"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.
Holder also went against the OLC in dropping the charges against Ted Stevens. Looks like they're keeping a fine balance between partisanship and non at the new DOJ.
Andy McCarthy's a radical right-winger who has, among other things, suggested that Bill Ayers wrote Obama's memoirs. I'm shocked and disappointed that this site would even give him the time of day, much less devote an entire article to his bizarre partisan ramblings.
Ambinder doesn't know what he's talking about, which is becoming more and more common.
Some errors, which I don't doubt Ambinder will decline to correct, since he doesn't care whether he's right, only whether he's impressing:
--The concerns about the OLC opinions in the Bush administration don't arise because Yoo was a "junior lawyer." Yoo isn't and wasn't inexperienced--he's written articles with Goldsmith, for example, and is and was a tenured law professor, not a fresh-scrubbed law grad. Yoo wasn't 'little-known'--he was and is a prominent constitutional law scholar.
--The Bush administration OLC opinions didn't involve issues not subject to judicial and congressional review. Just didn't. What effect that review could have is another question, and if I'm reading Ambinder correctly, he's saying he agrees with the memos, and that's the problem with them, which is just incoherent.
--The Bush White House never--never--ignored the opinion of Goldsmith, and never went around him to a junior OLC lawyer. (Just for clarification: Yoo didn't work under Goldsmith.) Goldsmith was successful in forcing changes in the NSA program which was the subject of the discussions in the famous hospital incident.
--The hospital incident: Ashcroft wasn't critically ill, and wasn't "manifestly incapable of making a rational decision."
Ambinder doesn't do much better with the conclusion. No, Holder isn't bound to accept OLC's views as gospel. Just as the Bush administration wasn't bound to accept Goldsmith's OLC's views as gospel. Ambinder can't even keep to the same line within a few paragraphs. As for the suggestion that this isn't a big deal, because the other two branches will weigh in: no, that doesn't help. This is a much more important topic than the memos Yoo prepared. This goes to the balance of power in our Congress--to the functioning of our republican form of government. There will be votes decided, laws passed, criminal sentences imposed, wars approved, all by a House of Representatives that the Obama OLC has concluded is illegally constituted. Why? To lock in a temporary partisan advantage. And, no, Marc, it isn't clear that anyone will have standing in the courts to challenge this outrage.
@ handlethetruth -
You are right on a lot of your points, but I don't agree that this is "a much more important topic than the memos Yoo prepared." The Yoo memos went to the heart of what the government can do vis-a-vis the public and were, in many ways, a power grab by the executive. Any legal challenge would be years off. The DC voting bill, by contrast, is something that the courts can hear pretty much immediately (esp. if they include a fast track provision in the legislation, like they did with McCain-Feingold).
More importantly, the posture here is entirely different. The AG (through the solicitor general) is generally required to argue in behalf of legislation enacted by Congress when it comes up before the courts. That OLC says it is unconstitutional doesn't really change that obligation. Thinking maybe this was one of the exceptions where DOJ stays out of it, Holder went to the SG and asked if she could defend the legislation. She said yes. So, the DOJ goes ahead with the normal practice of arguing the government's position, as set through validly-enacted law.
The Yoo memos, on the other hand, were not in response to pending court cases where the DOJ had to defend decisions made by Congress. Instead, Bush went to the OLC and said, "write me something saying I can do this." In those sorts of instances, OLC is supposed to basically provide advisory opinions based on the state of the law, not provide arguments to defend legislation, etc.
http://www.below-the-fold.com/index/2009/04/marc-ambinder-doesnt-know-what-the-political-conflicts-of-the-day-are-about/
NYC_Charles, it isn't clear that anyone would have standing to challenge the law. So, yes, it's possible that the courts could hear a case, but it's possible that no one will have standing to argue the merits.
More importantly, there simply isn't much that's more significant than the structure and operation of our government. I mean, yes, the issues involved in the Yoo memos were and are important, but not more important than the composition of congress. How can you worry about the powers of the executive vis a vis the other branches, and not worry about how the congress is composed? (How can you mention the presumptions of validly enacted law when you don't care about the steps leading to valid enactment?)
It isn't the case that the SG always argues for the constitutionality, and even if it were, there is a separate question of whether the president can fulfill his constitutional obligations if he signs a law the purpose and effect of which is unconstitutional. He can't. And saying that there's a non-frivolous argument that can be made on behalf of a law just isn't the same thing as saying it is constitutional.
handlethetruth comments that the Bush Administration never overruled an OLC opinion, and that was my impression too. Didn't the head of OLC agree with John Yoo on his memo? (though other OLC subordinates disagreed with Yoo). Mr. Ambinder, could you tell us of an occasion when the OLC was overruled by the attorney-general?
Note that the Ashcroft hospital visit is most certainly *not* an example, because the AG and the President decided to go with the OLC in the end. It's interesting to compare that with the Holder override, since the mere *attempt* to persuade Ashcroft to override OLC started a barrage of criticism and made people threaten to resign. In Holder's case it wasn't an attempt; it was a casual override combined with an insult to the OLC (Holder saying he had consulted other Justice Dept. and academic advisors instead of relying on the official advisor, the OLC).
But back to the question. Was there ever in history an override of the OLC by an attorney-general before Holder? There may well have been, perhaps back in the Nixon Administration but I haven't seen one mentioned.