The Washington Post 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, 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.
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