Metropolitan News-Enterprise


Tuesday, October 25, 2011


Page 1


Judge Jay Bybee Reports Receiving Over $3 Million in Free Services From Latham & Watkins




Ninth U.S. Circuit Court of Appeals Judge Jay Bybee received more than $3 million in free legal services from Latham & Watkins, in defense of allegations that he violated ethics rules while serving as an assistant U.S. attorney general, according to financial disclosures filed by the judge.

Documents posted yesterday on the website of the National Law Journal, including Bybee’s “Self Initiated Amendment[s]” to his 2009 and 2010 financial disclosure forms, submitted on May 11 of this year, show that Latham contributed more than $3.25 million of the $3.4 million in free services the judge received.

The publication said it obtained the documents under an Ethics in Government Act request, and had also obtained records from earlier years from an online database maintained by Judicial Watch, a conservative group in Washington that archives disclosure reports.

Bybee, who headed the Office of Legal Counsel in the Justice Department under then-President George W. Bush, and fellow Assistant Attorney General John Yoo were the subjects of an investigation by the DOJ Office of Professional Responsibility. The probe, which lasted from 2004 to 2009, focused on memos in which the high-ranking officials endorsed the legality of what were dubbed “enhanced interrogation techniques” for dealing with captured “enemy combatants.”

Critics said the memos were politically motivated, and that the approved techniques amounted to torture in violation of international law. The OPR’s initial report recommended that Bybee and Yoo be referred to their state bars for possible discipline, but Associate Deputy Attorney General David Margolis rejected that conclusion.

Margolis wrote that Bybee and Yoo had used “poor judgment”: but did not “knowingly or recklessly provide incorrect legal advice or ... provide advice in bad faith.” The NLJ reported that Mahoney and partner Everett “Kip” Johnson Jr. wrote a 157-page rebuttal to the initial report.

Yoo currently teaches at UC Berkeley School of Law, but is not admitted to practice in California. Investigators for the U.S. House of Representatives Judiciary Committee conducted their own probe of Bybee, including an all-day interview at which the judge was accompanied by Latham of counsel Maureen Mahoney and several other firm attorneys, but the committee did not recommend impeachment or other action against the jurist.

Mahoney, herself a former Justice Department official, spearheaded the firm’s defense of Bybee. She is based in Latham’s Washington, D.C. office, has long supported Republican candidates for office, and was mentioned in news reports as a potential Supreme Court nominee during the Bush administration and as a potential nominee had John McCain won the White House.

Also reported by Bybee as providing free legal services were the New York firm of Davis Polk & Wardwell—where a roommate of Bybee during his Brigham Young University days, Randall Guynn, is a partner—and Hastings College of the Law Professor Geoffrey Hazard, an ethics specialist and author of a 2009 letter arguing that neither Bybee nor Yoo violated professional standards.

Bybee also reported having legal expenses paid by a blind trust set up by Guynn.

The NLJ said a check of Ninth Circuit case records reveals that Bybee has recused himself from cases involving Latham during the period in which he was receiving assistance from the firm. The publication also said it had received an e-mail from Mahoney, in response to a question, in which the attorney said the judge “has advised us that he will continue to recuse himself from Latham matters for some time.”

Bybee has served on the appeals court since 2003, when he was confirmed by a 74-19 vote. All of the “no” votes came from Democrats, including both of California’s senators. Opponents criticized him as having an overly narrow view of individual rights, particularly with regard to abortion.

The Oakland native, now 57, was also castigated for a law review article in which he criticized the Supreme Court’s decision striking down Colorado’s constitutional amendment barring enactment of gay rights laws.

Bybee’s undergraduate and law degrees are from BYU. He clerked for a Fourth Circuit judge after law school, then joined Sidley & Austin in 1981 as an associate in the Washington, D.C. office.

In 1984, he joined the DOJ, working first in the Office of Legal Policy and then on the Appellate Staff of the Civil Division. He served at the White House from 1989-91 as associate counsel to then-President George Bush, leaving in 1991 to join the law faculty at Louisiana State University.

He became a professor at the new law school at the University of Nevada, Las Vegas in 1999, taking a leave of absence in 2001 when he was named assistant attorney general.


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