I respect the work Randy Moss did at the Clinton Office of Legal Council and my piece did not compare Moss to John Yoo. Instead, I compared him to Robert Jackson, the revered FDR legal advisor whose opinion justifying the destroyers-for-bases deal stretched the limits of existing law. There is nothing untoward about this comparison. My point was the same one that Jack Goldsmith, the former Bush OLC head, makes in his book, The Terror Presidency: that the Office of Legal Counsel inevitably has a broader view of executive power than other institutions of government and, when push comes to shove, tends to favor the president.

As I reported, Moss, in his Kosovo memo, advised the White House that it could ignore the 60-day deadline in the War Powers Resolution for obtaining congressional approval for continuing hostilities. As Goldsmith notes in his book, “The Kosovo bombings were especially controversial because of their scale, because they began without congressional approval, and because they continued in the face of Congress’s affirmative refusal, by a tie 213-213 vote, to authorize them. Not only was Kosovo ‘the first time in our history that a President waged war in the face of a direct congressional refusal to authorize the war,’” Goldsmith writes, quoting the political scientist David Grey Adler. “It also marks the first and only time that a President exceeded the limitations on the 1973 War Powers Act.”

In his memo, it’s true that Moss argued that “a subsequent Congress remains free to choose in a particular instance to enact legislation that clearly authorizes hostilities and, in so doing, it can decide not to follow the [War Powers Resolution's] procedures.” But Congress’s authorization of hostilities in Kosovo, and intent to override the War Powers resolution, was hardly clear or unambiguous. At least one scholar has argued that it was implausible to read the vague Kosovo appropriations statute, based on ambiguous snippets of legislative history, to conclude that Congress had clearly authorized the Kosovo war, despite the clear instructions in the War Powers Resolution that appropriations statutes shall not be construed as authorizations. That’s why the analogy to Jackson strikes me as relevant: both Moss and Jackson, although acting with integrity, were producing legal opinions under intense political pressure that stretched the contours of existing law.

Like Jackson’s defense of the destroyers-for-bases deal, Moss’s memo strikes me as a relevant illustration of how Democratic as well as Republican legal advisors feel pressure to defend executive power in the face of explicit congressional laws to the contrary. Saying that Moss reached his conclusion for “political reasons,” however, was too strong. It would have been more precise to say, as Goldsmith does, that “the Clinton lawyers--like all OLC lawyers and Attorneys General over many decades--were driven by the outlook and exigencies of the Presidency to assert more robust presidential powers, especially in a war or crisis, than had been officially approved by the Supreme Court or than is generally accepted in the legal academy or by Congress.”

Jeffrey Rosen is the legal affairs editor at The New Republic.