RESPONSE ESSAYS
Executive Branch Crisis Lawyering and the “Best
View”
JACK GOLDSMITH*

TABLE OF CONTENTS
INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

261

I. THE “BEST” VIEW OF THE LAW . . . . . . . . . . . . . . . . . . . . . . . .

264

II. THE “REASONABLENESS” STANDARD . . . . . . . . . . . . . . . . . . . .

268

III. INSTITUTIONAL DESIGN . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

273

INTRODUCTION
On about May 10, 2011, Bob Bauer, then White House Counsel (WHC), told
President Barack Obama that he had a “looming” legal problem.1 On March 19th,
Obama ordered extensive United States military air strikes on Libya that were
legally controversial because they lacked congressional authorization.2 Obama’s
Office of Legal Counsel had provided a serious, if contested, explanation of why

* Henry L. Shattuck Professor of Law, Harvard Law School. © 2018, Jack Goldsmith. I thank Bob Bauer,
John Manning, Trevor Morrison, Daphna Renan, and Marty Lederman for conversation and comments, and
Lisa Jing and Neha Sabharwal for research assistance. The reader may wish to know that in 2003–2004, I
served as Assistant Attorney General, Office of Legal Counsel.
1. CHARLIE SAVAGE, POWER WARS: INSIDE OBAMA’S POST-9/11 PRESIDENCY 641 (2015).
2. See, e.g., Scott Horton, Up in the Smoke, FOREIGN POLICY (Oct. 25, 2011), http://foreignpolicy.com/
2011/10/25/up-in-smoke/ [https://perma.cc/72GQ-A2HM]; Charlie Savage, Attack Renews Debate Over
Congressional Consent, N.Y. TIMES (Mar. 21, 2001), http://nytimes.com/2011/03/22/world/africa/22powers.
html [https://perma.cc/HE6H-WDBH]; Ilya Somin, Jack Goldsmith on the Constitutionality of the Libya
Intervention, VOLOKH CONSPIRACY (Mar. 22, 2011), http://volokh.com/2011/03/22/jack-goldsmith-on-theconstitutionality-of-the-libya-intervention/ [https://perma.cc/7TGZ-968Q]. I defended the legality of the
Syrian operation at its outset. See Jack Goldsmith, War Power: The President’s Campaign Against Libya is
Constitutional, SLATE (Mar. 21, 2011), http://slate.com/articles/news_and_politics/jurisprudence/2011/03/
war_power.html [https://perma.cc/A4DT-HYLP].

261

 262

THE GEORGETOWN JOURNAL OF LEGAL ETHICS

[Vol. 31:261

it was permissible for the President to initiate the Libya operation unilaterally.3
But now a more difficult legal barrier approached. The War Powers Resolution
(WPR) requires the President to “terminate any use of United States Armed
Forces” without authorization sixty days after United States forces are introduced
into “hostilities.”4 As the May 20th termination date approached, Congress made
clear that it would not provide the authorization that would stop the sixty-day
clock from expiring.5
At that point, the Pentagon’s top lawyer implied that the uses of force could
not lawfully continue after May 20th, and argued that the Administration would
have a stronger argument for WPR compliance if it ceased air strikes and pulled
back to a refueling and surveillance role.6 The acting head of the Office of Legal
Counsel (OLC), the top lawyer for the National Security Council, and the junior
State Department lawyer on the case, appeared to agree.7 This was “bad news”
for the operation, Charlie Savage noted, because without United States weapons
systems NATO aircraft would be at much greater risk.8
Obama rejected this legal consensus and continued with the air strikes after
May 20th. Just before that decision, Bauer and his White House lawyers, in tandem with State Department Legal Advisor Harold Koh, developed a different
theory.9 The theory began with the argument that the Libya bombings—which
were killing Libyan forces, and which quickened Muammar Gaddafi’s removal
from office and his death—were not necessarily “hostilities” under the WPR. It
then essentially reasoned that the bombings did not amount to the type of
Vietnam-era involvement, or “quagmire,”10 that the WPR drafters had in mind,
and the action was limited and posed little danger to United States troops.11
According to Savage, Bauer told Obama that this new theory was a “legally available” interpretation of the WPR, or perhaps (Savage’s sources were unclear) that
it was a “credible” or “available” one.12 It was also, as Savage noted, a “very
aggressive interpretation,” and one with which other top national security lawyers

3. See Memorandum from Caroline Krass, Principal Deputy Assistant Attorney Gen., to Eric Holder,
Attorney Gen., Authority to Use Military Force in Libya (Apr. 1, 2011), https://fas.org/irp/agency/doj/olc/
libya.pdf [https://perma.cc/T48N-RTUB].
4. War Powers Resolution, 50 U.S.C. §§ 1543(a)(1), 1544(b) (2017).
5. SAVAGE, supra note 1, at 641.
6. Id. at 643.
7. Id. at 644.
8. Id.
9. See id. (reporting that Bauer “took control” of the legal deliberations but implying that the new theory
was developed by Koh). In a personal communication, Bauer told me that the theory was developed by himself
and his White House Counsel lawyers “in tandem” with Koh and his lawyers.
10. See generally id.
11. See id. at 644–45; Libya and War Powers: Hearing Before the S. Comm. on Foreign Relations, 112th
Cong. 7, 2 (2011) (statement of Hon. Harold Koh, Legal Advisor, United States Dep’t of State), https://fas.org/
irp/congress/2011_hr/libya.pdf [https://perma.cc/XUU4-2AEW].
12. See SAVAGE, supra note 1, at 645. In correspondence, Bauer told me that he viewed it as a “reasonable”
interpretation of the statute, consistent with the position he defends in his paper.

 2018]

CRISIS LAWYERING AND THE “BEST VIEW”

263

besides Bauer and Koh, including the Attorney General, disagreed. But the
President himself was a lawyer, and more importantly, he was the Chief
Executive with the final say over legal interpretation for the Executive branch.
And so, his final decision, though not the “best” interpretation of the WPR,
prevailed.13
Based on his experiences with episodes like these, Bauer has now written one
of the most insightful contributions to our understanding of executive branch lawyering in the crowded field of post-9/11 efforts on the topic. Bauer’s focus is on
executive branch legal advice in the narrow context of “highly sensitive or critical
national security questions.”14 He attacks the idea that the presumptive answer to
such questions should come from OLC based on its “best view of the law,” which
he maintains is the standard that OLC says should govern its legal opinions to the
President. Bauer claims that the “best view” standard is an “empirically unsustainable account of how lawyers in fact perform in a crisis setting, and as a theoretically unjustified constraint on the range of legal options that a president’s
legal advisors should be expected to offer.”15 He further argues that OLC should
not have the primary role in providing legal advice to the President in crisis.
Instead, the WHC should lead a more flexible inter-agency effort and “assume
the ultimate responsibility” for advising the President.16 And in giving that legal
advice, the WHC should not be bound by the “best view” of the law, but instead
should be satisfied with something closer to “reasonable legal positions” that support the President’s policy aims, as long as such positions are taken in good faith
and articulated publicly.17
There is so much to admire in Bauer’s essay, including his remarkable reconstruction and analysis of the role of executive branch lawyers in the Destroyers
for Bases and Cuban Missile Crisis episodes, and his subtle, realistic, and relentlessly candid articulation of the relationship between policy and law, and policymakers and lawyers, during national security crises. Bauer is also right to
question whether executive branch lawyers always seek the “best view” of the
law, especially in crisis contexts. I will argue, however, that his proposed “reasonableness” standard of executive branch interpretation in crisis, and Bauer’s
prescription for White House-centered legal decision-making, do not follow from
this critique of the “best view” principle, and beg a number of hard questions.

13. For a critique of the process leading to this decision, see Trevor W. Morrison, Libya, “Hostilities,” The
Office of Legal Counsel, and the Process of Executive Branch Legal Interpretation, 124 HARV. L. REV. F. 62
(2011).
14. Robert F. Bauer, The National Security Lawyer, In Crisis: The “Best View” of the Law May Not be the
Best View, 31 GEO J. LEGAL ETHICS 175, 178 (2018).
15. Id. at 175.
16. Id. at 182.
17. Id.

 264

THE GEORGETOWN JOURNAL OF LEGAL ETHICS

[Vol. 31:261

I. THE “BEST” VIEW OF THE LAW
Bauer is right that the OLC’s “best view” principle lacks a “long pedigree.”18
Former Clinton Administration OLC head (and now Judge) Randolph Moss gave
the principle its first extensive articulation in a law review article published in
2000.19 Based mostly on formal sources of law, he argued that the Executive
branch lawyer had an “obligation neutrally to interpret the law as seriously as a
court,” albeit “within the framework and tradition of executive branch legal
interpretation” and in an effort “to further the legal and policy goals of the administration he serves.”20 Something like this standard, using the “best view” phraseology, was proposed for OLC adoption in a 2004 memorandum by former
Clinton-era OLC officials (including Moss) in response to the controversial interrogation opinions issued by the George W. Bush Administration’s OLC in 2002–
2003.21 The Bush Administration OLC adopted its own “Best Practices for OLC
Opinions” in 2005.22 It embraced an originalist-textualist “correct answer on the
18. See id. at 180.
19. See Randolph D. Moss, Executive Branch Legal Interpretation: A Perspective from the Office of Legal
Counsel, 52 ADMIN. L. REV. 1303 (2000). Moss stated correctly in 2000 that “few have addressed how the
Attorney General and, more recently, the Office of Legal Counsel, should go about discharging their duties.”
Id. at 1308. He noted some undeveloped precursors to the “best view,” id. at 1308–09, but no Executive branch
official had previously explained and so clearly embraced the “best view” theory. Over the years, different
Attorneys General have in passing offered different conceptions of the Justice Department’s proper interpretive
stance in advising the President on the legality of presidential action. Jimmy Carter’s Attorney General, Griffin
Bell, believed that a relatively independent and relatively apolitical OLC engaging in formal legal review
resulting in reasoned legal opinions binding on the Executive branch would help “rebuild trust” tarnished by
Watergate. Daphna Renan, The Law Presidents Make, 103 VA. L. REV. 805, 809 (2017). And in his memoirs,
Bell referred to the Attorney General’s “duty to define the legal limits of executive action in a neutral manner.”
RONALD J. OSTROW & GRIFFIN B. BELL, TAKING CARE OF THE LAW 185 (1982). But Bell was not naı̈ve or
idealistic about the Executive lawyer’s task. See Griffin B. Bell, The Attorney General: The Federal
Government’s Chief Lawyer and Chief Litigator, or One Among Many?, 46 FORDHAM L. REV. 1049, 1066
(1978) (noting the “tension between the Attorney General’s role as one who dispassionately defines the legal
limits of executive action and the presidential desire to receive legal advice facilitating certain policy
decisions”—a tension that, as his many examples made clear, often results in something less than the “best
view” of the law) (emphasis added). One of Bell’s close predecessors, Elliot Richardson, noted that “[a]dvice
to a President needs to have the political dimension clearly in view, without a regard for any pejorative attached
to the word political.” NANCY V. BAKER, CONFLICTING LOYALTIES: LAW AND POLITICS IN THE ATTORNEY
GENERAL’S OFFICE, 1789–1990 27 (1992). Robert Jackson believed that the President should receive “the benefit of a reasonable doubt as to the law” and should not “act as a judge and foreclose the Administration from
making reasonable contention.” EUGENE C. GERHART, AMERICA’S ADVOCATE: ROBERT H. JACKSON 221–22
(1958). He also believed that the Attorney General in advising the President was not “quite as free to advocate
an untenable position because it happens to be his client’s position as he would if he were in private practice.”
Philip B. Kurland & Robert H. Jackson, in JUSTICES OF THE UNITED STATES SUPREME COURT: THEIR LIVES AND
MAJOR OPINIONS 1299–1300 (Leon Friedman & Fred L. Israel eds., 1997) (emphasis added).
20. Moss, supra note 19, at 1306.
21. See PRINCIPLES TO GUIDE THE OFFICE OF LEGAL COUNSEL (2004), reprinted in Dawn E. Johnson,
Guidelines for the President’s Legal Advisors (including “Principles to Guide the Office of Legal Counsel”),
81 IND. L.J. 1345, 1348–54 (2006) [hereinafter PRINCIPLES].
22. Memorandum from Steven G. Bradbury, Principal Deputy Assistant Attorney Gen., U.S. Dep’t of
Justice, Office of Legal Counsel to Attorneys of the Office of Legal Counsel, Re: Best Practices for OLC
Opinions (May 16, 2005), https://fas.org/irp/agency/doj/olc/best-practices.pdf [https://perma.cc/3RHY-YJ8S]

 2018]

CRISIS LAWYERING AND THE “BEST VIEW”

265

law” principle that presumably would often lead to a more conservative “best
view” of the law than Moss or the 2004 Memorandum had in mind or would support. Something a bit closer to the Moss view—couched as the “best understanding” of the law rather than the “best view”—was adopted by OLC for the first
time in a 2010 “Best Practices” memorandum.23 This conception of the
Executive branch lawyer’s role—the Obama OLC’s 2010 “published legal standard,” first adopted a few months after Bauer became WHC—is the main target of
his attack.24
The 2010 OLC standard is subtler than Bauer lets on. OLC does not claim, as
Moss did, that OLC must interpret the law “neutrally,” and it does not analogize
executive branch legal interpretation to judicial interpretation.25 It says that OLC
“must provide advice based on its best understanding of what the law requires”—
not the best understanding, but its best understanding, which may implicitly
acknowledge that others will have a different “best understanding.”26 Moreover,
OLC distinguishes its “best understanding” from “an advocate’s defense,” which
leaves a lot of room for maneuver short of an advocate’s defense. OLC insists
that its “legal analyses should always be principled, forthright, as thorough as
time permits, and not designed merely to advance the policy preferences of the
President or other officials,” but again, this is far from court-like detachment.27
Something closer to Bauer’s target of candid legal analysis regardless of policy
consequences can be found, however, in the OLC statement that it “seeks to provide an accurate and honest appraisal of applicable law, even if that appraisal will
constrain the Administration’s or an agency’s pursuit of desired practices or policy objectives.”28 What Bauer seems to be opposed to is the idea that the most

(noting that “OLC’s interest is simply to provide the correct answer on the law, taking into account all reasonable counterarguments, whether provided by an agency or not,” but adding that “OLC’s analysis should focus
principally on the text of the Constitution and the historical record illuminating the original meaning of the text
and should be faithful to that historical understanding” and that “questions of statutory and treaty interpretation,
OLC’s analysis will be guided by the text and will rely on traditional tools of construction in interpreting the
text”) [hereinafter Best Practices, 2005].
23. See Memorandum from David J. Barron, Acting Assistant Attorney Gen., U.S. Dep’t of Justice, Office
of Legal Counsel, to Attorneys of the Office of Legal Counsel, Re: Best Practices for OLC Legal Advice and
Written Opinions (July 16, 2010), https://www.justice.gov/sites/default/files/olc/legacy/2010/08/26/olc-legaladvice-opinions.pdf [https://perma.cc/JJ28-QHK5] [hereinafter Best Practices, 2010].
24. While the 2010 OLC standard is clearly Bauer’s main target, he actually argues against several different
versions of the “best view” principle.
25. Best Practices, 2010, supra note 23. Indeed, it rejects the analogy in several places. For example, writing, “[u]nlike a court, OLC will, where possible and appropriate, seek to recommend lawful alternatives to
Executive Branch proposals that it decides would be unlawful.” Id. at 2.
26. Id. (emphasis added). For more on the distinction between the best view of the law and OLC’s best
view, see Trevor W. Morrison, Stare Decisis in the Office of Legal Counsel, 110 COLUM. L. REV. 1448, 1502–
03 (2010) [hereinafter Morrison, Stare Decisis]; Trevor W. Morrison, Constitutional Alarmism, 124 HARV. L.
REV. 1688, 1713–15 (2011) [hereinafter Morrison, Constitutional Alarmism].
27. Best Practices, 2010, supra note 23, at 2.
28. Id.

 266

THE GEORGETOWN JOURNAL OF LEGAL ETHICS

[Vol. 31:261

plausible view of the law will trump other “reasonable” theories when an important policy is at stake in a situation deemed a crisis.29
While Bauer portrays the OLC standard as a bit more inflexible than I think it
is, he is on to something in highlighting that there is often significant indeterminacy in executive branch lawyering. Executive branch lawyering is highly contextualized; it involves fluid and unusual sources of law, including executive
branch precedents; and many of the issues the executive branch lawyer faces
have not been resolved by courts. The “best view” or “best understanding” standard begs important questions about the proper sources, hierarchies, and modes of
interpretation. Without a specified account of these factors, which are contested
even in the context of judicial review, different OLCs—and different lawyers in
other parts of the same Executive branch—might have very different understandings of the “best view” or “best understanding” of the law.30 Bauer is also right
that some disagreements over the “best view” of the law are about policy as much
as, if not more than, law. As he says,
There may sometimes be a “best view,” but not always, and even where there
is, it may be only barely the best. Or it may be the best as far as some fine lawyers are concerned, and not so much in the view of others, and the difference
once closely examined may seem to follow closely disagreements that are
more over policy than over law.31

Acknowledging these problems with the “best view” notion, we should
remember that OLC in 2010 promulgated the “Best Practices” memorandum as a
general account of executive branch lawyering, not an approach to executive
branch lawyering in crisis. It is probably no more appropriate to expect the “best
view” or “best understanding” approach to work well in crisis than it is to expect

29. See, e.g., Bauer, supra note 14, at 236–237 (“The best view does not accommodate a ranking of choices
among legal alternatives that is heavily shaped by policy imperatives. In other words, if there is a policy of central importance, a reasonable and even ‘compelling’ legal theory devised to support it will not trump the ‘best
view.’ In fact, in Moss’s view, to adopt in facilitating a policy ‘a reasonable, but ultimately less persuasive
view [than the best view] is fundamentally inconsistent with the concept of law itself.’”); id. at 240 (“An administration would want to be persuaded that if the policy must be abandoned for legal reasons, the reasons are
actually compelling—clear, beyond a reasonable argument. The policymaker may be skeptical that he or she
must be bound by a declared “best view” and denied the benefit of reasonable, defensible legal justifications—
and among them, what Professor Morrison has referred to as ‘the best, professionally responsible legal defense
of [the] preferred policy position.’”).
30. For example, the 2005 best practices OLC memorandum articulated an originalist approach to
Constitutional interpretation, see Best Practices, 2005, supra note 22 (on constitutional questions “OLC’s analysis should focus principally on the text of the Constitution and the historical record illuminating the original
meaning of the text and should be faithful to that historical understanding”) (emphasis added), while the 2010
memorandum pledged to look to broader sources and was not beholden to “historical understanding,” see Best
Practices, 2010, supra note 23 (“OLC’s analysis should focus on traditional sources of constitutional meaning,
including the text of the Constitution, the historical record illuminating the text’s meaning, the Constitution’s
structure and purpose, and judicial and Executive Branch precedents interpreting relevant constitutional provisions”). If taken seriously as standards, these different approaches will often lead to different “best answers.”
31. Bauer, supra note 14, at 182.

 2018]

CRISIS LAWYERING AND THE “BEST VIEW”

267

a general theory of judicial review, designed for the run of cases, to work well in
crisis. It has long been understood that when the stakes to the nation are very
high, when the President must meet a vital national security threat, presidents and
their legal advisors (not to mention courts) will push harder, and think more creatively, to find ways to approve as lawful actions that might not have been seen as
lawful in calmer times.32
And yet it is entirely fair for Bauer to examine how the “best view” or “best
understanding” theory actually operates in crisis, considering former Democratic
party OLC veterans, and many academics (some of whom are the same people),
have insisted that the early Bush Administration legal opinions, written in a crisis
situation, should have provided the President with the “best view” of the law
regardless of the adverse consequences for national security.33 Moreover, some
have criticized the Obama Administration, including, implicitly, Bauer, for not
adopting the “best view” in certain situations.34
Bauer’s examination of the episodes of 1941 and 1962 is an implicit critique of
the “best view” approach in a crisis setting. Among the most important contributions of his article is his reconstruction of how executive branch lawyering
actually operated during the Destroyers for Bases and Cuban Missile Crisis.
These are chestnut cases that have been extensively studied. But no scholar has
come close to showing in such detail how weak and opportunistic the legal analyses were on the merits, or the extent to which the legal giants at work in those episodes acted as legal-cover-men for policymakers acting in crisis. Bauer does not
remotely question the good faith of these lawyers. But he does demonstrate how
much they were moved by the imperative of large national security crises to cut
legal corners to find the President’s vital national security lawful.
Bauer is also right that many criticisms of executive branch lawyers for departing from the “best view” are couched more in policy terms than extended legal
arguments, and often depend on after-the-fact judgments about how things turned
out.35 Bauer does not (and cannot) demonstrate that the “best view” has never
32. As Bauer notes, there is a “long history of judges, most markedly in national security cases, finding
ways to defer to executive judgment.” Id. at 231. See also Jack Goldsmith, Reflections on Government
Lawyering, 205 MIL. L. REV. 192, 199 n.18 (2010) (“Courts consist of lawyers who are supposed to be more
detached than Executive Branch lawyers vis-à-vis the Executive. And yet, in times of crisis in our nation’s history, courts have done things that later looked like stretching the law under the pressure of events.”) [hereinafter
Goldsmith, Reflections]. See generally WILLIAM H. REHNQUIST, ALL THE LAWS BUT ONE: CIVIL LIBERTIES IN
WARTIME (2000).
33. See, e.g., PRINCIPLES, supra note 21; Dawn E. Johnsen, Faithfully Executing the Laws: Internal Legal
Constraints on Executive Power, 54 UCLA L. REV. 1559 (2007).
34. See supra text accompanying note 2. See also Dawn E. Johnsen, When Responsibilities Collide:
Humanitarian Intervention, Shared War Powers, and the Rule of Law, 53 HOUS. L. REV. 1065, 1076 (2016).
35. In this connection, Bauer notes in several places the extent to which the legal critiques of the controversial Bush-era interrogation opinions were disguised, or not-so-disguised, policy critiques. Bauer, supra note 14,
at 233. (“Their critics disputed this need for expansive presidential authority, but this objection did not spring
at all times from the baseline concern with what the law allowed or prohibited.”). And he thinks, as I do, see
Goldsmith, Reflections, supra note 32, at 200, that the interrogation opinions were not obviously further from

 268

THE GEORGETOWN JOURNAL OF LEGAL ETHICS

[Vol. 31:261

worked in crisis situations, and he certainly does not establish that lawyers cannot
shape policy options in crisis and even say “no” successfully. But his examples,
and the many other examples of lawyers not applying the “best view” in the post9/11 national security context, go a long way toward showing the “best view”
approach is a difficult one to follow in crisis situations.

II. THE “REASONABLENESS” STANDARD
To say that the “best view” of the law may be an unrealistic standard for crisis
situations that has rarely, if ever, prevailed in practice does not by itself tell us
much about whether the “best view” is the wrong standard, or anything at all
about whether Bauer’s proposed standard—“reasonable, good faith readings” of
the law—is the right one.36 Bauer basically defends his view on the ground that it
is the most realistic and the one that best serves the President in his duty to keep
the country safe. But that does not make it lawful or normatively attractive.
Perhaps the President’s constitutional duty to “take Care that the Laws be faithfully executed” requires something more than a reasonable interpretation of the
law.37 Or perhaps the President’s constitutional oath, which requires him to swear
that he will “faithfully execute the Office of President of the United States, and
will to the best of [his] Ability, preserve, protect and defend the Constitution of
the United States,” requires something more.38 Bauer does not consider these or
other formal sources of law that may bear on his question.39 Perhaps these sources
require the President to follow something more than mere “reasonable” views of
the law, and then to act “extralegally” if a crisis demands it, subject to public
judgment, as President Lincoln did.40 Maybe Bauer would invoke constitutional
practice to give a meaning to these constitutional phrases that is consonant with
the right answer than Jackson’s or Chayes’ legal advice during their crises, but were much more roundly
criticized because of their poor craft values as well as the policy issues at stake. See Bauer, supra note 14, at
235 (“[Presidents Roosevelt and Kennedy] have been seen to have steered the country and its global responsibilities in the right direction. The Bush Administration and its lawyers have found themselves in a very different place. They suffer from the perception among their detractors that where a policy was so wanting in
soundness and morality, the legal work had to transcend the comforts of ‘plausible cover’ and did not. The very
different evaluations of policy have an unmistakable bearing on the degree to which the lawyers are charged
with unacceptably ‘massaging’ or ‘distorting,’ rather than aggressively pushing and interpreting, the law to supply the cover.”); see also id. at 237 (“This interplay of law and policy, which means mainly the pressure the latter exerts on the former, partly explains the generosity of some retrospective judgment of dubious lawyering.
The triumph of policy casts a glow on the lawyers who facilitated it. A policy in disrepute may take the lawyer
down with it.”).
36. Bauer, supra note 14, at 176.
37. U.S. CONST. art. II, § 3.
38. U.S. CONST. art. II.
39. Cf. Moss, supra note 19, at 1309–16 (explaining why formal sources of law support his view). But see
Morrison, Stare Decisis, supra note 26, at 1456 & n.32–33 (arguing that there is nothing “constitutionally inevitable” about OLC applying the best view, and that “OLC’s job could be defined in very different terms”).
40. See Jack Goldsmith, The Irrelevance of Prerogative Power, and the Evils of Secret Legal Interpretation,
in EXTRA-LEGAL POWER AND LEGITIMACY: PERSPECTIVES ON PREROGATIVE 227 (Clement Fatovic & Benjamin
A. Kleineman eds., 2013) [hereinafter Goldsmith, Irrelevance of Prerogative Power].

 2018]

CRISIS LAWYERING AND THE “BEST VIEW”

269

his conclusions.41 But it is doubtful that Congress or the nation has acquiesced in
the principle that mere “reasonable” executive branch interpretations suffice in
practice. In fact, the reactions to executive branch lawyering in the post-9/11 era
suggest the contrary.
Nor does Bauer consider the relationship between executive branch lawyering
and judicial review. Where judicial review is likely, the Executive branch has a
stronger argument to be more aggressive in its legal interpretations, since courts
stand ready to rein it in when it goes too far. That in a nutshell is why the Justice
Department will defend in court the legality of an Executive’s actions already
taken if there is a “reasonable” argument in support of the action’s legality. But in
many if not all of the situations in which Bauer is arguing for a reasonableness
standard, judicial review will be unavailable or unlikely. OLC thinks that it must
provide an “accurate and honest appraisal of applicable law” precisely “because it
is frequently asked to opine on issues of first impression that are unlikely to be
resolved by the courts.”42 Bauer has no response to this. He never explains why the
Executive is complying with the law, as it must, when it is acting outside of judicial
review in accord with an interpretation that is merely a “reasonable” interpretation
of the law for which, by hypothesis, there are better interpretations of the law.
Bauer’s proposed “reasonableness” standard also suffers from conceptual slippage that hurts it as a reliable normative account of presidential practice. He distinguishes at least three categories of legal interpretation: The (i) “best view” of
the law; (ii) a “reasonable” legal interpretation; and (iii) an erroneous legal interpretation, which I take to be some combination of an interpretation that is unreasonable and that constitutes “bad” legal work.43 Bauer argues that the second
category, “reasonableness,” is superior to the two extremes—the “best view” or
erroneous interpretation. But he really does not tell us how to distinguish a “reasonable interpretation” from an erroneous interpretation, and intuitions likely differ quite a lot. For example, I thought the Obama interpretation of the WPR that
he found “reasonable” actually suffered from “serious weaknesses,” even while I
acknowledged that there was “no clear legal answer.”44 Others across the political
spectrum were less charitable.45
41. Cf. Curtis A. Bradley & Trevor W. Morrison, Historical Gloss and the Separation of Powers,
126 HARV. L. REV. 411 (2012).
42. Best Practices, 2010, supra note 23, at 1.
43. Bauer, supra note 14, at 240, 257. Bauer insists that his standard does not commit him to the view that
there is “no clear legal limit” on executive action, so he must believe that there is a third category of answers
that are beyond the legal pale.
44. Jack Goldsmith, Problems with the Obama Administration’s War Powers Resolution Theory, LAWFARE
(June 16, 2011), https://www.lawfareblog.com/problems-obama-administrations-war-powers-resolution-theory
[https://perma.cc/LBW7-EXL5]. My argument in a nutshell was that the text and structure of the WPR, and its
legislative history, made it plain that actions such as those in Libya were “hostilities.”
45. See, e.g., Bruce Ackerman, Legal Acrobatics, Illegal War, N.Y. TIMES (June 20, 2011), http://nytimes.com/
2011/06/21/opinion/21Ackerman.html [https://perma.cc/Z6C5-D94H]; Conor Friedersdorf, Obama Fails to Justify
the Legality of War in Libya, ATLANTIC (June 16, 2011), https://www.theatlantic.com/politics/archive/2011/06/
obama-fails-to-justify-the-legality-of-war-in-libya/240545/ [https://perma.cc/U2AT-TTZJ]; Rich Lowry, Obama

 270

THE GEORGETOWN JOURNAL OF LEGAL ETHICS

[Vol. 31:261

Another area of conceptual fuzziness—one that Bauer acknowledges—is the
notion of a “crisis,” which is the only context for which Bauer defends his reasonableness standard. Bauer never precisely defines the concept of crisis, and he uses
various synonyms throughout the piece, including “exigent circumstances,”46 a
“complex and urgent” policy challenge,47 “questions of war or peace, life or
death,”48 and “emergency.”49 These concepts are not at all the same thing. Nor
are they self-defining. Nor is their applicability always clear. Consider again the
Libya example, where the President rejected something like the “best” view of
the WPR in lieu of a legal interpretation that Bauer deemed “reasonable” or
“available.”50 Recall that the question was whether, in a large-scale military
engagement that he initiated without congressional authorization, the President
needed to pull back from using fire to a mere surveillance and refueling role. It is
not at all clear that this was a “crisis.” Libya posed no threat to the United States
and the use of force was not justified as self-defense. The conduct of the campaign might have gone slower absent United States firepower, Britain and France
would have had to play more prominent roles, and NATO might have run more
risk. The campaign might even, conceivably, have failed, and many more civilians in Libya might have been killed.51 But it is hard to see how this situation was
a “crisis” or “emergency.” The Libya example exemplifies the elusiveness of the
crisis criterion, and it shows how easily the category can expand when the
President is pressed to achieve what he considers to be an important goal.
A third fuzzy line is between legal questions that involve matters with consequences outside rather than inside the United States. Bauer notes that his reasonableness standard runs the risk that “presidents free to downgrade the legal
justifications required to support their national security policies will also liberate
themselves to take steps, as in surveillance, with major domestic effects.”52 Bauer
appears to imply, without further explanation, that the case for his reasonableness
Kills the War Powers Act, NATIONAL REVIEW (June 7, 2011), http://nationalreview.com/article/268973/
obama-kills-war-powers-act-rich-lowry [https://perma.cc/Y9HX-NKVL]; Charlie Savage, Libya Violation is
Called Violation of War Act, N.Y. TIMES (May 25, 2011), http://www.nytimes.com/2011/05/26/world/
middleeast/26powers.html [https://perma.cc/2GHF-2C73] (focusing on criticisms from Representatives);
George Will, Obama’s Libya Actions Violates War Powers Resolution, NEWSMAX (May 31, 2011), http://
newsmax.com/GeorgeWill/GeorgeWill-Obama-Libya-WarPowersResolution/2011/05/31/id/398312 [https://
perma.cc/W8AA-EDNW].
46. Bauer, supra note 14, at 182.
47. Id.
48. Id. at 233.
49. Id. at 252.
50. See supra text accompanying notes 8–9.
51. The Administration was at the outset of the Libya intervention driven by fears of a Qaddafi-ordered massacre in the eastern part of the country, but these concerns had abated by the time of the War Powers
Resolution. As Savage reports the matter, the main operation implications of pulling back United States forces
were the increased risk to NATO aircraft and reduced monitoring of possible chemical weapons depots. See
SAVAGE, supra note 1, at 644. Bauer has no opportunity in his paper to say whether this is the type of emergency that triggers his concerns.
52. Bauer, supra note 14, at 252.

 2018]

CRISIS LAWYERING AND THE “BEST VIEW”

271

standard is limited to (or at least is stronger in) situations with mainly or exclusively foreign effects. If I am right about this, the border becomes a major limitation on the scope of his thesis, since so many crisis decisions have “major
domestic effects.” Moreover, “major domestic effects” is a soft, elusive predicate,
especially in an era when so many pressing national security issues transcend
borders.53
The reason these fuzzy lines matter is because of the psychology of the
Executive branch lawyer in crisis that Bauer so insightfully describes. Bauer
shows that the Executive branch lawyer is under enormous pressure to make accommodating interpretations in time of crisis and tends to interpret and manipulate legal lines opportunistically. He chides Rosa Brooks for insisting on a
distinction between “permissible” and “impermissible” interpretations, and for
invoking a tennis analogy in suggesting that lawyers should not “cheat” by
embracing a legal interpretation outside the line. Bauer doubts “how usefully lawyers can repair to an intent-based standard that looks to whether the lawyer knows
he is cheating,” since few lawyers believe they cheat.54 “Legal education promotes self-confidence more than it fosters introspection, and the very best lawyers are often the most self-confident,” Bauer says, implying that the finest
executive branch lawyers—he invoked Robert Jackson in this context—are
unable in crisis to discern real self-limiting legal lines.55
But this very psychology should make us worry a lot about whether the soft
jurisdictional lines that undergird Bauer’s thesis—between a crisis and non-crisis
situation, a “reasonable” and “erroneous” interpretation of the law, and domestic
and foreign effects—will be adhered to in crisis. Bauer provides no reason to
think they will and every reason to think they will not.56 Just this sort of potential
slippage is why some people think the higher “best view” standard is normatively
attractive as an aspiration even if unrealistic to expect in every case, because the
higher normative bar, if accepted, makes it more costly for the Executive branch
lawyer to slip to a category (iii) interpretation.
One might also question Bauer’s reliance on transparency to buck up the normative attractiveness of his reasonableness standard. The “key to the executive
checking function” of the proposed reasonableness standard, he insists, “is a
detailed public accounting of the legal advisory structure established to support
53. Cf. David J. Barron & Martin S. Lederman, The Commander in Chief at the Lowest Ebb—Framing the
Problem, Doctrine, and Original Understanding, 121 HARV. L. REV. 689, 744 (2008) (finding “the distinction
between ‘domestic’ and ‘foreign’ affairs dissolves rather rapidly” in the context of the post-9/11 war on
terrorism).
54. Bauer, supra note 14, at 232.
55. Id.
56. Puzzlingly, Bauer says that the risk of crossing the line between foreign and domestic effects is “another
instance of having to reckon with the threat of bad faith, plain bad judgment, or the inexorable physics of the
slippery slope.” Id. at 253. I do not know why he worries about bad faith here and not in the other contexts, but
in terms of bad judgment and the slippery slope, these are the very factors that he thinks, correctly, are exacerbated in crisis.

 272

THE GEORGETOWN JOURNAL OF LEGAL ETHICS

[Vol. 31:261

the president’s decision-making in crisis and of the substance of the Administration’s formal legal position.”57 I agree that the ultimate and best check on the
pathologies of executive branch auto-interpretation is a thoroughgoing transparency of the legal position and, to the extent possible, its underlying analysis.58
But using Bauer’s logic, is this expectation realistic? In none of the cases of lawyering in crisis that he canvassed did the administration in question give a candid
account of the decision-making structure. And in only one—Jackson’s (noncandid) legal opinion upholding the Destroyers for Bases deal—did it make public its formal legal position.59 Also, many if not most of the “crisis” questions that
involve hard executive branch lawyering will involve classified information
where a “detailed public accounting” is impossible. Bauer does not tell us how to
check potentially opportunistic legal analysis that is classified.60
I have criticized what I see as deficiencies in Bauer’s arguments for the “reasonableness” standard. But I must confess that my view of the proper descriptive
and normative account of executive branch lawyering, which leans toward the realistic end of the academic spectrum, is a squishy contextual one, somewhere
between “reasonable” and “best view,” with no determinate prescription:
There is no magic formula for how to combine legitimate political factors with
the demands of the rule of law. The head of OLC must be a careful lawyer,
must exercise good judgment, must make clear his independence, must maintain the confidence of his superiors, and must help the President find legal
ways to achieve his ends, especially in connection with national security.
OLC’s success over the years has depended on its ability to balance these competing considerations—to preserve its fidelity to law while at the same time
finding a way, if possible, to approve presidential actions.61

The issue of the proper interpretive stance for the Executive branch lawyer in crisis is a hard one to theorize about while maintaining a sense of realism about the
process. Bauer’s article deepens our understanding of the challenges to keeping
executive branch lawyering under control and offers a useful counter-argument
to the academic trend towards “judicializing” executive branch lawyering. But it
is much too quick to derive sharp normative conclusions from past practice and
imputed presidential desires alone.

57. Id. at 176.
58. See Goldsmith, Irrelevance of Prerogative Power, supra note 40, at 227.
59. As Charlie Savage’s book makes plain, this was often, though not always, true of the Obama
Administration as well. See generally SAVAGE, supra note 1.
60. I propose in this situation much more robust reporting of legal analysis to the intelligence committees.
See Goldsmith, Reflections, supra note 32. But this is decidedly a second-best solution that I am not sure
suffices.
61. See JACK GOLDSMITH, THE TERROR PRESIDENCY: LAW AND JUDGMENT INSIDE THE BUSH
ADMINISTRATION 38–39 (2007) [hereinafter GOLDSMITH, TERROR PRESIDENCY].

 2018]

CRISIS LAWYERING AND THE “BEST VIEW”

273

III. INSTITUTIONAL DESIGN
Having argued that a reasonable rather than “best view” of the law suffices for
executive branch lawyering in crisis, Bauer further argues that the White House
Counsel instead of OLC “likely should have ultimate accountability for an interagency process through which the advice is developed for the president”62 and
“may appropriately . . . assume the ultimate responsibility for the advice the
President is given.”63 But this conclusion about institutional design does not follow from a rejection of the “best view” interpretive approach to executive branch
lawyering generally.
The role and views of two important players are largely missing from Bauer’s
normative analysis in Part IV of his paper. The first player is the President. The
President is the chief legal officer for the Executive branch who gets the final say
on legal questions.64 The President has significant flexibility in organizing how
his administration provides him with legal advice, including in crisis. As Daphna
Renan has shown, presidents balance several factors in structuring how they
receive legal advice, including maximizing discretion while acting lawfully,
ensuring that legal policy decisions are effectuated throughout the bureaucracy,
information control, and various forms of public credibility.65
Bauer suggests that the WHC-centered structure he proposes is the one that
best serves the President in crisis. But depending on the President’s interests and
skill set, the nature of the crisis, and the personalities in the administration, different presidents might want deliberations with different mixes of law and policy,
and might want different mixes of close advice (by WHC) and more detached
advice (from the Attorney General and OLC, for example, or elsewhere). Indeed,
in the two major examples that Bauer studies in his Parts II and III, presidents
used very different approaches to crisis lawyering based on these factors. In both
episodes, the Attorney General took the lead in providing legal advice to the
President and had no trouble integrating policy considerations and reaching an
aggressive legal conclusion that the President wanted—exactly Bauer’s preferred
set of considerations and outcome. There was no WHC in 1941, but Kennedy’s
WHC had only a bit part in the Cuban Missile Crisis.66

62. Bauer, supra note 14, at 249–250.
63. Id. at 182. Bauer notes that “it is conceivable that the president could designate another senior agency
lawyer to play that role, a choice that could vary with the issue.” Id. at 250 (emphasis added). But he adds: “In
any event, the process would be constructed and directed through the White House, and it follows that most of
the time WHCO would be the logical choice to coordinate the legal support for the policymakers.” Id.
64. Jack Goldsmith, Zivotofsky II as Precedent in the Executive Branch, 129 HARV. L. REV. 112, 134
(2015).
65. See Renan, supra note 19, at 850–70.
66. Kennedy’s White House Counsel, Ted Sorenson, was an attorney with a legal staff and legal responsibilities. See THEODORE SORENSEN, COUNSELOR: A LIFE AT THE EDGE OF HISTORY 209 (2008). However, he was
more a political advisor and speechwriter to Kennedy than a legal advisor, and in general the White House
Counsel’s Office was not nearly as law-focused then as today.

 274

THE GEORGETOWN JOURNAL OF LEGAL ETHICS

[Vol. 31:261

And speaking of the Attorney General: despite that Office’s central role in the
historical episodes in Bauer’s Parts II and III, the Attorney General is entirely
absent in Part IV of Bauer’s analysis. Bauer makes it seem like the basic choice
for legal advice to the President is WHC versus OLC. But usually, the most important legal player besides the President will be the Attorney General, not the
head of OLC. Arguably by statute, and definitely by custom and practice, the
Attorney General exercises the President’s delegated authority to interpret federal
law that is binding on the Executive branch.67 OLC’s legal power derives entirely
from the Attorney General’s and is subject to the Attorney General’s reversal. An
OLC decision has authority because it is in effect a decision of the Attorney
General and the Justice Department. What Bauer is proposing is that in crisis situations, the WHC instead of the Attorney General should take responsibility, after consulting with the Justice Department and other lawyers, for providing legal
advice to the President.
Presidents can organize legal advice like this if they want, and if the
Attorney General is willing to go along with such a reduced role. The Obama
Administration appears to have done just this, cutting out the Attorney General
in a few very important national security decisions in remarkable ways.68 But
while this is certainly a possible approach in crisis, it is not the only one and
not the best one for every president and every occasion. Beyond personalities
and competence, which are distributed differently across administrations,
Bauer ignores or discounts at least two factors that might lead a president to
reject the WHC-centered approach.
First, if criminal law matters are at stake, an interpretation of the law that
approves the action is much more powerful and consequential coming from the
Justice Department than from the WHC. If the Justice Department signs off, those
who rely on it in good faith are effectively immunized from subsequent prosecution.69 The WHC lacks that power, and even if he convinces the President to
adopt a particular view, in practice the President’s approval can be less powerful
than the Justice Department’s, especially if it is perceived as not being grounded
in serious legal deliberation. The Justice Department, in short, can ensure that a
legal interpretation is abided by, and has credibility within the bureaucracy, more
effectively than a decision made by the WHC, especially on matters of criminal
law. It is no accident that when contemplating the targeted killing of American
citizen, which implicated novel issues and criminal statutes, the Obama White

67. See 28 U.S.C. §§ 511–13 (2012); Judiciary Act of 1789, ch. 20, § 35, 1 Stat. 73, 93; Moss, supra note
19, at 1318–20.
68. Charlie Savage reports that Attorney General Holder entered the process for the War Powers Resolution
legal debate late and backed OLC, but his views were disregarded. SAVAGE, supra note 1, at 646. Holder and
the Justice Department were cut out altogether from discussions about the legality of the Bin Laden raid. Id. at
260 (noting that Holder was briefed one day before the raid, “long after the legal issues had been settled”).
69. See Note, The Immunity-Conferring Power of the Office of Legal Counsel, 121 HARV. L. REV. 2086
(2008).

 2018]

CRISIS LAWYERING AND THE “BEST VIEW”

275

House sought and received a formal OLC opinion.70 Second, the President might
want extra legitimacy and public cover, however marginal, that comes from legal
approval by the Senate-confirmed and relatively independent Attorney General
(or his delegate, the confirmed head of OLC), as opposed to the White House
Counsel, who has not been vetted by the Senate and is perceived to be a more political lawyer.71
Another problem with Bauer’s institutional prescription is his unsupported
assumptions about how OLC operates in crisis. First, he seems to think the “best
view” will result too often in legal advice that ties the President’s hands unduly.72
He presents no actual evidence for this conclusion. His article is filled with examples of OLC or the Attorney General reaching interpretations that accommodate
the President in crisis. The one counter-example he mentions in passing—OLC’s
quiet, non-formal disagreement with the White House on the WPR—was quickly
overruled by the President without apparent internal drama. Maybe the “best
view” in theory would hamstring the President, but there is little evidence that the
“best view” in practice, or OLC lawyers applying other standards, will stop the
President from doing something he deems vital for national security in crisis.73 I
do not want to deny that having a legal office relatively independent of the White
House will reach legal conclusions that are less amenable to the President’s aims
in crisis in various ways, and might sometimes require the tactics in question to
be modified or reshaped. That is true, and is seen by many as one of the virtues of
having a Justice Department-centered model. But Bauer significantly exaggerates
the extent to which an OLC has hamstrung the President in crisis.
Second, Bauer imagines OLC as outside the policy process, operating from a
“sanitized distance” that is “above politics.”74 I do not think this is what the 2010
OLC principles require, and I know it is not typically the way that OLC operates.
The complaint about the first two years of the George W. Bush-era OLC was that
it was too enmeshed in the national security policy-making process, and was
indeed driving that process.75 When I was in OLC in 2003–2004, I was directly
70. See Memorandum for the Attorney General from David Barron, Acting Assistant Attorney General,
Office of Legal Counsel, Applicability of Federal Criminal Laws and the Constitution to Contemplated Lethal
Operations Against Shaykh Anwar al-Aulaqi (July 16, 2010), https://www.washingtonpost.com/r/2010-2019/
WashingtonPost/2014/06/23/National-Security/Graphics/memodrones.pdf?tid=a_inl [https://perma.cc/8CSP3E6Q].
71. See Morrison, Constitutional Alarmism, supra note 26.
72. See Bauer, supra note 14, at 244.
73. I was involved in one instance that may appear to be a counter-example—the unwinding of parts of the
StellarWind surveillance program. In that case, OLC advised in 2004 that parts of a program that had been running since 2001 could not be reaffirmed as lawful, the President objected and overruled OLC, and then changed
his mind and assented in the face of threatened resignations. See OIG, A Review of the Department of Justice’s
Involvement with the President’s Surveillance Program (July 2009), at pp. 119–47, 197–201, https://oig.
justice.gov/reports/2015/PSP-09-18-15-vol-III.pdf [https://perma.cc/5KYB-3TMM]; see also BARTON GELLMAN,
ANGLER: THE CHENEY VICE PRESIDENCY ch. 12 (2008).
74. Bauer, supra note 14, at 249.
75. See GOLDSMITH, TERROR PRESIDENCY, supra note 61 at 99–140.

 276

THE GEORGETOWN JOURNAL OF LEGAL ETHICS

[Vol. 31:261

involved in White House meetings—organized by the WHC—where lawyers
from various agencies were present and the policy aims and priorities of particular courses of action on which I was asked to opine on were fully fleshed out. As I
have noted before, I think that OLC has to keep the policy dimension, and the
President’s aims, clearly in mind in the way it gives its advice.76 It is true that
OLC and the Attorney General are not, as a general matter, as deeply involved as
the WHC in protecting the President and in helping him achieve his political
ends. But again, those are not the only legitimate goals in providing the President
with legal advice in crisis, as Bauer often implies. And given the psychology of
the national security lawyer in crisis, the slightly detached position of the Justice
Department lawyer can be an advantage in providing the President with legal
advice.
I am not insisting here on a central role for OLC, or even necessarily the
Attorney General, in all cases of crisis lawyering. I have explained elsewhere
why I think OLC’s legal role in national security decisions is diminishing generally for reasons mostly unrelated to Bauer’s criticisms.77 As noted, the President
can organize his administration as he wants. And as Daphna Renan has shown,
presidents have adopted many models in using the Justice Department (the
Attorney General and OLC) and the White House Counsel to receive legal
advice.78 I simply think that Bauer begs many questions in arguing from the unrealism of the “best view” standard in crisis to a central responsibility for the WHC
in advising the President on legal matters in crisis under a reasonableness
standard.
It is important, finally, to note that even if the Justice Department plays a more
traditional role in providing legal advice to the President during crisis, the WHC
still has at least two vital roles to play. First, the WHC exercises a convening
power for inter-agency legal discussions that can significantly influence the
Justice Department. Second, the WHC will—depending on the President’s working relationship with the Attorney General—often have the final word in advising
the President whether to accept a legal interpretation proposed by the Justice
Department or any other agency on a matter the President cares about. In a crisis
context, when the President is most sensitive to and perhaps most likely to resist
constraining legal interpretations, this can be an enormously powerful position.
But it takes a lot more argument than Bauer has provided to in effect supplant the
Attorney General from his traditional role in providing presumptively legally
binding advice to the President and the Executive branch—even in crisis.

76. See id. at 33–35.
77. Jack Goldsmith, The Decline of OLC, LAWFARE (Oct. 28, 2015), https://www.lawfareblog.com/declineolc [https://perma.cc/SJM4-K673]; Jack Goldsmith, More on the Decline of OLC, LAWFARE (Nov. 3, 2015),
https://www.lawfareblog.com/more-decline-olc [https://perma.cc/B67N-3KAJ].
78. Renan, supra note 19.