The Law: In Service to Power: Legal Scholars as Executive Branch Lawyers in the Obama Administration

As a presidential candidate in 2008, Barack Obama criticized the George W. Bush administration for expanding presidential power beyond legal limits. Obama promised to reestablish the rule of law as "a president who has taught the Constitution, and believes in the Constitution, and will obey the Constitution of the United States of America" (Koh 2009, 18). After winning election, President Obama rapped a number of "legal idealists" as executive branch lawyers, people who seemed similarly committed to rejecting the Bush administration's approach (Kassop forthcoming). Among these lawyers were Harold Koh, David Barron, and Martin Lederman. In 2009, Koh went on leave from his position as Dean of Yale Law School to become Legal Adviser to the State Department. He had established a reputation as "the leading and most vocal academic critic of presidential unilateralism in war, and a tireless advocate for institutional cooperation between the political branches in war decisions" (Goldsmith 2011b). Barron and Lederman were professors at Harvard Law and Georgetown Law, respectively, before they joined the Office of Legal Counsel (OLC) in 2009. Glenn Greenwald, a critic of presidential power under both the Bush and Obama administrations, described them at the time of their appointments as "[t]wo of the most vehement critics of Bush's executive power abuses" (2009). Greenwald wrote that "[i]t is virtually impossible to imagine [Barron and Lederman, as well as Dawn Johnsen, who was expected to head up OLC] placing political allegiance to Barack Obama over the principles they have so forcefully advocated over the last several years" (2009). While Bush had been able to count on lawyers who would "decree[] that anything the President wished to do was legal[,]" Barron and Lederman were "highly likely to impose real limits when the law or the Constitution dictates" (Greenwald 2009). As it turned out, Koh, Barron, and Lederman, in their roles as executive branch lawyers, endorsed broad conceptions of presidential power. This article seeks to explain the apparent contradiction: how did legal scholars who emphasized limits on presidential power through checks and balances become executive branch lawyers who, like their predecessors in the Bush administration, seemed to find ways to tell the president that whatever he wanted to do was legal? Can their changing views be explained and justified by their changed roles? I conclude that their views may be explained by their new roles, but they cannot be justified. In other words, as executive branch lawyers, these men may very well have concluded that it was necessary to de-emphasize concerns about unchecked presidential power. However, this is only an explanation of, not a justification for, their actions. There is nothing about the role of an executive branch lawyer that would require this changed approach. In fact, as Koh himself had written as an academic, the primary obligation of a government lawyer is "to uphold and protect the Constitution and laws of the United States of America" (2005, 1166). I conclude that, as executive branch lawyers, Koh, Barron, and Lederman should have followed the same fundamental approach to presidential power they had previously described as legal scholars. Of course, some differences could theoretically be justified: for instance, executive branch lawyers might reasonably defer to decisions made by their predecessors as precedent (Dellinger 2004, 3; Morrison 2011). Executive branch lawyers might, because they "view the law through a particular lens" reach conclusions that "legitimately differ on some issues from that of a differently situated actor [i.e. a legal scholar]" (Morrison 2010, 1456). However, neither of these possible justifications applies here. As executive branch lawyers, Koh, Barron, and Lederman reached conclusions that were not required by State Department or OLC precedent and cannot be explained as simply a legitimate difference of opinion. …