The President’s Lawyer

[Jefferson23]

** It really was a shame to have lost Craig, in more ways than one.


March 30, 2:37 PM, 2010

By Scott Horton

Last week, Anne Kornblut profiled White House counsel Robert Bauer for the Washington Post, in generally flattering terms:

For Bauer, whose expertise is elections law, health care may be among his easier assignments. He has inherited a vast national security portfolio that has become the core of the counsel’s work since the terrorist attacks of Sept. 11, 2001. His office addresses so many complex and unprecedented international questions — including the legality of capturing or killing terrorists abroad, intervening in cyberattacks, and holding suspects indefinitely — that people who work with Bauer said he now spends as much as half of his time on national security. It’s an abrupt departure for a man who just two years ago was challenging campaign finance regulations and monitoring Texas precincts for Obama.

His biggest burden: where the government should try Khalid Sheik Mohammed, the self-declared mastermind of the 9/11 attacks. Bauer started the job the month after Attorney General Eric H. Holder Jr. announced a civilian trial in New York — a brazen decision that has since been dropped. Now, Bauer is trying to think bigger and consider all Guantanamo detainees and suspected terrorists captured abroad in one proposal, rather than case by case. That “Grand Bargain” may include new legislation, which the White House had previously said it would not seek.

Kornblut doesn’t seem to see anything unusual about a White House counsel who rolls up his sleeves and gets involved in some hairy prosecutorial decisions. Nor does she seem to recognize much of a contrast with his predecessor—other than perhaps one of style.

Today, Huffington Post editor Dan Froomkin digs deeper into the issues that Bauer is facing and offers a more critical take on his game plan. Froomkin’s bottom line: with Greg Craig gone, expect that legal decisions will have far more political content. The dynamics are plain enough. Craig clearly was at cross purposes with chief-of-staff Rahm Emanuel on a number of legal issues, with the President’s commitment to close Guantánamo topping the list. Craig took the campaign pledge seriously and objected to the notion that legal policy questions surrounding the criminal justice system generally and decisions to prosecute individuals in particular could properly be part of the political give-and-take. Emanuel viewed them as a platform for bargaining with Republicans. Craig’s departure and Bauer’s arrival seems to have opened up greater latitude for Emanuel’s discussions with Lindsey Graham. Here’s how Froomkin sets the stage:

remainder in full: http://www.harpers.org/archive/2010/03/hbc-90006803