Professor Goldsmith has an excellent entry in the new Military Law Review. While his title is “Reflections on Government Lawyering,” I think it could be aptly titled being a law as an advisor. The point is not that you have to be a good lawyer; questioning, researching, writing. The point is how a lawyer acting as an advisor should approach his or her work.
Let me begin by trying to articulate what an Executive Branch lawyer is supposed to do when he or she advises a client. What is the lawyer’s obligation, especially when novel and difficult interpretative issues arise? I naively thought this was a simple matter when I entered the OLC job. I thought—and I testified to this effect at my confirmation hearings—that I was simply going to provide good faith, impartial legal advice. I was influenced by one of my predecessors, William Barr, who said, “Being a good legal advisor [to the President] requires that I reach sound legal conclusions, even if sometimes they are not the conclusions that some may deem to be politically preferable.”
This was my attitude going in, and I think it’s a good attitude to have going in. But as soon as I got there, I realized this attitude was too simple. There are many countervailing considerations and pressures, almost all of which, I thought, were legitimate, and all of which made the job much more difficult.
I thought his comments on risk-averse lawyering were spot on. But I thought it interesting that he’d advise thinking of today’s legal opinions not just in the context of the events, but what ‘they’d say’ in history.