Executive Power

More Views on Presidential Lawyering in Time of Crisis

By Jack Goldsmith
Tuesday, September 11, 2018, 4:17 PM

A few weeks ago Bob Bauer and I flagged an exchange we had on the topic of presidential lawyering in time of crisis.  Here is his main article and here is my response.

There were two additional responses to Bauer’s article--by senior Obama administration lawyers--that are very much worth reading.  The first, by Mary DeRosa, is here.  It argues:

National security lawyers in the executive branch operate without many of the protections for high-quality lawyering that exist in other fields.  Their work is done largely in secret and they receive less input from the public and oversight from the courts and Congress.  These characteristics of the practice make internal process protections for high-quality legal analysis particularly important.  The best view standard is such a protection.

The best view standard is a critical protection not because it results in a “correct” answer to every legal problem – that would be impossible.  Instead, the best view standard acts as a regulative ideal: a critical guidepost for lawyers that focuses them on their distinctive role in the process.  That role includes taking responsibility for the legality of policy decisions and for the integrity of executive branch law.  It provides an external professional standard that can guide the lawyers’ analysis and serve as a counterweight to the inevitable pressures they face.  The best view standard also upholds the unique responsibility of executive branch lawyers to assist the President in carrying out his constitutional responsibility to take care that the laws are faithfully executed.  Given the nature of national security policy – that most things feel like a crisis – the increased flexibility that Bauer’s proposal envisions would inevitably expand to apply to more than he intends, undermining the quality of lawyering overall.

There may be times when lawyers and presidents will feel the only option in crisis is to abandon the best view standard to approve a policy deemed crucial.  This reality does not argue for changing the standard in order to make this departure less painful.  The fear of criticism for adopting a questionable legal position will make them more cautious about taking that step.  If the need is truly great, they will do it anyway.

The second response, by Christopher Fonzone and Dana Remnus, is here.  They describe their argument as follows:

In our piece, we argue that Bauer’s empirical turn – considering detailed case studies of lawyers during two times of real danger, the run-up to World War II and the Cuban Missile Crisis – is a welcome addition to the literature on Executive Branch lawyering, as is his healthy dose of realism about what lawyers and the law can accomplish during crisis situations.  We contend, however, that Bauer has exaggerated the difference between his preferred approach and what he characterizes as the OLC-centered "best view" of the law.  For example, Bauer argues that the President must weigh multiple equities and, particularly during crises that raise existential concerns, sometimes pursue a course of action that is legally “reasonable,” even if not supported by the “best view” of the law; that the legal review process should be integrated with, rather than excluded from, policy development; and that OLC should play a role in that process, but a senior government lawyer should elevate any areas of disagreement to the President for decision.  But we question the extent to which advocates of the “best view” approach, whatever their other objections about Bauer’s piece, would ultimately dispute these points.

Given this, it appears to us that Bauer’s point of departure is not in arguing that the President may have to pursue a course of action other than that supported by the “best view” of the law, but rather in arguing that Executive Branch lawyers should shy away from even advising the President of that “best view,” lest they put the President “under pressure” to adopt it.  If this is Bauer’s view – and it certainly seems to be in his article – we think it is mistaken.  To be sure, Bauer correctly observes that in the case studies he recounts, the “best view” of the law was not the primary focus of the legendary lawyers (Robert Jackson and Abram Chayes) involved, but things worked out well in the end anyway. But it is far from clear that these two case studies are a representative sample.  What about cases where Executive Branch lawyers may have pushed the legal envelope and the aggressive positions came back to haunt the President?  Or where lawyers were cautious and played a role in helping to save the President from errors?  Or cases where lawyers were cautious, and that came back to haunt the President?  We think a broader empirical analysis would likely show something that seems to be intuitively true:  that there are real—although extremely difficult to predict—risks in deviating from the “best view” of the law.  To make informed decisions, the President needs to be informed of these risks.  Thus, although we find Bauer’s article undoubtedly provocative and think there is much to applaud in his realism and empirical approach, we think his selection of case studies and attendant emphasis on what Executive Branch lawyers and the law cannot do may lead him to underestimate and not focus enough on what they can.  We hope that future work takes up this latter issue.

Both pieces are worth a look.