Sen. Charles Grassley (R-Iowa) will not be letting the controversial recess appointments by President Barack Obama go away quietly.
The ranking member of the Senate Judiciary Committee said in a statement prepared for delivery on the Senate floor Monday that Obama has a “monarchy mentality” and that some in his Justice Department have become his lackeys.
Earlier this month, Obama appointed former Ohio Attorney General Richard Cordray to serve as director of the newly created Consumer Financial Protection Bureau. He also appointed three others to the National Labor Relations Board. Many Republicans have said the appointments were unconstitutional because the Senate was in a pro forma session at the time, with most of its members at home for the winter holiday. Republican lawmakers pressed Attorney General Eric Holder on the department’s role in the appointments. A week later, the department’s Office of Legal Counsel released its previously confidential post facto authorization of the appointments. The Office of Legal Counsel provides advice to the executive branch on the legality of its actions.
The memo, signed by Assistant Attorney General Virginia A. Seitz, states that the president lawfully used his discretion in appointing Cordray and the others.
Grassley on Monday called Seitz’s impartiality into question.
“And I suppose it is literally true that Ms. Seitz did not stand idly by when the Administration took unconstitutional action: rather, she actively became a lackey for the Administration. She wrote a poorly reasoned opinion that placed loyalty to the President over loyalty to the rule of law,” Grassley said in reference to the memo. “That opinion… show[s] extreme disrespect for the institution of the Senate and the constitutional separation of powers.”
Grassley said that during her confirmation process, Seitz assured the Senate she would not stand by if the administration was thinking of doing something she believed to be unconstitutional. Grassley said he is now “sorry the Senate confirmed her.” He said he believes it will be the last confirmation she ever experiences.
In the Office of Legal Counsel opinion, Seitz wrote that there was precedent for Obama’s recess appointments.
“In our judgment, the text of the Constitution and precedent and practice thereunder support the conclusion that the convening of periodic pro forma sessions in which no business is to be conducted does not have the legal effect of interrupting an intrasession recess otherwise long enough to qualify as a ‘Recess of the Senate’ under the Recess Appointments Clause,” the memo reads. “In this context, the President therefore has discretion to conclude that the Senate is unavailable to perform its advise-and-consent function and to exercise his power to make recess appointments.”
Senate Republicans and the administration did not agree on how long the Senate must be adjourned to constitute a recess. In their earlier letter to Holder, the lawmakers cited a 1921 Justice Department opinion that the Senate must be out of session for at least three days and potentially as many as 10 before the president can make a recess appointment. The Jan. 6 opinion details the history of presidential recess appointments, highlighting some made in 11-day recesses and others in 33-day recesses. “We have little doubt that a 20-day recess may give rise to presidential authority to make recess appointments,” the memo states.
The Senate adjourned Dec. 17, only to convene for pro forma sessions every Tuesday and Friday until the lawmakers came back for the new session Jan. 23, the memo states. It goes on to say that pro forma sessions, during which no business is conducted, are not an impediment to the president exercising his recess appointment authority. Senate Democrats began the practice of pro forma sessions to block recess appointments during the George W. Bush administration.
Grassley said that the Office of Legal Counsel’s opinion “reflects the changes that have occurred in the relationship between the Justice Department and the President on the question of presidential power.”
The Senate Judiciary Committee on Thursday is slated to vote on two Justice Department nominees, the panel announced Monday.
The committee will consider Virginia Seitz for the Office of Legal Counsel and Denise O’Donnell for the Bureau of Justice Assistance. The two received few questions from senators last month during a confirmation hearing that focused on Solicitor General nominee Donald Verrilli.
If confirmed, Seitz would be the first Assistant Attorney General backed by the Senate to head the OLC since 2004, when Jack Goldsmith resigned after he butted heads with George W. Bush administration officials about the administration’s aggressive post-Sept. 11 national security policies. Principal Deputy Assistant Attorney General Caroline Krass currently head the office.
Seitz, who was nominated Jan. 5, is President Barack Obama’s second nominee for the post. The first Obama nominee for the job, Dawn Johnsen, withdrew in April 2010 after more than a year of Republican criticism about her pro abortion-rights views and aversion to the Bush administration’s national security policies.
The OLC provides legal advice to the president and other administration officials on various issues, including national security matters. The office was in the middle of the bitter dispute over the use of harsh interrogation techniques against terrorism suspects, methods critics called torture.
O’Donnell has been nominated twice for Bureau of Justice Assistance Director. She was first nominated on Dec. 13 and never came before the Senate Judiciary Committee before the Senate adjourned sine die on Dec. 22. She was renominated Jan. 5.
She would replace acting Director James H. Burch II, who has led the bureau since Domingo S. Herraiz resigned in 2009.
The Bureau of Justice Assistance provides local, state and tribal law enforcement with funds and support for their initiatives.
President Barack Obama on Wednesday nominated D.C. lawyer Virginia Seitz as the next Assistant Attorney General for the Office of Legal Counsel.
Seitz, a partner at the law firm of Sidley Austin LLP, is Obama’s second nominee for the post. The first nominee, Dawn Johnsen, withdrew last April after facing Republican criticism for more than a year.
If confirmed, Seitz would be the first OLC leader approved by the Senate since 2003, when Jack Goldsmith resigned after coming into conflict with other George W. Bush administration officials over their aggressive post 9/11 national security policies. The office is currently led by Principal Deputy Assistant Attorney General Jonathan Cedarbaum.
As was Johnsen, Seitz is a member of the American Constitution Society, a left-leaning legal organization. She also clerked for Justice William Brennan, who was a member of the Supreme Court’s liberal wing. Seitz is married to acting Deputy Solicitor General Roy McLeese.
The D.C. lawyer handles labor, employment and administrative cases at her firm. Conservatives told the Wall Street Journal that her lack of experience with national security law could worry Republicans.
OLC gives legal advice to the president and other administration officials on a range of issues, including national security matters. The office was at the center of the bitter controversy over the use of harsh interrogation techniques against terrorism suspects, methods critics called torture.
OLC authorized those techniques during the administration of President George W. Bush. Johnsen was a leading critic of OLC’s actions, one of the issues that later created a Republican backlash against her nomination.
President Barack Obama is set to nominate a D.C. lawyer as the next chief of the Justice Department Office of Legal Counsel, The Wall Street Journal reported Wednesday.
Virginia Seitz, a partner at the law firm of Sidley Austin LLP, is expected to get the nod early next year. The post has not had a Senate-confirmed leader since Jack Goldsmith resigned in 2003.
The first Obama nominee for the post, Dawn Johnsen, withdrew in April after facing Republican criticism for more than a year. The office is currently led by Principal Deputy Assistant Attorney General Jonathan Cedarbaum.
Seitz is a member of the American Constitution Society, a left-leaning legal group. She also clerked for Justice William Brennan, who was a member of the Supreme Court’s liberal wing. Seitz is married to acting Deputy Solicitor General Roy McLeese.
The D.C. lawyer focuses on labor, employment and administrative law at her firm. Conservatives told the Journal that her lack of experience with national security law could draw concern from Republicans.
OLC gives legal advice to the president and other administration officials on a range of issues, including national security matters. The office came under fire for authorizing the use of harsh interrogation techniques against terrorism suspects during the administration of President George W. Bush. Johnsen later faced Republican opposition over her aversion to the Bush administration’s national security policies.
The Obama administration intends to name White House national-security lawyer Caroline Krass as Seitz’s Principal Deputy, according to the Journal. She previously served in OLC during the Bush and Clinton administrations. They also plan to appoint New York University law professor Cristina M. Rodriguez to the office.
This story has a clarification.
The former nominee to lead the Justice Department Office of Legal Counsel said on Friday she would have been content with a recess appointment, which would have let her hold the post temporarily, The Herald-Times of Bloomington, Ind., reported Friday.
Dawn Johnsen, an Indiana University law professor, said she would have liked the Barack Obama administration to call for a full Senate vote on her nomination, which was stalled for months before she withdrew in April. But she said a recess appointment would have been fine.
“I would have welcomed a recess appointment,” Johnsen said, according to the newspaper. “I believe it would be in our nation’s best interest for the president to be able to use that authority in the future when there is unwarranted obstruction by senators who are trying to not even have a vote on a nominee. I do regret that wasn’t a possibility for me, because I would have accepted that, and I’m hopeful in the coming years the president will use his recess appointment power.”
Johnsen didn’t explain why a recess appointment wasn’t an option for her. She and the White House didn’t return requests for comment from the Blog of Legal Times.
A presidential appointee hasn’t led the OLC since Jack Goldsmith resigned in 2004. Principal Deputy Assistant Attorney General Jonathan Cedarbaum currently heads the office.
The former nominee faced stiff opposition from Republicans because of her aversion to the George W. Bush administration’s national security policies and her pro-abortion rights views. But Johnsen said there were times she and others received word that a vote on her confirmation was close to happening. Though she said Obama’s agenda seemed to put her nomination on the backburner.
Johnsen wasn’t the only DOJ nominee blocked in the Senate. Former Tax Division nominee Mary L. Smith asked for her nomination not to be resubmitted to the Senate for consideration after the body returned it twice to the president. The former nominee faced opposition from Republicans who expressed concerns about her dearth of tax law experience.
“I do think the obstructionism we’ve seen in the last two years is unprecedented,” Johnsen said, according to The Herald-Times. “I think it’s inexcusable and reflects a fundamental lack of caring about the impact on government.
Clarification: an earlier version of this story said the White House decided not to further pursue the confirmation of former Tax Division nominee Mary L. Smith. Smith told Main Justice that she asked the White House not to resubmit her nomination to the Senate for consideration after the body returned it twice to the president.
Virginia A. Seitz, who has spent two decades practicing law in the federal appellate courts, would be the second OLC nominee sent to the Senate by President Barack Obama. The first nominee, Dawn Johnsen, withdrew in April after more than a year of criticism from Republicans. The office is currently led by acting Assistant Attorney General Jonathan Cedarbaum.
Seitz, like Johnsen, is a member of the American Constitution Society, a left-leaning legal society. But, unlike the former OLC nominee, the Sidley Austin partner has secured Republican support in the past for an appointment.
She was appointed by Republican and Democratic congressional leaders to serve five years on the Board of Directors of the Congressional Office of Compliance, which handles disputes between members of Congress and their staffers.
The Sidley Austin partner received her undergraduate degree from Duke University in 1978. She then got her master’s degree as a Rhodes Scholar at Oxford University in 1980 before receiving her law degree from the University of Buffalo in 1985.
Seitz clerked for Judge Harry T. Edwards of the U.S. Circuit Court of Appeals in D.C. from 1985 to 1986. The next year, she clerked for Supreme Court Justice William J. Brennan Jr.
Read more about her here.
Marty Lederman, a top official in the Office of Legal Counsel, is leaving the Justice Department to return to teaching.
A Deputy Assistant Attorney General who joined the OLC in January 2009, Lederman will resume his teaching post at Georgetown University Law Center this fall, where he will teach a class on separation of powers, according to the Blog of Legal Times
Lederman is the second official to announce his departure from OLC in the past few weeks. Last month, acting Assistant Attorney General David Barron said he was leaving the office and would return to teaching at Harvard Law School.
Jonathan Cedarbaum, formerly a Deputy Assistant Attorney General, will take over as the acting head of OLC. The office has been without a Senate-confirmed Assistant Attorney General for six years.
Lederman, who will remain at the Justice Department through August, said that he and Barron did not plan to stay at OLC for more than two years.
Lederman told BLT he is confident that Cedarbaum will do a “terrific” job and said OLC is fully staffed for the first time since the transition to the Obama administration, with about 20 line attorneys.
President Barack Obama’s nominee to head OLC, Dawn Johnsen, withdrew in April. Obama has not made a new nomination since Johnsen withdrew.
Additional reporting by Joe Palazzolo.
Three prominent Republicans who served in the Justice Department during the George W. Bush administration testified Thursday on the nomination of Solicitor General Elena Kagan to the Supreme Court. But only one former government lawyer spoke out against the nominee.
Former Office of Legal Counsel Assistant Attorney General Jack Goldsmith and ex-Solicitor General Gregory Garre lauded the nominee, noting her good character and experience as Harvard Law School dean and Solicitor General. Former OLC Principal Deputy Assistant Attorney General Ed Whelan, however, said Kagan would be a liberal judicial activist and does not deserve confirmation.
The peculiarity of Republican support for a Democratic nominee was not lost on Goldsmith, who was hired by Kagan in 2004 to teach at Harvard Law School.
“It is a little awkward for me to talk about this because I am actually held up as a conservative scholar who was hired while serving in the Bush administration,” said Goldsmith, who served as Assistant Attorney General from 2003 to 2004. “I’m held up as the example of how open-minded she was. It makes it a little awkward for me to talk about this, but I do think that her actions as dean — not just in connection with me, but much more broadly — do demonstrate a commitment to a frank and open exchange of ideas and reveal a temperament ideally suited for the Supreme Court.”
The former OLC chief said he first met Kagan in 1994 when he was trying to become a professor at the University of Chicago Law School, where the nominee was teaching at the time. He spoke with her about a paper he was presenting to the faculty and she inundated him with an “avalanche” of questions.
“It was a truly remarkable performance,” Goldsmith said. “I’d been in the teaching market for many months, but I had not encountered Kagan’s razor sharp questions — questions that exposed weaknesses and inconsistencies in my thesis.”
Read Goldsmith’s full written testimony here.
Garre, who served as Solicitor General from 2008 to 2009, said Kagan has “served the government well” during her more than a year of service as Solicitor General. The former Solicitor General said Kagan has earned the “confidence, trust and admiration” of career lawyers in the Solicitor General’s office.
He also said Kagan’s lack of judicial experience should not detract from the nominee’s qualifications for a seat on the Supreme Court.
“Service as a Solicitor General is by no means a necessary or itself sufficient qualification to sit on the Supreme Court,” said Garre, now a partner at Latham & Watkins LLP. “But the Office of the Solicitor General offers a valuable training ground for service on the court.”
Read Garre’s full written testimony here.
Whelan, who served in the OLC from 2001 to 2004, veered away from his former Bush administration colleagues, expressing concern about how Kagan would vote on the Supreme Court. He said the nominee would not upset the line of “activist” Supreme Court decisions since the 1960s on the death penalty, abortion and gay rights that have “degraded American politics, institutions and culture.”
“Elena Kagan is a predictable vote — quite possibly the decisive fifth vote in favor of inventing a federal constitutional right to same sex marriage,” said Whelan, president of Ethics and Public Policy Center, a Judeo-Christian morality think tank.
Sen. Jon Kyl (R-Ariz.) complimented Whelan on his written testimony, which expanded on his remarks before the Senate Judiciary Committee.
“I found it up to your usual incisive and impactful standard,” Kyl said. “I only regret that none of my Democratic colleagues — except Sen. [Ted] Kaufman [of Delaware] — are here to be instructed in the error of their ways.”
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Dawn Johnsen on Thursday night defended her progressive views that ultimately led to her withdrawal as Justice Department Office of Legal Counsel nominee, telling young lawyers at a legal convention not to be afraid to take tough public stances.
Johnsen, who withdrew in April, spoke at the annual American Constitution Society National Convention in D.C. and said it was “wrong” that her nomination was tied up in the Senate for months. Johnsen was the target of intense criticism from Republicans because of her opposition to the George W. Bush administration’s national security policies and her pro-abortion rights stance.
“As to whether I would have changed any of my positions or softened my stances or decided to sit out a few issues, my message could not be more clear or more simple: I have no regrets,” Johnsen said in her first public appearance in a year and a half.
The former nominee took aim at a New York Times editorial that said her withdrawal sent a “chilling message” to people considering public service: “don’t stand on principle and certainly don’t speak out in public.” She said that wasn’t the lesson to learn from her “nomination saga.”
Johnsen, a law professor at Indiana University, said young lawyers shouldn’t be scared to speak out publicly about their views, adding it is “the patriotic thing to do.”
“In the current climate, even if you attempt a crass political calculus about how to live your life, you may as well say what you think because they could always find a footnote to twist into a story from a 20-year-old brief,” Johnsen said referring to the footnote she wrote in a 1989 pro-abortion rights brief in Webster v. Reproductive Health Services.
She wrote in the footnote that “forced pregnancy” was “involuntary servitude.” Republicans claimed she was referring to motherhood as “involuntary servitude” in what she called Thursday a “damn good brief.”
The former OLC nominee was treated to two standing ovations and numerous rounds of applause during her 14-minute address to members of the American Constitution Society, a liberal legal society where she has reclaimed a seat on the board.
“It’s a phenomenal organization and I’m glad I’m in a position to be able to [join the board] again,” Johnsen told the crowd, prompting one member to shout out: “We’re not!”
“Maybe [it's] not my first choice,” she conceded.
The Office of Legal Counsel has published an opinion that advised President Barack Obama that his receipt of the Nobel Peace Prize would not violate the Constitution’s Emoluments Clause.
The opinion, released publicly on Friday, was issued on Dec. 7, 2009, three days before Obama accepted the award in Oslo, Norway.
The Emoluments Clause states that “no Person holding any Office of Profit or Trust under [the United States], shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.”
Obama’s spoils included $1.4 million, a certificate and a gold medal bearing the image of Alfred Nobel.
OLC noted that “the Norwegian government has no meaningful role” in choosing the prize recipients or financing the prize itself and that the private, Sweden-based Nobel Foundation is responsible for administration of the award.
The OLC opinion, signed by acting Assistant Attorney General David Barron, explains
The President surely “hold[s] an Office of Profit or Trust,” and the Peace Prize, including its monetary award, is a “present” or “Emolument . . . of any kind whatever.” U.S. Const. art I, § 9, cl. 8. The critical question, therefore, concerns the status of the institution that makes the award. Based on the consistent historical practice of the political branches for more than a century with respect to receipt of the Peace Prize by high federal officials, as well as our Office’s precedents interpreting the Emoluments Clause in other contexts, we conclude that the President in accepting the Prize would not be accepting anything from a “foreign State” within the Clause’s meaning. Accordingly, we do not believe that the President’s acceptance of the Peace Prize without congressional consent would violate the Emoluments Clause.
The opinion notes that two former sitting presidents — Theodore Roosevelt and Woodrow Wilson — along with Secretary of State Henry Kissinger and three other high officials — have previously received the Peace Prize.
Click here for a copy of the full opinion.