Did Margolis Get It Right?
By Joe Palazzolo | February 22, 2010 8:17 pm

Over at Slate, David Luban takes a close look at Associate Deputy Attorney General David Margolis’s 69-page memorandum in which he downgraded the Office of Professional Responsibility’s finding that Jay Bybee and John Yoo committed professional misconduct.

For more than a decade, Margolis has been the career official in the DAG’s office who handles disciplinary matters. His portfolio is broad, and he cuts a big figure at the department, as the top career official with more than 40 years’ experience. (He’s also the official who signs off on prosecutor requests to subpoena reporters, helps select U.S. Attorneys and vets top FBI officials, among other duties.)

Margolis has described himself as the department’s “cleaner” — as in the guy who cleans up the department’s messes. In the weeks to come, many legal experts will debate whether Margolis took out the trash or made a bigger mess of things. We know where Luban, a Georgetown Law professor, stands:

Margolis rejects OPR’s analysis and concludes that “poor judgment” rather than professional misconduct “accounts for the entirety of Yoo’s work” on the torture memos.

But that’s not the right characterization for memos that used extravagant legal reasoning to approve torture. It’s like saying that Iago’s advice to Othello showed poor judgment. OPR made a powerful case against Bybee and Yoo. In response, Margolis went after OPR like a defense lawyer, upped the burden of proof beyond what the ethics rules require, and minimized the liberties that Yoo and Bybee had taken with the law.

To continue reading Luban’s analysis, click here.

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6 Comments

  1. James A says:

    I THINK SCOTTD AND ANTONIO ARE FRIENDS/RELATIVES OF MARGOLIS- MARGOLIS HAS FANNED OUT ACROSS THE INTERNET CALLING ON HIS FAMILY MEMBERS AND FRIENDS TO DEFEND HIS ACTIONS.

    EXCEPT THAT MARGOLIS HAS BOWED TO PRESSURE-IN THE MOUSSAOUI SANCTIONS CASE OF DAVID J. NOVAK, WHERE HE DOWNGRADED THOSE VERY SERIOUS SANCTIONS, AND IN THE TORTURE MEMO SANCTIONS AS WELL.

    LIKE I SAID, AND WILL REPEAT AGAIN: THE ODAG IS INHERENTLY POLITICAL, AND WHEN CALLED UPON TO BE A DECISIONMAKER IN A HIGHLY POLITICALLY CHARGED CASE, THE ODAG WILL ALWAYS CHOOSE THE PATH OF LEAST RESISTANCE-THE DECISION THAT WILL BE THE MOST INNOCUOUS-WHICH IS ABSOLUTELY NOT THE SAME AS THE DECISION THAT SERVES JUSTICE.-

    MARGOLIS IS PART OF THE PROBLEM, HE SHOULD BE REPLACED-BY A PANEL WITHIN THE ODAG-YOU CANNOT HAVE ONE PERSON PLAYING DECISIONMAKER OVER OPR’S FINDINGS-THAT SIMPLY BEGS INJUSTICE, AND UNJUST, BIASED DECISIONS, WHICH MARGOLIS CLEARLY HAS EFFECTUATED HERE.

    GET RID OF MARGOLIS IN THE ROLE OF ODAG DECISIONMAKER OVER OPR. HE IS PAST HIS PRIME-ENGAGE A PANEL AND THEN YOU’LL CONVINCE US, DOJ, THAT YOU ARE SERIOUS ABOUT DOING JUSTICE IN THESE VITALLY IMPORTANT OPR CASES.

    VITALLY IMPORTANT.

  2. Antonio says:

    OPR’s draft report relied heavily on Luban’s work, as noted by AG Mukasey and DAG Filip in their Jan. 2009 letter to Marshall Jarrett — something they note was also confirmed in a prior meeting with Jarrett. So is it any wonder that Luban is critical of Margolis’s memo?

    A careful reporter would have mentioned the obvious bias in Luban’s analysis. If Luban is not a lawyer — as a previous commenter suggested — then that should have been mentioned, as well.

  3. ScottD says:

    David Margolis who under a great deal of pressure made a just and objective decision should be congratulated, nor excorirated. Margolis scathing indictment of office of Professional Responsibility also provides additional evidence for OPR irresponsibility and ethical problems, and perhaps corruption.