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Internal DOJ Investigation of OLC Advice-Giving

By Jack M. Balkin

It was widely reported last week that the head of DOJ's Office of Professional Responsibility (OPR), Marshall Jarrett, had written to Senators Durbin and Whitehouse to inform them that OPR is investigating OLC's legal advice with respect to waterboarding and other coercive interrogation techniques. But it appears that, for whatever reason, none of the news sources bothered to upload or link to Jarrett's letter, nor to the letter from DOJ Inspector General Glenn Fine, explaining that the IG lacks statutory jurisdiction to engage in an inquiry of OLC.

Well here are those letters: Jarrett's, and Fine's.

Jarrett writes that his investigation is looking into whether the advice in the OLC memoranda (not only John Yoo's, but subsequent memos as well) was "consistent with the professional standards that apply to Department of Justice attorneys."

I have previously questioned whether such an ethics-based investigation makes any sense. My colleague David Luban has argued, alternatively, that it does. Whatever the merits of that particular argument might be, there is something else a bit odd about the OPR investigation: The new Attorney General has effectively adopted and ratified the post-Yoo OLC opinions as reflecting current, official DOJ views. How could OPR, which is subordinate to the AG, promulgate the conclusion that the legal advice the AG has embraced is not "consistent with the professional standards that apply to Department of Justice attorneys"? As Emily Bazelon points out in an excellent recent column, OPR does not appear to have the independent authority to overrule the AG in that respect.

Emily regrets that the DOJ IG, Glenn Fine -- who arguably has more statutory independence than OPR -- will not be involved in the investigation. As she explains, and as Glenn Fine notes in his letter, the IG lacks statutory jurisdiction to investigate DOJ legal advice-giving. (Fine has been seeking such authority for years, and he states in his letter than the current House has passed, and the Senate is considering, a bill that would give it to him. If anyone can provide cites or links to the relevant statutes and bills, I'd appreciate it.)

Myself, I remain a bit skeptical of what could come from such an investigation, by either OPR or the IG. If either of them "found" that OLC's advice was wrong, or even egregiously wrong, it would remain the case that OLC, the AG and the President disagree. And they are the relevant decisionmakers on such questions within the Executive branch. What is needed is a repudiation of the advice at the OLC and AG level, something that is unlikely to occur, if at all, until a new Administration is in place.

Full post as published by Balkinization on February 27, 2008 (boomark / email).