Bench Memos

AG Holder’s Political Override of OLC

Let me add to Andy McCarthy’s post about this remarkable lead story in today’s Washington Post, which reports that Attorney General Holder has rejected the legal opinion of the Department’s Office of Legal Counsel that the so-called D.C. voting rights bill pending in Congress is unconstitutional.  According to the article, the new OLC—led by deputies (including very liberal legal academics) selected and appointed by the Obama Administration—reached the same conclusion that OLC had reached under the Bush Administration two years ago:  the bill is unconstitutional.  But dissatisfied with this answer, Holder turned to the Solicitor General’s office to ask it the very different question whether it “could defend the legislation if it were challenged after its enactment.” 

Holder wasn’t asking the SG’s office for its best view on whether or not the bill was constitutional (a role that belongs to OLC, not to the SG).  He was asking it merely whether the position that the bill is constitutional is so beyond the pale, so beyond plausible defense, so legally frivolous, that the SG’s office, under its traditional commitment to defend any Act of Congress for which any reasonable defense can be offered, wouldn’t be able to defend it in court.  And based on the virtually meaningless answer from the SG’s office that it could defend the legislation, Holder overrode the OLC opinion.

At his confirmation hearing, Holder promised not to politicize DOJ’s legal positions.  As the Post’s article reports:

“We don’t change OLC opinions simply because a new administration takes over,” he said. “The review that we would conduct would be a substantive one and reflect the best opinions of probably the best lawyers in the department as to where the law would be, what their opinions should be. It will not be a political process, it will be one based solely on our interpretation of the law.”

From today’s Post story, it appears that on the D.C. voting rights bill Holder has ignored the “best opinions of probably the best lawyers in the department as to where the law would be, what their opinions should be” and has imposed a “political process” designed to advance his, and the Obama Administration’s, policy position in favor of giving D.C. a vote in the House of Representatives. 

The Post article quotes me, correctly, as labeling Holder’s decision to override OLC’s advice a “blatant abuse” of OLC.  That judgment of mine is based on the narrative above (which the reporter recounted to me).  I recognize that OLC exercises authority delegated by the Attorney General to give binding legal advice and that Holder, as Attorney General, has the ultimate (and rarely exercised) authority to override OLC.  But the Post story indicates that he has done so on improper grounds and through improper processes. 

[Cross-posted on The Corner]

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