"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.