Friday Fronts: David Cole on Jack Goldsmith

Although I have no doubt that history will regard the Bush Administration as willfully, consciously, and even self-righteously lawless, I’m sometimes afraid that we will emerge from the nightmare (assuming that we do) without having learned very much what it means to be lawful. Only a very naive observer expects a sovereign executive to “follow the law” as a matter of course. Executives are not only forced to interpret the law at every turn, but they are also in sole possession of information about national affairs that necessarily colors their interpretations. Regardless of presidential devotion to the Constitution, the attempt to legislate the executive’s course of behavior will always be met with structural resistance,

Two weeks ago, I wrote about the impact of Vietnam upon my Boomer generation. This week, I’m reminded of a similar vintage, the unpopularity of Richard Nixon. Of all modern presidents, none is more likely to be judged in psychopathological terms: the man wasn’t “bad” so much as he was “sick.” The feeling that he had acted incompetently – not foolishly so much as beyond his powers – led Congress to try to clarify the margins of executive authority. One might as well, I fear, legislate the path of a particle in a cyclotron. Presidential authority is largely beyond our control because we want it to be.

This isn’t kindergarten. Changing the rules is never as simple or attractive as disregarding them. I think that we need a more grown-up understanding of what we expect from the law.

¶ David Cole on Jack Goldsmith, in the New York Review of Books.