President Richard Nixon ordered Archibald Cox fired from the job of special prosecutor on Oct. 20, 1973.
Rather than follow the order, Attorney General Elliot Richardson and Deputy Attorney General William Ruckelshaus quit. They 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 Barack 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.
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 ignored their advice, he then went and found Harold Koh, the 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 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.
The left must be astonished their guy has gone full Nixon and is doing a thing in a war that George W. Bush 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 Bush was 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.
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 authorities?
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.