Johnsen Testifies in Mukasey Attorney General Hearing
Recent confirmation hearings for Michael B. Mukasey, nominee for Attorney General of the United States,
included testimony from Indiana Law's Professor Dawn Johnsen.
Johnsen, a well-known expert in constitutional law and former acting assistant attorney general for the Office of Legal Counsel under President Bill Clinton, was among a panel of experts and former U.S. Department of Justice officials who testified before the U.S. Senate Committee on the Judiciary on October 18.
Her testimony explored the ways in which the Department of Justice's legal advice to the President has been dangerously compromised, particularly on issues of national security and counterterrorism—as well as what must be done to correct this deviation from tradition and best practices.
"Congress should respond to [the Office of Legal Counsel]'s failures by demanding public accountability and a restoration of the Department of Justice's tradition of independent legal analysis and respect for the rule of law," she said. "Absent a dramatic change in attitude from the President and in the tone set by the administration—with regard to the rule of law, dealings with the coordinate branches, and openness in government—the next Attorney General will face dramatic pressures and constraints. He nonetheless must persevere and withstand pressures to misrepresent what the law requires. If necessary, he must be prepared to resign or be fired."
Guiding Principles
Johnsen appended to her testimony a statement of "Principles to Guide the Office of Legal Counsel," which she co-authored with 19 former OLC lawyers, in an effort to avoid future errors along the lines of the infamous and now-discredited 2002 OLC Torture Memo, in which OLC advised President Bush that he had the constitutional authority to order torture in violation of federal statute.
Her testimony also drew upon an article in which in which she explored the appropriate role of presidential lawyers, published last month in the U.C.L.A. Law Review and entitled Faithfully Executing the Laws: Internal Legal Constraints on Executive Power.
Recently, Johnsen took part in a National Press Club event that featured former Department of Justice Officials addressing "Principles to Guide the Department of Justice under the Next Attorney General." The American Constitution Society, for which Johnsen is the Indiana Law chapter adviser and a national board member, recently released video of the event. View the video.