Ronald Rotunda: Yoo Sent Email to Someone Else

Ronald Rotunda, having received a copy of my post suggesting that he was the professor whom Yoo emailed looking for help on common law defenses, has emailed to say he did not correspond with Yoo at all on these issues.

As you’ll recall, last month, I pointed to a section of the report describing Yoo asking a law professor how common law defenses work in criminal law (the correspondent is labeled a law professor in one of the drafts of the report). Based on the fact that only one law professor, Ronald Rotunda, was listed in the Glossary of Names included with the report and only one law professor appears in the unclassified sections of the report, I suggested that Rotunda appeared to be the person whom Yoo emailed. In addition, OPR sent Rotunda a draft of the report last March which, given the confidential nature of the investigation, seemed odd short of his involvement in the report itself.

But via email, Rotunda has said he was not the one to whom Yoo sent that email. With Rotunda’s permission, I’ve included his direct comments below (though I have grouped them so that his responses to my questions are together).

At first, it seemed that Rotunda was denying having corresponded with Yoo directly about torture.

I do know that no one ever sent me emails or other communications about the torture memos, and — if they had — I would have said what I have always said: our government should not use waterboarding.  While I do not believe in discipline for the lawyers involved (for reasons I stated in my letter), I also do not embrace those memos.

When I noted that the email in question was not about torture memos but would have appeared, instead, to be a professional request unrelated to such issues (I quoted Yoo’s email as described in the OPR Report), Rotunda repeated that he had not received the email.

I never saw that email or responded to it until you all brought it up a few days ago. I hope that is clear.

[snip]

And, to be clear, I never responded to Yoo’s email because I never received it. He sent it someone else.

I apologize to Rotunda, then, for suggesting he was the one with whom Yoo had that email exchange. I will note Rotunda’s comments in the original post.

Rotunda’s explanation that he was not Yoo’s email correspondent presents another few puzzles, such as why OPR sent Rotunda a draft of the report in the first place, way back in March 2009.

I had a copy of the draft OPR report because the OPR sent it to me so that I could give OPR my opinion. After I sent my letter, OPR asked me to destroy the draft OPR report.

When I asked why DOJ would have chosen to send him the report for his opinion, Rotunda suggested that that might be because he has done work for DOJ in the past.

Over the years (actually, decades now), the Department of Justice has retained me on various matters.  I don’t think I have written anything that was sent to OPR until this time.  OPR sent me the material so that I could review the draft.  That I know.

[snip]

As for what I’ve done in the past, that would be confidential.  What has been publicly revealed (so there is no confidentiality requirement) is that many years ago I served as an expert witness for the Department of Justice in a fraud case. I really don’t remember the details, but it was at least twenty years ago. (Sadly, that proves I’m no spring chicken.)

It also raises the question of why Rotunda’s name was listed in the Glossary of Names included as Appendix C of the report.

I suppose my name was listed in the Glossary because I wrote the letter.  You probably should ask OPR why my name was listed. I don’t know.

[snip]

What I don’t know is why I’m in the Glossary. OPR should know that.

I have asked DOJ for more explanation of why OPR sent Rotunda a copy of the report last March and will let you know what they say.

Meanwhile, that leaves the question of who Yoo consulted to come up with his crappy defenses section unanswered.

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82 replies
  1. Leen says:

    Rotunda “I had a copy of the draft OPR report because the OPR sent it to me so that I could give OPR my opinion. After I sent my letter, OPR asked me to destroy the draft OPR report.”

    Destroy?

  2. Citizen92 says:

    Presumably Mr. Rotonda had the appropriate security clearance to review the draft copy of the report back in ’09?

    Also spend a few minutes musing if Rotonda was playing a semantic shell game regarding the email, ie, “I didn’t receive it, my secretary did.” But on reflection I kinda doubt that, especially if he sought you out to “set the record straight” (ahem, ahem)

  3. bmaz says:

    In a way, this actually makes more sense to me. While Roturda was a perplexing choice for a critical opinion on the treatment of trial based affirmative defenses, he has long been considered expert on general professional responsibility issues. I can see OPR seeking his input in the investigation and drafting of their report.

  4. DeadLast says:

    “no one ever sent me emails or other communications”. Is the word “sent” of any particular importance?

  5. Citizen92 says:

    Come to think of it, I kinda wonder what other (non DOJ) attorneys around DC may have received a copy of the report to review. And what sort of limitations would attach to public disclosure.

    But I digress, somewhat.

    I found this:
    http://www2.nationalreview.com/dest/2010/02/23/pinionletterrebybeememomay42009.pdf

    Which is apparently Ronald Rotunda, after having read the OPR draft, writing to DOJ to “defend” John Yoo — about the same time Rotunda was hosting Yoo at Chapman University School of Law.

    The letter answers my earlier question – Rotunda notes the draft he is responding to by letter was a ‘DOJ unclassified draft’ repeatedly. (Doesn’t necessarily mean he didn’t see a classified draft too, but that’s speculation).

    Anyhoo, I read somewhere Rotunda likely received a copy of the report to help him defend Yoo in the media. Apparently the Rotunda letter (referenced above) was picked up by multiple conservative sites as proof of Yoo’s innocence.

      • bmaz says:

        Yeah, I dunno. You have to wonder about what the Doy and Dee Distinguished Professor Rotunda was doing being listed in Appendix C, the glossary of names, to the Final OPR Report. He claims he was not solicited by Yoo with “that email”; perhaps another email? I don’t know, but Rotunda’s disclaimers do not appear to rule out any contact by the offending OLC attorneys.

        Further, if he was forwarded a copy by the OPR to get “his opinion”, that 32 page pile of Yoo suck up spit was a fairly preposterously jerky response.

        There are several aspects of Rotunda’s involvement here that are simply not credible and cannot be harmonized with his attempted and somewhat lame disclaimers.

  6. klynn says:

    Kyndra Rotunda has some interesting work out there:

    This article analyzes and discusses the procedures the United States follows in Guantanamo Bay and compares those procedures to the ones that prisoners of war (“POWs”) would receive in accordance with the Geneva Convention Relative to the Treatment of Prisoners of War. 4 It examines four particular areas: Combatant Status Review Tribunals, Annual Review Boards, religious accommodation, and camp discipline. Whether or not enemy combatants held in Guantanamo Bay are entitled to POW protections, they are receiving substantially the same, or in some cases greater, procedural protections than the Geneva Conventions require for POWs.

    Here’s a bigger look.

  7. JasonLeopold says:

    Given Rotunda explanations, this is what he had to say about the OPR probe last August, after he read the report. I left this comment on the original post. My own two cents, as it was posted in the original, is obviously negated by his comments to Marcy.

    Last August, Rotunda spoke to lawyer/right-winger Jennifer Rubin about the OPR report, which he had already seen. Seems like he did help write the torture memo, if he is referring to himself in any way here.

    Ronald Rotunda, a professor of law at Chapman Law School and a specialist in ethics, was consulted by the Justice Department on the OPR’s investigation and cannot comment on its specifics. He does, however, express bewilderment that dozens of pages of legal analysis in which direction is carefully given as to what “may” or “might” constitute torture has now been converted into the basis for prosecution. “I can’t imagine you would discipline someone who goes through everything methodically.” He explains, “If you don’t like the particular policies, then change the policies.” He draws an analogy with the attacks on free speech during the Vietnam war and McCarthy eras in which lawyers with particular views were demonized and threatened with loss of their professional licenses.

  8. earlofhuntingdon says:

    Given Rotunda’s reputation, asking for his opinion on consequences for the laywering done by Yoo and Bybee was a safe bet for anyone, such as Margolis, who did not want there to be any. I wonder who else was asked for an opinion, and whose opinion they avoided getting because it wasn’t what Margolis or the DoJ wanted to hear.

    • MrWhy says:

      If Rotunda’s name appears in the glossary bc OPR asked him to review the report, shouldn’t others asked to review the report also be listed in the glossary?

      • emptywheel says:

        Right. Which is one of the reasons that’s a bogus answer.

        Rotunda refused to even suggest why he was in the glossary. DOJ is trying to suggest it’s bc he read the report, which as you point out doesn’t make sense. Furthermore, the request that DOJ made that he destroy the report makes it pretty clear his review, for whatever purposes, was for OPR, not for Estrada. His letter in response was for Estrada, but that’s different.

  9. maryo2 says:

    Page 33/203 of the OPR Report, at the end of the final two lines, it looks like there is space for 14 characters:

    toxxxxxxxxxxxxxxUniversity law
    how common law defenses were

    Looking at all the law schools in the US that have the school name first followed by the word “University”, I came up with only one with 14 characters:

    xGeorgexMasonx

    • maryo2 says:

      14 spaces continued – Looking at Findlaw’s list of colleges with law schools, these are the only possibilities on that list:

      to Oklahoma City University law
      how common law defenses were

      to George Mason University law
      how common law defenses were

      to Ohio Northern University law
      how common law defenses were

      to Texas Southern University law
      how common law defenses were

    • Mary says:

      So is the reference to the university the prof was at – at the time of the advice, or to the university the prof was at – at the time of the OPR report?

      I guess that shoots My Favorite Maltan (ambassador) guess out of the water. At the time of the advice he was at the much too long and outo f order *Catholic University of America* (which had some DC locale benefits if some face time follow up was needed for things that you don’t want to reduce to email), although by the time of the report he would have been at Pepperdine, which is pretty close.

      Oh well, how could I harbor such thoughts. After all, while at CUA, Kmiec was really clear about how he would make sure to incorporate faith and justice and stuff into advice

      http://www.law.edu/Alumni/CUAlawyer/issues/winter2002/newteam.cfm

      At Catholic University, we have the special opportunity to combine the gift of faith with the work of reason in a pre-eminently vital location: Washington, D.C.

      Just consider the first year course in contracts. The Catholic emphasis of the study of this course explores not just how contracts are formed or what remedies exist for breach, but also the justice of keeping one’s promises and paying a just or family wage, for example. By contrast, most law schools have become entirely utilitarian and consequentialist – believing that ends justify means – and they’ve cast aside first principles, the most prominent of which is the belief that moral reality can be known and understood by men and women.

      Yeah- I mean a guy who is so sure that you can’t teach law from a perspective of the ends justifying the means – why . . . he almost doesn’t sound like the same guy who says you have to cover up torture and criminal act memos discussing Executive Branch activities. Still, he wouldn’t be giving any advice on defenses against torture claims – I mean, just because he believes that whether or not the President is above the law rests on whether or not there is what he considers a “grave emergency” – you know, like a necessity.

  10. emptywheel says:

    My biggest question about this (and I have quite a few) is WTF OPR decided to send this out. This was supposed to be confidential, Congress couldn’t get a peak, but a somewhat random lawyer did get a peak? At a time when OPR has already been scolded because it has referred to too many outside views on this?

    REally?

    Any land in FL you want to sell me, cause I ain’t buying that either.

    • MadDog says:

      I would raise the theory that Rotunda wasn’t the only outsider to get a preview copy for comment.

      And yes, why?

      And did Margolis do the same with his “review” (not counting the copies made available to the targets)?

    • bmaz says:

      A fantastic question about a curious statement by Rotunda. If he was just solicited by OPR as he infers, then he wrote one of the most scandalously asshole reports back imaginable. For a guy that bleats about not supporting torture, he sure goes out of his way to support torturers. Something is very off about Rotunda and his involvement here.

        • MadDog says:

          Right, and why, for the first time in the decades he has done confidential stuff w/DOJ…

          I read his statement to you a little differently:

          …As for what I’ve done in the past, that would be confidential. What has been publicly revealed (so there is no confidentiality requirement) is that many years ago I served as an expert witness for the Department of Justice in a fraud case…

          (My Bold)

          Parsing this, it seems he is only acknowledging stuff that was publicly revealed as taking place “many years ago”.

          I don’t read his statement to mean that he hasn’t had more recent work with the DOJ that still hides under the cover of “confidentiality”.

          Weasel-wording and lawyers; who knew? *g*

          • emptywheel says:

            No, that’s what I understand too.

            But that tells us two things.

            1) In all his years of association w/DOJ, he has never before reviewed an OPR report.

            2) He has been doing confidential stuff w/DOJ more recently.

            So I repeat, why did he review this? It’s not the norm for OPR, it’s not the norm for him. So if it is true that he didn’t have this exchange w/Yoo, then it raises far more questions about why he would be reviewing this.

            • MadDog says:

              I’d be very interested to know just who in OPR made the decision to have the report reviewed by Rotunda.

              Does it imply internal OPR warfare?

              Given Rotunda’s background and longstanding influence in rightwing judicial circles (BFF with Meese, Bork, Starr, Scalia, Hatch, et al.), if I had to guess is that the resident OPR Federalist Society busybodies decided that they needed to call in stronger outside backup to sink the OPR report.

              • MadDog says:

                Thanks to Citizen92, I’m s-l-o-w-l-y connecting the dots. Bear with me as I stumble along. Duh! *g*

                Based on my reading of Rotunda’s critique letter, my take is that the OPR sent a draft of their report at the insistence of Yoo’s gunslinger, Miguel Estrada:

                …Miguel Estrada of Gibson, Dunn & Crutcher has asked me to evaluate that report because of my expertise in Constitutional Law and Legal Ethics…

                This puts a different take on Rotunda’s involvement. OPR didn’t want to or initiate the sending of the draft to Rotunda.

                Federalist Society birds of feather flocked together. Yoo’s hired gun hired another hired gun.

                As in, help us out here Brother Rotunda.

                • bmaz says:

                  That is possible, but not established at all by that reference in Rotunda’s “letter” and seems inconsistent with what Rotunda told Marcy. Why would OPR do that at Estrada’s request? There are a lot of questions raised by Rotunda’s involvement here and incredibly inconsistent and, frankly, assertions that bear a distinct lack of credibility and veracity.

                  • MadDog says:

                    I think the evidence is more than possible. Probable comes to mind. I smell lawyerly weasel-wording in Rotunda’s words.

                    A simple test. Compare and contrast Rotunda’s statement to EW:

                    …OPR sent me the material so that I could review the draft…

                    With his own statement in the critique letter:

                    …Miguel Estrada of Gibson, Dunn & Crutcher has asked me to evaluate that report because of my expertise in Constitutional Law and Legal Ethics…

                    Assume both statements are true. Now, which preceeds the other?

                    Could it be that Estrada asked Rotunda to “evaluate the report” after Rotunda had already received it from OPR for no apparent reason? Possible, but highly unlikely.

                    Or is it more reasonable that Estrada insisted that Rotunda get a copy to assist in Yoo’s defense?

                • emptywheel says:

                  That’s what DOJ is trying to tell me, to distract me from the fact that Rotunda’s name shows up in the glossary. It’s pretty clear they are all trying to cover something else up, which may be as simple as the incomplete redaction that still, IMO, suggests that Rotunda IS the person who got the email (again, he’s the only law prof in the glossary, that’s the only ref to a law prof in the entire document).

                  So I think more likely possibilities than the story they’re all telling are:

                  1) that email did go to Rotunda’s email address
                  2) Rotunda is involved in more substantive way elsewhere in the document

                  That’s about what makes sense.

                  Keep in mind, too, that they got this email. I wonder now if it was an internal email. If ROtunda was doing classified work for DOJ, did he have a DOJ email address?

        • Mary says:

          Well, there is this:

          http://www.chapman.edu/law/faculty/rotunda.asp

          From early June, 2004 to May, 2005, he was the Special Counsel to the General Counsel of the Department of Defense.

          So from right after Abu Ghraib broke – hmmm wonder what kind of special counsel Haynes needed then? Especially on ethics issues, especially since all the JAG officers had signed out on objecting to the OLC authorization that Haynes used for Rumsfeld’s torture authorizations. Hmmmm. Golly, if only I could think of some way his work at DoD might end up pulling him into the OPR investigation into the torture advice.

          Nah – I go nuthin. /s

          I’m guessing he was involved in matters relating to the March 2003 issues and maybe caught up re: some of the Bradbury torture work and that’s what they were hitting him up about. Maybe. Just spec though.

            • Mary says:

              That makes it a REALLy private board, doesn’t it? *g*

              OTs
              Britains ex-MI5 head says the US was fibby fibby fibby about torture
              http://news.yahoo.com/s/ap/20100309/ap_on_re_eu/eu_britain_torture
              but also lays some lines on Britain getting info that was purportedly from KSM and maybe they wouldn’t have it if he hadn’t been tortured

              Robert Baer has good piece up on the Dubai murder.
              http://news.yahoo.com/s/time/20100309/wl_time/08599197058600
              How’s that gonna work for them on their Iranian junket when they need flyover from places like Dubai?

              If Israel goes ahead and bombs Iran’s nuclear facilities, it will need over-flight clearances from the Gulf Arabs. Antagonizing the U.A.E. in this way, leaving almost no doubt Israel was behind Mabhouh’s assassination, does not seem the best way to facilitate such clearances. Nor does it help build an Arab Sunni coalition against Iran and its Lebanese proxy, Hizballah

              Unsaid – what does all that Sunni coalition stuff do, too, vis a vis the US created Iraq – created in a Shia image and with mass exodus by Sunnis and huge refugee issues going unaddressed.

  11. Mary says:

    There’s another law prof who kept interjecting himself into all the torture discussions and praising Yoo et all for exploring the full reach of the President’s power – a law prof who was ex-OLC and served there with Alito.

    http://old.nationalreview.com/comment/kmiec200406150844.asp

    A guy who thought the President was only above the law when there was a grave emergency

    Was it wise or prudent for the Justice and Defense Departments to contemplate the ultimate scope of the president’s military powers? Yes. Otherwise, hesitation in the face of grave emergency might defeat capability. Of course, emphasis must be placed upon the qualifier of the contemplated power — a grave and extreme emergency — and admittedly, that could have been made more explicit in the drafting so that others coming to these documents later would not misconstrue the discussion as placing the president above the law.

    [except when such a grave emergency could be claimed].

    He was a guy much more concerned about the leak of memos than about what should have been shocking to him – the information that DOJ and the guys who worked on the OLC memos had solicited torture.

    As leaked, the memos that have caused such a stir in the media and before the Senate Judiciary Committee were in draft form. Perhaps in their final versions, the language was polished and the context of grave and imminent emergency more obvious. But two things are true: First, whoever leaked these confidential memoranda did the Constitution, his president, and his country a serious disservice. Apart from what these background ruminations may or may not imply about the hypothetical need for extraordinary interrogation methods, they should have been intended as internal deliberative documents for the White House counsel or attorney general alone — for the purpose of giving more definitive, succinct, and intellectually accessible advice to the president. Documents of this length, qualification, and legal nuance are for lawyers, not the president or other cabinet members. They are certainly not to be floated about to ad hoc working groups or task forces. Portions of the drafts appear to have been classified at one time — properly so. But even absent top-secret status or higher, they should have been kept confidential within the ambit of the president’s executive privilege. Having failed to observe this, the next time hard questions are addressed, the proffered answers will likely be hedged for anticipated public consumption. That will serve no one well.

    He has the same concerns when it comes to leakage re: the terrorist surveillance program – urging that massive FISA felonies – so massive that Vaughn Walker has ruled that their sheer mass forecloses the ability of the courts to make settlement – are after all, a much different kind of crime than the Watergate burglaries (that Nixon probably didn’t sign orders authorizing) and seeming to want to give the air of knowing a lot of what had been going on at that time:

    http://www.washingtonpost.com/wp-dyn/content/article/2007/05/17/AR2007051701973.html

    Officially, Comey — an obviously admirable fellow — did his best not to disclose that his testimony related to an interpretive disagreement over the highly classified but nevertheless well-known terrorist surveillance program. Sparring between the Office of Legal Counsel (OLC) and the White House, and apparently even within the OLC, over the legal basis for this program in wartime is leagues different from burglary for purposes of political dirty tricks.

    Even if OLC attorneys had been unanimous that the president lacked the legal authority to conduct the kind of military intelligence-gathering that every other wartime president has pursued, that would hardly warrant the conclusion that the president had “broken the law.” To his credit, Comey resisted this characterization four times when pressed by Specter. Comey conceded that he had no idea whether the certification of the continuation of the surveillance program he was being asked to make had a basis in statute or regulation. In fact, it has neither. It was a “form and legality” determination that the president had self-imposed to internally discipline an exercise of power that necessarily must delicately balance national security and civil liberties.

    It’s been interesting to see Kmiec and that other great good Con scholar Obama align their interests.

  12. Mary says:

    Ok – since my best effort on My Favorite Maltan got nuthin, I’m retiring from the field for tonight (plus I’m having puter problems).

  13. Citizen92 says:

    Rotunda’s little critique letter says he got the OPR draft report from Tamara Kessler.

    But Ms. Kessler was being quite savagely attacked by the conservative media as a “hack” and “partisan” for her time in the Civil Rights Office of DOJ – and her criticism of Hans Von Spakovsky and Brad Schlozman.

    I was quite surprised at the venom:
    http://muffledoar.blogspot.com/2010/02/muffled-oar-exclusive-doj-office-of.html

    Why would Kessler of all people send such a sensitive report to Rotunda?

  14. JohnLopresti says:

    The academe ethicist conservative experts coterie may have a composition like rentageneral, dozens. Rotunda*s current missive purports to communicate that R gracefully bowed out of the subset of YooEmailRecipients, ?How many other experts opined in support of either OPR*s drafts process, or Margolis* subsequent, superseding nihil obstat?

  15. orionATL says:

    federalist society!

    think, and reason, federalist society, folks.

    otherwise you will get the small facts right and

    completely miss the larger picture of what was happening with the doj/olc report

    and other anomalys of bushco behavior.

    • timbo says:

      That’s probably true. Remember that Federalist Society members at DOJ were listing their office phone numbers there on GOP and Federalist Society websites so that their members could get backdoor access to DOJ. This is one of the main areas that was glossed over in the hearings SJC hearings at the time. They found out about it but they did not follow up on this to any great extent. And they should have. Basically, it seems that DOJ was being used as a legal support resource for GOP and Federalist Society members interested in manipulating DOJ actions for their own purposes.

      • timbo says:

        Note that some of the USAs who wouldn’t play along with this were axed at the end of 2006 with the subsequent investigations by the Congress into what had happened with the firings but not what had happened at DOJ that meant this was permitted to go on. Note also that this happened on Margolis’s watch. McNulty and Gonzalez took some of the fall but who knew about all the illegal crap these guys were pulling and looked the other way or hid their involvement in it was never fully explored. And even more of a problem is who benefitted from it, the law firms, the politicians, etc may never be known now. It’s really not a good thing that happened at DOJ–the Democrats dropped the ball on much follow up here at all.

      • Citizen92 says:

        A basic NYT piece from 2005 on the Federalist Society and its reach into the Bush Administration:

        http://www.nytimes.com/2005/08/01/politics/politicsspecial1/01federalist.html?pagewanted=all

        “But much of the influence, and most of the intrigue, flows from an informal social network, which members use to advance one another’s causes and careers. Openly and behind the scenes, members have played prominent roles in the most pitched political battles in recent years, including the impeachment of President Bill Clinton and the Florida recount fracas in 2000 that led to the election of Mr. Bush.”

        “Yet down the hall from (Federalist Society President Eugene B.) Meyer’s office, a vacated desk testified to the more activist role that members often play. It belonged to Leonard A. Leo, the executive vice president, who doubles as the head of Catholic outreach for the Republican Party and who has taken a leave of absence to help Judge Roberts win confirmation.”

        Mr. Meyer also said he had benefited from news media training by Creative Response Concepts. That is the public relations firm that represented Swift Boat Veterans for Truth, the group whose advertisements in last year’s presidential campaign attacked the war record of Senator John Kerry, the Democratic nominee.

  16. bobschacht says:

    MadDog @ 28:
    “Given Rotunda’s background and longstanding influence in rightwing judicial circles (BFF with Meese, Bork, Starr, Scalia, Hatch, et al.), if I had to guess is that the resident OPR Federalist Society busybodies decided that they needed to call in stronger outside backup to sink the OPR report.”

    What is known about Rotunda’s relationship with Margolis?

    Bob in AZ

  17. emptywheel says:

    Also note, Rotunda sent his second letter on this to Estrada directly, not to OPR nor to Margolis. The other early responses went to Margolis, which is another reason it’s odd that Rotunda wrote his to OPR.

    • bmaz says:

      Yes, exactly. It is almost as if Rotunda has some kind of bifurcated role in this process. The facts are too sketchy to really discern what precisely was going on, but it certainly looks bizarre. On the one hand there is a very clear appearance OPR had some relationship and was seeking one goal; yet Rotunda, the supposed ethics guru, seemed to be serving a different master, Estrada and Yoo. It is all most curious, and the supposed Mr. Ethics has sure succeeded in leaving an unsavory cloud over the process.

      • emptywheel says:

        Well, the first one was an attack, and not well supported. The second one looked like something written with the expectation it would be released publicly.

        • bmaz says:

          From the letter to Estrada comes this nice little package wrapped in a bow tie:

          In sum, the OLC memoranda I have reviewed were carefully drafted, necessarily fact-bound, candid, and obviously well-researched. I see no basis for finding that their authorsviolated any rules of professional conduct because other lawyers, years later, disagreed with thelegal conclusions that were expressed.

          Sadly, the same cannot be said of the lawyers who wrote the OPR draft report. My assessment of the draft report leads me to believe that the lawyers at OPR may themselves be guilty of disciplinary violations.

          That is hilarious, because if those are the types of relative standards the esteemed Ronald Rotunda thinks apply, if he honestly thinks the OPR is guilty of misconduct because their work exceeds a good faith belief in their positions, but that Yoo and Bybee’s is just dandy, then Ronald Rotunda is a dishonest cheap hack. Furthermore, under that kind of standard, I think Rotunda and Margolis themselves should be investigated for ethical improprieties for their work here.

          Ronald Rotunda has engaged in some of the most shameless two faced sophistry imaginable.

  18. klynn says:

    His letter to Estrada is interesting…here’s a snip:

    You asked for my opinion concerning allegations that Professor John Yoo engaged in professional misconduct in certain work he performed while serving as Deputy Assistant Attorney General at the Department of Justice’s Office of Legal Counsel (OLC).1 To that end, in March of this year, I reviewed an unclassified draft report prepared by the Department’s
    Office of Professional Responsibility (OPR). That report accused Professor Yoo of violating D.C. Rules of Professional Conduct 1.1 and 2.1. I also reviewed the “Bybee Memo” discussed in that report.

    Since my original review, the Department has made public a second memo (formerly classified) issued by OLC on the same day as the Bybee Memo. I will refer to this second memorandum as the “Classified Bybee Memo.” The Classified Bybee Memo assessed the validity of specific interrogation techniques under the legal standards set forth in the Bybee Memo. This more recently declassified Memo relied heavily on the expert factual advice that
    the CIA gave to the Department of Justice. This legal opinion was fact-bound.

    Full letter on pg 96-98 of the pdf. Worth the read.

  19. klynn says:

    The letter also footnotes:

    By way of credentials: I am the Doy & Dee Henley Chair and Distinguished Professor of Jurisprudence at the Chapman University School of Law. I have co-authored the most widely used course book on legal ethics, Problems and Materials on Professional Responsibility (Foundation Press, 10th ed. 2008). I am also the co-author of Legal Ethics: The Lawyer’s Deskbook on Professional Responsibility (ABA-West Group, St. Paul, Minnesota, 7th ed., 2009) and the six-volume Treatise on Constitutional Law (Thomson
    West Publishing Co., 4th ed. 2007-2008). I have chaired the subcommittee that drafted the American Bar Association’s Model Rules for Lawyer Disciplinary Enforcement. In addition, I have been a member of the Publications Board of the A.B.A. Center for Professional Responsibility since 1994. I have also served on the A.B.A. Standing Committee on
    Professional Discipline (1991-1997), and I was Liaison to the A.B.A. Standing Committee on Ethics and Professional Responsibility (1994-1997)

    But nothing about this:

    Over the years (actually, decades now), the Department of Justice has retained me on various matters. I don’t think I have written anything that was sent to OPR until this time. OPR sent me the material so that I could review the draft. That I know.

    [snip]

    As for what I’ve done in the past, that would be confidential. What has been publicly revealed (so there is no confidentiality requirement) is that many years ago I served as an expert witness for the Department of Justice in a fraud case. I really don’t remember the details, but it was at least twenty years ago. (Sadly, that proves I’m no spring chicken.)

    Funny to read all the qualifications about ethics and no note wrt the possible conflict of interest because of his OPR work. His government work is not even cited in his “credentials” footnote.

  20. Citizen92 says:

    Is there any significance to the (apparent fact) that Rotunda had the “DOJ OPR Unclassified Draft” for about 1 1/2 + months (March-y to May 4) before he drafted and sent the critique letter supporting Yoo?

    With so much of Yoo hanging out there, wouldn’t he have wanted to act quicker?

    Also, is there any significance that the “properties” aspect of the .pdf’d crtique letter which appears on the National Review’s show the “author” field of that document to be “Ronald D. Rotunda” and that the “created” date of the document was 5/4/09? Rotunda has dated his correspondence 5/4/2009, but indicates that he sent it to DOJ via FedEx, so presumably it would not arrive in someone’s hands at DOJ until at least 5/5/2009.

    Considering Rotunda writes at the very end of his critique “If this Unclassified Draft or any version of it leaks to the press that will, sadly, tend to confirm that the purpose of this Draft is not to analyze a problem but to pillory two individuals” I would posit that Rotunda purposefully leaked the document – on May 4 – and forgot to wipe the “properties …?

  21. klynn says:

    The letter is worth dissecting. I was a bit thrown by:

    The CIA, relying on medical and psychological experts, assured the DOJ that the waterboard “procedure does not inflict actual physical harm.” The CIA represented to the DOJ that “these acts will not be used with substantial repetition, so that there is no possibility that severe physical pain could arise from such repetition.” The CIA similarly assured the DOJ that the use of the waterboard, with the safeguards that the CIA said it would use, would cause no prolonged mental harm. This more recently declassified Bybee memo obviously relied on the facts that the CIA related to the DOJ. You have asked me to summarize my original conclusions about the Bybee Memo and OPR’s draft report, and to set forth my views on whether the Classified Bybee Memo conforms to D.C. Rules 1.1 and 2.1.

    Info just from CIA to DOJ? Hmmm…

    • Mary says:

      This is what I was predicting would happen – that the response to get Yoo and Ashcroft et al off the hook would be to point the finger back at CIA – “we only provided opinions limited to the reliability of the facts you provided”

      • emptywheel says:

        Which brings us back to ONE of the problems with the OPR Report: that it doesn’t talk in detail about what it means that Yoo softened the description of waterboarding and sleep deprivation and small box confinement (aka mock burial?) to make the memo itself more palatable.

        That shows clear intent to provide incomplete advice. But OPR never made that case.

        • Mary says:

          And it’s Rotunda, IIRC, who points out that if a lawyer issues an opinion on knowingly incomplete info, that’s a bad thing. ;)

  22. Citizen92 says:

    And what on earth does this little Rotunda snippet (page 9, critique letter) have to do with anything?

    I grew up in a household where English was not the native language of either my mother or my father. Consequently, I have spent time studying the English language. I do not think that anyone who has studied the English language could possibly deduce that a conclusion that a prosecution “may be barred” gives any comfort to the interrogator. It should be even easier for a native speaker to figure that one out.

    What language did his parents speak?

  23. Mary says:

    @ 51 and 59 –
    If he did review the report for OPR – with them as just some kind of client to whom he was providing his advice on the Report – though, isn’t it odd that he feels he can also offer advice on the Report to Yoo’s and Yoo’s lawyer, even though he was originally contacted by OPR as his client for advice on their report?

    That doesn’t ring true – that OPR sent him the report in his status as an ethics guys and he reviewed it for them and gave them a response, then he also accepts the invitation of the adverse party to OPR, Yoo, to review the report for his benefit too? Did he get an ok from OPR for that?

    You know the old lit strategy – didn’t OPR’s utilization of Rotunda pretty much lock him up and out of acting for Yoo? And if not, why not?

    Curiouser and Curiouser.

    • bmaz says:

      Exactly. And if, as Rotunda self servingly intimates, he was originally approached by OPR, that response to them was one of the most acidic belligerent responses I have ever seen. There is a very foul odor here, the only question is precisely what part of Rotunda’s spiel it is emanating from.

      • klynn says:

        Totally agree.
        And with the same tone and the same words from Rotunda’s first letter…

        Where do I begin?

        Honestly, I am thrown by the tone of the first letter and the over use of idioms throughout. The second letter has no idioms. I thought idioms were considered poor to use in professional docs?

        Did the same person really write them? The first one reads in tone like a child wrote it. The second reads like a very interested party instead of expert opinion.

        • bobschacht says:

          You make an interesting point about the difference in the language of the letters. In sociolinguistics, it is known that one adapts one’s language to the audience, and this is called “code switching.” Your insight suggests to me that the intended audience of the two letters was different. The second letter, lacking idioms, seems more formal and official, perhaps anticipating publication. The first letter, with its idioms, seems intended for more private circulation, among people who know each other and “speak a common language.”

          Bob in AZ

          • klynn says:

            Idioms can also be used to provide “encoded” guidance too. So, I have no idea why the extreme difference in writing style or tone. It could be due to “code switching” as you suggest or”encoding” “what” to do while appearing critical.

            Lots of questions.

  24. MrWhy says:

    If you are interested in Rotunda’s legal scholarship, here’s a link to the 2003 U. of Illinois Law Review issue devoted to Rotunda and Professional Responsibility. There are four brief reminiscences by colleagues which cover his career but give little biographical info beyond his career. Ronald may have a twin brother Donald, it’s hard to tell, with all the dripping sarcasm in Wayne LaFave’s piece. And RRotunda may be Italian, same sarcasm qualifier.

  25. Citizen92 says:

    To reiterate my clouded comment above.

    It appears as though Rotunda leaked his “critique letter” of the DOJ draft report on May 4, 2009 to the National Review.

    DOJ would have received Rotunda’s “critique letter” the day after he leaked it.

    Rotunda self-servingly wrote at the end of his “critique letter” “If this Unclassified Draft or any version of it leaks to the press that will, sadly, tend to confirm that the purpose of this Draft is not to analyze a problem but to pillory two individuals

    Isn’t leaking a detailed “critique letter” of the unclassified draft basically the same thing as leaking the “unclassifed draft?”

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