Last week, the Washington Post reported that Attorney General Eric Holder rejected the advice of the Office of Legal Counsel on the bill to grant D.C. a member of the House of Representatives. (OLC reportedly advised Holder that the proposal would be unconstitutional.) Ever since, the blogosphere has been abuzz with charges of impropriety. John McGinnis’s post on this site is a leading example. McGinnis writes “less than two months after his confirmation the Attorney General has shown that he is not interested in the rule of law when it conflicts with his own political preferences.” Ed Whelan has made similar claims at NRO and in last Sunday’s Washington Post. The charge that Eric Holder has subordinated the Justice Department’s legal interpretations to his own political preferences is a serious one. In fact, if the charge is true, Eric Holder should resign and, if he refuses to do so, President Obama should fire him.
But are the charges true? Not based on anything in the Washington Post story. McGinnis’s charge rests on the following version of events: OLC wrote a legal opinion concluding that the D.C. bill is unconstitutional. Displeased with this result, Attorney General Holder turned to the Solicitor General’s Office and asked whether they would be willing to defend the bill should it be enacted and challenged. The Solicitor General responded affirmatively, and Attorney General Holder took the SG’s position as justification for overruling OLC and concluding that the bill would be constitutional.
If this version of events is accurate, then I agree with McGinnis, Whelan, and Holder’s other critics. The question posed to OLC (is the proposal constitutional) is very different from the one posed to the SG’s Office (is there a colorable legal argument to support the bill’s constitutionality). Before the bill is enacted, the job of the Justice Department is to advise the President of its best view of the bill’s constitutionality, which is the question OLC answered (and which OLC is best situated to answer). This role is designed to assist the President in fulfilling his constitutional obligation to “take care that the laws be faithfully executed.” If the President promotes and signs a bill that is entirely unconstitutional, the President would violate this duty and his constitutional oath. (This is not to say that the President may not sign a bill that contains some unconstitutional provisions among its many salutary and legally valid ones.) After the bill is enacted, the Justice Department’s job is normally to defend the law if there is a defense available under the standards of the legal profession and even if the Solicitor General (and ultimately the Attorney General) do not believe that defense is the best legal interpretation. If Attorney General Holder has intentionally conflated these distinct inquiries, and done so in order to promote his policy preferences over the requirements of law, he obstructs the faithful execution of the laws and is guilty of a fundamental subversion of the rule of law.
The Washington Post story, however, does not support the above version of events. Holder’s spokesperson offered the following satement: “The attorney general weighed the advice of different people inside the department, as well as the opinions of legal scholars, and made his own determination that the D.C. voting rights bill is constitutional…. As the leader of the department, it is his responsibility to make his best independent legal judgment, and he believes that although there are reasonable arguments on both sides of the issue, ultimately the bill would constitutionally grant D.C. residents a right to elect a voting representative in Congress.”
Given this statement it is possible that the Attorney General received views other than those of OLC and the SG’s Office. Even if he did not, the bill’s constitutionality has been the subject of extensive discussion and testimony from leading constitutional scholars. For example, Ken Starr testified and submitted a lengthy analysis of the bill’s constitutionality and concluded that the proposal would be constitutional. His former colleague on the D.C. Circuit, Patricia Wald, joined him in this conclusion. Given these materials and Eric Holder’s own long-standing participation in the question, it is not at all unreasonable to allow that he likely disagreed with OLC on the merits of the question. It is also not at all unreasonable to believe that his disagreement was the result not of politically-motivated manipulation of DOJ’s process of legal interpretation, but rather was the result of Holder’s own considered appraisal of the competing arguments.
But what of the request for the SG’s input? It may well be that the Attorney General concluded that on balance, the Starr-Wald view is the better one. It seems to me perfectly appropriate for the Attorney General, having come to a conclusion contrary to that of his OLC, to check with the SG’s Office. Not because he wants the SG’s Office to overrule OLC (or because he even wants the SG’s Office to participate in the formulation of legal advice) but because the Attorney General wants to make sure that if the President follows the Attorney General’s advice and signs the bill, the President will not later be embarrassed by the SG refusing to defend the law in court. In other words, the request to the SG’s Office may have resulted from caution and an appropriate degree of humility on the AG’s part, rather than from a desire to manipulate the outcome for political purposes.
If the version of events offered by McGinnis and Holder’s other critics is accurate, I would want to be the first person to call for the new Attorney General’s resignation. But the charges are, in the immortal words of Sen. Arlen Specter’s vote on President Clinton’s impeachment, “not proven.” In fact, they are not even the likeliest explanation for what happened.
April 13, 2009 at 2:10 am
[...] EXECUTIVE WATCH A weblog of the Duke Law Program in Public Law « Eric Holder and the Rule of Law [...]
August 2, 2009 at 10:08 pm
[...] she points to the decision by Eric Holder to circumvent OLC and go to the Solicitor General when pursuing D.C. voting rights, several instances in which the AG refused to turn over deliberations and decisions to Congress, [...]