That's Your Opinion
I think Richard Epstein has it right about the DOJ's report on the John Yoo "torture" memos. He calls the memos "bunk" but still believes absolute immunity is necessary for government employees working in their official capacity.
Given these institutional risks, good faith is not the right test. What is needed is absolute immunity from investigation. Discipline should be left to cases like bribery, insubordination, and unauthorized document leaks. It should not extend to errors in legal judgment, however egregious. The argument for this position does not seek perfect justice. Instead it is consciously content to accept a lesser evil in the case to preserve the larger gain to DOJ as a whole.
Even under qualified immunity, lawyers writing advisory opinions will have to worry about being brought up on charges, especially if a new party takes over after they leave, or public opinion shifts. They'll become paralyzed, especially when dealing with controversial issues.
I believe in government being responsible for its actions, but there are many ways to deal with political disagreements that stop well short of prosecution.
posted by LAGuy @ 12:02 AM
5 Comments:
Of course, as a small government libertarian, he regards the interpretation of the Commerce Clause as bunk, too.
and the New Deal
The main point is not what he considers bunk, but do you want to be investigated on criminal charges for someone who considers your political opinions bunk.
I think this discussion is an echo of the Unabomber* discussion above. If he has crazy opinions on other things should we trust his opinion on this one?
For the record however I agree lawyers should not be prosecuted for bad opinions that their bosses want(how is it any worse than defense attorneys coming with theories to win their cases), However it has been good that light has been shed on the process making a few of the "whaddaya want the answer to be, boss?" types nervous.
* Like Amy Bishop, a Harvard alum
It's one thing to shed light on the process. It's another to scare people so much that they won't take the job, or be afraid to write openly about certain subjects.
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