Legal Ethics Forum

odds and ends (February 23, 2010)

The GOP continues to push the idea that there are improper conflicts within DOJ because lawyers who formerly represented Guantanamo detainees now represent the United States on related issues.  But as far as I can tell, the DOJ was careful in its staffing decisions and walls.    . . . .    Adam Liptak of the NYT weighs in on the Charles Hood cert petition.    . . . .    Charbourne & Park lawyers weigh in on the lastest e-discovery sanctions case from Judge Scheindlin.  Here's the decision.    . . . .    The National Law Journal reports on the Astrue v. Ratliff case.  (To follow how the US Supremes are handling law of lawyering issues, make sure to read our posts by Renee Newman Knake.)    . . . .

Yoo filed appellate brief in Padilla case; steps up rhetoric

Article here.  The brief is here.  The rhetoric from Professor Yoo has been quite aggressive, and in today's WSJ article it's outright taunting.

Thomas Morgan, "The Last Days of the American Lawyer"

Article here.  Abstract:

An historic transformation is underway in the legal profession. It began about 40 years ago, but it has accelerated and became painfully evident by 2009. These are the “last days” of the American lawyer we once new. This paper, based on the new book, The Vanishing American Lawyer (Oxford 2010) by the same author, documents the progress and direction of the transformation.

Anita Bernstein on how to teach some PR in torts class

Post here. (nod to Legal Profession Blog)

Two Arguments Plus Another Cert. Grant for Lawyering Cases on the Court's Docket

This week is big for lawyering cases on the Supreme Court's docket.  The Court heard oral argument this morning in Astrue v. Ratliff, a case challenging the Eighth Circuit's determination that fees awarded to a prevailing party under the Equal Access to Justice Act belong to the attorney, not the client.

Tomorrow the Court will hear Holder v. Humanitarian Law Project.  At issue in this case are provisions of an anti-terrorism statute that prevent lawyers from offering advice to groups designated as foreign terrorist organizations, even if the advice is for lawful and humanitarian peace-making endeavors.  For example, as the Ninth Circuit pointed out in finding the provisions void for vagueness, the filing of an amicus curiae brief in support of such an organization could violate the statute.  The president of the Humanitarian Law Project, civil rights lawyer Ralph Fertig, was featured last week in an article about the case by NYT's Adam Liptak.  As David Savage also notes in writing about the case for the ABA Journal this month:

To read the competing briefs is to wonder whether the two sides are talking about the same case. For the civil libertarians who have backed Fertig, the case has echoes of the McCarthy era and the civil rights movement. It tests whether guilt by association will be upheld, they say, and whether advocacy of nonviolence can be punished as a crime.  The government’s lawyers, by contrast, hear the echo of Sept. 11, 2001, and the need to combat terrorism and all who support it.

And the Court continues to add lawyering cases to its docket, now fifteen in total.  Today the Court granted certiorari to Harrington v. Richter, an ineffective assistance of counsel case challenging the issuance of habeas corpus relief by the Ninth Circuit based upon counsel's reliance on cross-examination and other methods to create reasonable doubt about the defendant's guilt rather than expert-opinion testimony.  The Ninth Circuit's opinion is available here, and John Elwood of the Volokh Conspiracy offers an interesting overview in his post last week speculating on whether the Court would review the case. 

Amy Bishop's lawyer suggests that she's insane

I'm certainly not being critical of the lawyer for Amy Bishop, who has publicly suggested that she is legally insane.  It's almost surely the right defense and it's so important to get in front of the story.  But it's interesting to wonder if the lawyer has consulted with the client about that tactic (1.2(a)), and the degree to which the lawyer wants to prepare jurors for that defense.

David Hricik, "Communications and the Internet: Facebook, E-Mail, and Beyond"

Professor Hricik's paper on ethics and the Internet, which includes coverage of ethical issues created by use of social networking sites such as Facebook and MySpace, as well as linking by clients to lawyer webpages, and other issues, is available on-line, or will be shortly, here.

Should the stakes of a representation affect our evaluation of the advice given?

Thanks to John and Brad for kicking off the discussion of DoJ's internal investigation of the torture memoranda.  I've only had time to give a cursory read to John Yoo's response to the Office of Professional Responsibility's report; one section that grabbed my attention was Yoo's argument that OPR failed to account for the factual circumstances surrounding the writing of the memoranda at issue. That may be a sensible argument to the extent that Yoo was limited in his ability to consult other experts (due to security/confidentiality concerns) or unusual time constraints. But that's not the heart of the argument about circumstances. Here's a snippet:

OPR quotes academics who wrote in the safety of their ivory towers in 2004, but not those in the real world who understood the enormous burdens facing government officials charged with protecting the Nation immediately after 9/11. OPR emphasizes that OLC attorneys were dealing with a "jus cogens norm" under international law, but give no credence to the importance of preventing another terrorist attack on American soil.

Of course political officials should be worried about preventing another terrorist attack, but should the lawyers advising those officials allow that worry to affect the advice they provide on whether a proposed course of conduct is legal?  Isn't this exactly when we want lawyers to stay level-headed and not wholly subject to the same worries driving the political officials?  Elsewhere in the response, Yoo argues that if the "OLC was unduly conservative in its legal analysis the result quite literally could be the loss of thousands of lives." Should the evaluation of the legal advice I give turn on the stakes of the matter on which I'm advising?

I can see how the stakes might shape the way I frame the issue for the client -- i.e., "my legal analysis says X, but since you believe that X risks thousands of lives, I've also come up with the best argument in favor of Y that I could, though in light of the current law, it's a weaker argument than X."  Yoo, in my estimation, seems to have effectively said, "Y, Y, Y, and for good measure, Y!"   As such, for the post-9/11 stakes to be relevant (other than the constraints regarding timing and confidentiality), isn't Yoo effectively asking for the stakes to determine the standard by which the accuracy of the advice is measured? Can that be right?

The Ethics of Advising: Are We All Formalists Now?

Thanks to John S. and his incredibly comprehensive list of resources on the newly released documents on the DOJ's internal investigation of the torture memos.  (By the way, I had trouble printing and downloading the documents from the NYT website, but Marcy Wheeler has links to the same documents maintained by the House Judiciary committee -- I recommend her resources page.)  I have only begun to work through the documents, but I wanted to start a post, which I can update as needed, in response to John's excellent post.

Looking briefly through the responses by Yoo and Bybee, and the final version of the report issued by DAG Margolis, it is clear that one of the principal legal ethics issues will be over whether there is sufficient clarity in the rules with respect to lawyers serving as legal advisors.  John says in his recent post and elsewhere that there is not much room to discipline lawyers under 2.1 for giving advice on the basis of sincerely held (i.e. subjective good faith) legal positions.  I haven't looked carefully at the Margolis report yet, but apparently it considers and rejects discipline under Rule 2.1, as well as on the ground that government lawyers generally (or OLC lawyers specifically) have some kind of heightened duty.  John says the problem is that the Model Rules are pretty thin on regulating the lawyer's role as advisor, as contrasted with the lawyer as litigation advocate.

A couple of months ago I debated this issue with John Yoo's lawyer, Miguel Estrada, at the Federalist Society's annual convention.  There I said, for the sake of argument, that I'd be willing to forego any reliance on some notion of a heightened duty for government lawyers.  But I don't think the rules are that thin with respect to lawyers acting in an advisory capacity, unless one is extremely formalistic about the rules.  Yes, it's true that 2.1 doesn't say much except that lawyers must provide candid, independent advice.  But why is it hard to apply that rule to a lawyer who sincerely, but objectively wrongly, believes her advice to be correct?  We apply objective standards in the rules all the time.  Rule 1.1 is an objective standard of competence, and Rule 3.1 is an objective standard of asserting only well founded legal positions.  Then there are other rules, like Rule 5.2 (the one Andy P. thinks is silly) providing a safe harbor for subordinate lawyers provided that their supervisory lawyer's resolution of an arguable question of professional duty is objectively reasonable.)  Like the law of torts, the law governing lawyers is pervaded by objective standards of reasonableness.  Why are we reading 2.1 in isolation from those other rules, and from the general orientation of the rules toward an objective standard?

Let's take an example that's less hot-button than torture.  I was on a panel at the AALS in New Orleans about cyber-harassment of women and the intersection with character and fitness review for prospective lawyers.  My own view is that the law governing character and fitness review is a spectacular mess, and lots of evidence is admitted by these committees (with the blessing of state courts) that is probably not probative of anything relevant to an applicant's future fitness to practice law.  My view is that people who post viciously misogynist, racist, and homophobic comments on AutoAdmit and Above the Law are complete assholes, but should not be excluded from the bar on character and fitness grounds.  However, if I gave that advice to a student, I would be seriously remiss if I didn't observe that the law is actually very different from my own view of how it should be.  There's actually a reasonable likelihood that a character and fitness committee, at least in some states, might deny admission to someone who posted some of these comments (see the Matthew Hale case, for example).  I'd go so far as to say it would be unethical of me to give the advice that the students are legally permitted (in view of the governing law of character and fitness) to post these comments.  What's the basis for this conclusion?  It has to be 1.1/2.1 read together, right?  Remember, I have a sincerely held belief that this law is seriously wrong, but I can't give advice on that basis.

I don't see how this case is any different from the advice given by John Yoo.  He sincerely and in subjective good faith believes the law of executive power in wartime is wrong.  He has historical and political arguments for why the president should have virtually unconstrained power in this area, even with respect to U.S. citizens acting on U.S. territory, as long as the president deems them "enemy combatants."  Maybe these are good historical and normative arguments, maybe they're not, but they're not objectively good faith legal-interpretive arguments.  But suddenly we claim to be unable to call that advice unethical because there's not much in the Model Rules on point.  Huh?  Why don't we interpret the Model Rules, as we do any other source of law, holistically and purposively, taking into account their structure, sense, overall rationality, and the like? 

I would also argue that the Model Rules should also be interpreted, whenever possible, as consistent with the broader law governing lawyers.  Susan Koniak has been observing for a long time that the organized bar has its own vision of ethical conduct for lawyers, and offers it as if it is necessarily the only one.  As she notes, however, the bar often loses to "the state" -- meaning legislatures, administrative agencies, and courts applying common law doctrines.  Building on that observation, we can look at the treatment of liability for legal advising in contexts in which liability is possible in principle.  (It's probably not here, because of immunity doctrines, the running of the statute of limitations, and also because of the lack of any political will to pursue charges against Yoo and Bybee.)  There are many cases in which lawyers have been held liable for providing legal advice that is objectively unreasonable.  One of my favorite teaching cases is FDIC v. O'Melveney & Myers, where the liability was to the client for failing to do what was objectively in the client's best interests, by advising it to do something about its crooked senior management.  If Yoo and Bybee gave similar advice -- i.e. subjectively believed but objectively not well grounded -- to a private client, is there any doubt they would be subject to liability?  If liability would be possible in that context, then they should be deemed to have acted unethically as advisors to the government, if we want the law of lawyering to be consistent across sources of regulation (i.e. liability and discipline).  There may be reasons why we'd want the law govering liability to be different from that governing discipline, but that argument would have to be made separately.

At this point this is a fairly half-baked argument.  My next task is to dive into all of these reports and look carefully at the arguments.  I'll post updates if I have anything useful to say, but in the meantime, we've got John's post and my comment, and hopefully we'll have a lively debate on LEF. 

DOJ report on torture memos is finally out.

The DOJ’s report on the OLC torture memos is finally out.   There's a lot to read, but please comment as soon as you have some thoughts.

Here’s a brief timeline of the OPR process (relying heavily on Joe Palazzolo’s well-done post).  

In September 2001, terrorists carried out the multi-plane attacks against the World Trade Center and the Pentagon, and the fourth plane went down in Pennsylvania.

In September 2001 - January 2002, the OLC issues a series of memoranda regarding the use of force and the Geneva Convention.

In the Spring of 2002, Zubaydah and Jose Padilla were captured.

In August 2002, the OLC issued two memos signed by Jay Bybee and largely written by John Yoo: a memo to the White House and a classified memo to the CIA regarding interrogations of suspected terrorists (the "Bybee Memorandum").

In March 2003, Khalid Sheikh Mohammed was captured.

In March 2003, OLC finishes memoranda regarding military interrogations.

In June 2004, the Bybee Memorandum was leaked to the Wall Street Journal.

In October 2004, the Office of Professional Responsibility (OPR) began its investigation of the DOJ lawyers who were involved in writing the torture memos. 

In December 2004, the "Levin Memorandum," which replaced the Bybee Memorandum, was released to the press.

It is possible that sometime during 2006-07, the disciplinary statute of limitations expired as to the memos.  (This is because the DC Bar would presumably apply Pennsylvania ethics law, including its four year statute of limitations, if it were to proceed against John Yoo, and the Pennsylvania Bar, where Yoo is licensed, would as well.)  The extraordinary length of time it took to write the OPR report is something that still needs to be explained -- although the reasons could be perfectly understandable.

On December 23, 2008, as the Bush administration wound down and the Obama administration was preparing to take over, the OPR sent a 191 page draft report of its investigation to Attorney General Michael Mukasey, asking for a very quick review and response.  The draft does not refer to any process by which any review or response will be solicited from Yoo or Bybee, although they had apparently been promised an opportunity to comment.

On December 31, 2008, Muksasey met with the OPR lawyers and made strong objections and on January 19th objected strongly in writing.  Mukasey indicated that the OPR report would not be finalized before the new administration took over the White House. 

In March 2009, OPR sent a second draft to Yoo and Bybee for comments.

In May 2009, Yoo and Bybee commented aggressively and critically on the second OPR draft.

On July 29, 2009, OPR issued its final report (OPR Final Report)

On October 9, 2009, Yoo and Bybee sent their response to the OPR Final Report to Associate Deputy Attorney General David Margolis, who was reviewing the OPR's report.  Margolis is a highly respected, career lawyer at DOJ with deep experience in discipline issues.

On January 5, 2010, Margolis issued his memo (Margolis Memo) to Attorney General Eric Holder, rejecting the conclusion of the OPR report that Yoo and Bybee should be referred out to appropriate state bars for discipline.

UPDATE 1: I’m still working through the documents, but a striking irony already leaps out.  Once the Bybee Memorandum was made public, it was the focus of blistering attacks for allegedly blowing the legal analysis on obvious and subtle issues.  The memorandum was subjected to review and was withdrawn and rejected, and was replaced by the Levin Memorandum.  (Upon close inspection, the new Levin Memorandum bears some strong continuities to the Bybee Memorandum, even as it rejects that document.)

Yet . . .  once the OPR’s December 2008 report was circulated within DOJ, it was the focus of blistering attacks for allegedly blowing the legal analysis on obvious and subtle issues—and also for procedural improprieties.  The report was revised and finalized in July 2009, but was then subjected to review by an Associate Deputy Attorney General (David Margolis) and was rejected.  (Upon close inspection, the new Margolis Memo bears some strong continuities to the OPR’s Final Report, even as it rejects that document.)

Indeed, some of the alleged deficiencies of the OPR's Final Report are jaw-dropping.   In so many words, Margolis accuses the OPR of shifting its rationale in result-oriented ways, playing fast-and-loose with procedure, and twisting the legal standard.  It's not pretty to read.  For details, read the Yoo Response, the Margolis Memo,  this summary by Jennifer Rubin or this report on the press release by Yoo's lawyer.  But let's all remember that even if the OPR Final Report is as shoddy as Yoo claims (and as Margolis occasionally suggests), that doesn't mean that the torture memos were ethical!

UPDATE 2: At page 25 of the Margolis Memo, the irony I identified above is expressly mentioned, although not resolved.  Still, one cannot miss the implication of Margolis's comments on that point.

UPDATE 3: The Margolis Report relies heavily on DC's ethics law, as does the OPR's Final Report, but the Yoo Response argues strenuously that Pennsylvania law applies.  I'm still trying to figure out who has the better of that argument.  Comments are welcome.

UPDATE 4: Starting at page 65, the Margolis Memo has severe, withering criticism of John Yoo's performance, but nonetheless concludes that Yoo was offering his candid (if deeply flawed) advice: "While I have declined to adopt OPR's findings of misconduct, I fear that John Yoo's loyalty to his own ideology and convictions clouded his view of his obligation to his client and led him to author opinions that reflected his own extreme, albeit sincerely held, view of executive power while speaking for an institutional client." (p. 67)(emphasis added)  That sentence has an odd tension within it, doesn't it?  When you think of a John Yoo who was blinded by ideology and ignoring his obligations to his clients, you probably have a different image than when you think of a John Yoo who was acting on his sincere views.  (Btw, the WSJ op-ed has some disparaging comments about this portion of the Margolis Memo, claiming that the tone and mood suddenly change.  That's a perceptive comment, but it's not clear that the critical tone was unwarranted.)  

I had previously suggested that there isn't much room under rule 2.1 to discipline a lawyer who truly believes the legal analysis he is offering, even if you could still discipline that lawyer under 1.1 competence standards if the sincerely-held belief fell below the standard of competence.  Margolis cites a lot of testimony supporting the notion that Yoo's beliefs were sincere, and Margolis rejects the OPR's emphasis on the fact that Yoo was aware of the legal result the client wanted.  (As Yoo and Margolis note, it's usually the case that lawyers are aware of the desires of the client, and so they suggest that one should not use that fact to bootstrap a finding that the lawyer's advice was insincere.  In particular, the OPR stands accused of misrepresenting the comments of a CIA lawyer on this point and of indulging in an unwarranted bootstrapping.)  Based upon the press leaks in the past few months, I had wondered if we would see evidence that the torture memos were in effect re-written by David Addington in ways that were inconsistent with the earlier versions—which evidence presumably would have supported a finding that Yoo had violated 2.1.

UPDATE 5: I see that Professor Balkin has commented emotionally, stridently, and hyperbolically on the Margolis Memo. No doubt we will see a lot of blawgospheric commentary in the next few weeks.  Commentary is available here, here (Marcy Wheeler's good, detailed, inside-baseball report with partisan insights regarding the first OPR draft),  here (NPR suggesting that we will have full hearings on all this), here (Julian Ku at Opinio Juris, noting how badly the OPR's report fared), here (critical of Yoo and the Margolis Memo), here (Joe Palazzolo's very helpful timeline of the OPR process), here (Steven Schwinn, critical of the Margolis Report), here (Jason Leopold, at TruthOut, highly critical of Yoo and the Margolis Memo), here (from the Patterico site, in defense of Margolis and quite critical of the OPR Final Report), here (blog run by UC-Berkeley law students), here (Andy McCarthy at NRO, summarizing Mukasey's criticism of the OPR report), and here (Daphne Eviatar at Huffington suggesting where investigations should now head), here (Brad Wendel, up above, questioning whether it should matter that Yoo presumably believed in the advice he gave) here (Brian Tamanaha on why Yoo's sincerely held extremist views shouldn't be vindicated), here (interesting article on how Bybee used portions of the Clinton-era OLC laywers' statment to Bybee's benefit), and here (WSJ arguing that Yoo has been vindicated).  David Luban has thoughts here.  (In my view Luban makes a strategic mistake in defending the OPR report.  It's better to acknowledge its flaws and build your own case.)  James Fallows has a short piece with a large emotional and moral punch, here.  Here's an oddity: the name of the junior lawyer working with Yoo had previously been redacted, but was inadvertently left in one footnote.  Richard Epstein's interesting, distinctive take is here.

UPDATE 6:  One of the fault lines running through the OPR Final Report, the Margois Memo, and the Yoo Response concerns the proper definition of a the ethical duties of a government lawyer.  We often read that a government lawyer has a higher calling or higher duty, but when it comes to imposing discipline it is hard to offer a precise definition of that difference.  Margolis found that the OPR defined the standard in part by using post-facto position papers, including one by former OLC lawyers who were openly critical of the torture memos.  Margolis also refers to "OPR's failure to properly identify an applicable known, unambiguous standard."  (p. 11)  Thus we see a common problem in the interpretation of ethical standards: the difference between viewing ethics rules as (1) quasi-criminal statutes that must be construed fairly strictly, or as (2) high moral standards that we enthusiastically embrace—especially when we're thinking about government lawyers construing the word "torture" and knowing that their advice will affect real human beings.  Margolis's use of the former interpretation is, I take it, part of what prompted Professor Balkin's rhetoric.  

The OPR Final Report had also relied upon the notion that a lawyer has a higher duty when advising on legal topics that fall under jus cogens (the category of human behavior that is universally condemned and therefore perhaps universally unlawful regardless of what any nation's laws say).   That notion has emotional and intuitive appeal, but it's not clear that you could really apply that for purposes of imposing discipline.

The Margolis Memo seems to support the comments I had offered at a conference at Berkeley—that although Yoo's performance fell below the standard of care as described in the statement by former OLC lawyers and as described in Jack Goldsmith's book, it would be difficult to find those standards in the ethics rules.

Here's an imperfect hypo I sometimes use in class to help think about this issue.  Suppose that three identical triplets, with identical schooling, start their first days of work as lawyers at, respectively, the DOJ, a large defense contractor that has private security crews in Afghanistan that sometimes coordinate with military there, and an assistant professor of law.  Each sits down to write a descriptive memo of what counts as "torture" under US law.  Should the three memos be identical?  Should the memo from the DOJ lawyer be different and, if so, how and why?

Part of the difficulty in defining the proper role of OLC lawyers stems from the thin treatment of roles in the Model Rules.  Basically, the rules have four master roles: public citizen, officer of the court/system, third party neutral, and representative of clients.  Under that fourth role are four sub-roles: litigator, negotiator, evaluator, and counselor.  Only the litigator role has a deep treatment in the rules.  The counselor sub-role is covered by the relatively short MR 2.1.  As the Margolis Memo notes, discipline under 2.1 is extremely rare.  And, as I noted above, it's hard to apply 2.1 to a lawyer who sincerely believes in the advice he is giving.  My initial take on the OPR Final Report is that it simply rejects the copious evidence that Yoo actually believed in his legal advice, uses a conclusion of incompetence to support its conclusion about 2.1, and uses legal standards that, however plausible and laudable, just aren't in the ethics rules.

UPDATE 7: It might be helpful to list some of the possible conclusions that various people might draw.  Leaving aside the quality of the OPR Final Report, and with the caveat that I’m not urging any of these conclusions, one might conclude: (1) Yoo and Bybee intentionally joined a common plan to commit torture with legal memos as cover; (2) Yoo and Bybee didn’t necessarily agree with any plan to commit torture but knew what some people in the Executive Branch wanted that and so the lawyers wrote memos designed to accommodate that desire; (3) the lawyers knew that some people in the Executive Branch wanted to either commit torture or move right to the edge of the line, and the lawyers, caught up in the situation, accommodated that desire with substandard legal advice even though the lawyers subjectively thought they were giving sound legal advice; (4) the lawyers had decent intentions about writing a legitimate memorandum but, lacking the restraint and judgment for the task, especially the judgment needed when one is an OLC lawyer opining about torture, they wrote memos that have been condemned as mistaken by a near-consensus of commenters; (5) the lawyers had decent intentions, but failed to meet basic standards of craft competence (e.g., choice of appropriate precedent, acknowledgment of existing limits on presidential power) such that the memos are widely considered to be substandard and mistaken; (6) the lawyers had good intentions and, working under difficulty pressure and tough timelines, wrote memos that meet the minimal standards of craft competence.

UPDATE 8: Kath Hall has recently written two thoughtful articles (the latter with Vivien Holmes) arguing that lawyers can be unaware of how social situations are steering them to unethical conduct.  She also argues that those of us judging in hindsight can inaccurately attribute conscious intentionality to the lawyers involved in the disaster.  (We've discussed similar, situation-based analyses at Legal Ethics Forum, and Andy Perlman and Tigran Eldred may be posting on this in the future.) 

In my view, two recent examples of that tendency for hindsight judgments to over-attribute intentionality are in the now-vacated Qualcomm sanctions order (p. 24) and in the recent post by Brian Tamanaha regarding Yoo.  Both examples cite the sterling credentials of the lawyers under investigation and suggest that given those credentials the only logical conclusion is that the lawyers intentionally acted badly.  Reading the pieces by Kath Hall can give you a good handle on that form of moral evaluation.

If you are open to this line of analysis, you might be interested in Mitt Regan’s modern classic in the PR field, Eat What You Kill, in which Regan offered a highly contextualized explanation of how a biglaw partner failed to reveal a conflict in a bankruptcy case—and how he went to jail for that.  Because Regan didn’t simply conclude, “a rotten lawyer deliberately made a morally corrupt decision,” there was a little pushback to Regan’s thesis for supposedly being insufficiently judgmental.  I sided with Regan’s analysis, but have to admit that in the wake of upsetting events, there is an emotional need to offer explanations in the form of moral accusations—and, if a law has been broken, there is a legitimate legal need to do that as well.  (Jeff Lipshaw has recently written on the notion of legal causation as moral accusation.) 

It seems to me that the authors of the OPR Report were infected by this tendency to such a degree that it impeded good lawyering—and the Report has now backfired.  When you see someone take such offense that they unconsciously recapitulate the very error that they are busily condemning, you are seeing the classic sign of a “scandal” in the technical, religious sense.  Yoo was a scandal to the OPR investigators and, unfortunately, they became scandalized.

(Before turning to Yoo again, let me apologize in advance if my references to various professors’ work have been inaccurate!)

What does all this have to do with John Yoo?  Many of us are struggling with the fact that it appears that Yoo truly, sincerely believes in his extreme legal opinions.  If you watch his appearances at conferences or on TV, you can even see his opponents get emotionally torqued up, as Yoo remains calm.  So the question of the day is, “How can one sincerely hold such extremist views?”  Well, is it possible that Yoo’s extreme beliefs reflect a mixture of craft errors, lack of judgment, and getting carried away in a small, intense social situation that was under great pressure?  If so, is it possible both that Yoo could easily pass a lie detector test if asked, “Do you really believe in your legal analysis?” and that his views are nonetheless extreme?  Or are the only choices mind-boggling incompetence and deliberate, conscious wrong-doing?