Attorney General rejects Constitution

[The Minsky Moment]

Yeah, as I understand it, the OLC is supposed to give their opinion on the legality of some policy or proposal, while the Solicitor General's office is in effect tasked with actually defending the Administration's policy.

Of course, if the OLC gives an opinion that doesn't match what the Administration wants to hear, it can be politically damaging.  I'd say that Hans is implying that in instances when that happened in the Bush Administration, the fact that the OLC disagreed was played up, and that it will be downplayed when it happens in the Obama Administration.  I can't say that I disagree with that implication, but I'm not prepared to completely agree with it yet, either.

OLC reports to the AG.  So the AG is not bound to accept the legal analysis of the OLC, although in most cases, he or she will do so.  Of course, in this particular context -- the constitutionality of a pending bill -- the ultimate call is not made by the OLC or even the AG.  It is made by the President.

The problems regarding the OLC and the AG office in the Bush administration were different from the AG simply disagreeing with an OLC opinion.  Some of the issues arose included:

1)  OLC opinions of very dubious merit concerning interpretation of US statutory and treaty obligations were kept secret in an attempt to conceal that fact that the administration was adopting novel legal positions on issues such as treatment of detained prisoners and wiretapping, and implementing policy on the basis of those positions without that information being made public.  The AG used legal chicanery to hide these memos from FOIA requests, thus concealing the change  in policy from the public, at least until insiders started leaking their contents to the press.

2)  The famous Ashcroft hospital incident - OLC (correctly) noted serious problems with the administrations proposed surveillance program.  The problem here was not the OLC opinion itself.  The problem was that the Acting AG agreed with the OLC analysis.  So the WH Counsel office (Gonzales) did an end run around the entire AG office and ran to Ashcroft's sickbed with Andrew Card, trying to bulldoze Ashcroft into overturning the Acting AG's call.  Ashcroft, to his credit, backed Comey.  Gonzo then went to the President, but Bush backed down when Ashcroft, Comey and a couple other senior DOJ guys threatened to resign.  The scandal in this episode was not that the AG disagreed with the OLC initial assessment (in fact that AG agreed).  The scandal was that Gonzales acted in a highly inappropriate manner.

3)  In the early part of the Bush administration, a number of very questionable OLC memos were written by John Yoo, who had close ties to the VP's office, and then rubber stamped by the then-head of the OLC.   These included the original, infamous "torture memo".  Yoo was eventually passed over for the head OLC job and left, and several years later, the OLC chief took the unsual step of formally repudiating a number of these opinions.  Thus, the accusation is that at  least in the 2001-2003 time period, undue political pressure and influence was being placed on OLC legal evaluations.

There are a number of other bad things that happened with the AG's office in the Bush years, but these are the incidents I can recall that involved OLC in some way.  None of them relate to the issue raised by the Holder action here - which is simply - can the Attorney General of the United States adopt a legal interpretation that differs from the recommendation of his subordinates?  Simply to ask the question is to answer it.

[The Minsky Moment]

[Granted, I can't see how anyone can actually read the Constitution and come to the conclusion that something that isn't a state can have voting representation in Congress.

The constitutional argument is based on the plenary power inherent in the Seat of Government clause.

[Neil]

From Hans?

Cut him some slack.  He had to deal with 8 years of over the top claims about teh Boosh & Ashcroft tearing up the constitution.

Indeed.  Turnaround is fair play.

[Hansmeister]

It's funny, yet predictable, how JR defends Holder's indefensible political position while lashing out at Bush for actually sticking with precedence on a matter of national security.

[Fireblade]

You irrelephants are so funny.

[The Minsky Moment]

It's funny, yet predictable, how JR defends Holder's indefensible political position

As of yet, I have made no statement regarding the merits of Holder's alleged position (in fact Holder has stated none so I would have to guess were I to do that). I've only commented on the fact that he is not obligated to accept the recommendations of his subordinates in all cases.