By James Kwak
As many of you know, I am a law student. The law is a fascinating subject . . . if you are fascinated by the art of making fine distinctions that most people think are silly. So I thought that the subject of John Yoo and the torture memos might be good material for a good primer on how lawyers think.
The procedural facts are that the Justice Department’s Office of Professional Responsibility wrote a report severely criticizing John Yoo and Jay Bybee for various ethical lapses. Associate Deputy Attorney General David Margolis, however, decided not to take further action against Yoo and Bybee.
As Jack Balkin, a professor at my school and noted blogger, explains, the issue was what standard to use in evaluating their behavior. Standards are one of the great joys of the legal profession. As any watcher of Law and Order knows, defendants in criminal cases must be found guilty “beyond a reasonable doubt,” whatever that means. (Hint: it doesn’t mean beyond any doubt.) In this case, the Office of Professional Responsibility found that Justice Department lawyers had “a duty to exercise independent legal judgment and to render thorough, objective, and candid legal advice,” which seems reasonable. But in Balkin’s words, “This standard, Margolis explained, is much too high a requirement and not one that Yoo and Bybee were previously warned was the standard to which they would be held.”
Lawyers everywhere, breathe easy: you can’t be held accountable if you fail to “render thorough, objective, and candid legal advice.”
“Instead, Margolis argues that, judging by (among other things) a review of D.C. bar rules, the standard for attorney misconduct is set pretty damn low. . . . To show misconduct, according to the standard that Margolis finds most relevant, one would have to show that Yoo or Bybee intentionally made arguments that they knew were wrong and false or did so not caring whether they were wrong or false.”
(Emphasis added.) Did they?
“As for John Yoo, Margolis explains (although he puts it far more diplomatically) that Yoo was an ideologue who entered government service with a warped vision of the world in which he sincerely believed. . . . Therefore it is hard to conclude that Yoo deliberately gave advice that he knew was wrong to the CIA. Yoo isn’t putting people on when he says the absurd things he says in these memos and elsewhere.* He actually believes that the President is a dictator and that the President doesn’t have to obey statutes that make torture a crime.”
Crazy lawyers everywhere, breathe easy. In short, you can have a completely twisted notion of the law; but as long as you really believe it to be true, you won’t be disbarred.
Is this right? Of course not (in the normative sense, that is). In ordinary civil liability suits, you can be held liable simply for not behaving the way a reasonable person would under the same circumstances. Even the criminal law is full of statutes that punish defendants for outcomes that they didn’t intend. Do we really want lawyers out there who think crazy things are true? We’re not talking about criminal prosecution in this proceeding, just about potentially disbarring Yoo and Bybee — that is, protecting potential future clients from them. And even if you want to protect lawyers in general against being punished for making honest (if crazy) mistakes, wouldn’t you want to hold government lawyers to a higher standard?
Margolis’s standard is extremely high: not only do you have to know you are saying stupid things, you have to not care that you are saying stupid things. This is the kind of protection that is usually reserved for people charged with really serious offenses. For example, according to the Model Penal Code,** if you create a homicidal risk and someone gets killed, but you weren’t aware of the risk, you are only guilty of negligent homicide. If you are aware that you are creating a substantial homicidal risk, that qualifies as reckless homicide, which is still only a form of manslaughter. To be guilty of murder, you have to not only be aware of the risk, you also have to show extreme indifference to the value of human life. In other words, not only do you have to know you are putting lives in danger, you have to not care.
As Balkin puts it, “In effect, by setting the standard of conduct so low, rules of professional conduct effectively work to protect all those lawyers out there whose moral standing is just a hair’s breadth above your average mass murderer. This is how the American legal profession simultaneously polices and takes care of its own.”
So it seems like Yoo and Bybee can skate by. Brad DeLong thinks, however, that Yoo is guilty even by Margolis’s standard, because he intentionally made incorrect arguments and didn’t care that they were false.
* For example:
“What about ordering a village of resistants to be massacred? … Is that a power that the president could legally—”
“Yeah,” Yoo replied, according to a partial transcript included in the report. “Although, let me say this: So, certainly, that would fall within the commander-in-chief’s power over tactical decisions.”
“To order a village of civilians to be [exterminated]?” the OPR investigator asked again.
“Sure,” said Yoo.
** Actually, according to my criminal law professor’s account of the MPC.