On The Passing of David Margolis, the DOJ Institution

david-margolis-250David Margolis was a living legend and giant at the Department of Justice. Now he has passed. Just posted is the following from DOJ:

Statements From Attorney General Loretta E. Lynch and Deputy Attorney General Sally Q. Yates on the Passing of Associate Deputy Attorney General David Margolis

Attorney General Loretta E. Lynch and Deputy Attorney General Sally Q. Yates released the following statements today on the passing of Associate Deputy Attorney General David Margolis, senior-most career employee at the Department of Justice.

Statement by Attorney General Lynch:

“David Margolis was a dedicated law enforcement officer and a consummate public servant who served the Department of Justice – and the American people – with unmatched devotion, remarkable skill and evident pride for more than half a century. From his earliest days as a hard-charging young prosecutor with a singular sense of style to his long tenure as one of the department’s senior leaders, David took on our nation’s most pressing issues and navigated our government’s most complex challenges. To generations of Justice Department employees, he was a respected colleague, a trusted advisor and most importantly, a beloved friend. We are heartbroken at his loss and he will be deeply missed. My thoughts and prayers are with David’s family, his friends and all who loved him.”

Statement by Deputy Attorney General Yates:

“David Margolis was the personification of all that is good about the Department of Justice. His dedication to our mission knew no bounds, and his judgment, wisdom and tenacity made him the “go-to” guy for department leaders for over 50 years. David was a good and loyal friend to all of us, and his loss leaves a gaping hole in the department and in our hearts.”

I am sure Mr. Margolis was a kind, personable and decent chap to those who knew and worked with him. I can be sure because there have been many voices I know who have related exactly that. He was undoubtedly a good family man and pillar of his community. None of that is hard to believe, indeed, it is easy to believe.

Sally Yates is spot on when she says Margolis’ “dedication to our [DOJ] mission knew no bounds”. That is not necessarily in a good way though, and Margolis was far from the the “personification of all that is good about the Department of Justice”. Mr. Margolis may have been such internally at the Department, but it is far less than clear he is really all that to the public and citizenry the Department is designed to serve. Indeed there is a pretty long record Mr. Margolis consistently not only frustrated accountability for DOJ malfeasance, but was the hand which guided and ingrained the craven protection of any and all DOJ attorneys for accountability, no matter how deeply they defiled the arc of justice.

This is no small matter. When DOJ Inspectors General go to Congress to decry the fact that there is an internal protection racket within the Department of Justice shielding even the worst wrongs by Department attorneys, as IG Glen Fine did:

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

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

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

Said fact and heinous lack of accountability for Justice Department attorneys, not just in Washington, but across the country and territories, is largely because of, and jealously ingrained by, David Margolis. What Glen Fine was testifying about is the fact there is no independent regulation and accountability for DOJ attorneys.

They are generally excluded from the Department IG purview of authority, and it is rare, if ever, courts or state bar authorities will formally review DOJ attorneys without going throughout the filter of the OPR – the Office of Professional Responsibility – within the Department. A protection racket designed and jealously guarded for decades by David Margolis. Even when cases were found egregious enough to be referred out of OPR, they went to…..David Margolis.

In fact, attuned people literally called the OPR the “Roach Motel”:

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

If you want a solid history of OPR, and the malfeasance it and Margolis have cravenly protected going back well over a decade, please go read “The Roach Motel”, a 2009 article in no less an authority than the American Bar Association Journal. It is a stunning and damning report. It is hard to describe just how much this one man, David Margolis, has frustrated public transparency and accountability into the Justice Department that supposedly works for the citizens of the United States. It is astounding really.

As I wrote back in 2010:

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

“Taking him on is a losing battle,” says the source. “The guy is Yoda. Nobody fucks with the guy.”
….
Margolis cut his teeth as an organized-crime prosecutor, and he often uses mob analogies in talking about his career at the Justice Department. When asked by an incoming attorney general what his job duties entailed, Margolis responded: “I’m the department’s cleaner. I clean up messes.”

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

“The Cleaner” Mr. Margolis considered himself, while fastidiously sanitizing gross malfeasance and misconduct by DOJ attorneys, all the while denying the American public the disinfectant of sunshine and transparency they deserve from their public servants (good discussion by Marcy, also from 2010).

Perhaps no single incident epitomized Margolis’ determination to be the “cleaner” for the Department of Justice and keep their dirt from public scrutiny and accountability than the case of John Yoo (and to similar extent, now lifetime federal judge Jay Bybee). Yoo as you may recall was the enlightened American who formally opinedcrushing innocent children’s testicles would be acceptable conduct for the United States to engage in. Yoo and Bybee, by their gross adoption of torture, literally personally soiled the reputation of the United States as detrimentally as any men in history.

So, what did David Margolis do in response to the heinous legal banality of evil John Yoo and Jay Bybee engendered in our name? Margolis cleaned it up. He sanitized it. Rationalized it. Ratified it. Hid it. To such an extent architects of such heinous war crimes are now lifetime appointed federal judges and tenured professors. Because that is what “The Cleaner” David Margolis did. “Protecting” the DOJ from accountability, at all costs, even from crimes against humanity, was simply the life goal of David Margolis, and he was depressingly successful at it.

So, less than 24 hours in to the passing of The Cleaner, is it too early to engage in this criticism? Clearly other career officials at the DOJ think discussing the pernicious effects of Margolis on accountability and transparency are out of bounds.

I wonder what the late Senator Ted Stevens would say in response to the “too soon” mandate of Steven Bressler? Because thanks to the efforts of The Cleaner Margolis, Stevens died without the public knowing what an unethical and craven, if not downright criminal, witch hunt attorneys in the Department of Justice ran on him. Even after Stevens was long gone from office and dead, there was Margolis “cleaning” it all up to protect his precious Justice Department when even the internal OPR found gross misconduct:

Following the Justice Department’s agreement in 2009 to vacate the convictions it obtained of former Alaska Senator Ted Stevens, it conducted an internal probe into the conduct of its senior lawyers and—surprise!—exonerated them and itself. It then refused to make the report public. However, at the time the conviction was voided, the presiding judge in Stevens’s case, Emmet Sullivan, appropriately wary of the department’s ethics office, appointed a special prosecutor, Henry F. Schuelke, III, an eminent Washington attorney and former prosecutor, to probe the DOJ’s conduct. Late last week, Schuelke’s 525-page report was released, over the loud objections of DOJ lawyers. The report revealed gross misconduct by the prosecutorial team, stretching over the entire course of the case and reaching into the upper echelons of the department. It concluded there had been “systematic concealment of significant exculpatory evidence which would have independently corroborated [Stevens’s] defense.”

Having laid out the above bill of particulars as to David Margolis, I’d like to return to where we started. As I said in the intro, “I am sure Mr. Margolis was a kind, personable and decent chap”. That was not cheap rhetoric, from all I can discern, both from reading accounts and talking to people who knew Mr. Margolis well, he was exactly that. Ellen Nakashima did a fantastic review of Margolis in the Washington Post last year. And, let’s be honest, the man she described is a guy you would love to know, work with and be around. I know I would. David Margolis was a man dedicated. And an incredibly significant man, even if few in the public understood it.

Say what you will, but Mr. Margolis was truly a giant. While I have no issue delineating what appear to be quite pernicious effects of David Margolis’ gargantuan footprint on the lack of accountability of the Department of Justice to the American citizenry, I have some real abiding respect for what, and who, he was as a man. Seriously, read the Nakashima article and tell me David Margolis is not a man you would love to kill some serious beers with by a peaceful lake somewhere.

But David Margolis, both the good and the bad, is gone now. Where will his legacy live? One of our very longtime friends here at Emptywheel, Avattoir, eruditely said just yesterday:

Focus instead on the institution, not the players. The players are just data points, hopefully leading to greater understanding of the institutional realities.

Those words were literally the first I thought of yesterday when I received the phone call David Margolis had passed. They are true and important words that I, and all, need to take heed of more frequently.

David Margolis, it turns out from all appearances and reports, was a complex man. Clearly great, and clearly detrimental, edges to him. So what will his legacy be at the Department of Justice? Will the closing of the Margolis era, and it was truly that, finally bring the institution of the Department into a modern and appropriate light of transparency, accountability and sunshine?

Or will the dirty deeds of David Margolis’ historical ratification and concealment of pervasive and gross misconduct by Department of Justice attorneys become permanently enshrined as a living legacy to the man?

We shall see.

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

    Focus instead on the institution, not the players. The players are just data points, hopefully leading to greater understanding of the institutional realities.

    This is the logic that emboldened Roman Catholic bishops to shield priests who raped children from accountability and justice. This is the logic that far too many police officer union spokespeople employ to excuse the abusive behavior of far too many police officers. This is the logic that finds its ultimate expression in the passive voice: “mistakes were made . . .”
    .
    The institution IS the players. They are not just data points, but conscious actors that create and re-create the institution by their actions and their inactions. For example,

    Perhaps no single incident epitomized Margolis’ determination to be the “cleaner” for the Department of Justice and keep their dirt from public scrutiny and accountability than the case of John Yoo (and to similar extent, now lifetime federal judge Jay Bybee). Yoo as you may recall was the enlightened American who formally opined that crushing innocent children’s testicles would be acceptable conduct for the United States to engage in. Yoo and Bybee, by their gross adoption of torture, literally personally soiled the reputation of the United States as detrimentally as any men in history.

    So, what did David Margolis do in response to the heinous legal banality of evil that John Yoo and Jay Bybee engendered in our name? Margolis cleaned it up. He sanitized it. Rationalized it. Ratified it. Hid it. To such an extent that the architects of such heinous war crimes are now lifetime appointed federal judges and tenured professors. Because that is what “The Cleaner” David Margolis did. “Protecting” the DOJ from accountability, at all costs, even from crimes against humanity, was simply the life goal of David Margolis, and he was depressingly successful at it.

    And the institution and its players thanked him for it.
    .
    Unless and until we view the players and the system in which they function as equal parts of this equation, justice will not be done. What we will have is summed up neatly in that argument offered at Nuremberg by those seeking to treat the players as just data points: Befehl ist Befehl.
    .
    At Nuremberg in the 1940s, this was rejected. As I’ve argued elsewhere, the DOJ seems to have overturned this, and bmaz’s description of Margolis’ work as The Cleaner simply — and sadly — confirms this conclusion.
    .
    With regard to the words of Avottoir I quoted above, therefore, I respectfully dissent.

    • bmaz says:

      I think Margolis is more of an exception than rule, so, yes, I dissent to as to him, for the reasons stated. On the whole though, I think Avattoir is quite right.

      • Peterr says:

        This is how the banks get away with fines, bmaz. Says the banks, “Don’t focus on the players — they’re just data points — but instead make the cost of doing business a little steeper and we’ll all be on our way.”

  2. scribe says:

    Can’t say I’m sad to see him go.
    .
    That said, I don’t think a damn thing will change at DoJ, and his successor will both continue the Roach Motel and wind up similarly beloved by all the people whose asses and careers he protects.
    .
    I’m willing to bet he had all the files shredded before he left the building, too.

  3. rugger9 says:

    There is too high a price to pay by Very Important (and Serious) People from the beginning of Reagan’s administration for stuff to get out, and especially from Shrub’s WH. There will be no improvement until someone has the political will to brave the firestorm that will ensue. An indication would be if the USA sent Kissinger, Darth Cheney and Shrub to the ICC for their admitted and well-documented war crimes, but understand that the RW corporate noise machine would be apoplectic about the selling out of American sovereignty and our special status. That means the President who did this would have to be very popular or no longer give a rat’s patootie.
    *
    It does seem to parallel in some ways the way the British Empire collapsed when the English pressed too hard about their higher status with India, Kenya, etc., etc.

  4. rugger9 says:

    I’m not sure a Truth and Reconciliation Commission such as the one Nelson Mandela ran in South Africa would be the final answer, since while it did work well in the shorter term, it seems the pressures are building for more accountability in the longer term. After all, Elie Weisel hunted Nazis for the rest of his life, and even ones living peacefully in the USA for 60+ years were tried and deported, sometimes for more trials. What this indicates is that a “statute of limitations”, if any, has to be agreed to for pursuing bad behavior.
    *
    On the Avattoir comment, he is right in that the system will function as it is designed to function just like a baseball game has its rules. However, I think the effect of players is actually understated. Both elements are important and cannot be ignored. In a game, it is perfectly OK to employ dekes and assorted other deceptions until the umpires stop it one way or another (e.g. the balk rule), but not OK to engage in systematic cheating via PEDs, gambling payoffs, adulterating the ball with spit or scuffing, etc., and baseball has shown its willingness to remove those who cheat unacceptably. This is even before discussion of the unwritten rules about stealing with a big lead, bat flipping and other transgressions that lead to brawls.
    *
    This is one example of why players also must be held accountable, and another was the execution of Admiral Byng for not fighting correctly (the official charge was negligence) and he was allowed to take the bullets to cover for the failure of the UK Navy command from the Cabinet on down to provide the resources or clear instructions. Voltaire said its purpose was to “encourage the others” which worked into American hands during the revolution, because Yorktown would not have been successful if the initiative hadn’t been sucked out of the British fleet at that time. “First Salute” by Barbara Tuchman provides a clear commentary.
    *
    Scooter Libby’s prosecution opened up some areas not otherwise available in the Plame investigation, and notice how things became more open when it was clear to Scooter that a jail cell door would go clang behind him, Club Fed or not. It’s hard to enjoy ill-gotten millions in a jail cell, and the willingness to prosecute may just encourage the others to not go to the dark side. One doesn’t get what they expect, they get what they inspect which determines what one thinks is important enough to look at and ensure is right.

  5. Jeffrey Kaye says:

    Let’s remember Margolis — the torture apologist who saw that CIA collaborators John Yoo, Jay Bybee and Steven Bradbury were never punished for facilitating torture — for ALL his works.

    In a July 2000 letter to the New York Review of Books by by E.L. Doctorow, Peter Matthiessen, William Styron, Rose Styron, Kurt Vonnegut, singled out Margolis as “point man” on a DoJ “vendetta” against Cointelpro victim Leonard Peltier:

    “Three months ago, in March, I had a phone call from a lawyer who has never been involved in the Peltier case but was aware of my longtime concern. A friend in the Justice Department had just mentioned to him that the FBI was intensifying its anti-Peltier vendetta within the department, with Associate Deputy Attorney General David Margolis as the point man.” http://www.nybooks.com/articles/2000/07/20/united-states-v-leonard-peltier/

    It was Margolis who changed DoJ policy to withhold summaries of all OPR investigations. The article noted that ” the resolution of most matters investigated by the OPR remains closely guarded, even in cases where courts have found evidence of serious prosecutorial misconduct.”

    A 2008 LA Times story (http://articles.latimes.com/2008/jul/06/nation/na-opr6) continued:

    Publishing the summaries “’reassures the public that [the Department of Justice] takes its self-regulatory responsibilities seriously and puts prosecutors on notice that they face public embarrassment if they are caught engaging in wrongdoing,’ said Bruce Green, a former federal prosecutor and a professor at Fordham Law School in New York.”

    “Associate Deputy Atty. Gen. David Margolis said it was his decision to excuse the OPR from preparing summaries of cases that might be released to the public. He said the decision reflected a lack of resources, as well as concern about balancing public interests with the privacy rights of individual attorneys facing accusations.”

    Intruiging, given the claims involved, is Margolis’s involvement in the investigation of a forgotten FBI sting operation against NASA contractors in the early 1990s. Operation Lightning Strike was, according to a Washington Post article at the time, a “20-month Justice Department sting operation focusing on NASA’s Johnson Space Center in Houston… [resulting] in criminal fraud and bribery charges against nine men and one contractor.”

    Later, in 1996, a defense committee was formed to support the “NASA-13”. The committee, in a petition to the U.S. House of Representatives Government Reform and Oversight Committee claimed that the men caught up in the Operation Lightning Strike, some of whom were victims of “‘frame-ups’ and torture, to obtain prosecutions.” David Margolis was mentioned as admitting that an OPR investigation into the case was begun in 1994 to look into “investigative and prosecutive misconduct.” However, no results from that report were ever made public. The involvement of Margolis in this case deserves further scrutiny, given it involved serious allegations about coercive interrogations and torture.

    Full story at https://shadowproof.com/2010/01/30/david-margolis-hatchet-man-for-holderobama-on-opr-torture-memos-report/

  6. GKJames says:

    First, isn’t it only when your OPPONENTS laud you that there’s merit to the praise? Second, notwithstanding the liberal use of “public service,” it’s apparent that loyalty to a specific department trumps the public interest, especially when it’s about something important. When it happens at DOJ of all places, as recited here, it’s difficult not to conclude that the primacy of law is doomed. Who ever would have predicted that the behavior of CIA and DOJ would be the same? Then again, it’s not as if the great GWOT hasn’t made it obvious that it’s DOJ who green-lights the execrable and then does literally everything possible — including taking the courts for a ride — to prevent a judicial reckoning.

  7. martin says:

    At least his death happened so quickly, he didn’t have time to take advantage of that very thing that would have saved him. And that makes me smile.

  8. martin says:

    quote”David Margolis was a living legend and giant at the Department of Justice. “unquote

    And just as other so called “giants” are equalized by death, so is he.

    “Now he has passed.”

    I have $20 that says there are at least a thousand people out there ready to spit and piss on his grave.

  9. Daniel says:

    Good riddance to this banality of evil bastard. Nice people can be torturers and murderers. Most sociopaths are charming people. This is what Margolis was and what his legacy must be remembered for. He covered for torturers and in the process of doing so assured that many who suffered and even died are eternally forgotten due to the lack of prosecution and punishment. And Martin, you can count me as one of the thousands who are ready to spit and piss on his grave!

    • Dan says:

      Yes, your’s is the legacy that should be remembered. Unfortunately, just like the Dulles Brothers, they will probably name a building after Margolis. America’s shame continues.

  10. John Casper says:

    bmaz,
    .
    As always, thank you so much. Many thanks to so many for insightful comments, especially Jeffrey Kaye.
    .
    DOJ needs a passel of Mary Beth Perdue’s (RIP). https://www.emptywheel.net/2012/02/06/in-memoriam-mary-beth-perdue/
    .
    DOJ’s institutional failure is not alone. Along with the other two-branches of government and the media, we have replaced the emphasis the founders placed on defending the Constitution with, “Homeland Security.” We have failed to educate our citizenry with the wisdom of Benjamin Franklin, “They who can give up essential liberty to obtain a little temporary safety, deserve neither liberty nor safety.”
    .
    I’ll offer hope for the institutional resurrection of the DOJ from an unlikely source, the Roman Catholic Church. Since 1978 John Paul II and Benedict XVI appointed all the cardinals and bishops. Faced with a shortage of priests, they appointed men, who were willing to ordain child molesters. They deemed that a better solution than making celibacy optional, or considering candidates from both genders, or both. When law enforcement caught clerics raping children, it was rare that they faced a criminal indictment. The, “church-mice,” hierarchy re-assigned them to another unsuspecting parish.
    .
    When it came to priests, who preached social justice, that wealth inequality was bad for capitalism and humanity; these same cardinals and bishops had no problem imposing discipline including removal from the priesthood.
    .
    I doubt many here are happy with Pope Francis I. Most of us disagree with him on abortion or birth control, or LGBT rights, or all three. Yet, his pontificate is a Grand Canyon away from his predecessors. I can’t explain how cardinals appointed by John Paul II and Benedict XVI elected him.

  11. Evangelista says:

    I will sign on as a supporter of the ‘Avattoir’ perspective, “Focus…on the institution, not the players. The players are just data points, hopefully leading to greater understanding of the institutional realities.”

    Margolis, Holder, Lynch and all the corrupt under hands of the United States Department of Justice and Attorney General’s office are “players” who are “data points”, whose actions demonstrate the “realities” of the “institution” as it has been turned from its original purpose and toward and to corruption by those “players”.

    It is focus to the players, not the institution, and to what the players have done within the institution, and with the institution and have made the institution to be and to do for them, instead of for The People of the United States, and instead of what the institution was created and purposed initially to do that leads to the accolading and admiring expressed in the DoJ official paean and the WaPo paean and the Empty Wheel paean here.

    Focus to the institution brings the need for reform and redirection into focus. In that focus the players, as data points, are of no specific individual or personal consequence. That Margolis died, one assumes naturally, is simply the elimination of one of the worst departure-from-purpose indicator points. There are many more, many others, who need also to be eliminated to bring the DoJ chart-line back to congruence with the Constitutional purpose for which the institution was instituted. Whether the data points designating departures are eliminated by deaths, suicides, trials and punishments, capital or incarcerative, or are brought back to alignment paralleling the legitimate-purpose chart-line for the institution is entirely secondary. The realignment of the institution to congruence with its Constitutionally defined purpose, through Constitutionally assigned procedures, is primary. The purpose for hanging the kinds of “data points” Margolis, Yoo, et al represent (after fair trials), it must be remembered, is for the sake of the institutions the points of departures they represent indicate their guilts and responsibilities for deviating. It is nothing personal, they are just the corrupt scum who have corrupted a government through their corruptions of the government’s institutions.

    Margolis is not, and was not, a person I would “would love to know, work with and be around”, or “would love to kill some serious beers with by a peaceful lake somewhere”. Though, if the lake were a lake of fire and I was a Devil with a pitchfork, I imagine I might find a certain righteous enjoyment in pitching him into the lake, off the tines of my pitchfork.

    I suspect, however, that if I were such a Devil in such a setting I would be relegated to pitching him back out of the lake, again and again, as a long line of wrongfully wronged righteous souls stepped forward to take the pitchfork and pitch him back in, each again and again, in his and her turns…

  12. Avattoir says:

    Most of my contact was social. He was from an earlier generation – the 1970s hair and clothes were an affect – one raised on Jack Webb as Joe Friday to Robert Stack as Elliot Ness. And he was cradle-to-grave DoJ.

    Marci nailed it in her 2010 piece.

    There’s some difference in values: David Margolis, like so many government attorneys of his generation I’ve known, had a materially different view of the role of the prosecutor. I’m of a generation raised in the shadows of Vietnam, 1968, and Watergate; I was still in school when Nixon ‘coptered off the WH lawn. I started my career as the Church commission got underway.

    Plus, I wasn’t cradle to grave: I came in from what attorneys on the private side call “the real world”, after years spent in the rough rumble of uncivil litigation, then in criminal defense work with people who lived by equity, who took from ubi jus ibi remedium the logical extension that there is ‘no right without a remedy’. That wasn’t a priority in Margolis’ generation, or IMO to him. The pursuit of the larger institutional vales he left to others – which would be fine except for the fact that so much of his career was spent in deciding if it even got far enough for the ‘more appropriate’ institutional role players to ever get involved.

    To be fair: 28 years, more than half, out of Margolis’half century career at DoJ was spent under Republican presidents. He was first a US attorney when Nixon instituted his witchhunts. He’d already been accelerated into a senior position on the Night of the Long Knives, when Nixon got Bork to fire Eliot Richardson. He was already so senior he had serious involvement with the budget nightmares posed by David Stockman on behalf of Reagan, and he was intimately involved in picking losers in that process.

    (Ask Holder about that, how hard Margolis fought to keep the best and release the worst, even as a generation of hard cases and zealots – e.g. Comey, and the folks assigned to prosecute the likes of Ted Stevens and the Oregon mosque case – entered the DOJ, front doors held for them by the Federalist Society.)

    The real tension in judging his career from the outside, the last 3 decades of it in particular, is between whether we ask, Could it have been worse if someone else were in his role? to which the answer must be Yes (Each of Bork, Scalia, Roberts and Alito also came out of DoJ), to Should this man, should ANY person, been in this position for so long? to which the answer must be No.

    • bmaz says:

      I think that is a pretty fair take. For what it’s worth, I have never considered Margolis to be particularly politically partisan. Heck if I had to guess, might even have been a moderate Democrat. I think he was far, far more about his institution than about politics, but that is truly an outside take, as you say. I do very much think that his zealotry in protecting the department at all cot, actually seriously undermined it in the long run. As to whether someone else could have been worse, maybe. By the same token, Margolis was so damn effective because he shunned the spotlight. Most individuals who would have b in worse, including the ones you give as hypotheticals, would have drawn much more attention to themselves and what they were doing. Not sure many others could pull off the long term effect Margolis did.

      • Avattoir says:

        So you ‘blame’ him for being good at this job? Not that I disagree.

        I did have two ‘professional’ run-ins with him, both during times when Republicans were in the WH. In one, I was fairly new, to the DoJ anyway, and unknown to me I stepped on some toes in statement I made to a certain newspaper of record about a certain case of some notoriety at that time. I got invited in for coffee – a flight of several hours each way, for some darn good quality java. He’d gone to bat for me, even tho he didn’t really know me, and didn’t like my boss. He walked me up to the Capital and sat beside me in the public gallery while the DAG publicly defended what I’d said. Which was great! Then he suggested it’d be really good if I not get caught out being quite so candid with the media again. There are thousands of such stories about him; it goes to help explain why he lasted so long.

        The second I’m not proud of – not because of anything I actively did, but because of what I didn’t. By chance mostly, I witnessed, as the only non-investigator present, what was, in the order of things, a fairly low wattage abuse of power by a senior investigator – more a sign of personal problems he was having, than anything truly harmful being done. There was a complaint by the ‘victim (who’d been hassled & inconvenienced, tho not entirely without provocation), leading to investigation by internals in both sections, and I was notified I’d be called on as a “fact witness”. What was unclear was whether or not an oath would be involved (not that it should matter).

        Before that, I got another brief visit over coffee, in which the subject of my expected contribution came up almost in passing, with some unsolicited advice about memory, and perspective, also seemingly in passing: all done in a very face saving manner (smooth as a baby’s skin). Later I was visited by two internals for what I assumed was a pre-brief, which veered to more like a coaching session; when I noted that, it immediately morphed into a superficial Q&A and over. One of them specifically asked if there was anything that I might “want to add”. I didn’t take that up. In the end, there was no hearing; I have no idea what was done with the complaint, but the investigator who was its subject proceeded up the advancement ladder for another few years before he experienced the meltdown that the incident I’d seen suggested was coming. Are there any fingerprints left behind in that scene? It’s fairly common, I’d judge. I still hate thinking about it.

        As you suggest, a cleaner, yes: but a GREAT one.

        • bmaz says:

          Heh, yeah, I guess in a way I am saying that. He was extremely good at his job. I actually think his job should have been a bit more enlightened as to accountability and transparency. But as to the job as he imagined it, he was incredibly effective. Good stories. I have heard many like that over the years, which really does go to why he was so loved in the Department. And, back to where we started about institutions versus individuals, any number of AG’s and DAG’s could have put the choke on Margolis and reshaped how he did things. They didn’t particularly, and that is institutional.

          • Avattoir says:

            One more and that’s it. This could give me away. During Reagan, I pulled one of those early bullshit supposedly big deal cases that in reality prove to be over-hyped law enforcement budget sweeteners. There were multiple defense attorneys, mostly naive, inexperienced, full of themselves, and as a group they didn’t help stop it taking on wider dimensions than justified. A famous – regionally anyway – defending attorney parachuted in late, and with characteristic thrust cut our case to pieces, which, despite my role, bothered me not. To convey that last (and as Main was following the stupid thing), I wrote up the report as Raymond Chandler (bad Chandler no doubt, but recognizable). The silly weightless thing floated up to Margolis – who took his own stab at it as Damon Runyon (a better choice, way better executed). That opened a brief silly cascade as prosecutors from seemingly every part of the department start posting ‘In Character’ reports, doggerel, haiku, limerick, song, Latin, Greek, Italian, etc. He let it go for a time, then put an end to it in a single understated memo – in character as the then-A.G.

      • pdaly says:

        Yes, Margolis shunned the cameras in Harvard Law School, too.
        I remember searching the year books for 3 years (the year he entered to the year he graduated) and Margolis was missing from his class photos and photos of law school student groups in every year.
        .
        The photo at the top of this post and the photo of Margolis at his messy desk (from the link you provided) are the only ones I think I have seen of him.

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