The Inherent Conflict Of Interest With DOJ's OPR And David Margolis

Who watches the watchers? Always a valid question; today I want to look at the DOJ Office of Professional Responsibility and its conduct in the investigation of United States governmental attorneys, specifically within the Office of Legal Counsel, involved in the Bush/Cheney torture program. Aside from the facts and conclusions (discussion underway here, here and here), the report is notable for the process producing it, namely the DOJ investigating itself and, not so shockingly, exculpating itself. This will be the first in a series of more specific posts on this blog discussing the multiple, and severe, conflict of interest issues inherent in the OPR Report.

The first, and most obvious, issue of conflict with OPR is that it places evaluation and resolution of ethical complaints against DOJ attorneys in the hands of the DOJ. The power to determine whether there is any impropriety is solely within the hands of those supervising and/or ultimately responsible for the impropriety. Pursuant to 28 C.F.R. § 0.39a, OPR reports directly to the Attorney General and Deputy Attorney General. A vested interest if there ever was one.

Most governmental agencies have independent Inspectors General which operate independently of the agency leadership, have jurisdiction of the entire agency including legal counsel, and thus have credibility as somewhat neutral and detached evaluators and voices. Not so the DOJ, who has arrogated upon themselves the sole right to sit in judgment of themselves. This action to grab the exclusive authority for themselves and exclude the independent IG was first accomplished by Attorney General Order 1931-94 dated November 8, 1994 subsequently codified into the Code of Federal Regulations and reinforced through section 308 of the 2002 Department of Justice Reauthorization Act. Just in time for the war on terror legal shenanigans!

Glenn Fine, the DOJ IG has given Congressional testimony to the US Senate regarding the inherent conflict:

Second, the current limitation on the DOJ OIG’s jurisdiction prevents the OIG – which by statute operates independent of the agency – from investigating an entire class of misconduct allegations involving DOJ attorneys’ actions, and instead assigns this responsibility to OPR, which is not statutorily independent and reports directly to the Attorney General and the Deputy Attorney General. In effect, the limitation on the OIG’s jurisdiction creates a conflict of interest and contravenes the rationale for establishing independent Inspectors General throughout the government. It also permits an Attorney General to assign an investigation that raises questions about his conduct or the conduct of his senior staff to OPR, an entity that reports to and is supervised by the Attorney General and Deputy Attorney General and that lacks the insulation and independence guaranteed by the IG Act.

This concern is not merely hypothetical. Recently, the Attorney General directed OPR to investigate aspects of the removal of U.S. Attorneys. In essence, the Attorney General assigned OPR – an entity that does not have statutory independence and reports directly to the Deputy Attorney General and Attorney General – to investigate a matter involving the Attorney General’s and the Deputy Attorney General’s conduct. The IG Act created OIGs to avoid this type of conflict of interest. It created statutorily independent offices to investigate allegations of misconduct throughout the entire agency, including actions of agency leaders. All other federal agencies operate this way, and the DOJ should also.

Third, while the OIG operates transparently, OPR does not. The OIG publicly releases its reports on matters of public interest, with the facts and analysis underlying our conclusions available for review. In contrast, OPR operates in secret. Its reports, even when they examine matters of significant public interest, are not publicly released.

The entirety of Fine’s testimony is instructive, the cited portion is taken from pages 12-16.

So what do the numbers and data exhibit for the OPR’s effort at professional responsibility and accountability? Not a very compelling story at all. From a Crime & Federalism look at the 2006 numbers which were, until recently, the most current information available:

Of 869 complaints, less than 10% were even deemed worthy of an investigation. Not bad, right? Even if you’re reported, the odds are clearly in your favor.

Perhaps one will say that crank litigants make a lot of frivolous complaints. That would be wrong. Sixty-nine percent of investigated complaints were initiated by judges. Private lawyers and private litigants amounted for less than 3% of complaints leading to investigation.

Of the 84 cases worthy of investigation (58 of which were cases where a judge had already found prosecutorial misconduct), in only 18 cases were prosecutors disciplined. According to OPR, there is a crisis within the federal judiciary.

Federal judges are making frivolous allegations of prosecutorial misconduct. After all, federal judges found prosecutorial misconduct in at least 58 cases. Yet OPR only found prosecutorial misconduct in 18 of those 58 cases. (58-18 = 40 federal judges filing frivolous complaints.)

The numbers don’t add up. DOJ’s Office of Professional Responsibility investigated less than 10% of all reported cases of prosecutorial misconduct. While federal judges found prosecutorial misconduct in 58 cases, DOJ only found prosecutorial misconduct in 18 of those 58 cases. It’s pretty clear that the Department of Justice cannot be trusted to investigate itself.

Self-policing is a failure. In 2009 alone, there have been nearly a dozen high-profile cases of prosecutorial misconduct. If OPR continues its mission, those prosecutors can sleep easy. The odds are clearly on their side.

The just recently released 2007 OPR Annual Report is no better than that of 2006, and arguably even more bleak.

So how can the public have trust in the determinations of the OPR when it comes to allegations of misconduct by high level DOJ officials? Simply put, it cannot. Judges have no trust nor respect for the OPR either. In January of 2008, Massachusetts District Court Judge Mark Wolf sent a scathing letter to the Attorney General stating inter alia:

“The [Justice] Department’s performance in the Auerhahn matter raises serious questions about whether judges should continue to rely upon the department to investigate and sanction misconduct by federal prosecutors,” wrote Wolf, who last July, after expressing frustration with his punishment, took the unusual step of asking the Massachusetts Board of Bar Overseers to launch disciplinary proceedings against Auerhahn.

Wolf also wrote that “the department’s failure to be candid and consistent with the court has become disturbingly common in the District of Massachusetts.”

Wolf is far from alone, from a fantastic and stunning article in the American Bar Association Journal entitled “The Roach Motel” comes the description of how Judge Emmet Sullivan of the DC District Court feels about the competence of the OPR:

Mistrusting the OPR, Sullivan took things a step further. He dismissed the case on April 7 and appointed a special prosecutor to investigate six of the lawyers from the department’s Public Integrity Section involved with the trial.

The judge said he had been lodging OPR complaints for varying violations since autumn, but had heard nothing of them. “The silence has been deafening,” he said. And the latest round of ethical accusations was “too serious and too numerous,” Sullivan said, to entrust the investigation to an office controlled by the attorney general with “no outside accountability.”

Defense attorney Sullivan told the court he’d complained three times to Mukasey about the conduct and nev­er received so much as an acknowledgment. “Shocking, but not surprising,” Judge Sullivan responded.

Two more lines from the American Bar Association speak volumes:

“I used to call it the Roach Motel of the Justice Department,” says Fordham University law professor Bruce A. Green, a former federal prosecutor and ethics committee co-chair for the ABA Criminal Justice Section. “Cases check in, but they don’t check out.”

and

Under the Bush administration, probes of misconduct often went undisclosed because of the potential for personal embarrassment. Upon taking office, President Barack Obama admonished all federal agencies that such personal or political considerations shouldn’t weigh against the public interest. Probes should not be withheld just because they might cause discomfort.

“These people should be embarrassed,” Green says.

As amply demonstrated by the whitewash at the hands of the OPR and David Margolis, things have not particularly improved in the least under the hope and change of Barack Obama and Eric Holder. The Roach Motel is an absolute must read, and the OPR is still an embarrassment.

Time after time the reports of frustration with the OPR process wind up with one name involved: David Margolis. Margolis is not even part of the OPR, yet controls every significant report emanating from the OPR and, by his own admission, has been the sole gatekeeper for any findings of misconduct “since the 1990s”. If Margolis has ever found misconduct by higher level officials in the department, I cannot find it. Of course that is not surprising in light of the secrecy and lack of transparency testified to by Glen Fine. Secrecy and opaqueness proudly wielded and ordered at the command of – you guessed it – David Margolis, who is concerned that his department’s attorneys not be “humiliated”. Public disclosure and trust is such a quaint thing compared to protecting your own it seems for Mr. Margolis.

This is the one and same David Margolis who, in the rare and previously unheard of instance where findings of professional misconduct by DOJ leaders and/or elite attorneys such as the OLC crew of Yoo and Bybee actually were made by the OPR, took it upon himself to personally and unilaterally gut the findings and protect his own.

But just as there is an inherent conflict in the DOJ’s use of the fiction of the OPR to police itself, so too does David Margolis have issues giving the distinct appearance of impropriety. Who and what is David Margolis? A definitive look at the man was made by the National Law Journal (subscription required):

“Taking him on is a losing battle,” says the source. “The guy is Yoda. Nobody fucks with the guy.”

….

Margolis cut his teeth as an organized-crime prosecutor, and he often uses mob analogies in talking about his career at the Justice Department. When asked by an incoming attorney general what his job duties entailed, Margolis responded: “I’m the department’s cleaner. I clean up messes.”

The analogy calls to mind the character of Winston Wolfe, played by Harvey Keitel in the 1994 film “Pulp Fiction.” In the movie, Wolfe is called in by mob honchos to dispose of the evidence after two foot soldiers accidentally kill a murder witness in the back of their car.

Further views into the professional soul of David Margolis, or lack thereof, can be found from Jeff Kaye, Scott Horton and more Scott Horton.

So, the in-house “Yoda”, who considers himself the “department’s cleaner” is the guy the DOJ put in charge of protecting the American public from the virulent malfeasance of actors such as John Yoo and Jay Bybee, not to mention all the other cases that courts and citizens have been able to get no action on over the years. It seems David Margolis has his own institutional interests that present an appearance of conflict with his duties to protect the public from malevolent lawyering by DOJ attorneys, especially high ranking ones. Pretty much explains everything.

As I said at the outset, this is merely the first in a series of posts discussing the many and severe conflict issues surrounding the OPR Torture Report. From this general introduction, over the next few days, I will have more as will both Marcy and Mary.

Bmaz is a rather large saguaro cactus in the Southwestern Sonoran desert. A lover of the Constitution, law, family, sports, food and spirits. As you might imagine, a bit prickly occasionally. Bmaz has attended all three state universities in Arizona, with both undergraduate and graduate degrees from Arizona State University, and with significant post-graduate work (in physics and organic chemistry, go figure) at both the University of Colorado in Boulder and the University of Arizona. Married, with both a lovely child and a giant Sasquatch dog. Bmaz has been a participant on the internet since the early 2000’s, including active participation in the precursor to Emptywheel, The Next Hurrah. Formally joined the Emptywheel blog as an original contributing member at its founding in 2007. Bmaz grew up around politics, education, sports and, most significantly, cars; notably around Formula One racing and Concours de Elegance automobile restoration and showing. Currently lives in the Cactus Patch with his lovely wife and beast of a dog, and practices both criminal and civil trial law.

  1. MadDog says:

    Sorry for my mostly total absence at the Emptywheel Ranch this weekend, but a couple of long days killing most nasty viruses on 18 year old nephew’s PC.

    Another success, but given that he’s 18, it’s likely to be only temporary. *g*

    Anyways, I wanted to throw out this wild-ass guess for folks to consider:

    What are the chances that the OPR’s report “exonerating” Yoo and Bybee was as a result of a backroom deal in exchange for allowing a vote on OLC nominee Dawn Johnsen?

    My guess? Pretty fookin’ good!

    In the coming week(s), if Dawn Johnsen vote is allowed to proceed to the full Senate, count my bet as a sure thing!

    And the most likely Repug critter doing the backroom deal?

    None other than the Repug’s real Senate leader Orrin “Leave No Fingerprints!” Hatch.

    Now I think I’ll crawl into my bed for some well deserved ZZZ’s.

    • emptywheel says:

      I’m with bmaz. I frankly am looking forward, even more, to the way in which OPR’s structure means there is very little you can hold a DOJ lawyer accountable for. Cause bar rules, made to make sure lawyers taking on each other, are an inadequate task to lawyers granted the power of prosecution and domestic surveillance.

      Dawn Johnsen may have been held out for other reasons. BUt OPR has stunk since the last time Johnsen was in the department.

      • MadDog says:

        I’m with bmaz…

        The way my wild-ass guess conspiracy theory works is that the new head of the OLC was put on a secret Repug hold until and unless the former residents of the OLC were given a clean bill.

        Remember that no one (including Harry “Hit me again” Reid) could ever give a reasonable explanation as to why Dawn’s approved SJC nomination was not brought to the Senate floor for a vote.

        Just some mealy-mouthed pablum about “she doesn’t have the votes” which doesn’t even begin to explain things.

        Did the Senate Democrats not have their own 60 votes for cloture? Or was there a secret Repug hold?

        In any event, I’m gonna stick with my wild-ass guess conspiracy theory until the real story comes out…if ever. *g*

          • BoxTurtle says:

            Agreed. It looks to me like there was an informal agreement. Neither side really wanted her confirmed, at least not until they could spike that OPR report.

            Boxturtle (Did you destroy your keyboard banging out this post?)

        • emptywheel says:

          Didn’t matter anyway. Bradbury got his exoneration by March, based on his having provided comments on the draft. That’s all it needed, not a year of delay.

          Besides, as bmaz points out, the delay on Johnsen came from Dems, not Republicans.

  2. fatster says:

    Oh, thanks, bmaz. Just what we were wishing for on the last thread. What an interesting guy, this Margolis. He’s got highly developed survival skills all right. The Clean-Up Man. Just what you want from a Department of Justice.

    • Hmmm says:

      That’s a hell of a pushback on somebody’s part. They’re trying to make the original OPR report work sound as shoddy as Yoo’s and Bybee’s. I smell fear. Papa Dick fear. Good!

      • skdadl says:

        Yes, it’s interesting that way. When I started to read that WSJ piece, though, my first thought was, yes, that’s exactly what Margolis does. He excuses Yoo and Bybee from having to meet any substantive standard at all because lawyers don’t know what that would be — even Jack Goldsmith says he doesn’t know — but then Margolis raps the OPR on the knuckles again and again for not meeting his schoolmasterly standards for report-writing.

        Of course, the WSJ takes that to be damning of the OPR and passes in silence over Margolis’s double standard for standards. Amazing, as you say.

    • bobash says:

      I’m not a regular WSJ reader. Reading their reader comments was fucking scary and depressing. Never ceases to amaze me how comfortable they are with their fantasyland facts.

      • qweryous says:

        They tend to be more articulate and organized than the commentors at some other RW sites that I occasionally check out. They are not the teabaggers-they are the teabagger organizers.

        I followed some Link like ‘OPR report is released and shows DOJ lawyers misconduct’ at a known RW magazine site, and I go there thinking “what is going on?” and find this WSJ piece excerpted.

        The comments were the typical- they believe they know whats up…
        They could be instructed to chant up is down and not know something was wrong.

  3. bobschacht says:

    bmaz,
    Excellent summary! You have presented to Congress an excellent brief for revising the legislation regarding the OPR and OIP in the DOJ.

    But I suspect this is no accident. As you note, the current authorities are defined in the

    2002 Department of Justice Reauthorization Act. Just in time for the war on terror legal shenanigans!

    I was going to ask you to compare the records of the Bush DOJ in this regard with the Clinton years, but were the changes such as to invalidate any historical comparisons?

    Bob in AZ

    • bmaz says:

      No, actually the policy started out under Clinton, with Janet Reno issuing the order that later got codified. It is fair to say, however, that the perniciousness and obstruction of the structure was exacerbated geometrically under Bush/Ashcroft.

  4. Jeff Kaye says:

    Wonderful essay on the conflicts inherent in the OPR “investigations”, and regarding the role of David “Fixer” Margolis!

    Thanks for holding your initial powder (which may have been quite combustible) and producing an effective and detailed essay.

    Best article on the subject I have read. I only wish it hadn’t come out on Sunday evening. Perhaps the FDL editors will place on the front page tomorrow (hint).

    Between EW’s superlative examination of the report itself, and your work, and that of the many commenters (and certainly another substantive work coming our way on the subject from Jason Leopold), you guys put the MSM and Congressional bluster brigade to shame.

    • bobschacht says:

      Don’t forget that we can give the MSM a clue by “Spotlighting” bmaz’s post, using the Spotlight link at the end of his essay. I’m about to do that.

      Bob in AZ

    • rosalind says:

      Yeah, love the way Sam Stein at Huffpo says Mikey Isikoff “uncovered Yoo’s comments” re. a president’s power to annihilate a village of civilians.

      Because Isikoff possesses the ability to read, he garners umpteen internet headlines of:

      Newsweek: Yoo said bush could order civilian massacres!

      eh, if it gets more people to read the damn report…

    • JasonLeopold says:

      Jeff, your work has been nothing short of groundbreaking as far as I’m concerned and I applaud you for everything you have done to further educate all of us on torture.

  5. Jeff Kaye says:

    Oh yes, let’s add to Margolis’s sterling resume his intervention into the Siegelman case, via a Scott Horton story at The Daily Beast. We might remember that U.S. Attorney Leura Canary had brought charges against Albama Gov. Siegelman. But Leura’s husband was “William Canary… Alabama’s leading Republican political consultant. At the time Canary launched the Siegelman case, he was advising one of Siegelman’s Republican adversaries for the governorship.”

    After ethics complaints were brought to the Justice Department, Leura Canary was nominally removed from the case. But in a circumvention of normal Justice Department rules approved by Associate Deputy Attorney General David Margolis, she was allowed to pick one of her deputies to manage the case against Siegelman in her stead. Canary represented to Congress that she removed herself from the case “before any significant decisions” had been reached.

    Legal Schnauzer took up the story. Whistleblower Tarmara Grimes had accused Canary and her staff at the Middle District of Alabama (MDAL) of:

    * Obstruction of an investigation–Assistant U.S. Attorney Randolph Neeley had been arrested for drunk driving while working on government business in California, and an error by Neeley resulted in the dismissal of a case. The Office of Professional Responsibility (OPR) conducted a review, but Grimes said Canary directed that the report be watered down in order to protect Neeley….

    * Waste of government funds–During the Don Siegelman/Richard Scrushy case, known as the “Big Case” in the office, prosecutor Steve Feaga was allowed to keep a contract employee (Vallie Byrdsong) for more than three years, long after staff members could have performed his duties, according to Grimes….

    * Unethical Conduct–Justice Department employees removed documents from the Emelle landfill, even though landfill managers had said the documents could be copied but not removed from the premises. Grimes said DOJ employees loaded boxes into cars and removed them anyway.

    * Abuse of Public Trust–Members of the prosecution team had improper contacts with jurors, and Canary remained involved in the case long after she had supposedly recused herself due to conflicts.


    But then we read this: “David Margolis, associate deputy attorney general, issued a report in which he found no violations had been committed by management officials in the Middle District of Alabama, led by U.S. Attorney Leura Canary.”
    Margolis hadn’t conducted a fair investigation, “not even interviewing key players.” One source told Scott Horton that “Margolis was intent on ‘sweeping everything under the carpet.'”

    And Grimes? She became the source of a criminal investigation!

    DoJ is revealed to be a cesspool of scandal. No wonder we will get no real prosecutions or investigations out of them. Between the pusillanimous (Congress) and the compromised and corrupt (DoJ, the Pentagon, the Agency, and the executive branch), there’s not much in government to look for to help this country out in its crisis. There are the courts, but it’s been seeded by right-wingers for so long, it has little to offer us, not to mention the limitations of its powers as only one branch of government.

  6. Hmmm says:

    (In the next of an endless series of naive questions from me:) So is there a party bias as to Margolis’ previous fixees? All R, or an R/D mix?

  7. bobschacht says:

    I spotlighted bmaz’s blog to
    John Wilke : Justice Pod Leader : Wall Street Journal
    Dan Eggen : National Staff Writer – Justice Department : Washington Post
    Eric Lichtblau : Justice Department Correspondent : New York Times
    Dennis Akizuki : Law and Justice Editor : San Jose Mercury News
    Toni Locy : Justice Reporter : USA Today
    Henry Weinstein : Legal Affairs Writer : Los Angeles Times
    Maura Dolan : Legal Affairs Writer : Los Angeles Times
    Mike Kirkland : Supreme Court, Justice Correspondent : UP International
    Curt Anderson : Justice Correspondent : Associated Press
    Jim Rubin : Legal Editor : Bloomberg News

    with this Comment ||||||||||||||||||||||||||||||||||||||||||||||||||||||

    Recently, the Department of Justice at long last released the OPR report on Yoo and Bybee’s role in writing the memos authorizing torture. The conclusions of the OPR report were reviewed by Margolis and downgraded merely to “bad judgment,” meaning there will be no consequences for Yoo and Bybee’s role. But as “bmaz” makes clear in the attached blog post, Margolis has a clear conflict of interest, and his role is anything but disinterested. The public needs to hear that Margolis’ review should be
    understood for what it is– a conflicted whitewash of activities that
    might even amount to war crimes. Congress needs to reconsider its
    legislation regarding the OPR, which removed its independence and made
    it vulnerable to politicization. Please help the public understand this
    travesty.

    Bob in AZ

  8. JasonLeopold says:

    This is a really powerful post bmaz. Well done. Of course, I have so many questions, which I hope to post tomorrow after some coffee.

    On a side note, for everyone else, I have the National Law Journal article bmaz references. It’s about 3,000 words. If you’d like a copy to read send me an email at [email protected] and I will email it to you.

  9. JasonLeopold says:

    I think the Senate Judiciary Committee should be thanking you guys for having done all of their work for them over the weekend that they can now use for the hearing.

  10. JasonLeopold says:

    Another little excerpt from the National Law Journal article, btw, shows Margolis quoting the movie, The Godfather. This is Margolis talking about why he stayed at DOJ and never went to a high-profile DC law firm:

    “I stay because this is what I do,” Margolis says.

    “In “The Godfather,’ Hyman Roth says to Michael Corleone, “This is the business I’ve chosen,’ ” he says. “This is the business I’ve chosen.”

  11. BayStateLibrul says:

    Excellent essay, exposing Margolis’s misguided, cover-up-over-facts mindset.

    The DOJ botched it, and let Yoo’s and Busbee’s deeds leave town in a bright shiny getaway car.

    Here is more details on Judge Wolf’s case from Boston (prosecutorial no-no’s and pass cards at its finest.

    http://www.wbur.org/2010/02/19/prosecutor

  12. klynn says:

    I cannot thank you enough bmaz. I asked for more info on the conflict of interest and it’s systemic role in obstruction in the last post and you delivered the first installment.

    Thank you so much for a wonderful analysis.

    Margolis is a criminal and should be investigated.

    The “How do we clean this up?’ will be an interesting post.

    He is no Yoda.

    • fatster says:

      That really stuck out, didn’t it? If inside the DOJ, Margolis is regarded as a Yoda, then things are very strange indeed. I hope all those senators (remember the hearing where Whitehouse produced the poster showing a gazillion phone lines from the WH to the DOJ under Bush-Cheney, but only two or three under Clinton?) who express their dedication to the DOJ as it should be recognize who turned it upside down–and keeps it that way. But, then, it’s been so long since Courage walked the halls of the Senate and House . . .

    • bmaz says:

      They never are with Margolis.

      Remember, David Margolis is also the guy Monica Goodling and Kyle Sampson went to to get institutional protection and a cloak of legitimacy when they were in trouble.

      • Mary says:

        Great post – super.

        RE: Monica and Kyle, let’s not forget the OPR report on their deeds (along with Williams and Nowacki):

        http://www.justice.gov/opr/goodling072408.pdf

        Despite specific findings of misconduct and illegal behavior, there were no recommendations for prosecutions (which arguably isn’t OPR venue anyway, but still) and no referrals to bar organizations. Apparently OPR’s approach (as long as the principals involved spent time leaning on Margolis’ shoulder at various points in their wrongdoing) is that as long as you leave DOJ (for your nifty GC slot or judgeship or prof slot etc.) then the appropriate OPR response to multiple instances of specifically described wrongdoing including violations of law – is to shrug.

        Because Goodling, Sampson, and Williams have resigned from the Department, they are no longer subject to discipline by the Department for their actions described in this report. Nevertheless, we recommend that the Department consider the findings in this report should they apply in the future for another position with the Department.

  13. TarheelDem says:

    And then there is the case of Jessalyn Radack, which was seemingly rushed through the OPR system.

    Are there grounds for firing Margolis?

  14. Mary says:

    And Fine almost got the authority he feels is needed, but this guy named Kyle managed to derail that in 2008.

    The 2-19 and 4-23 entries from History Commons give some detail.

    OPR and DOJ have used – as they always do – the kinds of rolling disclosures on a lot of this that manages to make the response and public dialog so choppy that by the time any significant parts of the truth are really told, the air has been sucked out of the room, SOLs have expired, etc.

    A lot of what we were talking about back in May applies here with a lot of vigor, but it begins to feel like rehash when there has been such a slow rollout, multiple leak preceded, product.

    • emptywheel says:

      And I find the Kyl spiking of DOJ IG reform all the more interesting bc he is almost certainly party to the discussions of why certain entities–like NSA, for example–never want to come under Fine’s oversight.

      Remember that during the FISA Amendments Act debates, several people tried very hard to prevent Fine from having any bit of the IG investigation into the illegal wiretapping program.

      The opposition to giving Fine the power he needs is twofold: first, that the lawyers like having immunity. And second, that Fine is actually good at what he does, and peopel don’t want to expand his mandate.

  15. DWBartoo says:

    Thanks, bmaz, another superb post.

    Wish that more people might pick on on your comment on Dawn Johnsen , “buckin'” it where it stops …

    At this point of revelation and considered conjecture, any genuine “moving forward” must fall to the Courts and Congress, that clearly being their undeniable Constitutional responsibility – as anyone with even a modicum of awareness of what has been going on,must know; admittedly, those who pay attention to the Wheelhouse Gang, have the advantage.

    Both the Courts and Congress appear happy (and most-willing, if not downright eager) to continue their snooze, however …

    DW

  16. klynn says:

    I am not able to have David Margolis’ professional bio show up on any gov sites. Does anyone have a link to his bio?

    • Peterr says:

      Here’s a summary of it in the 2008 IG report (BTW: the “F” in the header is from the outline of the chapter, not an initial for his first name.):

      F. David Margolis

      David Margolis is a career Associate Deputy Attorney General and the highest-ranking career attorney in the Department. Margolis graduated from Brown University in 1961 and Harvard Law School in 1964. He began his career with the Department in 1965 as an AUSA in the District of Connecticut. Beginning in 1969, he held a series of supervisory positions with the Organized Crime Section of the Criminal Division. In 1990, he became Acting Deputy Assistant Attorney General in the Criminal Division. In 1993, he was appointed as an Associate Deputy Attorney General and has remained in that position since that time.

      Margolis’s informal biography describes his duties as an Associate Deputy Attorney General to include acting as the liaison for the Deputy Attorney General with the FBI, the Criminal Division, and the U.S. Attorneys. Margolis is also normally responsible for recommending the Department’s response in cases where the OIG or OPR make misconduct findings against high-level Department officials.

    • DWBartoo says:

      Try OIG Special Report, Sept. 2008;

      “An Investigation into the Removal of Nine U.S. Attorneys in 2006”

      DW

  17. lllphd says:

    oh. so this just ‘fell’ under his purview. well, excellent. lucky us.

    i suppose it could have been worse; he could have praised their reasoning to the skies.

    sheez.

  18. Jim White says:

    And if you want to be even angrier, check out Scott Horton’s latest, where he interviews the only person referred to a bar association by OLC for advice they gave on a terrorism case: Jesselyn Radack tried to prevent John Walker Lindh being interviewed without an attorney and wound up getting fired and referred to the DC Bar Association.

    The only silver lining in this story is that it appears the DC Bar, to which Yoo and Bybee would have been referred, is in DOJ’s pocket, so they would have been exonerated there if Margolis hadn’t managed to de-fang the report.

  19. razorbrain says:

    Great post.

    I’ve been bemused for years by the way the very concept of “conflict of interest” has been systematically removed from real life. We never even seem to reach the issue of whether a conflict of interest exists in any specific situations anymore, but rather we stop every discussion at the point where we are discussing whether there is “an appearance of a conflict of interest.” It’s almost as though we’ve conceded as a society that noone ever has an ACTUAL conflict of interest.

    However, I also note that noone ever does an analysis of what the various INTERESTS of the players involved might be. It’s as though that would run the risk of taking us too close to the truth of the actual conflict. It most often seems to me that in most discussions of “the appearance of a conflict of interest,” it is clear that in fact an ACTUAL conflict of interest does indeed exist, and is plain to see by anyone who considers what interests the players actually have.

  20. Synoia says:

    If Margolis was not covering his ass at the beginning, he is now.

    Nice to be in charge of your own reviews.

  21. Hugh says:

    Margolis is not even part of the OPR, yet controls every significant report emanating from the OPR and, by his own admission, has been the sole gatekeeper for any findings of misconduct “since the 1990s”.

    This nails Margolis. This is a guy who was perfectly comfortable in the DOJ of Ashcroft, Gonzales, and Mukasey. Anyone who could sit through the Bush Administration and what went on at the DOJ and saw only, to use Cass Sunstein’s phrase, policy differences wasn’t being impartial. They were being complicit.

    Margolis is one of these creatures of the Establishment who comes to see the institution as more important than its function, and by defending it at all costs does it irreparable harm, in other words, a consumate Villager.

  22. klynn says:

    Hey,

    Glad this got front-paged here at FDL!

    I did not mention how many international paper blogs linked to this, including India Times!

    Looking forward to the other installments on this by you, Marcy and Mary.

    If I understand correctly, will we be able to move from inherent conflict of interest to obstruction to conspiracy to commit high crimes?

    The world is watching this blog. THAT speaks volumes.