Remember that whole fight about presidential recess appointments? The one that ended with Obama recess-appointing Richard Cordray to lead the Consumer Financial Protection Bureau?
At the heart of that fight was a legal question: Can the president make recess appointments even when Congress is holding brief pro forma sessions, as it was when Cordray was appointed? Obama’s Office of Legal Council decided he could. Charlie Savage of the New York Times submitted a Freedom of Information Act request for past OLC decisions on this topic. It turned out there was one, from 2004. Here’s the document he got back:
As Kevin Drum writes, “this is not an issue of national security, just a legal skirmish between branches of government.” In fact, it’s arguably even less than a legal skirmish between branches of government. The Obama administration has released the opinion the Office of Legislative Council gave them. They just don’t want to release the opinion the Office of Legislative Council gave George W. Bush.
Perhaps this is just the executive branch attempting to protect the candid advice that the OLC gives the president — perhaps on the theory that if OLC opinions can be FOIA’d, future OLC staffers will be more guarded in what they write. But Marcy Wheeler notes that the administration released a Bush-era OLC opinion on wiretapping in which only 46 of the 108 pages went through this kind of redaction.
“The Administration redacted far more of the earlier Goldsmith memo — the recess appointment one — than the one dealing with one of our most sensitive counterterrorism programs,” writes Wheeler.
That seems kind of odd, doesn’t it?