…and that is a Good Thing. All the more after the runaway power trip of a trumped up (and disastrous, and despotic) thesis of a universally unitary executive.
The announcement of the nomination of Dawn Johnsen as Assistant Attorney General for the Office of Legal Counsel (OLC) merits a chorus of halleleujahs.
Young and feisty, she is a welcome prescriptive to the aberration and constitutional callousness of the past eight years. Why? Just for starters, how about:
• Recognition first and foremost that the Department of Justice (DOJ) is beholden to the Constitution and the rule of law
• Further acknowledgment that, while its officers serve at the pleasure of the President, their client as counsel is we the people and not the executive
President-elect Obama’s broad and strong background in constitutional law is beyond heartening, it is – thus far – both a boon and a balm.
Some short background bits on the OLC, Ms. Johnsen, and her firmly rooted stances follow.
#1:
OLC does not provide “advice” to the President that he’s free to accept or reject. Its legal opinions are binding on the President. If OLC says that “X is illegal,” then — absent some extraordinary actions (such as the President formally rejecting the OLC opinion, which almost never happens) — then the formal position of the Executive Branch is that “X is illegal.”
[snip]
OLC isn’t the Superman of the U.S. Government. A President who is determined to break the law can do so even with a hostile OLC. But it’s not merely an advisory office. It has formal power, power which can bind the President, and its actions can make presidential lawbreaking much harder or much easier. Source
#2:
The lesson we should draw from the Bush administration is not that we should dramatically alter our understanding of longstanding presidential authorities. Rather, it is the urgent need for more effective safeguards and checks from both within and without the executive branch to preclude any future recurrence of the Bush administration’s appalling abuses. Citation
#3:
“OLC must be prepared to say no to the President. For OLC instead to distort its legal analysis to support preferred policy outcomes would undermine the rule of law and our democratic system of government. The Constitution expressly requires the President to “take Care that the Laws be faithfully executed.” This command cannot be reconciled with executive action based on preferred, merely plausible legal interpretations that support desired policies, rather than an attempt to achieve the best, most accurate interpretations - especially when the enforcement of a federal statute is at stake. For OLC to present merely plausible interpretations framed as the best interpretations would, as the Guidelines acknowledge, “deprive the President and other executive branch decisionmakers of critical information and, worse, mislead them regarding the legality of contemplated action.” Alternatively, if such advice were given with a wink and a nod so that the President was not actually misled, OLC would be wrongfully empowering the President to violate his constitutional obligations.”
[snip]
“OLC should follow a presumption in favor of timely publication of its written legal opinions. Such disclosure helps to ensure executive branch adherence to the rule of law and guard against excessive claims of executive authority. Transparency also promotes confidence in the lawfulness of governmental action. Making executive branch law available to the public also adds an important voice to the development of constitutional meaning - in the courts as well as among academics, other commentators, and the public more generally - and a particularly valuable perspective on legal issues regarding which the executive branch possesses relevant expertise. There nonetheless will exist some legal advice that properly should remain confidential, most notably, some advice regarding classified and some other national security matters. OLC should consider the views regarding disclosure of the client agency that requested the advice. Ordinarily, OLC should honor a requestor’s desire to keep confidential any OLC advice that the proposed executive action would be unlawful, where the requestor then does not take the action. For OLC routinely to release the details of all contemplated action of dubious legality might deter executive branch actors from seeking OLC advice at sufficiently early stages in policy formation. In all events, OLC should in each administration consider the circumstances in which advice should be kept confidential, with a presumption in favor of publication…. Source
#4:
…Where is the outrage, the public outcry?! The shockingly flawed content of this memo, the deficient processes that led to its issuance, the horrific acts it encouraged, the fact that it was kept secret for years and that the Bush administration continues to withhold other memos like it–all demand our outrage.
Yes, we’ve seen much of it before. And yes, we are counting down the remaining months. But we must regain our ability to feel outrage whenever our government acts lawlessly and devises bogus constitutional arguments for outlandishly expansive presidential power. Otherwise, our own deep cynicism, about the possibility for a President and presidential lawyers to respect legal constraints, itself will threaten the rule of law–and not just for the remaining nine months of this administration, but for years and administrations to come. Source
#5:
…whenever any government or people act lawlessly, on whatever scale, questions of atonement and remedy and prevention must be confronted. And fundamental to any meaningful answer is transparency about the wrong committed. . . .
The question how we restore our nation’s honor takes on new urgency and promise as we approach the end of this administration. We must resist Bush administration efforts to hide evidence of its wrongdoing through demands for retroactive immunity, assertions of state privilege, and implausible claims that openness will empower terrorists. . . .
Here is a partial answer to my own question of how should we behave, directed especially to the next president and members of his or her administration but also to all of use who will be relieved by the change: We must avoid any temptation simply to move on. We must instead be honest with ourselves and the world as we condemn our nation’s past transgressions and reject Bush’s corruption of our American ideals. Our constitutional democracy cannot survive with a government shrouded in secrecy, nor can our nation’s honor be restored without full disclosure. Source
Putting Justice back into and paramount at a DOJ which has come to stand for Department of Janus* over the course of the woebegone G. Walker administration is laudable — and a dire necessity.
*In Roman mythology, the doorkeeper of heaven, guardian of doors and gates, entrances or beginnings of things; represented with two faces – one on the front and another on the back of his head; the doors of his temple in Rome were always open in time of war and closed in time of peace. Source