Editor's Note: This is an adapted abstract of a NYU School of Law Public Law Research Paper. 

The Department of Justice’s Office of Legal Counsel committed for years to certain principles for the conduct of its legal advisory function, one of which is a commitment to providing the executive a “best view” of the law while nonetheless “facilitating” where possible the executive’s policy objectives. The standard is closely related to a conception of the Office’s standing, developed after Watergate in the Carter Administration, as a source of fully independent legal advice insulated to the maximum extent possible from political and policy pressure. 

This adherence to “best view” has been the source of considerable comment and criticism when the Office has appeared to depart from this standard in supplying the executive with legal positions that may qualify as “reasonable” or “plausible” but fall manifestly short of what scholars and other observers judged to be the best possible reading of the law.

I question this “best view” as a standard that should bind the OLC, or any other senior legal advisers, in advising the executive in specific circumstances: a national security crisis. Specifically, the  best view theory offers  an empirically unsustainable account of how lawyers in fact perform in a crisis setting, while also promoting a theoretically unjustified constraint on the range of legal options that a president’s legal advisers should be expected to offer. 

Instead of the “best view,” White House counsel could embrace an alternative of legal positions grounded in reasonable, good faith readings of the law, subject to thoroughgoing transparency requirements. One consequence of this revised view of crisis lawyering is that it is no longer clear that OLC should have the primary if not decisive role in determining the lead advice that the executive should receive when confronting a critical national security challenge. An alternative decision-making model would assure that OLC views are considered but would allow for a crisis management structure with different leadership on legal issues, including but not limited to the Counsel to the President, and closer, more open dialogue between lawyers and policy makers. 

Thus, the key to the executive checking function is a detailed public accounting of the legal advisory structure established to support the president’s decision-making in crisis and of the substance of the Administration’s formal legal position.

Ultimately, the best view theory is a game design that excludes reasonable, good faith arguments in support of the policymaker’s objectives. The lawyer who employs it has cheated, allowing the prelusory goal – the client’s objective – to direct her choice. She is now playing a different game, the client’s, but has taken herself out of the lawyer’s. She is not playing her own game well.

Yet it is unclear what consideration supports a game design within which reasonable, good faith argument becomes cheating. Perhaps the concern is that there is no true substance to this standard, and that it simply accommodates too many weak positions and opens up too many dubious moves to facilitate the policymaker’s goals. A similar objection can be lodged against a best view when there is genuine disagreement about whether it is best, or best by just a hair, and the disagreement over the legal interpretation seems to mask the true source of the conflict – the policy. 

The very assessment of how lawyers have performed in crisis, whether they have acquitted themselves professionally or have cheated, benefits from accepting the complex interplay of law and policy and the place of reasonable, good faith argument in counseling policymakers in the crisis setting. It is not only more realistic but also more fitting and productive to ask of them that their interpretation of the law be reasonable and developed in good faith, all things considered, and publicly disclosed.

Read the full piece here.