I agree with Ken’s, Roger Alford’s, and Paul Rosenzweig’s defenses of Harold Koh, all three of which seem to me correct: Koh has an attorney-client relationship with the government that he did not have as an academic. He has a general fiduciary obligation to government that would apply to government officials beyond lawyers. And he has a duty of loyalty to the President. All of this, in my view, is right.
But in Koh’s case, there is an important additional factor, one I explained in this post sometime back in response to a New York Times article by Paul Starobin. This factor makes Koh a very awkward exemplar of the principle that we need to be tolerant of people who give their service to an administration that takes positions at odds with the views they either once expressed or could reasonably be expected to hold: Koh himself was never willing during the Bush administration to offer the same latitude to others. As I put it a few months ago:
The problem with Koh is that he personally did so much to constrict the space for exactly this sort of behavior in government lawyers before he went into government. What Starobin admiringly calls Koh’s “legendary . . . piercing criticisms of ‘executive muscle flexing’ in the White House’s pursuit of the so-called war on terror” were often, in fact, bullying and blustering efforts to delegitimize positions with which Koh disagreed and to attack those who took those positions. Koh sometimes did so, I might add, with remarkably poor command of relevant facts and law that simply did not support the positions he treated publicly as orthodoxies from which one strayed at peril of his wrath. (Full disclosure: While I have never been a government lawyer, I have been on the receiving end of one of Koh’s public outbursts, and it was a singularly unpleasant experience.) This sort of pressure, particularly when it comes from the dean of the Yale Law School, does not make it easier for people in government to represent government clients.
Koh’s problem, in my view, is not that he has changed position situationally or taken on a government client with interests and positions that diverge from his stated prior views. It is that he spent years denying others the latitude to do the same.
This does not change my ultimate sense that Koh is entitled to the presumption he was willing to deny to others. But he will always get it, at least from me, with an asterisk–one that says he is benefiting from a vision of the profession that he does not really share, at least not when it’s other people’s careers that are at stake.