Law and Orders-How should the president's lawyers advise a reluctant White House?

http://www.slate.com/id/2167985/fr/flyout

Law and Orders
How should the president's lawyers advise a reluctant White House?
By Dawn Johnsen
Posted Friday, June 8, 2007

In the drip, drip, drip of emerging revelations in the so-called U.S. attorneys scandal, yesterday's dose was stunning: Vice President Dick Cheney was personally involved in seeking to reverse the Justice Department's determination that the president's secret NSA surveillance program was illegal; at least eight (and as many as 30) DoJ officials were prepared to quit over this decision to proceed against DoJ advice; and one of those lawyers subsequently saw his promotion scuttled by Cheney himself.

None of this will stop those trying to bury the scandal from continuing to shrug it off: "So what?" they will say. "U.S. attorneys and the president's lawyers at the Justice Department serve at the pleasure of the president. And if the president thought his NSA program was legal, it doesn't matter that he overruled the DoJ." No laws have been broken, no fish in this pond, no smoking gun.

Here are some questions, though, that still beg for attention: What does it mean to say that the president has broken a law? What is the proper role for the president's lawyers? Should they limit themselves to being guns-for-hire, crafting creative legal justifications for any program the president chooses to pursue? Or should they be impartial referees, providing accurate and principled legal analysis even when it blocks an initiative the president is committed to? And if the president's lawyers conclude that he's about to do something illegal, can he simply disregard the conclusion as he would unwelcome advice from his policy advisers?

These questions are no longer just hypothetical. We've seen them played out, and in the most unlikely of settings: a hospital intensive-care room. The scene is now familiar: In March 2004, the White House insisted on access to a very ill Attorney General John Ashcroft for approval of its warrantless surveillance program. Then-Acting Attorney General James Comey, who had already denied approval, raced to the hospital to protect his boss from being pressured by then-White House Counsel Alberto Gonzales. With Comey at his side, Ashcroft mustered his strength to tell Gonzales "no."

The question remains: Were Comey and other DoJ lawyers wrong to threaten to quit when the program proceeded without any DoJ authorization? After all, doesn't the president have ultimate authority to make such calls? What are the boundaries between lawyers' responsibility to the president and their duty to uphold the Constitution?

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