In arguing that the Bush Administration lawyers who authored the “torture memos” should not be subject to prosecution or disbarment (“Truth or Dare”), Jeffrey Rosen posits that “history is full of examples of White House and Justice Department lawyers offering dubious legal advice for political reasons.” Rosen attempts to buttress this claim by citing two memos--one authored by then-Attorney General Robert Jackson and the other by Randy Moss, who headed the Office of Legal Counsel during the final years of the Clinton Administration.
Rosen’s underlying premise, namely, that the Justice Department (and in particular, its Office of Legal Counsel) regularly offers doubtful legal advice for political reasons, is unsupportable. The Office of Legal Counsel has a long-history, under both Republican and Democratic presidents, of providing objective and balanced legal advice--even when that advice is not welcomed by the president. During the Reagan administration, for example, the Office rejected the argument that the Constitution gives the President inherent power to veto particular items in a piece of legislation. And during the Clinton administration, the Office concluded that it would have been permissible for prosecutors to indict President Clinton after he left office and that the Department of Agriculture lacked authority to settle untimely claims with black farmers who were the victims of racial discrimination.
But even if one accepts Rosen’s premise, his use of the Moss opinion to support it is utterly erroneous. Moss did not “advise the White House that it could ignore the [60-day] deadline in the War Powers Resolution” for obtaining congressional approval for continuing hostilities. Far from it. Prior administrations had taken the position that the so-called “60-day clock” was unconstitutional and thus unenforceable. Although those precedents would have readily disposed of the issue in favor of the president’s plan, the Moss opinion does not rely on that expansive view of executive power. Instead, the opinion engages in a thorough and cogent analysis of congressional intent, concluding that Congress authorized the continuing bombing campaign in Kosovo when it enacted a special law giving the Clinton administration an addition $5 billion in funding to continue that specific military operation. Admirably, the opinion also describes the arguments that might be made in support of a contrary conclusion and explains why those arguments are unavailing. In short, this balanced and well-reasoned opinion is consistent with the best traditions of the Office of Legal Counsel. To compare it (with virtually no analysis) to now notorious memos which, in Rosen’s view, “offend standards for competent legal advice at the highest levels of government” and are “filled with contortion and shoddy logic,” is to engage in a journalistic drive-by shooting.
Rosen presumably chose the Moss opinion because it is an example of a recent decision by a Democratic administration finding in favor of the president’s authority to wage war, and it could thus be used to show that lawyers--regardless of the administration in which they serve--should not be subject to prosecution or disbarment for the opinions they render. It is undoubtedly true that the same rules should apply to lawyers who serve in Republican and Democratic administrations. The merit of that point, however, is no justification for even hinting at a similarity between legal opinions that could not be more different in substance and approach.
Finally, Rosen provides no support for his claim that Moss authored this opinion for “political reasons.” This is a serious charge against a former public official with an outstanding reputation for integrity. To level such a charge without any basis falls far, far short of the standards one should expect of Jeffrey Rosen.
Walter Dellinger is a partner at O'Melveny & Myers in Washington, D.C., and the Douglas Maggs Professor of Law at Duke University. He served as head of the Office of Legal Counsel (1993-1996) and as acting Solicitor General of the United States (1996-1997).
By Walter Dellinger