ACSBlog: The Blog of the American Constitution Society

Writing in Slate, ACS Board of Directors member Dawn Johnsen discusses the role of Executive Branch lawyers in preserving the rule of law.  According to Professor Johnsen, Bush Administration attorneys have departed from a bipartisan prior consensus by acting as advocates for the Administration's policy preferences rather than as neutral legal advisors:

The proper role for presidential lawyers is actually quite clear, although more nuanced than either zealous advocate or neutral arbiter. The Constitution explicitly commands the president to "take Care that the Laws be faithfully executed," and it is up to the attorney general and, under his direction, DoJ's Office of Legal Counsel to provide the analytical expertise the president needs to ensure the legality of his administration's actions. Presidential lawyers should operate first and foremost as stewards of the rule of law and our constitutional democracy. Their legal advice must reflect an accurate and principled view of the law, not just plausible, ends-driven rationalizations. And in order to do that with any effectiveness, they must be allowed to tell the president "no. . . ."

A group of former DoJ lawyers has provided a good starting point in developing consensus guidelines based on longstanding bipartisan tradition. (Disclosure: I am a co-author.) These guidelines balance the responsibilities of the president's lawyers to him and his policy agenda with their responsibility to the institution of the presidency and the law itself. Among the best practices: Provide the president with "an accurate and honest appraisal of applicable law, even if that advice will constrain the Administration's pursuit of desired policies"; advice should "reflect all legal constraints, including the constitutional authorities of the coordinate branches of the federal government"; and "on the very rare occasion that the executive branch—usually on the advice of OLC—declines fully to follow a federal statutory requirement, it typically should publicly disclose its justification."

With a handful of admirable exceptions, President Bush's lawyers have failed to live up to these best practices where it has most mattered. They have not provided honest appraisals of the laws relevant to the president's most controversial policies, at least none that have been made public. They have not publicly disclosed executive actions that violate federal statutes, forcing Congress and the public to rely upon leaks for essential information. They have often, in short, behaved as advocates of the president at the expense of the rule of law.

Presidential lapses can be found throughout history, from administrations on both sides of the aisle. The Framers anticipated as much. The objective, going forward, is to deter future lapses from presidents of both parties. And that deterrence rests on the quality of the advice obtained from presidential lawyers. If these lawyers are urged to tell the president only half the story, if they are punished for saying that a proposed program would be illegal, and if they are forced to resort to threats of en masse resignations in order to stop unlawful governmental actions, our very constitutional democracy is in peril. If the president creates such a culture of disdain for the rule of law, Congress must step in.