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D.C. Vote Memo Called Informal

By Carrie Johnson
Washington Post Staff Writer
Friday, April 3, 2009; A03

After receiving a legal memo that declared the pending D.C. voting rights bill unconstitutional, Attorney General Eric H. Holder Jr. reached out to another lawyer on whose judgment he had relied for years.

Holder contacted Deputy Solicitor General Neal K. Katyal, who served as one of his advisers in the Justice Department during the Clinton era. Katyal gave Holder, who said he had already decided that the bill passed muster, an informal view that the measure could be defended in court if Congress passed it and the president signed it.

Whether that conversation was part of a bid by the country's chief law enforcement officer to gather expert advice or an override of a legal conclusion with which he disagreed is the subject of debate among veterans of the department and on Capitol Hill.

Holder, a D.C. resident for more than two decades, is a supporter of voting rights in the city, as is President Obama, who co-sponsored similar legislation two years ago when serving in the Senate.

The bill pending before the House would give the District one full seat in that chamber and add another seat for Utah. Sponsors said the measure could receive a floor vote as early as May.

The constitutionality of the D.C. voting rights legislation has been debated for years. The American Bar Association and former U.S. appeals court judges Patricia M. Wald and Kenneth W. Starr say it passes muster. But the nonpartisan Congressional Research Service and a band of Justice Department lawyers from Republican and Democratic presidential administrations dating back decades concluded the opposite.

As attorney general, Holder has broad authority to make judgments about the law and to reject conclusions from the department's Office of Legal Counsel, an elite team of lawyers who often have the final word on legal issues in the executive branch. Overriding an OLC ruling is rare, former Justice Department officials said.

Matthew Miller, a spokesman for Holder, said the OLC took up the issue this year as part of a routine process of examining legislation moving through Congress. Holder read the OLC memo, scrutinized research by other lawyers outside the department, and determined for himself that the measure is constitutional. He later reached out to Katyal not for a formal judgment from the solicitor general's office but rather "as a check on his own thinking . . . with a very smart attorney," Miller said.

Senior Republicans on the House and Senate Judiciary Committees are asking Holder to release the OLC document, which was written by a lawyer in the office and signed by David Barron, a Democratic political appointee who has served as the office's acting chief since January.

Justice Department officials said Wednesday that they will not release the memo, because it reflects internal deliberations and is not a "final" or "formal" ruling. But Republican lawyers who have worked at the department said that a signed OLC memo generally is a finalized document.

Aides to the attorney general said they have no specific plans to draft a new opinion on the bill, which could change yet again as it awaits passage by the House.

Staff writer Mary Beth Sheridan contributed to this report.

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