This report is troubling. Apparently the Justice Department's Office of Professional Responsibility attempted to look into the actions of lawyers who (apparently) authorized warantless surveillance of certain communications. According to Attorney General Gonzalez, President Bush denied the OPR lawyers the security clearances necessary to pursue the investigation.
The president presumably has ultimate authority on such clearances. And, assuming this investigation has to do with PR issues, rather than violations of federal law (regarding which see In re Lindsey, D.C. Cir. 1998), then as head of the branch of which Justice is a part, the president makes the calls of "the client" and could order OPR to stop. (Opinions vary on the "who is the client" question, but I have always thought that the notion that either "the government" or "the public" is the client of DOJ laywers is unworkable.)
The president does not have the authority to sanction violations of disciplinary rules, however, such as the rule against advising or assisting in unlawful conduct. (Which, I am guessing, might have been what OPR had in mind.) Perhaps the pardon power could be invoked to this end--I am no expert on that--but that is a different issue.
I wonder about the logic behind such a decision. Senator Specter pointed out that other DOJ lawyers have the needed clearances, and I would be surprised if there were a reason OPR lawyers could not be trusted, too. Presumably they can be trusted with sensitive matters, given their internal investigative function. I hope the decision is not based on the notion that because the administration decided to implement the program, therefore advising on it, or assisting in its implementation, was ethical. That reasoning would be unsound.
It will be interesting to see how this issue plays out, when and if we learn the origins of this program.