The Breakfast Table

Meanwhile, at the White House …

Dear Dahlia and Paul,

Dahlia is right that the issues pending before the court at this end-of-term time seem less weighty than in prior years, and may in fact be overshadowed by constitutional and statutory questions pending before the other branches of government. The debate over whether the current military operations in Libya are now in violation of the War Powers Resolution seems more significant than some of the matters about which the justices are opining.

The war-powers debate serves as a reminder that some important legal interpretations are made outside the courts. A president’s decision that the military operations are lawful is final. Although some members of Congress have filed suit arguing that the operations violate both the Declaration of War Clause of the Constitution and the War Powers Act, that suit is sure to be dismissed for lack of standing.

So, the executive branch has the final word. That fact is no reason for those officials to treat such questions lightly. On the contrary, the finality of some executive legal decisions makes it all the more imperative that the executive proceed with the greatest possible care in answering those legal questions. That is why there is so much concern about the way in which the Obama administration determined that the Libyan operations comply with the War Powers Resolution.

I don’t know the details of how those legal decisions were made. But I am distressed that the White House press secretary keeps saying it was a fine process because the White House counsel had informal opinions from lawyers from all the relevant departments and the president signed off on the final decision.

That would be a fundamentally flawed process. A president should get his primary direction on major questions of domestic law from the Department of Justice, not from the White House counsel or from any of the operational departments of the government. And within the Department of Justice, the dispositive role should be played by the Office of Legal Counsel.

It may not be immediately obvious why it matters so much which lawyers decide. But it matters greatly. The Justice Department is a far superior place to make legal decisions. I served for a few months (in 1993) in the White House counsel’s office and for a few years (1993 to 1996) as head of the Office of Legal Counsel in the Department of Justice. In my experience, the difference in institutional setting makes a significant difference. It is much easier to get legal questions right at OLC.

Everyone in the White House is a political appointee. The lawyers serving there swim in a pool that is dominated by policy and politics. There is no shame in that: Politics is the way we govern ourselves in a democracy. But it is not now and never has been a proper place for making legal decisions binding on the executive branch.

I can attest that OLC in administrations of both political parties has many times said “no” to requests urgently pressed upon the office by officials from the White House or other agencies. The institutional constraints on OLC are highly conducive to sound legal judgment. The OLC lawyers do their work in a setting that is full of career attorneys who are (or should be) consulted on every major legal decision. And OLC is guided by both institutional precedent and a long tradition of careful process. None of these critical elements exist in any White House counsel’s office, in any administration.

There are outstanding lawyers in the White House, at the State Department, and in the Pentagon. Their views are properly sought out and given great weight by OLC. But in the end it is the Justice Department that should decide questions of domestic law. The Justice Department does not tell the State Department how to conduct diplomacy or the Defense Department how to conduct military operations. And those departments and the White House counsel’s office, all of which have operational responsibilities other than getting the law right, should not be telling the Justice Department and OLC how to decide legal questions.

Trevor Morrison, who has worked in the White House counsel’s office, makes this point well in his article, “Constitutional Alarmism” (PDF):

Unlike OLC, the Counsel’s Office does not have a decades-long practice (inherited from an even longer tradition among Attorneys General) of providing formal legal advice based on its best view of the law. Nor has it generated a body of authoritative precedents to inform and constrain its work. It operates within, not outside, the politically charged atmosphere of the White House.

For this reason, he notes, “The[se] very institutional factors [making] the Counsel’s Office more likely to say yes to the President also make its advice dramatically less valuable when trying to defend an action to a skeptical third party—whether Congress, the press, or perhaps ultimately a court.”

As with any issue raised anywhere in the executive branch, the president is constitutionally empowered to make the final decision. But before making a decision contrary to legal advice provided by OLC that the proposed executive conduct would be unlawful, the president should at a minimum meet face to face with the head of OLC and the attorney general, address their concerns and conclusions, and remain convinced that their legal conclusion is wrong.

With one horrific exception—the indefensible failure of OLC to provide proper legal advice on torture and electronic surveillance in the administration of George W. Bush—the disinterested legal decision-making process of OLC has long constituted a vital check on executive power. That check simply won’t exist if critical legal decisions are made by having a White House counsel informally consult with lawyers from a variety of agencies and presenting all those views to the president. Instead of publicly defending the “informal” process by which the Libyan war-powers decision was made, the White House needs to assure us that such a process was an aberration that will never be repeated.

I have always thought that the opinions of OLC in administrations of both political parties (with the torture exception noted above) held up quite well in comparison with the opinions that emerge from the Supreme Court. I’ll be interested in how well the justices’ end-of-term opinions survive your critical assessment.