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.