Ed Whelan has a strong column in yesterday’s Washington Post on the Attorney General’s attempt to suppress an Office of Legal Counsel opinion concluding that the pending D.C. “voting rights” bill is unconstitutional. (We share that view.) This is not, as the Post had put it previously, a case of different parts of DOJ having different opinions, but an end-run around the Department’s usual clearance process:
Now, it’s legitimate, if exceedingly rare, for an attorney general to contest OLC’s advice…. But there’s a right way to overrule OLC, and then there’s Holder’s way. The right way would have been for Holder to conduct a full and careful formal review of the legal question. If that review yielded the conclusion that Holder’s position was in fact the best reading of the law…then Holder would sign a written opinion to that effect.
Holder instead adopted a sham review that abused OLC’s institutional role. In particular, the answer he solicited and received from [Deputy Solicitor General] Katyal was virtually meaningless. Holder didn’t ask for Katyal’s best judgment as to whether the D.C. bill was constitutional. He instead asked merely whether his own position that the bill is constitutional was so beyond the pale, so beneath the low level of plausible lawyers’ arguments, so legally frivolous, that the Solicitor General’s office, under its traditional commitment to defend any federal law for which any reasonable defense can be offered, wouldn’t be able to defend it in court.
So much, then, for the executive branch’s duty to uphold and defend the Constitution.
Normally, we would be loathe to demand that an OLC opinion be released, because OLC acts as the government’s counsel and frequently handles privileged and even classified information. But this is not one of those cases: The Office has drafted opinions on this kind of proposal for years and testified before Congress on the matter, and there’s not a whiff of privileged or secret material to this particular issue. Moreover, the issue of the politicization of the DOJ under the Obama Administration is one of great public concern.
So if Attorney General Holder wants to dispel this appearance of a political override, and if he is confident in his position on the D.C. vote bill, he should let the sun shine in. That means releasing the OLC opinion that he found so unconvincing, along with the Office of the Solicitor General’s written views (if any). Only in that way can Holder possibly prove that partisan politics didn’t overcome constitutional judgment.
