At the last election, Democrats complained mightily of George Bush’s having politicized the Department of Justice: firing prosecutors, suborning legal memos justifying an expansion of executive power, etc., etc. Well, it now seems at best that the pot was calling the kettle an abuser of power.
Early in the administration, when the DC Voting Rights Act last made the news cycle, it came out that newly confirmed AG Eric Holder sought a second opinion from the acting solicitor general when the Office of Legal Counsel affirmed its 45-year position that giving DC residents representation in Congress could not be done without amending the Constitution. The bill is now stuck because of an amendment that was added to it relaxing the District’s strict – even after Heller – gun regulations, but this issue will resurface.
Now, in the most recent development in the “Is Hillary Clinton Constitutional?” saga the OLC reversed its own position from 1987 just in time for federal prosecutors to file a motion to dismiss a lawsuit challenging Clinton’s appointment that cites the new memo (see footnote 21). Indeed, the motion was filed the same day Acting Assistant Attorney General David Barron – who had previously rebuffed Holder on the DC Voting Rights Act (though we still have to see what the next confirmed OLC head says, be that Dawn Johnsen or someone else) – signed the new OLC memo.
The issue is that Clinton’s appointment to the cabinet – as well as that of Interior Secretary Ken Salazar – violates the Emoluments (sometimes called Ineligibility) Clause of Article I, section 6 because both she and Salazar were sitting Senators when cabinet salaries were increased. Congress later passed short laws reversing these raises for the duration of both officials’ tenures but, as I’ve argued previously – and as OLC head Chuck Cooper spelled out in the 1987 memo – there is no “net accounting” proviso which somehow erases the constitutional defect. While the new memo relies heavily on historical practice – several presidents going back to William Howard Taft (most recently Bill Clinton in appointing Lloyd Bentsen to be Treasury Secretary) have proceeded in this manner – the fact that political branches have acted in a certain way doesn’t speak to the constitutionality of that action.
In short, again the Obama Justice Department has found a politically expedient way of dealing with pesky constitutional issues. In this case, that way involved issuing a memo to buttress a motion being filed that very same day in federal court.
H/T: Tom Fitton of Judicial Watch, which is involved in the suit challenging Clinton’s appointment.