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Why Yoo's Sincere Extremist Excuse Doesn't Work

By Jack M. Balkin

The decision by Deputy A.G. David Margolis to not refer John Yoo to the bar for disciplinary proceedings can in no way be read as a vindication of his conduct. The key issue is whether "Yoo intentionally or recklessly provided misleading advice to his client." "It is a close question," wrote Margolis, adding:

I would be remiss in not observing, however, that these memoranda represent an unfortunate chapter in the history of the Office of Legal Counsel. While I have declined to adopt OPR's findings of misconduct, I fear that John Yoo's loyalty to his own ideology and convictions clouded his view of his obligation to his client and led him to author opinions that reflected his own extreme, albeit sincerely held, views of executive power while speaking for an institutional client. These memoranda suggest that he failed to appreciate the enormous responsibility that comes with the authority to issue institutional decisions that carried the authoritative weight of the Department of Justice.

Margolis goes on, in conclusion, to explicitly condemn Yoo for acting inappropriately.

Why, then, no referral to the bar for disciplinary proceedings? Margolis agrees (along with just about every lawyer who has read the legal memos) that Yoo's (and Bybee's) legal analysis is seriously flawed and distorts the law. He doesn't think, however, that the preponderance of the evidence shows that Yoo distorted the legal analysis "intentionally or recklessly;" rather, his ideological extremism clouded his legal judgment.

It's difficult to know what Yoo was thinking, of course--any such showing will have to be inferred from his conduct. This is how subjective intent requirements are satisfied. The Office of Professional Responsibility Report, which recommended that he be referred to the bar for disciplinary proceedings, found that Yoo's intent to distort could be inferred from his consistent pattern of twisting every possible angle to reach the legal conclusion he desired (CIA interrogators can torture with impunity), combined with his failure to acknowledge weaknesses in his analysis.

What's odd about Margolis's conclusion is that it implicitly relies upon a necessary assumption that he elsewhere explicitly contradicts. Early in the memo he notes that Yoo is a distinguished lawyer with sterling credentials (SCOTUS law clerk, Berkeley professor). But Margolis's conclusion makes sense only if we assume that Yoo is an incompetent lawyer.

Here is why: Yoo's extreme ideological views undoubtedly colored his reading of the law, but that does not end the inquiry of whether he intentionally or recklessly distorted the law. After all, his extremism provides an affirmative reason to suspect that he distorted the law intentionally in pursuit of his ideological aims. More to the point, even an extreme ideologue can recognize when his preferred (idiosyncratic) reading of the law departs from conventional legal analysis. All competent lawyers know the difference between how they would like the law to be interpreted and how the law will likely be interpreted by a court. (The ability of lawyers to predict outcomes, an essential part of the job, depends upon the capacity to mark this distinction.)

So yes, Yoo undoubtedly holds extreme views about executive power. But if we assume that Yoo is a competent lawyer--as there is every reason to believe--then he must have recognized at some level that his analysis distorted the law. This recognition, and the determination to issue the memos anyway, provides a basis to find that he recklessly (knowingly) distorted the law.

Given the patent weakness of his legal analysis, there are two possible alternatives: Yoo is an incompetent lawyer or he intentionally or recklessly distorted the law. Margolis makes two pivotal assertions--that Yoo is a highly qualified lawyer and that Yoo is an ideologue with extreme views. When these assertions are read together, a strong inference can be drawn that Yoo knew his analysis distorted the law but his ideological extremism led him to decide that the ends (enable harsh interrogation) justified the means (distort the law).

Full post as published by Balkinization on February 20, 2010 (boomark / email).