Published April 5, 2009
Intense controversy has flared in recent years over a previously obscure but high-powered office in the Department of Justice — the Office of Legal Counsel. OLC has traditionally provided the final word to executive branch officials on the meaning of the Constitution and federal statutes. Disputes over whether it faithfully carried out its assigned role in national security matters during the Bush administration have erupted on newspaper front pages. Whatever the merits of those disputes, virtually everyone has agreed that it is imperative that OLC provide high-quality legal advice that is not slanted to advance a president's policy agenda — and that the president and his top advisers respect that advice.
But now it appears that we have an attorney general who is himself running roughshod over OLC.
During Eric Holder's confirmation process, his tenure as deputy attorney general in the Clinton administration sparked serious concerns among senators. In scandals involving Clinton's pardons of Puerto Rican nationalists and fugitive Marc Rich, Holder had violated departmental protocols, ignored the views of victims and law enforcement professionals, colluded with Rich's attorneys, undermined prosecutors and circumvented DOJ's pardon attorney. A congressional investigation in 2002 called his conduct “unconscionable.”
At his recent confirmation hearing, a chastened Holder assured senators that he had learned from the past and was committed to upholding the department's high standards. He specifically promised not to politicize DOJ's legal positions: “We don't change OLC opinions simply because a new administration takes over,” he said. Any review “will not be a political process, it will be one based solely on our interpretation of the law.”
Alas, less than two months into his tenure as attorney general, according to accounts in The Post last week, Holder has abused OLC for partisan political purposes. The facts, admittedly, are somewhat sketchy — largely because Holder isn't complying with President Obama's promise of transparency. But here's what they show.
In the course of its usual task of reviewing pending legislation to identify constitutional problems, OLC determined that the D.C. voting rights bill, which would give the District of Columbia a voting member in the House of Representatives, is unconstitutional. The acting head of OLC, David Barron — a liberal Harvard law professor appointed by Holder — signed an opinion setting forth OLC's conclusion. That conclusion is no surprise, as it has been the Department of Justice's consistent position, under presidents of both parties, at least as far back as Attorney General Robert F. Kennedy in 1963 and as recently as two years ago.
When Holder, a longtime supporter of the voting rights bill, learned of the OLC determination, he acted to override it. He contacted another of his appointees, deputy solicitor general Neal K. Katyal, to ask whether Katyal's office could, under its usual standards, defend the bill in court. Katyal said it could, and Holder then overruled OLC.
Now, it's legitimate, if exceedingly rare, for an attorney general to contest OLC's advice. The office is, after all, exercising the advisory function the attorney general has delegated to it. But there's a right way to overrule OLC, and then there's Holder's way. The right way would have been for Holder to conduct a full and careful formal review of the legal question. If that review yielded the conclusion that Holder's position was in fact the best reading of the law — an extremely unlikely conclusion, in my judgment — then Holder would sign a written opinion to that effect.
Holder instead adopted a sham review that abused OLC's institutional role. In particular, the answer he solicited and received from Katyal was virtually meaningless. Holder didn't ask for Katyal's best judgment as to whether the D.C. bill was constitutional. He instead asked merely whether his own position that the bill is constitutional was so beyond the pale, so beneath the low level of plausible lawyers' arguments, so legally frivolous, that the Solicitor General's office, under its traditional commitment to defend any federal law for which any reasonable defense can be offered, wouldn't be able to defend it in court.
Holder hasn't signed an opinion setting forth his grounds for reversing OLC, and he also refuses to make the OLC opinion available.
To test whether your own politics color your perception of Holder's action, consider this hypothetical: It's 2001, and pro-life Republicans in Congress introduce a bill that would purport to overturn Roe v. Wade by declaring that the unborn are “persons” under the 14th Amendment. The Bush administration official heading OLC issues an opinion, consistent with the longstanding position of the Justice Department, that the bill is unconstitutional. Attorney General John D. Ashcroft consults with a lawyer in the Solicitor General's office, who tells him that the office could defend the bill in court. Ashcroft informs OLC that he is overriding its opinion. Wouldn't there be ample reason to be alarmed that Ashcroft was politicizing DOJ's legal positions? Can you imagine the ensuing scandal?
Of course, Ashcroft never did anything like what Holder has done.
Eleanor Holmes Norton, the nonvoting D.C. delegate to the House who aspires to be its voting representative, has made clear that she regards questions of constitutionality as irrelevant and that she thinks members of the House and Senate do, too. “I don't think members are in the least bit affected in their votes on the question of its constitutionality,” she said just last week. “People vote their politics in the House and in the Senate.”
If true, that's a very sad commentary on Congress. It's even sadder that it appears to apply to our attorney general as well.
— Edward Whelan, president of the Ethics and Public Policy Center, served as principal deputy in OLC from 2001 to 2004. His portfolio did not include national security matters.