This is what I used to do when I worked for the Department of Justice. I was part of the "Bivens section," sometimes referred to as the vivisection. We defended government officials sued in their personal capacity. The way it works is that if you're sued in your individual capacity, you may obtain government representation if 1) you acted within the scope of your employment and 2) it is in the government's interest to defend you. Yoo was represented by a government lawyer until this month.
Now, Yoo has a "lesser" form of representation, but the taxpayers are still footing the bill. It's called "private counsel at government expense." In case you need a visual, here's my rant on the Government Accountability Project's YouTube channel:
If for some reason, the Justice Department has a conflict in representing you directly, you may qualify for private counsel at government expense. But it still has to be in the government's interest to defend you.
I would like to know how on Earth John Yoo was initially found to have been acting within the scope of his employment (even though Yoo publicly acknowledged that he "stepped beyond his role as a lawyer," and even though the Justice Department now agrees with that assessment), and how it's still in the government's interest to defend him.
The government denies representation to government officials in excessive force cases and many other instances. That does not deprive the employee of a defense. It just means that the wayward employee has to hire counsel at their OWN expense and pay any judgment out of their OWN pocket. The employee's defense attorney can then argue self-defense, necessity, or whatever else may have given the employee reason to, hypothetically, beat prisoners.
Government representation, or private counsel at government expense, is not an entitlement. The Code of Federal Regulations makes this clear (28 C.F.R. 50.15 et seq.). And the government doesn't necessarily defend you if you make a good-faith mistake when acting in your official capacity, for example accidentally shooting Randy Weaver's pregnant wife in the Ruby Ridge standoff.
Declining to foot the bill for Yoo's representation will not have a chilling effect on the ability of government lawyers to give candid, good-faith advice for fear of being held personally liable. Most government advisors I know do exactly that--they act in good faith, offer their assessment of the law as objectively as possible, give the client their best assessment of what the law requires or allows, and explain the law adequately to their client so that the client can make informed decisions.
So, feel free to contact the Justice Department's Civil Division, Torts Branch (Constitutional Tort Litigation Section) and ask to see the representation memo that argues why John Yoo is entitled to private counsel at government expense: (202) 616-4140. The director is Tim Garren. Let me know what they say.
