Still More on the OLC Opinion Re: D.C. Voting Rights:

In another follow up story, the Washington Post provides more detail about Attorney General Eric Holder's decision to seek a second opinion after learning that OLC concluded that the D.C. representation legislation is unconstitutional.

After receiving a legal memo that declared the pending D.C. voting rights bill unconstitutional, Attorney General Eric H. Holder Jr. reached out to another lawyer on whose judgment he had relied for years.

Holder contacted Deputy Solicitor General Neal K. Katyal, who served as one of his advisers in the Justice Department during the Clinton era. Katyal gave Holder, who said he had already decided that the bill passed muster, an informal view that the measure could be defended in court if Congress passed it and the president signed it. . . .

As attorney general, Holder has broad authority to make judgments about the law and to reject conclusions from the department's Office of Legal Counsel, an elite team of lawyers who often have the final word on legal issues in the executive branch. Overriding an OLC ruling is rare, former Justice Department officials said.

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.

The story also reports on the brewing controversy over whether the Justice Department should release the OLC opinion Holder overuled.
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.

Aides to the attorney general said they have no specific plans to draft a new opinion on the bill, which could change yet again as it awaits passage by the House.

Given that OLC nominee Dawn Johnsen and other administration officials have argued that OLC should err on the side of disclosing all formal OLC opinions, some argue that the Justice Department should release the OLC memo at issue here. As much as I would like to see the document, it is not clear that the principle advocated by Johnsen and others applies in this case. It is one thing to demand the disclosure of documents that represent the Justice Department's definitive constitutional interpretations, binding on the executive branch. It is quite another to demand working drafts and internal memoranda articulating arguments and positions that are never adopted. So, for instance, while OLC has recently released quite a few Bush Administration opinions on various questions, it has not been releasing various drafts of opinions that were never adopted as the Department's official legal position.

Speaking of Dawn Johnsen, her nomination has received significant opposition, and she may have to wait several more weeks for a Senate vote on her confirmation. This is unfortunate. While I am quite certain I disagree with Professor Johnsen on a wide range of issues, I see no reason to oppose her confirmation. In my opinion, some critics of her nomination have focused on the wrong questions -- whether or not she is too "liberal" or too critical of the Bush Administration -- instead of whether has the necessary qualifications and temperament necessary to "provide an accurate and honest appraisal of applicable law" as her position would require. So even assuming, for the sake of argument, that some of the positions Professor Johnsen advocated as a NARAL attorney or academic are extreme or unwise, this does not make her unfit for the job. Just because she argued something in a brief does not mean she would advance the same argument at OLC. Based on what I have heard from those who worked with her at OLC in the past, I believe she understands the difference between the role of a legal advocate and an OLC attorney. Indeed, I suspect that, whatever her personal views of the subject, the OLC memorandum on D.C. voting representation would have reached the same conclusion were she in charge of the office.