Respecting the Constitution

Back when Barack Obama was first running for president, one argument for his candidacy that resonated with me was that a professor of constitutional law was just the sort of person we needed to clean up the war crimes and other illegalities of the Bush years. What they — and I — forgot is the converse of the dictum on laws and sausages often misattributed to Bismarck, that those who acquire expertise in the workings of the law are rarely those who hold them in great respect. To put it differently, when people spoke of cleaning up the illegal activities of the Bush administration, what they (and I) understood was a retreat into general respect for constitutional principles.

But what a lawyer is likely to mean — and Obama is certainly, above all, an ingenious lawyer — is working to map out the exact limits of the law and the president’s authority, to be sure that illegal is cleanly separated from legal, while no iota of presidential power is given up because of unnecessary scruples about the law.

The president’s legal advisor will inevitably have difficulty fulfilling his duty to warn his client away from encroaching too near on the border of illegality. The task is impossible when the client is himself.

This is not to say that someone who abuses a security clearance to leak secrets — however righteous his motives — does not deserve to be punished. It is the job of the president to defend the law. But Obama has shown enormous willingness to forgive the crimes committed from within the government, though these were horrible violent crimes. People like Snowden and Assange, whose crime is mainly to embarrass his government, are pursued with every legal tool at his disposal.

One of the things I most respected about Obama was his commitment to lowering the temperature on issues that had inflamed passions in Washington and beyond. Even when the right wing rebuffed his overtures, I respected the effort. But on the crucial issue of government secrets he seems to be intentionally driving matters to a fever pitch, asserting powers that he, in principle, might be entitled to, but that his predecessors have generally not dared to wield. The fact that he needs to reach back to a legal tool forged in the panic of WWI and barely touched since would give pause to a man less certain of his own righteousness.

I fear that the opponents of Obama who described him as a megalomaniac narcissist may have had some genuine insight that eluded me.

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