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.”
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.
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.
“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.
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.
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.
“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.”
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.”
Former Deputy Attorney General David Ogden said he supported legislation governing long-term detention of suspected terrorists “in theory” but acknowledged political difficulties in enacting it.
“I think it makes sense as a matter of good government, in theory, to have with something of this magnitude a political consensus that would come out of legislation,” Ogden said Tuesday at American University Washington College of Law, his first public appearance since stepping down in February. He added that it “would be a desirable thing” to have a process, loaded on the executive branch rather than the courts, to guide the administration as suspected terrorists are scooped up around the world.
But he said that the possibility of a defective law gave him pause. And the politics would be tough with the diversity of views on the issue, said Ogden, now a partner at Wilmer Cutler Pickering Hale and Dorr LLP.
His remarks came on the same day The Washington Post reported that Sen. Lindsey Graham (R-S.C.) had submitted draft legislation to the White House that would develop a framework for handling terrorism suspects. The White House is urging Democrats to give the proposal serious consideration in hopes of striking a deal that would lead to the closure U.S. military prison at Guantanamo Bay, Cuba, and resolve other detainee-related issues.
A task force created by President Barack Obama on his second day of office recommended in January of this year that 50 of the nearly 200 detainees at Guantanamo Bay be held indefinitely. Until recently, the administration had not shown an interest in pursuing legislation that would change the current process of judicial review. Guantanamo detainees can challenge their confinement in federal court in Washington, but some judges on the court have asked for guidance from Congress, and thorny questions remain about indefinite detention and what process should be afforded to suspected terrorists held outside the United States.
On Tuesday, Ogden gave a speech on the restoring the Justice Department and was interviewed by American University law professor Daniel Marcus, a former Associate Attorney General in the Clinton administration who has been named as Ogden’s possible successor as DAG.
Marcus, who also served as general counsel to the 9/11 Commission, focused heavily on national security issues, at one point asking Ogden about a controversial ethics finding against the former Office of Legal Counsel lawyers who approved waterboarding and other interrogation methods. The Office of Professional Responsibility concluded that lawyers Jay Bybee, now a federal judge, and John Yoo, now a law professor, violated professional standards. A career official in Ogden’s former office, David Margolis, downgraded the finding of misconduct to “poor judgment.”
Ogden said the matter raised “big questions” about the role of the ethics office. ”I think there are real questions about the ability of…an ethics watchdog to really evaluate potential violations by an office like OLC, where the gist of the ethical allegations is that the opinion was so wrong that it couldn’t be in good faith,” he said. “This is really hifalutin stuff that these folks do. They’re the smartest — you hope anyway — they’re the smartest lawyers the government can find and put in that situation, and it’s tough to have other folks come in and look over their shoulder and say, ‘You know what, not only are you wrong, but you’re so outrageously wrong that I think you acted in bad faith’ — not to say that if someone did act in bad faith they shouldn’t be subject to discipline. It’s a really hard thing to do and a really hard thing to look at.”
While the five-year investigation and report-drafting process raised several novel issues, Ogden said, the decision to let Margolis have final say was in keeping with department precedent. Margolis, who as Associate Deputy Attorney General is the department’s senior career official, has overseen the ethics office since 1993.
“We took a look at this one, we thought about the question of whether for some reason we should deviate from that given the importance and profile of this,” Ogden said.
He concluded that ”it would be a mistake because, what happens if a political appointee, albeit one of unimpeachable good faith, reverses, disagrees with David Margolis, or agrees with him. Does that help anybody at all? It seems to me it doesn’t, particularly where that would be unusual.”
He added: “I’m a great believer… in normal process, and that’s what the normal process was.”
Watch David Ogden’s speech here.
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New York Democratic Rep. Jerrold Nadler plans to renew a push for legislation that would change the way the Justice Department handles allegations of misconduct.
The measure championed by Nadler would allow the Office of the Inspector General the right of first refusal to investigate misconduct claims. Under the current structure, the Justice Department’s internal review board, the Office of Professional Responsibility, investigates all attorney misconduct allegations.
Supporters of the change say the Inspector General has much more autonomy given his unlimited term, greater resources and the fact that he reports to both Congress and the Attorney General, whereas OPR is much more susceptible to interference from political leaders.
Defenders of OPR, including Attorney General Eric Holder, counter that the specialized office is necessary because it has developed an expertise in applying complicated ethical and legal standards to DOJ employees and that allegations of misconduct, many of which are frivolous, should be handled out of the public realm.
Some members of Congress have tried and failed to give more power to the Inspector General before. The renewed interest is the result of a recent OPR investigation into the Bush administration’s interrogation policies. In a long-awaited report, OPR found that Bush-era Office of Legal Counsel lawyers Jay Bybee and John Yoo committed professional misconduct by authoring memos that approved the use of enhanced interrogation techniques. But that finding was overruled by David Margolis, a career employee serving as Associate Deputy Attorney General, the highest ranking non-political position in the Justice Department. In a memo overturning the finding, Margolis said he agreed that the authors’ work was slipshod and that they demonstrated “poor judgment” but not misconduct.
Nadler said the recent OPR report highlighted the need for change because of how easily a report can be overruled by just one man.
“I met with my staff … and said why don’t we introduce that bill?” Nadler told Main Justice.
Such a bill, Nadler’s staff told him, was actually quietly introduced by House Judiciary Committee Chairman John Conyers (D-Mich.) in October. HR 3847 was referred to the House Committee on Oversight and Reform on Oct. 20, and has sat there since. Now Nadler plans to make a new push. Nadler does not serve on the Oversight panel.
“We’re going to pursue that,” said Nadler.
Long Running Disagreement
The tussle between OPR and the Inspector General is not new.
The Inspector General’s office is an independent entity within the department that publishes public audits and reports on DOJ programs. Congress and the executive branch have limited oversight over the DOJ’s Inspector General; the head of the office is selected by the president and confirmed by the Senate, and can be removed only by the president himself. The office has the authority to issue subpoenas to compel testimony or documents for investigations, but it is specifically prohibited from investigating the department’s lawyers for misconduct related to their official duties.
Only OPR — which answers to the Justice Department’s political leaders — can investigate Justice attorneys or other DOJ employees for misconduct. OPR does not have the ability to issue subpoenas and the results of investigations are not usually made public.
Much of the office’s workload remains a mystery.
While OPR is required by law to provide an annual report, the last one available is from fiscal 2007. The report is scrubbed of any identities.
In 2007, OPR received 906 complaints. The office determined that 207 of the matters, about 23 percent, warranted further review. OPR opened full investigations in 71 of those; the remaining 136, which are called “inquiries,” were resolved with no findings of professional misconduct.
Of the 75 investigations that were closed in fiscal 2007 — some of which took the investigators more than a year to finish — OPR found professional misconduct in only 23.
The report gives little to no detail on the subject of investigations.
“The matters opened as inquiries during fiscal year 2007 were remarkably diverse,” the report states. “Many of those matters did not involve a complaint against a department attorney. For example, some inquiries were based on allegations of whistleblower retaliation made by FBI employees. Others involved abuse of prosecutive or investigative authority by agents or unauthorized leaks to the media.”
OPR’s Toughest Critics
Some of OPR’s biggest detractors are federal judges.
Judge Mark L. Wolf, the chief judge of the District of Massachusetts, was forced to let two mob figures out of prison in 2003 after discovering that a federal prosecutor never told defense attorneys that the star witness in the murder trial had recanted his testimony.
An OPR investigation found the prosecutor’s conduct reckless but not intentional, and the attorney was privately reprimanded by the Massachusetts U.S. Attorney. But Wolf did not learn of the OPR finding until two years later and was highly displeased with the result.
Wolf wrote to the state bar disciplinary counsel and publicly released a letter to then-Attorney General Alberto Gonzales.
“In my view, a mere secret written reprimand by the United States attorney would not ordinarily be a sufficient sanction for the serious, repeated and consequential misconduct,” Wolf wrote in the 2007 letter.
In a more recent case, U.S. District Judge Emmet G. Sullivan decided to open his own investigation into the botched prosecution of former Sen. Ted Stevens (R-Alaska) rather than rely on an OPR investigation.
Stevens was accused of failing to disclose gifts he received on his Senate Ethics form. He was convicted in October 2008, but after the trial a FBI whistleblower and many others accused the prosecution of mishandling evidence. Holder moved to dismiss the case, concluding that prosecutors improperly withheld evidence favorable to Stevens.
At an April 2009 hearing voiding Stevens’ conviction, Sullivan called the prosecution’s mistakes the worst mishandling and misconduct he had seen in his 25 years on the bench. Although the Justice Department had opened an internal OPR investigation, Sullivan said it was not enough. He appointed attorney Henry F. Shuelke III as an independent prosecutor to look into the matter.
“The court looks forward to receiving the results of the OPR investigation whenever that investigation concludes,” Sullivan said at the hearing. “But the events and allegations in this case are too serious and too numerous to be left to an internal investigation that has no outside accountability.”
Holder Opposed Similar Bill
Efforts by Nadler or other lawmakers to press for enactment of Conyers’ bill will undoubtedly face opposition from the leadership of the Justice Department. A department spokeswoman declined to comment for this story.
Conyers’ legislation is similar to a 2007 measure introduced in the wake of the U.S. Attorney firing scandal.
That legislation, which dealt with inspectors general at all federal agencies, would have given Justice Department’s inspector general the authority to conduct legal ethics reviews.
But the legislation changed during Senate floor consideration, when the provision related to OPR was removed by Sen. Jon Kyl (R-Ariz.).
“I find it dubious that an OPR lawyer would be in any position to assess whether an Office of Legal Counsel opinion is legally correct or not,” said Kyl at the time. “I fear that OPR’s actions are influenced more by the toxic style of opposition attacks on the Justice Department in recent years, in which legitimate policy and legal disputes are recast as ethical lapses, rather than by a sound concern for the integrity of the Department.”
Kyl’s intervention came after the Justice Department and supporters from previous administrations raised objections to a stronger role for the Inspector General.
During the debate in 2007 on the inspector general legislation, Attorney General Eric Holder, then in private practice at Covington & Burling, wrote Sen. Joe Lieberman, one of the bill’s co-sponsors, in support of OPR. (A copy of the letter is embedded below.)
“I believe strongly that, far from curing the problems now under investigation, authorizing an IG to investigate the sensitive issues historically investigated by OPR would create additional opportunities for improper political concerns to influence law enforcement decisions,” Holder wrote.
“OPR has been recognized consistently as a strong, independent entity within the Department since its creation in 1975,” he continued. “Over the years, Attorneys General of both parties have considered proposal that OPR’s jurisdiction be given to the OIG, and have concluded that allegations OPR investigates, such as exercise of prosecutive discretion and legal judgment, should remain the mission of a dedicated staff of specialists responsible directly to the Attorney General.”
Margolis, who has overseen OPR as part of his role in the Deputy Attorney General’s office, is one of OPR’s biggest supporters.
In 2000, he testified along with other department officials that a bill to change the way misconduct cases were handled would be “profoundly unwise” and potentially unconstitutional. In his testimony he noted that OPR was subject to the “general supervision” of the Attorney General, and noted that the Attorney General has the final say regarding the release of information about the results of investigations.
After years of promoting the independence of OPR attorneys, his memo on the Bybee-Yoo report highlights what critics say is its major flaw — that it takes just one person to overrule OPR’s findings.
Inspectors General Want Change
There are several people within the DOJ who support a stronger role for the Office of the Inspector General, including the inspector general himself.
Inspector General Glenn Fine declined to comment directly on the recent OPR report, but said that his views about the need for an independent inspector general are very public.
“I think this should be a bipartisan issue, and it’s something we have talked about for awhile. My views on this are well known. We’ll see what happens,” Fine told Main Justice last month. “I expect that when I’m asked about this, I’ll continue to state my position on this.”
The previous Inspector General agrees.
“The existence of OPR gives the Attorney General more control over internal investigations because it reports solely to the AG; by contrast, the Inspector General reports jointly to both the Attorney General and to Congress. In theory and in fact, the AG controls the OIG far less than he controls OPR,” said Michael Bromwich, who served as Inspector General during most of the Clinton administration and is now a partner at Fried Frank.
When he took on the role, Bromwich was promised that the Office of the Inspector General would absorb the Office of Professional Responsibility. That transition never happened because of internal opposition.
For 22 years Michael E. Shaheen served as chief counsel in the Office of Professional Responsibility, investigating big cases across the department including cases that took on the FBI and even the attorney general.
Shaheen, wrote Jim McGee and Brian Duffy in their book “Main Justice,” gained the reputation of a dragon slayer, and kept his independence because of his allies on Capitol Hill, including now-Vice President Joe Biden during his stint as chairman of the Senate Judiciary Committee and his Republican successor, Orrin Hatch of Utah.
So it was surprising when in 2007 Shaheen called for his former office to be abolished, telling NPR its functions should be merged with the Office of the Inspector General.
It pained him to say so, he said, but the Office of Professional Responsibility has been “plagued by a history of delays and bureaucratic layers imposed on it,” he said.
Shaheen died that same year. But Bromwich said Shaheen’s comments on OPR after so many years leading the office “sent a pretty powerful statement” about the need for change.
Joe Palazzolo and Leah Nylen contributed to this story.
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Lisa Monaco, a former federal prosecutor and chief of staff to FBI Director Robert Mueller III, has been named acting Principal Associate Deputy Attorney General, one of several moves in the management office following the recent departure of Deputy Attorney General David Ogden, the Justice Department said.
Monaco joined the DAG’s office in January 2009 as an Associate Deputy Attorney General with a focus on national security. She replaces Kathryn Ruemmler, who moved to the White House in December as deputy counsel to President Barack Obama. Donald Verrilli Jr., a veteran appellate attorney, also left ODAG last month to become senior counsel to Obama, a White House spokesman said. Verrilli was co-chair of Jenner & Block LLP’s appellate and Supreme Court practice before joining the department as an Associate Deputy Attorney General in February 2009.
Ogden stepped down as Deputy Attorney General, the department’s No. 2 position, in February after less than a year on the job. (He has since rejoined the law firm Wilmer Cutler Pickering Hale and Dorr LLP.) Officials said his resignation was prompted by disagreements between Ogden and Attorney General Eric Holder over management of the department.
Holder appointed Gary Grindler to replace Ogden in an acting capacity, though he has been mentioned as a potential nominee for the Deputy post. Grindler, a veteran of the Clinton administration, rejoined the Justice Department last year as a top official in the Criminal Division.
His new Chief of Staff (and Counselor) is Stacey Luck, who most recently served as Senior Counsel to Assistant Attorney General Lanny Breuer in the Criminal Division. Ogden’s Chief of Staff, Stuart Delery, has shifted into an Associate Deputy Attorney General slot, where he will concentrate on civil and appellate matters.
Matthew Olsen, the Executive Director of the Guantanamo Review Task Force and a former lawyer in the National Security Division, has been appointed Associate Deputy Attorney General and will handle national security and criminal matters.
Grindler said the new additions would round out an “outstanding team,” which includes career Associate Deputy Attorneys General David Margolis and Scott Schools.
“Their experience and vision will be instrumental in fulfilling the responsibilities of this office to advise and assist the Attorney General in implementing the Department’s policies and objectives,” Grindler said in a statement.
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A bipartisan group of former Attorneys General and Deputy Attorneys General have come to the aid of the Justice Department’s highest-ranking career official, David Margolis, who is under the microscope for his decision to overturn a finding of professional misconduct against former Office of Legal Counsel lawyers Jay Bybee and John Yoo.
Seventeen former officials — including every AG and DAG in the past 17 years, excepting Eric Holder — signed a letter to Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) and ranking Republican Jeff Sessions of Alabama extolling Margolis’ impartiality and wisdom.
“We all benefited during our tenures from the wise counsel and good judgment of David Margolis,” the March 4 letter states. “His advice is informed by his long experience and delivered with utter lack of partisan bias or any other distorting prejudice.”
As Associate Deputy Attorney General and a 45-year veteran of the department, one of Margolis’ duties is to oversee the Office of Professional Responsibility, which determined that Bybee and Yoo committed professional misconduct in authoring legal memos blessing brutal interrogation techniques, including waterboarding.
In a memo overturning the finding, Margolis said he agreed that the authors’ work was slipshod and that they demonstrated “poor judgment” but not misconduct. He also took aim at OPR for using what he described as shifting and incoherent standards against which Yoo and Bybee’s conduct was measured.
The letter makes no comment about the merits of his decision but concludes that it was reached “conscientiously and wholly without partisan purposes.”
Margolis’ decision has drawn sharp rebukes, and in some cases personal attacks, from the left, and praise, generally, from the right. The Senate Judiciary Committee held a hearing last week on the report, though it did not live up to the ferocity of the debate unfolding on editorial pages and blogs. Only four senators attended.
See the letter below.
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At the conclusion of Friday’s Senate Judiciary hearing on the Office of Professional Responsibility’s look into the authors of the so-called “torture memos,” two protester from Code Pink asked pointed questions to Sen. Patrick Leahy (D-Vt.) — which he ignored — about why key witnesses were not called to testify.
“There’s no accountability,” said one protester. “There’s so many unanswered questions that we could use the power of subpoena to get the answers to. I think the American people are demanding accountability, the American people feel lost out here.”
She also asked why David Margolis was not forced to testify at the hearing.
Medea Benjamin, co-founder of Code Pink, said her organization wanted to see John Yoo and Jay Bybee in jail.
Earlier in the hearing, Leahy asked Benjamin to lower her sign, which was positioned to be within the frame of the C-SPAN camera broadcasting the hearing.
Video of the conclusion of the hearing is below.
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Members of the Senate Judiciary Committee questioned the Justice Department’s No. 2 official Friday about a recently released report on the conduct of lawyers who authorized enhanced interrogation techniques, with Republicans criticizing the process and Democrats taking the opportunity to bash Bush administration national security policies.
Acting Deputy Attorney General Gary Grindler said he and Attorney General Eric Holder stood behind the findings of David Margolis, the ranking career department official, who ruled that the lawyers’ exhibited poor judgment but did not commit professional misconduct.
“Mr. Margolis decided the matter without interference from the Attorney General, the Deputy Attorney General or any other department official, and his decision represents the department’s final action on the matter,” Grindler said.
The department’s ethics unit, the Office of Professional Responsibility, spent five years investigating the matter and found that former Office of Legal Counsel lawyers Jay Bybee and John Yoo violated professional standards by espousing a fringe view of presidential power and providing one-sided analysis.
Friday’s hearing, a week after the department released OPR’s report and Margolis’ finding, was not a large draw. Only four senators attended, including Chairman Patrick Leahy (D-Vt.) and Sen. Jeff Sessions (R-Ala.), ranking member.
Rather than challenge the conclusions of the department’s top career official, Leahy pushed for a broader investigation of the previous administration’s policies.
“Focusing on whether these lawyers failed to meet legal ethics standards misses the fundamental point,” Leahy said. “The real concern is that lawyers who were supposed to be giving independent advice regarding the rule of law and what it prohibits were instead focused on excusing what the Bush-Cheney administration wanted to do.”
He also expressed concern that e-mail records from Yoo and another former OLC lawyer, Patrick Philbin, had been deleted and could not be recovered by OPR investigators. Grindler said he had enlisted officials in the department’s Justice Management Divisions to determine what happened.
The New York Times editorial board and several advocacy organizations, including Citizens for Ethics and Responsibility in Washington, a group that also sued the Bush administration over millions of missing White House e-mail records, have called for an investigation into the e-mails.
(UPDATE 1:18 p.m.: Newsweek and TPMMuckraker have the latest on the e-mail issue: click here and here. The National Archives sent a letter to the department on Wednesday asking it to investigate “possible unauthorized destruction of e-mail and other records” in OLC.)
Sessions praised Margolis, a 40-plus year veteran of the Justice Department whose portfolio includes oversight of OPR, but slammed the ethics unit, blaming it for leaks that damaged Yoo and Byee while the investigation was still ongoing.
He echoed Margolis decision, saying the office used shifting and incoherent standards in its analysis. He also suggested that OPR lawyers were ill-equipped to sit in judgment of the Office of Legal Counsel, the department’s constitutional authority.
“I don’t want to say they’re pedestrian, but they’re at a different level of legal analysis” than OLC, Sessions said.
Grindler said the department “continues to believe that OPR is the appropriate entity” to conduct professional misconduct investigations.
Additional reporting by Ryan J. Reilly and Andrew Ramonas.
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The Office of Professional Responsibility report on conduct of the authors of the so-called torture memos shows that the Justice Department’s internal ethics office is broken, according to panelists at a Wednesday forum hosted by the Alliance for Justice.
Panelists David Cole, a Georgetown law professor, Michael S. Frisch, ethics counsel to the Georgetown University Law Center, Scott Horton a lawyer and contributor to Harper’s magazine and Bill Yeomans, a fellow in law and government at American University’s Washington College of Law, all criticized the result of the investigation into the authors of the so-called “torture memos” that authorized harsh interrogation methods for use on terrorism suspects.
While OPR found in its investigation that Jay Bybee and John Yoo had been guilty of professional misconduct, that finding was overruled by David Margolis, a career employee serving as Associate Deputy Attorney General, the highest ranking non-political position in the Justice Department.
OPR is simply not independent, said Yeomans, who spent 23 years in the Civil Rights Division before leaving the department in 2005.
He said there is an ongoing battle within the Justice Department between OPR and the department’s Inspector General.
Yeomans added that the report shows how broken the Justice Department’s internal ethics department has become. He said that OPR did not even obtain Yoo’s e-mails, saying that it believed they had been destroyed.
“Most of us have been trained to believe that e-mails never actually disappear, they are always somewhere,” said Yeomans. Without the e-mails, there is a “gaping hole in the investigation,” said Yeomans.
Cole said that the result of the report is that torture has became professionalized and regularized.
“We tortured people, we tortured many people, and we’re arguing about whether two lawyers should get bar discipline?” said Cole. He said discussion about the memos is greatly important, and that’s why the report “was released on a Friday night at 5 p.m.”
Horton said it was important to remember what the memos were really about.
“Is this really about ethics, or is this about crimes? The answer is very clear, it is about crimes,” said Horton. “Self regulation is a fraud,” Horton said of OPR. “This is not just a U.S. crime, it is a universal crime,” said Horton. The Bush White House and the CIA “wanted a get out of jail free card,” he said.
Video of the event is available on the Alliance for Justice Web site.
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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.