The Damaged Institution of the Presidency,
How the Obama Administration Intends to Restore It,
And What We Can Expect from New OLC Head Dawn Johnsen
By JOHN W. DEAN
Friday, Jan. 9, 2009
... No better news has emerged from the Obama transition that the selection of Indiana University Law School Professor Dawn E. Johnsen to serve as the head of the Office of Legal Counsel (OLC). She served as acting head of this office late in the Clinton administration, and she has written widely – and wisely – about the uses and abuses of presidential power. For example, she offers a thoughtful criteria that might be employed in the selection of federal judges in "Should Ideology Matter in Selecting Federal Judges?: Ground Rules for the Debate." Her analysis of how the Reagan White House and Rehnquist Court weakened Congressional powers is enlightened ...
Johnsen recognizes, and has written extensively, on the role of the president – not to mention the Congress and courts – in interpreting the Constitution. I first became aware of her work regarding how best a president might proceed if he or she believes Congress has enacted an unconstitutional law, and she has written extensively about this subject as well. (When Congress overrode Clinton's veto of a military-appropriations bill containing a provision that would have forced the president to discharge over a thousand members of the military who tested positive for HIV, the president signed it because the funding was vital for national security, but refused to enforce the rider that misinformed members of Congress had added. Following the advice of OLC (read: Johnsen) he worked with Congress to remove the provision before it became effective, after openly explaining what he was doing and why.)
Dawn Johnsen, working with over a dozen former OLC attorneys, prepared a document that will no doubt become controlling for all OLC attorneys when she heads the office. It is entitled Guidelines for the President's Legal Advisors. Had this document been in place during the Bush presidency, there would have been no torture memos, nor for that matter, an authorization for war in Iraq or violations of the Foreign Intelligence Surveillance Act. If Johnsen embraces these guidelines during her confirmation hearing – and there is no conceivable reason she will not – it will do much to restore the faith of Congress (and the courts) in the work of OLC.
But guideline number six is going to provoke a tough question for her. It reads: "OLC should publicly disclose its written legal opinions in a timely manner, absent strong reason for delay or non-disclosure." Johnsen has been highly critical in her writings and public statements about the extreme secrecy of the Bush Administration. For certain, she will be asked during her confirmation if she will make public the legal opinions that Bush's OLC has refused to release. Hopefully, her answer will be an unequivocal yes. For such disclosure is certainly long past being timely, and the claims of "national security" will never withstand the light of day ...
http://writ.news.findlaw.com/dean/20090109.htmlIncludes links to further documents
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