Obama's two top new legal men must end the Bush legacy of an administration that feels free to circumvent the law when it pleases.
Watergate, Iran-Contra, Guantanamo—there is something about the modern presidency that overwhelms the rule of law. That something is the White House staff, hundreds of bright and ambitious loyalists constantly struggling on the president’s behalf. This ongoing struggle has sometimes generated an “us against them” mentality that supported the repeated assaults on legality over the past generation.
Presidential assistants tend to view opposition as the product of selfish lobbyists and unimaginative bureaucrats. But it is often also rooted in legislation that prohibits some of the things that presidents want to accomplish. When confronting these legal obstacles, loyalists are tempted to pretend that they don’t exist. Instead of taking no for an answer, they indulge in “creative” acts of legal interpretation that dissolve seemingly clear legal restrictions. And when the cause seems compelling enough, they claim a presidential prerogative to violate the law.
This means that Obama’s appointment of Gregory Craig as White House counsel, and the likely appointment of Eric H. Holder Jr. as attorney general, are matters of great importance. In the first instance it will be up to Craig to resist this recurring institutional dynamic from within the White House. But Craig and Holder should do more than just resist. They should act decisively to reshape the institutions through which the presidency confronts the rule of law.
Eric Holder must restore the professionalism of his badly demoralized Justice Department and insulate it from political pressures.
This seems like an unlikely assignment for Craig, since it would require him to reduce the powers his office has accumulated over the past generation. But I think he is up to the task. He has been a high-profile attorney with the Washington firm of Williams & Connolly, taking on controversial clients such as John Hinckley, President Reagan’s would-be assassin, and Elian Gonzalez’s father, who sought the return of his boy to Cuba.
I met Craig when he was a special counsel to President Clinton during the impeachment trial and I was serving as one of the president’s legal consultants and expert witnesses before the House Judiciary Committee. Craig put in an impressive performance, refusing to allow short-term tactics to overwhelm larger questions of principle. This talent should serve him well in his new job. The key is to take the long view and create enduring institutional structures that will prevent a recurrence of the tragic hyper-politicization of the Bush years.
The White House staff is a modern invention, generated by the rise of activist national government. Franklin Roosevelt won congressional authority to appoint six assistants in 1939. Before then, presidents had a few secretaries and relied on the Cabinet departments to execute the law—but no longer. By 1943, Roosevelt had named Sam Rosenman, a New York Supreme Court judge and speechwriter, to serve as the first “counsel to the president” in his burgeoning White House establishment.
Despite this auspicious title, Rosenman did not offer authoritative legal opinions on large issues of statutory or constitutional interpretation. He played the role of presidential confidant and general problem-solver. The job of providing authoritative interpretations for the executive branch continued to be discharged by the attorney general, assisted by an embryonic Office of Legal Counsel, established earlier in the New Deal.
Tracy Quan's latest novel is Diary of a Jetsetting Call Girl, set in Provence and praised in The Nation as a "deft account of occupational rigors and anxieties before the crash." Tracy's debut, Diary of a Manhattan Call Girl, and the sequel, Diary of a Married Call Girl, are international bestsellers. A regular columnist for The Guardian, she has written for many publications including Cosmopolitan, The Financial Times, and The New York Times.
Joe Mathews is a journalist, an Irvine senior fellow at the New America Foundation, and a contributing writer at the Los Angeles Times. He previously served as Justice Department reporter for the Wall Street Journal and as a city desk reporter at the Baltimore Sun. He is the author of The People’s Machine: Arnold Schwarzenegger and the Rise of Blockbuster Democracy.
Gerald Posner is the award-winning author of 10 investigative nonfiction bestsellers, ranging from political assassinations, to Nazi war criminals, to 9/11, to terrorism (www.posner.com). Posner lives in Miami Beach with his wife, the author Trisha Posner.
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Amanda Fortini has written for The New Yorker, Slate, Elle, and New York, among other publications. She lives in Los Angeles.
Bruce Ackerman is Sterling professor of law and political science at Yale, and the author of 15 books on political philosophy, constitutional law, and public policy. His works include Social Justice in the Liberal State, the multivolume constitutional history, We the People, The Failure of the Founding Fathers and Before the Next Attack.
Bruce Ackerman is Sterling professor of law and political science at Yale, and the author of 15 books on political philosophy, constitutional law, and public policy. His works include Social Justice in the Liberal State, the multivolume constitutional history, We the People, The Failure of the Founding Fathers and Before the Next Attack.
Oona Hathaway is a professor at University of California Berkeley
Bruce Ackerman is Sterling professor of law and political science at Yale, and the author of 15 books on political philosophy, constitutional law, and public policy. His works include Social Justice in the Liberal State, the multivolume constitutional history, We the People, The Failure of the Founding Fathers and Before the Next Attack.
The cover-up is ALWAYS worse than the crime. Everyone makes mistakes and people understand this, it's a part of our psych, our souls so to speak. Honesty brings transparency in government and a 'Nothing to hide" mentality. Stupid people do stupid things and lies begat more lies.
Don't forget to institute the "Rule of Morals". Oh wait, you can't post the Ten Commandments in the White House.
as clinton covered for daddy bush's war-crimes in iraq, and as w covered for clinton's war-crimes in bosnia, so to will president obama cover for w's war-crimes throughout the planet.
that is 'change' you can take to the bank...
@rightconservative
GWB was the most openly 'christian' president since Jimmy Carter. He should already have known the ten commandments backwards, so I don't see what difference having them on a wall in the White House would make. It's not like he wouldn't know where to look them up either, in case he needed reminding.
The only thing the president needs to remember is his oath of office - "to the best of my ability, preserve, protect and defend the Constitution of the United States."
People should know right from wrong by now and don't need the 10 commandments posted anywhere as far as I'm concerned, even the White House.
All you need is a good heart and concern for your fellowman, that will guide you well enough...just do the right thing and in this case ...do the right thing for the American people, they deserve no less as they have been forgotten about these past 8 years.
Thank you.
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