The “take my word for it” theory of separation of powers

With Congress supine and feckless, law professors committed to the rule of law have taken to arguing that executive-branch lawyers can be trusted to ensure that the president does not break the law. That’s the argument, for example, of Trevor Morrison, the dean of NYU Law School; Jack Goldsmith also made this argument, more or less, in his book, Power and Constraint.

But what if a “deeply-sourced” journalist named Charlie Savage writes a 700-page book that shows that executive branch lawyers, in almost all cases, failed to stop the president from breaking the law? Then you double down:

Here’s Jack:

What never shows up in books like Power Wars, and what the public never sees, are the scores of times that lawyers preempt operations and policies – in a phone call, conversation, or preliminary meeting – that are clearly out of bounds.  Nor can we ever see the stream of dreamed-up and potentially useful operations and policies that never make it to a conversation because the policymaker knows that the answer will be “no” and thus never asks.  In these and related ways, law hems in the President’s decisonmaking by limiting the policy options that reach his desk.  A complete assessment of the effect of law on senior national security decisionmaking would need to compare the questionable approvals and fudges we see against the much-harder-to-perceive instances that law constrains by limiting possible courses of action.  Reporters cannot easily get at this latter type of information.

And here’s Oona Hathaway (also a former executive-branch lawyer):

Savage must get his information from sources, and those sources often have an agenda or a limited view of the issue at hand. (They are also, it bears mentioning again, often breaking their legal and ethical obligations not to disclose classified or confidential information.) That means that the glimpse he is offered is necessarily a skewed one. Add to this the fact that those who talk to Savage are, it seems, largely those at or near the top of the totem pole. Officials who labor day-in-and-day-out on the issues Savage covers — and who have an immensely important role in shaping options and strategies — receive almost no mention. It’s hard to fault Savage for this — he can’t possibly speak to everyone, and he clearly spoke to a huge number of insiders. But it does mean that he has a partial view of how the lawyering process works that doesn’t necessarily reflect the gritty day-to-day reality inside the agencies, where options and rationales are developed by lawyers, many of whom have been at the job for decades.

And, of course, Harold Koh, most pithily (albeit in Savage’s paraphrase), who says it is

easier to take purist stances from the faculty lounge than from a position of responsibility.

All of this bears only one interpretation. For the public and commentators who wonder whether the president is constrained by law, the answer is: “trust us,” the executive-branch lawyers.