DOJ to Create New Professional Misconduct Review Unit

Attorney General Eric Holder issued a statement yesterday announcing the creation of a new Professional Misconduct Review Unit within the Department of Justice. The Unit will be tasked with handling DOJ attorney disciplinary actions that result from investigations by the Office of Professional Responsibility (OPR). Holder’s stated goal in creating the Unit is to ensure “consistent, fair, and timely resolution” of allegations of misconduct – a laudable standard.

Had this Unit been in place during DOJ’s investigation into the architects of the torture memos, we wonder if the outcome would have been different.

Following the conclusion of a five-year investigation by OPR into the authors of the torture memos, David Margolis, a career attorney with DOJ, was allowed to intervene and interfere with the OPR report’s conclusions. The OPR report concluded that John Yoo and Jay Bybee recklessly violated two rules of professional conduct, triggering a mandatory referral to the attorneys’ state bar associations for potential disciplinary action. But before the final report was released in February 2010, Margolis downgraded the findings and determined that Yoo and Bybee had only exercised “poor judgment” – not professional misconduct. As a result, more than eight years after the torture memos were written, the lawyers who crafted a scheme to torture people in U.S. custody have still not been held accountable for their actions.