Today's hearing on whether the U.S. Justice Department was correct not to discipline two of its former lawyers, Jay Bybee and John Yoo, was an opportunity for lawmakers to explore the conduct of the department's ethics office.
The Office of Professional Responsibility spent more than five years investigating Bybee, Yoo, and others for their work on legal opinions that sought to define torture and answer other national security questions. The most controversial opinions, which authorized interrogation tactics such as waterboarding, were officially withdrawn during George W. Bush’s administration.
In a report released a week ago, OPR officials found that Bybee and Yoo committed professional misconduct in their work, but senior career Justice Department lawyer David Margolis overruled that finding.
Republican members of the Senate Judiciary Committee said today that they’ve lost some confidence in the Office of Professional Responsibility, wondering why it chose to investigate Bybee and Yoo in the first place. Sen. Jeff Sessions (R-Ala.), the committee’s top Republican, said the internal ethics office doesn’t have nearly the stature of the office that Bybee and Yoo worked in, the Office of Legal Counsel, which is charged with answering sensitive questions of constitutional and statutory interpretation.
“OPR is not an office that ought to be second-guessing the Office of Legal Counsel on constitutional questions,” Sessions said. “I don’t want to say they’re pedestrian. But they’re on a different level.”
Sessions and Sen. John Cornyn (R-Texas) said they want an investigation into whether OPR officials leaked their preliminary findings to the media in an effort to build public support. “How does OPR repair its credibility? Can it even do so?” Sessions, a former U.S. attorney, asked rhetorically.
Acting Deputy Attorney General Gary Grindler called leaks to the media “abhorrent” and said investigating them is a constant effort. “It appears from the [news media] articles that information that should not have been made public was made public,” he said.
Grindler defended the ability of the Office of Professional Responsibility to meet its core mission. “The attorney general continues to have confidence in OPR’s ability to investigate allegations of professional misconduct against department attorneys,” he said. Evaluating ethics cases, he added, “requires particular expertise, and the department continues to believe that OPR is the appropriate entity to conduct those investigations.”
Sen. Patrick Leahy (D-Vt.), the committee’s chairman, said the OPR report on Bybee and Yoo is incomplete because the office’s investigators did not have a chance to interview former Vice President Dick Cheney or David Addington, who was Cheney’s counsel and chief of staff. They also did not have all of Yoo’s e-mails, and Leahy today asked for the department to keep looking for them.