Tortured Memories—Of Yoo and Hillary—Legal Memoranda in the Shape of History

Slate's blog on legal issues.
April 2 2008 10:57 PM

Tortured Memories—Of Yoo and Hillary—Legal Memoranda in the Shape of History

If true, the allegations that Hillary Clinton as a young lawyer assisting the congressional Watergate investigation sought to hide files, and the precedents within them, in order to deny Richard Nixon legal counsel in the context of an anticipated impeachment inquiry are once quaint and deeply troubling. The story is quaint because it is reminiscent of the well-told tales of first law students hiding materials in inappropriate places in the law library during moot court competitions. Neither Hillary's alleged misdeed nor such law school chicanery is ethical, but neither would be modernly possible given the modern electronic nature of how we access materials today, be they books or files. So much for the quaint part.

Hillary's alleged efforts to deny legal counsel to Nixon also conflicts with the position then taken by one of the most notable liberal members of the House, Don Edwards of California. Edwards had a reputation for taking brave stands against the remnants of Joe McCarthy's House Un-American Activities Committee and the FBI abuses that ironically enough would give rise to the Keith case and FISA. Edwards did not see civil liberty with a partisan glint, and he was one of the strongest voices against those in the Democratic party perhaps we are now learning misadvised by the then Hillary Rodham advocating the denial of  legal counsel to President Nixon in his prospective impeachment trial.


So the troubling part of this swirling story is not just that the revelation may confirm a longer and deeper pattern of prevarication beyond the Bosnian sniper story , but also that it suggests a calculated distortion of the law aimed at adversely affecting both individual right and democratic process. Tonight on the NewsHour , New York Times reporter Eric Lichtbau called the newly released John Yoo memorandum "shoddy." I think that an unfair characterization given the intelligence of Professor Yoo and an insufficiently nuanced characterization given the context of 2003 and the more careful analysis Marty Lederman is supplying on the topic on this site. It is a description that also fails to capture how ill-served the president and the executive branch have been by the unprecedented turnover and number of acting officials at the helm of the once venerable Office of Legal Counsel, which is intended not only to make tough calls that may be politically unpopular, but also to have the good sense to send back rough drafts of legal analysis or at least not circulate them for political acceptability. But however one pieces together the story of Messer's. Bybee, Yoo, Levin, Goldsmith, Bradbury (I know I must be leaving someone out) in the OLC, the claimed offense of Mrs. Clinton is not sloppy, but corrupt, work.

Given the cultural significance of Mrs. Clinton's run for the presidency, I hope the allegation proves false. It is healthier for the body politic for Mrs. Clinton to lose to Sen. Obama on the merits . If she is dispatched on character failing, it will stir up all the justified and unjustified animosities that her husband's impeachment ordeal generates in public discussion. 

There is a different account of Hillary's service in the Annual Survey of American Law. There it was written, "In 1974, while she was serving on the Impeachment Inquiry staff of the Judiciary Committee working on the Watergate proceedings, Hillary Rodham was Sara Ehrman's houseguest for nine months." As Ehrman tells it, "She was brilliant, she was a star, she could have done anything in Washington."

It would be most unfortunate were "anything" now to have a much different meaning than what was intended by the Survey's laudatory profile namely, in fact, she did anything she wanted, including putting herself above the law.


The Juice

Ford’s Big Gamble

It’s completely transforming America’s best-selling vehicle.

Should the United States Grant Asylum to Victims of Domestic Violence?

The Apple Watch Will Make Everyone Around You Just a Little Worse Off

This Was the First Object Ever Designed

Don’t Expect Adrian Peterson to Go to Prison

In much of America, beating your kids is perfectly legal. 


How the Apple Watch Will Annoy Us

A glowing screen attached to someone else’s wrist is shinier than all but the blingiest jewels.


A Little Bit Softer Now, a Little Bit Softer Now …

The sad, gradual decline of the fade-out in popular music.

Is Everyone Going to Declare Independence if Scotland Does It? 

I Tried to Write an Honest Profile of One of Bollywood’s Biggest Stars. It Didn’t Go Well.

Trending News Channel
Sept. 12 2014 11:26 AM Identical Twins Aren’t Really Identical
  News & Politics
Sept. 12 2014 7:24 PM Come and Take It Libertarians fight for people whose property was seized by the police.
Sept. 12 2014 5:54 PM Olive Garden Has Been Committing a Culinary Crime Against Humanity
Sept. 12 2014 3:32 PM Yes, Those Straight Guys Who Wed for Rugby Tickets Are Mocking Marriage. What’s New?
  Double X
The XX Factor
Sept. 12 2014 4:05 PM Life as an NFL Wife: “He's the Star. Keep Him Happy.”
  Slate Plus
Behind the Scenes
Sept. 12 2014 5:55 PM “Do You Know What Porn Is?” Conversations with Dahlia Lithwick’s 11-year-old son.
Brow Beat
Sept. 14 2014 7:10 PM Watch Michael Winslow Perform Every Part of “Whole Lotta Love” With Just His Voice
Future Tense
Sept. 12 2014 3:53 PM We Need to Pass Legislation on Artificial Intelligence Early and Often
  Health & Science
New Scientist
Sept. 14 2014 8:38 AM Scientific Misconduct Should Be a Crime It’s as bad as fraud or theft, only potentially more dangerous.
Sports Nut
Sept. 12 2014 4:36 PM “There’s No Tolerance for That” Pete Carroll and Jim Harbaugh say they don’t abide domestic abuse. So why do the Seahawks and 49ers have a combined six players accused of violence against women?