The opinions reveal a Supreme Court grappling with the implications of the inseparable duality of the individual president and the institutional presidency.
Daphna Renan is a Professor of Law at Harvard Law School. Before joining HLS, Renan served as an attorney advisor in the Justice Department's Office of Legal Counsel and as a counsel to the Deputy Attorney General. Renan clerked for Justice Ruth Bader Ginsburg of the U.S. Supreme Court and Judge Harry T. Edwards of the U.S. Court of Appeals for the District of Columbia Circuit. She received her J.D. from Yale Law School.
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President Trump’s firing of FBI Director James Comey is startling and deeply unsettling. Of the many reasons why it is so troubling, we want to highlight one that has received less attention. The process by which Comey was fired appears to raise a version of the same professional concerns that the firing supposedly responds to: a breach of longstanding norms that have developed to protect the integrity, independence, and rule of law values of the Justice Department.
Our current moment has brought into sharp relief longstanding questions about the role of law in presidential decision-making. I’ve just posted here a paper that explores the structures of executive branch legal review at work in that decision-making process. The standard idea in the scholarship has long been a quasi-judicial Office of Legal Counsel (OLC) dispensing formal, written opinions binding on the executive branch.