The rule of non-frivolous “law”

The Washington Post reported this morning that Attorney General Holder has rejected the legal opinion of the Department’s Office of Legal Counsel (OLC) that the D.C. voting rights bill pending in Congress is unconstitutional. As Ed Whelan explains, the new OLC–led by deputies selected and appointed by the Obama Administration–reached the same conclusion that the OLC has since the early 1960s (according to Ed), namely that the bill is unconstitutional.

Unhappy with that answer, Holder turned to the Solicitor General’s office to ask whether it “could defend the legislation if it were challenged after its enactment.” Holder wasn’t asking the SG’s office whether the bill was constitutional, but rather whether a non-frivolous argument could be made in defense of its constitutionality. The SG’s office said one could be made.

But Holder is sworn to uphold the Constitution. One might have hoped that he would interpret this duty to mean taking positions consistent with the office charged with making that determination for the Department (the OLC), an office that he testified “has probably the best lawyers in the Department.” Alternatively, one might have hoped that, if Holder rejected the view of that office, he would do so based on sound advice that the bill in question is constitutional. Instead, as noted, he reversed the OLC based only on advice that a contrary view of the Constitution is not frivolous.

A lawyer representing an ordinary client is free, and may in some cases be obligated, to take weak but non-frivolous legal positions to promote a client’s interests. But the United States is not an ordinary client. And the Department of Justice should be what its name says, not the Department of Promoting the Political Goals of the President. As Andy McCarthy puts it, ” the Justice Department is supposed to take the most legally sound position, not any position preferred by the president that may pass the laugh-test.”

It’s clear that Eric Holder’s Justice Department will not uphold that standard. For Holder remains the same political creature who cravenly blessed the pardons President Clinton wanted, overriding the Pardon Office and the relevant U.S. Attorneys offices.

JOHN adds: When Holder was nominated, I was willing to give him the benefit of the doubt. But it looks as though those who feared, based on his track record, that Holder would turn out to be a partisan hack, were right. HIs effort to advance the interests of the Democratic Party by adding DC’s votes to the House is of a piece with inviting Donna Brazile to address all DOJ staff on the taxpayers’ time.

It’s interesting, too, that Holder got the opinion he was looking for from unidentified lawyers at the office of the Solicitor General at a time when the office of Solicitor General was essentially vacant. Harvard Law School Dean Elena Kagan had not yet been confirmed, and the office of acting Solicitor General was occupied, for a mere 60 days, by career DOJ lawyer Edwin Kneedler. The Post’s story does not disclose whether Kneedler was involved in the opinion or not.

JOHN adds more: Andy McCarthy pounds the last nail in the coffin, recalling that when the issue was a federal statute unbeloved by the Left, Holder saw no need to defend it in court:

When enforcement of a patently defensible statute would undermine the progressive agenda, the statute goes under the bus; when enforcement of a patently unconstitutional statute would further the progressive agenda, the presumption of validity lives and the statute need only pass the laugh-test (though I don’t think the D.C. voting-rights bill meets even that low bar).

What we have now, it appears, is a thoroughly politicized Department of Justice, enlisted in service of the Democratic Party.


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