The Intellectual Collapse of the Chicago School Yet Again...
Second-Best Punchbowlism

Hoisted from Comments: A Jury of Prosecutors Would Hang John Yoo High

Interesting that there would be no reasonable doubt here...

Joe S.:

What Do We Do About John Yoo?: Although I find most of Brad's arguments about Yoo's culpability persuasive, I'm not sure a jury would. But it's worth a try.

The most jury-friendly of these arguments, in my estimation, is the Youngstown Sheet & Tube argument. This argument would go that Yoo is a co-conspirator (torture and maybe murder) unless he was providing good-faith legal advice. I think that most courts would agree with this. The chief issue for the jury, then, is whether Yoo's advice was tendered in good faith. (The other issue for the jury is whether Yoo was aware of the consequences of his opinion.) The omission of Youngstown Sheet & Tube is the strongest argument against good faith, for exactly the reasons Brad adduced.

I've discussed this with my prosecutor buddies--the consensus seems to be that a jury of lawyers would hang Yoo high, but probably not 12 folk off the street. It's always hard to peek inside a person's head, especially when the external act (writing a memo, in this case) is facially innocent. And Yoo would get excellent defense counsel.

The lawyers I have talked to--let me put it this way, I have not yet found a lawyer who ever took Con Law who does not take the omission of any attempt to distinguish Youngstown from the Bush situation as a smoking gun.

Another thought: it is almost surely better for Berkeley to act against Yoo than for the Justice Department to do so--for the Justice Department to do so would be to take a step in the direction that led Caesar to lead his army across the Rubicon. To know that you may be unable to return to your tenured job if you are too corrupt in government service is a sanction that may influence behavior but will not increase the likelihood of a coup. To know that you may be sent to jail might have other consequences at some time in the future...