Thursday, May 21, 2009


The Senate will soon take up the nomination of President Obama’s choice to head the Office of Legal Counsel. It is one of the most important decisions Congress will make this year.

As Republicans, we might well assume there will be times during the next four years when we will disagree with some of Mr. Obama’s policy choices. If that is the case, we will want, and need, assurance that the president will follow the Constitution, which places lawmaking authority in the Congress, and refrain from imposing his will by some form of executive action that goes beyond the bounds of what our system of separation of powers allows. We also will want to know that, regardless of his preferences, Mr. Obama will understand that he, like the rest of us, is bound by law.

Because we believe in the importance of the constitutional separation of powers, we sometimes criticized Mr. Obama’s predecessor when we thought he had received faulty legal advice that had resulted in presidential overreaching and ignoring of constitutional prohibitions. We will want to know that the current president will receive better counsel. All Americans - Republicans as well as Democrats - should want the same thing.

The president has nominated Dawn Johnsen, a University of Indiana law professor, as the director of his Office of Legal Counsel. The Senate should act expeditiously to approve her nomination. Though Ms. Johnsen’s politics may not mirror the choice John McCain or other Republicans might have made - they lost the election, after all - her views on the limits of presidential power are precisely what the Constitution envisions and conservatives have long championed.

Ms. Johnsen made her views clear when she joined a bipartisan group of lawyers in a declaration that it was the job of the Office of Legal Counsel to promote “presidential adherence to the rule of law.” Republicans in Congress need to forget about protecting former President George W. Bush’s legacy - he’s gone and has other defenders - and remember that on entering Congress they took an oath to preserve and defend not Mr. Bush or Mr. Obama, but the Constitution.

Some of Ms. Johnsen’s critics apparently fear that approval of her nomination would admit that some of the advice Mr. Bush received was erroneous and that, in response, the Bush administration acted improperly. In fact, that’s not in dispute. It is not the Obama administration that is making that claim; it was Mr. Bush’s own administration - his own Office of Legal Counsel, in fact - that, while he was still president, repudiated much of the advice he had been given.

Thus, ironically, those who seek to defend the Bush legacy are instead opposing his administration’s findings and defending the legal adviser whose counsel the Bush administration has repudiated. That is the sort of knot into which one may twist himself when partisanship trumps principle.

Ms. Johnsen has been criticized for being blunt, unserious and critical of presidential policies. The “unserious” comment doesn’t require serious consideration - she’s a longtime law professor and a Justice Department veteran and is highly regarded even by conservatives who disagree with her.

As for “blunt,” well, we’re both lawyers, and in a profession often accused of obfuscation, a little blunt talk to a client - in this case, the president of the United States - may be precisely what is required. As for her wariness about the undue exercise of concentrated power? That’s a view she shares with James Madison, Barry Goldwater and most of the Republican National Convention platforms over the past half-century.

What is needed in the Office of Legal Counsel is a person with the constitutional understanding to know that even presidents with whose politics she agrees must obey both the Constitution and federal statutes and who has the gumption to say so, even if the advice won’t be well received.

We needed that with a Republican in the White House; we need it with a Democrat in the White House. For those reasons, we hope Ms. Johnsen will be confirmed expeditiously and put to work ensuring that the Constitution’s constraints remain in force.

Mickey Edwards, a former Republican House member from Oklahoma, is vice president of the Aspen Institute and author of “Reclaiming Conservatism” (2008). William S. Sessions, a partner at the law firm Holland & Knight, was FBI director from 1987 to 1993. Both men are members of the Constitution Project’s Liberty and Security Committee.

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