The Justice Department likely won't press criminal charges against Bush administration lawyers who wrote secret memos approving torture techniques -- but that reportedly hasn't stopped the accused lawyers from working behind the scenes to butter up the officials who hold their fate in their hands.
A person familiar with the inquiry, who spoke on condition of anonymity, said investigators recommended referring two of the three lawyers to state bar associations for possible disciplinary action rather than pursuing a criminal case. The person was not authorized to discuss the inquiry.
The person noted that the investigative report was still in draft form and subject to revisions. Attorney General Eric Holder also may make his own determination about what steps to take once the report has been finalized.
Despite the likelihood that they won't face criminal charges, the lawyers have reportedly roped senior Bush staff into convincing the Justice Department to soften the indictments, according to the Washington Post.
The attorneys, Jay Bybee, John Yoo and Steven Bradbury, worked in the Justice Department's Office of Legal Counsel and played key roles in crafting the legal justification for techniques critics call torture.
Bybee, Yoo and Bradbury have allegedly begun encouraging senior Bush officials who have pull on Capitol Hill to call and write to Justice Department higher-ups, who are still deciding how to proceed in the case. Lawyers for the men didn't immediately comment to the Post about the allegations.
Investigators initially recommended professional sanctions against Bybee, a judge on the 9th U.S. Circuit Court of Appeals and Yoo, a professor at the University of California-Berkeley, but not Bradbury, who returned to private practice after leaving the government at the end of President George W. Bush's presidency, the source said. That would come in the form of recommendations to state bar associations, where the most severe possible punishment is disbarment.
The Justice Department notified two senators by letter that a key deadline in the inquiry expired Monday, signaling that most of the work on the matter was completed. The letter does not mention the possibility of criminal charges, nor does it name the lawyers under scrutiny.
The inquiry has become a politically-loaded guessing game, with some advocating criminal charges against the lawyers and others urging that the matter be dropped.
Yoo's lawyer Miguel Estrada said he signed an agreement with the Justice Department not to discuss the draft report. Lawyer Maureen Mahoney, who is representing Bybee, did not immediately return a call seeking comment.
"The former employees have until May 4, 2009 to provide their comments on the draft report," states the letter from Assistant Attorney General Ronald Weich to Sens. Sheldon Whitehouse, D-R.I., and Dick Durbin, D-Ill.
Whitehouse has scheduled a hearing on the issue next week.
Now that the deadline has passed, there is little more for officials to do but make revisions to it based on the responses they've received, and decide how much, if any, of the findings should be made public.
Both Whitehouse and Durbin have pressed the Justice Department for more information about the progress of the investigation by the Office of Professional Responsibility.
The office examines possible ethics violations by Justice Department employees. On rare occasions, those inquiries become full-blown criminal investigations.
The language of the letter, dated Monday, indicates the inquiry will result in a final report. The letter notes that Holder and his top deputy will have access to any information they need "to evaluate the final report and make determinations about appropriate next steps."
The results of the investigation were delayed late last year, when then-Attorney General Michael Mukasey and his deputy asked investigators to allow the lawyers a chance to respond to their findings, as is typically done for those who still work for the Justice Department.
Investigators also shared a draft copy with the CIA to review whether the findings contained any classified information. According to the letter, the CIA then requested to comment on the report.