David Margolis’s Whitewashing

by Kevin Jon Heller

I don’t have much time, but it’s important to note that although David Margolis may be a career attorney, he has made a career out of preventing government officials from being held accountable for their misconduct.  From Scott Horton:

But “Yoda” Margolis also knows the “dark side” of political intrigue. He was long the man to whom political appointees could turn for protection and guidance when the going got rough, in both Democratic and Republican administrations. For instance, Bloomberg reported that both Kyle Sampson and Monica Goodling turned instinctively to Margolis for protection and support when the U.S. attorney’s scandal erupted.

What this means in practice can be seen in dozens of cases involving seriously unethical conduct by political appointees. Margolis has a one-size-fits-all solution for these cases: sweep them under the carpet.

In “Prosecutorial Ethics Lite,” I reviewed what Margolis did when confronted with a case in which a U.S. attorney used all the powers she could assemble to destroy an insurance executive who had commenced a law suit against her husband. Ethics rules clearly required her recusal. But in the face of a compelling mass of evidence, Margolis concluded that everything was just fine. He allowed the U.S. attorney to pass nominal control of the matter to the head of her criminal division. The abuse of office pressed forward, with Margolis’s blessing.

Justice Department insiders also note that Margolis single-handedly blocked efforts to secure a meaningful review of the prosecution of former Alabama Governor Don E. Siegelman, after more than 90 attorneys general from around the country advised the Justice Department of a series of gross irregularities. Instead, with Margolis’s apparent knowledge, the Department fired a member of the prosecution team who had blown the whistle on some of the misconduct. (“What the Justice Department is Hiding.”)

Jeff Kaye collects a number of other occasions on which Margolis’s machinations have made their way into the media.

In a July 6, 2008, Los Angeles Times story, Margolis is cited as leading an effort to avoid publication of the Department’s internal ethics reviews. Margolis told the Times that his opposition to publication of OPR reports was driven by concerns about “unnecessarily or gratuitously… publicly humiliating our line attorneys as individuals.” But it may well be that Margolis’s desire to keep his own role in those cases secret was a more pressing concern.

There is little mistaking Margolis’s brief in all these matters. None of his critics fault Margolis’s own conduct as a lawyer. But they express concern that he is too quick to let political appointees off the hook and note that this has severely damaged the culture of the Justice Department. Ironically, Margolis is clearly driven by a desire to protect the Department’s reputation.

Margolis’s decision to override the OPR’s lead investigator is just more of the same.

P.S. For a nice critique of Margolis’s conclusion that Yoo did not act recklessly, see Brian Tamanaha’s post here.

http://opiniojuris.org/2010/02/20/david-margoliss-whitewashing/

8 Responses

  1. “I fear that John Yoo’s loyalty to his own ideology and convictions clouded his view of his obligation to his client and led him to author opinions that reflected his own extreme, albeit sincerely held, views of executive power while speaking for an institutional client. . . . I do not believe the evidence establishes, however, that he set about to knowingly provide inaccurate legal advice to his client or that he acted with conscious indifference to the consequences of his action.”

    — David Margolis

    “Doug Cassel: If the president deems that he’s got to torture somebody, including by crushing the testicles of the person’s child, there is no law that can stop him?

    John Yoo: No treaty

    Doug Cassel: Also no law by Congress — that is what you wrote in the August 2002 memo — 

    John Yoo: I think it depends on why the President thinks he needs to do that.”

    “Experience should teach us to be most on our guard to protect liberty when the government’s purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.”

    –Justice Louis Brandeis, <i>Olmstead v. United States</i>

  2. I cited this author, and Jack Balkin’s recent piece, in my response today to the Margolis recommendation.  The main thesis: as absurd as the whitewashing of Yoo’s and others’ legal misconduct was, that represents only one half of today’s pernicious “rule by Nobody,” the other half being the ridiculous degree to which such specious legal memos are permitted to shield official action from liability.

    http://insideoutthebeltway.blogspot.com/2010/02/heads-i-win-tales-you-lose.html

  3. Horton’s views on Margolis, with the usual share of innuendo, insinuation and spotty evidence, are worth very little. Better to deal with the merits of the memo Margolis wrote directly than to rely on hatchet jobs against the author.

    Tamanaha probably misread what Margolis said. Margolis argues Yoo wasn’t reckless to the point of professional misconduct, but I don’t think he meant Yoo wasn’t reckless at all.

  4. I always take things a step higher which is who decided that the matter goes to Margolis to write.  Just like who decided to ask John Yoo to write the memos.  If you know the history of the views of the type of person you are selecting, you can bet what kind of answer you are going to get.  Why do you think that in international commercial arbitration lawyers for the parties spend inordinate amounts of time trying to parse the prior writings of a potential arbitrator?  Or we have all this stuff in these confirmation hearings about the views and writings of potential judges up for confirmation?  Except here we have someone who is a mid-level person who is smart enough to know on which side his bread is buttered.  Happens in corporations all the time.

    Never forget the structure of these things – de facto and de jure – and not just the outcomes (which are usually consistent with the structure put in place, at least that is my experience).

    Finally, for meditation, why is it that the person of color gets slammed more than the white guy?  Very heavy but there is a long history on that thing that we will someday meditate upon.

    Best,
    Ben

  5. Ben,

    FYI — Margolis has been at DOJ since the late 1960s (or perhaps the early 1970s — a long time), and has been in his current position since 1993.  He is a career Assistant Deputy Attorney General (most folks in this position are political appointees).  In that capacity, he has been the head of the internal OPR process, the ultimate “deciding official” for all attorney misconduct cases.  In that sense, he was merely doing his longstanding job.  

    The real problem is why a single person should be invested with so much unilateral, discretionary, unchecked authority.  It is literally up Margolis, and him alone, to decide whether a lawyer’s career at DOJ is permitted to continue or not, whether a referral to bar counsel occurs or not, what info about a case gets released to the public, etc.  No one should be trusted with this much power, no matter how well-intentioned he is assumed to be.  This structural problem compounded by the fact that Margolis has a well-documented track record of rewarding friends and punishing critics, all in the name of “protecting” the “integrity” of the institution, as Scott Horton has accurately reported.  Magolis is no doubt well-respected by many at DOJ, but there are an equal number who are simply afraid of him.

  6. Response… As to “unilateral” power … can Holder override or ignore the findings? 

  7. I see a lot of “lawyer talk” here.  I’m not a lawyer, but I am a veteran.  Let me ask you…If you were an American soldier
    or had a child who is one, and he or she is captured, what would your response to let’s say a “Muslim lawyer” who assured his “Leader” that putting your child’s testicles or breasts in a vise was okay because other Muslims were “frightened?”  Yoo and company are cowards, just like their draft dodging masters, Bush, Cheney and Ashcroft.

  8. I see a lot of “lawyer talk” here.  I’m not a lawyer but I am a veteran.  Let me ask you…If you were an American soldier
    or had a child who is one, and he or she are captured, what would you say to the “Muslim lawyer” who assured his “Leader” that putting your child’s testicles or breasts in a vise was okay because other Muslims were “frightened?”  Yoo and company are cowards, just like their draft dodging masters, Bush, Cheney and Ashcroft.  That’s reality.

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