The Justice Department should come clean on whether it offered advice to President Obama on his faux-recess appointments of Richard Cordray and the three members of the National Labor Relations Board.
A former Justice Department attorney e-mails me about the rank hypocrisy of the Obama White House: “For a campaign that attacked [the Bush] Justice Department, they have brushed aside the idea of following executive branch precedent.” He points to a series of precedential memos from the Obama Office of Legal Counsel, the lawyers charged with rendering constitutional advice to the executive branch. The administration, he reminds us, disregarded Justice Department precedent on recess appointments, ignored OLC advice on Libya and the War Powers Act and went shopping to the solicitor general’s office for advice to overturn decades of OLC precedent on D.C. voting rights. He observes that this shows why Eric Holder “has been a terrible attorney general — he won’t even stand up for his own department’s function as legal advisor to the government, or he has twisted the law so far to please the White House as to render the job meaningless.”
David Addington at the Heritage Foundation explains why the Justice Department is obligated to come clean:
It is reasonable that people are asking the White House whether a Department of Justice legal opinion was issued before the President made the purported recess appointments. The question of the existence or not of such a legal memo has a bearing on the judgment of the President. If such a Department of Justice memo exists, then at least the country knows that the President demonstrated at least some measure of prudence and thought in testing the outer limits of the Constitution by seeking in advance legal advice from the country’s chief legal officer. If, however, no such memo exists, then the country knows that the President was less prudent and thoughtful and did not bother with legal advice from the Attorney General. The degree of prudence and thoughtfulness of a President in performing his duties is a legitimate subject of public interest — especially for a President asking the people to re-elect him.
Clients are not bound to follow the advice of their lawyers. Indeed, the Constitution commands the President himself to “take Care that the Laws be faithfully executed.” But a wise client seeks the advice of his lawyer before taking a big risk. And a prudent and thoughtful President seeks the legal advice of the Attorney General before testing the outer limits of the constitutional powers of the presidency.
So, Mr. President, did the Department of Justice issue a legal opinion in relation to your purported recess appointments to the NLRB and the CPFB before you made them?
The administration is likely, as it has before to claim a bogus “privilege” to withhold the documents. Todd Gaziano, director of Heritage’s Center for Legal and Judicial Studies, dismisses such an excuse. He e-mails me, “ “Courts routinely require a party claiming a privilege to prepare a Vaughn index of supposedly privileged documents that describes each one, so it is hard to see how the mere existence of a DOJ writing on the proposed appointments is privileged. In any event, the only privilege that exists between the executive branch and Congress is the President’s executive privilege, and there is a strong argument that it should be waived in this instance. For the President to attempt to hide behind executive privilege in this situation involving an injury to a core function textually committed to the U.S. Senate by the Constitution raises even more questions.”
This administration has turned stonewalling into a high art form. Whether it is in failing to allow Justice Department witnesses to testify or refusing to respond fully to legitimate Freedom of Information Act requests or declining to even acknowledge whether it was consulted on a dramatic change in constitutional interpretation, it has acted as if it were immune from public or congressional scrutiny.
But there is the potential to get to the bottom of this. Any senator, of course, can request information about Justice Department consultation on the recess appointments. But House Judiciary Committee Chairman Lamar Smith (R-Tex.) and House Oversight and Government Reform Committee Chairman Darrell Issa (R-Calif.) have the power to hold oversight hearings and subpoena documents. In the Bush administration Sens. Pat Leahy (D-Vt.) and Chuck Schumer (D-N.Y.) never hesitated to use their oversight powers to grill Bush’s attorneys general. How about it, Reps Smith and Issa?
As Gaziano put it, “Those with authority in Congress should demand the production of any such legal opinions and see if the President either invokes executive privilege or waives such a claim as has happened hundreds of times. Moreover, United States v. Nixon established the proposition that even the President’s executive privilege is not absolute. At a minimum, the executive branch would be required to give a summary of its legal reasoning, even if the written opinions are withheld.”
It’s time congressional Republicans started to do their job, which includes the responsibility for oversight of the executive branch, most especially when it act in ways which degrade the legitimate prerogatives of the legislative branch.