OLC: Presidential Power At Root Of GOP Opposition To Dawn Johnsen

Dawn Johnsen is one of the premiere scholars — on the left or right — on the subject of presidential power, constitutionality and the rule of law.

She, along with several other former OLC lawyers from all sides of the political aisle, crafted a document which lays out limitations on presidential power and conduct under our nation’s laws shortly after the OLC torture memos started surfacing. And that is at the root of GOP opposition to her nomination.

For, as this says, there are some boldfaced limitations to "whatever the President says goes," and the OLC lawyers not only knew that, but had a duty to say so:

OLC’s core function is to help the President fulfill his constitutional duty to uphold the Constitution and “take care that the laws be faithfully executed” in all of the varied work of the executive branch. OLC provides the legal expertise necessary to ensure the lawfulness of presidential and executive branch action, including contemplated action that raises close and difficult questions of law. To fulfill this function appropriately, OLC must provide advice based on its best understanding of what the law requires. OLC should not simply provide an advocate’s best defense of contemplated action that OLC actually believes is best viewed as unlawful. To do so would deprive the President and other executive branch decisionmakers of critical information and, worse, mislead them regarding the legality of contemplated action. OLC’s tradition of principled legal analysis and adherence to the rule of law thus is constitutionally grounded and also best serves the interests of both the public and the presidency, even though OLC at times will determine that the law precludes an action that a President strongly desires to take.

The question is not why Dawn Johnsen would believe that even the President must adhere to the rule of law. Because that is and always has been the standard to which we, in this nation, have held our leaders in a republic which was founded on the very notion that this is a nation of laws, not men.

The question truly is why have some people allowed political expedience to trump the rule of law in their public pronouncements?

That is the root of GOP opposition to Dawn Johnsen. Because once that is exposed for the fraud it has been on the American public, that all the fear mongering and lawless macho posturing has been a sham to provide CYA for behavior they knew — KNEW — was unlawful?

Then accountability begins to knock.

Powerline’s Paul Mirengoff has been the public voice of the Federalist Society oppo against Dawn Johnsen since she was nominated by President Obama to OLC.  One of his recent posts asked this:

The Post may be impressed that, as a lawyer representing the United States, Johnsen did not ignore the unambiguous language of the United States Code. But as OLC chief, Johnsen will not be dealing with these kinds of no-brainers. The real question is whether Johnsen will put her left-wing policy preferences to one side in cases where the applicable provisions are not air-tight.

Actually, the real question is how anyone can ask this of Johnsen and not bother to ask the same of Yoo, Bybee, Addington and crew?  Lawyers who failed to even mention Youngstown Steel, US v. Lee and a whole slew of applicable cases and precedents while rubberstamping torture and other unilateral executive power grabs under the guise of national security by Cheney proxy.

Not to mention wholly ignoring US treaty obligations despite Article 6 of the US Constitution:

This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.

But why let a little thing like the Constitution stand in the way. Isn’t that why the Founders fought the Revolution? "L’etat c’est whatever the President says is legal."

Not so much.

Call your Senators today and tell them accountability is at hand. They must stand up for the rule of law and confirm Dawn Johnsen for OLC.

 
37 Responses to "OLC: Presidential Power At Root Of GOP Opposition To Dawn Johnsen"
foothillsmike | Monday May 11, 2009 06:07 am 1

Morning Christy, Hope you are feeling much better today.


Christy Hardin Smith | Monday May 11, 2009 06:08 am 2
In response to foothillsmike @ 1

Morning Mike – hanging in there, thanks. How are things with you?


foothillsmike | Monday May 11, 2009 06:12 am 3
In response to Christy Hardin Smith @ 2

I am well.
I would like to see Dawn Johnson’s nomination move forward too. Who are the specific bad actors in the Senate who are holding this up? They need a spotlight shone on them.


foothillsmike | Monday May 11, 2009 06:19 am 4

I think the rethug party is absolutely ludicrous and hipocritical in its responses. In their preparation to say no to a SCOTUS nominee they run in circles saying they want someone to interpret the constitution and laws while in holding up the Johnson nomination they are afraid she might strictly enforce the constitution.


Christy Hardin Smith | Monday May 11, 2009 06:25 am 5
In response to foothillsmike @ 4

Yeah, I particularly love how the Constitution is used as an excuse to not have to follow it yourself. Lovely.


demi | Monday May 11, 2009 06:29 am 6

Good Morning Christy
Hugs to you and hoping you continue to hang in, if not feeling mucho better soon. Doctor today?
Mike: You’ve probably seen this, but if not:
http://writ.news.findlaw.com/dean/20090417.html
John Dean spells some things out clearly regarding who and how certain folks are pushing their agendas in an incredible way.
These men were part of the effort by all forty-one Republican members of the Senate to warn the new president that if he wanted to avoid a huge fight over the future of the federal judiciary, then he should start by re-nominating a number of Bush nominees who had not been confirmed before the Bush presidency ended. This unprecedented request was chutzpah on stilts.


foothillsmike | Monday May 11, 2009 06:39 am 7
In response to demi @ 6

And they reject the label of the party of NO. I wonder what they don’t understand about losing an election. Come on MN.


demi | Monday May 11, 2009 06:44 am 8
In response to foothillsmike @ 7

Do you have a bug in my living room? I just said something very similar. It’s a damn shame it comes down to 1 or 2 votes. It’s a good thing they didn’t change the cloture vote rules to a simple majority. Well, we might benefit right now, but we must keep things fair in the long term.


demi | Monday May 11, 2009 06:47 am 9
In response to demi @ 8

Oh gosh, did I just say Fair? Fair for all, not just what I want right now? It’s just so much more frustrating to want rule of law followed. Would be easier to be a selfish brat. Too late for me I suppose.


foothillsmike | Monday May 11, 2009 06:50 am 10

I am afraid that there are separate rules for the committees where a minority can successfuly block and I don’t understand how a single senator can “put a block” on things as Coburn is notorious for.


cbl2 | Monday May 11, 2009 06:51 am 11
In response to foothillsmike @ 7

I wonder what they don’t understand about losing an election

The Authoritarian Personality (TAP) is an influential 1950 book by Theodor W. Adorno, Else Frenkel-Brunswik, Daniel Levinson, and Nevitt Sanford, researchers working at the University of California, Berkeley, during and shortly after World War II. The personality type they identified can be defined by nine traits which were believed to cluster together as the result of childhood experiences. These traits include conventionalism, authoritarian submission, authoritarian aggression, anti-introspection, superstition and stereotypy, power and “toughness,” destructiveness and cynicism, projectivity, and exaggerated concerns over sex.

Mornin’ Christy and All


demi | Monday May 11, 2009 06:55 am 12
In response to cbl2 @ 11

Good Morning cbl2
That authoritarian view keeps coming up, doesn’t it? Seems to be the lazy man’s religion.


foothillsmike | Monday May 11, 2009 06:57 am 13
In response to cbl2 @ 11

Sounds like the rethug party. To bad the authors were lacking in counting skills.*G*


oldgold | Monday May 11, 2009 06:59 am 14

You would think that at least for the next four years the GOP would not be opposed to having an attorney running the OLC that understood their are constraints on what the President can do.
But, of course, we are talking about the Stupid Party.


Christy Hardin Smith | Monday May 11, 2009 07:05 am 15
In response to oldgold @ 14

Oh, honey, that would take a thought beyond “how can I provide more CYA for my peeps?”


demi | Monday May 11, 2009 07:08 am 16

Does anyone think that the Repubs realize, on some level, that a liberal thinking person would not abuse power and that they are willing to ride out the near future and hope to regain power with the old rules in place?


Christy Hardin Smith | Monday May 11, 2009 07:37 am 17
In response to demi @ 16

Not so much that a liberal wouldn’t abuse power, but keeping the possibility of consolidating even more the next time around, I think. It’s the long game, in my mind, with a lot of these folks.


rxbusa | Monday May 11, 2009 07:39 am 18
In response to demi @ 16

yes. By definition being liberal means you listen to other people’s point of view, while by definition the conservatives don’t. That puts us at an immediate disadvantage (but one, as a liberal, I’m willing to accept on the basis of fairness). It also means we are vulnerable to enemies who take advantage of our openness to attack us…so maybe Rush Limbaugh really was the 20th hijacker.

Seriously, though, in response to your comment, I think that what you postulate is absolutely possible and is exactly why we should push relentlessly for the rule of law and appropriate accountability for those who abused our Constitution so that we can prevent it happening in the future. In other threads on fdl this weekend I read the strong sentiment that letting this go after Watergate with the Nixon pardon and the Bush pere pardons and general brushing-under-the-rug of Iran-Contra were the breeding ground of the horrors of the past 8 yrs and I wholeheartedly agree. We need to keep on this and throw the book at the culprits…all of them.


msmolly | Monday May 11, 2009 07:40 am 19

Good morning from NW Indiana, Christy and peeps.

The question truly is why have some people allowed political expedience to trump the rule of law in their public pronouncements?

This troubles me. Isn’t this what Obama is doing? We are all supposed to be much too busy with the economy, health care, et al, to investigate and prosecute those responsible for torture. It is just “inconvenient” (i.e., politically inconvenient) to investigate.


msmolly | Monday May 11, 2009 07:42 am 20
In response to rxbusa @ 18

letting this go after Watergate with the Nixon pardon and the Bush pere pardons and general brushing-under-the-rug of Iran-Contra were the breeding ground of the horrors of the past 8 yrs

Coincidentally, I just watched Frost/Nixon this weekend, and all of the Watergate stuff came rushing back into my memory. I’m old enough to remember it vividly, and the parallels with the Bush administration are incredible!


rxbusa | Monday May 11, 2009 07:49 am 21
In response to msmolly @ 20

Yeah, I’ve been wanting to watch that…but I’m the political junkie and the husbo is not, so I have to find time to do it on my own. That and W I want to see. thanks for the inspiration.


Christy Hardin Smith | Monday May 11, 2009 07:52 am 22
In response to msmolly @ 19

I’ve been thinking it would be awfully nice to have a discussion with folks who worked with Lawrence Walsh on the excesses and abuses that have occurred stemming from so many of the folks not held accountable with Iran-Contra and elsewhere.

But I’m afraid the folks who would listen are the same folks already paying attention now. And everyone else would dismiss it as either partisan or “old news” — which is the convenient way of saying “I don’t want to have to be responsible for cleaning up this mess.” SIGH


rxbusa | Monday May 11, 2009 07:58 am 23

Well, there is nothing we can do about it being “old news”—20 and 30 years old those abuses are—but I think there is something to be done about refuting it being partisan. Surely there are enough longtime Republicans out there who are disgusted with what happened the past 8 yrs that will come forward in favor of the rule of law. Even my dittohead parents won’t defend W anymore.


msmolly | Monday May 11, 2009 07:58 am 24
In response to rxbusa @ 21

I have TiVo, and you can rent movies from Amazon for $3.99 and download to the TiVo. I think that’s about what Blockbuster charges for a new release, and you don’t have to go to the store and pick it up and return it. Only downside is that you have to plan ahead because it takes quite awhile to download. You have 30 days to watch, and when you begin to watch you have 24 hours in which to watch as many times as you like. Neat program. I don’t watch enough movies to have a NetFlix subscription, so this works very well.

Forgive the detail, but I thought perhaps other TiVo owners might not know about this.


rxbusa | Monday May 11, 2009 08:02 am 25
In response to rxbusa @ 23

shoulda said 25 and 35. Bad arithmetic….


msmolly | Monday May 11, 2009 08:05 am 26

My son was visiting for Mother’s Day, and in addition to Frost/Nixon, he put me onto the full version of Jon Stewart’s interview with Clifford May (I think my son just wanted to watch my head explode). Jon Stewart is exceptional; I’m surprised the interview didn’t get more buzz and commentary.

Watch, if you haven’t, and prepare to yell and throw things (at Cliff May)!

Jon Stewart’s Extended Interview with Cliff May


Christy Hardin Smith | Monday May 11, 2009 08:40 am 27

btw, a little fresh posty snark-ness up top, if anyone wants some…couldn’t help myself.


Christy Hardin Smith | Monday May 11, 2009 09:15 am 28
In response to msmolly @ 26

Cliff May. That is a bit mean for Mother’s Day, I have to say. *g*


earlofhuntingdon | Monday May 11, 2009 09:34 am 29

There you go, again. Thinking the law means what it says. Tsk. Tsk. *g*

The federalist society’s position is nothing more than “my politics good, your politics bad”. Why it has the pull it has is beyond me. It hasn’t much to do with the law. They merely imagine themselves as parchment clad knights doing their king’s bidding, even if in doing so, they promote the whisperer that would play the king, while the king plays.

Prof. Johnsen’s problem, in their view, is that she would enforce the law rather than leave it to the king to decide what “voluntary restraints” please him. (My guess, the mink covered hand-cuffs. Just a guess.) With a division of Johnsen’s working for her, she could be the backbone for a DoJ resurgence that might then produce credible investigations of wrongdoing. Can’t have that when the likely wrongdoers are those who were in power the last eight years and who lied us into war, domestic spying and torture.


TheraP | Monday May 11, 2009 09:38 am 30

We’ve already seen the perversion of the OLC under bushco. Where lawyers, whose job it was to protect the executive from illegal behavior, devised and sanctioned fictitious imprimaturs in order to slavishly follow the demands of the executive, however illegal and unconstitutional.

I read and wrote a lot about Dawn Johnsen at the time she was nominated. And if there is one person I would love to work under right now, it would be her. IANAL, but in essence I view her job as an Ethics Watchdog, the ethical imperative being the oath to the constitution. I really can’t give any higher recommendation than that – that I’d willingly work alongside her to that End. (Indeed, I think that is the task most of us are trying to do here and elsewhere. To restore the Rule of Law – in every particular.)


barbara | Monday May 11, 2009 09:38 am 31
In response to foothillsmike @ 7

Oh, lordy, we’re trying. Really we are. (sigh) Very trying, in fact.


barbara | Monday May 11, 2009 09:40 am 32
In response to Christy Hardin Smith @ 2

Christy? Unwell? Missed that somehow, but noticed you’ve not been around lately. No ReddHead to follow, ergo, running in circles. Okay, that’s what I do most of the time anyway, but still . . . . !!!


Christy Hardin Smith | Monday May 11, 2009 10:03 am 33
In response to barbara @ 32

Have been dealing with a bit of a flare of late. Taking it easy to try and ease the joint issues a bit. Here’s hoping…


demi | Monday May 11, 2009 10:12 am 34

Got your epsom salts out? I know it can dry the skin out, so get some nice sesame body oil. It’s got a soft smart ex-hippie smell.
Did you know that katymine was online a little bit the other night?


SomeGuy | Monday May 11, 2009 11:24 am 35
In response to Christy Hardin Smith @ 5

It seems the Republicans are happy to undermine Constitutional checks and balances, and Constitutional rights. Their new motto is Inter arma enim silent leges (In times of war, the law falls silent).

Thanks for pointing out Dawn Johnsen as somebody who will stand up for the rule of law. I hope Democrats will stand up for her.


MarkH | Monday May 11, 2009 05:16 pm 36
In response to cbl2 @ 11

somebody said,

The personality type they identified can be defined by nine traits which were believed to cluster together as the result of childhood experiences. These traits include conventionalism, authoritarian submission, authoritarian aggression, anti-introspection, superstition and stereotypy, power and “toughness,” destructiveness and cynicism, projectivity, and exaggerated concerns over sex.

In my Repub friends I’ve seen conventionalism, authoritarian submission, authoritarian aggression, anti-introspection, cynicism, and projection. Not all 9, but this is only 3 guys I’ve observed.

I don’t think it’s a neat package. That’s a lot of problems for any 1 person to carry. Maybe Dubya has ‘em all, but not many other people.


MrWhy | Monday May 11, 2009 09:57 pm 37

Good ideas are worth following through on.


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