The Department of Justice’s Office of Legal Counsel, in which I served from 2001 to 2004, has traditionally provided the final word to executive-branch officials on the meaning of the Constitution and federal statutes. But one of Eric Holder’s first acts of malfeasance as Attorney General was to conduct a sham review of OLC’s unwelcome assessment of a bill that would have purported to give the District Columbia a voting member in the House of Representatives. And, both from some available public evidence and from what I hear from reliable sources, it appears that the Administration has increasingly marginalized of OLC.
The dismally poor quality of the legal reasoning set forth in the Department of Justice’s letters attacking North Carolina’s H.B. 2—together with all the laugh-out-loud incoherence and foreseeably ludicrous consequences of the Administration’s position—makes it impossible for me to believe that Attorney General Loretta Lynch ever requested OLC’s advice on the legal questions at stake.
But why solicit sound legal advice about what existing laws really mean if your agenda is to launch an ideological war—and if you’re confident that you can count on President Obama’s judicial appointees to continue to kowtow to your lawlessness?