Posted by Jonathan Adler:
Holder vs. OLC:
http://volokh.com/archives/archive_2009_03_29-2009_04_04.shtml#1238630375
The Washington Post [1]story linked by Orin below, if accurate,
suggests that the new Administration has not ended the politicization
of the Department of Justice. According to the Post account, Holder
sought to circumvent an unfavorable OLC opinion by seeking a more
favorable answer to a different question from elsewhere in the
department. Asking the Solicitor General's office whether a statute's
constitutionality can be defended in court is not the same thing as
asking whether a statute is, itself, constitutional.
Holder may wish to (re)read the recent white paper on the proper role
of the OLC, [2]Principles to Guide the Office of Legal Counsel,
drafted by AAG for OLC nominee Dawn Johnsen and endorsed by nineteen
former OLC attorneys. This paper explained the nature of the legal
advice that OLC should provide, distinguishing it from the sort of
advocacy advice Holder sought.
When providing legal advice to guide contemplated executive branch
action, OLC should provide an accurate and honest appraisal of
applicable law, even if that advice will constrain the
administration�s pursuit of desired policies. The advocacy model of
lawyering, in which lawyers craft merely plausible legal arguments
to support their clients� desired actions, inadequately promotes
the President�s constitutional obligation to ensure the legality of
executive action.
As Attorney General, Holder's first obligation is to uphold the law of
the land, even when politically inconvenient. Based upon the Post
account, Holder did not like the result produced by an "accurate and
honest appraisal of applicable law," so he sought out assurance that
"plausible legal arguments" -- not the best legal arguments --
supported his predetermined position. To overrule OLC on the merits is
one thing. To seek out a fig leaf of support for such a move, as
Holder reportedly did, is quite another.
Holder was among those who criticized the Bush Administration for
politicizing the Justice Department and undermining OLC. Before his
confirmation, he promised things would be different on his watch.
Perhaps they will be, but not yet.
References
1.
http://www.washingtonpost.com/wp-dyn/content/article/2009/03/31/AR2009033104426_pf.html
2. http://www.acslaw.org/files/Microsoft%20Word%20-%2011_Johnsen_OLC.pdf
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