I am not a constitutional lawyer. I think most non-lawyers would be surprised to find that a vast majority of U.S. constitutional law is mind-numbingly boring.
But a good friend from law school whoÂ isÂ a bona fide constitutional law expert has repeatedly assured me that Yoo's so-called "Torture Memo" is undeniably false, and that Yoo is effectively guilty of professional misconduct. Had the Torture Memo been submitted to a court, Yoo's failure to even addressÂ Youngstown Sheet & Tube Co. v. SawyerÂ (1952)Â would have violatedÂ Rule 3.3(a)(2) of the Model Rules of Professional Conduct, which prohibits lawyers from "knowingly . . . fail[ing] to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel." On grounds of professional misconduct alone, Yoo could--and should--be fired from Berkeley Law.
DeLong's reasoning is solid, but the arguments about academic freedom are extraneous. Repeat after me:Â OLC memos are not academic scholarship. "Academic freedom" is not the same thing as "immunity for academics." Yoo is guilty of professional misconduct, and is probably criminally liable as well. Giving arguments about "academic freedom" the time of day is far too generous, in my opinion.