DOJ attorneys with ethics, a vice president without

Law and Orders: How should the president's lawyers advise a reluctant White House?

By Dawn Johnsen, Slate.com
Posted Friday, June 8, 2007, at 2:55 PM ET

In the drip, drip, drip of emerging revelations in the so-called U.S. attorneys scandal, yesterday's dose was stunning: Vice President Dick Cheney was personally involved in seeking to reverse the Justice Department's determination that the president's secret NSA surveillance program was illegal; at least eight (and as many as 30) DoJ officials were prepared to quit over this decision to proceed against DoJ advice; and one of those lawyers subsequently saw his promotion scuttled by Cheney himself.

None of this will stop those trying to bury the scandal from continuing to shrug it off: "So what?" they will say. "U.S. attorneys and the president's lawyers at the Justice Department serve at the pleasure of the president. And if the president thought his NSA program was legal, it doesn't matter that he overruled the DoJ." No laws have been broken, no fish in this pond, no smoking gun.

Here are some questions, though, that still beg for attention: What does it mean to say that the president has broken a law? What is the proper role for the president's lawyers? Should they limit themselves to being guns-for-hire, crafting creative legal justifications for any program the president chooses to pursue? Or should they be impartial referees, providing accurate and principled legal analysis even when it blocks an initiative the president is committed to? And if the president's lawyers conclude that he's about to do something illegal, can he simply disregard the conclusion as he would unwelcome advice from his policy advisers?

(The rest is here.)