Lawyering the Presidency
52 Pages Posted: 22 Mar 2021 Last revised: 6 Apr 2021
Date Written: March 19, 2021
Among its many profound effects on American life, the Trump presidency has triggered a surge of interest in the project of law reform to better check the exercise of presidential power. Yet these reform efforts arise against a wholly unsettled debate about the function and effectiveness of existing checks, perhaps none more so than the role of executive branch legal counsel. With courts often deferential, and Congress hamstrung by partisan polarization, scholars have drawn on the experiences of executive branch lawyers to assess whether counsel functions as part of an “internal separation of powers” form of constraint. Yet while these descriptive accounts are invaluable, they are also limited to the attorney side of an attorney-client relationship, leaving much unanswered about whether and why presidential advisors might heed their advice. And while the search for signs of “constraint” is essential, this conceptual framing risks obscuring other ways in which counsel may influence decision-making that might prove essential for reformers to address if they are to achieve the change they seek. Aiming to help fill these gaps, this Article draws on an original survey of more than three dozen former senior U.S. security policy officials, from the Cabinet Secretary level at the most senior, to National Security Council staff at the most junior, to examine when and why policy-making clients engage counsel’s advice surrounding the use of force, and whether and how that advice may shape or reshape policymakers’ existing normative preferences. The depth and bipartisan breadth of officials’ internal sense of obligation to engage counsel described here suggests that the existing literature may be underestimating counsel’s capacity to influence. At the same time, as this Article describes, counsel is structurally capable of exerting that influence in multi-directional ways. Where policymakers’ own normative instincts lead them to want to avoid external limits on executive power, counsel’s insistence that such limits be observed can at times “constrain” executive action. But where, as may also sometimes arise, policymakers would prefer more external checks on presidential behavior, receiving counsel’s permission not to may have an unintentionally encouraging effect. Indeed, where the availability of politically palatable justifications may be a means of avoiding action, the unavailability of a narrowing construction of presidential authority may deprive officials of an effectively action-limiting out. As this Article concludes, if the post-Trump goal is to improve counsel’s function as a “constraint” on power, reforms beyond simply increasing transparency or quality will be required.
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