President Nixon ordered Archibald Cox fired from the job of “special prosecutor” on Oct. 20, 1973. Rather than follow the order, first Attorney General Elliot Richardson and then Deputy Attorney General William Ruckelshaus quit. Richardson and Ruckelshaus had both told members of Congress that they wouldn’t interfere with Cox’s investigation, so they turned in their keys and in a stroke established a very high bar for government lawyers confronting their superiors on matters of principle.
It isn’t clear yet what Caroline Krauss, the acting assistant attorney general for the Office of Legal Counsel in the Department of Justice, and Jeh Johnson, the general counsel of the Department of Defense, told President Obama about the War Powers Act and the president’s Libyan adventure, but if the New York Times is correct, they both advised the president that “they believed that the United States military’s activities in the NATO-led air war amounted to ‘hostilities’ ” as defined by the War Powers Act.
If this account is correct, the lawyers must believe the president is breaking the law. (Some of us think the act is unconstitutional, but that opinion hasn’t been voiced by anyone on Team Obama.)
Ought lawyers in the position of Krauss and Johnson follow the examples of Richardson and Ruckelshaus? After all, not only is the president said to have refused their advice, he then went and found Harold Koh, legal adviser in the State Department, who was ready and willing to support the idea that our activities in Libya don’t add up to “hostilities.”
This is worse than simply rejecting the advice of the DOJ and DOD lawyers charged with giving it. It is forum shopping and sets a precedent that encourages a president to go out and find the opinion he wants rather than the one the DOJ and his senior military lawyer is giving him.
If Koh hadn’t proved to be so compliant, where would the president have turned next? The solicitor at the Department of the Interior? The general counsel at the CIA?
The Left must be caught somewhere between astonished and repulsed. Their guy has gone full Nixon, and is doing a thing in a war that W wouldn’t have dreamed of doing, which is to simply ignore the legal opinions of the Department of Justice.
And on the cherished War Powers Act no less! Imagine the reaction if George W. Bush were told “no” by the Department of Justice on an issue of the law of war but went ahead anyway on the advice of a friendly lawyer he found elsewhere in the government.
This latest burst of Obama unilateralism is not surprising even though the anti-war Left may be shocked.
This president told his DOJ to refuse to defend a federal statute that has never been questioned by any federal appellate court, much less by the Supreme Court, the Defense of Marriage Act.
This president has had drawn up an executive order that will simply assert a new federal law with regards to contracting and political donations.
This president has also directed his Environmental Protection Agency to impose a cap-and-trade regulatory regime that Congress would not pass as statute.
In short, the Imperial Presidency has never had such a proponent as Obama.
Are there any lawyers in the Obama administration who will find it necessary to leave rather than acquiesce in the president’s aggressive assertion of his authority?
Examiner Columnist Hugh Hewitt is a law professor at Chapman University Law School and a nationally syndicated radio talk show host who blogs daily at HughHewitt.com.
