One point that Leiter makes is particularly worth repeating:
There is lots of speculation that maybe what Yoo did (writing the torture memos) constitutes a crime or legal malpractice. Maybe it does, maybe it doesn’t: it is unclear based on the available facts (though, on both counts, the available facts strongly suggest a negative answer, especially as to malpractice). It is not for the University of California at Berkeley to investigate crimes or investigate legal malpractice of its faculty, based on speculations that are, quite clearly in most cases, driven by those who find Yoo’s views morally odious. Universities have no competence to carry out such investigations . . . and the mere prospect of such investigations would chill academic work on controversial matters almost totally.
If an institution actually charged with investigating crimes or legal malpractice–e.g., a prosecutor, a court, a congressional committee, a bar disciplinary committee–were to conduct a proper investigation and issue a finding of misconduct that would surely then be grounds for the university to open a disciplinary proceeding. But as things stand, there are no such grounds. . . . most of those chattering about “possible” crimes and malpractice soon make it clear that what they really want is for John Yoo to be punished for his ideas and for the fact that some government officials may have acted on those ideas. That’s a standard that violates the First Amendment rights of state university faculty and betrays the moral ideal of academic freedom.