It is being reported in many places that the Office of Professional Responsibility might recommend the disbarment of John Yoo who currently teaches at Berkeley law school. Yoo is the former deputy assistant attorney general in the Office of Legal Counsel who authored the memos that provide legal support for the Bush administration's approach to torture, surveillance and other aspects of the "war on terror." Yoo is facing growing opposition at his law school and there is even a website committed to his removal.
I abhor Yoo's views, but I am not sure I understand what is the basis for calling for his dibarment. It is argued that he developed the legal analysis upon which the administration based its position justifying the use of torture. It is alleged that his memos were based on questionable, weak legal arguments. The website mentioned above refers to the fact that Yoo "advocated that Bush be allowed to do essentialy whatever he wanted in the so-called "War on Terror."
Again, that's terrible, but what rule did he break? If this is all there is to it, is his conduct criminal? Some are arguing that the Bush administration engaged in war crimes by authorizing torture, but does that include the lawyer who wrote the memo with the bad reasoning to justify it? If so, okay, then we can say his conduct is criminal and he should be disbarred for violating Rule 8.4. But one problem with this is that the Obama administration seems intent on dragging its feet and not conducting an investigation into criminal conduct. So can we justifiably disbar someone for "criminal conduct" when the conduct has not been adjudicated to be criminal yet?
Rule 8.4 also talks about conduct involving dishonesty, fraud, deceit or misrepresentation. Again, assuming the conduct is just preparing the memos, does it fall in this category? I guess it depends on whether Yoo really believed what he was advocating, no? If he really thought his analysis was legally sound, can we claim he was misrepresenting the law? He was wrong, but was he misrepresenting the law intentionally? That is hard to prove to say the least.
And then there is the "catch all" rule; the one that refers to conduct "that is prejudicial to the administration of justice." I guess you can argue the conduct was this
What bothers me about this debate is whether the basis for disbarment is just that we disagree with the conclusions of the work done by the lawyer. I guess I have to read and think more about it before I discuss it further.