Will Miguel Estrada Represent John Yoo Before Sonia Sotomayor at SCOTUS?

I had a bit of a contest on Monday to guess which lawyer was representing John Yoo as Jose Padilla’s suit against him goes forward.

The winner of that poll is the anonymous reader who noted that Miguel Estrada represented Yoo when Yoo testified before Congress last year. You can let me know by email which deserving charity you’d like me to mail your utterly worthless hubcap to…

The Recorder has more details about the tough work Estrada has ahead of him. (h/t WSJ Law Blog)

John Yoo, author of some of the Bush administration’s war-on-terror memos, has hired Washington, D.C., lawyer Miguel Estrada to appeal a ruling that allowed an allegedly mistreated detainee’s suit against Yoo.


Estrada has already been representing Yoo in an investigation by the Justice Department’s Office of Professional Responsibility into the legal work behind the memos. That investigation is ongoing, though the results could be released at any time, and a draft finding reportedly would have referred Bybee and Yoo to State Bar authorities for possible discipline.

As a reminder, this means that Estrada will represent Yoo as he attempts to convince the 9th Circuit to reverse the District Court’s ruling that Padilla’s suit against Yoo can move forward.  And–it is not unreasonable to imagine–regardless of what the 9th Circuit decides, the Latino the Republicans wished had been the first on SCOTUS (Estrada) might soon face the Latina Republicans will grudgingly see confirmed as Justice in the next few weeks for a big showdown over the rule of law. Any bets on whether Estrada makes more money trying to save Yoo from any consequences for his actions (yes, taxpayers will be footing Estrada’s bill) than Sotyomayor will make in her first year on SCOTUS?

In addition to reporting that Estrada will represent Yoo, the Recorder has some interesting speculation from some law professors who have been following the case on why Yoo needs his own lawyer.

New York University School of Law professor Stephen Gillers, who has written about the investigation into the memos, said that the Justice Department should not have been Yoo’s sole representation in the first place, because conflicts of interest between Yoo and his former employer were too likely to occur.

Yoo may have wanted to make arguments that the Justice Department couldn’t pursue, such as implicating other DOJ officials, Gillers said. He speculated that Yoo may have wanted to investigate former Vice President Dick Cheney, former Attorney General Alberto Gonzales, or Cheney’s former legal counsel, David Addington.

"Just hypothetically, he might say, ‘I was ordered to do this by David Addington, so he should be in this [case] also,’" Gillers said. "DOJ’s not going to sue David Addington on behalf of Yoo."

Georgetown University Law Center professor David Luban, an ethics expert who has also written about the torture controversy, said in an e-mail that he hadn’t been tracking the case closely, but that the Justice Department’s decision could indicate the government was litigating the Bush administration’s position at the district court level, but is now rethinking whether to continue to maintain it. Or, he speculated, it might be that the OPR report will be issued soon and will recommend discipline.

"That by itself would create a conflict of interest in DOJ defending his position in a closely related civil case," he wrote. "Even though OPR is a different subunit of DOJ, it’s not a separate law firm."[my emphasis]

Which is all just another way of saying this suit is getting more and more interesting.

    • NMvoiceofreason says:

      Hypothetically speaking, is it more likely that Justice dropped Yoo because of the conflict raised by Holder’s preliminary investigation into Yoo’s responsibility for the torture until death of more than twelve people, or is it more likely that Yoo wanted a joinder of other parties he has so far done nothing except to praise and protect? And where would his recent public utterances fit on that scale?

      I’m leaning toward DOJ dumping Yoo, personally.

  1. phred says:

    Wouldn’t it be fun if we finally learn all the sordid lawless details via court proceedings as each of the participants tries to sue the other ones for being more culpable? Oh, there is not enough popcorn in the world for that ; )

    • BoxTurtle says:

      If Yoo were to appear in court and say under oath “Addington ordered me to come to these conclusions somehow. He didn’t care how” things would get interesting very quickly. Meaning criminal charges against Addington would almost HAVE to be brought.

      Yoo strikes me as a coward. He won’t risk personally being jailed. Addington, well, dunno. I don’t THINK he’d fall on his sword for Dick, but he might.

      Gonzo is also a coward and if he’s implicated he’ll roll over on Bush.

      They’ve GOT to keep this out of court. Discovery alone would be deadly to BushCo in general and Yoo in particular.

      Boxturtle (Remember, John, first rat gets the best deal)

      • emptywheel says:

        I don’t know. The choice of Estrada seems to be a good indication that, not only is Yoo being defended by the entire crime family, but by someone who will willingly share strategy along the way (sort of like a Baker Botts lawyer defending Libby in a case that would ultimately implicate James Baker’s boy wonder).

        Of the two speculations in the Recorder article, my gut says the second is the correct one–that DOJ is only willing to go so far to defend a lawyer that they’re about to say ought to be disciplined for precisely what Padilla is suing him for.

        • BoxTurtle says:

          Yeah, Yoo has a LOT of big guns backing him. If he falls, he could take all of BushCo (and not a few Democrats, I’d bet) with him. Estrada is very skillful and my bet is Estrada is going to hire some specialists as well. The plantiff will be badly outgunned, IMO.

          I agree with you, the second speculation is the more likely. But BOTH speculations could be true.

          ObamaCo still has a chance of avoiding prosecuting BushCo if they can keep damning confirmation out the public eye. I expect they will be filing a lot of friend of court briefs supporting Yoo’s position.

          Boxturtle (I think it will take new law to protect Yoo from discovery. Watch for it)

      • phred says:

        I suspect EW is correct in 8, but fwiw I agree that we a dealing with a pack of cowards. As long as the crime family sticks together they may hope to avoid serious consequences, but if someone feels seriously threatened, I would be surprised if Styve’s (9) dominoes don’t fall. As Thomas Paine once said “If we do not hang together, we shall surely hang separately.”

        • fatster says:

          I believe that was Benjamin Franklin.

          “We must, indeed, all hang together, or most assuredly we shall all hang separately.”
          -In the Continental Congress just before signing
the Declaration of Independence, 1776.


        • phred says:

          That’s what I get for a quick use of teh google. This site, suggests they each said something similar, but I am happy to defer to your reference, since the site linked here doesn’t give an original citation.

  2. alabama says:

    I’m beginning to believe that our system of justice is in the process of exacting its revenge and reaffirming its values….

  3. fatster says:

    O/T or, Ooooo, gossip time! (Actually, this could get quite interesting vis-a-vis GHWB, et al.)

    Former GOP Rep. Michael Huffington sues Carlyle Group

    “Former Republican Congressman Michael Huffington is suing the now collapsed private equity and investment powerhouse Carlyle Group after he says they wheedled him out of $20 million. Huffington was a onetime Republican California Senate candidate, and is the ex-husband of Arianna Huffington.”

    [Wonder if he’ll have a guest post up soon over at her Post.]


  4. fatster says:

    O/T (Old Topic), Pay2Play backfire on ol’ Grover.

    American Conservative Union (and Grover Norquist) Caught in Payola for Op-Eds Scandal
    by high bitrate
    Fri Jul 17, 2009 at 06:58:26 AM PDT

    ‘”The American Conservative Union asked FedEx for a check for $2 million to $3 million in return for the group’s endorsement in a bitter legislative dispute, then flipped and sided with UPS after FedEx refused to pay.

    ‘”For the $2 million+, ACU offered a range of services that included: “Producing op-eds and articles written by ACU’s Chairman David Keene and / or other members of the ACU’s board of directors. (Note that Mr. Keene writes a weekly column that appears in The Hill.)”‘


  5. NMvoiceofreason says:

    I believe the current method for dealing with war criminals, torturers who inflict death, and murder conspirators under color of law of a protected person is lethal injection. My, how the times have changed.

    • pajarito says:

      If tried, and
      If found guilty,
      Sentence them all to a quail hunt in TX with Mr. Cheney.

      two very big IF’s in this sentence….

  6. fatster says:

    Now, that’s interesting. I’ve spent more time learning about Franklin than I have Paine, so I went for Franklin’s quote. Thanks for supplying this link. One was probably echoing the other (”Great minds, same sewer” thing).

  7. Styve says:

    Ohhhh…to be a fly on the wall of any of these crooks’ homes as the water temperature rises?!?!

  8. Teddy Partridge says:

    All those mentions of Miguel Estrada during the Sotomayor hearings by GOP Senators look a little different today, don’t they?

  9. Petrocelli says:

    This would be poetic justice … to have Sotomayor take apart Estrada’s case, for all to see.