Posted by Jonathan Adler:
"Holder's Way:"
http://volokh.com/archives/archive_2009_03_29-2009_04_04.shtml#1238866070
Tomorrow's Washington Post will feature an [1]op-ed by former OLC
deputy Edward Whelan strongly criticizing Attorney General Eric Holder
At his recent confirmation hearing, a chastened Holder assured
senators that he had learned from the past and was committed to
upholding the department's high standards. He specifically promised
not to politicize DOJ's legal positions: "We don't change OLC
opinions simply because a new administration takes over," he said.
Any review "will not be a political process, it will be one based
solely on our interpretation of the law."
Alas, less than two months into his tenure as attorney general,
according to accounts in The Post last week, Holder has abused OLC
for partisan political purposes. . . .
it's legitimate, if exceedingly rare, for an attorney general to
contest OLC's advice. The office is, after all, exercising the
advisory function the attorney general has delegated to it. But
there's a right way to overrule OLC, and then there's Holder's way.
The right way would have been for Holder to conduct a full and
careful formal review of the legal question. If that review yielded
the conclusion that Holder's position was in fact the best reading
of the law -- an extremely unlikely conclusion, in my judgment --
then Holder would sign a written opinion to that effect.
Holder instead adopted a sham review that abused OLC's
institutional role. . . .
This episode recalls Holder's conduct regarding the [2]Marc Rich and
FALN pardons when he was Deputy Attorney General, and fails to meet
the standard Holder set for himself at his confirmation hearing.
References
1.
http://www.washingtonpost.com/wp-dyn/content/article/2009/04/03/AR2009040302835_pf.html
2. http://volokh.com/posts/chain_1227491111.shtml
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