Bench Memos

Re: AG Holder’s Political Override of OLC

Some follow-up comments on Attorney General Eric Holder’s politicized override of OLC’s advice that the pending bill to give D.C. a seat in the House of Representatives is unconstitutional:

1.  The conclusion that the new OLC—led by deputies (including very liberal legal academics) selected and appointed by the Obama Administration—reached is not merely the same conclusion that OLC reached under the Bush Administration two years ago.  It’s been—or, rather, had been, until Holder’s override—the Department of Justice’s consistent position dating back at least as far as Attorney General Robert F. Kennedy in 1963 or so.

2.  Colleagues who served with me in DOJ under Attorney General Ashcroft, who has been wrongly and viciously demonized by the Left, have two reactions:  (a) If Ashcroft had ever done anything remotely similar, it would have generated a full-blown scandal.  (b) Ashcroft would never have done anything remotely similar.

3.  In office for less than two months, Eric Holder has already proven to be the craven political hack that Andy McCarthy warned about.  It’s only going to get worse.

4.  There are grave concerns over whether Dawn Johnsen, the nominee to head OLC, will politicize OLC’s legal advice.  Holder’s shenanigans ought to reinforce the importance of those concerns.

5.  Solicitor General Elena Kagan was not yet in her position when Holder used the SG’s office to pull a cheap end-run around OLC.  But now that she is in office, it’s her institutional responsibility not to let Holder hide behind her office’s virtually meaningless advice.  Let’s see if she lives up to her responsibility.

6.  The Left has vehemently attacked DOJ under the Bush Administration for supposedly “politicizing” advice on national-security matters.  Let’s just assume, for the sake of argument, that the attack is valid (rather than assume that the positions taken by the folks in Bush’s DOJ, whatever dispute there may be over the merits of some of those positions, were adopted by those folks in good faith as their best reading of the law).  At least the Bush DOJ was acting to promote the paramount interest of national security.  By contrast, AG Holder is corrupting DOJ’s legal processes for the petty partisan purpose of giving D.C. a vote in the House.  (Matt Franck reminds us of another attorney general whose corruption elicited Thomas More’s famous line in A Man for All Seasons:  “Why Richard, it profits a man nothing to lose his soul for the whole world … but for Wales?”)

Please don’t tell me that fundamental issues of justice are at stake.  For starters, there are lawful means, as Andy has outlined, of remedying the supposed injustice.  Beyond that, there are offsetting advantages that D.C. residents already enjoy, including three electoral votes and access to the in-state tuition rate (or $10,000 less than the ordinary out-of-state rate) at the more than 2,500 public colleges and universities in the 50 states.  And D.C. residents who don’t like the trade-off are free to relocate.

[Cross-posted on The Corner]

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