Should John Yoo lose his job?

Now that we know the sort of “legal advice” John Yoo was giving George Bush, the question arises, “What, if anything, should Boalt Hall do about it?” Yoo has had tenure at Boalt since 1999. Tenure is revoked only under extraordinary circumstances. Are these circumstances “extraordinary” in the required sense?

Short answer: I don’t think so. But it’s complicated.

Actually, it seems to me that there are three questions here, overlapping but distinct:

1. Was Yoo’s advice bad law?

2. Did giving that advice constitute a crime?

3. If Yoo is never charged with a crime, should he be stripped of his tenure anyway?

Obviously, if the legal advice Yoo gave was sound as a matter of law, no matter how appalling morally, it would be hard to see why he should lose tenure at a law school for giving it. But assume for the moment &#8212 just as a hypothesis, mind you &#8212 that the President does not, and obviously does not, have the authority, even in wartime, to order his military or civilian subordinates to “crush the testicles of a child” or to search domestic premises at whim.

In the case of torture, which is a violation of domestic as well as international law, a legal opinion certifying the President’s possession of a power which in fact he lacks would have been an invitation to commit a crime. Of course, both the President and his subordinates could claim “advice of counsel” as a defense. The question posed by the Yoo case is “When does bad advice turn into conspiracy?”

It can’t be right to say that every time the courts overrule an OLC opinion, cutting back on some claimed Presidential power, the OLC lawyer who wrote that opinion has committed professional misconduct. Under any theory but the most extreme legal realism, it must be the case that some claims of Presidential power that are subject to legitimate dispute.

But it must equally be the case that other claims of Presidential power are clearly false: as, for example, if the President were advised that in wartime he has the emergency power to extend his own term, or to order that his opponent in a re-election contest be held incommunicado on the grounds that his campaign platform is inconsistent with the national security.

The same question applies, I assume, in private law practice: somewhere there must be a line between giving aggressive legal advice and incitement to crime. And where that line is might depend not only on the position finally taken but on indicia in the opinion of good faith, or its absence. For example, if Yoo in fact wrote an opinion about Presidential power in wartime that failed to cite the Youngstown case, an outside observer might decide that he hadn’t actually been trying to arrive at a reasonable legal conclusion.

So I conclude that it wouldn’t be beyond reason to put John Yoo on trial as a facilitator of the crime of torture, either under domestic U.S. law or at some future international war crimes trial. There must be precedent on all of this. I know that some of the Nazi judges were held to account at Nuremberg, but I can’t recall what happened to the lawyers who invented the doctrine that the oral command of the Fuhrer constituted the supreme law. (And if Yoo or his supporters think that comparisons with the Nazis are unfair, he should take it back about the testicles.)

If Yoo were tried and convicted of a felony, most universities would take that as ample reason to un-tenure him. But of course it’s grossly unlikely that he will ever actually face such a charge in a court of law.

So that raises question #3: in the absence of a criminal conviction, does Yoo’s conduct warrant removal of tenure? I don’t think so.

It wasn’t committed in connection with his university duties. The act of giving advice to the President, even bad advice, isn’t obviously inconsistent with competent academic performance. For a law faculty to set itself up as the judge of whether the advice Yoo gave fell so far below professional standards as to raise questions about his scholarly credentials, and to do so in a politically-charged atmosphere, strikes me both a terrible idea on its own merits and a precedent I’d hate to see established.

So, strange as it seems, I’m inclined to think that John Yoo belongs in prison (along with his client) but not to think that in the absence of a conviction he ought to be stripped of tenure.

Of course, that’s not to say that Yoo’s colleagues at Boalt have any obligation to give him collegial assistance in his scholarly work, have lunch with him, or even acknowledge his presence. I think the appropriate treatment is called “being sent to Coventry.”