The two lawyers who legally justified water-boarding—denying its character as torture—were John Yoo and his Department of Justice supervisor, Jay Bybee. Yoo subsequently landed a plum job as law professor at the University of California, Berkeley; Bybee, an even more plum one, life appointment as judge on the United States Ninth Circuit Court of Appeals. The attention of kanBARoo court previously focused on Yoo, who, as the direct perpetrator, was if not more culpable at least more obviously so. But Bybee’s recent mandatory disclosure that he received $3.2 million in legal services, contributed gratuitously by the giant international law firm Latham & Watkins, raises new issues.
The official ethicists find this huge gift troubling but hard to criticize. The obvious worry is that it will bias Bybee to favor parties Latham represents, but Bybee, so far, has reportedly recused himself from cases contested through the giant-firm’s offices. Neither the firm, in offering the gift, nor Bybee, in accepting it, broke any official ethical rule.
But the ethicists’ perception of Bybee as innocent speaks primarily to the ethical-rules’ bias and ethicists’ gullibility. A giant law firm is, in practice, a corporate entity, serving the financial interests of its owners, the equity partners. The forum of its intervention being an ethics investigation, Latham’s efforts lacked the public-relations appeal of a highly visible case. What’s in it for Latham & Watkins?
Bybee may have recused himself, but he still has not conducted himself as proper ethical rules would require, as he failed to commit himself to any definite continuation of his self-recusal policy. By not recusing himself permanently from cases involving Latham & Watkins, he tacitly threatens any party litigating against a Latham client with the possibility that Judge Bybee will have stopped recusing himself by the time its case is appealed. His temporizing stance subtly alters the balance of power in favor of Latham clients, a bias that—when iterated many times over—may substantially benefit Latham & Watkins. Any rational settlement negotiator for an opposing party will need to take into account the possibility that this case will be heard on appeal after Bybee has stopped recusing himself.