I Told Ya Eric Holder was a TERRIBLE choice for Attorney General

Simply put, he is a hack.

Politicized Justice Department [Andy McCarthy]

The nomination of hard-left crusader Dawn Johnsen to lead the Justice Department's Office of Legal Counsel, the Department's top legal adviser, is stalled in the Senate. No matter. Attorney General Eric Holder has simply taken the job of politicizing DOJ to reflect the Democrats' partisan agenda into his own hands.

The Washington Post reports this morning that Holder has overruled OLC's objective, well-reasoned, constitutionally rooted opinion that the controversial D.C. voting-rights bill pending in Congress is unconstitutional. OLC's conclusion, if accepted by the attorney general, as is customary, would likely have doomed passage of the measure, which is strongly favored by President Obama and Democrats.

The bill would give the District of Columbia representation in Congress, specifically, one member of the House of Representatives — and, that accomplished, the way would be paved to add two Senate seats down the line. As the District is small and heavily Democrat, this would pull the Congress deeper into Democrat control. But the problem is that the Constitution clearly forbids the scheme. It expressly provides, in Article I, Section 2, "The House of Representatives shall be composed of Members chosen every second Year by the People of the several States." (Emphasis added.) The District of Columbia is not a State. It is thus ineligible for representation in the House. (By the way, Art. I, Sec. 3, similarly provides that senators shall come “from each State, elected by the people thereof.”)

As NR's editors have observed (and as Matt Franck has recounted at NRO's Bench Memos — see this post, which cites to several of his others), the point of creating a non-state district as the seat of the national government was precisely to avoid one state's having too much influence over that government. Times may have changed — the national government is far more consequential now than it was then — but the Constitution hasn't.

It is, moreover, simply preposterous to argue, as supporters of the legislation do, that the Constitution's vesting in Congress of exclusive jurisdiction and rule-making authority over the District empowers it to award the District seats in a federal legislature expressly designed to represent citizens of the states. George Will aptly notes that if "Congress' legislative power trumps the Constitution, . . . Congress could establish religion, abridge freedom of speech and of the press and abolish the right of peaceful assembly in the District." To the contrary, "The grant of exclusive jurisdiction does not permit Congress to do anything that the rest of the Constitution forbids," NRO's editors wrote, "and the rest of the Constitution clearly forbids it to treat D.C. as a state."

None of this means it is a bad thing to want Americans who live in D.C. to have representation in Congress. There are ways of accomplishing that: amendment of the Constitution, the grant of statehood to D.C., or retrocession to Maryland (part of the District having already been ceded back to Virginia). Aside from being legal, those methods would not create the host of problems that would result from the current legislation (e.g., Why only a member of the House but not two in the senate? Why voting rights for D.C. but not Puerto Rico, American Somoa, Guam, and the U.S. Virgin Islands?).

The job of the Justice Department, in any event, is to uphold the Constitution and explain the existing legal terrain so that policy-makers may pursue their preferences within the bounds of the law. That is what OLC does — and what it did here. Holder didn't like the answer because it didn't jibe with his partisan political preference. So in an unusual move, he asked for input from the solicitor general (who usually does not weigh in before there is a legal challenge to an enacted statute in court). The SG's office apparently told Holder it could plausibly defend the D.C. voting-rights legislation. That may be literally true (depending on your definition of "plausible") in the sense that lawyers are trained to argue both sides of any issue; but it doesn't mean the legislation should be defended — the Justice Department is supposed to take the most legally sound position, not any position preferred by the president that may pass the laugh-test.

In the Washington Post article, Ed Whelan is quoted describing Holder's decision as a "blatant abuse" of OLC's purpose. Ed couldn't be more right. Holder told the Senate he was strong enough to stand up to the president if the law called for it. But, as I argued prior to his confirmation, his craven performance as Clinton administration deputy AG showed Holder to be "a classic go-along-to-get-along careerist." Obama and the Democrats want this unconstitutional legislation enacted, and Holder is at their service — and if OLC stands in the way, he'll stampede OLC . . . just like he stampeded the Pardon Office and the U.S. attorney's offices when doing Clinton's bidding so required.


AG Holder’s Political Override of OLC [Ed Whelan]

Let me add to Andy McCarthy’s post about this remarkable lead story in today’s Washington Post, which reports that Attorney General Holder has rejected the legal opinion of the Department’s Office of Legal Counsel that the so-called D.C. voting-rights bill pending in Congress is unconstitutional. According to the article, the new OLC — led by deputies (including very liberal legal academics) selected and appointed by the Obama administration — reached the same conclusion that OLC had reached under the Bush administration two years ago: The bill is unconstitutional. But dissatisfied with this answer, Holder turned to the Solicitor General’s office to ask it the very different question whether it “could defend the legislation if it were challenged after its enactment.”

Holder wasn’t asking the SG’s office for its best view on whether or not the bill was constitutional (a role that belongs to OLC, not to the SG). He was asking it merely whether the position that the bill is constitutional is so beyond the pale, so beyond plausible defense, so legally frivolous, that the SG’s office, under its traditional commitment to defend any Act of Congress for which any reasonable defense can be offered, wouldn’t be able to defend it in court. And based on the virtually meaningless answer from the SG’s office that it could defend the legislation, Holder overrode the OLC opinion.

At his confirmation hearing, Holder promised not to politicize DOJ’s legal positions. As the Post’s article reports:

We don't change OLC opinions simply because a new administration takes over," he said. "The review that we would conduct would be a substantive one and reflect the best opinions of probably the best lawyers in the department as to where the law would be, what their opinions should be. It will not be a political process, it will be one based solely on our interpretation of the law.

From today’s Post story, it appears that on the D.C. voting-rights bill Holder has ignored the “best opinions of probably the best lawyers in the department as to where the law would be, what their opinions should be” and has imposed a “political process” designed to advance his, and the Obama administration’s, policy position in favor of giving D.C. a vote in the House of Representatives.

The Post article quotes me, correctly, as labeling Holder’s decision to override OLC’s advice a “blatant abuse” of OLC. That judgment of mine is based on the narrative above (which the reporter recounted to me). I recognize that OLC exercises authority delegated by the attorney general to give binding legal advice and that Holder, as attorney general, has the ultimate (and rarely exercised) authority to override OLC. But the Post story indicates that he has done so on improper grounds and through improper processes.


Re: AG Holder’s Political Override of OLC [Ed Whelan]


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.