Jeffrey Rosen has an article coming out in next Sunday's New York Times Magazine on Jack Goldsmith, an attorney who led the OLC in the Bush administration, and who resigned over the politicization of the DOJ, particularly over what he referred to as the "tendentious, overly broad, and legally flawed" torture memo. Goldsmith has a book coming out later this month titled "The Terror Presidency." After Goldsmith left the Bush administration, he landed at Harvard Law School, where his arrival was not warmly welcomed. Rosen writes: "During his first weeks in Cambridge, in the fall of 2004, some of his colleagues denounced him for what they mistakenly assumed was his role in drafting the torture memos. One colleague, Elizabeth Bartholet, complained to a Boston Globe reporter that the faculty was remiss in not investigating any role Goldsmith might have played in 'justifying torture.'"
Rosen interestingly characterizes the OLC, inside the Department of Justice, as "an entity that Rosen interestingly characterizes as "the division...that advises the president on the limits of executive power." I am not sure where he derives this description for the OLC. I would define it as "the division...that advises the president on ways he may push the boundaries of Article II power." For instance, how do you describe Walter Dellinger's memo titled "Presidential Authority to Decline to Execute Unconstitutional Statutes." Is that a memo on the "limits of executive power?" Only if it was titled: "The President's obligation to enforce unconstitutional statutes." This is made all the more interesting because later Rosen says that the OLC "interprets all laws that bear on the powers of the executive branch." That suggests far more aggressive behavior than one advising the president of the limits to his power.
Goldsmith makes alludes to the central role of the unitary executive theory and the problems it created--something he callls the "go it alone' view of executive power." He says: "They embraced this vision...because they wanted to leave the presidency stronger than when they assumed office, but the approach they took achieved exactly the opposite effect. The central irony is that people whose explicit goal was to expand presidential power have diminished it." This is similar to a paper written by Political Scientist Nancy Kassop at this past week's meeting of the American Political Science Association.
What does come out clear in the piece, and something that needs more investigation, is how the central role of the OLC broke down during the current Bush administration. It is clear that the power of the OLC derives from its ability to have the definitive say over what is or is not constitutional, overridden only in extraordinary circumstances by the attorney general or the president. In the Bush administration, there exists a group of individuals who can add to or take away from the OLC decisions from positions outside the normal loop that these decisions are made. These individuals can add constitutional challenges to bills moments before the president signs them, or they can "usurp legal-policy decisions that were properly entrusted to the attorney general." These individuals, who Rosen calls the "war council," are Alberto Gonzales (when he was White House Counsel), Cheney and Addington (and Libby), and John Yoo, who had "direct access to Gonzales [which] angered his boss, AG Ashcroft." If you wish to see the explicit influence of this group, then look no further than to the well-above average challenge contained in the Bush signing statements. It is clear that most of them are not coming from the OLC, which is where they normally originate. This goes a long way toward explaining why morale is very low among career professionals at the DOJ.
In all it is a very good article made possible by Rosen's relationship to Goldsmith, who he attended law school with. There are some parts that I quibble with. For instance, he argues toward the end that :
...the Bush administration’s legalistic “go-it-alone approach is the antithesis of Lincoln and Roosevelt’s willingness to collaborate with Congress. Bush, he argues, ignored the truism that presidential power is the power to persuade. “The Bush administration has operated on an entirely different concept of power that relies on minimal deliberation, unilateral action and legalistic defense. “This approach largely eschews politics: the need to explain, to justify, to convince, to get people on board, to compromise.”
First, during most of the time under discussion, the Congress was on board with whatever the administration wanted it to do. The fact is that the Congress was not exercising its constitutional responsibility to challenge the president and his approach to governing. Instead, they saw themselves as the "junior partner" to the president. If there is a danger that stems from the Bush administration's approach to governing, it was placed there in large part by the unwillingness of the Congress to stand up and block a number of these actions that we now regard as constitutionally offensive. Second, I again assume that the "legalistic go it alone approach" Rosen refers to is the unitary executive, and where the Bush administration is mistaken on how it works is to completely ignore the fact that there is a larger political context in which these arguments take place. Bush may be right on the merits, but if the political process and political climate is not sensitive to those merits, he might has well be "pissing in the wind," to use common vernacular. It is especially clear that the administration is tone deaf when it comes to recognizing the political climate.
