The Political Witch Hunt is Over

Obama has done many dumb things, perhaps one of the worst was his decision to unleash a witch hunt against Bush-era Justice Department lawyers in an attempt to sully their reputations and perhaps even take away their ability to practice law.

He would have turned us into a banana republic, where one administration tries to smear and slime and perhaps even imprison members of the previous administration over policy differences.

But the modern left is insensible to facts and law. They wanted blood, and Obama appeared to go along with this witch hunt.

They decided to try and get them by claiming they had broken the rules of professional responsibility. This is an old leftist trick. They went after the doctors who supervised interrogations at Guantanamo, for example.

The Justice Department’s office of Professional Responsibility was apparently playing  tricks as well – as former Attorney General Michael Mukasey reveals in a letter. Andrew McCarthy has a summary of the main points.

  • After taking nearly five years to complete a nearly 200-page, single-space report, OPR withheld it’s work from the Attorney General and Deputy Attorney General until December 23, 2008 – right before the Christmas and New Year’s holidays, and four weeks before the conclusion of the Bush administration, so that DOJ was then busy with transition to the new Obama administration.  OPR did this with an eye toward releasing the report on January 12, 2009. This schedule would have ensured no meaningful review by top DOJ officials, and no meaningful opportunity for comment on the report from counsel for the Bush OLC attorneys whose work was criticized (even though OPR had made a commitment that there would be an opportunity for review and comment).

Question: Wouldn’t such behavior be a breach of Professional responsibility by the OPR itself? It’s something that we might have had to look into, had the witch hunt continued.

When the Obama administration released a whole packet of materials about their witch hunt, curiously absent from those materials was a letter from Michael Mukasey, the former Attorney general. That letter said, in part:

  • The original OPR draft report proceeded, as Mukasey and Filip put it, “seemingly without any consideration of the context in which the OLC opinions were prepared”—namely, in the aftermath of a catastrophic attack on the United States in which almost 3000 Americans were killed, and under circumstances where the OLC lawyers were under “virtually incomparable and extended pressure” to provide guidance to the intelligence community.

The OPR’s report, on the other hand, was created over the period of at least 4 years. 

  • The OPR draft report, after taking nearly five years to review the law, derided the Bush OLC lawyers for failing to cite Khanuja v. I.N.S., a Ninth Circuit case interpreting the UN Convention Against Torture. However, Khanuja is an unpublished opinion, and under Ninth Circuit rules (which are well known to Justice Department lawyers), the citation of unpublished opinions is prohibited and lawyers who disregard this rule may be sanctioned for ethical misconduct.

Again, should the OPR be under some sort of sanction for recommending that attorneys do things that could get them sanctioned?

But wait. There’s more:

Despite having had nearly five years to do its own legal analysis, OPR relied heavily on the work of academic critics of the Bush administration without (a) any explanation of why their work was somehow authoritative, and (b) balance in the form of views of other academics and commentators who had defended the professionalism of the OLC lawyers.  For example, in critiquing the work of Bush OLC lawyers John Yoo (a legal scholar and tenured professor of law at the prestigious University of California Bolt School of Law) and Jay Bybee (an accomplished lawyer and now a federal appellate judge), OPR relied extensively on Professor David Luban. As Mukasey and Filip noted, though obviously a thoughtful and prolific scholar, Prof. Luban is not an attorney, has never practiced law (he is a trained philosopher), and is a vigorous critic of the Bush administration and the War on Terror generally. There was no mention of this background and Prof. Luban’s patent potential bias in OPR’s Ddraft Report.

But that is only the start of it.

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