David Margolis — The Institutionalist
By Joe Palazzolo | April 19, 2010 8:05 am

In Washington, a telltale sign that a powerful official has stumbled into controversy is when prominent people line up to say what a good job he is doing.

The ritual was on display in March, when a bipartisan group of former Attorneys General and Deputy Attorneys General dating back to the Carter administration sent a letter to Senate Judiciary Committee leaders exalting David Margolis, one of the Justice Department’s most influential and enduring, if least known, figures.

“We all benefited during our tenures from the wise counsel and good judgment of David Margolis,” the letter said of the Justice Department legend, who for decades has served as consigliere to top Justice officials. “We greatly admire and appreciate the unique role he has played in the department over many years.”

Associate Deputy Attorney General David Margolis (Lonnie Tague, DOJ)

Until recently Margolis, 70, had little need for public buttressing. A member of the Deputy Attorney General’s staff, he is the highest-ranking career lawyer advising the agency’s political appointees. In 45 years as a government lawyer, he made himself indispensable to the department’s leaders, who attributed to him almost mythic powers of legal acumen and political foresight, particularly in hot-button ethics and public corruption matters.

But a couple of  decisions in recent years have shaken the image of Margolis as the department’s infallible sage, bringing him under public scrutiny and raising the uncomfortable question of whether, after a long run, he may be losing his golden touch.

The rush to defend Margolis came shortly after his hotly debated findings in the internal ethics investigation of Jay Bybee and John Yoo, who, as top officials in the Office of Legal Counsel during the Bush administration, helped to sanction one of the most widely condemned practices of the Bush presidency — the use of brutal interrogation techniques against terror suspects. President Barack Obama and Attorney General Eric Holder have each said techniques like waterboarding amounted to torture.

Jay Bybee (doj)

Margolis, who was given the job of deciding major internal ethics issues during the Clinton administration, had taken the unusual step of overturning a finding by the Office of Professional Responsibility, the Justice Department’s internal ethics watchdog. Where OPR found violations of professional responsibility — Bybee and Yoo espoused fringe legal views supported by sloppy, one-sided analysis, the office concluded — Margolis saw only “poor judgment.”

In a memorandum to Holder, Margolis allowed that the issue of disciplinary action in Yoo’s case was a “close question,” and he said the work of Bybee, now a federal appeals judge, and Yoo, a law professor, was clearly “flawed.” Nevertheless, he wrote, their failings did not warrant referrals to bar associations for possible sanctions. The decision provoked anger among congressional Democrats who had long condemned the interrogation techniques as torture and sparked an outcry from liberals and human rights groups.

John Yoo (Berkeley)

“David Margolis is Wrong,” Georgetown law and philosophy professor David Luban declared in Slate. A New York Times editorial said: “Poor judgment is an absurdly dismissive way to describe giving the green light to policies that have badly soiled America’s reputation.”

Margolis’ decision followed an earlier episode that earned him critics. He played a key behind-the-scenes role during the Bush administration’s ill-executed plan to fire U.S. Attorneys. Margolis, one of the few department lawyers with experience evaluating and sometimes sacking under-performing U.S. Attorneys, did not object when he learned of the dismissal plan, failing to anticipate the political firestorm that would erupt when the firings became known.

He confided to his friends that the ordeal marked a low-point of his career. He blamed himself — and was criticized by the department’s Inspector General — for deferring too much to young, inexperienced political appointees at the department, several of whom in congressional hearings cited him as a reason they felt emboldened to go ahead with the plan.

“He didn’t do a good job of seeing around the corner,” said a senior Justice Department official in the Bush administration.

Still, Margolis, a quirky figure with a fondness for country music, comic books and outsize belt buckles remains “the standard people are measured by,” said Mark Filip, the last Deputy Attorney General in the Bush administration.

And Margolis is still capable of brandishing his legal firepower. He was an unseen force behind Attorney General Eric Holder’s decision to throw out the government’s fumbled case against former Alaska Sen. Ted Stevens, a move that is widely thought to have been legally smart and limited long-term damage to the department.

Margolis declined to comment for the story.

Margolis is not partisan by anyone’s reckoning; he is an avowed institutionalist and a self-styled “cleaner” who stakes his reputation on insulating the department and its leaders from harm, political or otherwise. Margolis, a graduate of Harvard Law School, works six days a week and has left the country only twice –- including a law enforcement trip in the 1970s to Canada.

He is something of a throwback to a simpler time at the Justice Department — a former organized crime prosecutor who joined the department a year after Robert Kennedy left. For relaxation he is said to listen to 1930s and 1940s detective serials in his fourth-floor office.

In a sense, Margolis has seemed a little less surefooted as Washington has become more polarized, and as national security has assumed preeminence in the department. “This guy had a strong record in the 1990s. In the 2000s, not so much,” said Scott Horton, a human rights lawyer and contributing editor of Harper’s Magazine, who has been a persistent critic of Margolis and of the Justice Department’s disciplinary mechanisms.

‘Good, Unvarnished Advice’

Margolis was groomed by legendary Criminal Division official Jack Keeney, who at age 88 still holds an office at Department of Justice headquarters in Washington. And when Margolis retires or “dies at his desk,” as one friend put it, Associate Deputy Attorney General Scott Schools is widely expected to take the baton from Margolis. (Margolis told NPR in 2007 that his colleagues joke that he’s waiting for Keeney to retire, to swipe his mantle. “And so I’m told they now call me Prince Charles,” he said.)

Margolis presided over department’s thriving organized crime unit throughout the 1980s, often in jeans, a t-shirt and cowboy boots. He personified the independence and incorruptibility of the organized crime section, his colleagues said. They speculated that Margolis was permitted his idiosyncratic style because the powers that be in the staid Justice Department recognized that an exception to the rule was healthy for morale.

A more likely explanation is that his work spoke more loudly than his contempt for government-issue navy blue suits. Benjamin Civiletti, who supervised Margolis as head of the Criminal Division, Deputy Attorney General and Attorney General in the Carter administration, remembered being impressed by Margolis’ batting average.

“Ninety-five percent of the time he would authorize an investigation or a prosecution and it would by and large be successful, and one out of 20 he would decline or decline someone else’s suggestion, and then there would be an appeal to the Assistant Attorney General, and in those appeal cases, I can’t remember a time when he wasn’t successful,” Civiletti said. “His judgment was that good, and his reputation just grew and grew.”

Margolis moved to the Criminal Division’s front office as a Deputy Assistant Attorney General in 1990 and then to the Deputy Attorney General’s office in 1993. Philip Heymann, Attorney General Janet Reno’s first deputy, tailor-made the career Associate Deputy Attorney General slot for Margolis on Keeney’s recommendation.

Jamie Gorelick (ABA)

Heymann was familiar with Margolis’ abilities, having supervised him as chief of the Criminal Division in the Carter administration. Jamie Gorelick, who succeeded Heymann as one of the longest-serving Deputy Attorneys General, quickly learned to rely on Margolis.

Margolis is frequently called the Yoda of the department, after the wise, benevolent and sometimes cryptic Jedi Master. But Gorelick said the comparison misses the mark.

“Yoda is occasionally inscrutbile. David is never inscrutable,” Gorelick said. “David knew that what I needed was good, unvarnished advice.”

Gorelick recalled a 1995 controversy over FBI Director Louis Freeh’s promotion of a confidant to become his top deputy. FBI agent Larry Potts had been censured for his role in the FBI’s handling of a 1992 siege at Ruby Ridge, Idaho, in which an unarmed woman was killed by a government sniper.

David Margolis testifies before the U.S. Senate Special Committee on Whitewater about the Clinton-era investigation in 1995. (CSpan)

Margolis vehemently opposed Potts’ promotion, and Gorelick held him up until Freeh complained that the bureau was suffering without Potts as the No. 2. “The bureau is trying to put you in the trick box,” Margolis told her, Gorelick recalled.

Margolis’ concerns bore out: In what amounted to an embarrassment for the department and the bureau, Freeh was forced to demote Potts and eventually suspend him amid criminal and ethics investigations related to the Ruby Ridge incident.

Margolis, who identifies himself as a Democrat, expected the incoming Bush administration to jettison him from the management office in 2001, he told his friends. Reno ensured him a soft landing, appointing Margolis to the Board of Immigration Appeals in the waning days of her tenure.

But he never left his fourth-floor office, across the hall from the deputy’s suite, to become an immigration judge. “There wasn’t any question as to whether I was going to keep him,” President George W. Bush’s first Deputy Attorney General, Larry Thompson, who had known Margolis since Thompson was U.S. attorney in Atlanta in the 1980s, told Legal Times in 2006. “You don’t make decisions; you let Dave make decisions.”

Thompson deferred to Margolis in the leak investigation of Sen. Richard Shelby, a strong political ally of President George W. Bush. Prosecutors had prepared a draft indictment against the Alabama Republican for allegedly disclosing classified information to reporters in 2002, when he was chairman of the Senate Select Committee on Intelligence.

But Margolis denied the prosecutors’ request to subpoena the reporters, Legal Times reported, crippling a high-profile investigation and insulating department leaders from allegations of political interference.

“He knows that he gets the most difficult assignments — the assignments the political people don’t want to take or don’t feel they should take,” said Michael Bromwich, Margolis’ friend and former Justice Department Inspector General.

Before leaving the department in 2005, Jim Comey, who succeeded Thompson as Deputy Attorney General, appointed Margolis to coordinate with Patrick Fitzgerald’s investigation into the leaked identity of CIA officer Valerie Plame.

Margolis viewed his primary responsibility as protecting “Fitzy,” as he called the U.S. Attorney in Chicago, from outside influence as he probed White House staff. “And on that, I was like the Maytag repairman,” Margolis told congressional aides in 2007.

Margolis is the unofficial liaison for the Deputy Attorney General with the FBI, the Criminal Division and the 93 U.S. Attorneys. He is consulted on ethics issues, such as recusals, on a formal and informal basis.

Margolis also sits on the selection committee for U.S. Attorneys and U.S. Marshals, leading their interviews at Main Justice. More than one potential job applicant has underestimated Margolis based on his rumpled clothes and his unpretentious, sometimes profane, style. One of his interview questions: “Have you ever been caught in bed with a live boy or a dead woman?”

Margolis’ office — the door of which is always open, except during his daily naps — is cluttered with sports paraphernalia and bric-a-brac acquired over 45 years. He is an avid fan of Elvis Presley, the New York Yankees — whom he has followed since his youth in Hartford, Conn. — and pulp heroes like The Shadow. (“Who knows what evil lurks in the hearts of men?”)

Outside the department, Margolis is best known for his role as the department’s chief in-house disciplinarian, for which he earned the nickname “The Turk,” after the NFL functionary who informs players they’ve been cut from the team.

His part in assessing, if indirectly, one of the most controversial national security policies in the Bush administration came on the heels of the U.S. Attorney firings, the fallout of which cast suspicion on the department’s ability to independently evaluate cases and wall off law enforcement from political influence. Margolis underscored the damage in his 2007 interview with House and Senate Judiciary Committee staff investigating the purge.

“Really, I think if this had happened at the beginning of my career I don’t think I would have stayed. I would have said, boy, this is a place I want to — I don’t want to hang my hat forever,” Margolis said. “But fortunately when I started, this was before Watergate, and the press was uncritically supportive of us. Uncritically supportive of us. And that’s not good either. But, hell, it was a lot more fun.”

The Last Word

Margolis, his friends said, knew his 69-page memorandum on the work of Bybee and Yoo might be the thing for which he is most remembered.

Holder had indicated in congressional testimony the report would be released by the end of November, around the time Margolis fell ill with pneumonia. Margolis, who rarely takes time off, except to visit his mother and brother in Connecticut, was sidelined through much of December.

He and Scott Schools, another career Associate Deputy Attorney General, labored in January and February to complete their analysis, which incorporated the responses of lawyers for Bybee and Yoo, as well as former Attorney General Michael Mukasey and Mark Filip, his deputy – Bush administration officials who strongly disagreed with OPR’s conclusions.

The Margolis memorandum, issued more than five years after OPR began its investigation, was in accord with OPR’s conclusion that Yoo and Bybee’s work on legal justifications for the brutal interrogation techniques was flawed. But there they parted ways. Margolis condemned OPR for eschewing its analytical framework and, in so many words, for applying shifting and incoherent standards in service of a predetermined outcome.

In the past 17 years, Margolis said, “I have reviewed almost every OPR report of investigation. OPR developed its framework over a decade ago and to the best of my recollection has applied it virtually without exception since that time.”

It was a rare rebuke by one of OPR’s strongest advocates over the years.

Margolis must notify his political superiors if he strays from the recommendations of the ethics unit, but appointees have deferred to his judgment since he assumed disciplinary responsibilities in 1993, essentially making his the last word.

David Ogden, Deputy Attorney General during Obama’s first year in office, said he and other department officials mulled a break with precedent in OPR’s investigation of Bybee and Yoo, given the weight of the issue, but concluded it would be a mistake.

David Ogden (WilmerHale)

“What happens if a political appointee, albeit one of unimpeachable good faith, reverses, disagrees with David Margolis?” Ogden said during March remarks at American University Washington College of Law in Washington, D.C. “Does that help anybody at all? It seems to me it doesn’t.”

Jameel Jaffer, Director of the American Civil Liberties Union’s National Security Program, believes Margolis reached his decision in good faith but said: “I don’t understand how somebody who looked at those facts can say those OLC lawyers met their professional obligations.”

Jaffer took particular umbrage with Margolis’ decision to weigh Yoo’s strongly held views of executive power as evidence against a misconduct finding. “I’ve never seen it argued that an ideological commitment to the wrong answer is a mitigating factor.”

Horton, the human rights advocate, said the final OPR report and the Margolis memo, taken together, are “proof of the Justice Department’s complete inability to self-regulate.”

More than a dozen current and former Justice Department officials interviewed for this story expressed a more nuanced view of the Margolis memo, but they were largely unsurprised by its conclusions. And those who disagreed with Margolis’ findings were still likely to agree with his analysis.

“This is the role he’s been playing, consistent with his image of protecting of the department,” said a longtime career Justice Department lawyer, who has since left.

The lawyer added that by releasing the memorandum and the accompanying OPR reports, Margolis “essentially made a bar referral without making a bar referral.” Margolis invited others to pick up where he left off, writing, “OPR’s findings and my decision are less important than the public’s ability to make its own judgment.”

Members of the D.C. bar, for instance, are required to report to the bar counsel “knowledge that another lawyer has committed a violation of the rules of professional conduct that raises a substantial question as to that lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects.” (Several groups and at least one lawmaker have filed bar complaints or supplemented existing complaints with the OPR report.)

“He tried to bring a long-term view to issue,” said a former senior Justice official who served in the Bush administration. “If you can start turning decisions DOJ lawyers make in areas of law where there isn’t clear guidance or where department lawyers are trying to push the law in new direction — if you’re going to turn those all into opportunities to challenge the lawyers’ licensure, you’re going to severally hamper the department’s mission.”

Having come of age as a federal prosecutor in the war on organized crime, Margolis was familiar with deep hostility toward the work of Justice Department lawyers. Organized crime prosecutors often found themselves dismissed by the power structure as cowboys and gunslingers.

That experience molded Margolis’ approach to ethics issues, former colleagues said. He took part in experiments using the Racketeer Influenced and Corrupt Organizations (RICO) Act and other new law enforcement tools. The department nurtured an entrepreneurial mindset in organized crime prosecutors, with enormous success, but the risks were apparent.

“The organized crime section had a lot of conduct issues on its plate at the time. It always had very good prosecutors in danger of going off the reservation,” explained Paul Coffey, Margolis’ longtime friend who succeeded him as chief of the section. “We were always one step away from a great victory or an IED.”

Perhaps the same could be said for national security lawyers in the post-9/11 world, as Margolis acknowledged in his memorandum. “Among the difficulties in assessing these memos now over seven years after their issuance is that the context is lost,” he wrote, alluding to both the climate after the terrorist attacks and the extraordinary length of the OPR investigation.

Margolis seems at peace with his ruling on Yoo and Bybee, Coffey said. “It doesn’t seem to nettle him at all that a lot of people don’t agree with his decision, but on the U.S. Attorneys, unlike the Yoo situation, he knows he hit a ground ball to short.”

David Margolis (center) accepting the Mary C. Lawton Lifetime Service Award in 2006 from then-Deputy Attorney General Paul McNulty and then-Attorney General Alberto Gonzales. (UPI photo via Newscom)

David Margolis (center) accepting an award from then-Deputy Attorney General Paul McNulty (left) and then-Attorney General Alberto Gonzales, both of whom later resigned over the U.S. Attorneys firing scandal. (Newscom)

The scandal that erupted in early 2007 over the U.S. Attorney purge badly stained the department and cost Attorney General Alberto Gonzales his credibility and ultimately his job. Gonzales’s deputy, Paul McNulty, also resigned. Margolis’ approval of the plan, which he acknowledged, undercut his authority as the department’s ethics officer. Perhaps more stinging was his failure to recognize the political consequences of the firings, and thus protect the institution from disrepute.

“I’d like to see the department in the newspaper every day for locking up the bad guys,” Margolis told the investigators. “And we’re getting in the paper every day now in a negative light, and that saddens me greatly.”

After a joint investigation, the DOJ Office of the Inspector General and the OPR determined that nine U.S. Attorneys were fired in a flawed process heavily influenced by politics rather than based on performance. Margolis, the ethics units said, never questioned why Gonzales’ chief of staff, Kyle Sampson, had placed the prosecutors on the list for removal, nor did he know what process was used to get them there. (The criteria for selecting who was fired has never been fully explained.)

Margolis had been a champion of fair process for political appointees in misconduct investigations since arriving in the deputy’s office, but the idea of removing weak U.S. Attorneys pleased him. “He wished that other administrations had had the nerve to cull through the U.S. Attorney roster,’’ removing those who were not capable performers, said a former senior Justice Department official in the Bush administration.

The execution, however — the prosecutors were called by a mid-level official and told to resign without explanation –”left something to be desired,” Margolis said with understatement. Margolis told congressional investigators he should have created grounds for dismissal. “Not because there’s any legal necessity, and only partially out of a sense of fairness…but also to protect the department’s image and reputation.”

Still, the veteran scolded himself for not getting more involved in the business of firing department lawyers, a task for which he – likely more than any other government lawyer — is known.

“I’d like to think that I know how far a career guy should go and when he should defer to the political appointees. But in this case, ironically, I think my tentativeness and lack of aggressiveness…did my masters a disservice, and I accept that,” he told congressional investigators. “That does not mean that I’m excluding everybody else from their own responsibility. That’s a different issue.”

Saving Face — and Integrity

But nothing Margolis has done has diminished his role as the lawyer in charge of cleaning up messes made by other lawyers at the Justice Department. After the indictment, prosecution and conviction of Ted Stevens, the former Republican senator from Alaska, Margolis strongly urged Holder to drop the department’s case, said a person familiar with the matter.

Stevens was convicted in 2008 of lying on his Senate disclosure forms, but after a internal review of the case department officials concluded that prosecutors improperly withheld evidence from Stevens’ defense lawyers. Holder opened an internal inquiry into the conduct of the prosecutors who worked on the case.

In a meeting with Holder and other top Justice Department officials last spring, Margolis argued that the government should bear the cost of its mistakes upfront. Given Stevens’ advanced age and the fact that the trial contributed to his election defeat in the 2008, Margolis told the Attorney General, dismissal was a more appropriate remedy than retrial, the person said.

The federal judge presiding over the case, Emmet Sullivan of the U.S. District Court for the District of Columbia, expressed doubt about the department’s ability to investigate its own. The prosecution errors were “too numerous to be left to an internal investigation that has no accountability,” the judge said in court.

He appointed a special counsel, Henry Schuelke III, to investigate the lawyers who handled the case for possible criminal contempt. However, Sullivan was one of many who applauded Holder’s decision.

“Everybody was surprised,” said John Wesley Hall, past president of the National Association of Criminal Defense Lawyers.”It was a strong sign the department was willing to bite the bullet and deal with Brady violations.”

Margolis’ position was deeply unpopular among many federal prosecutors, particularly in the Criminal Division’s Public Integrity Section, which led the Stevens case. But Margolis’ talent has been in rendering judgments that are legally sound, benefit the department’s long-term interests and preserve its integrity in the public mind.

“Fundamentally, individual interests don’t exist for him,” said a senior Justice Department official in the Bush administration. “He is there to protect the institutional interests of the department. If you were his best friend — and a Yankees’s fan — I’m sure he would feel bad about giving you the ax. But he would not hesitate.”

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