Dawn Johnsen

The Justice Department’s Office of Legal Counsel is important because it interprets the law for the executive branch before the fact.  That is, the OLC’s purpose is not to litigate to defend the administration’s actions, but to ensure that it obeys the law in the first place.

The OLC has been particularly controversial in recent years because the OLC issued a number of memos that have been construed as expanding presidential power.  (This may be true; I don’t have the legal background to say.)  Most notorious was the so-called “torture memo” which sought to establish what constitutes torture and is therefore illegal.  (Many disagreed with the memo’s conclusions, and construed it as justifying torture.  The memo was later rescinded, and new legislation later clarified the law somewhat.)

Dawn Johnsen is President Obama’s nominee for the Justice Department’s Office of Legal Counsel.  Johnsen was an outspoken critic of expanding presidential power during the Bush administration, but was a strong proponent of expanding presidential power during the Clinton administration, explains Andrew McCarthy:

Particularly rich is Johnsen’s diatribe against Bush’s purportedly outlandish claim of power to ignore statutes that encroach on executive authority. When Johnsen served in the Clinton administration (which invented extraordinary rendition, detained Cuban refugees without trial at Guantanamo Bay, conducted warrantless national-security searches, and attacked a foreign country without congressional authorization), OLC’s official position was that “the President has enhanced responsibility to resist unconstitutional provisions that encroach upon the constitutional powers of the Presidency.” The office opined that several statutes (including privacy provisions in the federal wiretap law) could not bind the president, and Johnsen herself authored a 1997 OLC opinion concluding that presidents were above consumer-credit-disclosure laws. In that case, she broadly asserted that “statutes that do not expressly apply to the President must be construed as not applying to him if such application would involve a possible conflict with his constitutional prerogatives.”

So, Johnsen isn’t so much an opponent of expanded presidential power, as she is an opponent of expanded Republican presidential power.

In a similar fashion, she opposes politicization of the justice department by the right, but supports it (explicitly!) by the left:

A parallel hypocrisy is illustrated by Johnsen’s rants about how the Bush administration “politicized” the Justice Department. Her solution to this problem: Politicize the Justice Department. She argues that job applicants who may have been passed over by the Bush administration for holding leftist political views should get “special consideration” in DOJ hiring but, at the same time, maintains that nominees for the federal judiciary should be rejected out of hand if they embrace constitutional originalism or are members of the judicially conservative Federalist Society

Not only is Johnsen a partisan gunslinger, but she also has a history of making outlandish legal arguments.  In 1989, as part of an argument for government funding of abortion, she infamously argued that unwanted pregnancy is tantamount to slavery, and restrictions on abortion violate the 13th Amendment.  This year, when questioned by the Senate Judiciary Committee about that argument, she denied that she had ever made it, until her words were quoted back to her.

Most of the OLC’s opinions are never tested in court, so it’s important that it be giving sober, non-partisan legal advice.  With her record, it seems unlikely that Johnsen will give advice that is either sober or non-partisan.  It’s not even clear that she wants to.

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