When I ran across Harvard law professor Mark Tushnet’s blog post complaining about people who “have been writing op eds [sic] and blogging about [Attorney General Holder’s] politicization of the Department of Justice” on the D.C. voting rights bill, I was expecting that Tushnet might express some meaningful disagreement with my blog posts (here and here) or my Washington Post op-ed. Instead, the only one of his scattershot points that might be read to take issue with me is his objection to the assertion that the AG took an action “overruling” the OLC advice. I used the term “overrule” or “overruled” twice in my op-ed, and I used the equivalent term “override” several times in my blog posts and op-ed.

Objecting to the term “overruling,” Tushnet asserts in screaming boldface and all caps that “nothing has happened”—by which he seems to mean that the AG hasn’t done anything with respect to OLC’s opinion. Well, that’s not how the Washington Post (on which I expressly relied) reported Holder’s own account of his action:

Through a spokesman, Holder portrayed the basis for his override of the OLC ruling as grounded in law, not politics.

Tushnet seems, nonetheless, to think that there’s no action that the AG could possibly have taken yet. The facts, admittedly, are unclear, which makes it rather odd that Tushnet maintains that he knows that “nothing has happened.” One obvious possibility is that OLC prepared a bill comment for transmission to the Office of Legislative Affairs and that the AG ordered OLC not to send the bill comment to OLA or ordered OLA not to abide by the advice.