Christy Hardin SmithCommunity

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.

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Christy Hardin Smith

Christy Hardin Smith

Christy is a "recovering" attorney, who earned her undergraduate degree at Smith College, in American Studies and Government, concentrating in American Foreign Policy. She then went on to graduate studies at the University of Pennsylvania in the field of political science and international relations/security studies, before attending law school at the College of Law at West Virginia University, where she was Associate Editor of the Law Review. Christy was a partner in her own firm for several years, where she practiced in a number of areas including criminal defense, child abuse and neglect representation, domestic law, civil litigation, and she was an attorney for a small municipality, before switching hats to become a state prosecutor. Christy has extensive trial experience, and has worked for years both in and out of the court system to improve the lives of at risk children.

Email: reddhedd AT firedoglake DOT com