62nd Installment. Why Prof. John Yoo and Judge Jay Bybee won’t be disbarred
The Justice Department leaked a draft report on its investigation of John Yoo and Jay Bybee. The report recommended that state-bar authorities investigate the pair — buck passing: the Justice Department is shirking its prosecutorial duties. The Justice Department can't be so naïve as to anticipate the state-bar establishment might disbar Yoo and Bybee.
Yoo and Bybee had devised irrational legal justifications for torture, helping the Bush Administration disguise its criminality. Even within the Administration, the incoming Office of Legal Counsel repudiated the Yoo-and-Bybee memos in 2003. No lawyer I'm aware of has publicly agreed with the memos' conclusions following publication, and their universally adverse reception discredits the common verdict that the opinions were ordinary errors of law. Since frivolous positions are defined as those unacceptable to any reasonable attorney, universal legal rejection of the memos' conclusions proves their frivolousness.
The torture memos aren't merely frivolous; ulterior motive also makes them vexatious. Frivolous positions often are honest mistakes of law, particularly those advanced by pro-se litigants. Unlike vexatious legal positions, frivolous ones don't show moral turpitude—a standard in California and one I have argued, correctly interpreted, serves as the proper standard for attorney discipline. The Yoo-and-Bybee memos were vexatious in their malicious intent, and their authors committed acts of moral turpitude. Jay Bybee, who coveted the 9th Circuit judgeship that became his reward, is a corrupt careerist. John Yoo is a staunch neoconservative reactionary, who, like his cothinkers, disguises absence of integrity with smatterings of utilitarian ethics. When Yoo decides a policy is best for the "general welfare," he simultaneously decides for its ethical commendability, reaching preconceived conclusions on moralistic grounds.
The state-bar establishment will never disbar Yoo and Bybee, despite their acts of moral turpitude causing injuries extravagantly worse than possible for ordinary lawyers. The concept of the state bar's enforcing ethical standards is thin veneer for pursuing political objectives of state, economic advantages of guild, and financial interests of its own, as the profession's supposed aversion to moral corruption isn't even deep enough for consensus that Yoo and Bybee committed disciplinable offenses.
To avoid challenging state-bar oppression and the ethical hypocrisy justifying it, the California-State-Bar-establishment's loyal-opposition Association of Discipline Defense Counsel justifies state-bar selective enforcement by urging that state bars don't function as an "ethics police" but as a "consumer-protection agency." The analysis is shallow in discounting the generality of unethical conduct that undergirds any protective system. If discipline is to protect consumers, ethical-rule breakers must be apt to repeat. If generalization is impossible, consumer protection is chimera. Pure consumer-protection analysis favors disbarring Yoo and Bybee because they're ethically unfit to practice law, but state-bar bureaucrats' charging Yoo and Bybee for incompetent legal reasoning, willful or not, is absurd to imagine, more so after a prestigious legal academy decided Yoo is sufficiently competent for hire, only 17 U.S. Senators voted against confirming Bybee for the 9th Circuit Court of Appeals, the 3rd Circuit arguably adopted the Yoo-and-Bybee analysis into law, House Speaker Pelosi acquiesced. and the dean of the Chapman University Law School (where Yoo is visiting) commended Yoo's torture analysis.