The Bush Administration continues to be subject to enormous criticism for "politicizing" the Justice Department. Whether Bush was more prone to that than previous administrations was not often considered. My guess at the time was: a little more, not a lot more.
The choice of Eric Holder as Attorney General should have been a clue that stopping such "politicization" was not a big priority, so long as Justice gets politicized in the right way. Holder was most famous for bending the law around Bill Clinton's slimy pardons in the last days of that administration. It turns out he was well fit for his new job in the Obama Administration. Carrie Johnson at the Washington Post has this:
Edward Whelan, also writing in the Washington Post, explains:
In the course of its usual task of reviewing pending legislation to identify constitutional problems, the [Office of Legal Council] determined that the D.C. voting rights bill, which would give the District of Columbia a voting member in the House of Representatives, is unconstitutional. The acting head of OLC, David Barron -- a liberal Harvard law professor appointed by Holder -- signed an opinion setting forth OLC's conclusion. That conclusion is no surprise, as it has been the Department of Justice's consistent position, under presidents of both parties, at least as far back as Attorney General Robert F. Kennedy in 1963 and as recently as two years ago.
When Holder, a longtime supporter of the voting rights bill, learned of the OLC determination, he acted to override it. He contacted another of his appointees, deputy solicitor general Neal K. Katyal, to ask whether Katyal's office could, under its usual standards, defend the bill in court. Katyal said it could, and Holder then overruled OLC.
Now, it's legitimate, if exceedingly rare, for an attorney general to contest OLC's advice. The office is, after all, exercising the advisory function the attorney general has delegated to it. 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 -- an extremely unlikely conclusion, in my judgment -- 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 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.
Holder hasn't signed an opinion setting forth his grounds for reversing OLC, and he also refuses to make the OLC opinion available.
Now let's get this straight: 1) Attorney General Holder gets an unfavorable opinion from the OLC; 2) Holder asks a different lawyer a different question, and on the basis of the answer rejects the OLC opinion; 3) he neglects the proper process of a formal review, and makes sure he is not on record as saying anything; 4) and best of all, he is refusing to release the OLC opinion to members of Congress.
So much for the Administration's promise of transparency! This is a blatantly politicization of the process at Justice. You might suppose that the New York Times, which is deeply offended by the "flagrant partisanship" of the Bush Justice Department would be all over this one. Well, I've done several searches at their website, and so far I can't find anything about it.
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