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A Case Study: Dawn E. Johnsen

By       Message Donald de Fano     Permalink
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The churlish treatment of Dawn E. Johnsen by President Obama and his administration should finally silence the desperate true believers in the Democratic Party who cling to the fantasy that the President is a victim of the unforgiving political reality that passes for government in our nation's capital. The political history of her "nomination" and its death parallel, step for step, the political history of, for example, Obama's support of the "public option" and its demise. In both instances, the President allowed, and occasionally found ways to encourage, a perception that he shared with the progressives in his base a desire to achieve objectives that they felt strongly about. And in both cases, it is obvious in retrospect that he actually worked to thwart those objectives. Assurances made privately to the corporate health industry explain why Obama didn't make even a tepid argument in favor of the already compromised single payer concept called a public option, and his failure to do anything substantive to advance the prospects of his nominee to head the OLC is best understood as a private assurance to the likes of Arlen Specter and Ben Nelson that this articulate, and outspoken law professor would not be afforded the opportunity to embarrass the Washington establishment by formulating legal opinions that were responsive to constitutional law, rather than the demands of her "client" administration.

It must be clear to all by now that any effort to fathom what ideological principles the President holds in his heart is simply irrelevant. Like consummate politicians before him, Obama is at pains to maintain a public image that is incompatible with his political actions.

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Although virtually ignored by the mainstream media, Ms. Johnsen's ill treatment has been covered thoroughly by the best of progressive bloggers, Greenwald, bmaz, Turley, et al, in the usual progressive sites, including, obviously, this one. A quick summary follows:

Almost a year ago, one of the first official actions of the new President was the nomination of Dawn E. Johnsen to the Department of Justice Office of Legal Counsel (OLC), a traditionally little publicized division of Justice designed to provide the President with timely legal opinions in matters that would affect administration policy. Progressives celebrated the nomination because it was a direct rebuke to the previous administration's use of the OLC to provide legal justification for its most egregious constitutional excesses. Scott Horton, a contributor on legal matters to Harper's Magazine, interviewed by Amy Goodman in late January, typified the optimistic spirit:

"There were criminal investigations commenced that were shut down by officials of the Bush administration. I think under Obama, we will see that process run to the end, and I don't think we're going to see an effort by the administration or the White House to interfere with it one way or the other."

From his lips to God's ears, but it was not to be.

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Opinions from Bush's OLC by Messrs. Yoo and Bybee had essentially held that "Commander in Chief" status essentially made Bush a unitary executive who was not subject to the checks and balances of the judicial or legislative branches that apply to other citizens.

Within a month, Greenwald was observing, sardonically, that Johnsen was probably "too good" to be confirmed by the Senate:

"Johnsen expressed outrage over the extremism and lawlessness of the Bush administration not(like most political and media elites) in the last few weeks when doing so was easy and irrelevant, but did so loudly and continuously while those crimes were actually taking place. Her arguments were grounded in one simple belief:that the duty of the OLC is to tell the President when his desired policies are unconstitutional or otherwise illegal. But as a vivid reflection of how perverse Washington culture is, those attributes -- outrage over high-level government extremism and criminality, and a belief in the rule of law -- are apparently disqualifying:"

As the spring of 2009 proceeded, the conflict between President Obama and candidate Obama was becoming apparent. At that time the progressive base was reluctant to force the hand of their attractive young executive, who had inherited such a mess from his predecessor. It was reasonable to interpret Obama's reticence as normal caution in establishing his credentials as the new man in charge. Understandably, he would be slow to open the can of worms that was the illegality of the Bush administration's unconstitutional behavior. It was convenient to imagine a hands off approach that would allow Obama's Justice Department to do its duty while he proceeded, above the fray, with his positive agenda.

But if that is what progressives imagined, it cannot be what the President thought. Obama went out of his way send signals to the Washington establishment that he would not countenance investigations of the previous administration. And he must have known, therefore, that it was not in his political interest to see his own nominee to head the OLC seated. Obama's management of the problem is troubling, not least because it bespeaks a lack of integrity. Rather than work behind the scenes to extricate his nominee with some dignity intact, he chose instead to continue the charade. As recently as early October, progressive were encouraged to believe that the President had no intention of withdrawing her name. Greg Craig, Obama's top attorney in the White House, told the National Law Journal that the administration would not remove Johnsen's nomination. In the same interview, he declared that he had no intention of resigning his own position. Within a month, Craig announced his "resignation," the voluntary nature of which has engendered much discussion, and by Christmas week Ms. Johnsen's name was "returned" to the White House, dropped from a procedural motion that was required if her status as a nominee was to be carried forward to the next year. Thirty unconfirmed nominees were continued in their status; three, including Ms. Johnsen, were not. The descriptive adjective that comes to mind for this political protocol is "sleazy."

The history of administration neglect and spin of Ms. Johnsen's nomination has been thoroughly documented and explicated by bmaz, writing for emptywheel, and should be read in its entirety by anyone who is serious about understanding what happened to her.

Its conclusion:

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"There is a lot of detritus in the wake of the Obama White House duplicity on the Dawn Johnsen nomination. They humiliated Dawn Johnsen by letting her twist in the wind, wasted a year of her life, disrupted the faculty and student body of the Indiana University School of Law and sold out a huge block of liberal and progressive voters who were the very voters and ground organizers carrying Obama to election in the first place.

Barack Obama and Harry Reid owe an explanation to both Dawn Johnsen, and the voters who worked so hard to elect them, as to why they intentionally left Johnsen's critical nomination out in the cold so long, and then killed it outright. The main media in the United States owe their readers the duty to ask the questions and demand answers. That much, at a minimum, is owed to the citizens."

Candidate Obama ran successfully on the slogan, "Change you can believe in." President Obama should have a placard in his office with the legendary quotation of Richard Nixon's Attorney General, John Mitchell: "Watch what we do, not what we say."


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I am a retired boatbuilder with a fascination for political thought. Most of my life I cheerfully described myself as an "eastern establishment, knee jerk, liberal Democrat."

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A Case Study: Dawn E. Johnsen