A recent New York Times article asked a number of academics about Donald Trump’s approach to constitutional fundamentals, notably the separation of powers and rule of law. The answers weren’t pretty. Georgetown law professor Randy Barnett summed it up by saying, “you would like a president with some idea about constitutional limits of presidential powers … and I doubt he has any awareness of such limits.”
The article was prompted, of course, by Trump’s attacks on the judge presiding over litigation against Trump University. But Trump has also boasted that as president, he would punish reporters who have criticized him and proposed a religious test for entry into the United States. And during the GOP primary debates, Trump promised to use interrogation techniques “a hell of a lot worse” than waterboarding and to order troops fighting ISIS to kill the families of suspected militants, a proposal flatly denounced by former CIA director Michael Hayden as a “war crime.”
All this puts Trump’s endorsers in Congress in a tough spot. After all, they have been accusing President Obama of abusing his executive powers for most of his administration and have even sued him for unconstitutionally taking over lawmaking powers in seeking to spend money or implement health care or immigration policy changes.
And so to defend Trump, they have noted that there are checks on presidential power — external or perhaps internal. “We have a Congress. We have the Supreme Court. We’re not Romania,” as Sen. John McCain put it. “He’ll have a White House counsel,” Senate Majority Leader Mitch McConnell said. “There will be others who point out there’s certain things you can do and you can’t do.”
Well, Romania also has a bicameral legislature (with a Senate and a 412-seat Chamber of Deputies) and a Supreme Constitutional Court to boot. But for now consider instead those internal checks. Is the White House counsel, or other administration lawyers, likely to be an effective deterrent to presidential action?
The short answer: Probably not. In such matters, politics and policy preferences often trump (sic) constitutional concerns. Why?
1. The president’s lawyers work for the president.
McConnell would be pleased with parts of a comprehensive 2008 transition paper on the Office of the White House Counsel (OWHC) written by political scientists MaryAnne Borrelli, Karen Hult and Nancy Kassop. The trio conclude that “the most important contribution of the White House Counsel may well be telling the President ‘no.’ ”
But they also reveal how hard it is to keep “one foot each in law and politics.”
The OWHC itself began with political duties rather than legal ones. When FDR asked his longtime confidant Samuel Rosenman to resign from the New York bench and join the White House staff in 1943, Rosenman got the honorific title of “counsel” rather than “secretary” or “assistant” to the president. But under Rosenman and successors like Clark Clifford (under Truman) and Ted Sorensen (under Kennedy), the counsel’s office focused on speechwriting, bill drafting and policy advice.
By the 1970s, though, the office had become the presidency’s law firm — partly because domestic policy now had its own staff and partly because after Watergate the White House had to keep track of an expanding bramble of legal requirements, such as ethics rules. The office grew from two to three lawyers in the 1970s to more than 40 in the Clinton years, settling in at more than 20 by the mid-2000s.
Those lawyers work for the president, and they want to find an answer that will make their client happy, if they can. There are certainly many examples of administration lawyers putting constitutional soundness over policy expediency — Michael Horowitz listed several in a 2015 National Review piece about his time in the Reagan White House. But he did so to point out its relative rarity and criticize what he called “Obama’s corps of yes-man lawyers.”
Harold Bruff, along similar lines but about a different administration, hammers the “Bad Advice” sought and obtained by the Bush 43 team.
Charlie Savage’s magisterial “Power Wars“ examines both administrations. “Many of the lawyers [Bush and Cheney] surrounded themselves with,” he writes, “ … embraced such sweeping views of executive power that the law was not a factor. They dispatched every hard problem with the same easy answer: The president could do whatever he deemed necessary to protect national security.”
Obama, by contrast, did not want to claim presidential prerogative, preferring to ground his actions in statute. But administration lawyers have shown great talent in finding statutory interpretations that could be used to justify Obama’s preferences.
And indeed, so have those in other administrations. Institutional pressures demand it. One of Reagan’s counsels, A.B. Culvahouse, told Borrelli et al. that the office is “the last and in some cases the only protector of the President’s constitutional privileges. Almost everyone else is willing to give those away in part, inch by inch and bit by bit. … So a lot of what I did was stand in the way of that process.” Or as one Justice Department attorney told Savage: “At the end of the day, the job was not to decide what the intelligence community needed. Our job was to help them bring the tool they said they needed up to conform with the rule of law.”
Reagan aide Ed Meese put it this way in a White House meeting over aid to the Nicaraguan Contras in 1984: “It’s important to tell the Department of Justice that we want them to find the legal basis [to give the aid]. …. You have to give lawyers guidance when asking them a question.”
Thus Yale Law School professor Bruce Ackerman argues that while many counsels are indeed highly principled, “The counsel’s office is the last place to look for a systematic legal check on overweening presidential ambition.”
2. Presidents have lots of lawyers, and can pick and choose the opinion they like best.
In any case, if the White House counsel does not offer the desired advice, presidents have other options. Ackerman argues, for example, that the counsel’s office is in a problematic competition with the Office of Legal Counsel (OLC) in the Department of Justice, often seen as the most authoritative source of executive branch legal opinions.
And so much lawyering goes into national security policy these days that “lawfare” goes along with “warfare.” A 2010 speech by State Department legal adviser Harold Koh notes that his office counted 175 attorneys but then gave an acronym-ridden census of other lawyers in government that they must coordinate with: “On any given issue, my office needs to reach consensus decisions with all of the other interested State Department bureaus, but our Department as a whole then needs to coordinate its positions not just with other government law offices, which include: our lawyer clients (POTUS/SecState/DepSecState); White House lawyers (WHCounsel/NSC Legal Counsel/USTR General Counsel); DOD lawyers (OGC, Jt Staff, CoComs, Services, JAGs); DOJ Lawyers (OLC, OSG, Litigating Divisions-Civ., Crim, OIL, NSD); IC lawyers (DNI, CIA); DHS lawyers, not to mention lawyers in the Senate and House.”
The 2011 Libya operation is a nice recent example of the presidential buyer’s market for favorable legal rulings. Recall that the War Powers Resolution envisions explicit congressional authorization for any U.S. involvement in “hostilities,” and prohibits that involvement after a 60-day clock has expired.
As Savage reported at the time, but details more extensively in Power Wars (see Ch. 12, part 5), various administration lawyers had diverging views on using the American military in Libya after those 60 days. Most (including OLC) seemed to think that, at the very least, the “operational tempo” would have to be dialed back, with the United States providing only support for NATO attacks rather than carrying them out.
But White House Counsel Robert Bauer, along with Koh, developed what Savage calls “a very aggressive interpretation” of the War Powers Resolution, arguing that the Libya operation did not constitute “hostilities” under the terms of the WPR. That phrase should be reserved, Obama himself said at a news conference, for wars on the scale of Vietnam.
Critics were not impressed. Sen. Bob Corker, now chair of the Senate Foreign Relations Committee, called the rationale “preposterous.” But Obama chose the option that empowered him, and Congress as a whole failed to do anything about it.
3. Executive branch lawyers create their own precedent.
The Libya decision was built in part on what presidents had done in the past. President Bill Clinton ordered thousands of airstrikes in Kosovo and Serbia in the late 1990s — without ever receiving congressional authorization. And when President Ronald Reagan authorized “imminent danger” pay for naval forces in the Persian Gulf in 1987-88, he simultaneously held that “imminent hostilities,” as in the WPR, did not exist.
All this serves as precedent — yet that precedent is written by the executive branch itself. An intriguing example comes again from Power Wars (see Ch. 12, part 12) tracing a 2011 OLC memo effectively nullifying a law limiting certain presidential staff from dealing with Chinese officials. The OLC held that “ample precedent” existed to show the Constitution intended the president to have “absolute discretion” over who is chosen for diplomatic tasks.
But it turned out that the original source of that claim was a 1990 opinion by George H.W. Bush’s legal team. Repeated frequently enough over the years, a single memo became “ample precedent.”
As Ackerman argues, “this steady stream of authoritative-looking opinions is produced under conditions that allow short-term presidential imperatives to overwhelm sober legal judgments.”
4. Some of those precedents are memorably problematic.
Finally, those counting on legal ethics to automatically check the president might recall the Watergate years.
In 1971, White House Counsel John W. Dean wrote a memo exploring the “use of the available federal machinery to screw our political enemies.”
Then, in a September 1972 conversation, Dean told President Richard M. Nixon that “one of the things I’ve tried to do, is just keep notes on a lot of the people who are emerging as less than our friends.” Nixon approved, saying, “I want the most comprehensive notes. … They are asking for it and they are going to get it.” It was time, Nixon went on, to ramp up the use of the FBI and the Justice Department for this vengeful task.
The White House counsel didn’t say that using government resources to drive political vendettas was an abuse of power. He replied instead, “That’s an exciting prospect.”
There’s no guarantee that a future legal team would be any less excited.