Volume 110

Lawyering the Presidency

by Deborah Pearlstein

 Among its many profound effects on American life, the Trump presidency triggered a surge of interest in reforms that might better check the exercise of presidential powerfrom enhancing ethics and transparency requirements to reining in sweeping congressional delegations of substantive authority. 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 often hamstrung by partisan polarization, scholars have focused on the experiences of Executive Branch lawyers to illuminate whether counsel functions as part of an “internal separation of powers,” an effective first-order constraint on the presidency. Yet while these descriptive accounts are invaluable, they are also limited to the attorney side of an attorneyclient 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 has tended to obscure other ways in which counsel may influence decisionmaking, dynamics 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. national 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 policymaking clients engage counsel’s advice surrounding the use of force, and how that advice may shape or reshape policymakers’ existing normative preferences. Among its findings, the depth and bipartisan breadth of officials’ sense of obligation to engage counsel suggests that the exist-ing 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 multidirectional ways. When 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 arise, policymakers would prefer more external checks on presidential behavior, counsel’s permission not to abide by those checks may have an unintentionally encouraging effect. Indeed, when policymakers seek a politically palatable justification for avoiding action, the unavailability of a narrow 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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