an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Soliciting Nominations for the Cox-Richardson-Ruckleshaus Award
One of the most disheartening aspects of the Bush Administration's assertion that it remains above the law (torture prohibitions and FISA) in its fight against terrorism has been the complicity of the Justice Department. Time and again Justice Department lawyers have lined up to defend the dubious legality of the Bush Administration's position on these issues.
Justice Department lawyers answer to a higher authority than the President. Their solemn oath is to uphold the law, even when contrary to the President's wishes. A glorious moment in the history of the Justice Deparment took place in the clash with President Nixon. Special Watergate Prosecutor Archibald Cox subpoenaed Nixon's tapes. Nixon ordered Attorney General Elliot Richardson to fire Cox. Richardson refused this direct presidential order and resigned. Nixon then ordered Assistant Attorney General William Ruckelshaus to fire Cox, who also refused. Solicitor General Bork finally carried out the deed.
This remains one of the most important events in the history of our nation's commitment to the rule of law.
The question is: where are the Justice Department lawyers who have resigned, or want to resign, rather than carry out or attempt to justify Administration policies that flout the law? They must be out there, since many Justice Department lawyers are honorable women and men. Perhaps they left in quiet protest, or are resisting internally in every way they can.
The internal resistance of Alberto Mora to the Administration's torture policy has been revealed, but he worked in the Defense Department. Former high ranking Justice Department lawyer David Kris recently condemned the legality of the warrantless surveillance program, but he is no longer with the Justice Department. Apparently, former Attorney General Ashcroft raised objections to the program early on, though the details of his resistance have not been fully disclosed.
The principle that the President is not above the law is under threat today. This is another pivotal moment in the history of our country. Administrations come and go, but respect for the law by government officials is a national legacy that each generation must preserve and pass on to the next.
Any Justice Department lawyers who step forward and explicitly resign (or announce that they previously resigned) in protest of these illegal policies would commit a brave act of principle, with immense national significance. Imagine the impact if a group of past and present Jutice Department lawyers collectively made this announcement. History would adjudge them national heroes in the Cox-Richardson-Ruckleshaus tradition.
ADDENDUM: A reader pointed me to a Newsweek report which indicates that James Comey and Jack Goldsmith left the Justice Department in protest. If that is correct, hooray for them! They are deserving nominees for acting pursuant to a great tradition. There must be more Justice Department attorneys out there who left, or who feel a compulsion to leave, for similar reasons. The principle of fidelity to the law obtains the most benefit, however, if a resignation in protest is widely known. Such public disclosure may be seen a betrayal of loyalty, and might have adverse career consequences, so it is understandable that this would be kept quiet, but something large is at stake. Posted
by Brian Tamanaha [link]
Bob, John, come in. Sure, over there, make your selves....
EHRLICHMAN: Thank you Mr. President. Good to see you again. HALDEMAN: Great to see you again, Mr. President. NIXON: Thank you. Now, as you know, our last attempt to put America on a safe footing--I mean, on a permanent basis, to keep it safe for ever, both internally and externally--didn't go completely as planned. Nothing against you boys. You did your best. I counted on you, and you never let me down. HALDEMAN: Thank you, sir. EHRLICHMAN: It was an honor, Mr. President.
NIXON: I'm never one for recriminations--you know that about me, I'm not one of those people who starts a witch -hunt, or treats old enemies vindictively. That isn't how Dick Nixon does business. All I want to say to you today is that I think we can draw some lessons from the past, from what has worked and what hasn't. In my estimation, there were three things that brought us down. HALDEMAN: The liberals, sir? You mean the hippies in the streets? I've always said we should have been more forceful with them, more direct. NIXON: No, Bob, that's not what I had in mind. That was a one-time event, and we had them effectively neutralized in the court of public opinion. There's hasn't been a peep from them in thirty-five years now. No, here's what I had in mind: we were brought down by three things: the press, the sub-committees, and Justice. Yes, Justice--after Mitchell left, the whole thing unraveled. Even while he was there, none of those guys were really with the game. I never knew what quarterback they were listening to, but they weren't executing my plays. And of course, now we know that Felt guy-- HALDEMAN: I knew it was him, sir. If you'll allow-- EHRLICHMAN: We could have-- NIXON: Well, I had my suspicions too. Of course. This man--he's a Jew, right? Felt? They have those names. HALDEMAN: [laughing] "Feltberger" or something, originally, do you think? NIXON: "Feltstein", right. Like that Jew at the Post he talked to. But it doesn't matter. It's not FBI I'm worried about. He was a one-time event, too. No, it's the career prosecutors. That's who I brought you here to talk about.
EHRLICHMAN: The line prosecutors, sir? The little guys, just working regular Fed cases? NIXON: You don't see it, do you? You're not getting the big picture here, the scale of the thing. Just review the decades. When we were in office, the Post jumped all over our case. They hurt us. Very badly. But since then, we've neutralized them. HALDEMAN: And the Times, sir. Don't forget what we've done there. NIXON: It's terrific, I'll grant you. The progress has been phenomenal. That boob, Reagan--I have to give him--I never liked the man. And his whole California operation--completely unprofessional. You know, the Screen Actors guild types. But what he did to the press. I have to hand it to him, he succeeded where I failed. And we really haven't heard a peep from them since. EHRLICHMAN: Sir, you're being too modest. It was our team that-- NIXON: You mean Safire and-- EHRLICHMAN: More than that, sir. NIXON: Well, in any case, we've taken care of that problem. Now the sub-committees. My god, when I think of that self-righteous jerk, Ervin--and after the help I gave him in his '68 run. He was never part of the team. HALDEMAN: Well, Mr. President, he was on the right side of the whole school issue--you know, Brown and all. NIXON: Look, schools for kids, what do I care if little black kids go to this or that school? It's the team first, putting in the right team on a permanent basis, and then we can take care of little things like that in our own good time. That's what people like Ervin didn't understand. We could have made some accommodation, in the course of time, if he had helped the team. HALDEMAN: Well, we have a Republican majority in the Senate now, sir, and-- NIXON: Doesn't matter. The sub-committees just don't matter at all, Senate or House. We got to the root of that problem, no matter which party has the majority. That thing with the Marine, North--you see, with the press on our side, and now that we could count on them to make a hero of him. And it made the sub-committee look bad. Very bad. We could have really used someone like that, but instead Dean-- EHRLICHMAN: But it's as you said, sir, the press-- NIXON: And Bush got lucky that way. Not a bright man. That's why I sent him to the U.N. He never had the touch, do you know? He could never connect with the people, the way I could. And then his crowing about China, as though it was his idea. HALDEMAN: But what do they say, sir? "Nixon went to China," that's a figure of speech, sir. Nearly forty years later, and people say it. NIXON: Right, for a really bold move. A gutsy, far-sighted gamble. A big play, a long bomb, into the end-zone. Not--they don't say--it isn't "Bush went to--" [laughs]. HALDEMAN: [laughs] No, and now his son--[laughs].
NIXON: Now look--don't knock his son. He's done pretty well. He's carried the ball a long way. Not with my style, I'll grant you, not the same strategic vision. You know, "the vision thing" [laughs]. EHRLICHMAN: That was his father, sir. NIXON: I know that, John. I know that. And I don't say I approve of everything the boy has done. The drugs, to begin with--I never could abide-- EHRLICHMAN: It's the hippies, sir. It just goes to show how much damage the hippies did. But at least they aren't in the streets any more. Those marches--we haven't had those in decades. NIXON: Now, John, that isn't so. That's not correct. But it shows you why we had to move on the press first. You see, the press simply doesn't cover them now, so they might as well not happen. Now, if we could have counted on that back then, instead of, my god-- HALDEMAN: Those headlines. And front page photos. The Post-- NIXON: Photos of the Mall, and the Memorials. The press screaming its head off. But once we clamped down on the coverage, the marches just don't matter. Remember that. Because it was the same with the sub-committees. The key there was neutralizing the press.
HALDEMAN: So it's the perception, sir? Is that what you're saying, that image, that's key? NIXON: Oh, "image". I've always hated that word--Hollywood, and Reagan's crowd. I call it "message"--that's the important thing. But even that only goes so far. That's my point. That's number three. You see, not everything is message. Some things go beyond that. I mean, the press is on message now. We have control of their message like never before. It's hard for me to believe sometimes--they're practically part of the team. I'm not making excuses, but if we had only had-- HALDEMAN: Everything would have fallen into-- EHRLICHMAN: We would still be in there. The permanent team. NIXON: Well, I'm not one to dwell on the past, as I said. And it is our team, really. That 'executive' slogan they're using these days--that was all my idea, really--'unified executive' idea-- EHRLICHMAN: "Unitary," sir. NIXON: I know that. I knew that. Unitary executive. Not a good phrase--they don't know how to use the words the way we did. But it's my idea, all the way. It's part of the big picture. You see, these things take decades. And about the prosecutors. That's my point. We have to start now. How long did it take with the press? HALDEMAN: Decades, sir. And even now, this "blog" thing-- NIXON: God I hate these words. But I'm not worried there. They have no power. They'll never get onto Huntley and Brinkley, or Cronkite's show. And, see--you're not following me. That's still the message thing. Now, convictions. Convictions for felonies, jail time, federal indictments--that's not just message. The press can't completely ignore it. And there's this Fitzpatrick fellow-- EHRLICHMAN: "Fitzgerald", sir. Patrick Fitzgerald. NIXON: Alright, John. Fitz-whatever. He's trouble. And there are more like that, low down. Regular prosecutors, and they're not part of the team. And look at what he's doing--Karl just can't seem to--he's nowhere near as effective now-- EHRLICHMAN: But things are quiet on that front, sir. The news has been silent about-- NIXON: That's just message, John. It's not just message here. Indictments, jail time. That's the trouble. There's only so much our friends in the press can do. If we don't succeed this time--in gaining permanent stability, I mean--if this one goes wrong, then that will have to be our next plan of attack. And it won't be fast. It took decades to corral the press. Decades to get the sub-committees where we have them now. Next we need to work on the prosecutors. To make sure they're on our team. But we have decades. Down here, we have all eternity. Settling the prosecutors--getting them in line, so they'll play ball. Should only take decades.