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.