Lawyering the Presidency: Legal Counsel and Constraints on the Use of Force

Seminar

Speaker(s)

Deborah Pearlstein, Yeshiva University

Date and Time

December 9, 2021 3:30 PM - 5:00 PM

Availability

RSVP Required.

Location

Virtual Only.

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All CISAC events are scheduled using the Pacific Time Zone. This event is part of the year-long initiative on “Ethics & Political Violence” jointly organized by the Center for International Security and Cooperation (CISAC) and The McCoy Family Center for Ethics in Society. This event is hosted by CISAC and is co-sponsored by McCoy Family Center for Ethics in Society.

 

About the Event: 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 power – from 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 attorney-client 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 decision-making, 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 policy-making 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 existing 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 multi-directional 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 may have an unintentionally encouraging effect. Indeed, when policymakers may be seeking 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. 

Draft Paper

 

About the Speaker: Deborah Pearlstein is Professor of Law and Co-Director of the Floersheimer Center for Constitutional Democracy.  Her work on the U.S. Constitution, international law, and national security has appeared widely in law journals and the popular press, including the University of Pennsylvania Law Review, the University of Michigan Law Review, the University of Texas Law Review, and the Georgetown Law Journal, as well as in The Atlantic, Foreign Policy, the Washington Post, and the New York Times. Professor Pearlstein has repeatedly testified before Congress on topics from war powers to executive branch oversight.  In 2021, she was appointed to the U.S. State Department Advisory Committee on Historical Diplomatic Documentation, a 9-member board of historians, political scientists, and U.S. foreign relations law experts who help ensure the timely declassification and publication of government records surrounding major events in U.S. foreign policy.

A magna cum laude graduate of Harvard Law School, Professor Pearlstein clerked for Judge Michael Boudin of the U.S. Court of Appeals for the First Circuit, then for Justice John Paul Stevens of the U.S. Supreme Court. Following her clerkships, she practiced at the law firm of Munger, Tolles & Olson in San Francisco, earning the Voting Rights Award from the ACLU of Southern California for her litigation work on voting systems reform following the 2000 presidential election.

From 2003-2007, Professor Pearlstein served as the founding director of the Law and Security Program at Human Rights First, where she led the organization’s efforts in research, litigation and advocacy surrounding U.S. detention and interrogation operations, and served on the first team of independent military commission monitors to visit the U.S. Naval Base at Guantanamo Bay in 2004. In addition to developing impact litigation strategies and preparing multiple briefs amicus curiae to the U.S. Supreme Court, Pearlstein co-authored a series of reports on the human rights impact of U.S. national security policy, including Command’s Responsibility, which provided the first comprehensive accounting of detainee deaths in U.S. military custody and received extensive media attention worldwide. Throughout her tenure, Professor Pearlstein worked closely with members of the defense and intelligence communities, including in helping to bring together retired military leaders to address key policy challenges in U.S. counterterrorism operations.

After leaving law practice, Professor Pearlstein held an appointment as a research scholar in the Law and Public Affairs Program at the Woodrow Wilson School for Public and International Affairs at Princeton University, as well as visiting appointments at the University of Pennsylvania Law School and Georgetown University Law Center.  She has since served as Chair of the AALS National Security Law Section, on the ABA's Advisory Committee on Law and National Security, and today serves on the editorial board of the peer-reviewed Journal of National Security Law and Policy.

Before embarking on a career in law, Pearlstein served in the White House from 1993 to 1995 as a Senior Editor and Speechwriter for President Clinton.