Sunday, February 21, 2010

Yoo's Professional Misconduct

Although Associate Deputy Attorney General David Margolis has decided that John Yoo's "poor judgment" did not rise to the level of professional misconduct, the issue is not yet settled, because what is essentially the same issue is being litigated in federal district court, and is now before the 9th Circuit Court of Appeals.

In the recently-released final report of the Office of Professional Responsibility within the U.S. Department of Justice, the OPR concluded that many of the misstatements and omissions in the legal memoranda that John Yoo (then in the Office of Legal Counsel) approved on the use of "enhanced interrogation techniques" were intentional and constituted professional misconduct because he failed to provide legal advice that was thorough, objective, and candid. The OPR concluded that Yoo failed to provide the proper level of legal advice because he "put his desire to accommodate the client" (i.e., the policy makers in the Bush White House) above his professional obligations.

In rejecting the conclusion that the misstatements and omissions constituted professional misconduct, Assoc. Deputy Attorney General Margolis disagreed that Yoo wanted to tell the policy makers within the Bush administration what they wanted to hear, and concluded instead that Yoo was telling the Bush administration what Yoo wanted them to hear. "While I have declined to adopt OPR's findings of misconduct, I fear that John Yoo's loyalty to his own ideology and convictions clouded his view of his obligation to his client and led him to author opinions that reflected his own extreme, albeit sincerely held, views of executive power while speaking for an institutional client."

But is the sincerity of Yoo's ideology a defense to charges of professional misconduct?

That issue may be addressed in a federal district court action brought by Jose Padilla against John Yoo in which Padilla alleges that John Yoo's memos resulted in Padilla's imprisonment (and mistreatment). Padilla v. Yoo, No. 3:08-cv-00035-JSW (U.S.D.C. N.D. Cal.) Yoo moved to dismiss the lawsuit on the grounds that, among other things, he was a federal officer entitled to immunity to suit. In a ruling last June, the court ruled that Yoo was not entitled to immunity because the opinions expressed in Yoo's memos violates "clearly established statutory or constitutional rights of which a reasonable person would have known."

The district court ruling is currently on appeal to the 9th Circuit (No. 09-16478), and one of the issues being argued is whether Padilla's complaint alleges facts that constitute unprofessional conduct by Yoo, and a brief filed by a group of professors of legal ethics say that it does. According to the "amicus" brief filed by "legal ethics scholars" last month, Padilla has alleged that Yoo "stepped beyond his role as a lawyer to participate directly in developing policy in the war on terrorism," and that allegation supports the conclusion that Yoo did not merely give "poor" or "incorrect" legal advice, but gave advice that violated ethical rules.

In other words, Margolis seems to believe that Yoo did not act unethically because he only allowed his own views to interfere with his obligation to give impartial legal advice, while the legal scholars filing the amicus brief with the 9th Circuit believe that Yoo acted unethically because he allowed his own views to interfere with his obligation to give impartial legal advice.

Now, the 9th Circuit is being asked to rule on allegations and not evidence, but the fact that the OPR has already concluded that Yoo's erroneous legal advice was not accidental but intentional suggests that Padilla will be able to prove the same thing. And Padilla may be able to avoid the mistake that the OPR may have made in assuming that Yoo gave bad legal advice to please the White House and failing to consider that Yoo might have given bad legal advice to please himself.

Friday, February 05, 2010

The Upcoming Tax Brawl

There's been some media attention to the strange one-year repeal of the federal estate tax, and a few comments on the failure of Congress to pass an "extenders" bill to prevent a number of tax provisions from expiring at the end of 2009, but I have yet to see any public comment on what will be THE political story of 2010, which is that all of the Bush tax cuts will be expiring at the end of the year and, unless Congress acts, almost every tax-paying American will be paying more in federal income tax next year.

For the wealthiest Americans, allowing the Bush tax cuts to "sunset" will be quite a shock. A family of four with $500,000 of income filing a joint return with no itemized deductions would pay $136,208 in federal income tax in 2010, but will have to pay $158,801 in 2011, a $22,607 increase, unless Congress acts. If that $500,000 of income includes qualified dividend income, which is taxed at the capital gain rate of 15% instead of the maximum rate of 35% on ordinary income, the results are even more dramatic. In 2010, $500,000 of income with $250,000 of qualified dividends would result in $89,201 of federal tax, but in 2011 the tax jumps up to $158,801, an increase of $69,600, or almost 80%, in only one year.

Barack Obama campaigned on the pledge (which he has repeated several times since being elected), that he will not raise taxes for those earning less than $250,000. For a family of four with $250,000 of income, their tax bill is $51,701 under current law, but goes to $59,341 in 2011, a $7,640 increase.

Reducing the family's income reduces the impact, but the impact is still there. For a family earning $50,000, the tax bill would be $2,763 under current law, but jumps to $3,878, more than $1,000 more, in 2010.

Even a family earning as little as $30,000 would be affected. That family would owe $400 in federal income tax in 2010, but if the 10% tax bracket and marriage penalty relief both expire, that family's tax bill more than doubles, going from $400 to $878.

And here is where the Senate will jump into inaction. As we have seen very clearly in the attempt at health care reform, it takes only 41 Republican votes in the Senate (which the Republicans now have with newly-elected Scott Brown seated) to block any attempt to raise income tax rates for the wealthy. But these tax increases are already enacted and will happen if Congress does nothing, and it also takes only 41 Democratic votes in the Senate (or the Democratic majority in the more progressive House) to block any extension of the tax cuts for the wealthy.

So it's going to be like health care, only worse. At least with health care, Republicans paid lip service to the idea of reform and compromise, but when it comes to taxes Republicans are going to even pretend to be interested in negotiating with Democrats. With increasing pressure from "tea partiers" and the extreme right, and facing election battles at the end of 2010, Republicans have no reason to do anything but draw a hard line and insist on making the Bush tax cuts permanent.

And Republicans also have every reason to block anything the Democrats try to enact, because they would really like to go into the 2010 election being able to point to enormous tax increases on working Americans in 2011 and blaming it on the Democrats who control Congress.

So it's going to be bloody. It's going to be a bare-knuckled street brawl with knives and chains, and if the Democrats don't get their act together and enact real tax reform before November, they're going to find themselves down on the ground, bloody, and being kicked in the face.