Legal News

John Yoo Hires Miguel Estrada; DOJ Foots The Bill

By Nathan Koppel

Since Sonia Sotomayor can not command all of our attention, we turn briefly this morning to John Yoo, another staple of the Law Blog.

In June, as we blogged here, a San Francisco federal judge ruled that convicted terrorist Jose Padilla can sue Yoo, the Bush administration lawyer who authored some of the now famous war-on-terror memos, including one that opined the military can use "any means necessary" to hold suspected terrorists.

Judge Jeffrey White ruled that Padilla, who is serving a 17-year sentence on terror charges, may be able to prove that Yoo's memos "set in motion a series of events that resulted in the deprivation of Padilla's constitutional rights."

Yoo has now turned for help to Miguel Estrada, the powerhouse Gibson Dunn appellate litigator who was nominated by Bush to serve on the D.C. Circuit Court of Appeals. Estrada's nomination was scuttled by Democrats, a point repeatedly harped on by Republican senators in the Sotomayor confirmation hearings. (Okay, we can only turn away from Sonia for so long.)

The Justice Department had been defending Yoo in the Padilla suit, but DOJ has agreed to foot the bill for Estrada's services, according to an article today in The Recorder. Conflicts of interest are behind the change in counsel, ethics experts say.

“The department so far has been able to provide direct representation in this case by arguing that the lawsuit should be dismissed for qualified immunity reasons, and that remains the department’s position,” a Justice spokeswoman told the Recorder. “But as this case moves forward, the defendant deserves the opportunity to retain defense counsel that can make any and all arguments available on his behalf.”

Estrada is also defending Yoo, who is now a law professor at Berkeley, in an internal Justice Department investigation of the memos. (Here's an earlier LB post on that investigation, which is ongoing.)

NYU law school ethics guru Stephen Gillers told the Recorder that the Justice Department should not have been Yoo’s sole counsel in the first place, because of possible conflicts of interest. Yoo, Gillers says, may potentially want to make arguments implicating others Bush officials, such as former AG Alberto Gonzales or Dick Cheney's former counsel, David Addington.

“Just hypothetically, [Yoo] might say, ‘I was ordered to do this by David Addington, so he should be in this [case] also,’” Gillers said. “DOJ’s not going to sue David Addington on behalf of Yoo.”

Full post as published by Law Blog - WSJ.com on July 17, 2009 (boomark / email).