Look Who's Politicizing Justice Now

By Edward Whelan
Sunday, April 5, 2009; Page B03

Intense controversy has flared in recent years over a previously obscure but high-powered office in the Department of Justice -- the Office of Legal Counsel. OLC has traditionally provided the final word to executive branch officials on the meaning of the Constitution and federal statutes. Disputes over whether it faithfully carried out its assigned role in national security matters during the Bush administration have erupted on newspaper front pages. Whatever the merits of those disputes, virtually everyone has agreed that it is imperative that OLC provide high-quality legal advice that is not slanted to advance a president's policy agenda -- and that the president and his top advisers respect that advice.

But now it appears that we have an attorney general who is himself running roughshod over OLC.

During Eric Holder's confirmation process, his tenure as deputy attorney general in the Clinton administration sparked serious concerns among senators. In scandals involving Clinton's pardons of Puerto Rican nationalists and fugitive Marc Rich, Holder had violated departmental protocols, ignored the views of victims and law enforcement professionals, colluded with Rich's attorneys, undermined prosecutors and circumvented DOJ's pardon attorney. A congressional investigation in 2002 called his conduct "unconscionable."


At his recent confirmation hearing, a chastened Holder assured senators that he had learned from the past and was committed to upholding the department's high standards. He specifically promised not to politicize DOJ's legal positions: "We don't change OLC opinions simply because a new administration takes over," he said. Any review "will not be a political process, it will be one based solely on our interpretation of the law."

Alas, less than two months into his tenure as attorney general, according to accounts in The Post last week, Holder has abused OLC for partisan political purposes. The facts, admittedly, are somewhat sketchy -- largely because Holder isn't complying with President Obama's promise of transparency. But here's what they show.

In the course of its usual task of reviewing pending legislation to identify constitutional problems, OLC 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.



http://www.washingtonpost.com/wp-dyn/content/article/2009/04/03/AR2009040302835.html?hpid=opinionsbox1





Alas, less than two months into his tenure as attorney general, according to accounts in The Post last week, Holder has abused OLC for partisan political purposes. The facts, admittedly, are somewhat sketchy -- largely because Holder isn't complying with President Obama's promise of transparency. But here's what they show.

In the course of its usual task of reviewing pending legislation to identify constitutional problems, OLC 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.