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D.C. Voting Rights & OLC:

Thursday's Washington Post had a follow up story on the OLC opinion that legislation to provide voting representation for the District of Columbia in the House of Representatives is unconstitutional. According to the story, the OLC opinion was approved by a political appointee, namely Deputy Assistant Attorney General David Barron. The story also notes that Senator John Cornyn (R-TX) sought a copy of the OLC, but was rebuffed on the grounds that it was a preliminary document, and "not the final, formal opinion."

Daryl Herbert (www):
Good luck ever getting a copy of the OLC opinion.

The most transparent, ethical administration ever.
4.3.2009 12:57am
krs:
hope &change...
4.3.2009 1:41am
Chris L:
It's rather rich that while the Obama Justice Department has no qualms about dumping a bunch of its predecessor's OLC national security, detention, and interrogation memos into the public domain, the OLC memo concluding that the D.C. vote legislation is unconstitutional, to the apparent chagrin of Attorney General Holder, can be bottled up. Even more amazing given that the person President Obama has tabbed to head up OLC, Dawn Johnsen, once wrote:

OLC should follow a presumption in favor of timely publication of its written legal opinions. Such disclosure helps to ensure executive branch adherence to the rule of law. . . . Transparency also promotes confidence in the lawfulness of governmental action. Making executive branch law available to the public also adds an important voice to the development of constitutional meaning--in the courts as well as among academics, other commentators, and the public more generally--and a particularly valuable perspective on legal issues regarding which the executive branch possesses relevant expertise. There nonetheless will exist some legal advice that properly should remain confidential, most notably, some advice regarding classified and some other national security matters.
4.3.2009 2:28am
Public_Defender (mail):
Here's another reason why X does not equal Y.

Someone can correct me if I'm wrong, but OLC should generally give advice on what the law is. The President and the SG can decide to try to change the prevailing constitutional interpretation. If the President and SG are wrong, their position will lose in court, so there's a major check on abuse.

If the President and SG were bound by the OLC's constitutional interpretation on the constitutionality of a bill, a conservative president could never sign a bill significantly restricting abortion or ask the Supreme Court to rule that that 14th Amendment does not include even a limited right to abortion. That's just not right.

Seeking to change the interpretation of the Constitution is within the President's prerogatives. By contrast, Bush/Gonzales manipulated OLC's opinions behind the scenes with the specific intent of to give torturers unassailable immunity from legal challenge. That's deceitful, dishonest, and left no check for abuse (other than leaks).
4.3.2009 7:41am
runape (mail):

It's rather rich that while the Obama Justice Department has no qualms about dumping a bunch of its predecessor's OLC national security, detention, and interrogation memos into the public domain, the OLC memo concluding that the D.C. vote legislation is unconstitutional, to the apparent chagrin of Attorney General Holder, can be bottled up.


It seems to be to be perfectly consistent to say (a) OLC should promptly publish its opinions, and (b) OLC won't release opinions that aren't finalized. No one should want a world in which lawyers' drafts are open to scrutiny (whether at OLC or anywhere else). Once they're finished, they should publish.

Of course, if what you're saying is that they are using the "not finished" line as a cover to avoid publishing, that's a different issue; but you should come out and say that directly.
4.3.2009 7:51am
Houston Lawyer:
It doesn't sound like the OLC opinion was a draft. It also doesn't sound like the OLC has changed its opinion. Its opinion is consistent with similar opinions issued since the Johnson administration. It was just an opinion that Holder didn't like.

Holder is a hatchet man whose ethics consist of taking orders from whomever is in charge.
4.3.2009 8:54am
A.S.:
More stupidity by the Ashcroft (Gonzalez/Mukasey) DOJ. If they were smart, they would have used the Holder DOJ excuse: all OLC opinions are "drafts" - always. Never, ever finalize opinions. That way, you can always argue that Congress is not entitled to them - after all, Congress shouldn't have access to unfinished drafts.

Note that this would also have helped with the so-called "torture" OLC memos. They could just have said they were "drafts", and when Holdsmith wanted to change them, he wouldn't have had to withdraw - he could simply have revised the draft. And Bush could simply have told Conyers et al. that they were not entitled to "draft" opinions.
4.3.2009 10:03am
Just an Observer:
Today's Post has yet another followup.

The new nuance in this story is that, according to a DOJ spokesman, Holder himself disagreed with the OLC opinion, and sought Neal Katyal's opinion only as an informal check on his own:


Matthew Miller, a spokesman for Holder, said the OLC took up the issue this year as part of a routine process of examining legislation moving through Congress. Holder read the OLC memo, scrutinized research by other lawyers outside the department, and determined for himself that the measure is constitutional. He later reached out to Katyal not for a formal judgment from the solicitor general's office but rather "as a check on his own thinking . . . with a very smart attorney," Miller said.


Meanwhile, DOJ is sticking by its position not to release Barron's memo:


Justice Department officials said Wednesday that they will not release the memo, because it reflects internal deliberations and is not a "final" or "formal" ruling. But Republican lawyers who have worked at the department said that a signed OLC memo generally is a finalized document.


I'll accept the first point as plausible. The second point, about the OLC memo not being "final," I find fishy.

While I don't buy all the strained comparisons between this incident and the sordid mess in the Bush-era OLC, the lack of transparency here does not look good.
4.3.2009 11:28am
Brian G (mail) (www):
I'd bet dollars to doughnuts that if the NY Times had a copy of this opinion, they would not publish it.
4.3.2009 12:26pm
My Middle Name Is Ralph:

Even more amazing given that the person President Obama has tabbed to head up OLC, Dawn Johnsen, once wrote: . . . .


Johnsen is not yet the head of the OLC. Kind of ironic if Republicans are holding up her confirmation and making noise about filibustering it, but then want to complain about the OLC not following her lead.
4.3.2009 1:19pm
Chris L:
Johnsen is not yet the head of the OLC. Kind of ironic if Republicans are holding up her confirmation and making noise about filibustering it, but then want to complain about the OLC not following her lead.


I don't think that's the argument at all. If anybody is making the argument that it is OLC that is frustrating the release of its opinion as to the unconstitutionality of the D.C. vote legislation, it ain't me. The complaint is not that OLC or the as-yet unconfirmed nominee to head-up OLC have done anything wrong, it's that the Attorney General appears to be making a mockery of the transparency that this Administration was supposed to deliver and is happy to deliver when it comes to many of its predecessor's OLC memoranda.
4.3.2009 2:03pm

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