The Magazine

Eric Holder's Justice Department

It's all politics, all the time.

Aug 10, 2009, Vol. 14, No. 44 • By JENNIFER RUBIN
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We don't change OLC opinions simply because a new administration takes over. The review that we would conduct would be a substantive one and reflect the best opinions of probably the best lawyers in the department as to where the law would be, what their opinions should be. It will not be a political process, it will be one based solely on our interpretation of the law.

Within weeks, however, Holder violated that pledge when the issue of voting rights for the District of Columbia emerged. It had been a longstanding position of OLC, dating back to the Kennedy administration, that federal voting rights for the District could not constitutionally be granted by statute. This position did not sit well with the new Obama administration, or with Holder personally. After all, Holder has been a prominent figure in D.C. politics and was introduced at his confirmation hearing by a longtime friend and ally Eleanor Holmes Norton, the District's nonvoting representative and a key proponent of D.C. voting rights.

Presented with OLC's settled position, Holder opted to shop around for another opinion. He went to the solicitor general, asking a lower threshold question, namely whether the solicitor general could "defend" the Obama administration if it signed a statute granting D.C. voting rights. Clint Bolick, a veteran of the Reagan Justice Department, observes, "I don't recall [another instance] when the Department of Justice went back to get a second answer, when you have a 'do over,' when the best lawyers come up with the 'wrong answer' from a policy perspective."

Another former Justice Department attorney finds the opinion shopping "extremely out of the ordinary." "[OLC] is the last word on constitutional issues," he explains. "Holder asked the wrong question to the wrong office and got an obvious, easy answer to satisfy his political agenda."

Lamar Smith describes as "worrisome" not only the initial decision but also Holder's subsequent behavior. The attorney general rejected requests from Republican members of Congress for the documents pertaining to the decision. When Holder objected to revealing the Department's internal deliberations, Smith modified his request to ask only for the final opinion, rather than the complete legal analysis. Again, Holder refused. Smith observes, "This is an administration perfectly willing to make public the interrogation techniques [used by the CIA to extract information from terrorists] but something like legal advice they might make available--we can't get these."

Many current and former Justice Department employees are angry about the decision. One explained, "Holder in his own words called the OLC the crème de la crème of Justice. The longstanding opinion of both parties' administrations shouldn't be jettisoned to serve political ends." Another longtime Justice employee says that he "never heard of such a thing." He remarks, "That's why we have institutions--to contain the authority of any one individual."

But Holder's effort to run roughshod over OLC and rebuff of subsequent scrutiny was just the beginning of his efforts to conceal controversial decisionmaking.

To Representative Frank Wolf, a moderate Republican from Northern Virginia, the "most egregious" action by Holder and the Obama administration concerns the disposition of detainees at Guantánamo Bay and Justice's interference with the flow of information from the FBI. His annoyance obvious, Wolf explains that he sent multiple letters to Holder asking a list of questions concerning the potential release of detainees, and in particular about the Uighurs, who news reports suggested at one point were about to be released in Northern Virginia. He was rebuffed: "I'm the ranking member, and I can't get them to answer a question." Wolf says that the Justice Department even went so far as to forbid FBI briefings with his office unless a Justice Department representative was present, which he terms "outrageous." He received one briefing from the FBI, but "then the political guy came in and chilled the entire meeting."

Efforts by Representative Lamar Smith and Senator Jeff Sessions of Alabama to obtain information on the administration's Guantánamo plans, including a response to their query as to how the possible release of the Uighurs squared with federal law preventing entry into the United States by those who had received terror training, were similarly thwarted. Smith says that on the topic of detainees, "We haven't gotten a single response to a letter of inquiry."