Legal Ethics Bonus Content No. 2 - Yoo's Testimony Tuesday in Eastman Bar Hearing (09.13.23)

When Ethical Train Wrecks Collide...

Welcome to your second installment of bonus content from the Legal Ethics Roundup!

In addition to the (FREE!) weekly roundup every Monday morning, I will regularly post bonus content for paid subscribers. This material offers a deeper-dive into issues touched upon in the weekly roundup and sometimes cover breaking news that just can’t wait until Monday morning, like this week!

Here’s a preview of today’s bonus content, which includes details from Tuesday’s testimony by John Yoo in the John Eastman bar discipline trial plus background materials and other resources for those of you who might want to use this as a case study while teaching professional responsibility. (If you need a comp paid subscription to read this full bonus content post, let me know at legalethics@substack.com - no questions asked. Otherwise, thank you for reading and supporting this work!)

Author of the Discredited Torture Memos Takes the Stand for Eastman in California State Bar Disciplinary Trial

As previously identified in the Legal Ethics Roundup, John Eastman is co-conspirator #2 in the federal indictment of the former president, he’s been indicted in Georgia, and he faces disbarment as part of an ongoing State Bar of California disciplinary trial.

At stake for Eastman in the bar disciplinary trial? His license to practice law.

The proceedings began earlier this summer, and are broadcast live via Zoom. A few months ago, I watched Greg Jacob, the lawyer who was with Vice President Mike Pence during the January 6 insurrection and counseled against Eastman’s theories, delivered stunning testimony, at one point stating: “I was offended by my profession. By the advice I had seen given and what resulted therefrom.”

Eastman tried to get the bar trial delayed after being named in the indictments, but Judge Yvette Roland wasn’t having it. She denied the request, issuing a 10-page order. The trial resumed in late August.

Yesterday, John Yoo took the stand as a witness for John Eastman. Yoo currently serves as the Emanuel S. Heller Professor of Law at the University of California, Berkeley.

On Friday, he will be back on the stand to continue direct examination about a Case Western Law Review article, “Who Counts?: The Twelfth Amendment, the Vice President, and the Electoral Count,” co-authored with Robert Delahunty. After that, the State Bar lawyers will have an opportunity to cross-examine him on what was a full day Tuesday of winding, technical testimony about a series of articles Yoo and others have authored on the vice president’s authority to count votes in a presidential election.

But before I tell you what happened during Tuesday’s testimony, we need some context. Remember the torture memos?

John Yoo wrote the so-called “torture memos” to defend the appropriateness of certain interrogation methods, such as waterboarding, while working in the Justice Department’s Office of Legal Counsel during the Bush administration. These memos were rescinded by President Barack Obama in 2009.

In May 2009, the U.S. Senate held a hearing entitled “What Went Wrong: Torture and the Office of Legal Counsel in the Bush Administration.” (The full transcript is available here.)

Georgetown Law professor David Luban, a preeminent scholar of legal ethics, testified at the hearing.  He called the memos an “ethical train wreck” and testified before Congress that they “involve a selective and in places deeply eccentric reading of the law[,] … cherry-pick sources of law that back their conclusions, … leave out sources of law that do not[, and] read as if they were reverse engineered to reach a pre-determined outcome.” (One might say the same about Eastman’s interpretation of the law surrounding who counts the votes for a presidential election.)

On July 29, 2009, the U.S. Department of Justice Office of Professional Responsibility (OPR) issued a report concluding that John Yoo and his boss Jay Bybee, who signed the memos, had engaged in professional misconduct and recommending referral of the findings to state bar disciplinary authorities. Yoo was licensed to practice in California, so would have faced the same process that Eastman is currently navigating. But that never happened.

Six months later, on January 5, 2010, associate deputy attorney general David Margolis issued a memo explaining that he had decided not to adopt OPR’s recommendations and would not refer the findings to the state bar disciplinary authorities. He did, however, write this:

[Yoo's] memoranda represent an unfortunate chapter in the history of the Office of Legal Counsel. While I have declined to adopt OPR's findings of misconduct, I fear that John Yoo's loyalty to his own ideology and convictions clouded his view of his obligation to his client and led him to author opinions which reflected his own extreme, although sincerely held, views of executive power while speaking for an institutional client.

I wonder—will Luban’s “ethical train wreck” characterization of the torture memos and this Margolis letter come up in Yoo’s cross-examination later this week?

To be clear, Yoo is not offered by Eastman’s defense lawyers as a character witness. They have 18ish others lined up for that, apparently with most planning to submit written declarations but as many as three planning for live testimony. Judge Roland asked Eastman’s attorneys for specific names, but none were confirmed. Character witnesses may include the Honorable Janice Rogers Brown and Edwin Meese, a former U.S. Attorney General.

So what, exactly, did Yoo testify about? And who else will be testifying this week and next?

Let’s start with what he was not allowed to discuss.