“We all benefited” from Margolis’ tenure

A bunch of former DOJ bigwigs just wrote a seemingly pointless letter to Pat Leahy to assure him that David Margolis does not have a partisan–and they mean Left-Right partisan–bias. (h/t Main Justice)

I say “pointless,” to begin with, because after last Friday’s flaccid hearing on the OPR report, is anyone actually imagining that Pat Leahy is going to make a stink because the OPR Report got spiked?

And besides, no one thinks Margolis is a flaming political partisan. He’s a DOJ partisan, always putting the Department first, even ahead of justice. Hearing from a bunch of former DOJ bigwigs claiming he has no bias isn’t going to allay those concerns.

What’s particularly pathetic about this document, though, is the number people with a vested interest making the following weak claims:

we all benefited during our tenures from the wise counsel and good judgment of David Margolis


While we do not comment here on the merits of the decision regarding the discipline of John Y00 and Jay Bybee, we are certain that it was reached conscientiously and wholly without partisan purposes.


As those who have benefited from David Margolis’s counsel, we know he remains a great asset to the Department and the country for the present and future.

Let’s start with Alberto Gonzales, who gave approval for the use of torture techniques long before OLC did, and who was therefore perhaps the person most in need of the Get Out of Jail Free card that John Yoo wrote him. He signed this document.

So did George Terwilliger, Alberto Gonzales’ defense attorney, representing him on a number of ethical and potentially criminal issues, and therefore, presumably, on torture, if it ever came to that.

There’s Michael Mukasey, about whom Mary wrote a 2,000 word post describing his many conflicts on this issue. And Mark Filip, who helped Mukasey try to spike this report from the start. And Craig Morford, who was Acting DAG when Mukasey reviewed the Steven Bradbury memos and found them reasonable, which was itself a key part of spiking this investigation.

And how about John Ashcroft, huh? He wants you to know that he’s sure that Margolis judged correctly when Margolis determined that Ashcroft’s subordinates did not willfully do wrong when they shredded the Constitution eight years ago under Ashcroft’s inattentive watch. The same Ashcroft who reportedly pushed for some kind of “advance pardon” for the torturers. I sure trust him to tell me whether Margolis judged rightly or wrongly.

Then there’s Paul McNulty who, as US Attorney for Eastern District of VA, declined to charge people who engaged in torture and murder pursuant to these memos. The same guy whose decision to decline prosecution was reconsidered, given all the damning evidence in the OPR Report. Do you honestly believe that McNulty doesn’t want to have his decisions–which shortly preceded his promotion to be Deputy Attorney General–scrutinized that closely?

There’s Jim Comey, who may be one of those refusing to comment on the merits of the decision here (well then, why comment?), but who, when he lost the battle on the torture memos, expressed sadness “for the Department and the AG.” But not, it should be said, for the rule of law.

Add in Larry Thompson, who is another of the lawyers who, at least according to the OPR Report, reviewed and approved of the Bybee Memos. He thinks Margolis did the right thing too.

And, finally, David Ogden, who got fired not long ago, perhaps because he was happy to put politics above the law.

Now I’ll leave it for comments to unpack why people like lobbyist hack Jamie Gorelick wants to boost Margolis. But for now, just know that when at least 10 of these 17 bigwigs say they benefited from Margolis’ “wise counsel and good judgment,” they may well be talking about personal–and significant–benefit.

181 replies
  1. JohnLopresti says:

    Gorelick, I liked her pronunciation of **feckless** during the nine eleven commission hearings.

    Leahy guest Grindler hearing, DiFi had a formal statement entered in the record in absentia.

    • MadDog says:

      DiFi had a formal statement entered in the record in absentia.

      Thanks for the link! Really!

      Now just when is DiFi gonna come clean on her SSCI investigation into CIA torture?

      While blue is my favorite color, I’m not anxious to be holding my breath. *g*

  2. prostratedragon says:


    I think each of us owes you a drink, EW.

    Maybe several.

    Now I’ll leave it for comments to unpack why people like lobbyist hack Jamie Gorelick wants to boost Margolis.

    Because he’s a gatekeeper as well as a cleaner? Because the SOL hasn’t expired yet?

  3. bmaz says:

    Yeah, well, Gorelick and the other Clinton era leaders of the Reno DOJ were under constant attack, some of it legitimate, and none of it stuck. I bet good ole Mr. Fixit Margolis was a big comfort to them.

  4. MadDog says:

    I’m somewhat surprised that a “Leave Margolis Alone!” letter dated 4 March, 2010 was even written at this late date.

    Does anyone have a sense that the SJC, or for that matter, anyone else other than DFH bloggers, are going to pursue the OPR report any further?


      • MadDog says:

        Me too, but I’m sure not the first to tell you that we’re just pissing into the wind for all the results we’ll see. *g*

    • emptywheel says:

      And the really weird thing is, Margolis, after 40 years, is really close to retirement.

      So this letter can’t be seriously taken as an attempt to protect Margolis.

      It’s an attempt to protect the IDEA of a DOJ fixer.

      • MadDog says:

        And the really weird thing is, Margolis, after 40 years, is really close to retirement…

        I was gonna say the very same thing.

        …It’s an attempt to protect the IDEA of a DOJ fixer.

        You nailed it! The Law must never apply to us!

      • bmaz says:

        Leahy has been harping on that “OPR has no independence – needs to be an independent IG” bit for a while now. That one hearing I linked to in the Inherent Conflict post was not his first stab at it. As I recall, it was Leahy who back in 2001-2002 or so was leading the charge against the addition of the language that actually codified Reno’s AG Order implementing the OPR exclusivity.

        And, yes, the DOJ is obsessive about keeping all that in house where they are their own oversight.

      • fatster says:

        ‘Twould be fascinating to know details of how each benefitted from “The Clean-Up Man”. Yeppers.

      • bmaz says:

        Heh, well it isn’t real compelling; it basically is on point evidence of exactly what he has really been accused of. And that is not being politically partisan, but being such an ingrained lifer DOJ suck up hack that he is more worried about the department’s reputation than he is justice and professional oversight.

  5. orionATL says:

    the central problem exhibited here is another instance of the general problem as exhibited in the conduct of senators in the u.s. senate,

    to whit, they are

    pals, fellow members, veterans, alummi, comrades-in-arms, students,

    disciples, admirers, co-workers.

    these signatories have an Emotional relation to margolis,

    perhaps a sort of filial relationship.

    that central emotional relationship cancels any
    commentary about “fairness”, “injuqstice”, “rule-of-law”, domestic and international illegality of torture.

    my question is:

    who started the drive to put this letter together?

    it is very easy to manipulate a group of folks like this.

    were You a recipint of margolis’ putative kindness and support,

    would You refuse to sign such a letter praising a mentor?

    i think not.

    but history will show, 20-40 years from now, that tje u.s.
    gov appologized to the families of guantanamo political prisoners for the u.s. govt’s
    destructtion of their lives due to an hysterical reaction to a relatively trivial threat by u.s. officials.

    it’s bound to come,

    bound to happen,

    bound to be too late for justice to be done.

    english prime minister wm gladestone also said:

    “justice delayed is justice denied”.-

    so much
    for buttercup

      • Citizen92 says:

        Ah yes, who happened to be ‘our man in Rome’ as Ambassador when Michael Ledeen and the forged Niger yellowcake letter turned up.

        I was looking into Straight. Found some interesting stuff, will have to dig it out. I recall that former TX gov candidate Claytie Williams (a story in himself) sent his son through a successor program with unfortunate results.

        Then there was the issue of Sembler’s penis pump

        • Citizen92 says:

          I forgot that Sembler was also the Chairman of the Scooter Libby Defense Fund.

          And now he’s defending Cheney thru Keep America Safe.

        • Citizen92 says:

          As further evidence, let me direct you back to the Robtex search.


          You’ll see that capitolresourcegroup.com is also running on that nameserver.

          This is Capitol Resource Group, a “government affairs consortium” in West Conoshocken, PA:

          And this is what Capitol Resource Group has been up to:


          RNC official behind ‘fear’ pitch under fire for fees
          By: Kenneth P. Vogel and Ben Smith
          March 5, 2010 01:56 PM EST

          Rob Bickhart, the Republican National Committee official behind the embarrassing fundraising presentation reported this week by POLITICO, has been paid at least $370,000 since last June by the RNC in salary and consulting fees.

          The size of Bickhart’s compensation has been the talk of Republican fundraising circles for months, and a source of displeasure among some RNC donors who have been generally unhappy with what they see as the RNC’s lavish spending. One complained to POLITICO that Bickhart earns “more than the President of the United States.”

          Between Bickhart’s salary – he is on pace to earn a little more than $196,000 annually – and his consulting fees – which tallied $240,000 in the second half of last year alone – it appears Bickhart could receive north of $500,000 per year from the RNC.

          Bickhart’s presentation at a party retreat in Boca Grande, Fla., last month urged top donors and fundraisers to use “fear” of President Barack Obama to raise cash and featured images depicting Obama as the Joker from Batman, House Speaker Nancy Pelosi as Cruella DeVille and Senate Majority Leader Harry Reid as Scooby Doo.

          The RNC has paid Bickhart $130,131 in payroll since June, according to Federal Election Commission records, which suggest he is on pace to pull in a little more than $196,000 per year in salary. In addition, his Pennsylvania-based consulting firm, ECapitol Direct, has received $240,000 in fees paid in five installments beginning June 8 – about three weeks after he was announced as the RNC’s new finance director and about two weeks after he registered ECapitol Direct with the Pennsylvania Secretary of State’s office.

          The company lists the same suburban Philadelphia address as the lobbying and political consulting firm with which Bickhart has been more publicly associated: Capitol Resource Group.

          Aspens connected at the roots – INDEED!

        • Citizen92 says:

          I occasionally wonder if Michael Connell is smiling down upon what he enabled. Or instead if he’s staring upward from an uncomfortably warm room.

      • jdmckay0 says:

        Mel Sembler: Looking into his past darkly.

        from your link:

        But where Melvin Sembler, 74, demands attention is as an object lesson in how cruelty can be redeemed by the transformative power of political donations.

        great line!!! Kind’a strikes me as working example of capitalism’s tenet: eg: capital flows to where it’s most needed. I guess this guy’s just going with the flow.

        It’s beginning to yawn on me that I don’t understand economics at all. :(

        I never heard of this guy, but reading those links seems to me his various “STRAIGHT” organizations more or less engaged in torture… in the name of GOD! (GAWD AWFUL?). Given this guy’s staying power through the decades, wouldn’t be surprised at all (maybe even expect) to find a direct nexus between his fund raising prowess and W’s x’stian army of torture enablers… going with the flow and all.

        Or maybe I’m just obtuse, eg. this is a given & I’m just soooo behind on the culture curve.

        I dun’o… I’m coming to a place where I’m inclined to sit back in awe and just observe the absurdity of it all. Also thinking of converting back bedroom into a screaming meditation room.

    • klynn says:


      That is info worthy of a post. You should do one. Or, send this info to BradBlog for their Michael Connell timeline.

  6. fatster says:

    Ill. judge won’t toss torture suit naming Rumsfeld
AP Legal Affairs Writer

    CHICAGO (AP) — “A federal judge [Wayne R. Andersen] refused Friday to dismiss a civil lawsuit accusing former Defense Secretary Donald Rumsfeld of responsibility for the alleged torture by U.S. forces of two Americans who worked for an Iraqi contracting firm.”


  7. orionATL says:


    how the hell did you find this out?


    it’s all about focused, centralized control of the republican message

    in preparation for the fall elections,

    but not solely for those congressional positions,

    but also for the white house in 2012.

    that’s where you can make thousands of appointments to influence govt for years.

    republicans these days

    are not about serving (the nation)

    but about seizing (power).

    has anybody bothered to do a count on the lawyers in doj hired by rove and
    monica goodling who ate still serving at the doj?

    i wonder if buttercup obama knows that figure ?

  8. earlofhuntingdon says:

    When it comes to “we”, the benefit is all in the eye of the beholder. As is the penalty. This old perspective twigger is always worth reworking, because it has so many applications:

    The Lone Ranger and his Indian companion, Tonto, are alone and surrounded by angry, armed Indians with a grievance. He laments that he and Tonto are in for a heap of trouble. Tonto looks over at his partner and says, “What do you mean, “we”, Kemosabi?”

    In this case, the angry citizens with a grievance are the American citizenry and those who have given up unearned favor by adhering to the rules of due process and the law. The erstwhile lone ranger, masked and operating outside the law, but who imagines himself to be doing good for one and all (at least himself and his clients), are these “lawyers” who abuse the law for private and professional gain, and who abuse the rule of law, the Constitution and the frayed hair by which good government hangs.

    • fatster says:

      I heard the Tonto response was a bit on the cruder side, as in: “What’s with this we sh*t, white man?”

      • bobschacht says:

        I heard the Tonto response was a bit on the cruder side, as in: “What’s with this we sh*t, white man?”

        Can’t be. The Lone Ranger was a family radio show, and I think the whole incident is apocryphal, and never part of any actual episode of the radio show. But it certainly makes a good story!

        Bob in AZ

        • fatster says:

          Bob, I’ve been trying to remember when I first heard that Tonto-white man joke and I think it was in the ’60s. Might have been late ’50s, but that doesn’t “feel” quite right. And someday, I’ll tell you about the Sanfoils (a story that is supposed to be true, but I can’t vouch for that).

  9. sanpete says:

    “A bunch of former DOJ bigwigs just wrote a seemingly pointless letter to Pat Leahy to assure him that David Margolis does not have a partisan–and they mean Left-Right partisan–bias.”

    The letter clearly isn’t only about partisan bias but is about Margolis’ “utter lack of partisan bias *or any other distorting prejudice*.” To which is added, “we have no doubts at all about the honesty and integrity of David Margolis’s decision in this matter.”

    You may think many of the signatories, even Comey, can’t be trusted, but there are plenty of others you didn’t name. Better to show some actual problem with Margolis’ memo than carp about so many people trusting him.

    • bmaz says:

      Well, you must be new here and not have read all the posts and comment threads where that has been done ad infinitum. If you just keep going backwards from this page all the way back to February 19, the report issue date, you will get up to speed on the “actual problems” with the report and Margolis analysis. But, just to give you a few areas to start on, the OPR itself as a part of DOJ has a conflict and is thus not a competent investigative body, Margolis as a supervisor in the DAG office has the same general conflict as OPR plus additional issues because as a direct supervisor he has a vested interest in not finding professional misconduct under his watch, Margolis has previously stated he considers the reputation of the department paramount and that he considers himself the “fixer” tasked with maintaining that – he is predisposed to protect the department to the detriment of the facts, Margolis after the initial draft insisted OPR was not framing their findings and conclusions correctly and then when they complied with his demands he stated that in and of itself was a material infirmity (complete bullshit by the way), Margolis himself used changing and inconsistent arguments on standards and burdens of proof to bootstrap his bogus finding, Margolis improperly characterizes the nature of the OPR inquiry which is merely a referral consideration as opposed to the ultimate bar trial that would occur if there was a referral. I have about twenty more, but that is enough to get you started.

      • earlofhuntingdon says:

        Who knew that “partisan” bias – meaning emotional adherence to the views of the left or right – was only one kind of “bias” that could illegitimately influence one’s professional work?

        How many aides and secretaries shredded documents, tapes, discs and hard drives out of loyalty to their boss instead of their jobs or the public or corporate trust placed in their bosses? How many spouses have lied out of loyalty or self-protectiveness when their loved ones were accused of wrongful or criminal conduct? How many HR heads have lied about cutting staff or reorganizing departments in order to protect themselves or their bosses from the rational and logical consequences of their decisions?

        And how many long-serving operatives – the ultimate bureaucrats in business and politics – have spun and lied and manipulated the facts in order to protect their departments, and their own reputation as fixers or company men, rather than let the facts lead to different decisions or fairer treatment of those against whom their lies and abuse were directed?

        Not all abuse is driven by party loyalty. A lot of it is driven by other things entirely.

        • bmaz says:

          As to Margolis and the OPR, “partisan bias” is a nuclear sized red herring injected by those wanting to soft sell and whitewash this away. Nobody here has ever intimated Margolis was operating out of political partisan loyalty; in fact, my recollection is that, from the outset, we have fastidiously indicated he was biased, predisposed, predetermined and inherently conflicted because of his singular and overriding loyalty to, and rabid concern for, the image of his institutional wife, the Department. Blathering about partisan bunk is a tell of dishonest argument.

  10. sanpete says:

    I have read the earlier posts enough to see that they don’t generally deal with actual problems with Margolis’ memo. There are quite few about the OPR reports and the details of the torture memos and so on (a lot of good work in sorting that out, by the way), along with insinuations of bias and conflict of interest. Not much about showing how Margolis’ reasoning would be incorrect.

    Margolis didn’t say that finally using the OPR’s standard analytical framework was a problem, of course. He suggested OPR should have followed their standard analytical framework from the start, that the way the shift was made appeared grafted on work based on some other standard, and that the shift suggested a failure to base their findings on a clear and unambiguous standard. You think that’s unfair? It could have been avoided by using their own standard framework from the start. Why didn’t they? Margolis reports they said the reason was to facilitate the public release of the report, but that hardly seems a proper reason to not apply the framework, which they did manage to apply and release the report to the public, after all.

    Please spell out what you see as changing and inconsistent arguments by Margolis.

    Margolis doesn’t improperly characterize the OPR report. The report didn’t only reach conclusions about a referral. It reached conclusions about the guilt of Yoo and Bybee. Margolis was right to refute those conclusions if he found they were unfounded. He was also right not to allow a referral with the weight of the DOJ behind it when their own investigation didn’t support the findings. As he pointed out, the bar associations are free to do take up the matters if they see fit. They don’t need DOJ referrals. It’s extremely unlikely that the bar associations would reach a different conclusion than he did, though.

    • emptywheel says:

      Actually, Margolis only deals with the evidence of guilt in the OPR report that is most easy to refute. There’s abundant evidence there, he just chose to ginore it.

      Also, I’m unsympathetic to the “changing standard” issue EXCEPT insofar as OPR slapped on the Bradbury guidelines after the fact. OPR had one standard in the first draft and met it. After badgering from Mukasey–in what was incredibly inappropriate on any count, as well as second hand badgering from Margolis (bc he was corresponding with the others involved), they added a different standard. But both drafts met the standard within the draft. And both FAR exceeded teh standard that Margolis has used in the past, so I’m unconvinced that Margolis’ review of these things is ever anything but a decision on what politically best serves the department (see also Jesselyn Raddack).

      I grant you that OPR was not the venue to investigate this–because you can’t scope it widely enough to get the OTHER people who are guilty, and because the issue is one of criminal guilt as much as it is bad lawyering. But that doesn’t excuse problems with Margolis’ review.

    • bmaz says:

      He suggested OPR should have followed their standard analytical framework from the start,

      Actually, they did; they just did not do it in terms of rote repetition of the quoted clauses of “the framework”; which, if you read previous OPR opinions, sometimes they do and sometimes they do not. I have seen examples of both where they do and where they do not, and Margolis seems to never have been particularly concerned about this until now. So, first off the facts and analysis that would suffice to meet “the framework” are there, and the rest is complete and unadulterated manufactured bunk by a institutional cover up specialist.

      …the way the shift was made appeared grafted on work based on some other standard, and that the shift suggested a failure to base their findings on a clear and unambiguous standard.

      First off, it was at the behest of Margolis and representatives of Yoo and Bybee that the suppleental support was engendered; for them to now complain that it was, and use the same as a basis for disallowing the resultant conclusion, is asinine and completely non-compelling. Secondly, if you know anything about professional misconduct investigations, there is not, and never has been, a “clear and unambiguous standard”. That is simply more manufactured empty rhetoric doled out by Margolis to give cover for gutting a finding that was more than supported by competent evidence, which is generally the only standard an administrative review is charged with. This is a referral consideration, not the trial by bar authorities resulting from the referral; and Margolis was dishonest in framing it otherwise.

      Margolis doesn’t improperly characterize the OPR report. The report didn’t only reach conclusions about a referral. It reached conclusions about the guilt of Yoo and Bybee.

      Um, you need to evaluate the conduct and reach conclusions on it in order to support a referral. It was not only proper, it was necessary; and the facts and conclusions as to shoddy work were well supported, even Margolis admitted that. You are pitching a load of manure with that one. “Refuted”?? You are dishonestly misrepresenting what even Margolis said and found.

      It’s extremely unlikely that the bar associations would reach a different conclusion than he did, though.

      I disagree. If that is the case, let’s make the referrals and find out. If you are so certain, you should have no compunction about finding out what an independent trier of fact concludes. That is the American way; however, my guess is you really wouldn’t support that here when it gets right down to it.

  11. alinaustex says:

    I am not a lawyer do not even play one on the internetubes -but here is my take on the Margolis redux of the OPR conclusions -that it was an actual attempt to sanitize the torture our government committed in our name . No matter how you wish to parse ‘EIT”– waterboarding , walling , sleep deprivation et al is torture . Yoo and Bybee used lawyerese to justify torture – they are war criminals – period .
    Margolis aided and abetted war crimes by willfully cherry picking what did or did not go in this report to exonerate those who helped set up the legal framework for Camp Nama and Camp No .

  12. klynn says:

    I know I asked this on previous posts on Margolis. I have not been able to find out information about his parents in terms of their lives. Any other info out there than what bmaz posted and JasonLeopold posted?

  13. sanpete says:

    alinaustex @36

    You haven’t based your conclusion on what Margolis said. To adequately judge it you need to read it.

  14. sanpete says:

    emptywheel @37

    What are some examples of evidence in the OPR report you think Margolis should have dealt with but didn’t?

    Margolis claims that all the OPR reports he had seen (with the exception of a few done with the OIG) used the standard OPR analytical framework. What standard do you refer to that he used before that was different from that?

    It’s possible that Margolis saw his take on the OPR report as in keeping with Obama’s stated policies, but the reasoning he gives stands on its own.

    The chance of any criminal guilt being proven in this is very small. The evidence just isn’t there. Anyone taken to court in regard to this would likely be exonerated, which wouldn’t set the precedent most would want to see. That’s something those calling for prosecutions should keep in mind.

      • MadDog says:

        He reminds me of a juror who sleeps through the entire murder trial, and when he finally wakes up during jury deliberations, insists the defendant must be innocent since he doesn’t remember seeing any evidence against him.

    • emptywheel says:

      The fact that Yoo softened the original shackling language on sleep deprivation.
      The fact that Yoo’s associates in other agencies (Addington and Haynes) trumped up a description of waterboarding that matched what had already been done.
      The likelihood they did so with small box confinement as well.
      The multiple different kinds of disappearing evidence.

      And don’t even get me into the Bradbury stuff, because I believe it would be easier to prove war crimes with the Bradbury stuff than with the Yoo stuff.

  15. sanpete says:

    OPR doesn’t claim to have followed the standard analytical framework in the first two drafts, so your claim that they did would be news to them. Margolis claims all the OPR reports he had seen (with the exceptions of those governed more by the OIG) did use the standard analytical framework. What would be an example of one that didn’t?

    You say the facts and analyses were there to support the findings under the standard analytical framework, but Margolis gives reasons to think otherwise. I’ll reserve judgment on your claim until after you’ve given evidence for it.

    “it was at the behest of Margolis and representatives of Yoo and Bybee that the suppleental support was engendered; for them to now complain that it was, and use the same as a basis for disallowing the resultant conclusion, is asinine and completely non-compelling.”

    Again, Margolis implies they should have started with the standard framework. The fact that he had to suggest they use the standard framework doesn’t alter the issues their failure to do so from the start raised, nor make it unfair for him to point them out.

    “if you know anything about professional misconduct investigations, there is not, and never has been, a “clear and unambiguous standard”.”

    The requirement for a clear and unambiguous standard is part of the OPR analytical framework. Further, Margolis found that the rules of professional conduct do provide a clear and unambiguous standard in some respects.

    “This is a referral consideration, not the trial by bar authorities resulting from the referral; and Margolis was dishonest in framing it otherwise.”

    Again, the OPR report makes findings of guilt. It does not simply call for referrals. Margolis isn’t the least dishonest in how he characterizes the findings of the OPR report. If you think he was, please give a quote from him you find dishonest. You’re very free in calling people dishonest without evidence.

    “the facts and conclusions as to shoddy work were well supported, even Margolis admitted that.”

    Margolis found that the work was below the standards of best practices but not below those required for professional conduct.

    “You are dishonestly misrepresenting what even Margolis said and found.”

    No, you are misrepresenting what Margolis said and found. Before you accuse someone of dishonesty you should be more careful yourself.

    “If that is the case, let’s make the referrals and find out.”

    Go right ahead. As Margolis said, the bar associations don’t require DOJ referrals.

    • DWBartoo says:

      A question, sanpete, apart from your discussion of the moment.

      Do you consider that what has been termed, “torture”, actually occured?

      If so, then do you consider that there must be an accounting, at the very least?

      Or, should we all, simply, take the advice of “looking forward”?


    • klynn says:

      Your blog name is interesting.

      Sanpete County, Utah is at the heart of the Cheney family genealogy.

      Also, found your comments at the Salon post on Feb 16th, Dick Cheney’s Taunting, quite telling.

    • bmaz says:

      The “analytical framework” is a big pile of nothing; are you even familiar with it? Here it is. There was more than sufficient facts, discussion and support for conclusions to be within the ambit of the document; irrespective of which version of the report you are referring to. You are making a specious argument.

      Ask, and you shall receive. Here is what should have been a very important investigation; the misconduct in regards to abuse of material witness warrant provisions. And there was unmitigated misconduct that was sandpapered and, once again, whitewashed by the OPR with the blessing and involvement of David Margolis. Do you see any discussion of “the analytical framework” in that OPR Report? No, you do not. There is none; yet David Margolis reviewed and approved that report. Here is another report, this time from the misconduct investigation in the Tobacco Litigation; where they do refer, in a fleet passing to “the framework” (see report page 138-139). In fact, all they do is effectively cut and paste the framework descriptions of mental state; that is literally the only mention of use of the framework, it is NOT used as a guiding template for the entire report. In fact, of course, the “framework” could never be used as a guiding template for an entire report because it simply is not capable of that; there is not squat for effective guidance in “the framework” other than the most simplistic delineation of mental states. Your reliance on this pablum is, again, specious.

      “Clear and unambiguous” is NOT controlling language within “the framework”. The only place those words appear is in dicta within Section C regarding findings less than professional misconduct. In fact, even in the active professional misconduct sections, B(3) and B(4) , “clear” is not active and “unambiguous” refers to facts unambiguously prohibited by the canon, not that the canon is perfectly unambiguous. Professional responsibility canons and rules are, by their nature, broad and written in a fashion to lend general guidance to evaluations of specific conduct and fact; yet bar authorities have been able to sanction lawyers under them just fine. Margolis, and you, are demanding something that is not, and never has been, the case. You are manipulating and contorting concepts in order to achieve the desired outcome. It appears that is simply the standard MO in the DOJ. Regrettable; you all owe the country and government a higher level of morality and conduct.

      Lastly, I have responded to the merits of your comments; you however, have completely failed to do so to Marcy’s above (and materially sidestep most of mine). For instance how about the Jessalyn Raddack bit above? How do you rationalize that with the treatment of Yoo and Bybee?

  16. pdaly says:

    The mention earlier that Yoo’s bullet points were likely generated during his freelancing moments and not in his government capacity as a member of OLC was news to me. Seems a good point to keep bringing up, as well as what you are doing, listing the abundant misconduct Margolis overlooked to spike the OPR referral of professional misconduct to the bars.

    We know people are reading here and reacting to what they see.

    For example, JTMinIA needs to return to wikipedia to repost his definition of barnacle. It’s been deleted already.

    How I learned this: I was hunting for Liz ads and, not finding any today, returned to this post about yoo and philbin’s emails

    I went to JTMinIA’s link, but couldn’t find any mention of the Vice President, so I checked the History button on the ‘barnacle disambiguation’ page. On March 4, 2010 “TruthShallReign” saw your message here at emptywheel and deleted your Wikipedia contribution.

    TruthShallReign (talk | contribs)
    (deleted false definition made by JTMinIA March 1st, 2010 at 11:21 am “I just checked and I’m happy to say that my snarky addition to Wikipedia is still there, albeit at the bottom of the list.”)

    JTMinIA’s entry used to read:

    “Barnacle”, a political term used to describe the relationship between the Vice President of the United States and the Legislative Branch of government.

    TruthShallReign mischaracterizes this definition as “false.” Barnacle was (truth be told, and reign, and all that) and continues to be the term used in the sense JTMinIA described.

    Some would prefer that many things slide down the memory hole. We can fight it.

    • bobschacht says:

      Some would prefer that many things slide down the memory hole. We can fight it.

      One way to fight it is to enter a response to “TruthShallReign” in the appropriate section of Wikipedia. But keep in mind that the Wikipedia is not necessarily an appropriate place for snark, and that it helps to provide good links to supporting evidence.

      Bob in AZ

      • pdaly says:

        Good suggestion to add supporting evidence. I haven’t signed up for editing funciton at wikipedia, but I assume JTMinIA could find a link to Sen. Whitehouse’s original use of the term barnacle to describe the VP’s non-relationship to the executive and legislative branches.

        Edit: oops. Looks like it was first Sen. Steve Cohen

        • Citizen92 says:

          Interesting you should pick that clip, as it brings discussion back into this thread’s orbit — about how government lawyering, emanating from the OLC, is unchecked, and the bad results fester for years.

          Case in point, Addington mentions two memos from the OLC from a Mr. Katzenbach, dated March 9, 1961 and April 18, 1961. When pushed by Cohen as to which branch the OVP was in Addington responded with a direct quote .. “perhaps the best that can be said is that the Vice President belongs neither to the Executive or the Legislative Branch but is attached by the Consitution to the latter.” This direct quote (page 4, first para) is taken verbatim from the April 18 Katzenbach memo, (whose original purpose was to advise whether the Vice President in 1964 whether he could chair the President’s commission on NASA).

          Addington then goes on to argue what would appear to be his own beliefs about what OVP is and isn’t (in my opinion contradicting both OLC memos) but does at a point return back to pay the memos lip service by saying something like “that’s the quote I read to you” when he was chalenged by Cohen.

          Points being two.
          Addington took refuge behind 40 year old OLC memos — which he only used as props to defend his ridiculous opinions (while inaccurately claiming the memos whole substance supported his argument).

          OLC opinions have a long half-life.

          Trivia as well.
          Katzbenbach’s March Memo looks pretty stinky to me in terms of credibility. He quotes liberally a 1951 book, and uses mostly anecdotal history about the Vice Presidency from the founding of the Republic to write this opinion. I hope OLC work has come a long way since this stinker.

          Katzenbach at the time was the head of the OLC for John Kennedy… Addington said Johnson. Katzenbach later went on to be Johnson’s Attorney General, but those memos were Kennedy era. I find it wild to think that Cheney’s OVP would rely on a Kennedy Justice Department work product!

          Finally, here’s a list of “selected” OLC memos on OVP and other things:

        • pdaly says:

          I just found the the youtube video. You did the heavy lifting.

          Seems Cheney, Nixon, et al have been at this rewriting the constitution secretly for a while.

      • fatster says:

        and pdaly @ 54. Could either of you find out why there is no wikipedia entry for Margolis? Or if there is an entry and I’ve been overlooking the obvious, could you direct me to it? Many thanks.

        • pdaly says:

          Interesting. (I don’t know if anyone can completely delete a stub or how to check for such an occurrence).
          Maybe Margolis lacking a wikipedia entry merely suggests that David Margolis has been very successful at remaining behind the scenes until now.

          I think anyone with wiki privileges can begin an entry (stub) and then build on that entry.

        • bobschacht says:

          Well, I’ve been poking around. On the DOJ website, there are 84 references to Margolis, who is “Associate Deputy AG.” But not only is there no page on Margolis in the Wikipedia (there is an article however on David Margolis, Industrialist), who died several years ago).

          Furthermore, on the Wikipedia pages on the DOJ and its various divisions, Margolis is MIA. I’m not sure which division Margolis is in, but I think I’ve looked just about all of them, without finding a trace. Wikipedia does have a “Margolis” page, which lists all Wikipedia references to Margolis, but even looking back through the history, I don’t see any reference to David Margolis, Associate Deputy AG.

          Looks like someone needs to write an entry about him.

          Bob in AZ

        • fatster says:

          Thanks for following up on this, Bob. Here’s the article that contains the Yoda reference which we’ve seen before. And he seems to have come from CT.

          And I certainly agree with your wise suggestion. Paging Jeff Kaye!

        • bobschacht says:

          Comparing Margolis to the Yoda may once have seemed appropriate, but not in the wake of his OPR whitewash.

          Ah, so he is not merely the Associate Deputy AG, but the *Principal* ADAG.

          I wonder about an AG position that requires 3 adjectives…

          Bob in AZ

        • PJEvans says:

          I’d translate it as ‘far enough down to be invisible to most outsiders, but high enough to have real power’.

    • skdadl says:

      Sorry if I’m repeating anyone else, but that was Steve Cohen’s inspired metaphor. (You get to watch and hear Addington describe the VP as “attached by the constitution” to the leg branch. *snerk*)

  17. Jim White says:

    OT: I just put up a diary where I parse yesterday’s two announcements about McChrystal/Afghanistan and determine that there are significant shell games being played with respect to prison and special operations there.

  18. sanpete says:

    emptywheel @ 47

    Could you please indicate where the OPR report makes findings based on the points you mention? Margolis was evaluating the OPR findings.

    • bmaz says:

      I agree; but as to bias in general it is laughable at best for the reasons stated in the post and herein in the comments. A bunch of mopes that all have the same bias try to exculpate Margolis. Very rich.

  19. sanpete says:

    DWBartoo @ 52

    If you’re asking whether there was waterboarding, etc., that’s well known. I agree with Obama that if there is to be an official investigation, it should be structured in such a way that it will be above any possible charges of partisanship.

    • DWBartoo says:


      It is well to share one’s prejudices, sanpete.

      Mine, from my comments are quite clear, I imagine, while yours seem hedged.

      It seems, further, that you are not engaged, here, in an honest search for understanding or truth, such as we may know it.

      While I do not necessarily impune your “motives”, you certainly leave me with suspicians.

      Either you consider that somedthing of a very serious nature has occured and it needs to be examined or, you are engaged in trying to see that it is not examined.

      If I have misinterpreted your comments, then I would sincerely appreciate your helping me to understand what it is that you are about. Beyond playing osbfuscatory word games and pretending to represent fairness and honest inquiry.


    • qweryous says:

      This sums up what you are saying rather well.

      Not to discourage your comments- but this indicates an enormous pile of rotting red herring:

      “if there is to be an official investigation, it should be structured in such a way that it will be above any possible charges of partisanship.”

      I’d ask how this might occur- but that would be an additional waste of the tubular capacity.

      You forgot to respond to klynn@59? EDIT- you re-trolled that too.

      Time to spray the trollaway.

      EDIT: add the following.
      I’m still waiting for the right wing to call loudly to investigate these
      crimes and lies like they wanted the Democratic Blowjob investigated when Clinton was president. Their failure to investigate later and earlier Republican blowjobs also indicates their hypocrisy.

  20. sanpete says:


    If there are any Cheneys in Sanpete County I’ve never run into them. I’m glad you found my comments at Salon telling. Your comment, on the other hand, is hard to follow. Maybe you should say what’s on your mind instead of making dark hints.

  21. skdadl says:

    I am so totally NAL, and I’m not even an American, but I’m a close reader and I did read Margolis, and I think that most fair-minded lay readers would be struck by the fact that Margolis was, in very schoolmarmly fashion, holding OPR to a set of pretty mindless bureaucratic “guidelines” while at the same time arguing that the poor guys at OLC just had no standards or guidelines they could refer to when thinking about torture. He referred not only to Yoo and Bybee but quoted Jack Goldsmith, for pete’s sake, saying that he didn’t know where the lines re torture are drawn.

    When I read that stuff, I feel as though my entire morally conscious adult life has been suddenly wiped out by some cultural development that I missed entirely (always possible, mind you). But it hurts me, y’know, to be my age and realize what we have lost.

    We found out this week that our country probably is a torturing country. It isn’t just confusion or incompetence, as I kept thinking for a time — it hasn’t been proved yet, but there are strong indications that our special ops guys (JTF2) in Afghanistan have been handing over “high-value detainees” to your people at the black sites at Bagram and Kandahar. There are no words. I feel so betrayed.

    But even now, so many people don’t seem to get the horror of it all, how much we have lost. fatster, I saw your wonderful comment back on the Boxes and Burials thread (I’m catching up very slowly — we suddenly have politics here again), and your request for a hankie. Do you want lace-edged or hand-embroidered? I can usually do both, but I warn you: I’m using up my supply pretty quickly these days.

    Mary will scold me, but the one signature on that letter that I still regret is Comey’s. I guess it’s his voice that got to me, that beautiful voice. But Larry Thompson sent Maher Arar to torture in Syria, and Arar is still on all your bad-guy lists in spite of having been proved innocent many times over. I presume he continues to pay simply because none of those sweet young guys so proud of their DoJ wants to see Larry Thompson in trouble.

    • bmaz says:

      It is institutionalized rot at the DOJ that has led them to arrogate upon themselves the role as their own policemen. They conduct themselves with arrogance and impunity safe and secure in the knowledge that there are no teeth to permanently bite them for misconduct. They also, as a group, expect and enforce a “blue wall” in the same vein and fashion as police departments do to protect their own, even at the expense of justice, morality and the rule of law, all of which they are under oath and duty to protect. It is a despicable mode of operation for a governmental agency, much less one comprised of officers of the court.

      • earlofhuntingdon says:

        And Margolis’ dumbing down further of already moribund bar comittees further protects these government lawyers (in and out of government) by denuding one of the few entities outside the federal government – whose law enforcement standards against the likes of them they have gutted – that could hold these “officers of the court” to account.

        • bmaz says:

          If you follow Margolis, and Sanpete’s, conclusions through, there is pretty much not any instance in which a governmental lawyer giving advice (as opposed to say a direct illegality or court rule breach) could be found to be guilty of professional misconduct. But that is really what their argument begets.

      • skdadl says:

        So you call them “tissues” in California? *wink*

        We just call them kleenex, whether they are Kleenex (TM) or not. At the moment, I am totally out of teh kleenex and even teh toilet paper (what do you call that?). Thank heaven for paper towels.

  22. manys says:

    This is like a letter requesting clemency for Richard Speck, signed by Dahmer, Gacy, and Manson, right?

  23. sanpete says:

    DWBartoo @ 63

    I can’t tell why you’re concerned about my motives. “If” is taken directly from Obama’s position. You may find him a man of bad will; I don’t. I admire him and agree with his views on this, and most other things. I also agree with Margolis. I don’t think I’ve been mysterious about it.

    I don’t understand why you consider pointing out facts inconvenient to what appears to be the dominant view here suggests a lack of interest in finding the truth.

    • Jim White says:

      sanpete @DWBartoo:

      I don’t understand why you consider pointing out facts inconvenient to what appears to be the dominant view here suggests a lack of interest in finding the truth.


      (stop to breathe)


      As you were…

  24. sanpete says:


    I have no idea what specious argument you take me to be making. The simple fact is that the first two OPR drafts didn’t follow the standard analytical framework, and OPR doesn’t claim they did. You may think it doesn’t matter; others, such as Prof. Luban, think it’s a big deal. I happen to think it didn’t in itself make a substantive difference to the findings Margolis ultimately reached. However, whether it matters substantively or not to the final outcome, the failure to follow it raises the issues Margolis pointed out. He obviously didn’t think the failure to follow it implied in itself there was no adequate finding of misconduct, as he went on to deal with the findings on their merits, after he clarified what standard unambiguously applied.

    How does the first OPR report you link to fail to follow the analytical framework? Not mentioning it doesn’t show any failure. The report indicates and analyzes the standard at issue, i.e. the statute, and concludes it was followed. Nothing in the analytical framework would have required more than that in such a case. (You would have to give some additional argument explaining why you think there was a whitewash in that case.)

    Similarly, in regard to the second report you link to, what about it doesn’t follow the analytical framework where it would apply?

    I don’t know what you mean by the framework being a guiding template for an entire report. It’s a guiding template for certain essential aspects.

    I’ve loosely used clear and unambiguous as synonyms, and spoken loosely of clear and unambiguous standards, but Margolis is more careful. If you check his memo you’ll see what he says is correctly based on the framework. The main question he raises and answers in regard to this is about what standard unambiguously applied, as the framework requires with regard to the elements of intent and recklessness.

    “Lastly, I have responded to the merits of your comments; you however, have completely failed to do so to Marcy’s above (and materially sidestep most of mine).”

    As you can see, I’ve asked Marcy for some additional information, as it’s impossible for me to tell from what she said exactly what she has in mind.

    What about Raddack? I’m not familiar with the details of her case, only what Scott Horton has quoted her saying about it. What argument do you have solid evidence for based on her case?

    The letter you fear is biased is signed by people that Senator Leahy and others no doubt have some respect for.

  25. sanpete says:

    skdadl @ 71

    I think you have misread Margolis. The standards he holds OPR to aren’t mindless; they require significantly that a standard unambiguously apply. In examining whether the standard they used unambiguously applied, he shows that in fact it didn’t, that for example they used a standard of best practices to stand for a standard of professional conduct, which is a lower standard.

    Margolis nowhere implies the OLC had no standards to refer to for what constituted torture. Goldsmith didn’t say he didn’t know where the lines for torture are drawn. (The quote from him you probably have in mind is about what how candid OLC advice should be.)

    • skdadl says:

      No. Goldsmith said he doesn’t know where the line is drawn. The line about torture, or the line about how “candid” OLC (or any of the rest of us) should be about the line on torture?

      Explain to me where that line is drawn?

      I read Margolis. He thinks he’s a tough guy, but to me, he gets away with this stuff by being a schoolmarm. Some people have to meet standards and some people don’t — that’s the game he plays, and he does it by using sniffy rules on some and sentimentalizing about others.

      As I admitted above, I don’t know the law, but I do know that law relies a lot on language and careful reasoning. (I once wrote out a definition of “in lieu of” that was used in a judgement.) I really think that all these bright young men (and probably some women) should read and reflect on Hannah Arendt’s analysis of the banality of evil.

      We will not be forgiven.

    • behindthefall says:

      The standards he holds OPR to aren’t mindless; they require significantly that a standard unambiguously apply. In examining whether the standard they used unambiguously applied, he shows that in fact it didn’t, that for example they used a standard of best practices to stand for a standard of professional conduct, which is a lower standard.

      Well, it sounds lawyerly. And clever. Conceivably intelligible, after some work. But a statement designed to slide very, very carefully through a crevice, or so it sounds to me. But then, what do I know? IANAL. I wouldn’t care to try selling it to the general public, though, or to a cross-section of scientists, either.

    • Hugh says:

      Maybe you could enlighten us on what best practices are when it comes to torture.

      At #82,

      The insularity you complain of at the DOJ goes with trying to retain independence and freedom to give candid advice

      Again there was no independence or candid advice here, Addington essentially outlined the opinion he wanted and Yoo wrote it to spec. What you say sounds reasonable, and might be in another context, but here it seems like willfully ignoring the obvious facts involved.

  26. sanpete says:

    bmaz @ 72, 74

    The insularity you complain of at the DOJ goes with trying to retain independence and freedom to give candid advice. The standards that apply to them are the same that apply to other lawyers (though arguably they should be different in some respects). Margolis has no control over bar committees.

    Some, like Prof. Balkin, think this episode shows the woefully low standards for lawyers in general. There are, however, good reasons the standards are low, so as not to interfere too much in lawyers’ professional judgments in representing their clients’ interests. Making the standards higher would cause lots of problems in practice.

    • bmaz says:

      I am familiar with the “practice”; have been for a very, very long time. You are pitching self serving pure unadulterated bullshit. The day I sink to the pitifully low standards of conduct you propound and support is the day I will hari kari. That you and others at the DOJ think they do not have a higher duty and standard of conduct and that you have some elite god given right to sit in judgment of yourselves to the degree you argue is the height of narcissistic arrogance. The level of intentional misconduct, immorality and ethics constantly on display from the DOJ in general these days (and the Bradbury Yoo OLC certainly) is sickening and morally revolting. It has permeated every level down to the district prosecutorial lines and it is as a result of exactly what we have been discussing herein occurring at DOJ Main. The DOJ fish as been rotting at an ever increasing half life from the head down. Defense attorneys know it. Judges know it. And the world is learning it. Your sanctimonious holier than thou shit disgusts me.

      • earlofhuntingdon says:

        I wish you’d let down your guard occasionally and tell us what you really think.

        Fox Noise, too, along with Team Bush/Rove/Cheney repeats the same old rubbish, which they hope will keep them out of jail. When they or the now rotund David Brooks do it long enough, they get fat and happy and rich, and the public begins to assume that they have a case. That’s a reason not to let rot slip by with calling it by its correct name. That doesn’t mean that impeccable logic, sources or analysis will convince them of things that would make them lose work, sleep, money or their freedom. In the case of torture proponents whose actions directly caused the deaths of over 100 prisoners, they could lose more than their liberty.

      • fatster says:

        Well, while in all your slowness you were getting there, I’m entirely too dense to make it to that level. Would you kindly explain it to me? I know there’s great humor there.

        (BTW, I mexed mitaphors for you, either here or on the Rahm thread, by having a trial balloon lay an egg. You didn’t even bust me for it. What a disappointment.)

        • skdadl says:

          Sunstein has written — several times, I believe — about how clever it would be for elite-type persons (like him and everyone else close to the Oval Office) to send little persons out to investigate mysterious new communications tools (like the intertubes), and to throw their DFH denizens off their rebellious stride by … well, trolling, except I’m not sure whether Sunstein has yet caught up with that lingo.

          The stuff he writes to this topic is actually considered scholarly publication. I can never get over that. I had to chew my way through several archives even to go ABD, but then lidderchur is like that.

          Sunstein is also best friends with our Ignatieff. As Sergeant Preston of the Yukon used to say to his faithful dog King, “King, this case is closed.”

        • fatster says:

          Yeah, Sunstein is scary, all right, and I’ve been following him. I just wasn’t making the connection to the alien appearance here. Totally missed any cause-effect. Thnx.

  27. sanpete says:


    You seem to think I work at the DOJ. I don’t. And I’m not a lawyer, so there’s nothing even potentially self-interested in my remarks about the practical reasons for the low standards for professional conduct. What disgusts you in this case is largely your own imagination.

    Margolis applies the standards of professional conduct as they would apply to any other lawyer. Again, he clearly points out the bar committees can very well take action against Yoo and Bybee if they choose to. He doesn’t pretend the DOJ isn’t accountable to outside agencies. Margolis does think a high standard applies to OLC attorneys, but he doesn’t think that high standard is contained in the minimal rules of professional conduct.

  28. sanpete says:


    Here’s some of what Goldsmith said in context:

    “To what extent should OLC be trying to give neutral, independent court-like advice, or should OLC be more like giving an attorney’s advice to a client about what you can get away with and what you are allowed to do and what your risks are, something in between. . . .

    “But, as a general matter, I think . . . I think the answer is that it is clear that OLC is supposed to serve some independent role within the Executive Branch to try to provide independent advice.

    “Now, no head of the office had ever done that fully, and I can give you a lot of examples. And there are many times in the history of not just OLC but Attorney Generals [sic] giving opinions to the President in the history of the country where Attorney Generals [sic] gave advice which was, you know, more of, here’s an argument to cover what you’ve done, rather than my best independent view on the merits. . . . [gives two famous examples, including the case where FDR’s Attorney General, later the chief prosecutor at Nuremberg, wrote a clearly weak and wrong opinion to justify sending battleships to Britain before the US entered WWII]

    “So, I can give you lots of examples like that from different Administrations.

    “I can also give you examples through different Administrations of heads of the office and AGs saying no, you can’t do that. I think it’s extremely difficult to say in the abstract, and this may seem like a cop-out, but when you combine all this with, you know, the threat reports that were being done and everything, I don’t know whether anyone crossed the line. I certainly couldn’t say that myself. I don’t even know what the standard is.” (Margolis 18-19)

    He’s talking about whether OLC attorneys should give neutral, independent opinions or give opinions to support the wishes of their client, the Executive Branch. Attorneys have both a duty to give neutral advice and a duty to represent their client’s wishes. Assuming OLC attorneys give the client neutral advice informally, there’s some question whether their formal opinions that will control how Executive agencies apply the law should also be neutral or whether they should reflect the client’s wishes as far as possible within the law, as an ordinary attorney would do in representing a client. None of what Goldsmith was saying was about torture.

    Margolis nowhere implies some people don’t have to follow the rules.

    • skdadl says:

      sanpete, tell me where the bricklefritzen’ light is between “neutral advice” and “opinions to support the wishes of their client” when we are talking about war crimes? Where?


      “So, I can give you lots of examples like that from different Administrations.

      “I can also give you examples through different Administrations of heads of the office and AGs saying no, you can’t do that.”

      No doubt he can, either way. He’s a lawyer.

      And he is still ducking Nuremberg.

      Margolis certainly does ignore the rules. You have a lot of lawyers who seem to think that international law does not apply to them.

      • earlofhuntingdon says:

        Goldsmith uses familiar phraseology, but never puts a marker down showing where his actions – or those of his team mates – really are on his purported continuum between giving the client whatever he wants and actually practicing competent lawyering. That, it would seem, is the whole point. Rove’s many gambits did something similar, that is, turn facts into opinion. Everybody has one of those, but not everybody has the correct facts.

      • earlofhuntingdon says:

        Being able to argue any side of an argument is a prerequisite for a good litigator. It is a skill that makes for a terrible client counselor, where the job is to help keep the client from overstepping his contractual rights or violating the criminal law. It is a skill that makes a worse judge and a shoddy analyst of arcane (or obvious) and weighty issues of federal powers.

        The issue is not lawyering per se. It is what kind of lawyering is professionally competent and suitable for the employment at hand. Bush’s DoJ, its OLC and David Margolis obfuscate that issue, because confusion always makes it harder to prove a case. That’s practicing criminal defense work, not public government lawyering or enforcing the laws without fear or favor, even against public officials.

        Yoo, more than Goldsmith, is an excellent example of a lawyer who knows the law but is willing to ignore it if it suits his and his client’s authoritarian politics. Bybee is a good example of it, too, but a better example of a lawyer willing to let others make his decisions for him, even when he has supervisory authority over them. Even the somnolent, conservative John Ashcroft found unacceptable Yoo’s willingness to subvert established authority and procedure and to practice politics over the law (let alone his willingness to blindside his supervisors and his agency in legal battles with the White House).

        “But 9/11!” was less a rationale for risky or outrageous legal conduct than it was an excuse for enacting political changes that violated or had no basis in the law.

        • earlofhuntingdon says:

          My comments have little to do with the state of mind of the DoJ lawyers I mentioned. They have more to do with their documented behavior. But hey, whatever line of argument distracts from the thread is usually trollworthy.

  29. sanpete says:

    “Sophistry” is a term often used by those unable to make a rational response to facts or argument.

  30. earlofhuntingdon says:

    Sophistry is often used by those too reliant on repetition, overgeneral reasoning, over subtleness, casuistry, evasion and fallacy.

  31. sanpete says:


    I don’t understand your question. Neutral advice explains what the law is as candidly and evenhandedly as possible. An opinion written in support of a client’s wishes may be quite one-sided and not neutral. That’s true no matter what the subject is.

    Please quote Margolis where he ignores the rules.

    The standard view of international law in the US is that it applies as enacted through US legislation adopting it. Margolis does consider how international law applies.

    • pdaly says:

      Mentioned many years ago but worth repeating now, Yoo/Bybee’s “advice” (neutral or otherwise) undermined the individual soldier/CIA officer/prison guard’s option to ignore an “illegal order” by his or her commander to waterboard, etc a prisoner.


    • skdadl says:

      I’m well aware of that. I think everyone here is. And that’s a reason to be sad, that the guys who recognized the incompetence, the corruption and worse in the first place will still cover for the institution.

      I wish all my friends here a good night and a wonderful wake-up tomorrow — we are having the most incredibly beautiful spring here, and in spite of everything, I think we have reason to hope for … well, to hope for teh daffodils, anyway.

      • Petrocelli says:

        Hey young lady howsabout BBQ-ing some marinated Lamb, instead of Trolls or their ilk ?!!

        *Ducks and runs to Grill*

        • demi says:

          I’m holding out my plate, if not my hope. Okay, I’ll hold out for hope too, and also.
          Hi ya Mr. P. I can smell it from here.

        • Petrocelli says:

          Passes to demi a heapin’ plate of marinated Lamb, Hummus, Greek Salad[raises toast to katymine] and Spicy Rice.

          EDIT. And also Strawberry Margarita, cuz like skdadl sez, it’s a glorious spring day.

        • demi says:

          Toasting also. Great spirit(s).
          I’ll return the plate with some fresh home made stew and home cooked bread.
          (Katy would have loved this, ya know.)

        • Petrocelli says:

          Thenk ya !

          If anyone sees Elmore & the family, please pass on my regards. Crete has another Angel.

          Dinner calls … smooches to demi.

        • skdadl says:

          Little darlin’, it’s been a long proroguin’ winter …

          Och, Petro, I don’t know why, but I am feeling absurdly happy these days. I don’t quite dare drag the hibachi outside yet, but marinated lamb is very tempting … I took my oldest cat out today on a leash, so that she could feel the grass beneath her feet once again. Some things work, eh?

  32. sanpete says:

    earlofhuntingdon @ 98

    You speculate very freely and confidently about other people’s states of mind. What evidence do you have?

    • Hugh says:

      There is nothing particularly controversial in what EOH was saying. Perhaps you were napping through those years but for those of us who weren’t it is a fair summation. There are reasons why Addington, Scooter, and Cheney chose to work through Yoo and not directly with Bybee, his superior and the then head of the OLC. Similarly, Ashcroft was more interested in not having anything blow back at him than whether it was illegal. If you remember the famous hospital scene, Ashcroft punted to Comey because Comey was challenging the wiretap programs. Before that, Ashcroft had been happy to sign off on them.

  33. sanpete says:


    You simply assume they’re covering for corruption. Their arguments don’t show that.

  34. sanpete says:

    pdaly @ 97

    I would think the CIA would have stopped any interrogator who had doubts about whether the methods were legal. The element of specific intent in the legal definition of torture would have made it dangerous legally to try to get any interrogator to do anything he had doubts about.

  35. Gitcheegumee says:

    I REALLY need a new set of eyeglasses.

    I thought the title of this thread said,”We all benefited” from Margolis’ torture.

  36. Hugh says:

    If the Spanish Inquisition had been run out of the DOJ, it would have been OK with “Whitewash” Dave. What is so stunning about this is that if Margolis couldn’t find anything actionable in what Yoo and Bybee did on torture A) he isn’t going to find anything wrong anywhere and B) he has acted so dishornorably and unprofessionally that he should be disbarred.

  37. rosalind says:

    torture-related: latimes up with a rather under-cooked article on Clarence Thomas’ views of what constitutes torture – “Torture memos resemble Clarence Thomas’ way of thinking”

    The Supreme Court justice has a history of dismissing prisoner brutality. And it’s his former law clerk who was investigated for authorizing harsh interrogation tactics as a Justice Department lawyer.

    interesting bit on the Hudson Supreme Court case and Justice Blackmun decrying the Thomas & Scalia dissent:

    Thomas and Scalia dissented and said Hudson did not have a “serious injury.” Justice Harry A. Blackmun took them to task for this view. If adopted, it would “place various kinds of state-sponsored torture and abuse entirely beyond the pale of the Constitution,” Blackmun wrote.

    (emphasis mine)

    • Citizen92 says:

      Notably Jennifer Koester and James Ho are omitted from LA Times’ accounting of the Clarence Thomas torture alums club. Everyone here knows Koester. Ho wrote a memo which Yoo footnoted in his torture work. Ho’s memo was listed in DOJ’s Vaughn list as something that would not be handed over. Ho is now Texas Solicitor General.

      (Stephen Bradbury clerked for Thomas too.)

  38. sanpete says:

    Hugh, you may be assuming from what you read at sources you find congenial to your views that everyone agrees with you, but in fact the claims eoh made are controversial and require some evidence. I don’t believe Margolis obfuscated anything, let alone did so to make confusion to make something else harder to prove. He didn’t need to. But eoh is free to give some examples of what he thinks Margolis obfuscated and how they supposedly show the motive eoh has divined.

    Yoo and his supporters would of course disagree with eoh’s claim that Yoo was willing to ignore the law if it suited his and his client’s views. I don’t accept Yoo’s analysis, but I don’t think he ignored the law either. He does appear to have been willing to give a one-sided view of it in the opinions he wrote.

    That Bybee was willing to let others make his decisions for him isn’t evident at all. He probably agreed with the views Yoo developed for the most part. He had issues with the last-minute addition of the common-law defenses, as did other OLC lawyers, but signed off on the memos because it was unlikely the additions would matter and the memos were needed right away.

    A sufficient reason for the White House to work with Yoo directly was that he was the one doing the legal work, not Bybee or Ashcroft or whomever. He may well have been selected because of his views.

    Ashcroft didn’t punt to Comey. Comey had already made the decision, and Ashcroft merely refused to interfere.

    • burnt says:

      You know, I’ve never fed a troll until now, but I just can’t help myself.

      Yoo and his supporters would of course disagree with eoh’s claim that Yoo was willing to ignore the law if it suited his and his client’s views. I don’t accept Yoo’s analysis, but I don’t think he ignored the law either. He does appear to have been willing to give a one-sided view of it in the opinions he wrote.

      Yoo didn’t ignore Youngstown? He didn’t ignore the Inquisition? He didn’t ignore US martial law from the Spanish American War? He didn’t ignore Sheriff James Parker from Texas? Really? Really? He didn’t ignore any of these?

      I guess it just means we’ll have to disagree on what ignore means.

      Cheers. Off to eat some stinky cheese, tasty horsedooveries, and drink some fab wine.

      • Hugh says:

        Thanks, burnt, I was about to point out Youngstown too. There are also all of the Nuremberg and Japanese precedents as well. sanpete is being extremely disingenuous. The White House made the decision to torture and then sought legal cover for it. emptywheel has documented to death how both the decision and the use of torture preceded the ad hoc legal justification for it. To hear sanpete, it is like these people were considering close questions on obscure points of law. But torture is, or was until these thuggish clowns came along, about the most settled issue in the legal canon. We tried and convicted Japanese who had waterboarded American and Allied prisoners. sanpete, like so many others, is inviting us to turn our minds off, drink the koolaid, and above all disbelieve our lying eyes.

  39. sanpete says:


    “Maybe you could enlighten us on what best practices are when it comes to torture.”

    Hee haw!

    Whether there was independence or candor in the case of Yoo’s work doesn’t alter the general aim of the DOJ to preserve its independence and freedom to give candid advice.

    • PJEvans says:

      Whether there was independence or candor in the case of Yoo’s work doesn’t alter the general aim of the DOJ to preserve its independence and freedom to give candid advice.

      Then it’s too f*cking bad that they aren’t doing that.

      Which you are very deliberately walking all around, because if you ever admit what’s going on you’ll have heart failure. You can’t give a straight answer to any question that’s asked, you can’t even discuss anything without weaseling, so WTF are you here?

  40. qweryous says:

    Reply feature not working?

    In reply to rosalind @123, and Citizen 92 @127:

    “torture-related: latimes up with a rather under-cooked article ”

    What a nice way of putting it.

    After reading this it made me wonder-if I were an enterprising reporter covering this story- would I consider this complete- or perhaps some additional followup might have produced… to make the story more complete.

    “Notably Jennifer Koester and James Ho are omitted from LA Times’ accounting of the Clarence Thomas torture alums club.”

    The club’s membership is sadly under reported, there are far more than Koester and Ho needing addition. It seems a shame they may not receive all the fame and credit that they are due, but that would certainly be a start to include Koester and Ho. This omission is not yet addressed in the comments at the L.A. Times. Perhaps it is time for some additional commentary over there.

    Preview not working?

  41. qweryous says:

    Reply to fatster @112 and pdaly @129:

    Some other names are missing- of the same nature as Margolis.

    Can’t find where I put them- remembered thinking as I kept running across this that it was curious.

    IIRC it was in researching the clerks of the various judges, and etc that this happened.

  42. JohnLopresti says:

    ew had mentioned the missing documents. I wonder how Margolis factored the evanescence of key Vaughn index records into his summary documentation. There are too many questions about the qualtiy of record-keeping yet.

  43. sanpete says:

    Margolis wasn’t someone I’d expect to find in Wikipedia until a couple weeks ago. I doubt you’ll find many Associate Deputy Attorneys General there.

  44. qweryous says:

    In reply to pdaly @135

    NO shit. WTF do we know.
    People that go to big name schools- Maybe.
    People that go to Ivys -Probably.
    People that graduate from the top law schools in the country- Likely.
    People that pay sanpete to come here and shit all over- Won’t be found.

  45. qweryous says:

    In response to pdaly @ 133

    Thanks for that info.

    Will check out a few when I get a chance.

    The curiously missing were basically missing from the search engine results- not just wiki…

  46. orionATL says:

    just in case it didn’t occur to you all,

    folks like sanpete draw all attention to themselves.

    folks like sanpete control a discussion by keeping all discourse focused on countering them in some way or another.

    i can’t count the number of weblog discussions that have been shortcircuited by folks like sanpete.

    males seem especially prone to respond to this ploy.

    • PJEvans says:

      Ii was hoping freep would show up and take care of it, actually. It was so f*cking obviously a troll.

  47. orionATL says:

    sanpete shows up at #33

    and sets the agends/controls the discussion past #133.

    what positive anslytical work might have been accomplished by ignoring sanpete’s sophistry.

  48. sanpete says:

    Goodling’s in Wikipedia because of the controversy she was involved in, of course. Margolis is new to that, and he’s not a primary player like she was in her controversy.

    Or maybe it’s some conspiracy!

  49. orionATL says:

    the great victory the opr report represents

    is that the report itself and its “supporting documents” are now available to the

    margolus’ actions may be contemptible,

    but the report and some of its supporting documents are now available to the public.

    furthermore, what data is missing is very incriminating.

  50. sanpete says:

    Speaking of insular institutions, this place must not be used to having more than one view expressed. Pretty sad how many find it maddening to see a view they disagree with and can’t deal with it in a rational, civil manner. Then there are the paranoics. Many of you no doubt think of yourselves as different from those ignorant conservatives who are so close-minded. Believe me, you’re no different.

    Burnt, you’re free to mean whatever you like by “ignore,” but there’s a difference between not taking something into account in reaching a view and not mentioning it in an expression of that view.

    Hugh, the fact that you can’t understand any view but your own doesn’t imply that others are being disingenuous. You completely misrepresent the views you oppose. That’s disingenuous.

      • DWBartoo says:

        EOH, there is no reason evident, merely polemics, screed and bombast.

        Talking at, rather than, to others, sanpete has hijacked to his unreason, too much time and far too much thoughtful consideration, as it is, as orionATL @ 141 suggests, sanpete has con-trolled and short-circuited this discussion, this is the “sanpete thread”, and a loss to reason and understanding, except as illustrtative example. sanpete’s games are malicious (in both senses) and cynical.

        There is no communicating with those who are agenda-driven, and intent on hearing nothing, addressing nothing, and expressing nothing but the opinions and hackneyed drivel of others. With a Rotunda-like deontological “ethical” separation of what happened (torture) that is, the consequence, from the reasonable, proper, and pristine minimal standard, of “action”, as he would have it, that motivated all actors in the process of allowing and “legitimizing” that torture, which sanpete will not even admit to, directly.

        He is a most pathetic adversary, EOH, worth no one’s time or effort… even to tweak.


        • burnt says:

          I look at it this way. There really wasn’t that much meat to work with with respect to the letter supporting Margolis. Most people had their say prior to the arrival of the geographical center of Utah. No fresh threads showed up during the day which typically means EW or Bmaz are working on something. We were waiting, anticipating.

          Why not bring up several specific things relevant to the torture discussion and have central Utah sidestep (I mean ignore) them? Yes, it’s feeding the troll, but he/she/it is not really derailing the discussion. The discussion was complete. People were just waiting for the next substantive thing to appear before moving on. Engaging the troll was just a bit of sport until something else came along.

          There’s no harm in that. I agree it’s not productive, but in this case I don’t really believe that the emptywheel acolytes really wasted much time on oh-so-scenic Utah.

        • DWBartoo says:

          There is much in what you say, burnt.

          sanpete’s trollish presence here in no way lessens the value of what Marcy and others tried to share with him, and, indeed, the very quiet of the day portends a flowering of immense and gorgeous profusion soon.

          Most of those here in attendance are noted for their substantial contributions to the larger effort, yours, burnt, clearly among them.

          The rest of us are gifted with a rare education of inestimable value.

          And, after a brief exposure to the inimitable sanpete (unoriginal as he might be), many, like myself, likely choose to leave him to his self-amusing antics and go and do other, better things.

          I was not too surprised to find him, however, still at it hours later. He seems such a determined sort.

          While I find little sport in the baiting of trolls, the tedium of the process and all, I understand that some might well consider that fattening him up for freep could offer diversion and some purpose to the process.

          Perhaps he will tire of our continuing insistence that even lawyers cannot do some things with impunity, as sanpete is sanguine with everything, troubled by nothing and most anxious to have all this soon become history.

          He is most happy to go willingly into that night of embracing deceit and depravity, and annoyed that none will join him.

          This site represents everything he despises … and fears. I am only surprised that he has not pulled the patriotism “love of country, above all else” card as his deck is stacked with Rotunda’s “philosophy” of “unique” standards so low that even a snake in a wagon-wheel rut (as Hightower might put it) towers above “standards” of that “unique” stature.

          sanpete claims to agree with Obama, might we then wonder if Obama would agree with sanpete?

          Obama might wish to reconsider a number of things, seriously and deeply, if such as sanpete speak “accurately” for him.

          Such “standards” as sanpete extols AND exhibits say far more about him than he may possibly imagine.

          burnt, I thank you for the ready accessibility to primary material which you have provided us and appreciate your response to my comment.

          I look forward to what I hope will be your increasing presence here.


  51. Hugh says:

    OK, no more trol feeding.

    I noticed the lack of a wiki on Margolis when his name first came up. I too was surprised by the lack of a professional bio at DOJ. Googling I found the connection to Goodling and Sampson. He has also been described as a former prosecutor and a Washington fixture. This last often translates into fossil.

  52. sanpete says:

    “My comments have little to do with the state of mind of the DoJ lawyers I mentioned.”

    Sorry, I didn’t realize there are two earlofhuntingdons. The other one attributed to Margolis the motive of trying to make things harder to prove, to Yoo the motive of fitting authoritarian politics, and to Bybee a willingness to let others decide for him.

    “Disingenuous must be a familiar concept.”


  53. Hugh says:

    Just messing around there is this:

    David Margolis is a career Associate Deputy Attorney General and the highest-ranking career attorney in the Department [DOJ]. 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.


  54. Hugh says:

    So in theory he should have been around and aware of what was going on with the Bush USAs scandal either bringing concerns to McNulty’s attention or being McNulty’s eyes and ears on the affair. Says a lot that he flew under the radar in that scandal while at the same time being so centrally placed to see it.

    • bobschacht says:

      Just put his name into the search engine at DOJ and you get 84 references. Lots of material to work with.

      Didn’t Goodling and McNulty go running to Margolis when they realized they might just be in trouble? He kept them out of jail, too.

      Bob in AZ

    • emptywheel says:

      Remember that when Goodling got in trouble, she ran to him.

      He was actually interviewed by HJC in the scandal, not least bc he was consulted on who to fire. He supported the firing of Margaret Chiara (maybe he’s anti-gay?). But he also supported the firing of a LA or MS USA, which recommendation was not adopted.

      And also remember that Fitz reported to Margolis on the Plame case after Comey left.

    • earlofhuntingdon says:

      The art of being an apolitical master bureaucrat – Bureaucratus maximus, a species similar to but which does not interbreed with Cheney fuckuensis – is to be apolitical.

      Bureaucratus‘ attribute is to be able to read the tea leaves, the tide, the approach and direction of the political storm and go with the flow as if another priority, a contrary precedent or practice, or a set of facts never existed and couldn’t possibly exist.

      As with other highly adaptable species, such as the date that means absolutely, positively everything they say (just not for very long), Bureaucratus anticipates what their bosses want and provides it with glee, leaving the limelight to others. It avoids the highest offices and formal rewards, preferring the underbrush and the leavings of top predators. Change the boss or priorities and its glee remains, but Bureaucratus produces different droppings, as if an elk had become a goose, a trait that makes tracking them through their dense habitats frustrating.

      Bureaucratus is master is of the informal rules. It knows by heart the paths others follow (without themselves being aware of it) and the associations they make as they travel, mate and forage or hunt. It can see them as if they were lit threads, which makes its own tracking ability formidable.

      The crisscross and doublecross are Bureaucratus‘ usual means of interaction with others, but never with the boss, an exception most bosses confuse with direct and honest dealing. Its habitat is any large bureaucracy, public or private, or other jungle. Unlike a host of endangered species, such as Attorney honestus and Congresscritter competentus (both unseen in Washington for over a decade), Bureaucratus is flourishing.

  55. sanpete says:

    Wow, what a zoo.

    Instead of getting all twisted up in conspiracy theories and mythology surrounding Margolis (soon he will have saved OJ from the electric chair), you really ought to start by examining the memo he wrote carefully and with as much of a level head as you can manage, dealing with it on its own merits. You folks are so wound up in your preconceptions you can’t imagine that he might actually be right, that the preponderance of the evidence doesn’t show misconduct under the rules. That doesn’t mean Yoo wasn’t wrong. In fact Margolis roundly criticizes him and regards his work as a stain on the DOJ. But to fail to meet the standards of professional conduct you have to do something more than write an unbalanced opinion, even if it’s about torture.

  56. sanpete says:

    “maybe he’s anti-gay?”

    Of course! That explains it. We already know Margolis is an evil man with dark motives and no soul, so why not? That talk about poor performance was only a cover! Maybe he’s also a misogynist!

    DW, you have severe reading problems if you really believe I’ve said or implied most of what you attribute to me. You need to learn to understand views different than your own.

    It’s Sunday. I feel like I’ve stumbled into a religious cult and committed blasphemy. It’s like a compound where the faithful have gathered. At first encounter, everyone seems normal enough. Then you say something out of line . . . . It illustrates why there is such polarization in politics. Like-minded people get together and, unwilling or unable to hear other views, work themselves into elaborate beliefs undisturbed by any opposition. On the odd occasion when a different view does show up, it’s dismissed as trollery, since it isn’t possible for other views to be honest. It’s a mirror of the very same thing that goes on with the extreme Right. Go post some reason it was wrong to invade Iraq at a right-wing site and you’ll recognize versions of all the same reactions.

    That’s not to say there aren’t people here (and at right-wing sites) capable of reasoning, and doing it very well. It just can’t go very far into criticism of faith claims before it all collapses into defense mechanisms. Instead of dealing with arguments on their merits, it shifts quickly to talk about who is making the arguments, what his motives must be, that he’s malicious, that he must be sent by one of the evil ones, etc. The deflection keeps those faith claims safe, if not sound.

  57. Gitcheegumee says:

    I have been reviewing some older articles on the DOJ firings of Iglesias et al, and came across an extremely interesting thread from ’08, regarding Mary Beth Buchanan,Margolis, and Kyle Sampson.

    Perhaps some here will find it as intriguing as I did..or maybe not.

    Nonetheless, the commentaries are prescient,imho,at the thread’s end:

    Cafe Talk | Talking Points Memo | DOJ IG Report Implicitly Questions Wecht Prosecution …E-mail records between Margolis and EOUSA Director Mary Beth Buchanan in … and Michael Battle, and Associate Deputy Attorney General David Margolis to …
    tpmcafe.talkingpointsmemo.com/…/doj-ig-report-implicitly-quest.php – Cached

  58. MarkH says:

    Thank God Scalia and Thomas chose the plain read meaning of the word punishment chosen from the English Laws of the 17th century. Somehow that seems so appropriate to the Bush era. heh. It might even be considered progressive thought relative to the 14th century behaviors we saw from Bushies.

    But, where I take the most issue is that they choose a sterile almost imaginary idealistic view of words while ignoring the flesh & blood, broken bones and damaged brains the Bushies and the prisons so often produce.

    It’s a cute way to distance yourself from the realities of the effects you produce with fingers crossed. And to think they promised to uphold stare decisis. What a prank they’ve pulled on us. I’m not laughing.

  59. thatvisionthing says:

    Sunstein is also best friends with our Ignatieff. As Sergeant Preston of the Yukon used to say to his faithful dog King, “King, this case is closed.”

    This has to be perfect. It made me laugh.

    (Now I have to go back through 178 comments to figure out what y’all are talking about.)

    Plus I don’t know what this will look like when it posts, but the preview shows the date of my comment as September 10th, 2007, at 10:32 am. wtf? Moderator?

Comments are closed.