Presidential lawyers should operate as stewards of the rule of law; must be allowed to tell him "no"

[dajoki]

Law and Orders
How should the president's lawyers advise a reluctant White House?
By Dawn Johnsen
Posted Friday, June 8, 2007, at 2:55 PM ET
http://www.slate.com/id/2167985/fr/flyout

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.

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?

<<snip>>

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.

[napi21]

1. His lawyers ARE permitted to tell him "NO"! Unfortunately,

some are AFRAID to do so, and the rest he doesn't listen to!

I can't forget reading about how his staff actually draw straws to see who was going to have to give him bad news! I can't figure out if he hired a bunch of pansies or if he is SOOOO radical when he gets angry, he scares even the bravest of them!

[dajoki]

3. If they weren't afraid...

they would not be there. Remember the list who dared speak against this administration?

[Supersedeas]

2. Don't expect anything but Yes-men from the Gonzo's Miers and Bartletts of the world