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We are like chameleons, we take our hue and the color of our moral character, from those who are around us.
— John Locke
On another thread, we had a heated discussion about the merits of David Margolis’ tenure as the DoJ’s top civil servant and chief fixer, its Atticus Finch or its Winston Wolf, depending on your grasp of the facts and your perspective. It focused on his role in neutering a much anticipated and long-delayed OPR report, one that heavily criticized the work of John Yoo and Jay Bybee, which gave the BushCheney administration the legal cover it sought for its program of torture.
That post is part of a well-documented series, in which Marcy Wheeler analyzed the politicization of the DoJ, and its continuing to shield itself and its former lawyers from their wrongful acts. In my opinion, that series also demonstrated the potential corruption of the Department of Justice, from chief law enforcer for the people of the United States to chief criminal defense law firm for the executive branch.
The narrow question about David Margolis’ role in limiting the impact of the OPR report was whether he was being "partisan" (in a GOP vs. Democratic way). Alternatively, was he simply protecting his agency from potentially grievous criticism, regardless of whether it came from the left or right? Or was he corrupting the standards government lawyers should be held to and enabling the corruption of our laws and our government?
There is a chorus of non-FDL responses to those questions. Jack Balkin’s, Justice Department Will Not Punish Yoo and Bybee Because Most Lawyers Are Scum Anyway, is a good primer, as is Dahlia Lithwick’s, Torture Bored: How we’ve erased the legal lines around torture and replaced them with nothing. For more pointed criticism, there is, The Margolis Memo, by Scott Horton; David Margolis is Wrong, by David Luban, and The OPR Report: this era’s "Hiroshima", by James Fallows.
The linked sources cite to the Margolis memo itself, to the lengthy OPR report, and to criticism in support of it. Marcy Wheeler’s, We all benefited" from Margolis’ tenure, cites the most recent praise for Margolis: a letter from "a bunch of former DOJ bigwigs", most of whom were involved with or benefited from (obtained lucratively non-DoJ employment or stayed out of jail) Yoo and Bybee’s authorization of torture and Margolis’ "reserve" in characterizing its consequences.
But this is Sunday. It’s time for the comics section, or at least the tradmed’s talking heads. They are often funnier if less informative than Jon Stewart. So here, with apologies to Yes, Minister, is my caricature of Mr. Margolis – and his peers at other federal agencies:
The Art of the Master Bureaucrat
The art of being an apolitical master bureaucrat – Bureaucratus maximus, a species similar to but which does not interbreed with Cheney gofuckyourselfis – is to be apolitical.
Bureaucratus‘ chief attribute is to be able to read the tea leaves, anticipate the tide, forecast the approach and direction of the political storm and to go with the flow as if another priority, a contrary practice or a set of facts never existed and could not possibly exist.
As with other highly adaptable species – such as the Partner romanticus that means absolutely, positively everything they say (just not for very long) – Bureaucratus anticipates what their bosses want and provides it with glee, leaving the limelight to others. It avoids the highest offices and formal rewards, preferring the underbrush and the leavings of top predators. Change the boss or priorities and its glee remains, but Bureaucratus produces different droppings, as if an elk had become a goose, a trait that makes tracking them through their dense habitats frustrating.
Bureaucratus is a master of the informal and the arcane. It knows by heart the paths others follow (without themselves being aware of it) and the associations they make as they travel, mate and forage or hunt. It can see the connections as if they were lit threads, which makes its own tracking ability formidable.
The crisscross and doublecross are Bureaucratus‘ usual means of interaction with others, but never with the boss, an exception most bosses confuse with direct and honest dealing. Its habitat is any large bureaucracy or other jungle. Unlike a host of endangered species – examples of Attorney honestus and Congresscritter competentus have not been spotted near the Beltway for several seasons – Bureaucratus‘ population is flourishing.
Bureaucratus maximus, especially its expression in Addingtonitis davidicus, has a remarkable ability to memorize the law, without ever learning what it means. To wit:
The end of law is not to abolish or restrain, but to preserve and enlarge freedom. For in all the states of created beings capable of law, where there is no law, there is no freedom.
– John Locke
43 Comments
Margolis’ prowess in protecting the inadequacy of the Department of
Justiceis entirely depressing…Margolis is described as the chief career attorney at the DOJ. We all know about the trashing of the department during the Bush years. Where were his protests or his efforts to protect career employees and shield them from political interference? We know the Civil Rights division was being decimated under Bush. This was where von Spakovsky and Bradley Schlozman were doing their best to destroy its purpose.
I have already pointed this out:
http://www.justice.gov/oig/special/s0809a/chapter2.htm
and wondered about his role in the US Attorney firings and the politicization that went on with USAs. But you could ask similar questions about his connections to the FBI and all the abuses that went on there during the Bush years. As for the Criminal Division does Alice Fisher ring any bells?
There was all kind of rot all around Margolis, for years. He was the highest career attorney at Justice, and somehow all this just passed him by. Never a sound, never a protest. Now we see him going out of his way in what is an extraordinary reach to shut off any real sanctions against those in the department who abetted torture. This was no coincidence. He was protecting his own. The question is who is “his own” for David Margolis. Republicans? The DOJ? Our elites?
With the blurring of any meaningful distinction between Democrats and Republicans I tend to this last. Remember that Yoo and Bybee were political not career appointments. So this wasn’t a case of Margolis defending the institution or careerists like himself. Holder let the OPR report go to him almost certainly knowing what Margolis would do. Remember too that Margolis is 70 years old so there was no reason even to keep him there. Holder could have put someone more objective and less compromised in the position but he didn’t. This is precisely how we would expect elites to act among themselves. Holder didn’t have to connive at this. He simply knew that Margolis had as little interest in punishing torture and those involved with it as the Obama Administration did. He knew that Margolis was a “see no evil, hear no evil” kind of a guy where professional wrongdoing in general, and Bush Administration wrongdoing in particular was at issue. So Holder didn’t have to push Margolis into this. He only had to make sure that this brief got to Margolis and let nature take its course.
Yep. I think you’re right in that Margolis’ role is to protect wealth and the elite from the powers of his office and agency. By definition, that includes more from the right than the left, though the Rahma & Obahma administration seem intent on correcting that.
Bureaucratus maximus is the civilian sub species.
There is a military sub-species as well, Kissassius Optimus.
I think the two species readily exchange habitats.
Book Salon up at the Mothership with James Bradley’s The Imperial Cruise: A Secret History of Empire and War hosted by Sen. Burt Cohen
Yes, Minister and Yes Prime Minister should comprise a mandatory class starting in high school and again in college. Whether the government is parliamentary or not, the series would be invaluable in teaching how humanity gets truncated and ethics are practiced by bureaucrats and elected alike.
Is there a corollary in Obama’s rise from Senator to Pres in the Yes Minister series?
He’s a company man, and he protected the company.
Lotsa other company men wrote a letter saying so, therefore it must be true.
Hugh, this is just amazing that you would bring these issues up abput Margolis background.
I spent about 3 or four hours this AM researching the early background on Margolis.
I was particularly interested in any background re: the DOJ firings and any possible links between Rove,the Siegelman case and/or the Abramoff investigations which were all whirling in roughly the same time frame.
I know that Margolis provided input regarding the selection of a replacement of the Guam DOJ,-an issue that was BIG on Abramoff’s list of concerns.
But, I came across,quite accidentally, a fascinating piece in TPM correlating the DOJ lawyers issue with the torture issues.
Cafe Talk | Talking Points Memo | DOJ IG Report Implicitly Questions Wecht Prosecutor …E-mail records between Margolis and EOUSA Director Mary Beth Buchanan in … and Michael Battle, and Associate Deputy Attorney General David Margolis to …
tpmcafe.talkingpointsmemo.com/…/doj-ig-report-implicitly-quest.php – Cached
Note: I posted this earlier at the end of a EW thread.
Thank you, EOH, for this post.
The “partisan” charge in the face of a demonstrated bipartisan cover-up is certainly to be expected and EW’s post regarding Margolis’tenure was a sampling.
While Margolis certainly has been following a “tradition” he admires, the amazing anonymity he has enjoyed in the past, now gone and lost forever, suggests that his retirement, to spend more time with family or other pursuits, as far from the public eye as he may manage, would be most welcome.
DW
EOH:
I came across a post where Margolis was referred to as the Michael Clayton of the DOJ.
I had never heard it put that way. Thought you might enjoy it-if you haven’t heard it already.*G*
Nice article, earlofhuntingdon. If I may cast my $.02 worth, I’d just call it a continuation of the Good Old Boys Network, this one at the DOJ. Interesting that so many take an oath to protect the Constitution, and then turn around and protect their own, though I suspect they’ve got that all rationalized away, too.
I can’t imagine why there hasn’t been a major earthquake in DC, what with the Founders all spinning around in their graves.
Anyone who relies only on the the links you gave rather than reading the Margolis memo itself will be profoundly misinformed. That may matter to some.
Now that you’ve linked to Balkin’s piece, though, you ought to read it. If you do, you’ll see that he nowhere says or implies Margolis is wrong in his analysis or findings. As I pointed out before, Balkin sees this as an indictment of our legal system, not Margolis. He accepts Margolis’ findings as consistent with the actual system of professional responsibility for lawyers.
Balkin comes closest to getting it right, even if he does stretch some of what Margolis said for dramatic effect. Lithwick distorts it past the breaking point. Margolis nowhere says, implies or hints that Yoo was any kind of victim, for example. And Margolis nowhere argues or implies that we can “make up new ethics standards depending on who the lawyers in question are and the exigency of the national security crisis.” He points out that the rules of professional conduct require that the circumstances be considered and that they might have affected the thoroughness of the opinions, which can sometimes take years to produce. He allows the reader to infer that pressures of the time might have influenced the opinions in other ways too, but he doesn’t rely on that much in his own analysis. It’s evident that Lithwick didn’t carefully read Margolis’ memo.
Horton, apart from quoting Luban, engages in the kind of rumor-based character assassination and distortion that I’ve come to expect from him. If you’re the kind who trusts Horton’s Harper’s cover story implying a huge cover-up over two administrations about the 2006 Guantanamo suicides, which the rest of the mainstream media has rightly refused to pick up, then his take on Margolis should suit you fine. If you require good evidence, you’ll have to look elsewhere. In fact, contrary to what Horton says, Margolis doesn’t use a defense of legal indeterminacy to shield anyone. He finds certain duties unambiguously applied and that the law can’t be read to mean whatever someone wants. As I pointed out at the other thread, Margolis isn’t the least dishonest in criticizing OPR for not using its own customary process and standards from the start but shifting as they went. It’s complete BS that Margolis doesn’t think the candor rule applies. He explicitly says it does, and he applies it. I could go on, but that’s enough to illustrate the wild way Horton has with reality.
Luban consistently misreads and misrepresents Margolis. You can find some examples here:
http://fray.slate.com/discuss/forums/3701030/ShowThread.aspx?ArticleID=2245531#3701030
I’d rewrite some of that now, having discussed some of the points more with others, but it gets the main points across.
Fallows repeats Lithwick’s mistake of thinking Margolis relies much on the circumstances of the time as a factor in finding no misconduct. In fact, Margolis makes little of that in the particulars of his analysis. And Fallows doesn’t attack Margolis’ character; quite the contrary.
Hugh, you don’t need to wonder about Margolis’ part in the US Attorney firings. It’s spelled out in the investigation, the conclusions of which regarding Margolis are here:
http://www.justice.gov/oig/special/s0809a/chapter13.htm#IVE
He is criticized for not acting as a control on the process. I don’t know where you discovered that he has never opposed what goes on at Justice, though. You must have access to a great deal more information than is public.
“Now we see him going out of his way in what is an extraordinary reach to shut off any real sanctions against those in the department who abetted torture.”
If by “see” you mean what you see in your mind’s eye, that’s no doubt true, but there’s no great reaching in his analysis. Until you show there is, all of your high-flown speculations based on that premise don’t amount to anything.
Prosecutorial Ethics Lite—By Scott Horton (Harper’s Magazine)Jan 10, 2008 …
Associate Deputy Attorney General David Margolis is the …. Leura Canary did not “voluntarily” step down, as Margolis’s …
harpers.org/archive/2008/01/hbc-90002121 – Cached
Excellent, thoughtful post. I’m inclined to agree with your conclusion that Margolis did this as a way of not rocking the boat for our political and corporate elites — once you start to pull on this string, a lot of things begin to unravel.
Sadly, this continues the downward spiral of justice in the United States and makes it increasingly unlikely that other countries or international bodies will have to punish our war criminals, as our system is too corrupt to handle the task.
From the fifth paragraph of my comment:
It is credulous beyond belief to claim that circumstances dictated Yoo’s misreading of the law – he of the stellar academic credentials and his constitutional and federal law background – to conform to his political views or to deliver what his clients demanded of him, supplying color-by-numbers way to get it.
As I think Lithwick pointed out, and as Margolis knows well, virtually every lawyer confronts unreasonable time demands every day. That so much rode on Yoo’s advice would have been a reason to demand a deferral or to indicate that immediate responses were tentative and subject to revision.
And claiming that a reviewer has not read his or her citations is a rather low Ivy League slam, even for a blog comment.
You win the pithiest line of the week contest
“It is credulous beyond belief to claim that circumstances dictated Yoo’s misreading of the law”
Margolis makes no such claim. You ought to read his memo instead of relying on such sloppy and misleading critiques as you link to.
You show no evidence of having read Balkin’s article. If you had read it with due care, you wouldn’t have presented it as though it supported your view of Margolis. It doesn’t.
By the way:
“In my opinion, that series also demonstrated the potential corruption of the Department of Justice, from chief law enforcer for the people of the United States to chief criminal defense law firm for the executive branch.”
You do realize that a chief duty of the DOJ is to represent the Executive Branch in all official legal matters, right?
The DoJ’s representation of the executive branch must be seen in the context of that branch fulfilling its responsibility “to take care that the laws be faithfully executed”. Art. 2, Clause 4.
The DoJ’s role is not to assure past or current members of the executive branch – by way of overt corruption, prosecutorial discretion or more subtle bureaucratic means – that they will not be subject to them. Nor is it similarly to protect self-proclaimed members of the fourth branch, which arose unbidden spontaneously from the Constitution as if it were Aphrodite from the sea, enframed in a shell of legal impunity.
The articles linked to make several points. First and foremost, they and the citations they refer to give a picture of the controversy surrounding Mr. Margolis’ memorandum, the outcome of over a year’s relentless, devoted work by him.
As for Jack Balkin’s commentary, I think you mistake caustic academic understatement for agreement with Mr. Margolis’ view of the law or the standards that ought to apply to members of the bar generally, let alone public employee-government lawyers that act as gatekeepers for the legal limits the Constitution imposes on the branches of government it creates and empowers. His title, though, might give you a clue:
It was Mr. Margolis’ work that led to that outcome, not the OPR’s. His title suggests that Mr. Balkin doesn’t wholly concur with that outcome or the arguments Mr. Margolis reached for in order to obtain it.
As for Margolis’ characterization of John Yoo, he invented the standard that his poor legal work was not a function of lack of effort, intelligence or insufficient preparation for the work he was given. It was the outcome of pressure (something unknown in the legal or medical professions, I grant), the galactically changed circumstances after 9/11, and his exceptionally rightwing views of politics and the powers of the president, which were open and notorious when he was hired (and presumably, were a reason why he was hired). All of which made his efforts sincere, if inadequate. His performance, therefore, did not merit referral even to the moribund DC bar.
I think that’s one reason the cited comment from Jack Balkin largely let Mr. Margolis’ arguments speak for themselves. His snark he reserved for his title.
I don’t think Yoo intended to help anyone break the law. I agree with Margolis that Yoo believed what he wrote in his opinions.
The articles and the links give a picture, of course, but it’s a skewed one, as I’ve implied.
“It was Mr. Margolis’ work that led to that outcome, not the OPR’s.”
According to Balkin’s analysis, it’s the low standards of the legal profession, not Margolis, that led to this outcome. The snark in the title is about most lawyers, not Margolis.
Margolis doesn’t find that Yoo and Bybee’s work was flawed because of pressure. Your sources who say he did haven’t carefully read Margolis. He found the work was flawed because of flaws in the men themselves, that they exercised poor judgment.
Did “anyone”, as you put it, “break the law”?
Do “low standards” lead to “poor judgment”?
So then, “belief” in one’s opinions, that is what one believes, regardless of facts (relevant cases and such like) then exonerates one from the “consequences”, intended or not, of one’s “actions”?
Or is that only so for lawyers, and certain lawyers at that?
You haven’t been reading Rotunda have you?
You would likely find much to appreciate in his legal “philosophical” deontology. Seriously.
DW
“Did “anyone”, as you put it, “break the law”?”
I think they broke the general intent of the law, but I don’t think it could be proven in court that they broke the law as written, and I don’t think they intended to.
“Do “low standards” lead to “poor judgment”?”
Possibly.
“So then, “belief” in one’s opinions, that is what one believes, regardless of facts (relevant cases and such like) then exonerates one from the “consequences”, intended or not, of one’s “actions”?”
Not in general, but it does show good faith. Even with good faith, if Yoo had shown reckless disregard of the law he would have been guilty of misconduct. Margolis found Yoo’s bias didn’t rise to that level.
I haven’t been reading Rotunda, but I gather you have.
“Belief” and actually knowing and correctly stating the metes and bounds of the law are entirely different things. One can believe with all one’s heart that something is true and be fatally incorrect. One can also commit the most heinous malpractice while claiming a pure heart, or at least an open one. It is from those “flaws in the men themselves” that credible standards of practice – and the civil and criminal laws – are designed to protect the public and clients. Mr. Margolis conveniently redefined them to mean that no such standards exist, because “most lawyers are sum anyway”.
The distinction between yielding faultily to pressure from political clients and “flaws in the men themselves” is not a useful one. The kind of “good faith” Mr. Margolis chose to find in John Yoo is the kind that let’s political choices go unexamined and criminals go free.
To separate the action from the consequence it allows, knowingly, is to suspend the rule of law to the complicit expediency of the moment. That is what you, sanpete, are asking the nation, its people and the law to do.
The consequence enabled and justified, by Yoo’s “flaws”, the action, which you would excuse, resulted in torture.
The fault lies not in us, but in our flaws …
Pathetic.
The Rule of Flaws.
Scofflaws …
How apt. Jealous, Machiavellian Cassius (he of the “lean and hungry look”) to Brutus: “The fault, dear Brutus, lies not in our stars but in ourselves”. A sentiment Mr. Margolis seems not to agree with.
“Mr. Margolis conveniently redefined them to mean that no such standards exist, because “most lawyers are sum anyway”.”
He didn’t redefine anything, and that isn’t what Balkin was getting at. Margolis applied the standards of professional conduct according to precedent. You need to read his memo.
Margolis didn’t find that Yoo yielded to pressure. He found there was no sufficient evidence for that. The poor judgment was a matter of being too one-sided and confident in his analysis, not in yielding to pressure.
“To separate the action from the consequence it allows, knowingly, is to suspend the rule of law to the complicit expediency of the moment. That is what you, sanpete, are asking the nation, its people and the law to do.”
Have no idea where you got that. Substituting your evaluation of consequences for law isn’t the rule of law, though.
I haven’t excused Yoo’s flaws.
“The poor judgment was a matter of being too one-sided and confident in his analysis” yet it met, “the standards of professional conduct according to precedent.”
Is that where YOU are going, sanpete?
You want “poor judgment” enshrined in the law, as an acceptable “example”, to strengthen some pathetic “precedent”, as determined by Margolis?
What do you expect that will result in?
More of the same. “… one-sided and confident …” “flawed” crimes against humanity.
Such “law” as you are content with, sanpete, is ruled by men who regard themselves as above any law.
May you spend the rest of your life discontented, if that means the rest of humanity may have legitimate rule of law.
“You want “poor judgment” enshrined in the law, as an acceptable “example”, to strengthen some pathetic “precedent”, as determined by Margolis?”
No, and neither does Margolis. I don’t know where you’re getting the ideas you attribute to me.
Insisting and persisting with the claim that people “haven’t read” material they obviously have won’t persuade them to agree with points they disagree with. It merely suggests that, like Margolis, one’s position has been reached as a matter of faith, not law or logic.
Of course Margolis didn’t find a violation of the ethical standards he defined. That’s why Balkin took him to task by merely letting his own flawed logic speak for itself.
There is virtually no precedent for the DoJ’s and the OLC’s behavior under Bush, which is what allowed Margolis to argue as if he merely agreed with it. He put a political kibosh on the OPR’s contrary conclusion, because that’s what fixers do.
As you urge compassion for Yoo, sanpete, you have, exclusively, refused, so far as I may tell, to do two other things, both of which things the inevitable consequence of what Yoo enabled and legitimized through his “legal” efforts, require.
You do not recognize the humanity of those who were tortured, with all that such recognition MUST demand …
And you have not questioned the humanity of ALL those who supported, made possible or engaged in that torture.
You and Yoo conveniently leave out the human consequence … in all your musings.
You’ve shown no evidence at all of having read Margolis’ memo. You keep attributing to him things he didn’t say or imply. If you think Margolis redefined the rules of professional conduct, or found that Yoo acted badly due to the pressure of the circumstances, quote him where he does so.
You continue to read into what Balkin said what isn’t there either. His actual point is very clear. He nowhere criticizes Margolis, and actually presents him with some sympathy, for example in the third to last paragraph.
Please support your claims with quotes that actually show what you claim.
DW, again, you’re just making stuff up. I haven’t been urging compassion for Yoo.
If you wish to remove compassion from whatever it is that you ARE urging, then you may certainly do so, sanpete.
Julian Sanchez, in the context of distinguishing John Yoo’s work from that of advocates for the rights of Gitmo detainees – the vast majority of whom were and are completely innocent of the crimes not leveled against them by an indefinite detention-prone government – gives a restrained analysis of Yoo’s wrongs:
The commentator has been urging that Mr. Yoo did nothing actionably wrong, as does Mr. Margolis, an opinion not shared by many. The exception seems to be those, like Yoo and Bybee, who share credit or lucre for those opinions or enabling the wrongs to which they gave a green light.
Mr. Balkin shows Mr. Margolis in a good light only from the perspective of someone who wouldn’t recognize being hit by an academic 2×4 during a vote on their tenure.
And the “means” by which Mr. Margolis determines that Mr. Yoo did nothing actionably wrong, requires, fundamentally, it seems to me, EOH, two separate things.
First, a standard of “professional conduct” elastic enough at its base, to accommodate Mr. Yoo’s “poor judgment” especially (or only), if such judgment is accompanied by, one must imagine, irrefutable evidence of sincere belief. The eyes which see good faith as visible in such assertion must be moved either by passion or compassion, and subject to no higher accounting. Such “self-policing”, as this reflects, must lead often, if not inevitably, to the breakdown of the rule of law and civilized justice. The “latitude” this Margolisian Moment intentionally leaves open, permits and even encourages, “going forward”, is staggering to contemplate as regards the RESPECT that certain “government attorneys”, and others, even those who are not attorneys, might or might not have regarding the genuine rule of law, those who “represent” the “views” or “desires” of those too “big” for the law to either “notice” or challenge, those powerful ones who will, for all reasonable intents and purposes (if people of Mr. Margolis’ persuasion,should, now, or in future, prevail), be … and are … above the law.
Second, for this “opinion” to become accepted, by the law if not by “the people”, a wall of significant proportion must be built around certain, “actions”, actions not, as yet, completely, and in fact, never to be completely or clearly defined, such deliberate vagueness being necessary by virtue of the very nature of these “actions” between ANY and ALL consequences which may attend those actions. And that seems utterly, on the face of it, completely and totally, inimical to the rule of law.
The law is about consequences, and little else.
The consequence of the “action” which must be considered.
AND the consequence of what the law, itself, decides are the responsibilities of those PEOPLE involved, intimately in, or even, at the “edges” of, the “actions”, all of whom must be equally considered.
To remove consequence from action is to remove the need of the law, the pesky, limiting nuisance of the law, from civilization itself. For what function would or could the law honestly serve or perform, with all serious consequence, for some, at such a remove?
As you know, EOH, I am not an attorney, merely a citizen, but I hold the need of law fundamental to our humanity quite as much or more than our civility. Especially when it is, after all, our humanity, everyone’s humanity, that is on the line. At least as “things” seem to me.
Thank you EOH, for your deeper legal and human analysis, which this post and thread so well reflect. I am convinced that a critical struggle between those who embrace reason, tolerance and understanding and those who appear to align themselves with unrestrained power (and greed) is and has been joined. I thank all of my lucky stars that you and EW and the rest of the Wheelhouse gang are on the side of the “divide” where I find myself.
DW