Is Obama Really Out of the Loop on the Justice Department’s Defense of Don’t Ask Don’t Tell?

That Press Secretary Robert Gibbs takes Kerry Eleveld’s questions is a statement unto itself; Gibbs would not take her questions so often if he did not want to put the White House on record about LGBT issues. So when Gibbs today fielded one about the Justice Department’s latest DADT court filing in Log Cabin v. United States, it was an opportunity Gibbs latched on to in order to distance Obama from DoJ.

This is a risky tactic by any measure.

Beltway insiders will insist there’s much distance between the Oval Office and Eric Holder’s haunt at DoJ on the mundane operations of the department. But it would be naive to think Justice is filing briefs on such a sensitive subject like DADT — which the White House is clearly treading delicately around, at the risk of offending voters and lawmakers — without consulting with Obama’s top advisers first. But here we have Gibbs insisting exactly that is taking place, with his mild refutation of DoJ’s manipulation of statements made by the Palm Center’s Nathaniel Frank and Aaron Belkin.

Such a move gives cover to Obama. After all, how can anyone blame him for what DoJ is doing without his knowledge? There’s some truth to this argument, for the same reason President George W. Bush was faulted for his erroneous involvement in DoJ business (when it came to hiring attorneys sympathetic to the Bush administration’s agenda). But if the White House gets to take credit for Justice’s wise decisions, like intervening in a school bullying case involving perceived sexual orientation, then it also gets the burden of the criticism attached to DoJ’s utterly stupid actions.

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  • Michael @

    This is ALL a steaming crock of horseshit. Gibbs’ “surprise” is as real as a nine dollar bill.

    Given the justified, widely reported outrage in response to the first DOMA brief [which, like this brief, was topped by the name Tony West because he is head of that division by direct appointment of Obama as a reward for the millions West raised for BO’s election] that led to the boycott of last June’s DNC fundraiser with The Gays which led to the White House tea for The Gays and to Gates first floating the phony “more humane DADT” balloon, NO ONE CAN CONVINCE ME THAT HIS DOJ IS OPERATING INDEPENDENTLY RE ANY GAY RIGHTS-RELATED ACTION.

    Whether or not he genuinely cares about us remains debatable but it is not debatable that he cares about his own continued popularity with us [read: $$$], that the DNC cares, too. Therefore, it is reasonable to believe that he said, after DOMAgate, “NEVER do anything like this again without notifying my office first.”

    And if it WASN’T done with his consent, then he deserves even greater condemnation for hiring a bunch of incompetents.

    And, for the record, this makes four times, count them, FOUR times the ODOJ has defended the constitutionality of DADT since he was sworn in. The first was getting the Supremes to reject the appeal of the lawsuit by DADT dischargee Jim Pietrangelo who was arrested with Dan Choi last month at 1600 Pennsylvania Avenue.


    As for Eleveld’s second question, the opinion of the former law professor POTUS himself on the constitutionality of DADT, he HAS said he thinks it’s constitutional. Last July 13th, in an interview with Anderson Cooper, he declared in response to AC’s question about an Executive Order to freeze discharges:

    “If Congress passes a law that is constitutionally valid, then it’s not appropriate for the executive branch simply to say, we will not enforce a law.”

    Prof. Fierce Advocate knows very well that, regardless of what lower courts have found, a law is NOT technically “constitutionally valid” until the Supremes say it is, and they have YET to rule that way. So that was just another bluff on his part that AC didn’t call him on. [He got away with that a lot during the primaries…like claiming his conception was someone the result of the passions stirred up by the Selma March when, in fact, the Selma March happened five years later; why should he stop now?]

    “Is Obama Really Out of the Loop on the Justice Department’s Defense of Don’t Ask Don’t Tell?”

    Such continuing questions which amount to whether the White House, in fact all of Obama Nation, is the political brothel that it repeatedly shows itself to be have long since turned into some kind of Stockholm Syndrome masochism.

    Out of the blogs and into the streets.

  • tinkerbell

    Politicians mincing words. When will we ever wake up?

    What should we have learned? The Democrats hate us just as much as the Christo/Republicanists…they just hate us to our backs, whereas the religious party hates us to our faces.

    1.5 years into a Democratic Presidency and Congress (that’s all it takes to get legislation passed, so…) and why haven’t we had any equality legislation passed? They want us to be their lap dogs.

    I’m sick and tired of being treated like an 8 year old by Obama and his sick ilk. I could put up with the vomit of Bush just as much as this. We need to hit the streets and speak with non-violent civil disobedience and let these loser politicians go their own way. Clog the works and let the Democrats find another dupe.

  • B

    Guys, calm down. The DoJ acts in part as the government’s lawyer and when the government is sued, it is charged with defending the government. It is possible to believe that DADT is a bad law that is constitutional, so there really is no inconsistency between defending the government in a lawsuit that claims a law is unconstitutional and at the same time trying to get that law repealed.

    Also, the U.S. judicial system is an adversarial one. You can’t have a fair trial if one side is denied the right to put up a defense. That’s what the DoJ is doing – defending a bad law against a claim that it is unconstitutional, which is no different in principle from what a public defender does in defending a criminal.

  • Michael @

    @ B: in addition to conflating civil law with criminal law you are full of crap.

    As Lambda Legal established in response to the gay-smearing brief defending DOMA, there are all kinds of ways to make a token defense, attack standing, etc., but then and now the odious ODOJ went out of its way to push the most homophobic of justifications for DADT.

    Peddle your Kool Aid some place else. The “Eichmann Defense” doesn’t work.

  • InExile

    More in mixed messages from this White House, it’s their specialty.

  • Steve

    @B: “Guys, calm down. The DoJ acts in part as the government’s lawyer and when the government is sued, it is charged with defending the government.”

    The client always has the option of telling the lawyer not to defend the case. The client always has the option to restrict the defenses that the lawyer may present on the clients behalf. And, the client always has the option to hire a different lawyer, even within the same firm, if the lawyer does not follow the clients instructions.

    The decision to defend this case vigorously, was made by the client. The client may choose not to inquire about details, but even that choice is made by the client.

    Politically, the easy way to get something repealed without having to get a repeal act through congress, is to get a court to declare it unconstitutional. They could file a brief that says, essentially, “we know this statute is unconstitutional, but we need a court to say so.” By presenting a thick brief that cites a bunch of already-refuted junk, but which fails to address the actual central issue of the case, they could be doing just that.

  • JD

    Still young and broke, but oh how I long for the day I’ve packed all my stuff, filed and was granted citizenship for someplace else.

    I HATE this countries ass-backward treatment of myself and my fellow community members, while toting being the land of the free and equality for all.
    Fuck America. I hope it falls like Rome.

  • Cam

    Ok, so then by that logic, the White house shouldn’t be blaming the CEO’s of AIG, Goldman Sachs, Lehman Brothers, and GM. Because gee, I guess they didn’t know what was going on in their own companies being done by their own people.

    Don’t forget that the FIRST time the DOJ wrote a brief on this the issue was brought to the attention of the White House. If they gave a crap they would have said something to them then about changing tactics. They didn’t even though they were fully aware of the situation. To claim now that the Head of the Executive branch of govt. doesn’t have anything to do with what is going on in one of his most important agencies….well if the CEO of AIG tried to use that excuse, Obama would have looked at him in disbelief.

  • Lanjier

    It is not true that the DOJ has to defend laws that the president and the DOJ personally believe is unconstitutional. They don’t. No president has to defend a law that violates the law of land — the equal protection clause. Governor Schwarzenegger, who does in fact have a set, refused to defend Prop 8 in court.

    That the DOJ HAS to defend all Federal Law in court is simply incorrect.

  • B

    No. 4 · Michael @ wrote, “@ B: in addition to conflating civil law with criminal law you are full of crap.” You mean you have no point and are thus resorting to lying? While I used a public defender as an example, the same thing is true in a civil case as well (but in a civil case, the state won’t provide you with a lawyer). In either case, it is an adversarial system.
    You don’t have a fair trial if one side says nothing: the plaintiffs aren’t going to say things that help the defense.

  • B

    No. 6 · Steve wrote, “The client always has the option of telling the lawyer not to defend the case.” … since the law was passed, the Justice Department is going to assume that its “client” (e.g., the government) wants the law defended – if not, the law would simply be repealed.

    The DoJ is behaving reasonably in this case – its providing purely legal arguments, not disparaging gays.

    In No. 9, I found Lanjier’s statement that “It is not true that the DOJ has to defend laws that the president and the DOJ personally believe is unconstitutional,” to be rather odd – obviously they believe the DADT law is constitutional and also (based on Obama’s statement) that it is a bad law that should be repealed.

    What’s basically going on is that the DoJ is providing legal arguments as to why the law is constitutional such as that there is a rational basis for Congress’ decision to pass it (e.g., Colin Powell’s 1993 statement in favor of DADT, which shows that Congress based its decision on expert advice). The plaintiffs will argue that it is not constitutional. If the courts find it is constitutional then it is up to Congress to repeal it.

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