Fifth Circuit Order to Obama

Doug Edlin edlind at
Fri Apr 6 12:17:10 PDT 2012

On 4/6/2012 3:11 PM, Doug Edlin wrote:
> The DoJ should have a level of independence from the President, and I 
> think it does again (after the Bush years).  At the same time, though, 
> the DoJ works for the President in a meaningful way, and the AG 
> certainly does.  As Steven indicates, Holder signing the letter, 
> rather than Dana Kaersvang (the attorney who did the 5th Cir 
> argument), suggests that the Administration sees it this way, too.
> Doug
> On 4/6/2012 1:57 PM, Lichtman, Steven wrote:
>> Building on Harry's point about judicial indepdence, there's another 
>> institutional point here about the independence of the Department of 
>> Justice ...
>> Judge Smith seems to think that the DoJ carries the President's 
>> water, effectively analogizing the relationship between Dana Kaervang 
>> and Barack Obama as the relationship between junior law firm 
>> associate and senior partner.  As my friend Doug has pointed out to 
>> me, it is common for judges to hold lawyers accountable for 
>> statements or actions made by someone else at their firm.
>> But that analogy doesn't really work here, because the DoJ is 
>> presumed to have a level of independence from the president that 
>> grunt associates do not have vis-a-vis firm partners.  Yes, it's the 
>> President's DoJ, and he can set its agenda in some broad 
>> brushstrokes, but to suggest that the President is "the boss" of a 
>> DoJ lawyer in the same way that a firm partner is "the boss" of a 
>> junior associate misses the mark.
>> Furthermore, nothing in the President's remarks can in good faith be 
>> construed as an instruction to a subordinate DoJ lawyer (and if it 
>> could be, then at that point the President might be out of line).  
>> For Smith to hold Kaervang responsible for anything that the 
>> President says - much less for presidential remarks which were 
>> clearly *political* in nature - is misguided in a way that is 
>> institutionally problematic.
>> That's why, I think, the various suggestions that Holder should have 
>> refused to respond to Smith's order (or, to respond by reminding 
>> Smith of DoJ's independence from the President) were sound.  Pity 
>> Holder didn't feel the same way; by coughing up the letter, he 
>> compounded the institutional blurring.
>> Steven Lichtman
>> Shippensburg University
>> ________________________
>> Dr. Steven Lichtman
>> Associate Professor of Political Science and Pre-Law Advisor
>> Shippensburg University
>> Department of Political Science - Grove Hall 413
>> 1871 Old Main Drive
>> Shippensburg, PA  17257
>> (717) 477-1845

Douglas E. Edlin
Associate Professor
Department of Political Science
Dickinson College
P.O. Box 1773
Carlisle, Pennsylvania 17013

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