How should the president's lawyers advise a reluctant White House?

The law, lawyers, and the court.
June 8 2007 2:55 PM

Law and Orders

How should the president's lawyers advise a reluctant White House?

James Comey. Click image to expand.
James Comey

In the drip, drip, drip of emerging revelations in the so-called U.S. attorneys scandal, yesterday's dose was stunning: Vice President Dick Cheney was personally involved in seeking to reverse the Justice Department's determination that the president's secret NSA surveillance program was illegal; at least eight (and as many as 30) DoJ officials were prepared to quit over this decision to proceed against DoJ advice; and one of those lawyers subsequently saw his promotion scuttled by Cheney himself.

None of this will stop those trying to bury the scandal from continuing to shrug it off: "So what?" they will say. "U.S. attorneys and the president's lawyers at the Justice Department serve at the pleasure of the president. And if the president thought his NSA program was legal, it doesn't matter that he overruled the DoJ." No laws have been broken, no fish in this pond, no smoking gun.

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Here are some questions, though, that still beg for attention: What does it mean to say that the president has broken a law? What is the proper role for the president's lawyers? Should they limit themselves to being guns-for-hire, crafting creative legal justifications for any program the president chooses to pursue? Or should they be impartial referees, providing accurate and principled legal analysis even when it blocks an initiative the president is committed to? And if the president's lawyers conclude that he's about to do something illegal, can he simply disregard the conclusion as he would unwelcome advice from his policy advisers?

These questions are no longer just hypothetical. We've seen them played out, and in the most unlikely of settings: a hospital intensive-care room. The scene is now familiar: In March 2004, the White House insisted on access to a very ill Attorney General John Ashcroft for approval of its warrantless surveillance program. Then-Acting Attorney General James Comey, who had already denied approval, raced to the hospital to protect his boss from being pressured by then-White House Counsel Alberto Gonzales. With Comey at his side, Ashcroft mustered his strength to tell Gonzales "no."

The question remains: Were Comey and other DoJ lawyers wrong to threaten to quit when the program proceeded without any DoJ authorization? After all, doesn't the president have ultimate authority to make such calls? What are the boundaries between lawyers' responsibility to the president and their duty to uphold the Constitution?

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."

The president unquestionably possesses very broad discretion to hire and replace those who serve at his pleasure, and that leeway is fundamental to his authority to control the executive branch. He has the authority to disagree with his lawyers when he honestly determines that they are wrong, based on a principled, alternative best reading of the law. But the president clearly oversteps permissible bounds—and in the process endangers our constitutional democracy—if he or his vice president retaliates against his lawyers for standing up for the rule of law or proceeds against their advice without a valid legal basis.

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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