By Harvey Silverglate
The punditocracy has offered up a wide range of answers to the question of what should be done about former Department of Justice legal counsel and author of the infamous "torture memos," John Yoo. Suggestions have included indictment, professional discipline or even disbarment, and termination from his tenured position at the University of California-Berkeley's Boalt Hall Law School.
Many of these proposed punishments of Yoo have more to do with partisan politics than legal reality, perhaps because it is nearly impossible to address the Yoo issue without betraying one's visceral reaction to the "War on Terror" as a whole and, more particularly, some of the tactics that have been adopted by the administration in that struggle, often with the explicit approval of the lawyers.
I've been following this story closely as both a criminal defense lawyer, with a vested interest in ensuring that a fellow member of the bar is dealt with fairly, and as a frequent critic of higher education's often evident contempt for academic freedom. So, for the understandably perplexed, here's one lawyer's guide to what sanctions, if any, Yoo might - or perhaps should - actually face.
Like many other legal observers, I consider some of the legal analyses Yoo (and in some instances his cohorts) provided for President Bush to be laughable. But just because this advice was, to many, ludicrous, doesn't mean it was criminal.
For a lawyer to be named part of a criminal conspiracy (one aimed at facilitating the commission of torture, for example), he must have given "bad faith" legal advice with an eye toward enabling his client to engage in criminal conduct. Investigators would need to prove that Yoo knew his legal opinions were nonsense, but that he rendered them anyway in order to provide his client with "legal cover." It is unlikely that such a proposition could be proven against Yoo beyond a reasonable doubt - the standard of proof for obtaining a criminal conviction - unless a smoking gun document or tape surfaces demonstrating such knowledge and motives. Proving that legal advice was given in bad faith is not that easy. Indeed, while I think most lawyers would deem Yoo's legal theories outside of the realm of serious and prudent legal advice, versions of his approach to executive supremacy are appearing with some frequency in legal journals - some written by Yoo and his colleagues, to be sure, but also by others - and so this gives Yoo some legal cover.
In truth, such a criminal investigation will probably never get off the ground. Despite the fact that the Bush administration itself has largely disavowed Yoo's legal analysis, Yoo still has friends in the administration who surely do not want to see him go to prison - even if for self-interested reasons. And unless there is a smoking gun letter or email showing an understanding that the lawyer would provide the client with a phony cover for engaging in illegal torture, a responsible prosecutor, even if inclined against Yoo, would hesitate to proceed.
One also has to consider the dangerous precedent that would be set were a lawyer indicted by a partisan prosecutor because of the former's legal work set forth in opinion letters. The risk of a rash of politically motivated prosecutions is very real. The recent federal indictment of Florida attorney Benedict Kuehne for writing a legal opinion assuring a colleague-client of the legality of accepting fees from an alleged drug cartel client brings this issue to the fore. Kuehne is perhaps best known for having represented failed Democratic presidential candidate Al Gore in the Florida electoral dust-up in the 2000 election, and so eyebrows are understandably being raised concerning the prosecutors' motives.
The Office of Professional Responsibility (OPR) at the Justice Department is conducting an internal ethics probe, but this investigation is likely more symbolic than substantial. Yoo is no longer employed by the DOJ, and hence the Department is powerless to impose any direct sanction. Besides, it would take action by the disciplinary committees of the bar associations in Pennsylvania and the District of Columbia, where Yoo is licensed, to actually affect Yoo's status as a lawyer. There is a provision in the OPR's "Policies and Procedures" that states that "OPR ordinarily advised bar disciplinary authorities in the jurisdiction where the attorney is licensed of its finding," and a bar disciplinary and licensing body could well be influenced by an adverse DOJ ethics finding against Yoo.
If these bodies were to find Yoo's advice to his client - nominally the President, but arguably the entire executive branch - to be significantly below the level of competence expected of licensed lawyers, Yoo might find himself in professional trouble. He could presumably be put on probation, suspended, or even disbarred from practicing law. As a practical matter, however, the severe sanction of disbarment would likely be reserved only if there were evidence that Yoo knew his advice was frivolous or erroneous when he rendered it, but that he did so in order to enable and give legal cover to agents conducting unlawful interrogations out in the field.
Professors, by contrast, are not required to formally buy into an established ethical code as a prerequisite for entry into the profession, although adherence to academic ethical precepts is typically required by university teaching contracts, including for tenured faculty at Boalt Hall. . There is no licensing body that could bar Yoo from teaching - indeed, any such concept would run right up against not only academic freedom, but the First Amendment as well, since he teaches at a public institution.
There is also the contractual issue of tenure. Tenured professors are rarely dismissed, and then only for the most serious violations of his or her contract. Boalt Hall has set an extraordinarily high bar to justify dismissal: to be fired, a tenured professor would have to be found guilty of the "commission of a criminal act which has led to conviction in a court of law and which clearly demonstrates unfitness to continue as a member of the faculty." There is some chatter in the blogosphere that Yoo was complicit in the commission of war crimes (torture and the like), but the chances for a successful criminal prosecution of the lawyer who wrote a legal opinion is, as any practicing lawyer recognizes, very remote, even if one believes it would be deserved.
Some have raised the question of whether Yoo being found guilty of an ethics violation, but not of a crime, might increase the likelihood of his being fired from teaching. In Yoo's contract, according to Dean Christopher Edley, the ground for dismissal is a criminal conviction. If Edley is correct, a mere bar disciplinary matter, without a simultaneous criminal conviction, would not likely result in Yoo's losing his job. Edley is rightly focused on the academic freedom issue, explained in his recently issued memo to the faculty: "Assuming one believes as I do that Professor Yoo offered bad ideas and even worse advice during his government service," Dean Edley wrote to his faculty, "that judgment alone would not warrant dismissal or even a potentially chilling inquiry." Dean Edley's protection of academic freedom in the case of Professor Yoo is particularly noteworthy - and praiseworthy - because Edley's politics are decidedly to the left of center.
On the other hand, one may argue that Dean Edley may be reading Boalt Hall's disciplinary guidelines a bit too narrowly. Another provision reserves the right of the university to discipline, or even dismiss, a tenured professor for "other types of serious misconduct, not specifically enumerated herein." Included in the policy's listing of "types of unacceptable conduct" is "violation of canons of intellectual honesty, such as research misconduct," along with "serious violation of University policies... applying to research [and] outside professional activities." However, this standard is considerably more vague than the standard based on a criminal conviction, and any investigation into the "intellectual honesty" of Yoo's torture memos almost certainly would be vulnerable to attack for its own intellectual honesty and suspected political motives. It would be a can of worms that Edley seems uneager to open.
Having the ability to look at the contentious and emotional "torture memos" debate in a fair and rational manner does help. It would be interesting, for example, to contrast the publicly stated views of various academics concerning Yoo with their views on the tenure dispute surrounding University of Colorado professor Ward Churchill. Professor Churchill, it will be recalled, became the target of many outside calls for his firing when it was discovered that shortly after the attacks of September 11th, he published an essay in which he appeared, to some, to trivialize and even mock the victims who died in that attack as "little Eichmanns". Enough supporters of academic freedom came to his aid - and correctly so - to prevent his dismissal. However, the university administration then conducted a subsequent investigation into his scholarship, as a result of complaints received, and the university decided to dismiss him for asserted plagiarism and other shoddiness discovered in his academic work. Suddenly those who came to his rescue earlier were faced with the question of whether to continue to defend Churchill now that the charge against him was one for which dismissal is, in fact, appropriate. Some withdrew their support, but others did not, demonstrating, perhaps, that the latters' support for Churchill had all along been based upon ideology rather than facts and principles.
In conclusion, only a no-holds-barred factual criminal investigation by the appropriate Department of Justice division, federal grand jury, or, perhaps congressional committee can determine whether John Yoo violated federal law. Such an investigation would require delving into documents, correspondence, and other records certain to provoke myriad objections ranging from "executive privilege" to "attorney-client privilege of confidentiality." And this assumes, of course, that any such communications have not long ago been shredded or deleted. After all, when proceedings in the criminal arena are contemplated, the level of proof must be quite high before indictment, much less conviction. And for both professional and political reasons, don't bet such an investigation will occur anytime soon, if ever.
So as a practical matter, the only realistic investigation, possibly resulting in an even moderate sanction, would be a state-level ethics probe into Yoo's advice, perhaps commenced independently by such a body, or perhaps suggested by a referral by the DOJ's Office of Professional Responsibility.. Other lawyers are subject to such probes when their work is deemed below the standard expected of a member of the bar. Such an investigation of Yoo might help clear the air, if sufficient evidence is still available and if the probe were deemed credible, fair and objective. But would a non-politicized investigation into his ethics be possible, let alone likely, even if conducted by an independent authorized state body? Stay tuned.
Harvey A. Silverglate is a Boston-based criminal defense and civil liberties lawyer and writer. He is the co-author (with Alan Charles Kors) of The Shadow University: The Betrayal of Liberty on America's Campuses (HarperPerennial paperback, 1999), and is currently writing a book on how the Department of Justice abuses vague criminal statutes in questionable prosecutions.