Ethics Charges Against Bush Lawyers Haven't Got a Prayer

On this National Day of Prayer, which is going uncelebrated at the White House for the first time in eight years, those on the left praying for retribution against Bush administration lawyers who approved harsh interrogation techniques probably won't have their prayers answered:

Efforts to impose professional sanctions on Bush administration lawyers who drafted memos supporting harsh interrogations of terrorism suspects face steep hurdles, experts on legal ethics said yesterday.

Law professors and legal practitioners who have handled such cases said the difficulty of gathering witnesses and evidence could present "nearly insurmountable challenges" for state investigators who may wish to pursue a case against the lawyers, John C. Yoo and Jay S. Bybee.

Government sources indicated this week that a forthcoming Justice Department investigative report would refer both men to state bar associations for possible disciplinary action as early as this summer. The report, which summarizes the findings of a nearly five-year review, cites sloppy legal analysis, misjudgments and possible political interference in the process, the sources said.

Yoo, now a law professor in California, and Bybee, now a judge on the U.S. Court of Appeals for the 9th Circuit, were in the department's Office of Legal Counsel when they assessed the legality of simulated drowning and other harsh interrogation techniques for the CIA in a series of memos beginning in 2002. Ultimately, the lawyers gave a green light to waterboarding, sleep and food deprivation, and other tactics. The Obama administration has cast aside those techniques, saying they violate anti-torture laws and the Geneva Conventions.

Neither Yoo nor Bybee is likely to face criminal prosecution, a step that is nearly unprecedented for lawyers providing advice to clients. But they are expected to face inquiries from state legal authorities after the Justice Department report is made public. State bars have the power to disbar lawyers and suspend their licenses, among other steps.

Even if an ethics complaint was brought against these guys I'm not sure it would make much difference in their lives. Bybee has a lifetime appointment to the federal bench and unless he was impeached - and that's very unlikely - he could go on in that job as long as he wants. Yoo is a professor, another job that doesn't require a law license.

The left may dream of getting even with these guys, but they will be disappointed. For one thing, they dragged the investigation on so long they've missed a deadline for going after at least one of these guys (from The Corner):

It appears John Yoo cannot be disciplined or disbarred for writing those memos, even if the Office of Professional Responsibility says it has evidence he should be.

That’s because OPR’s five-year investigation—carefully timed for release only as Bush was leaving the White House and Obama was coming in—dragged on too long. As a result of that timing, OPR blew the deadline for referring possible misconduct allegations against Yoo.

John Yoo is admitted to the bar in Pennsylvania. But the Pennsylvania Disciplinary Board, which would investigate any complaints against him, imposes a four-year limitation for complaints.

Yoo wrote the memos in 2002 and 2003. This is 2009. You do the math....

This is a huge issue for current DOJ officials and Attorney General Eric Holder. Because if Yoo—who wrote the memos and has been vilified as responsible for approving the interrogation program—can’t be disciplined under state bar rules, why then would OPR even refer the matter to state bar officials in the first place?

And what about Bybee? Now a federal appeals court judge, Bybee is admitted in DC and Nevada—those jurisdictions don’t have comparable limitations periods. But how strange would it be to only refer Bybee, when his involvement largely amounted making a few edits and signing Yoo’s legal work?

Then there’s the report itself. The bar for disciplinary action is incredibly high. Legal ethics experts, like Geoffrey Hazard at the University of Pennyslvania, say they expect nothing to happen, even if the state disciplinary boards were to investigate. Hazard says Yoo and Bybee have a number of strong available defenses, and that it’s awfully hard to say the memo was so “outside the range of plausible lawyered judgment that no reasonable lawyer could render it.” Without that, he says, there’s no ethical violation.

When Mukasey read the report, he was so dissatisfied, he demanded Yoo and Bybee be allowed to comment—as [Michael] Isikoff also reported back in February.

Mukasey then wrote a detailed response, also signed by Deputy Attorney General Mark Filip, that was harshly critical of OPR’s efforts, which he said veered far afield into matters that were irrelevant to whether Yoo and Bybee gave bad legal advice. What would be the relevance, for example, of details of at least one CIA interrogation that went horribly wrong—if that interrogation had gone beyond what the memos approved in the first place?

So all the talk about referrals, all the leaks about how the two men erred in judgment, starts to feel a little bit like old-fashioned politics. Especially when you think about the timing of the report—as Mukasey was packing up his office and a new administration coming in—and big-time blown deadlines.

The wacky left is the gang that can't shoot straight.