Following the splendid University of Virginia School of Law conference last Friday at which DOS Legal Adviser Harold Koh delivered the keynote address, Notre Dame professor and Opinio Juris blogger Roger Alford commented on part of Koh's speech in which he defended himself against various charges of inconsistency and even hypocrisy in not holding to all the views he expressed as an academic over several decades. Alford defended him against this charge in agreeing that his role involves an important one as a lawyer with a client; Legal Adviser Koh is not Dean Koh, intellectual-free-agent professor.
Over at Volokh Conspiracy, I agreed with Alford and added that this applied still further, in that his role involved more than just attorney-client duties, but the general fiduciary duty of a public official in a position of public trust, something true of public officials generally and not just the lawyers. Paul Rosenzweig dropped me an email, which he kindly allows me to post here, agreeing with the first two, and adding a third layer - that public officials in an administration moreover have a duty of loyalty to the president. All three of us, then - Alford, Rosenzweig, and I - broadly agree that academics and others who accuse Koh of hypocrisy for somehow not following views he expressed as an academic are mistaken and not in small ways. As Rosenzweig says (speaking informally in a personal email):
I agree with your post on Harold Koh at Volokh Conspiracy. It isn’t just attorney-client privilege - it is also his role as a fiduciary or agent for his principal and for his predecessors and his department of government. But I would suggest (as one who has been there) that it is also one thing more than that – the duty of loyalty and honest services. You take a job like this and you get all of the power, responsibility, authority and obligation that comes with it - but only because someone has given you that opportunity. Whether directly or indirectly, you owe your position to the President.
And with that comes, in my judgement, a burden of loyalty – you are bound within government circle to advance your own views as strongly and effectively as you can as a matter of service to the President. But once s/he makes a decision if it is contrary to your advice, you are equally bound to support that view in both public and private. The only exception is if the President’s view is so far outside the bounds of your understanding that you cannot in good conscience express that support – in which case your obligation is to resign.
I know that is a horribly formalistic answer – and one that in practice most honor more in the breach than in the execution –but it does capture how most people react. Many a time a superior would choose an inferior policy for any number of valid reasons. I never would have thought to publicly express my displeasure.
What the academics are really saying is that they (from the outside) are so sure that Koh’s views (e.g. on Libya) are wrong and they are so sure that Koh agrees with them, that they wish he had resigned. I assume he argued for a less strong assertion of presidential power than came out but that others convinced the President he was wrong. I also assume that he recognizes that they are also entitled to their views and that they aren’t so manifestly wrong that he should quit over it. In doing this Koh is upholding the highest standards of a good government leader and he should be comemended, not condemned.