It is not an answer for the White House to assert that the legal checks "worked" in James Comey's case, that the president eventually changed the secret NSA program to comport with the advice of his lawyers. As many as 30 top DoJ officials had to threaten to resign before that happened—and one may have seen his career at DoJ short-circuited over his defiance. Moreover, the program operated illegally for weeks until it was changed. Even today, the public does not know what that original program looked like—what Comey's objections were—but we do know that it must have been extreme, because even as ultimately approved by Comey and others, the NSA program violated the requirements of the Foreign Intelligence Surveillance Act. That's hardly a triumph for the rule of law.
Congress should take the shocking specter of the threatened mass Bush DoJ resignations as a prompt for jump-starting a nonpartisan conversation about how the president's lawyers should safeguard the rule of law. Where is the line that the president should not cross?
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.
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