White House, Justice Department, DOJ discussed on The Lawfare Podcast


That the administration. Somebody i think it was in. The white house decided to represent the supreme court decision in a certain way and moreover sake said that on a thursday in or four days later gene. Sperling repeats the same talking point so there was no pushback from anyone. Not just the justice department or the white house counsel. And i have to think that's because it was agreed to in advance. Now someone in the justice department should have noticed in their heads might have exploded. And i wouldn't have been surprised if they sent a message. Saying this isn't an accurate reading of the case. But i think ultimately the responsibility for the white house press secretary getting talking points. Legally correct lies with the white house. Counsel's office yeah. I i agree with everything jackson and by putting some blame on doj. I don't mean to in any way. Absolve the white house counsel of anything and we should absolute talk about their role. It's just that you know. If you're the attorney general you have to understand no matter. What the official job description is at the end of the day. You need to protect you. Know most narrowly your departments equities and you also have a general obligation to make sure the administration does as much as it can do to get the law right so you know whether or not it's your job or not. I do think it's still prudent to make sure that someone is double checking the white house counsel's work and at the very least from here on in given the poor performance of whoever was vetting those statements. I think the doj we'll have to understand that the white has cancelled can't necessarily be be be trusted to get the the law right you say could have to zoom zoom out on this question. What is the right level of independence for coordination. I think this this example really shows why. This is such a difficult problem because we all understand. I think intuitively maybe especially after the trump years the dangers of too much coordination too much interference from the white house to the prominent justice and so therefore. There's this temptation to say well. Then let's just separate them as much as possible and that will preserve the adjacent dependence and on the one hand that is true that will preserve the jazz independence but if the president through either procedural reasons are any other reasons believes that he cannot go to doj whenever he needs to for advice. That doesn't mean he's going to just listen to what doj says he's going to find different advice. He's gonna find advice from people that he's not so independent from in this case it appears to be the white house counsel or outside constitutional law scholars. Or whoever it is so there's always this trade off between on the one hand you want doj to have independence but you don't want it to be so independent that the white house just go somewhere else for advice because it's such a pain in the butt to get advice from the oj. Yeah i wanna foot stomp the idea that the independence is on investigative and prosecutorial matters and the idea that there should be independence on review of and litigation of a policy decision by an expert agency within the scope of its jurisdiction. Nobody actually argues that. At least nobody who understands what the justice department does. And i think if the lesson that the biden white house is taking from the trump years is that they need to keep their distance from the justice department. Even on such administrative matters they've drawn altogether the wrong lesson. But but i think i agree with you one hundred percent. I don't think that's what happened. Here i agree they made. It seem like what that's what happened here. But i would be shocked if they thought that they couldn't seek the justice department advice on these questions and i would be frankly shocked as i said earlier. If the justice department didn't make both their legal and they're pragmatic judgments known to the white house. We'll see. I guess this will come out more. But i that that distinction is obvious and i would be very surprised if this administration but otherwise but that said the president did have this remark as press conference about not wanting to step on. Doj's toe so it's clearly on his mind. Yeah it's mind and it's good that it's on his mind. It means that he shouldn't have any contact with merrick garland about whether and when he's going to indict relief rudy giuliani or matt gaetz. But it doesn't mean he shouldn't be in touch with merrick garland or that his counsel's office shouldn't be in touch with the department over what they should and shouldn't say about their legal authority to have a have an addiction moratorium. The white house counsel's office caused the justice department dozen times a day questions like that and they always have and it's never been part up in my experience and knowledge. It's never been part of what we mean by. Doj independence the distinction drawing very important. All right so let's close with a sense of what this episode means. You're both in broad agreement that notwithstanding the optics the biden administration didn't do anything lawless here. So why does this episode. Matter from. Alan i jack. Why shouldn't we just chalk it up to You know the president is a little bit laga real. Sometimes he did one of his uncle. Joe fangs but no harm no foul. Because there's really nothing improper happened. Why is it more than that. So i think there are two issues here but before i go into the my i do want to emphasize. I don't want anyone to come away from this thinking that there's some equivalency between the stuff that happened in this case and the worst of the abuses of the trump administration. I think that's how i mean i've been seeing. That's how some conservative media outlets are trying to spin this. And i don't think that's the case right. I think here you have your own problems. But this is nothing like the kind of almost intention whole destruction of norms that we saw in the trump administration but at the same time. I think we also need to be willing to hold bite into account not just to be better than trump which was extraordinarily low bar but to be particularly good at i'm rebuilding those norms. And so if i am perhaps hyperventilating a little bit in this case. It's because biden has very much promised to bring back those norms. And so i think it's important to to hold in kind of to that and to put his actions under a microscope but again at the same time. I don't want anyone to think that you know. This is just as bad as trumpet because it is not now to get into what i think. The two main problems are beyond just kind of uncle joe's occasional lottery. I think there are so i. There's just the process question right of what is the. The level of communication between the white house in the of justice is stuff going to doj. Arthur i people talking to each other You know these aren't the sexiest questions. But in the day to day operations of a white house administration generally. They're really really important. So someone's gotta tighten up. I don't know if it's an issue at doj or staffer white house counsel. There's some real process. Fails has to be fixed. The second thing is this idea of going outside the government in particular to get expert council. When you really don't need it that that quite bothers me to be clear. None of the people that biden the by administration consulted. You larry tribe martha minno. Walter dellinger you. These are eminent law. Professors right. I be very interested in their opinions. There's nothing wrong with necessarily talking to them or hearing what they have to say and You know i'm i'm a law professor. I teach online. It'd be great if people took you know what i said what. I said seriously one day but the idea that the by administration would do that because he thought it wasn't getting politically palatable enough legal answers from its own administration right because nancy pelosi told them to quote unquote get better lawyers that to me strikes me as really really disturbing because again. It's not as if the bite administration doesn't have an insane amount of legal talent within it right now. The white house counsel dana ramos is a law professor. At to the top two people will see on johnson and mardi liederman our law. Professors merrick garland knows everything there is to know about the constitution. They don't need to go outside the government to get expert legal advice and given the dangers of cherry. Picking you know there are a lot of people in legal academy..

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