The White House and OLC:
The Washington Post offers up this very interesting story on the White House's initial insistence in 2003 that John Yoo would become the head of DOJ's Office of Legal Counsel. Marty Lederman adds some fascinating details about White House involvement in later OLC picks over at Balkinization.
One very minor correction: The Post states that Adam Ciongoli was "a onetime Supreme Court law clerk" in 2003, but I believe he clerked afterwards, in OT2005. I'm guessing Ciongoli is the first person to serve as a law clerk after he was seriously considered as a nominee to head the Office of Legal Counsel.
One very minor correction: The Post states that Adam Ciongoli was "a onetime Supreme Court law clerk" in 2003, but I believe he clerked afterwards, in OT2005. I'm guessing Ciongoli is the first person to serve as a law clerk after he was seriously considered as a nominee to head the Office of Legal Counsel.
Some lawyers in the real world have regard for intellectual honesty and integrity and not simply willing to render whatever opinion the client requests, no matter how obviously wrong or unsupported it may be, and then hide the opinion from all appropriate scrutiny. The secrecy confirms the consciousness of guilt. If that approach doesn't offend you, so be it.
Everyone tries to act like they have some great principled reason to want to make John Yoo out to be this horrible person. But at the end of the day, it really comes down to not liking the conclusions he reached. And all of it is predicated on the subjective belief of exactly what conclusion he came to (which we STILL don't have all the details on) and the subject matter itself.
The ire that is heaped upon him is undeserved, and it really is a sad commentary on the state of things today that some have nothing better to do than spend their time trying to convince either themselves or others that he did something malicious.
I don't buy that. The President is supposed to push as hard as he can to fulfill $objective. It is the solemn duty of the head of OLC to assist where the policy is legally defensible and to refuse when asked to ratify an illegal policy.
Well, of course OLC is supposed to to that. But the question is whether OLC doing that can make much of a difference if the President has set a tone and empowered other actors to make OLC's life hell for it. I tend to think the tenure of Jack Golsmith answers that question: He lasted all of 8 months.
Just to be clear, I also blame Yoo and Addington and everyone else, too. But they could only do what they did because that's what the President wanted them to do: He was the principal, they were his agents. And I disagree that the President's job is to push as hard as he can: In a unitary executive, there isn't much to stop a President who is determined to push as hard as he can, as he can always just fire the head of OLC or, less publicly, make sure only a loyalist gets in.
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The road to hell is paved with good intentions.
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I haven't seen criticism of Yoo that I view as "Yoo's legal opinions were malicious." What I have seen, and I share the sentiment, is the opinion that he conducted his work with an extreme outcome-oriented bias. Another example of extreme outcome-oriented bias, but from a different body, is the dissent in Heller. It reached a conclusion, it applied law, etc. Malicious? I think not. Intellectually dishonest? Yes. Knowingly intellectually dishonest? Most Probably.
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LOL. "solemn duty."
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It's a bit naive to think that an administration can be an effective check against itself. The Constitution provides the other branches with tools, in case the executive is "too irresponsible," with THAT conclusion being in the eye of the opposing branches. The Courts have the power to rule executive actions illegal, and Congress has the power to impeach and remove.
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The people have a stake too, but to the extent government actions are shrouded in secrecy, it's not possible to make a public record; and to the extent Congress, the Courts and the administration work in cahoots, the voice of the people is irrelevant.
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I think the only "solemn duty" practiced by the government, and practice by any branch (including administrative agencies), is to grow its own power, influence and control.
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And don't forget, it's not illegal if you don't get caught!
He was on leave of absence from 2001-3 while he was in the OLC. I believe he was also gone in 1995-6 when he was counsel to the Senate Judiciary Committee.
"Here" meaning where? The VC? The Senate? The legal community?
I think everyone expected that the Senators would treat their old colleague with kid gloves. But Ashcroft's not high on my list of quality AGs.
And as an aside, how far back do you have to go to find a quality AG anyway? William French Smith? Ben Civiletti? What a string we have had.
I don't have to go very far at all. Michael Mukasey is arguably the most qualified Attorney General in decades.
Cheney is a well-qualified individual but a terrible vice president. Ditto Mukasey as AG.