Bench Memos

Re: OLC Nominee Dawn Johnsen and Pre-Confirmation Etiquette

Five months ago, I broke the news that Dawn Johnsen, the controversial nominee to head DOJ’s Office of Legal Counsel, had seriously violated the Senate’s understanding of pre-confirmation etiquette—an etiquette that, as I understood it, “is especially punctilious for nominees who have generated controversy”—by involving herself in OLC’s decisions on hiring junior lawyers.  Yesterday, Attorney General Eric Holder confirmed my report (in his response to a question from Senator Sessions; see here, Q. 32), while trying to put an innocent spin on the matter.  Here’s the full Q&A (my italics):

[Q.] According to recent media reports, the President’s nominee for Assistant Attorney General for the Office of Legal Counsel, Professor Dawn E. Johnson, has been involved in hiring decisions for the Office of Legal Counsel. Given that Professor Johnson has not been confirmed, it would be inappropriate for her to participate in hiring decisions. Please advise what role, if any, Professor Johnson has played in the hiring process for prospective nominees, including but not limited to whether she has been consulted in hiring decisions, reviewed resumes or other submissions, interviewed or recommended candidates, or otherwise participated in the process.

Response: The Attorney General (or the Acting Attorney General, before Attorney General Eric Holder was confirmed) has appointed all of the individuals for the political appointee positions in the Office of Legal Counsel, and the Acting Assistant Attorney General for OLC has made all decisions about who to hire for available civil service positions in that Office. Professor Johnsen’s participation in this process has been appropriate and consistent with the past practice of presidential nominees of both parties. Like such other nominees, she was involved in the consideration of candidates for political appointments, such as those persons who would serve as her deputies should she be confirmed. By contrast, with respect to applicants for civil service positions, Professor Johnsen simply forwarded some resumes for attorney positions to the Acting Assistant Attorney General for OLC and occasionally offered her views as to some candidates for those positions who came to her attention and on general attorney staffing issues. Professor Johnsen did not participate in the interviews of any candidates for career positions, nor was she part of the final selection process.

Holder’s effort to minimize the impact of the “views” that Johnsen “occasionally offered” on candidates for OLC positions cannot be taken seriously.  The Acting AAG, who would be her principal deputy if and when she is confirmed, would have ample reason to give her views heavy weight.  More importantly, if my Senate sources are correct that the Senate is particularly insistent on its etiquette for controversial nominees, then the general practice that Holder refers to is not meaningful precedent for Johnsen.