Critics across the ideological spectrum have criticized President Obama for overruling a determination by Attorney General Eric Holder and the Justice Department’s Office of Legal Counsel that continued action in Libya is unlawful. But some of the White House’s natural allies in the liberal legal community — including those close to the administration — are troubled by a separate, and in some ways more fundamental, part of this story.
In addition to overruling the OLC — the Justice Department office tasked with establishing the bounds of lawful conduct for the executive branch — the Obama administration also circumvented the basic process administrations typically follow in assuring its policies are legal.
“Here, if what’s being reported is accurate, the White House counsel played the role of OLC, by soliciting the views of different agencies,” said Dawn Johnsen, in an interview. “That’s the big problem here. You’re more likely to end up with bad legal decisions when you deviate from that process.”Johnsen was President Obama’s first pick to head OLC in 2009. But her nomination stalled for months, and was eventually withdrawn, in the face of unanimous opposition and flagging White House support. She was a senior Justice Department official for five years during the Clinton administration, which included a stint as acting OLC head. She notes that typically, OLC will solicit the views of interested agencies, and offer the President its best interpretation of the law. In the case of Libya, the White House essentially treated the OLC as one interested agency among many, and came to its own determination based on an evaluation of competing views, according to the New York Times‘ original story about the controversy. That story has gone unrefuted by the White House.
“Up until this point the Obama administration has effectively protected U.S. interests through entirely appropriate and lawful means – respecting the rule of law, Congress, OLC’s role – so I hope and expect this deviation from traditional processes will prove to be an aberration and the administration will get back to that framework,” Johnsen added.
Her views are echoed by Walter Dellinger, Clinton’s first-term OLC head. “Decisions about the lawfulness of major presidential actions should be made by the Department of Justice, and within the department by the Office of Legal Counsel, after consultation with affected agencies,” he told the Times.
Administration officials largely acknowledge that the process they used was unorthodox, but note that experts across the executive branch were given what they describe as a fair hearing.
“The President received the full range and parameters of legal views within his Administration, and he made the final decision after full consideration of them,” said Eric Schultz, an administration spokesman. “The Justice Department has stated publicly that its views were heard and that the President made his decision ‘as was appropriate for him to do.'”
This is distinct from a separate critique that the President erred by overruling OLC. This, while rare, isn’t unprecedented.
“It’s very, very rare for the President to reject the views of OLC,” Johnsen said. “In my experience — I was at OLC for five years in the Clinton administration — it never happened.”
In her 2009 testimony to the Judiciary Committee, Johnsen noted “OLC’s legal determinations are considered binding on the executive branch, subject to the supervision of the Attorney General and the ultimate authority of the President.”
Likewise, Dellinger told the Times, “The president always has the power of final decision.”