Remember, it was Dems, not R's, who were responsible for the failure of Dawn Johnsen's nomination to head the OLC

For once, it appears, the Obama people found the absolute best person for a job they had to fill. Which no doubt explains why the administration fought so hard for Dawn Johnsen's nomination to head the OLC. (That's a joke. Not funny, but then, neither is the administration.)

"Put plainly, the OLC must be willing to say no to the president under any circumstances. The office does the president no favors by allowing its legal analysis to be twisted by policy or partisan preferences, even in the midst of crisis, as the months after Sept. 11 undoubtedly were.

"With rare exceptions, in administrations of both parties, the OLC has adhered to this essential principle. The torture memo and related advice are one of the unfortunate exceptions. The office undermined the rule of law, its own traditions, and the reputation and goals of the administration it advised . . ."

-- Dawn Johnsen, who had her stalled nomination to head the Office of Legal Counsel withdrawn, in a Washington Post op-ed today, "Restoring leadership and integrity to the Office of Legal Counsel"

by Ken

Maybe the simplest way to put it is that Dawn Johnsen's op-ed in today's Washington Post demonstrates why she was such an outstanding choice to head the Justice Dept.s Office of Legal Counsel (OLC), a nomination she asked to have withdrawn when, a year and change later, it appeared that she could still command "only" some 57 Senate votes.

Johnsen says she has no doubt that her "profoundly negative reaction" to the leaked OLC torture memo "was a critical factor behind the substantial Republican opposition that sustained a filibuster threat." She points out, though, that "prominent Republicans earlier had offered criticisms strikingly similar to my own, and insists: "A bipartisan acceptance of those criticisms is key to moving forward. The Senate should not confirm anyone who defends that memo as acceptable legal advice."

After the torture memo came to light, I led 19 former OLC lawyers in developing 10 "Principles to Guide the Office of Legal Counsel." We called for a return to long-standing, nonpartisan practice. The results were not flashy proposals for change but the carefully considered consensus of experience. The first principle, from which the others follow: "When providing legal advice to guide contemplated executive branch action, OLC should provide an accurate and honest appraisal of applicable law, even if that advice will constrain the administration's pursuit of desired policies."

THE TEN PRINCIPLES

Is anybody else curious what exactly those ten principles are that Johnsen's group of former OLC lawyers developed, the principles that presumably disqualified her -- in the "minds" (for want of a better word) of the senators of both parties who opposed her nomination -- from serving as head of the office? In her Indiana Law Journal article (here's the link again) she offers glosses of varying lengths for each, but here are the principles:

1. When providing legal advice to guide contemplated executive branch action, OLC should provide an accurate and honest appraisal of applicable law, even if that advice will constrain the administration’s pursuit of desired policies. The advocacy model of lawyering, in which lawyers craft merely plausible legal arguments to support their clients’ desired actions, inadequately promotes the President’s constitutional obligation to ensure the legality of executive action.

2. OLC’s advice should be thorough and forthright, and it should reflect all legal constraints, including the constitutional authorities of the coordinate branches of the federal government—the courts and Congress—and constitutional limits on the exercise of governmental power.

3. OLC’s obligation to counsel compliance with the law, and the insufficiency of the advocacy model, pertain with special force in circumstances where OLC’s advice is unlikely to be subject to review by the courts.

4. OLC’s legal analyses, and its processes for reaching legal determinations, should not simply mirror those of the federal courts, but also should reflect the institutional traditions and competencies of the executive branch as well as the views of the President who currently holds office.

5. OLC advice should reflect due respect for the constitutional views of the courts and Congress (as well as the President). On the very rare occasion when the executive branch -- usually on the advice of OLC -- declines fully to follow a federal statutory requirement, it typically should publicly disclose its justification.

6. OLC should publicly disclose its written legal opinions in a timely manner, absent strong reasons for delay or nondisclosure.

7. OLC should maintain internal systems and practices to help ensure that OLC’s legal advice is of the highest possible quality and represents the best possible view of the law.

8. Whenever time and circumstances permit, OLC should seek the views of all affected agencies and components of the Department of Justice before rendering final advice.

9. OLC should strive to maintain good working relationships with its client agencies, and especially the White House Counsel’s Office, to help ensure that OLC is consulted, before the fact, regarding any and all substantial executive branch action of questionable legality.

10. OLC should be clear whenever it intends its advice to fall outside of OLC’s typical role as the source of legal determinations that are binding within the executive branch.

(Taking these as Johnsen's credentials for the OLC job, can anyone think of a reason why the senators who opposed her shouldn't buy lots and lots of guns and blow their tiny brains out?)

There is, Johnsen notes in the WaPo op-ed, contention on only one point, "the degree to which OLC legal advice and analysis should be made public" (no. 6). She notes, "A critical factor is the risk of chilling executive branch clients in seeking legal advice," but argues --

The example of the torture memo argues heavily for greater transparency so that lawmakers and the American people may better understand and respond to the actions of their government. Of course, public explanations must safeguard national security, including sources and methods. But the memo's conclusion that the president's constitutional authorities entitled him to override the federal torture law is a clear example of legal analysis the government should make public. That's how democracies work

And she relates this to a point that hasn't received much attention, the extent to which OLC is "the last word on legal issues that may never get to court" (no. 3): "In such cases, public scrutiny and debate provide the most effective check against unduly expansive theories of presidential power. The stability of the rule of law must not depend on leaks."

Johnsen says the OLD under current acting head David Barron, who was on the committee that produced the ten principles, "has performed admirably since President Obama took office." But this "critical office," she insists needs the stability of a properly appointed and confirmed head, which she notes it hasn't had in six years. "It is time," she says, "for the swift confirmation of an assistant attorney general and a renewed bipartisan commitment to the integrity of the OLC's work."


WHY THE NOMINATION FAILED: THE R'S DIDN'T
HELP, BUT WE CAN'T LAY IT OFF ON THEM

It's easy to blame Senate Republicans, and indeed those who aren't hopeless troglodytes should be profoundly ashamed. (The many Senate Republicans who are hopeless troglodytes should also be profoundly ashamed, but they've made it abundantly clear that they're galaxies removed from any capacity for shame.) However, let's remind ourselves that the fate of the nomination lay in Democratic, not Republican, hands.

I don't know that there were ever hard numbers on the looming filibuster. The number I heard most often was "only 57 votes" in favor of the nomination, as in: Dawn Johnsen's nomination failed because she had only 57 votes. (I'm sorry, that still sounds pretty grotesque to me.) The names you always heard were Ben Nelson (the Democratic Joe Lieberman) and Arlen Specter (whose position at any particular moment was as hard to pin down as his party affiliation), but remember, since Indiana's Dick Lugar -- to his credit -- had announced his support of the nomination, there have to have been other recalcitrant Dems, especially once the defection of Old Arlen gave the Dems their theoretically "veto-proof 60-vote majority."

Conspicuously absent was any perceptible effort by the administration to back up its nominee. Emptywheel's bmaz targeted the blame explicitly:

[T]he failure of the Johnsen nomination is NOT and NEVER WAS about a lack of votes. No, it is completely and unequivocally about the failure of Barack Obama and his Administration to support their own nominee and stand up for the values she proffered which led them to select her in the first place. This is about Obama, not the Senate, not Republicans and not about obstruction. From an earlier post:

If one needed any more confirmation of the stunts Obama and his Administration have been pulling without the strong and principled leadership at the OLC (and there really should be no question after the wholesale adoption of Bush policies on surveillance and torture that are at complete odds with Johnsen’s long-stated beliefs), it came like a ton of bricks with the recent revelation that Obama brazenly used the OLC to retroactively immunize serial and repetitive illegal and unconstitutional violation of Federal wiretapping laws by the FBI and telecom companies.

Here's another way of looking at it. Glance quickly again at those ten principles advocated by Johnsen and her OLC alumni group. Is there anything there you can imagine Master Rahm going to bat for? Me neither.


SPEAKING OF THE FECKLESSNESS OF THE OBAMA
ADMINISTRATION -- AND, OH YES, CHUCKY SCHUMER

Reverberations continue from the stunning White House display of petulance in the wake of Madame Blanche of Arkansas's Tuesday primary survival. (Here's Howie's post from Wednesday, and here's mine.) Glenn Greenwald ("The Democratic Party and Blanche Lincoln") and Digby ("Where Did Their Love Go?") had terrific posts, and even the NYT sends the White House a sharp editorial rebuke, concluding:

Clearly, many of the voters who complained that Democratic officials had lost their phone number after being elected were also referring to President Obama. Many Democrats don’t understand why the administration and Congressional leaders are giving in to trumped-up Republican fears about the deficit and not doing more to revive the economy. Rather than dismissing such concerns and ridiculing efforts at change, the White House should consider just how powerful they have become. There are virtues to pragmatism, but it should be in the service of an underlying principle.

"What's going on here," Glenn wrote yesterday, "What's going on here couldn't be clearer if the DNC produced neon signs explaining it."

Blanche Lincoln and her corporatist/centrist Senate-friends aren't some unfortunate outliers in the Democratic Party. They are the Democratic Party. The outliers are the progressives. The reason the Obama White House did nothing when Lincoln sabotaged the public option isn't because they had no leverage to punish her if she was doing things they disliked. It was because she was doing exactly what the White House and the Party wanted. The same is true when she voted for Bush/Cheney Terrorism policies, serves every corporate interest around, and impedes progressive legislation. Lincoln doesn't prevent the Democratic Party from doing and being what it wishes it could do and be. She enables the Party to do and be exactly what it is, what it wants to be, what serves its interests most. That's why they support her so vigorously and ensured her victory: the Blanche Lincolns of the world are the heart, soul and face of the national Democratic Party.

Meanwhile, Digby, taking note of "more pouting" from the White House, now directed toward uppity progressive speakers at the Campaign for America's Future conference in progress in D.C., asked, "Is the ghost of Richard Nixon working in this administration or what? "

Honestly, this is beneath the White house and they need to put a muzzle on it. Primaries are a legitimate part of the democratic process and no president (or his men) should ever, ever dismiss them publicly or imply in any way that members of the rank and file shouldn't have a voice in these decisions. It's truly embarrassing and offensive to see the Republicans responding with more class to their crazed teaparties than the White House does to its labor union and netroots allies.

Two years ago, she pointed out, the CAP conference --

was the most giddy gathering of Obama worshippers you were likely to see anywhere. I think he took something like 90% in the primary straw poll, far more than in the real primary electorate. The administration should be asking itself not why all these dirty hippies are so unruly and unpleasant, but what happened to all that love? I don't get the sense that anyone's interested in the answer to that question.

To top it off, my senior senator, Chucky Schumer, the man who would be Senate majority leader, has entered the fray, pumping his fists in celebration of Madame Blanche's survival -- at least until she's tossed out of the Senate on her can in the general election in November.

The flap seems to have begun with a report by WaPo's Dana Milbank of the "bipartisan hugs, kisses, handshakes and even a fist bump" with which Madame Blanche returned to the Senate as a conquering hero, including this note: "Sen. Chuck Schumer (N.Y.) held up two fists and said of her primary campaign: 'Fighting Wall Street with one hand, unions with the other.'"

Greg Sargent subsequently "clarified" this on his washingtonpost.com Plum Line blog. A Chucky flack, writes Greg, "says it was just a reference to this recent ad, in which she said: '"I won't back down to the Washington unions or the Wall Street banks that don't care about Arkansas.'" I'm obviously missing something here. Greg writes: "Seems fair enough. Still not crazy about the fist-pumping bit, though." But I don't see what the alleged clarification clarifies. Chucky was still cheering on the union-bashing bitch's union-bashing, wasn't he? What has changed?

My favorite suggestion is that the White House, which so disapproves of union campaign spending, get to work having checks cut for the return of the $15M or so they've shelled out in recent years to Democratic candidates plodding enough to pass muster even with the likes of Master Rahm.


GLENN G PAYS TRIBUTE TO THE WASHINGTON
"CULTURE OF COWARDICE"

And today Glenn, paying tribute to what he calls the Washington culture, not just of corruption and dishonest, but of cowardice ("Don't forget about Beltway cowardice"), takes a closer look at an aspect of the unnamed White House official's performance Tuesday night which hasn't gotten much attention: his (or presumably her, though there aren't a lot of hers in the White House) anonymity.

The White House official, you'll recall, called Politico's Ben Smith to get his obnoxious blithering on the record, only without his name being attached to it. Here's Glenn:

That there is no remote journalistic justification for granting anonymity for these kinds of catty comments is self-evident, but that's not worth discussing, since the Drudgeified Politico has long ago established that they operate without any ethical constraints of any kind when it comes to such matters. The only anonymity standard Politico has is this: we grant it automatically the minute someone in power wants it (though on some level, in a warped sort of way, that's almost more admirable than what the NYT and Post do: pretend that they have strict anonymity standards while basically handing it out as promiscuously as Politico does). But what is striking is how often top White House officials -- who are among the most politically powerful people in the country -- are willing to inject views into the public discourse only if they can be assured that they will never be accountable for what they say. That is just unadulterated cowardice.

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