Restoring the Rule of Law to the White House

The White House counsel only began to get bigger ideas in the 1970s, challenging the Justice Department over key legal functions. By the Carter administration, high-profile presidential counsels like Lloyd Cutler, a prominent Washington attorney, were asserting control over the nomination of judges and delivering opinions on difficult legal problems.

Here is where the White House staff began to pose a profound threat to the rule of law. It was a terrible thing when Nixon’s “plumbers” broke into Watergate, but nobody wrote a fancy legal opinion that tried to justify blatant illegalities. Now it became possible for a hyper-politicized counsel to dissolve all sense of legal restraint through so-called interpretations that aggrandized presidential power. Lawyers with the integrity of Lloyd Cutler resisted this temptation. But it was only a matter of time before others would abuse this newfound power to destroy the very idea that presidents were limited by the rule of law.

This is what has happened under President George W. Bush. His first counsel, Alberto Gonzales, and his successors, repeatedly ignored the clear commands of the Geneva Conventions and congressional statutes in waging their war on terror. Worse yet, they collaborated with John Yoo, and others working in the Justice Department, as they distorted the statutory ban on torture to authorize dehumanizing practices that have disgraced America.

Now it will be up to Greg Craig to clean up the mess they have left behind. His first task will be to repudiate some of their extreme claims of presidential perogative asserted under Bush, but that’s the easy part. His larger challenge is to rethink the entire process through which the executive branch imposes the rule of law on the presidency. His aim should be to organize a return to the older tradition in which the Justice Department interprets our fundamental laws without incessant White House interference.

Craig can’t do it alone. Eric Holder, if he is the next attorney general, also must take effective action to restore the professionalism of his badly demoralized department. He must insulate the department’s Office of Legal Counsel from political pressures, and make it clear that its job is to function as a quasi-judicial body, using traditional techniques of legal interpretation, and following the precedents established by the courts.

Easier said than done. But if the White House and Justice Department work at it, they can redeem Obama’s promise of change—at least so far as the rule of law is concerned.

And that would be no small thing.

Bruce Ackerman is professor of law and political science at Yale.