Another member of the Obama Administration’s “beachhead team” is leaving OLC.
About one month after Acting Assistant Attorney General David Barron announced that he was returning to Harvard Law School, Deputy Assistant AG Marty Lederman has announced he’s leaving the Office in August and will return to Georgetown University Law Center this fall.
I understand that Marty has been doing a lot of terrorism-related issues for OLC–particularly matters involving detention of alleged enemy combatants. In addition, he has signed two opinions, one concluding that two criminal prohibitions created by the Matthew Shepard Hate Crimes Prevention Act are constitutional, and one concluding that provisions of the Ronald Reagan Centennial Commission Act of 2009, which provided that members of Congress would serve as members of the Commission, would raise “constitutional problem[s]” under the Appointments Clause, the Ineligiblility Clause, and the separation of powers.
The latter opinion appears to have provided the basis for one of President Obama’s signing statements, in which he said that members of Congress “will be able to participate only in ceremonial or advisory functions” of the Ronald Reagan Centennial Commission, and not “matters involving the administration of the act, in light of the separation of powers and the Appointments and Ineligibility Clauses of the Constitution.”
Marty signed the second-lowest number of opinions among his cohort of DAAGs, edging out only Jonathan Cedarbaum, the new acting head of OLC (who signed only one opinion as DAAG; two if you count his testimony to Congress on the Virgin Islands’ proposed constitution, which is published on OLC’s website). But that is likely only a partial measure of Marty’s output. DAAGs frequently also write opinions that are signed by the AAG or Acting AAG; David Barron signed 9 full-blown opinions by my count, far more than any of the other DAAGs during that time. But it’s impossible to identify from publicly available materials which additional opinions Marty might have written that David Barron signed. UPDATED in response to a comment (5:51pm EDT): And yes, it’s a possibility that Marty signed some classified opinions too, although there are many fewer of those than unclassified opinions.