The Inevitable Sacking Of The Dawn Johnsen Nomination

There was never any question but that the nomination of Dawn Johnsen to be head of the Department of Justice Office of Legal Counsel would be withdrawn. None. Much to the dismay of progressives everywhere who believe in the principles Professor Johnsen has written and stood for, early on in the Obama Administration it was crystal clear Mr. Obama and his Administration had retreated completely from the what has turned out to be empty rhetoric of his campaign and short term in the Senate.

As dday and Sam Stein have already alerted, Professor Johnsen’s nomination has been withdrawn. I want to focus on a later part of Stein’s piece in the Huffington Post, not to pick on Sam who is a fantastic reporter, but to knock back the bullshit meme that is going to be pervasive in the media:

The withdrawal represents a major blow to progressive groups and civil liberties advocates who had pushed for Johnsen to end up in the office that previously housed, among others, John Yoo, the author of the infamous torture memos under George W. Bush.

But the votes, apparently, weren’t there. Johnsen had the support of Sen Richard Lugar (R-Ind.) but was regarded skeptically by Sen. Ben Nelson (D-Neb.) — primarily for her positions on torture and the investigation of previous administration actions. A filibuster, in the end, was likely sustainable. Faced with this calculus, the White House chose not to appoint Johnsen during Senate recess, which would have circumvented a likely filibuster but would have kept her in the position for less than two years.

In a statement accompanying Johnsen’s letter, White House spokesman Ben LaBolt said her credentials were “exemplary and her commitment to the rule of law has been proven time and again.”

“After years of politicization of the Office during the previous administration, the President believes it is time for the Senate to move beyond politics and allow the Office of Legal Counsel to serve the role it was intended to – to provide impartial legal advice and constitutional analysis to the executive branch,” LaBolt added. “He will work now to identify a replacement and call on the Senate to move swiftly to confirm that nominee in order to achieve those goals.”

It is indeed a serious blow to progressives; but far more than that, it is a serious blow to the country and its desire to bring common sense, morality and the rule of law back to the tattered United States Department of Justice. No division of the DOJ has more symbolized the rot, moral and legal decay brought on by the Bush/Cheney Administration than the OLC where the sick and despicable opinions of John Yoo, Jay Bybee and Steve Bradbury emanated from. This is why Dawn Johnsen was both symbolically and pragmatically so critical and so welcomed. But it was not to be; it was never to be.

But Stein, and the rest of the major media that has had their head in the sand and not been paying attention need to wake up and realize that the failure of the Johnsen nomination is NOT and NEVER WAS about a lack of votes. No, it is completely and unequivocally about the failure of Barack Obama and his Administration to support their own nominee and stand up for the values she proffered which led them to select her in the first place. This is about Obama, not the Senate, not Republicans and not about obstruction. From an earlier post:

If one needed any more confirmation of the stunts Obama and his Administration have been pulling without the strong and principled leadership at the OLC (and there really should be no question after the wholesale adoption of Bush policies on surveillance and torture that are at complete odds with Johnsen’s long-stated beliefs), it came like a ton of bricks with the recent revelation that Obama brazenly used the OLC to retroactively immunize serial and repetitive illegal and unconstitutional violation of Federal wiretapping laws by the FBI and telecom companies.

By the way, we have now seen the OPR Report on the “Torture Memos”; did you know that there has been a parallel OPR investigation going on all along over the OLC illegal warrantless wiretapping memos?? You have to wonder where that report is and how it played into the refusal to support Dawn Johnsen. You also have to wonder why nobody else is asking that question.

I wrote about this previously here and here and demonstrated the point with evidence. Yet no matter what my effort, the point refused to gain traction in the greater media. Will the major media continue to flail with their head in a dark place? You can bet on it.

65 replies
  1. Mary says:

    A-Freakin-Men to it not being about the votes

    And Ben Nelson’s platform is “protect the right of anyone named Bush or Clinton or Obama to torture innocent people” ? That’s why he’d “buck” the administration’s pick? Mr. Corhusker kickback? Yeah – right.

    And all Obama had to do to get around the recess appointment limit would have been to pull a Bradbury – appoint Johnson as Principal Deputy Assistant Attorney General for OLC, then have the current acting resign – and voila! She, like Bradubry, could serve out at least 4years. The Republicans swore over and over it was legal for Bradbury to run the department and issue opinions.

  2. Ishmael says:

    So, the story is that Ben Nelson killed the Johnsen nomination? Just like Joe Lieberman killed Medicare buy-in at 55?

    It’s hard to imagine anyone with any credibility on ethics wanting to go near the job after seeing Obama use Professor Johnsen’s good name, and then let her hang in professional limbo for over a year. But then again that may be the plan.

    • emptywheel says:

      Not on this blog, no.

      The story in this blog is that Obama decided he didn’t want someone strongly supportive of rule of law after all at OLC, so he stalled stalled stalled and then she gave up.


      • Teddy Partridge says:

        Nor did Obama want Professor Johnsen outside the tent the past year-plus, speaking out against his continuation of odious Bush/Cheney OLC-endorsed policies. Now that she’s returned to her regular life, I hope she will resume her calls for the USA to return to the rule of fucking law.

        Very disappointing.

        • bayofarizona says:

          I don’t think she will.Even if she does criticize O, the Village will say she is just upset (you know how those ladies are) about not getting the appointment.

      • medicinecat says:

        Yeah, just like how he didn’t want a public option and stalled and stalled and stalled until he could get a Blue Dog thug to kill it for him.

  3. pdaly says:

    Thanks for the update.

    I wonder what convinced Johnsen to announce now?

    Hoping the timing was all Johnsen’s– that it was her decision to spotlight Obama’s maltreatment of her nomination (and not Obama who asked her to step aside so that he could nominate a conservadem).

    Maybe she can start issuing informal “if I were OLC head” opinions now.
    Hoping she posts here soon (or continues to do so, if she’s here already under a pseudonym…)

    • Peterr says:

      Leaving aside all the DC-related issues, this is the time of year when deans everywhere are trying to figure out next fall’s class schedules. I can easily envision Johnsen getting an email that says “I’m not trying to pressure you, Dawn, but I’ve got a school to run. Do you know if you will be teaching here in the fall or not?”

      She could have put the dean off, telling her “I don’t know — ask the US Senate.” My guess is that after three semesters of saying that, she had to be getting tired of punting. She who waits, waits no more, and can get back to teaching and writing.

      Holder’s loss (and ours) is Maurer’s gain.

    • Mary says:

      I think she’s announcing now bc they are pressuring her to announce now.

      And I think Obama want to clear the decks to put a pro-torture, exec bootlicker that the REpublicans can pretend is a socialist in asap. That way, he can run some cases through fast that get Bush and Cheney the rest of the way off the hook and solidify, going into the 2012 Republican’s-to-Lose race, more power in the Exec and enshrine idiocy as the new standard for the country to salute.

      • Peterr says:

        I’m not so sure, Mary.

        I think this may have been Dawn’s call, at least in part. Given the announcement about Stevens’ retirement, I can easily see her saying “enough.” Last summer they wouldn’t fight for her because they needed to get Sotomayor confirmed. Last fall and winter, they wouldn’t fight for her because they needed to get health care passed. Now Stevens is retiring, and they won’t fight for her until that nominee is confirmed. She’s put her life on hold long enough, and this was the last straw.

        • Teddy Partridge says:

          I think after the Senate came back to work, and the recess ended, and she hadn’t been recess-appointed until the end of 2011, she said, “enough.” And Rahm told her to put it in the Friday news dump, which was almost full already with Stupak and Stevens.

          Haven’t seen Dawn mentioned on Olbermann yet tonight.

        • PJEvans says:

          I think that she figured out they weren’t going to fight for anyone to the left of center: we’re on our own.

        • Gitcheegumee says:

          Wouldn’t that be a kick if she were nominated to replace Stevens?

          I know…but I can dream,can’t I?

        • bobschacht says:

          Your analysis makes a lot of sense to me.
          Maybe she also finally realized that ObamaRahma just isn’t going to fight for her nomination.

          Bob in AZ

        • bmaz says:

          Maybe; but I am not so sure. There are things roiling under the surface at OLC and OPR, and the Lindsay/Rham master plan to destroy due process, which tend to make me believe that even if what you suggest is the case, at best it caused her to ask what was going on and ObamaRahma finally fessed up that it was never going to happen.

        • Larue says:

          If this was her call, it was FORCED on her by the strategy employed from RahmObama.

          Again, their intent NEVER was to have her confirmed, just appointed as appeasement to the progs.

          ORhama are unitary exec privileged driven, and have proven that, IMO.

          And if not proven, Johnson’s case now confirms it.

      • pdaly says:

        That’s a depressing thought, because it suggests Johnsen isn’t acting pro-actively.

        Peterr’s suggestion seems more redeeming–although Johnsen’s silence during this whole charade by Obama ‘n friends is pretty impressive on its own.

  4. JasonLeopold says:

    bmaz, great work on this today and over the past several months and for calling out Obama for refusing to support Johnsen. After all of those recess appointments last month that didn’t include Johnsen it was crystal clear that Obama had no intention of supporting her. I think what is truly disturbing, at least in my mind, is that he renominated her again only to let her twist in the wind. Talk about torture.

    In somewhat related news, the WaPo reports:

    Lawmakers and privacy advocates are stepping up the pressure on the Obama administration to fill the five vacant seats on the Privacy and Civil Liberties Oversight Board, a panel created in 2004 to ensure that executive branch counterterrorism policies protect Americans’ civil liberties.

    • MadDog says:

      The shorter version goes like this:

      Rahmbo: “Boss, I think we ought to use the Fig Leaf Strategy to get rid of our OLC nominee Dawn Johnsen.”

      Obamanator: “I likey. Tell me more!”

      Rahmbo: “We both know she’ll be a real PITA over at the OLC and try to upset our Unitary Executive strategies, so there’s no way we’re even gonna think about giving her a recess appointment. Instead let’s “re-nominate” her, but then have Harry “Hit me again” Reid sit on the nomination again until it “dawns” (chuckle) on her and she quits. That way we can proudly wear our Fig Leaf of re-nomination, all of the onus of quitting will be on her, and none of our sheep supporters will be the wiser.”

      Obamanator: “I likey. Make it so!”

  5. bobschacht says:

    You’re up against the NYT: Obama Nominee for Justice Post Withdraws. Here’s the lead:

    President Barack Obama’s nominee to head the Justice Department’s Office of Legal Counsel has withdrawn her bid for confirmation, after several Republicans objected to her criticism of the Bush administration’s terrorist interrogation policies.

    I think that everyone– Democrat or Republican– who objected to Johnsen’s nomination should be hounded everywhere as a fan of the Inquisition, and be given the nickname, “Torquemada.” Which should also be appropriate for Yoo & Bybee.

    Bob in AZ

    • allan says:

      You’re up against the NYT

      … and the Grey Lady loses. I’ll take bmaz and emptywheel any day.

  6. prostratedragon says:

    “After years of politicization of the Office during the previous administration, the President believes it is time for the Senate to move beyond politics and allow the Office of Legal Counsel to serve the role it was intended to – to provide impartial legal advice and constitutional analysis to the executive branch,” LaBolt added.

    Wow, man. I guess the light is now thought to have been seen somewhere.

    Doesn’t pay to sell these folks short, does it?

  7. Jim White says:

    Thanks, bmaz. I really appreciate your continuing to pound on this story despite the determination of the Beltway types to keep spreading total falsehoods about what is going on.

  8. allan says:

    Clearly, it’s the Republicans’ fault that Obama didn’t give Johnsen a recess appointment.
    Because, sadly, the votes just weren’t there.

  9. Phoenix Woman says:

    Of course the corporate media will ignore this. They’re too busy spinning the Framers of the Constitution as dangerously naive liberals, as opposed to people who knew what it was like to put their lives, fortunes, and sacred honor on the line.

        • john in sacramento says:

          I hope you’re right

          But thinking about how he’s governed so far, look what happens when you remove all specific references and just leave them blank … think: This Week in Unnecessary Censorship. But not funny


          In the […] scandal of […], two distinguished […]  — Attorney General [blank] and Deputy Attorney General […] — put integrity and the Constitution ahead of loyalty to a corrupt President. They refused to do […’s] dirty work, and they refused to obey his order to […]. The deed devolved on […], who executed the unconscionable assignment that has become one of the darkest chapters for the rule of law in American history.

          That act — later ruled … by a Federal court —  is sufficient, by itself, to disqualify […] from this new position to which he has been nominated. The man who […] does not deserve to sit on the Supreme Court of the United States.

          […] should also be rejected by the Senate because he stands for an extremist view of the Constitution and the role of the Supreme Court that would have placed him outside the mainstream of American constitutional jurisprudence in the 1960s, let alone the […]. He opposed the […]. He opposed the […] decision of the Supreme Court the same year. …

          Under the twin pressures of academic rejection and the prospect of Senate rejection, […] subsequently retracted the most neanderthal of these views on civil rights and the first amendment. But his mind-set is no less ominous today.

          […’s] America is a land in which … rogue police could break down citizens’ doors in midnight raids, schoolchildren could not be taught about evolution, … and the doors of the federal courts would be shut on the fingers of millions of citizens for whom the judiciary is often the only protector of the individual rights that are the heart of our democracy.


          We’ll see. Hope you’re right. But his record so far is what troubles me

  10. skdadl says:

    My condolences to y’all, and I feel this in my gut too. Behind the Repub opposition at Johnsen’s SJC hearing, you could sense visceral resentment and fear of her competence, which she wields both against the twisted views of law that took over the last administration and as a woman. Cornyn, Graham, Sessions — she sets them quivering with anger at a whole culture they hate, and that culture is us. And then there’s no-hope Obama. It really is depressin’.

  11. Cynthia Kouril says:

    this just sucks so much

    Not only for Prof. Johnsen’s personal tragedy–which is significant, but because it will make it that much harder to recruit anybody decent for the job after this fiasco.

    Who is going to want to risk taking a hit like this going forward?

    So, the next nominee is probably going to be hand picked by Lindsey Graham. Or maybe they could just cut out all pretense and nominate forking John Yoo

  12. Cynthia Kouril says:


    I’m going to be in a bad mood for weeks now. Condolences to Professor Johnsen, you would have been terrific in the OLC.

  13. browngregbrown says:

    “the principals Professor Johnsen has written and stood for”

    I fink you meant “principles”

  14. JohnLopresti says:

    I am glad the professor has a clarified horizon. If Obama gets two terms, some of the torture onus may dissipate, though buying a prison seems a lame first step. The surveillance state issue is separate; I read somewhere this past week London employs 900,000 cameras, I wonder about the availability of the current dean of UCIrvinelaw. Obama may be incremental, but has a good sense of which end of the field has the goalposts he is trying to reach. I do not see him lessening his commitment to advancing human rights as a prime charter of US government historically, although in the past even liberals have decried the scope of that image as disproportionate. For the first Obama term, it seems to continue to be expunging the legacy hypocrisy that is laborious. JBalkin wrote about senate rules a few days ago there. Congress survived the filibuster during civil rights legislation; survived HUAC. But the Republican party is on a slippery slope trying to fill its constituencies; it even has DLithwick writing tentative praise of SPalin*s new themed entertainment series, with concern about SP*s restricted lexicon.

  15. burnt says:

    I have never understood why Obama nominated Johnsen. You could see what he was about with respect to rule of law when he vowed to filibuster the FISA changes and then did a 180 on it. Given what she published during the administration of Bush the Lesser what was Obama thinking?

    It’s too bad. She’s a woman of principle and one of the smartest people I’ve ever met (my then girlfriend worked with her at NARAL way back in the day).

  16. bobschacht says:

    Well, the upside here is that Johnsen is now free to comment openly on the travesty of the Margolis whitewash of the OLC report. I hope she gets a high profile platform and rips Margolis to shreds, now that she doesn’t have to work with him.

    Bob in AZ

  17. workingclass says:

    Right. Obama doesn’t want someone around telling him he’s not Caesar. Two successive governments, one Republican and one Democratic, have renounced the constitution. When do we admit that its a dead letter?

  18. ratfood says:

    HuffPo helped whip “progressive” support for passage of the Senate HCR package. They are first and foremost Dem Party advocates and will not engage in more than mild criticism of the Obama Administration.

    • scottishlass says:

      That’s what I keep asking. Why didn’t he, when he FINALLY used the recess apppointments for fifteen judges? Didn’t he ask Rham to take care of it?

      • bmaz says:

        Yes, he did ask Rahm to “take care of it” and Rahm did just as Obama asked and made sure Johnsen did not get confirmed.

  19. fwdpost says:

    She has a great background and is not an elitist. Obama abandons principles faster than Bush mashed words, but you can’t blame a Rahm lackey for not wanting an honest lawyer watching the wolf pack.
    If the Obaminator wants to prove me wrong, he can always nominate her for another job – Supreme Court Justice.

  20. spanishinquisition says:

    “No, it is completely and unequivocally about the failure of Barack Obama and his Administration to support their own nominee and stand up for the values she proffered which led them to select her in the first place.”

    I disagree that they picked her for her values. I don’t think they share her values, but they wanted to give the appearance that they did in order to deceive so they put her name up and made sure that Nelson did his duty. It’s just like with the PO that Obama and other Democrats claimed to support while at the same time they worked to kill the PO. Johnsen was an unwitting player in the kabuki theater of the “Kill, Baby, Kill!” administration.

  21. bayville says:

    Well at least the Progs will fight for a liberal Supreme Court Justice.
    Hahaha… just kiddin’. The “Smart” Progs are already in full capitulation form.

    Ultimately, the makeup of the Court is too important to shy away from a fight the administration can win. But we should not delude ourselves that there will be any short-term political benefit from a knockdown-drag out-brawl. It will just be a fundraising boon to a Republican Party that has everything going for it but the money they need to compete everywhere.

  22. Cujo359 says:

    Yet no matter what my effort, the point refused to gain traction in the greater media.

    I share your frustration. It’s frustrating to watch what you love being dismantled before your eyes, and seeing that so few really care.

  23. MikeD says:

    There was never any question but that the nomination of Dawn Johnsen to be head of the Department of Justice Office of Legal Counsel would be withdrawn.

    Never? Like, never? Day of?

    • bmaz says:

      Let’s put it this way, whatever life it ever had was likely long gone within a couple of weeks of Obama’s inauguration.

  24. earlofhuntingdon says:

    I would not say that Ms. Johnsen gave up; there was nothing to give up on. No relationship can survive when the other half wants no part of it. The cold reality is that Obama has long since thrown his cynical Chicago pol’s heart behind secrecy, obfuscation, denial and the expansion of presidential power.

    Having read the Constitution, and taking her and the president’s oaths of offices seriously rather than as the punchline of a joke, Ms. Johnsen would not likely have been supportive of the president’s signature policy – making the Bush and Cheney perversions of executive authority a bipartisan and institutional fait accompli.

    Mr. Obama will shrug off this public exposure of his goal without hesitation. Because the tradmed won’t expose or focus on it. It is a personal disappointment, but a reflection of Ms. Johnsen’s integrity and street smarts, that she walked away so quietly. Any criticism from her will now be put down to the hysteria of a disgruntled employee – a corporate PR tool that has proven wonderfully durable in protecting executives from liability.

  25. Cujo359 says:

    [in reply to earlofhuntingdon @ 60]

    It was hard for me to square the Johnsen nomination with the Obama Administration’s other actions, for the reasons you mention. Johnsen would have been arguing with her bosses the moment she arrived.

    In retrospect, it’s pretty clear Obama kept the nomination going for other reasons, perhaps as some cover from progressives and libertarians, perhaps to keep Johnsen from openly criticizing the Administration’s actions.

    So, you’re right. There was clearly no intent on Obama’s part to have her anywhere near DoJ. The only real question at this point is what the actual motivations were for nominating her in the first place.

  26. Leen says:

    Have you seen this article?
    Dawn Johnsen Wrote Forcefully About Confronting ‘Our Nation’s Past Transgressions’

    “Johnsen wrote in 2008:

    We must avoid any temptation simply to move on. We must instead be honest with ourselves and the world as we condemn our nation’s past transgressions and reject Bush’s corruption of our American ideals. Our constitutional democracy cannot survive with a government shrouded in secrecy, nor can our nation’s honor be restored without full disclosure.”

    Sounds like Johnson really believes that “no one is above the law” horseshit that Obama, Holder, Leahy, Whitehouse and the rest keep repeating to the peasants.

    Those endlessly repeated and hollow words just do not line up with Obama etc agenda to “move forward, next chapter, turn the page, don’t be about vengeance, retribution, no witch hunts” All the ways our leaders try to spin that holding those in the Bush administration accountable for very serious crimes is all about “vengeance” instead of justice and accountability.

    President Lies about blow jobs = impeachment
    President and Co. Lie about WMD intelligence..torture = hundreds of thousands dead, injured, millions displaced

    I can dream. Can you imagine if she were put up for the Supreme Court spot. o.K. deck me bmaz

  27. eblair says:

    Go back and look at Sheldon Whitehouse’s impassioned speech on the Senate floor in favor of a Truth Commission. (I’m on dial up at the moment so cannot easily link to it, but just do a search for “Whitehouse Leahy.) He cries “tell me American’s did not do that!” Go look at the subcommittee hearing where Durbin tells Zelikow that Senators were told that the lives of staffers and family members could be harmed if thhe breathed a word of “any of it to anybody” and that many times he wanted to just call a press conference (“if the American people only knew”). But he didn’t he said because innocent people would be harmed. Were they just talking about torture?? I don’t think so. We know a lot about the torture. I don’t think torture is the “that” that Whitehouse was referring to. I don’t think that torture is what Durbin wanted to call a press conference about. As subhuman and disgusting as torture is, I think that if we knew the full extent of the crimes, torture would seem as minor as a blowjob. Indeed, even in that great speech–and I actually consider it to be one of the greatest speeches in American history (and maybe the last great speech in American history)–Whitehouse hedges a bit and says “as some of this conduct becomes known.” The conduct goes well beyond torture in time and in space. Back through many administrations and outwards to other countries and their intelligence agencies. It is all fine and well to criticize Obama for not wanting a principled person like Johnson in his administration, but let’s not kid ourselves that we as a country or we as progressives are much better. There is rampant denial obviously in the MSM but there is rampant denial also among progressives. Are progressives really ready to face up to “carnival” of state crimes? There are a few of us who think that only a full scale Truth and Reconciliation Commission along the lines of what they had in South Africa can save America’s soul. But we are a minority among progressives. So the difference between Obama and most progressives with respect to facing up to the truth seems to be simply a matter of degree.

  28. robspierre says:

    Unless Obama has it in mind to be inherit the powers Bush claimed and become the American Mussolini, I can’t understand his attitude to punishing the past administration for its crimes. Punishment is both good politics and good policy.

    As politics, punishment would make the Bushistas the Bad Guys of US politics–the ones who wrecked the economy, undermined our security, and attacked our democracy–and thereby tar the Republican Party with an anti-Americanism it couldn’t survive. Punishment would do as much as anything can to insure that no member of the Bush cabal and no Republican fellow traveller could ever have a political future.

    As policy, punishment would set a precedent for the rule of law and save–or even elevate–America’s reputation in the world. An errant US administration’s policies don’t truly become American policy until a successor administration adopts them. By repudiating Bushery now, Obama could do much to advance our position, security, and influence in the world. By embracing Bush’s policies–after defeating them in an election–Obama has given them the strongest endorsement possible. He has made injustice and deceit core components of American policy and tied the hands of Presidents for decades to come.

    What makes it worse is that we made this mistake with Nixon. We had the duty to make an example of him, to show that no one is above the law and that America would never tolerate even a whiff of autocracy. But we went “bipartisan” and looked forward to the “healing”. With the help of Nixon acolytes like Cheyney, autocracy came back with a vengeance, first with Reagan-Bush and then with Bush II.

    History gave us a rare second chance in November 2008, with both the White House and the Congress in opposition hands and the people solidly behind them. And what does the Democrztic Party leadership do? The same thing it did with Nixon. Not because the same thing is smart, right, or anything else. No. They do the same thing merely because it IS the same thing.

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