I don't even really know what the Yoo controversy was, and I think this is a pretty big issue!

For what it's worth, the EPPC appears to be a partisan conservative activist group with strong evangelical/Catholic ties. Rick Santorum is one of its principals. This provides context to the critique.

One other point re AG Gonzalez, Yoo, OLC, et al: It is reasonable to argue that they did no real "legal analysis" but only provided the requested legal cover for actions which had already been taken or planned, some of which, like torture, cannot be justified, and were not justified in the Yoo, et al, memos, in any generally accepted professional manner. The Holder-OLC issues are something else. It is in the interest of the torture memo defenders to conflate them.

I repeatedly criticized the "torture memos," so I can't be accused of inconsistency.

And I have also criticized Attorney General Holder's handling of OLC on the unconstitutional D.C. "voting-rights" bill:

Bill Giving D.C. a Congressman Is Unconstitutional
April 1, 2009

A bill that would give residents of Washington, D.C. a Congressman is unconstitutional, lawyers in the Justice Department’s Office of Legal Counsel concluded. But politics overrode law as Attorney General Eric Holder, who has a contempt for constitutional safeguards, ignored their conclusion and decided instead to declare it constitutional. The bill was passed in slightly different versions by both Houses of Congress on largely party-line votes, although differences between the two versions have to be ironed out before it can be signed by Obama, who supports the bill (the Senate added a provision protecting gun-rights in the District to the bill, enraging liberal House leaders).

The OLC lawyers who admitted that the bill is unconstitutional were liberal academics appointed by Obama himself. But not even they could argue with a straight face that it was constitutional. For decades, beginning with Robert F. Kennedy, the Justice Department, like the Congressional Research Service, has admitted that giving the District a Congressman is unconstitutional.

The bill is flagrantly, patently unconstitutional, since it violates the constitutional requirement of Article 1, Section 2 of the Constitution that the “The House of Representatives shall be composed of Members chosen every second Year by the People of the several States.” Washington, D.C. is not a state. The Founding Fathers specifically intended to limit Washington, D.C.’s influence over Congress. The Fourteenth Amendment likewise states that “Representatives shall be apportioned among the several States . . .”

Supporters of the bill argue that the bill is constitutional under the District Clause in Article 1 of the Constitution, which says that Congress has the power of “exclusive Legislation” over the District. They say its language trumps other constitutional provisions. But that argument is frivolous. Allowing grants of power, like the District Clause, to override other provisions of the Constitution, such as the Fourteenth Amendment, is dangerous, since those other provisions also contain crucial civil liberties. Under this logic, Congress could legislatively authorize warrantless searches and seizures in the District, effectively overriding the Fourth Amendment. And it could summarily punish innocent people through “bills of attainder,” which are prohibited in the very same article of the Constitution — Article 1 — as the requirement that only “states” receive Congressman. If that requirement can be overridden by Congress under the District Clause, as bill supporters claim, then why can’t other requirements in the same article, like the ban on bills of attainders?

As George Will has noted, if “Congress’ legislative power trumps the Constitution, . . . Congress could establish religion, abridge freedom of speech and of the press and abolish the right of peaceful assembly in the District.” Obviously, that is not the case, since, as National Review points out, “The grant of exclusive jurisdiction does not permit Congress to do anything that the rest of the Constitution forbids, and the rest of the Constitution clearly forbids it to treat D.C. as a state.”

The courts have always assumed that grants of power to Congress are limited by other constitutional provisions. For example, although the Constitution grants Congress the power to regulate interstate commerce, the courts have struck down as free-speech violations Congressional laws regulating the publishing industry, interstate advertising, the internet, and other forms of interstate commerce, without anyone suggesting that Congress’s power overrides the First Amendment. Similarly, a federal appeals court struck down the Elizabeth Morgan Act as a bill of attainder in 2003, even though it was Congressional legislation regarding the D.C. courts enacted under the District Clause.

Attorney General Holder’s political meddling is a breach of his promise not to politicize DOJ’s legal positions, and to take legal positions based not on “a political process,” but rather “based solely on our interpretation of the law.” (It is also a breach of his oath of office).

But this shouldn’t be a big surprise, coming from an Administration that has routinely broken campaign promises, such as Obama’s promise of a “net spending cut,” which he broke in myriad ways, such as a budget that will increase projected deficits by $4.8 trillion (according to the Congressional Budget Office), and bailouts amounting to $8 trillion (not counting another trillion dollars for the toxic-asset buy-up program and $800 billion for the “stimulus” package, which the Congressional Budget Office says will actually shrink the economy "in the long run").

I do not know whether D.C. representation would be constitutional. I disagree with advocates (from both sides) who argue the point to be "obvious."

I believe the current circumstances -- which include taxation without representation -- are bad.

I am not familiar with the intricacies of tradition and law with respect to the Office of Legal Counsel. I also lack some relevant facts -- for example, who asked the OLC to opine concerning the D.C. representation issue, and why? Some of what has been written about Mr. Holder with respect to the D.C. representation issue raises troubling questions, which should be answered, but none of it -- particularly the portions authored by severe partisans, a number of whom evinced remarkably scant discomfort concerning government lawyering in the era of Alberto Gonzalez, David Addington, Monica Goodling, Bradley Schlozman, Jay Bybee, John Yoo and the like -- settles any question for me, so far.

However much I mught agree with OLC on the constitutional merits of D.C. representation, and decry the lack of transparency of Holder here, I find Whelan partisan posturing pretty bad. The parallels to Yoo's misdeeds are simply not there.

By contrast, David Barron has forthrightly upheld OLC's tradition of nonpolitical independence. Whelan's description of Holder's action is this:

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.

The difference is that Yoo corrupted the OLC opinions themselves by applying such a low standard. (Actually, the standard was even lower, since the Bush administration litigators would not even defend some of Yoo's shoddy theories in court. Instead, they tried to hide from judicial review of the merits.)

Holder doesn't have a good record on civil liberties, either, as I explained earlier at openmarket.org.

Incoming Attorney General Eric Holder Is Hostile to Civil Liberties
by Hans Bader
January 23, 2009 @ 7:51 pm

Eric Holder, Obama’s choice for attorney general, is hostile to civil liberties. He has previously expressed veiled support for using the misnamed “Fairness Doctrine” to squelch “conservative critiques” and “conservative media,” such as Fox News (which Holder believes is anything but “Fair and Balanced,” contrary to its slogan). The “Fairness Doctrine” is designed to shut down conservative Talk Radio.

Holder also has advocated hate-crimes legislation to prosecute people whom state prosecutors refuse to prosecute because of a lack of evidence. To justify broadening federal hate-crimes law, he cited three examples where state prosecutors refused to prosecute, citing a lack of evidence. In each, a federal jury acquitted the accused, finding them not guilty.

Advocates of a broad federal hate-crimes law have pointed to the Duke Lacrosse case as an example of where federal prosecutors should have stepped in and prosecuted the accused players — even though the state prosecution in that case was dropped because the defendants were actually innocent, as North Carolina’s attorney general conceded, and were falsely accused of rape by a woman with a history of violence (including trying to run over someone with her car) and making false accusations. Supporters of federal hate-crimes legislation like Janet Reno view it as a way of getting around constitutional protections against double jeopardy, by allowing reprosecution in federal court of people who have already been found innocent in state court. Civil libertarians like Wendy Kaminer have criticized it for taking advantage of a loophole in constitutional double-jeopardy protections.

Holder has also been criticized by civil libertarians for seeking to undermine the Sixth Amendment right to counsel, and by gun-rights advocates for seeking to eviscerate Second Amendment rights recognized by the Supreme Court.

Holder was also involved in the disgraceful pardon of fugitive millionaire Marc Rich,, whose ex-wife was a major Clinton donor, and the pardons of unrepentant Puerto Rican terrorists.

I wrote earlier about how the federal hate-crimes bill backed by Obama and Congressional leaders would violate constitutional federalism safeguards, and how it would allow people found innocent in state court to be retried in federal court. Supporters of the hate-crimes bill have all sorts of rationalizations for disregarding not-guilty verdicts. Hate-crimes activist Brian Levin, who testified before Congress, claims reprosecutions are needed because local jury pools are biased. NOW Legal Defense Fund told Congress that reprosecutions are appropriate if local prosecutors had “inadequate resources” or were of “questionable effectiveness.”

Given the politically-charged nature of many hate-crimes trials, Kimberly Potter of New York University was probably right when she told Congress back in 1998 that if the federal hate crimes bill is enacted, “the acquittal of [hate-crimes] defendants in state court will frequently trigger demands for federal prosecution.”

The defendants in the Duke lacrosse case, charged with an interracial rape, were vindicated by DNA evidence. But their detractors, such as former John Edwards staffer Amanda Marcotte (who has repeatedly smeared critics of the federal hate crimes bill as being bigots) and radical activist Alton Maddox (who was involved in the Tawana Brawley hate-crime hoax), continue to insist that they were guilty of hate crimes, and that more hate-crimes laws are needed.

For some people, it seems, hate crimes are so terrible that not even innocence should be a defense. Such people eagerly await passage of the federal hate-crimes bill.

Eric Holder's zealous backing of the unconstitutional "D.C. voting rights" bill contrasts sharply with his disinterest in protecting the federal voting rights of members of the U.S. military.

The outcome of a special Congressional election in New York's 20th Congressional District will likely turn on the illegal exclusion of up to 1,000 overseas military ballots, which otherwise would have tipped the race in favor of James Tedisco (R). Tedisco and Scott Murphy (D) are in a dead heat, with 77,225 votes each.

Democrats on the state elections board blocked GOP attempts to allow overseas military voting in the special election. Overseas ballots take weeks to reach voters and be returned unless special measures are taken to speed things up. But the elections officials refused to do anything to speed things up, or mail the ballots out early enough. The result is that perhaps 90 percent of the ballots will be tossed in the trash without ever being counted. (Military ballots are cast mostly for Republican candidates).

The exclusion of these ballots violates a federal law known as UOCAVA, but Holder's Justice Department filed only a "Potemkin Village" lawsuit in response, seeking a brief, cosmetic extension of time for returning the ballots -- an extension that will result in only a handful of the wrongfully-excluded military ballots being counted. The Justice Department could easily have sought and obtained broader, more meaningful relief, as it did on several occasions during the Bush Administration. But it didn't want to, for partisan political reasons.

So much for Obama's campaign promise to defend "the right of every American to vote." (Obama's Justice Department is also not interested in protecting the voting rights of white people denied the right to vote by black political bosses in predominantly-black counties).

This is just one facet of the continuing politicization of the Justice Department, which is now blessing unconstitutional bills that even liberal legal scholars admit violate the plain language of the Constitution.

And it is reflects just one broken promise in a long line of broken promises from Obama. Obama has violated his campaign pledge of a "net spending cut" through an unprecedentedly-large federal budget that will generate $4.8 trillion in increased deficits, a trillion-dollar toxic-asset program, and an $800 billion, economy-shrinking "stimulus" package.

And Obama's promise not to raise taxes in "any form" on anyone making less than $250,000 per year has been broken by his SCHIP excise tax increase and his proposed $2 trillion cap-and-trade carbon tax.

If Ed Whelan is intellectually inconsistent (if not worse) and therefore somehow not suitable for polite company what does that make our Attorney General, the top lawyer in the country? Or our President?

On my personal list of concerns about partisanship and the Constitution, the Attorney General is much higher than a private citizen and commentator.

In fact, the latter don't even have a list.

Holder's actions, if accurately recounted, are troubling. We can debate Whelan or Yoo (as we've had) on other occasions.

he might persuade some reasonable observers that President Obama and his administration possess the potential to be half as bad as President G.W. Bush and his administration

Since Bush and his administration are gone and the "half as bad" Obama Administration has nearly four more years of power to use, that should be of concern.

But those who wish to change the topic at hand probably think otherwise.

Think? Insist.

Sarcastro:

"Ahh, cynically quoting Who lyrics on the internet. Is there any problem it can't solve?"

Well, I quoted the lyrics to "5:15" over on Althouse's blog the other day, and it cured my uncle's goiter.

How is it improper for the AG to ask the SG to provide a memo on how the SG would defend a possibly unconstitutional statute if that statute were to become law?

If Ken Starr and (iirc) Viet Dinh can find this constitutional, why can't the Obama administration?

And the ABA and some other federal judge whose name escapes me.

This episode... fails to meet the standard Holder set for himself at his confirmation hearing.

Yeah, so?

I'm more concerned with Holder not being concerned with facts in the recent dispute over gun trafficking across the Mexican border. He seems unconcerned that the reported "95% of weapons recovered by the Mexican government have a US origin" is false
He even scaled down his claims a bit to "60, 70%, whatever, it doesn't matter", when in fact the reality is more like 16 or 17% when you use the numbers, 29,000 guns seized, 11,000 with serial numbers sent to the ATF and 5,114 verified as having been in the US market.

So far, Sen. Kerry, SOS Hilary Clinton, Bob Shieffer, William Hoover of the ATF and Sen. Feinstein have managed to repeat this 90% as gospel and the media has mostly gone along.

If the AG is unconcerned with facts then I doubt the border checks will yield anything substantial and are just another sham effort at security that will rank right up there with secure Passports.

If Ken Starr and (iirc) Viet Dinh can find this constitutional, why can't the Obama administration?

It -- to be more specific, the OLC, which is tasked with "providing legal advice to the Executive Branch on all constitutional questions and reviewing pending legislation for constitutionality" -- didn't. Isn't that the gravamen of this whole thread?

In the op-ed, Whelan draws an analogy to a republican AG overruling an OLC opinion upholding abortion rights. This is not a good argument. Abortion and D.C. voting rights are simply not comparable. Abortion issues are far more charged and controversial. Also, IMHO, Whelan intentionally selected the most partisan issue imaginable to make Holder's actions appear more extreme.

Also, was I the only one troubled by Whelan's tone? His tone seemed to be a bit too angry for a matter such as this. Fake outrage, I think.

Edward Whelan, president of the Ethics and Public Policy Center, served as principal deputy in OLC from 2001 to 2004.

Ahhhh, yes, the heyday of professionalism and nonpartisanship in the OLC.

Cheers,

"If Mr. Bader continues along his current line of argument and citation long enough, he might persuade some reasonable observers that President Obama and his administration possess the potential to be half as bad as President G.W. Bush and his administration."

Your oeuvre on this site doesn't extend very far beyond partisan jibes, so it must have been an exercise in abstraction to imagine how a "reasonable observer" might react to Mr Bader's argument.

BK:

Did AG Gonzalez ever "overrule" anyone at OLC? Please cite examples and details. Thanks.

1) I am inclined to let the DC bill drama play out and not make too big a deal out of it. The courts will sort it out if it is passed.

One problem that we have seen recently in these types of cases is that the courts, and particularly the Supreme Court, often determine that standing issues preclude a resolution on the merits.

Here, assuming the the gun control issue gets worked out and the D.C. vote legislation makes its way to President Obama's desk, I think it would reflect extremely poorly upon the President to sign into law a bill that his OLC, like its predecessors, has concluded is unconstitutional.

Whelan's example proves why he is wrong. If a conservative president had an OLC opinion saying that a ban on abortion was unconstitutional and an SG opinion saying that they could make a good faith defense of the law, the President would be fully justified in signing the law (setting aside the arguments over the merits, of course).

Yeah, liberal groups would complain just like conservative groups are now, but the liberal groups would be wrong, just like conservative groups are now.

Getting opinions on the constitutionality of a bill is a lot different than intentionally using OLC to create a defense against charges of criminal activity. If the bill becomes law, opponents will have a real opportunity to challenge the law in court. Bush, Yoo, Bybee and others wanted to torture people in private and then remove any check.

Apples, meet oranges.

One problem that we have seen recently in these types of cases is that the courts, and particularly the Supreme Court, often determine that standing issues preclude a resolution on the merits.

I'm a lot less concerned about the constitutional questionability of this bill than I would be with others. Unlike other laws, this one will almost certainly have no practical effect before it is decided by the Supreme Court. The bill provides for a direct appeal to the Supreme Court from a DC court panel and requires expedited consideration. No election for a DC rep would take place before November 2010. If the bill becomes law in the next few months it should be decided well before then. As to standing, wouldn't any member of Congress have standing to challenge the bill (his or her vote is diluted by adding 2 new reps)? I'm sure lots of bill opponents would jump at the chance to be the name plaintiff in such a lawsuit.