Holder's OLC = Bush's OLC?


"Attorney General Eric Holder has simply taken the job of politicizing DOJ to reflect the Democrats' partisan agenda into his own hands," writes National Review's Andy McCarthy, an ex-prosecutor. He's referring to a muckracking Washington Post story about the Justice Department's Office of Legal Counsel and its draft opinion that the D.C. voting rights bill in Congress doesn't pass constitutional muster. The Post reports that Holder, upon taking receipt of the OLC opinion, asked for other opinions and found that his solicitor general would be able to fix an argument for an eventual three-stage court fight that would end up in the Supreme Court. The Post suggests that Holder's decision "may expose President Obama's Justice Department to some of the same concerns raised by Democrats during George W. Bush's presidency."   

There are, however, some significant differences between the two administration's actions. The allegations in Bush's case revolve around an overreliance on the opinions of junior lawyers within the OLC and the bypassing of formal and informal chains of commands. They involve life and death issues of national security and policies which were not subject to judicial or congressional review. The White House, for example, routinely ignored the opinions of OLC's senior-most lawyer, Jack Goldsmith, on a variety of issues related to terrorism and intelligence collection. The motivation wasn't political in the conventional sense. The White House had a far more expansive view of executive authority than legal conservatives like Goldsmith did and circumvented the chain of command when OLC wouldn't cooperate. The now infamous story of White House officials visiting a critically ill John Ashcroft and begging him to overturn the ruling of his deputies is noxious because it involved the alleged exploitation by the White House of someone who was manifestly incapable of making a rational decision; it had nothing to do with the OLC.  Overall, the objection is that the Bush White House relied on little-known lawyers within the OLC for opinions which conferred upon the executive branch extraordinary Article II powers -- powers for which they could not be held accountable.

Holder just didn't accept the OLC's advice, much in the same way that a company CEO might refuse to accept the recommendation of her general counsel. Though OLC's charge is to provide "authoritative" legal advice to the AG and executive branch, Holder is not bound by law to accept their views as gospel. The AG, after all, is the top law enforcement officer in the land. He's free to disagree with his OLC, although if he does this regularly, career officials there will become demoralized. Did politics play a role here? Of course; in theory, the Department of Justice is supposed to mete out justice formally; in practice, it does so pragmatically. In this case, whatever case the administration makes will be public. It will be challenged in court, and two other branches of government will have had their say.

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Marc Ambinder is an Atlantic contributing editor. He is also a senior contributor at Defense One, a contributing editor at GQ, and a regular contributor at The Week.

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