Former Bush-era Solicitor General Paul Clement, the only senior Justice official to survive when the U.S. attorneys scandal and related troubles brought down the entire senior echelon of the Gonzales Justice Department, offers an important explanation, via the Associated Press:
President Barack Obama opposes the Pentagon’s “don’t ask, don’t tell” policy on gays in the military, so why are Obama administration lawyers in court fighting to save it? The answer is one that perhaps only a lawyer could love: There is a long tradition that the Justice Department defends laws adopted by Congress and signed by a president, regardless of whether the president in office likes them. This practice cuts across party lines. And it has caused serious heartburn for more than one attorney general.
The tradition flows directly from the president’s constitutional duty to take care that the laws are faithfully executed, says Paul Clement, who served four years in President George W. Bush’s administration as solicitor general, the executive branch’s top lawyer at the Supreme Court. Otherwise, Clement says, the nation would be subjected to “the spectacle of the executive branch defending only laws it likes, with Congress intervening to defend others.”
Of course this perfectly explains the performance of the Justice Department while Mr. Clement was near its helm. For instance, the Justice Department didn’t like the Anti-Torture Statute, but it enforced the statute anyway, which is why so many senior officials of the Bush era were prosecuted and sent to prison for their programmatic endorsement of torture and official cruelty, which are felonies. And, even though the Justice Department did not approve of the Foreign Intelligence Surveillance Act and its felony counts for warrantless surveillance by federal agents, it faithfully implemented the statute, which again explains a slew of very unpleasant prosecutions of senior government officials. A Justice Department that was less scrupulous about the “faithful execution” clause would have written secret memos advancing cockamamie theories about unlimited executive power and then simply ignored the statutes. But of course the Justice Department with which Mr. Clement was associated would never have contemplated such a thing.
Clement’s predecessor as solicitor general in the Bush Justice Department, Ted Olson, flatly disagreed with his assessment. “It would be appropriate for them to say ‘the law has been deemed unconstitutional, we are not going to seek further review of that,'” Olson told ABC News. The principle that the Holder Justice Department is seeking to uphold is not fidelity to the Constitution, but rather legal policy schizophrenia.