The Yoo Conundrum For The Obama Justice Dep't

A year ago, John Yoo was sued by Jose Padilla:

"John Yoo is the first person in American history to provide the legal authorization for the instiution of torture in the U.S.," said Jonathan Freiman, an attorney representing Padilla in the suit. "He [Yoo] was an absolutely essential part of what will be viewed by history as a group of rogue officials acting under cover of law to undermine fundamental rights.it never would have happened without the legal green light. That made it possible."

Now the Obama Justice Department is charged with defending Yoo, presumably raising claims of qualified immunity. Steve Gillers makes a good point:

A leading authority on legal ethics, Stephen Gillers, said the incoming officials’ criticism of the former Bush officials has been so withering that they should press to be defended by their own lawyers — at government expense.

“If I were counseling Yoo or Rumsfeld, I would certainly advise them to have private counsel or shadow counsel,” Gillers said. “The defense has to be put in the hands of people who have not been vocal in condemning Rumsfeld and Yoo and who have not taken a public position on the legality of their conduct.”

I know I would have a very hard time arguing to a court that John Yoo's "conduct d[id] not violate clearly established statutory or constitutional rights of which a reasonable person would have known." US law on torture was quite clearly established and it is impossible to believe that his opinions could credibly be described as providing a reasonable view of the law. Remember that a showing of "malice" is not required to defeat a claim of qualified immunity. The standard is that of a reasonable person.

From the President to the Attorney General-designee to the designee to head the OLC, almost all significant figures in the Obama Administration have previously expressed that Yoo's opinions were not reasonable. I think Yoo really needs to have his own lawyers.

Speaking for me only

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    Wow (5.00 / 1) (#1)
    by squeaky on Wed Jan 28, 2009 at 03:10:48 PM EST
    Quite a twist. I agree that Yoo would be crazy not to retain his own council. It would also seem that Holder et al would have to recuse themselves if they were put in a position to defend Yoo.

    Holder (none / 0) (#6)
    by SOS on Wed Jan 28, 2009 at 03:20:38 PM EST
    should step out. He's going to need that time to find a batch of qualified and fresh lawyers that stretches from earth to the moon to prosecute all the crooks this country produced the past 8 years.

    He Is Out (none / 0) (#8)
    by squeaky on Wed Jan 28, 2009 at 03:27:35 PM EST
    At present, it doesn't look like Yoo's sharpest critics will end up directly in the chain of command responding to the civil lawsuits. Obama has tapped an Oakland, Calif., lawyer, Tony West, to head up DOJ's civil division, which has primary responsibility for such cases. West hasn't played a vocal role in the debate over detainee policy, but he was one of the lawyers for John Walker Lindh, the so-called American Taliban caught in Afghanistan.

    Still considering that the DOJ is obligated to defend Yoo and they are not remotely of like minds, Yoo should get his own lawyer, at our expense.

    What is at stake is $1. plus legal fees. In any case the gov will prevail despite the fact that these cases are maxed out with irony.


    There are an awful lot of lawyers (none / 0) (#28)
    by inclusiveheart on Thu Jan 29, 2009 at 07:49:21 AM EST
    at the DOJ and it is likely that some of the people on staff who were hired by the Bush Administration support the torture policy.  However, one question would be whether or not the lawyers in that pool would be capable council.  

    Don't get me started on YOO (5.00 / 2) (#2)
    by SOS on Wed Jan 28, 2009 at 03:11:26 PM EST
    My guess is the defense will be.

    "Look, our country was attacked. This is war. Get that WAR. These people want to hack our heads off. They want to kill us. They want to blow up American cities. They want to destroy AMERICA.
    We had to use every tool available up to and including breaking the rules to protect America. We needed to use the best and brightest America has to offer and Mr. Yoo delivered. Whats wrong with you people? Mr. Yoo saved your family and children from the greatest enemy America faces."

    I don't see how they can represent him (5.00 / 2) (#7)
    by Maryb2004 on Wed Jan 28, 2009 at 03:20:53 PM EST
    they've taken an adverse position - although I suppose they haven't taken it in court.  But it seems the same thing to me.  He needs his own counsel.

    I hope he loses. With the strongest defense possible.

    I hear Alberto Gonzales is looking for work (5.00 / 2) (#12)
    by ruffian on Wed Jan 28, 2009 at 03:52:58 PM EST
    although even John Yoo might not deserve having that incompetent a defense.

    worse (5.00 / 1) (#14)
    by Molly Bloom on Wed Jan 28, 2009 at 04:04:03 PM EST
    We don't want Yoo having an 6th amendment  appeallable issue.

    The case against Yoo is civil (none / 0) (#26)
    by Peter G on Wed Jan 28, 2009 at 08:23:50 PM EST
    The Sixth Amendment guarantees that "the accused" will "enjoy the assistance of counsel for his defense."  (Keep 'em laughing, I say, it's your constitutional duty as defense counsel; but I digress ...).  Padilla's lawsuit is a civil action, so Yoo has no Sixth Amendment or other rights at stake.  And no right to the effective assistance of counsel, which is part of the Sixth Amendment right.  However, as BTD points out, if he has a (statutory)right to defense in the civil case at government expense (because it concerns his actions in his former official capacity) then he is entitled to counsel who is not burdened by an ethical conflict.

    Is this going to be an onging problem? (5.00 / 1) (#16)
    by ruffian on Wed Jan 28, 2009 at 04:12:13 PM EST
    Will there will have to be a whole department in the DoJ for defending against lawsuits against Bush administration miscarriages of justice?

    I'm seriously asking, since I don't know the law about the ability to sue the government.

    Who pays? (none / 0) (#3)
    by Erehwon on Wed Jan 28, 2009 at 03:12:48 PM EST

    Do you think the taxpayer should pay for Yoo's private counsel?

    I do (5.00 / 1) (#4)
    by Big Tent Democrat on Wed Jan 28, 2009 at 03:14:48 PM EST
    Yoo was acting in his capacity as a government employee.

    That's pretty much the law (5.00 / 1) (#9)
    by scribe on Wed Jan 28, 2009 at 03:32:03 PM EST
    that the government has to pay for his defense, unless the government is taking the position he was acting outside of his employment.

    Which, to date, it has not.

    The Admin needs to get a continuance and then have Yoo get new counsel.


    I would qualify that (5.00 / 1) (#13)
    by Molly Bloom on Wed Jan 28, 2009 at 04:02:41 PM EST
    I think the US on behalf of the taxpayer should get a reservation of rights if we are going to indmnify Yoo. If Yoo prevails, ok. But if not, no. Here is the reason why- Jack Goldsmith made a determination that Yoo's legal reasoning was so bad that he took the (virtually) unprecedented step of withdrawing the opinions.

    If the work was that shoddy, reliance on those withdrawn opinions are not reasonable.

    Then there is the issue of indmenifying someone who wrote the underlying legal opinion (h/t to Andgarden, who awhile back pointed out to me that could be a defense). Its one thing to indmenify an official who relied on Yoo's opinon, but to allow Yoo to write his own get out of jail card goes to far. Yoo may be an authoritarian, but he is no dummy. Its my understanding that he knew his opinions on executive power were way out there (per Jane Mayer's the Dark Side) and had "learned not to express them" until Addington called upon Yoo. Yoo knew or should have known that the legal opinions were on shaky ground.  


    Right-o (5.00 / 1) (#15)
    by Steve M on Wed Jan 28, 2009 at 04:09:58 PM EST
    I can tell you're not new to this area of the law, Molly.  In corporate work, it's standard practice for the company to indemnify officers accused of wrongdoing in connection with their employment, BUT if the officer is actually found guilty of fraud or other serious misconduct at the end of the day, they're on the hook to repay everything.  They're entitled to the benefit of the doubt but only for so long as doubt remains.

    All true (5.00 / 1) (#17)
    by scribe on Wed Jan 28, 2009 at 04:14:25 PM EST
    When I said "Scope of employment", I meant to include "work good enough to be what he was hired to do".  Mine was a big, broad-brush category.  The subsequent points qualifying that are fine points, but accurate and necessary, too.

    I would agree with you (5.00 / 1) (#18)
    by Maryb2004 on Wed Jan 28, 2009 at 04:33:06 PM EST
    without hesitation if this were a criminal case.  Then we would be asking (if this were a corporate issue) whether Yoo had no reasonable cause to believe his actions were lawful.  I would agree that he can't rely on his own memo to show the exception doesn't apply.

    But this is a private civil action and even in corporate indemnification the standard for exceptions to indemnification can be softer in civil actions.  They are usually limited to the question of whether the person acted in good faith and in a manner such person reasonably believed to be in or not opposed to the best interests of the Corporation.  

    The reasonableness of his beliefs would be the issue.


    How reasonable were his beliefs if (5.00 / 1) (#19)
    by Molly Bloom on Wed Jan 28, 2009 at 05:04:51 PM EST
     his memos were classified so no-one could review his reasoning, until Jack Goldsmith became head of OLC. Goldsmith read it and said this is shoddy work and withdrew the memos. Its my understanding the OLC doesn't withdraw its opinons lightly. Goldsmith is no flaming liberal either.   Making these legal memos classified in this case to me is evidence of a guilty mind. Jane Mayer reports that Yoo "learned not to make his extreme views" known over the years. I don't think it was because he was a conservative. Yoo knew or had to know his opinions were "out there" and the WOT is not the time or place for an acadamic paper pushing the boundaries.

    The Business judgment rule allows for reliance on an expert in their field. Yoo is (sigh) a lawyer, but he is not an expert in the laws of war or in the interpretation of treaties. However, Bush cut the government lawyers who were experts in these areas out. They made the bed, now lie in it. Moreover it makes a mockery of the BJ Rule to allow the alleged expert to rely upon himself. Where is the good faith and reasonableness in that.

    As an aside, I am a hardliner on Yoo, torture and the whole mess. Given that it takes time to prepare a case, I am willing to move it down a bit on the list, but I will be outraged if something is not done in a reasonable time.


    I don't think making memos (5.00 / 1) (#21)
    by Maryb2004 on Wed Jan 28, 2009 at 05:27:27 PM EST
    classified is evidence of a lack of good faith OR that he didn't have a belief that he was acting in the best interest of the country.  

    I think his belief was wrong.  And, personally, I think it was unreasonable to have that belief.  But that's where the argument is - whether his belief that this was in the best interest of the country was reasonable, if we are analogizing to a corporate setting to decide whether he gets his legal fees paid.

    I'm a hardliner on Yoo too.  On the other hand, I'd be willing for the taxpayers to foot every dime of the best lawyer in the country for him if he lost.  I want it to be a big, hard fought loss. No excuses about why he lost.


    He may have had a belief which he held in (5.00 / 1) (#22)
    by Molly Bloom on Wed Jan 28, 2009 at 06:35:34 PM EST
    good faith and thought was reasonable, however, this is not just the exercise of duties in good faith. But reliance upon his own memos.  

    I think this is a typical formulation

    (a) A director shall perform the duties of a director, including duties as a member of any committee of the board upon which the director may serve, in good faith, in a manner such director believes to be in the best interests of the corporation and its shareholders and with such care, including reasonable inquiry, as an ordinarily prudent person in a like position would use under similar circumstances.

    (b) A director or officer who makes a business judgment in good faith fulfills the duty under this Section if the director or officer:

    (1) is not interested in the subject of the business judgment;
    (2) is informed with respect to the subject of the business judgment to the extent the director or officer reasonably believes to be appropriate under the circumstances; and

    (c) In performing the duties of a director, a director shall be entitled to rely on information, opinions, reports or statements, including financial statements and other financial data, in each case prepared or presented by any of the following:

    (1) One or more officers or employees of the corporation whom the director believes to be reliable and competent in the matters presented.
    (2) Counsel, independent accountants or other persons as to matters which the director believes to be within such person's professional or expert competence.
    (3) A committee of the board upon which the director does not serve, as to matters within its designated authority, which committee the director believes to merit confidence, so long as, in any such case, the director acts in good faith, after reasonable inquiry when the need therefor is indicated by the circumstances and without knowledge that would cause
    such reliance to be unwarranted.

    He might make section (a) as you ably argue. But (b)1 is problematic. He is hardly disinsterested, since one of the purposes of the memo was to serve as a get out of jail free card.  (b)2 could be problematic since he appears to have been well informed that his views of executive power was well out of the mainsream of legal thought. (c) 2 is also problematic since the counsel in question (Yoo) was outside of his professional area of competance- laws of war and legal inerpretation of treaties.

    However, all of that said, I have no problem with Yoo having the best counsel he can get. I suspect he can well afford the best lawyers in the country. But let the US taxpayer front it, if you wish, just give me a reservation of rights, so if he loses, we get reimbursed.


    This probably isn't worth the argument (none / 0) (#23)
    by Maryb2004 on Wed Jan 28, 2009 at 07:11:49 PM EST
    since he didn't work for a corporation but for the government so all of this is just analogy - but if he makes (a) he doesn't need to make (b).  Because (b) is a safe harbor for (a).

    Also, the indemnification statute does not contain the exception for the breach of the duty of care it only contains exceptions in the case where the person did not act in good faith and in a manner the person reasonably believed to be in or not opposed to the best interests of the corporation.

     I would also argue that (c) is related to the duty of inquiry, not good faith or acting in best interests, and so it doesn't come into play in the indemnification exception.

    Of course, even if the exceptions don't come into play the indemnification is optional if the officer/director is not successful in the action.  I would hope that it would be optional on the part of the government too.  And I also would recommend that if they are going to advance fees they get the appropriate undertaking from Woo to repay them if it turns out he loses the case or the standards were not met.  But since this is the government, who knows what they can or will do.


    Well I appreciated your contribution (none / 0) (#25)
    by Molly Bloom on Wed Jan 28, 2009 at 08:13:57 PM EST
    even if you didn't think it worth the argument. It will down the road be useful to me in another context with different players on a different subject.

    Glad (5.00 / 1) (#27)
    by Maryb2004 on Wed Jan 28, 2009 at 08:57:10 PM EST
    to be of service :)

    I used to like the conversations here like this.  

    I was using Delaware law btw.


    lol (none / 0) (#20)
    by squeaky on Wed Jan 28, 2009 at 05:11:19 PM EST
    Goldsmith is no flaming liberal either.

    not only no flames but no liberal..


    No. (none / 0) (#30)
    by Andreas on Tue Feb 03, 2009 at 01:45:06 PM EST
    Yoo acted as a member of a terrorist organisation led by Bush, Cheney and others. (BTW: Josef Mengele and Roland Freisler also were "government employees".)

    The problem is that the Democrats supported and support those criminals - including George Walker Bush.


    well I assume (none / 0) (#5)
    by lilburro on Wed Jan 28, 2009 at 03:19:39 PM EST
    that Holder & co. have all read the memos.  By now they should be quite familiar with the arguments.  

    mcjoan had a quote from Holder today:

    On Cornyn's concern about prosecution of those engaged in interrogation, Holder "did say it would depend on the specific facts of the case," Specter said, including whether there was a "reliable and authoritative" Justice Department opinion authorizing the actions taken.

    It's going to be icky for Holder to say that the torture memos were "reliable and authoritative."  Does he really want to claim that?  Seems like he's set a pretty high standard for judging those torture memos.

    Bad assumption. (none / 0) (#10)
    by scribe on Wed Jan 28, 2009 at 03:33:28 PM EST
    From everything I've read, Bushco refused to "read in" Holder and Obama and the admin on everything, including the memos, prior to the inauguration.

    So, it cannot be said Holder has seen everything already.


    well, it's been a week (none / 0) (#11)
    by lilburro on Wed Jan 28, 2009 at 03:38:31 PM EST
    but I suppose Holder hasn't taken his oath of office yet.

    if this were a just world, (none / 0) (#24)
    by cpinva on Wed Jan 28, 2009 at 07:48:48 PM EST
    we'd just tie mr. yoo to a stake in the village square, and let people come by and whack him with steel bars. not kill him mind you, just some good old fashioned torture, until he admitted his wrongs.

    as it is, i'll settle for a trial, with competent counsel of his choice, paid for by us. then we can beat him up later.

    seems only fair.

    Yoo can play "Let's Make a Deal" (none / 0) (#29)
    by cwolf on Thu Jan 29, 2009 at 11:07:42 AM EST
    By giving up bush/cheney/et al, Yoo can either avoid the death penalty or knock off a bunch of time from his sentence.

    He could argue that he was coerced or blackmailed into authoring those ludicrous opinions.