I agree with Benjamin Wittes that there is an important, even a vital, distinction between being a lawyer in academia and being a lawyer in government with a client interest. And I talked with Harold Koh about this distinction as part of our wider discussion about how he came to his opinion, as the State Department’s legal advisor, that there were no “hostilities” in Libya for the purposes of engaging the War Powers Resolution. In my piece that ran in Sunday’s New York Times he’s quoted saying “I am changing roles” in the shift from the academy to government.
But here’s the thing: On this very particular and quite controversial matter—the ‘no hostilities’ opinion—Harold is not falling back on the explanation that he is acting as a government attorney. To the contrary: He is saying that this opinion squares with his personal convictions about war powers—and more than that, that there is no inconsistency between his vision of war powers as fleshed out in this opinion and his vision as expressed in his past writings on the subject. At one point, I asked him if he’d be making the case against the need for congressional consent of the Libya operation if he was still outside the government, and the commander in chief was John McCain—and he said yes, his opinion would be the same.
While a debate about the different hats an attorney can wear, inside and outside of government, can be illuminating, I think the focus here belongs on the substance of the particular opinion at issue. I tried to make the case in my piece that a worrisome precedent has been set. I’d be interested in hearing from anyone who thinks otherwise. Here’s the opinion, set forth inHarold’s testimony on June 28th to the Senate Foreign Relations Committee. (See p.4 in particular.)
A few thoughts in response:
First, Starobin’s point is far stronger is one takes his original article to be narrowly about Libya and “hostilities” than it is if one takes it be about Koh’s role in general.