A nominee who wants to tie down the executive branch.Barack Obama's cabinet choices are understandably getting most media attention, but everyone knows policy is also made by the sub-cabinet. So we think more public scrutiny should be drawn to Mr. Obama's choice of Dawn Johnsen to lead one of the executive branch's most important legal offices. Her appointment makes sense for a President Gulliver, but not for a Commander in Chief fighting terrorists.
Ms. Johnsen became famous in the left-wing blogosphere as an especially arch critic of the Bush Administration's war on terror. As an Indiana University law professor, she took to the Web with such lawyerly analysis as "rogue," "lawless," "outrage," and that's the mild stuff. Now she's been nominated to run the Justice Department's Office of Legal Counsel, which interprets the law for the entire executive branch.
One of the OLC's main duties is to defend the Presidency against the inevitable encroachment of the judiciary and Congress on Constitutional authority, executive privilege, war powers, and so forth. Ms. Johnsen knows this, or should, having served as acting OLC head in the Clinton Administration between 1997 and 1998. The office has since become all the more central in a war on terror that has been "strangled by law," to quote Jack Goldsmith, a former Bush OLC chief.
Yet Ms. Johnsen seems to think her job isn't to defend the Presidency but to tie it down with even more legal ropes. She has written that "an essential source of constraint is often underappreciated and underestimated: legal advisors within the executive branch." And in touting her qualifications, the Obama transition cited her recent law review articles "What's a President to Do?: Interpreting the Constitution in the Wake of the Bush Administration's Abuses"; and "Faithfully Executing the Laws: Internal Legal Constraints on Executive Power."