Mark Tushnet thinks the flap over the Attorney General's handling of the OLC opinion on proposed legislation to grant D.C. voting rights is much ado about nothing. Whereas some commentators may have overstated the case, I think Tushnet may be understating it.
Based on what we know, OLC issued a signed opinion reiterating its prior conclusion that the pending legislation is unconstitutional. Presumably this opinion was in response to a request from the Attorney General or someone else. Then, according to most press accounts, Holder sought other opinions, albeit on a slightly different question. Tushnet is correct that the AG may seek advice from whomever he likes, but it is certainly the case that OLC has traditionally been charged with researching these sorts of questions. Further, based upon press reports, and the opinions of former OLC attorneys (e.g. Ed Whelan and John McGinnis), Holder's actions were contrary to established procedures and undermined OLC's traditional role within the Department. Of course, these conclusions are based upon news reports, which may themselves be inaccurate. Thus, I've posted every story I've seen that sheds light on what occurred in this circumstance, and will continue to do so, and repeatedly noted that my conclusions are based upon what has been reported in the press or detailed by OLC alums.
According to Tushnet, there's nothing for the AG to do until a bill lands on the President's desk. I disagree. If OLC is to perform its historic role, it needs time to examine complex legal issues. Thus, it must begin to analyze potentially problematic legislation well before it is enacted. And, in fact, it is quite common for OLC to evaluate proposed legislation before it is enacted. By the same token, if the AG is inclined to overrule an OLC opinion — and if, as Tushnet notes, it is "good practice" for the AG to issue an opinion if he is disregarding or overruling OLC's conclusions — then he better get cracking well before legislation passes both houses of Congress, particularly if we expect such a memo to substantively address the relevant legal issues. In this case, it appears the AG did initiate such an examination, and sought to contain the damage of an unfavorable OLC opinion in what OLC veterans have characterized as a violation of established procedures. Again, this is what the press reports suggest, and Holder's actions here are characterized by former OLC attorneys as untraditional. If Holder's actions were different from what has been reported, then he may have done nothing improper.
I certainly agree with Tushnet that the President is free to disregard the AG's (and OLC's) advice, and that the rejection of an OLC memorandum does not, in itself, constitute a violation of the President's constitutional obligations. I also agree that the President can (and should) give some degree of deference to Congress on close constitutional questions. In this regard, I have little problem with the Dellinger memorandum. But I don't think this is what is at issue here. The question is whether Holder acted to undermine or overrule a signed OLC memorandum in an improper fashion for political reasons. Hence, the primary charge is that Holder is "politicizing the Justice Department," not that he is inducing the President to violate his constitutional obligations. I should also note that this episode resembles Holder's conduct with regard to the Rich and FALN pardons, in which he allegedly bypassed traditional procedures in order to smooth the way for a desired outcome, far more than it does the controversy over OLC's national security memoranda. Indeed, when John Ashcroft was Attorney General, he accepted OLC conclusions that went against administration policy, and backed OLC against the White House. (See, e.g., Angler by Barton Gellman.)
Let me also note another point on which Tushnet and I are in total agreement: There is no implication that OLC did anything untoward or improper in this case. Quite to the contrary, OLC appears to have operated in accord with its traditional obligations. Further, as I have said before, I have no reason to believe that the outcome within OLC would have been any different had Dawn Johnsen been at the helm of OLC.
UPDATE: Mark Tushnet responds in the comments below, and Ed Whelan adds his thoughts on Bench Memos.
For myself, let me just note that the April 1 Post story cites the Justice Department for the proposition that Holder has, in fact, rejected the OLC opinion, a point reiterated (again citing Holder's spokesperson) in the April 2 story. So, unless the Post is misrepresenting the Justice Department, the OLC memo has, in fact, been rejected. Further, the April 3 story reports "Aides to the attorney general said they have no specific plans to draft a new opinion on the bill." So, whatever else may or may not have occurred, it seems fairly clear at this point that Holder a) rejected the conclusion adopted in a signed OLC memo, and b) has not, and has no plans to, issue an opinion explaining the basis for his decision.
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For all we know, the Attorney General is preparing an opinion that he will sign when the question of advising the President is presented to him, and -- again for all we know -- is conducting a full and careful formal review of the legal question. I doubt that "the right way" to act would have been to sit down on the afternoon the OLC memo came to his office and type out a formal opinion disagreeing with it. Or, to use your term, the Attorney General has time to "get cracking," and for all we know, he has already done so. (And, of course, he hasn't "reversed" OLC, whatever that word means in this context.) And nothing the Attorney General has done has displaced OLC's traditional role: OLC has prepared a memorandum giving its opinion, for whatever use the Attorney General and the President make of it.
I don't know if that is right, but it might be. It does seem to me that we do not know, beyond some mushy paraphrases in the Washington Post, precisely what actions Holder has taken, if any.
McGinness's only allegation of Holder acting contrary to established procedures is his failure to produce a written opinion. Whether this is never varying precedent as McGinness asserts without citation or merely good practice as asserted by Tushnet, Tushnet is undoubtedly correct that McGinness's complaint is premature since the bill has not even passed.
Whelan's complaint is similar in alleging Holder should conduct a full and formal review resulting in a written opinion. Whelan asserts that would be the "right way," making it unclear whether he thinks this is an established procedure or merely good practice. Again, the criticism seems premature.
So, I have at least two problems with the Whelan and McGinness criticisms. First, what are these "established procedures?" Are they actual written policies or merely good practice? The amount of criticism of Holder would seem to depend on whether he's violating written Department of Justice procedures or merely not following some sort of tradition. Second, any failure to disagree with/overrule OLC in the "right" way seems premature.
The OLC's own website appears to indicate, quite clearly, that one of its roles is to offer constitutional analysis of pending legislation:
After all, the President isn't bound by what OLC says, and it would certainly make sense for the President to want to get additional input on precisely that question.
In fact, wouldn't Holder arguably be negligent if he failed to seek out such input? And doesn't his personal support for the bill make it all the more reasonable -- perhaps even praiseworthy -- for him to ask for a reality check from the SG's office? Why shouldn't Holder be seen as having engaged in due diligence as opposed to political hackery?
Tushnet, therefore, is wrong as a matter of Obama's campaign promises, as a matter of historical practice, and as a matter of good government practice. Three strikes -- he's out!
But what "official" action has Holder taken? You don't know, and neither do I.
In a follow-up story, the Post said:
Without doubt there is a lack of transparency at DOJ here, but there also has been muddled reporting by the Post. (Your own paraphrase that "Holder has announced that he is going contrary to the OLC" is more muddled still. What the heck does that mean? Where is he "going" and how? Has he issued an opinion of his own, whispered in the president's ear, just formed an opinion within his mind, or merely responded to questions through the spokesman at the DOJ podium?
We do not know.
I like Tushnet; had him for a course in law school (back when he was at Georgetown). But, really, the Obama/Holder defenders here just demonstrate the full glory of their hackdom here.
I mean, Tushnet's argument is that "pending" legislation (which is the legislation that OLC comments upon) only becomes "pending" once it passes both houses? If OLC passes judgement on "pending" legislation that hasn't yet passed both houses, that's irrelevant? Really? A first year law student should be embarrassed by that moronic argument.
Then Tushnet goes on to argue that OLC has done nothing wrong? Really? Who exactly was accusing OLC of doing anything wrong? Nobody. The accusation is that Eric Holder is a partisan hack who doesn't one whit about politicizing the OLC process. But Tushnet doesn't even seem to understand that that's the issue. Apparently hacks of a feather flock together.
I mean, what if Ashcroft and Bush had decided to ignore OLC's conclusion that the warrantless wiretapping was illegal. If Ashcroft and/or Bush had said "Goldsmith has his opinions, but, you know, I think it's legal." Is there any chance that Tushnet would write "There's no legal rule that opinions of the Office of Legal Counsel (his subordinates) are binding on the Attorney General or the President"? Yeah, right.
My only regret in this whole episode is that Marty Lederman isn't blogging at the moment. To see Marty claim his crown as king of the hacks would have been golden to see.
He is still allowing everyone to see the OLC memo, right? Every member of Congress can read it before they vote, right? And Obama can read it before he signs the bill, right? Anyone in the world can read it and then tell their member of Congress to read it, right?
What is the problem?
No. The Justice Department has not released the OLC memo, and the Department says it will not be released, nor are there plans to issue an AG opinion explaining the basis for their opinion.
JHA
I keep coming back to my initial reaction, which was to abhor the lack of transparency. Ironically, as I recall, a few days ago you did not seem as concerned about that because such opinions are not necessarily published as a matter of routine tradition and practice.
But sometimes such opinions are public, and OLC sometimes testifies about its views while Congress considers legislation.
I continue to ask for more facts, and more disclosure.
At this point, everyone knows that the OLC still believes X, but Holder believes not-X. I doubt the OLC wrote a Pelican Brief that nobody else could ever reproduce, in substance, independently. (And the materials for Holder's view are also in the public domain, see Dinh and Starr.) Whelan speculates about some action Holder might have taken, but that was absent from his earlier op ed, and it's still just a guess.
I realize the text of the Constitution is somewhat silent on the issue, but it apportions representation in Congress to States and States only. A Constitutional Amendment was *necessary* to give DC presidential electors.
the ATTORNEY GENERAL needs expert legal counsel on this? Is it not a fundamental maxim every 1L learns expressio unius est exclusio alterius? Is this how far we've come from common sense of even the legal variety?
Now I wonder what possible justification there is for the OLC to write an opinion and not have it made public as a matter of course.
I think that Professor Adler has this exactly right. (BTW, I had a pleasant exchange with Professor Tushnet about this subject today, focused on the significance of the Dellinger memo that he relies on in his post).
I don’t know if there is any established “procedure” that would prevent Holder from seeking alternative points of view after OLC has issued an opinion on the constitutionality of proposed legislation. But it seems pretty silly to pretend that this action by Holder reflects anything other than political dissatisfaction with the answer that OLC provided. If someone wants to suggest that it is perfectly normal for the Attorney General to get a second opinion from the Solicitor General’s office, they should at least provide an example of it actually happening before.
Tushnet’s argument, as I understand it, is based on the premise that, in a close case, the President could properly decide to defer to Congress’s view on the constitutionality of a bill presented to him, even if his own view and/or that of the Justice Department is to the contrary. I think this is plausible (although, as I indicated to Tushnet, I do not believe that it can be derived from the Dellinger memo).
There are a number of reasons, however, why this premise cannot justify Holder’s actions here. First, although it explains why Holder could legitimately want to ensure that the OLC’s opinion fairly characterized the strength of the arguments in favor of the constitutionality of the legislation, it doesn’t explain why Holder would want or need to get an opinion from the SG’s office. Surely OLC could be expected—or explicitly requested-- to address this issue in its memorandum, and it could likewise be expected or asked to consult with the SG’s office as appropriate. It certainly seems like Holder was attempting to create the appearance of conflicting opinions within the Justice Department, rather than simply to ensure that all relevant experts within the Department were included in the process.
Second, the question that was apparently asked of the SG’s office—whether a reasonable argument could be made in defense of the law—is not at all the same thing as asking whether this is a “close case” in which the President might appropriately defer to Congress’s judgment. The standard that the SG applies to decisions whether to defend acts of Congress is very deferential—the SG will defend the law unless there is “overwhelming” authority on the other side.
Third, there is no evidence that Holder’s actions have anything to do with deference to Congress’s judgment. This would be an odd case to defer to Congress on constitutionality in any event because many Members of Congress who support the DC Voting Rights Act have themselves declined to take any firm position on the constitutional question, saying instead that it should be left to the courts to decide.
Fourth, it seems pretty clear that Holder intends to do more than merely advise the President that there is a reasonable argument in favor of the constitutionality of the DC Voting Rights Act. While it is fine for Tushnet to say that we should wait and see what opinion Holder actually issues (what choice do we have), Holder has already stated, through his spokesperson, that he believes that the Act is constitutional notwithstanding the OLC’s opinion. Thus, it is hardly unreasonable to assume that the formal legal opinion to the President will be that the Act is constitutional. If the President is challenged regarding the constitutionality of the Act, he will be able to say that the Justice Department advised him that it was constitutional, just as his predecessor was able to rely on Justice Department opinions as to the legality of actions in the conflict formerly known as the war on terror.
Last and not least, the question of the constitutionality of the DC Voting Rights Act is not, in fact, a close question. I have summarized elsewhere why this is the case. I would take issue even with the SG’s assertion that a reasonable argument could be made in defense of the law. Of course, this is a matter of opinion, as are all legal issues, but I agree with Professor Jonathan Turley, who describes this legislation as “one of most premeditated unconstitutional acts by Congress in decades.”
I'm curious: Given that I am more or less defending Holder here, does that make me a hack for the Obama Administration, too? Having been tagged a "leading apologist for radical and lawless Bush policies" by Glenn Greenwald, I think it would be sort of neat to be able to pull off the same trick for Obama.
By delegation from the Attorney General, the Assistant Attorney General in charge of the Office of Legal Counsel provides authoritative legal advice to the President and all the Executive Branch agencies.
The Office drafts legal opinions of the Attorney General and also provides its own written opinions and oral advice in response to requests from the Counsel to the President, the various agencies of the Executive Branch, and offices within the Department.
Is that a deliberate straw man or a misunderstanding? Who is criticizing OLC? I agree with its ultimate conclusion that the DC vote legislation is unconstitutional. I think the Attorney General is the one rightfully being subject to criticism for reportedly overruling OLC on this issue because it doesn't comport with his political preferences and refusing a request to disclose its written opinion.
That said, those who are complaining about this matter seem to think that the OLC is some kind of janissary corps -- that its role is immutable and that it exists independently of the rest of Justice. That hardly seems to me to be the case.
If the Attorney General acted contrary to "established procedures" and the OLC's "traditional role," as long as his actions were lawful, then so what? As a society, one of America's strengths is that tradition is not sacrosanct. Change can be a Good Thing, particularly when it involves circumventing bureaucracy.
And the legal eagles who think the DC voting plan is unconstitutional can scarcely claim to have been blindsided this debate, or to have been deprived of time to make constitutional arguments.
In short: this seems to me to be yet another iteration of partisan bickering. Democrats like enfranchising DC; Republicans like disenfranchising it. Fair enough. But let's not pretend that this is a particularly noble or exigent stance of opposition. It's business as usual.
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Neat trick perhaps. Unless someone figures out that your true goal is simply to defend outrageous, lawless behavior, regardless of the the party committing such behavior. Which seems to me to be the only logical conclusion one could draw.
If they are complaining, it is because they were trained to do so during the last years of the Bush admin. We heard so many things about the glorious OLC and how Bush was thwarting their great work. Now when Obama is in power, it turns out they just write some advice and Obama can do whatever without regard.
Funny that :)
Not so fast. What the April 3 story actually says: "Aides to the attorney general said they have no specific plans to draft a new opinion on the bill, which could change yet again as it awaits passage by the House." (emphasis added).
The clear import is that a new opinion may be forthcoming once the bill is finalized.
Speculative though that is, at least it is a hypothesis that can be tested by further inquiry. (I find Whelan's point here much more interesting than the phony analogy to war-on-terror controversies that he was flogging earlier.)
Who will make such an inquiry? Is the DOJ press corps (other than the Washington Post, which Whelan cites as his only source) pursuing such questions?
Or will anyone in Congress with oversight over DOJ, or an interest in the pending legislation, press the matter?
Senate Judiciary is an obvious oversight venue, but the bill has already passed the Senate with the support of the chairman and ranking member (not to mention senior conservative Orrin Hatch). At least John Cornyn -- whom I often dismiss as a knee-jerk partisan who adds little substantive value to discussions -- has focused on the transparency issue by asking that the OLC opinion be released. And in the Senate, the bill was actually reported by Homeland Security and Governmental Affairs.
In the House, controlled by partisan Democrats, I rather doubt that the leaders will underwrite any move that would embarrass Holder or cut against the D.C. vote bill.
Someone should ask Holder to testify about this. Who knows? Perhaps he would present a nuanced position that preserves OLC's independence but still manages personally to straddle the merits by supporting passage of the bill and eventual judicial review. If the AG did that -- and did it openly -- I think his actions would be more defensible.
Holder exalted from on high during his confirmation hearing about needing an apolitical justice department - a direct swipe at the previous administration. That is inarguable.
Many of us pointed out at that time that it was quite hypocritical for Mr. Holder to say that given the fact that he went around - if not outright subverted - the normal DOJ/OLC channels for seemingly obvious political reasons on the FALN and Marc Rich pardon issues when he was last in the DOJ.
Mr. Holder then takes office and within a few months takes a "legal" position that overrules 45+ years of the OLC's legal view on an issue that - surprise! - appears to be in his party and the President's political interest. That is what the controversy is about: the AG has a pattern of doing exactly this type of thing when it is in his party or the President's political interest, yet he said this was exactly the kind of thing that he would not do when he was seeking confirmation.
Getting down into the weeds on the inner workings of the OLC or seeking out the history of the handful of times that an AG has overruled an OLC opinion are simply a distraction from the real issue: Mr. Holder has acted in accordance with his track record and contrary to what he said at his confirmation hearing.
By the way, temoc has this right: the controversy, on both sides, is about politics. DC votes Democratic, so you have a bunch of Republican-affiliated commentators saying any bill that would enfranchise DC citizens by giving them Congressional representation is unconstitutional, while you have Democratic-affiliated commentators saying it is not. The other influence here, may be below the surface, is race. DC is overwhelmingly African American. Maybe Holder is uniquely sensitive by efforts of Republicans to deny Congressional representation to a territory that has an African American majority electorate? Maybe Obama is also.
Funny how no one talks about this issue. Kind of proves Holder's point that we are cowards when it comes to race issues.
The problem with the Bush administration is that they had lawyers in the OLC drafting politically charged memos as cover for government action. E.g., the torture memos allowed people accused of torture to essentially blame it on government lawyers who said that what they were doing was ok. This was at the very least unethical, as the point of those memos was to provide an unbiased view of how the law actually works, not to provide a legal shield to those violating the law.
Now it is possible that Holder is essentially forum shopping to find some government lawyer who will write a memo that could be used as cover if Obama is accused of signing an unconstitutional bill into law (not that he needs cover because there is no legal requirement that he veto unconstitutional laws). But it is also possible that he is trying to provide the fullest advise possible.
When you advise a client, there are really two questions that they need the answer to to decide how to act. One is what the likely outcome of pursuing an action might be, that is what the OLC answered - the bill is likely unconstitutional. The other is whether a defense of a particular action will be frivolous, which is what the SG's office answered. Both of these pieces of information are relevant for Obama to decide whether he will sign the bill, and so far, it only appears that Holder was attempting to get answers to both of these questions. I see nothing wrong with that.
Unwarranted power, asserted and exercised without the consent of those governed, as has been said by those better than me, remains unjust and illegitimate, even if it is, in a narrow technical sense, "constutional".
The concerns whether a government official has bent protocol pale compared to the issues of basic, fundamental principle laid bare here. Trust a bunch of lawyers to argue about how many angels can dance on the head of a pin, while ignoring their fundamental obligations as citizens to "form a more perfect Union" by assuring that our Constitution is properly implementing the bedrock first principles underlying our system.
An American sham, and an American shame.
There is an easy remedy to this. Pass a Constitutional amendment.
But that doesn't change the fact that the failure of America to allow ALL of it's people to participate is WRONG!
Apparently, an Amendment won't be passed until Americans are shamed into living up to the true meaning of the basic principles that this country was founded on: Among others, that "All men are created equal", and "Just power derives from the Consent of the Governed."
It's not clear what it will take to get that to happen.
That amendment would have treated DC as a state for Congressional representation purposes. In other words, DC would have received 2 senators. The case for DC getting a rep in the House is overwhelming IMHO. I'm not convinced DC getting 2 senators is fair (and I'm left of center politically). Obviously, there was and is going to be much, much more resistence to an amendment shifting the balance of power in the senate and for which the justness is questionable. Just because that amendment failed, it is no reason to suppose that an amendment giving DC a rep in the House would also fail. The DC voting bill looks blatantly unconstitutional to me. DC deserves representation. The way to go is constitutional amendment.
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