After years of loyal service to Attorney General Eric Holder, some of them in the reflected glare of publicity that goes with the territory in the Department of Justice, Kevin A. Ohlson’s reward is a post that would appear to be less stressful.
He just needs to get through one last Justice Department uproar: The congressional probe of Operation Fast and Furious.
Ohlson, chief of DOJ’s Professional Misconduct Review Unit and former chief of staff for Holder, has been nominated by President Barack Obama for a seat on the United States Court of Appeals for the Armed Forces (USCAAF), which is the military equivalent of the courts of appeal for the various federal circuits.
But his nomination is almost certain to be held over to the next session of Congress that begins in January. Congressional Republicans are looking for a scalp. Sen. Charles Grassley of Iowa has said the highest-ranking official at the Department of Justice who knew about the problematic gun-trafficking investigation, in which some 2000 weapons found their way into the hands of Mexican drug cartels, should resign.
There’s no evidence Ohlson was aware of the details of the operation, conducted by the Bureau of Alcohol, Tobacco, Firearms and Explosives and overseen by the U.S. Attorney’s office in Arizona. But he was nonetheless grilled by Sen. John McCain (R-Ariz.) at his confirmation hearing last month before the Senate Armed Services Committee, and has answered extensive written questions about it.
A congressional staffer familiar with the nomination told Main Justice that even Democrats in the Senate aren’t pushing to rush Ohlson through while investigations proceed in the Republican-led House Government Oversight Committee and by Grassley’s staff in the Senate.
Ohlson declined to comment.
Although it can be hard to gauge such things, it is fair to say that the USCAAF functions below the radar of most Americans — or that of many lawyers, for that matter. The USCAAF reviews courts-martial in serious cases — those that bring a death sentence, imprisonment for a year or more or bad-conduct discharges, for instance — that have already been studied by the four military criminals appeals courts, overseeing the Army, Air Force, Navy and Marine Corps and Coast Guard. Decisions by the USCAAF are subject to review by the United States Supreme Court, as are the decisions by the circuit courts of appeal.
The work load is relatively light - the court heard 43 cases in 2010, 47 in 2009 and 65 in 2008. It is housed in a stately building on E. St. NW near the District of Columbia U.S. Attorney’s office, where Ohlson once worked.
The five judges on the USCAAF get the same pay as the circuit court judges, $184,500, and circuit court judges occasionally participate in USCAAF cases. (So do federal district judges, who also sometimes take part in circuit court proceedings.)
But there are important differences between the USCAAF and the circuit courts of appeal, both in the nomination process and the qualities one needs to get a seat. Nominations to the top military court, unlike those to circuit courts, are not vetted by the American Bar Association. Nominations to the USCAAF are reviewed by the Senate Armed Services Committee, not the Judiciary Committee. And the terms on the top military court are for 15 years, whereas the federal civilian court terms are for life.
Moreover, while military service is not an official requirement to sit on the USCAAF, it is “typical and expected,” according to Eugene R. Fidell, an expert on military law who teaches military justice at Yale Law School. Fidell is a co-founder and former president of the National Institute of Military Justice and a member of the board of directors of the International Society for Military Law and the Law of War.
The four current members of the court, Chief Judge James E. Baker and Judges Charles E. Erdmann, Scott W. Stucky and Margaret A. Ryan, all have military service on their resumes, along with a mix of political connections and court clerkships typically associated with judicial nominees.
Ohlson has impeccable military credentials: he was an Army officer, serving both as a paratrooper and judge advocate, and won a Bronze Star for his combat duty in the Persian Gulf War. (Somewhat paradoxically, someone who retires from military service after 20 years or more is disqualified from serving on the court, on the theory that the tribunal should be “civilian” in nature, even though its guidebook is the Uniform Code of Military Justice.)
Fidell said he thinks the court could and should take more cases, a point he made in a talk earlier this year. Asked by Main Justice why he thinks the court doesn’t take more cases, he replied, “I don’t know.”
From 2009 to January 2011, Ohlson was Chief of Staff and Counselor to Holder, according to Ohlson’s biography issued by the White House. From 2007 to 2009, he was the Director of the Executive Office for Immigration Review (EOIR), where he had previously served as Deputy Director from 2002 to 2007. From 2001 to 2002, he was a member of the Board of Immigration Appeals. From 1997 to 2001, he was Chief of Staff to the Holder when Holder served as Deputy Attorney General.
Before that, he was an AUSA and spokesman for Holder when he served as the U.S. Attorney in D.C., managing press on high-profile cases like the public corruption probe of then-House Ways and Means Committee chairman Dan Rostenkowski, snared in the House Bank scandal and accused of having ghost workers on his payroll and trading congressional stamp vouchers for cash. Rostenkowski, who died last year, pleaded guilty to two counts of mail fraud and served 15 months in prison.
Ohlson is a relatively young man; he attended Washington and Jefferson College on an ROTC scholarship and got his law degree from the University of Virginia School of Law in 1985, according to The Washington Post. So it would not be surprising if the apparent tranquility of the military appeals court is not his last career stop.
Mary Jacoby contributed to this report.