Response to Kmiec (and Levinson) -- What Does it Mean to "Faithfully" Execute the Law?

Marty Lederman

I'd like to thank Doug Kmiec for his very gracious response. As one might imagine, I still have significant disagreements with some of what Doug writes; but I also think that Doug's latest post, because it is more temperate and discriminating than his Washington Post Op/Ed, helpfully narrows and focuses our areas of significant disagreement. (For example: If all Doug meant by describing Comey's testimony as "histrionic" was that it was "vivid," I fully concur in the sentiment, if not in the choice of adjective.)

It's probably best to allow others to weigh in where some of our differences are obvious. I'll limit myself here to three issues.

First, was the hospital visit necessarily so nefarious?

Doug remains "mystified" by what he himself dubs an "'ethically dubious' attempt to pursue a futile certification from a man recused and critically ill in the hospital." That about says it all -- so perhaps we do not differ so much on the question of how disturbing the hospital episode was.

Doug generously attempts to exonerate Gonzales by surmising that (i) "Mr. Gonzales had reached the conclusion that this extraordinary contact with Mr. Ashcroft was necessary because an interruption in the on-going terrorist surveillance effort would seriously jeopardize the security of the nation"; and (ii) "he intended to ascertain whether Mr. Ashcroft concurred and was well enough to rescind his recusal in light of that possible concurrence."

I do not doubt the first point: I think the President and Gonzales probably were motivated to such unusual action by their fear that a cessation of the NSA program would have serious adverse consequences. But this does not distinguish them from Comey, Ashcroft and Goldsmith -- all of whom were very much aware of the serious consequences, and all of whom were, by all accounts, very eager to find a legal basis to allow the program to continue. The fact that they pulled the plug anyway speaks volumes about how extremely dubious the legal case for the program must have been before that hospital visit. (That's the main point of this post.)

As for the second point, I'm afraid Doug is grasping at straws. There's no reason to believe that Gonzales was trying "to ascertain whether Mr. Ashcroft concurred" with Comey's decision. Not, anyway, unless the White House thought that Jim Comey and Jack Goldsmith were outright lying when they reported DOJ's decision. The White House knew damn well what Ashcroft's decision had been. Recall that Comey and Ashcroft had concurred on that decision a week earlier, just before Ashcroft fell ill. ("A week before that March 11th deadline, I had a private meeting with the attorney general for an hour, just the two of us, and I laid out for him what we had learned and what our analysis was in this particular matter. And at the end of that hour-long private session, he and I agreed on a course of action.") On Tuesday, March 9th, the DOJ officials "communicated to the relevant parties at the White House and elsewhere our decision that as acting attorney general I would not certify the program as to its legality and explained our reasoning in detail." In these detailed conversations, Comey undoubtedly told the White House and NSA that Ashcroft had concurred in his judgments. The President nevertheless sent Gonzales and Card to the hospital, without so much as telling the Acting Attorney General, so that they could obtain the signature of someone who was not only incapacitated, but not even acting in an official capacity! Obviously, they did so in order that they could present a fraudulent certification, of someone who was not at the time acting as AG, to the NSA and/or to the telcom companies. (Doug hints that perhaps they also were endeavoring to ascertain if Ashcroft was "was well enough to rescind his recusal" -- i.e., to retract his delegation of the AG's powers to Comey. With all respect, this seems implausible, or worse. Mrs. Ashcroft apparently told the White House that he was not even well enough to receive visitors -- and the White House officials went to the hospital without even informing the Acting Attorney General that they were doing so. And you wonder why Comey was shocked?)

Second -- is it worse than Watergate?

Doug writes: "Overall, the purpose of my commentary was largely to raise a caution about the undifferentiated likening of a dispute over the extent of the president's war powers to distortions of the rule of law we know as Watergate. To disagree over the interpretation of Constitution or statute, especially where that disagreement is consequential to the nation's well-being, is not to indulge in corrupt or venal behavior."

I agree that the mere disagreement about the scope of the AUMF or Article II was in no respect as "venal" or as "corrupt" as the entire Watergate affair. As I carefully explained in my post about Doug's Op-Ed, the analogies to the Saturday Night Massacre were not intended to suggest that the underlying crime was as "venal" as, or analogous to, the Watergate break-in. It was merely to note, as I did, that in both cases "the President and his closest aides had so egregiously departed from institutional legal norms that the entire top echelon of the Justice Department was prepared to resign in a manner that would signal to the public that something was greviously awry within the Administration. . . . Nixon was trying to subvert the established procedures of the Justice Department. As were Bush and Gonzales."

But let's not minimize the underlying offenses: No, they were not attempts to engage in third-rate burglaries, or to manipulate the Department of Justice, in order to influence the outcome of an election or to cover up such wrongdoing. (The U.S. Attorney and voter-fraud-fraud scandals are much closer to the mark on that score.) But the law being violated here -- FISA -- was much more important than the one being violated at the Watergate Hotel, and in some sense the threat to the Constitution is much greater here, too, because, pace the David Frost incident, Nixon did not actually think or argue that the break-in (or most of the cover-up) was legal, whereas the Bush/Cheney/Addington theory of the Constitution would quite forthrightly allow the President to disregard statutes and treaties whenever he thinks they get in the way of how he chooses to prosecute an international conflict. And, as in Watergate, all of this (the electronic surveillance, the torture, etc.) was done in secret, with no opportunity for the other branches or the public to apply the checks and balances that the Constitution contemplates.

Third -- isn't this whole tempest merely a principled disagreement about constitutional interpretation?

Well, yes, in some sense it is -- which is why I've been so invested in the topic for the past three years. The point of my posts in this case, however, was simply to show that the position the President adopted in that debate was profoundly radical, unorthodox, and sweeping -- a view so extreme that it was rejected by strong supporters of the President such as John Ashcroft, Jim Comey and Jack Goldsmith, even with respect to what they all considered a vitally important program that had already been implemented on the basis of that constitutional view for more than two years.

Which brings me to Sandy's question, on the principal point where Doug and I agree (i.e., that the legal decision within the Executive branch was ultimately for the President to make): Isn't there something wrong with a Constitution that allows a President with no special legal understanding to reject the Ashcroft/Goldsmith view in favor of the Cheney/Addington view?

I'll leave it to Sandy and others to debate whether the Constitution is flawed in this respect. I would only note in this regard that if the system were working as it is designed to, where the President's constitutional views are subject to public debate and the ordinary checks and balances of the political and judicial systems -- as in the case of the first U.S. bank, and the Louisiana Purchase, and the steel seizure, and the destroyers sale, and the wars in Korea and Kosovo, etc. -- then even an unlearned, unorthodox and misguided Executive interpretation of the Constitution would not necessarily have the profound implications that Sandy describes. (Which in turn would, of course, make the President much more reticent about adopting radical views in the first place.) The big problem here is not that the President's "last word" within the Executive branch was so unorthodox, but that it was so unorthodox and secret, and thus so unchecked, i.e., that the final word within the Executive branch became, for all intents and purposes, the final, unreviewable policy and practice of the United States, whether it be with respect to surveillance in violation of FISA, or with respect to "enhanced" interrogation techniques. There would not be anything so troubling about permitting a President unlearned in the law to make constitutional interpretations on behalf of the Executive branch if those decisions were subjected to the ordinary checks and balances of politics, litigation, and the referendum of public debate. [UPDATE: It was worse than that, actually. As Glenn Greenwald reminds us, the Administration not only didn't tell Congress and the public that it was disregarding FISA -- the President and AG Gonzales actually went around the nation trumpeting the fact that all wiretaps were done pursuant to court order, and repeatedly went to Congress proposing amendments to FISA without mentioning those features of the statute that they had found it necessary to disregard.]

Apart from the lack of transparency -- the attempt to preclude such checks and balances -- I still have a problem with the President's internal Executive branch decision to choose Addington over Goldsmith; but my concern is different from Sandy's: It's not that the President is incapable of making a constitutional judgment (if he took the question seriously), but instead that the President was asking himself the wrong question. If the President had taken the merits of the constitutional question seriously (as I think he is constitutionally required to do) and solemnly concluded after serious inquiry into what we might call the "usual legal materials and analytic techniques" that Addington had the better of the Article II argument, I think that would be entirely permissible -- and what the Constitution contemplates, notwithstanding the fact that the President is not "learned in the law." The Constitution was designed to be understood and applied not only by elite lawyers, but by ordinary officials, and by the people. The analogy here, as Sandy suggests, is to Washington and the wonderful internal Executive branch debate concerning the first bank.

But I suppose I simply don't believe, as Doug appears to believe, that the President solemnly concluded that the Cheney/Addington view of Article II was the better reading. I mean, come on -- he had John Ashcroft and Jack Goldsmith saying otherwise. Those are the learned legal experts who the President himself had appointed to provide advice on such questions. The President knew that their analysis was very deliberate and thoughtful; that they deeply feared and regretted the advice they were giving; that they had bent over backwards to see whether there was any basis for the Cheney view; and that they were hardly radical civil libertarians or skeptics of executive power. Undoubtedly, those trusted advisers informed the President of what everyone who has seen the Cheney view has said the moment that they encounter it -- that it is a highly, highly, unorthodox view, embraced by almost no one else, and almost certain to be rejected if it were ever subject to judicial review.

And yet the President opted for it anyway. I am confident he did so not because he was persuaded on the merits after a careful consideration of the competing arguments, nor even because he concluded that David Addington understood the Constitution better than Jack Goldsmith and everyone else in the Justice Department. He opted for the Cheney view simply because it was a view that someone close to him concluded was within the broad range of "reasonable" legal views (after all, the Yoo OLC had signed off on it earlier). That alone was good enough for him. Orin Kerr writes that "there is absolutely no evidence whatsoever that the President intentionally violated a known legal duty." But he knew that his conduct violated FISA. And he knew that the overwhelmingly predominant view -- one adopted by even John Ashcroft and Jack Goldsmith -- was that he had no constitutional prerogative to do so. Now, for most lawyers, that in and of itself would mean a strong presumption that, as Brian Tamanaha writes, the Addington legal justification, "while perhaps arguable, was extraordinarily weak, beyond the pale of plausibility." But for the President, the fact that Dick Cheney and David Addington and John Yoo had signed off on this theory a fortiori brought it within the "pale of plausibility" -- and that was sufficient.

In my view, this suggests that President Bush did not take seriously his obligation to take care that the law is faithfully executed.

As I've explained before, there is substantial evidence that this President does not see his constitutional role as trying to adduce the "best" view of the law (however one believes that that should be determined). Instead, his constitutional understanding is that he should do whatever he thinks is best for the security of the nation if any legal justification can be articulated for it, as long as that justification is somewhere within a very wide range of what is deemed legally "reasonable." According to Newsweek: "The message to White House lawyers from their commander in chief, recalls one who was deeply involved at the time, was clear enough: find a way to exercise the full panoply of powers granted the president by Congress and the Constitution. If that meant pushing the boundaries of the law, so be it." On this view, if David Addington's view of the Commander-in-Chief Clause was unorthodox, so be it. It sufficed that someone smart, and in the President's circle -- indeed, his running mate! -- believed it. That's all the Constitution requires.

To me, this is the important issue at the heart of Sandy's inquiry: The problem is not that the President is the final decisionmaker within the Executive branch, but that he has adopted this highly contestable notion of what it means to take care that the law is executed faithfully -- and has done so in a manner that virtually guarantees that his decisions are unreviewable, uncheckable. I would be interested to know what Doug and other defenders of the Administration think about the issues that I raise in this post. For OLC and other Executive branch constitutional actors -- including Presidents --- going forward, I think these are the most important questions arising from this unfortunate episode.

As Doug Kmiec has written:

I am a defender of executive power. No one who has headed the office of legal counsel, designed to preserve the office of the presidency, could be otherwise. But defending the constitutional parameters of presidential power is fundamentally different from defending assertions of power inclined toward excess or abuse. . . .

The duty of the president is to faithfully execute, not invent, the law. Yes, the extent of executive power can be debated, and yes, some political scientists complacently claim that all modern presidents have pressed or exceeded the boundaries of Article II authority. Yet those sworn to "taking care" of the execution of the law must be held to a high standard.

Doug wrote these words as a prelude to a sharply worded critique of President Clinton's reading of the law in some of his Executive orders. Surely, if Doug believes such strong criticisms were apt in the case of some Clinton Executive orders that were of relatively modest import -- and that were publicly promulgated and defended -- then perhaps he and others who were so quick to criticize the alleged constitutional deficiencies of the Clinton Administration (see, e.g., Ted Olson's chapter in the same volume) might apply just a bit of that same scrutiny to the much more profound constitutional crises that we now face. Where's that "high standard" now that we really need it?
Posted 5:01 AM by Marty Lederman [link]