EXECUTIVE WATCH

The Blog of the Legal Times reports that Dawn Johnsen’s nomination to head the Office of Legal Counsel is being held up and is unlikely to receive a Senate vote for at least three weeks. Based on questions at her Judiciary Committee hearing and on comments in the media and blogosphere, Republicans appear to have three concerns, all unfounded: Dawn Johnsen is a vicious partisan who stridently advocates extreme pro-abortion positions and whose narrow views of executive power would dangerously compromise the flexibility. The claims relating to abortion and executive power have been thoroughly debunked elsewhere, so I don’t believe there would be much value to me piling on. The charge that Johnsen is a vicious partisan could not be further from the truth, and deserves its own refutation.

A charge that a nominee to the Department of Justice is a vicious partisan is always a serious matter, but is especially so at the present. There are charges that DOJ’s decisionmaking was broadly infected by partisan considerations. The Office of Professional Responsibility has issued several reports (here, here, and here) detailing how DOJ officials improperly considered partisanship in making hiring decisions. There are also concerns that U.S. Attorneys were fired for refusing to bring politically motivated prosecutions (these charges cannot be said to have been proven, but the concerns have had an impact on DOJ’s credibility).

Based on these reports (and a forthcoming report on the work of the Office of Legal Counsel), there have been calls for the prosecution of former DOJ officials. This raises the specter of a DOJ led by Democrats prosecuting its Republican predecessors, which would have serious potential to be viewed as little more than a partisan witch hunt. Not only would such a witch hunt be antithetical to our sense of impartiality in the administration of the law, it would firmly establish partisanship at DOJ. Given the serious allegations regarding DOJ’s recent administration, some form of public reckoning is essential, but the form that reckoning takes must have true bipartisan buy-in.

At this moment, when DOJ’s integrity seems to hang in the balance, Senators should have strong misgivings about confirming anyone who is a vicious partisan. Dawn Johnsen is not. She is rabidly reasonable, zealously judicious, a vicious non-partisan. It is true that Johnsen has been critical, sometimes sharply so, of the actions of DOJ (and especially of OLC) during the Bush Administration. But these criticisms are not aptly characterized as partisan nor do they provide evidence that she is animated by partisan considerations.

In fact, Johnsen’s most ardent criticisms actually provide solid evidence that she would act in a non-partisan fashion. For example, Johnsen has written several academic articles in which she has argued that the job of lawyers at OLC is not to advocate for particular positions, but to offer their best, neutral advice as to what the law actually allows and forbids, regardless of the lawyer’s personal preferences or views about what the law should allow or prohibit. Johnsen took the lead in drafting a set of principles to guide the Office of Legal Counsel. These principles are expressly intended to provide structural barriers to prevent OLC from straying from its role as a neutral expositor of what the law means. These principles themselves are not partisan. Republican lawyers have expressed agreement with them. Oddly, some of Johnsen’s critics have used the titles of these law review articles, taken wholly out of context, to try to paint Johnsen as a partisan. Were her critics actually to read the articles, they would see that she is nothing of the sort.

In addition to this academic work, Johnsen has testified before congressional committees on numerous occasions, advocating reforms to restore DOJ’s non-partisan credibility. For example, she testified about the importance of openness and accountability at OLC. After the hearing she worked extensively with one of her fellow panelists, Brad Berenson who is a former Associate Counsel to President George W. Bush, on bi-partisan legislation to promote such openness and accountability. Here is what Berenson had to asy about their dealings: “Throughout our negotiations, I found Prof. Johnsen to be fair and reasonable. When she made sound points, I compromised on issues and concerns that I had, and when I made sound substantive points, she responded in kind.”

It is certainly the case that Johnsen has been sharply critical of the infamous Torture Memo. That memo merits condemnation not only for its substance, but also for the process by which it came to be issued, which ignored the longstanding, bi-partisan traditions of OLC. It is not surprising that this memo has been sharply criticized by Democrats and Republicans alike. Jack Goldsmith, the head of OLC during the Bush Administration, has written of the OLC opinions he discovered upon taking office, including the torture memo: “I was astonished, and immensely worried, to discover that some of our most important counterterrorism policies rested on severely damaged legal foundations.” Key OLC counterterrorism opinions, according to Goldsmith, were “deeply flawed: sloppily reasoned, overbroad, and incautious in asserting extraordinary constitutional authorities on behalf of the President.”

Senator Lindsey Graham has also weighed in on the Torture Memo. At a hearing with then-Attorney General Alberto Gonzales, Senator Graham said: “the Department of Justice memo that we’re all talking about now was, in my opinion, Judge Gonzales, not a little bit wrong, but entirely wrong in its focus” and that “I have long made clear I believe the [Bush] Administration’s lawyers used bizarre legal theories to justify harsh interrogation techniques” and that “I could go on and on about the legal analysis that any first year law student could poke holes in.”

The true picture of Dawn Johnsen that emerges from the impressive body of her academic work and public commentary is one of a lawyer who is unalterably committed to the rule of law. There is nothing partisan about this commitment. Anyone who shares this commitment will take find deviations such as the Torture Memo to be shocking, and the tone of the denunciations from Prof. Johnsen is not appreciably different from the tone of the condemnations of Senator Graham or Prof. Goldsmith. Underscoring just how indefensible the Torture Memo is, the Bush Administration’s own Office of Legal Counsel has gone to extraordinary lengths to repudiate the Torture Memo and other legal memos that followed its reasoning. How can it demonstrate partisanship that Dawn Johnsen has shared this outrage?

On the contrary, Johnsen’s response of promoting internal guidelines in addition to legislation to promote sound process seems to be remarkably constructive and measured. Johnsen has not joined calls (e.g., here and here) to impeach Jay Bybee, who signed the Torture Memo and is now a judge on the Ninth Circuit. Nor has she called for retribution against lawyers from the Bush Administration. Nothing in her past suggests that she would do anything but oppose a witch hunt against Republican DOJ officials. Moreover, the current Justice Department has indicated that it has no appetite for partisan prosecutions. Yesterday, DOJ announced its decision to dismiss the indictment (brought under the Bush Administration) of former U.S. Senator Ted Stevens. The image that emerges is not of Democrats using their new power to persecute Republicans, but of a DOJ that is committed to non-partisan administration of the laws. Indeed, one motivation for dismissing the indictment was to send the message that prosecutorial misconduct (including partisan motivation) will not be tolerated. Republicans and Democrats who are committed to the impartial administration of justice should cheer yesterdays decision, as they also cheer for the confirmation of Dawn Johnsen to head the Office of Legal Counsel.

This entry was posted on April 2, 2009 at 9:40 am and is filed under Uncategorized. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.