Below The Beltway

Today’s Washington Post reports that Attorney General Eric Holder rejected and ordered changes to a report that found the legislation to grant the District of Columbia a vote in Congress to be unconstitutional:

Justice Department lawyers concluded in an unpublished opinion earlier this year that the historic D.C. voting rights bill pending in Congress is unconstitutional, according to sources briefed on the issue. But Attorney General Eric H. Holder Jr., who supports the measure, ordered up a second opinion from other lawyers in his department and determined that the legislation would pass muster.

(…)

Holder rejected the advice and sought the opinion of the solicitor general’s office, where lawyers told him that they could defend the legislation if it were challenged after its enactment.

Democratic and Republican Justice Department veterans said it is unusual, though not unprecedented, for the solicitor general, who backs the administration’s position before the Supreme Court, to be asked to weigh in before a case makes its way into a courtroom. Typically, legal scholars said, the solicitor general is asked whether the office can plausibly defend a law in court, rather than to opine directly on the legality of a piece of legislation. The office was asked for the opinion several weeks ago, before the Senate confirmed Elena Kagan as the new solicitor general.

(…)

“The attorney general weighed the advice of different people inside the department, as well as the opinions of legal scholars, and made his own determination that the D.C. voting rights bill is constitutional,” Matthew Miller said. “As the leader of the department, it is his responsibility to make his best independent legal judgment, and he believes that although there are reasonable arguments on both sides of the issue, ultimately the bill would constitutionally grant D.C. residents a right to elect a voting representative in Congress.”

Holder’s decision to get involved may expose President Obama’s Justice Department to some of the same concerns raised by Democrats during George W. Bush’s presidency.

Democrats claimed then that political considerations infused decisions on subjects including environmental regulations and national security policy. In particular, Bush’s OLC drew criticism when lawyers allegedly shaped their analysis on harsh interrogation tactics and warrantless eavesdropping to fit the views of superiors in the White House.

And it’s easy to see how Holder could be subjected to similar charges in this case.

After getting a legal opinion from the staff attorneys ordinarily called upon to give such opinions, Holder decides to reject it and turn to a forum more open to accepting legislation which he clearly already supports.

Now that this story is public, it’s hard to see how the suppressed opinion itself won’t eventually see the light of day.