers was properly served with a compulsory subpoena issued by the House Judiciary Committee. Claiming executive privilege, Ms. Miers failed to appear before the relevant tribunal. Gonzales knew about the compulsory subpoena and provided legal advise to Ms. Miers through the Department of Justice that application of the privilege obviated her need to even appear before the tribunal.

And as noted above, in his letter to White House Counsel Fred Fielding, Rep. Henry Waxman noted e-mails from senior aides who were using the RNC and other e-mail accounts that were controlled by the Bush-Cheney ’04 campaign:

It would be a matter of serious concern if Mr. Gonzales or other attorneys in the Office of
White House Counsel were aware that White House officials were using RNC e-mail accounts to
conduct official White House business, but ignored these apparent violations of the Presidential
Records Act.

Letter from Rep. Henry Waxman to Fred Fielding, July 25, 2007

Rules Violated:

  1. Rule 1.06 Conflict of Interest: General Rule
  2. Rule 8.03 Reporting Professional Misconduct
  3. Rule 8.04 Misconduct

Texas Professional Ethics Opinions:

OPINION 520, May 1997
Tex. Comm. on Professional Ethics, Op. 520, V. 60 Tex. B.J. 490 (1997)
QUESTION
Does Rule 8.03 of the Texas Disciplinary Rules of Professional Conduct require a lawyer to report suspected misconduct by another lawyer, when the first lacks solid proof that the second lawyer engaged in the suspected conduct?
DISCUSSION
Rule 8.03 of the Texas Disciplinary Rules of Professional Conduct (Rules) provides in pertinent part:
(a) Except as permitted in paragraphs (c) or (d), [FN1] a lawyer having knowledge that raises a substantial question as to that lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects, shall inform the appropriate disciplinary authority.
Comment three explains that Rule 8.03 “. . . describes only those disciplinary violations that must be revealed by the disclosing lawyer in order for that lawyer to avoid violating [the] rules.” (Emphasis added.) Comment four further elaborates by stating that Rule 8.03 “limits [a lawyer’s] reporting obligations to those offenses that a self-regulating profession must vigorously endeavor to prevent.” Hence a lawyer is required to report violations of the applicable rules of professional conduct that raise a substantial question as to that lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects.
Comment three, however, also provides that Rule 8.03 “is not intended to . . . limit those actual or suspected violations that a lawyer may report to an appropriate disciplinary authority.” (Emphasis added.) Rather, lawyers are instructed to use their best judgment in complying with the reporting requirements of the rule. See comment four.
With regard to a report of alleged misconduct, comment two recognizes that “. . . the existence of a violation [frequently] cannot be established with certainty until a disciplinary investigation . . . has been undertaken. Similarly, an apparently isolated violation may indicate a pattern of misconduct that only such an investigation or inquiry can uncover. Consequently, a lawyer should not fail to report an apparent disciplinary violation merely because he or she cannot determine its existence or scope with absolute certainty.”
The text of Rule 8.03(a), however, requires that a lawyer have knowledge (rather than suspicion) that another lawyer has committed a violation of the applicable rules before informing the appropriate disciplinary authority. A report of misconduct must therefore be based upon objective facts that are likely to have evidentiary support.
CONCLUSION
Rule 8.03(a) of the Texas Disciplinary Rules of Professional Conduct is limited to those disciplinary violation that must be revealed by the disclosing lawyer in order for that lawyer to avoid violating the rules. As recognized in the commentary, however, Rule 8.03(a) is not intended to limit the actual or suspected violations that a lawyer may report to an appropriate disciplinary authority. Before reporting an alleged violation, however, Rule 8.03(a) requires that a lawyer have knowledge that another lawyer has in fact committed a violation of the rules. A report of misconduct must therefore be based upon such objective facts that are likely to have evidentiary support. It is beyond the scope of this opinion to comment on specific facts that would constitute sufficient basis for a report of misconduct.

FN1–Paragraph (c) pertains to a lawyer who knows or suspects that another lawyer or judge is impaired by chemical dependency on alcohol or drugs, or by mental illness. Paragraph (d) pertains to the disclosure/non-disclosure of confidential information.

Text and comments of the Texas Rules of Professional Conduct violated by Mr. Gonzales