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Margolis overruled the conclusions of the OPR Report ,which recommended that John Yoo and Jay Bybee be referred to the bar for disciplinary proceedings. Margolis said that John Yoo and Jay Bybee were not guilty of professional misconduct. It is clear from reading this exchange that John Yoo believes that the president has a legal exception for mass murder. Does the president have a legal exception for genocide? Slavery? Does anything constitute legal misconduct in Mr. Margolis’s view? For elucidation on this question read Jack Balkin. - Bonnie
http://www.consortiumnews.com/2010/022010b.html
Jason Leopold at Consortium News:
“The OPR report included an exchange between an OPR investigator and Yoo regarding what he referred to as the "bad things opinion," what Yoo felt the President could do in wartime.
"What about ordering a village of [resistance] to be massacred?" an OPR investigator asked Yoo. "Is that a power that the president could legally-"
"Yeah," Yoo said.
"To order a village of civilians to be [exterminated]?" the questioner replied.
"Sure," Yoo said.
But Margolis, who suggested Yoo and Bybee's flawed legal work was due to efforts to prevent another 9/11, dropped OPR's "misconduct" conclusions.”
http://jonathanturley.org/2010/02/19/justice-department-declines-punishment-for-bush-officials-for-bad-judgment/#more-20615
Jonathon Turley at his blog with video clip of appearance on Countdown with Keith Oberman
http://balkin.blogspot.com/2010/02/justice-department-will-not-punish-yoo.html
Jack Balkin at Balkinization:
“Instead, Margolis argues that, judging by (among other things) a review of D.C. bar rules, the standard for attorney misconduct is set pretty damn low, and is only violated by lawyers who (here I put it colloquially) are the scum of the earth. Lawyers barely above the scum of the earth are therefore excused.
Margolis concludes that Yoo and Bybee exercised poor judgment and made bad legal arguments. But lawyers often make arguments that are bad or even laughably bad, and this by itself does not violate the very low standard set by rules of professional responsibility. These rules are set up by jurisdictions to weed out the worst offenders, leaving the rest of the legal profession to make entirely stupid, disingenuous and asinine arguments that normal people with functioning moral consciences would not make. That is to say, rules of professional misconduct are aimed at weeding out sociopaths and people driven to theft and egregious incompetence by serious drug and alcohol abuse problems; they do not guarantee that lawyers will do right by their clients, or, in this case, by the Constitution and laws of the United States of America. In effect, by setting the standard of conduct so low, rules of professional conduct effectively work to protect all those lawyers out there whose moral standing is just a hair's breadth above your average mass murderer. This is how the American legal profession simultaneously polices and takes care of its own.
To show misconduct, according to the standard that Margolis finds most relevant, one would have to show that Yoo or Bybee intentionally made arguments that they knew were wrong and false or did so not caring whether they were wrong or false. That standard could not be met for Jay Bybee, because Bybee was, to put it bluntly, an empty suit who relied on the advice of others and didn't analyze the memos all that closely. He just signed the papers. This makes him pathetic, but not, in Margolis's view, someone who unambiguously violated existing rules of professional responsibility.
As for John Yoo, Margolis explains (although he puts it far more diplomatically) that Yoo was an ideologue who entered government service with a warped vision of the world in which he sincerely believed. Yoo had crazy ideas even before he entered government; which strongly suggests that he probably shouldn't have been hired in the first place. Therefore it is hard to conclude that Yoo deliberately gave advice that he knew was wrong to the CIA. Yoo isn't putting people on when he says the absurd things he says in these memos and elsewhere. He actually believes that the President is a dictator and that the President doesn't have to obey statutes that make torture a crime. He actually believes that you should read the torture statute so narrowly that it lets the CIA torture people. John Yoo used every trick in the book to twist the law because he actually believes in a law that is twisted. And Margolis points out that other department lawyers, who, presumably, did have properly functioning consciences and were not seriously incompetent, looked at the torture memos and told Bybee that, on the whole, in the context of the limited audience for the memos, and putting aside their most ridiculous claims, the torture memos made defensible legal arguments of the kind that lawyers sometimes make on behalf of their clients. It is important to understand that Margolis reached this conclusion not because Yoo's arguments were just or sensible, or even plausible, but because lawyers can make really really crazy arguments and still avoid professional sanction. This is less a defense of Yoo than an indictment of the doctrines of professional responsibility.
Margolis concludes (p. 67), perhaps more in sorrow than in anger, that Yoo did not intentionally give incorrect legal advice, although, Margolis admits that "[i]t is a close question." He notes that "OPR's findings and my decision are less important than the public's ability to make its own judgments about these documents and learn lessons for the future."
Margolis' last point is especially important, since the former Vice-President of the United States is now going around the country telling people that he supports waterboarding and actively sought to use it when he was in office. Put differently, there is at least one member of the previous Administration walking around that is an admitted war criminal, although, to be sure, confessing to the elements of a war crime on television apparently does not, at least in this country, lead to any serious danger that one will actually be prosecuted for such crimes.
Whether or not the DOJ refers Yoo and Bybee for professional discipline, no one should think that either man behaved according to the high standards we should expect of government attorneys. They, and the government officials who worked with them, shamed this nation. They dragged America's reputation in the dirt. They severely damaged our good name in the eyes of the world. They undermined the values this country stands for and that the legal profession should stand for. Nothing the DOJ does now--or fails to do--will change that.”
http://balkin.blogspot.com/2010/02/why-yoos-sincere-extremist-excuse.html
Brian Tamanaha at Balkinization
http://insideoutthebeltway.blogspot.com/2010/02/heads-i-win-tales-you-lose.html
Inside-Out the Beltway
http://www.huffingtonpost.com/daphne-eviatar/the-opr-report-is-only-th_b_470167.html
Daphne Eviatar at Huffington Post
http://www.mainjustice.com/2010/02/19/a-timeline-of-the-opr-report/
Joe Palazzolo at Main Justice – Politics Policy And The Law
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Prosecution 
