Well the Department of Justice Office of Professional Responsibility concluded its audit on Jay Bybee and John Yoo. On the surface, the finding that no disciplinary action will be taken SEEMS like a win for torture (well that and Barack Obama’s support of just letting go) – that the DoJ did not do their job. To the contrary – actually Associate Deputy Attorney General David Margolis was right on the money. This was a disciplinary hearing – not a trial, and lawyers write these rules. Why would they write rules to make doing their job difficult? So of course, to be found irresponsible, you’d have to be not just a total boob, but legitimately evil, as Jack Balkin, Yale law professor deftly explains (h/t Greenwald):
I know what you are probably saying: shouldn’t every government lawyer have to live up to this standard? Of course, they should, but the point is that this is a disciplinary proceeding. It’s not about what people should do, but about how badly they have to screw things up before they are subject to professional sanctions.
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, and is only violated by lawyers who (here I put it colloquially) are the scum of the earth. Lawyers barely above the scum of the earth are therefore excused.
Margolis concludes that Yoo and Bybee exercised poor judgment and made bad legal arguments. But lawyers often make arguments that are bad or even laughably bad, and this by itself does not violate the very low standard set by rules of professional responsibility. These rules are set up by jurisdictions to weed out the worst offenders, leaving the rest of the legal profession to make entirely stupid, disingenuous and asinine arguments that normal people with functioning moral consciences would not make. That is to say, rules of professional misconduct are aimed at weeding out sociopaths and people driven to theft and egregious incompetence by serious drug and alcohol abuse problems; they do not guarantee that lawyers will do right by their clients, or, in this case, by the Constitution and laws of the United States of America. 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 yeah, John Yoo might be a crazy evil man with weirdo beliefs about the presidency and torture. But he did not violate his duty. Read the entire Balkin piece, trust me.