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Living Up to Our Constitution – Part I

U.S. Constitution (source: Wikipedia)

U.S. Constitution (source: Wikipedia)

I recently attended the Second Annual “Living Constitution” Lecture at the Brennan Center for Justice. The keynote speaker this year was Senator Sheldon Whitehouse and his topic was “Living Up to Our Constitution.”

Sen. Whitehouse identified four ways in which we live up to the Constitution; I am excerpting some of the best bits and breaking them into four separate posts for your contemplation this holiday weekend.

Part One
Demanding That the Executive Branch
Remains Committed to the Rule of Law

The Bush Administration left a parade of horribles: grandiose views of executive power and executive privilege; politicized hiring and firing at the Department of Justice, with the work of that illustrious agency manipulated for political ends; political meddling at the Environmental Protection Agency that turned enforcement of our nation’s environmental laws over to the polluters; torture memos and other shameful national security opinions from the Department of Justice’s Office of Legal Counsel that are now the subject of disciplinary investigation. For those of us who have spent time in the Department of Justice, it is wrenching to think of OLC as subject to a disciplinary investigation.

The Bush Administration’s torture memos make clear how important it is for the executive branch to commit itself to the rule of law.

If there is only one thing that I could wish of my government, it’s that the Obama administration gets this part right: without adherence to the rule of law, the Constitution is not worth the paper it is written on. I get teased a bit around the shores of the Lake because I revere the Constitution like a secular Bible and treat the rule of law like a secular religion. So sue me. Without the rule of law, everything else you think you have — including your wealth, your health and your freedom — can be taken away at a whim.

To put this in practical terms, if our nation is to live up to our Constitution, we must insist that executive branch attorneys have the independence and integrity necessary to protect the rule of law. This is not merely a question of hiring good people. Process matters.

As Jack Goldsmith told the Judiciary Committee two years ago, the Office of Legal Counsel, or OLC, had “developed a number of practices to help it avoid errors, and to compensate for the fact that its opinions are not subject to the same critical scrutiny of adversary process and dissent that characterize the judiciary. These practices include (1) insisting that agencies seeking OLC’s advice request OLC opinions in writing, setting forth their view of the law and facts; (2) seeking the written legal and factual views of all agencies with expertise or that may be affected by the opinion; (3) subjecting draft opinions to multiple levels of scrutiny and review inside OLC; (4) writing narrowly tailored opinions; and (5) publishing non-classified opinions when possible.”

The Bush Administration also made it painfully clear that substance matters, as well as process. Outlandish “unitary executive” theories spawned a litter of mischief: the endless signing statements claiming a unilateral right to amend laws; seemingly unlimited Article II authority claimed for the President in anything touching upon national security; the claim that Congress could not limit the President’s control over lower-ranking officials; exaggerated claims of executive privilege—for example during our investigation into the politicized firing of U.S. Attorneys, an assertion of executive privilege against Congress whose purpose to avoid embarrassment or responsibility for wrong-doing appears confirmed by the White House stonewalling executive branch investigators.

Former U.S. Deputy Attorney General Jim Comey made a speech last year, about this very point, about how the process and the institutional culture itself promotes the integrity of the system.  I concur. By fostering a culture of integrity, you make “doing the right thing” the default position for an administration decision maker and the standard operating procedure in the organization.

I’ll end with one last quote from the first section of Sen. Whitehouse’s speech, wherein he complains about Bushco’s abuses:

Each episode reveals hostility to Congress and to the laws it has passed. Each jumped the well-established rails of governmental practice, whether those rails were laid on solid judicial precedent or in traditions yielding a settled modus vivendi. We now need to put the trains back on the rails.

Amen to that.

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Cynthia Kouril

Cynthia Kouril

Cynthia Kouril is a former Special Assistant United States Attorney in the Southern District of New York under several different U.S. Attorneys, former counsel to the Inspector General for the N.Y.C. Department of Environmental Protection where she investigated threats to the New York City water supply and other environmental crimes, as well as public corruption and fraud against the government, former Examining Attorney at the N.Y.C. Department of Investigation and former Capital Construction Counsel at New York City Parks and Recreation.
She is now in private practice with a colleague whom she met while at the USA Attorney's Office. Ms. Kouril is a member of the Steering Committee, National Committeewoman and Regional Coordinator for the New York Democratic Lawyers Council, a member of the Program Committee of the Federal Bar Council and a member of the Election Law Committee at the Association of the Bar of the City of New York. She is active in several other Bar Associations.
Most important of all, she is a soccer mom.