OLC

  • June 11, 2010
    The Office of Legal Counsel (OLC), which is charged with providing the administration legal analysis on potential executive branch actions and policies has gone too long without a leader, writes Dawn Johnsen, an Indiana University law school professor, whose nomination to head the OLC was defeated by Republican opposition, in an op-ed for The Washington Post.

    Johnsen maintains that her criticism of the OLC's legal analysis regarding torture during the Bush years played a part in her nomination's demise. But, she writes, that it "is long past time to halt the damage caused by the ‘torture memo' by settling on a bipartisan understanding of the proper role of this critical office and confirming an assistant attorney general committed to that understanding."

    Johnsen, acting assistant attorney general in the OLC during the Clinton administration, and a former ACS Board member, continues:

    After the torture memo came to light, I led 19 former OLC lawyers in developing 10 "Principles to Guide the Office of Legal Counsel." We called for a return to long-standing, nonpartisan practice. The results were not flashy proposals for change but the carefully considered consensus of experience. The first principle, from which the others follow: "When providing legal advice to guide contemplated executive branch action, OLC should provide an accurate and honest appraisal of applicable law, even if that advice will constrain the administration's pursuit of desired policies."

    Put plainly, the OLC must be willing to say no to the president under any circumstances. The office does the president no favors by allowing its legal analysis to be twisted by policy or partisan preferences, even in the midst of crisis, as the months after Sept. 11 undoubtedly were.

    Her entire op-ed is available here.

    Johnsen will provide remarks on the first day, June 17, of the 2010 ACS National Convention, "The Constitution, Congress, and the Courts," before a Gala Dinner at which Senator Al Franken will be the featured speaker. Today is the last day for early registration for the Convention. Click here to register and obtain a full schedule.

  • April 9, 2010

    President Obama's nominee to lead the Office of Legal Counsel (OLC), selected well over a year ago, has withdrawn her nomination, The Associated Press reported Friday. Dawn Johnsen, an Indiana University law school professor, who has extensive service in the OLC, serving as its acting head during the Clinton administration, faced vociferous opposition from Senate Republicans and conservative pundits. Johnsen, a former member of the ACS Board of Directors, was targeted for her past work on behalf of reproductive rights groups and her criticism of the Bush administration's OLC, especially its memorandums advocating for torture of military detainees.

    White House spokesman Ben LaBolt blamed Senate Republicans for the failed nomination.
    "Her credentials are exemplary and her commitment to the rule of law has been proven time and again, but it is now clear that Senate Republicans will not allow her to be confirmed," LaBolt said. He added that "it is time for the Senate to move beyond politics and allow the Office of Legal Counsel to serve the role it was intended to - to provide impartial legal advice and constitutional analysis to the executive branch."

    Johnsen's nomination received the backing of former Department of Justice leaders, of both political persuasions, scores of law school professors and newspaper editorial pages nationwide. Attorney General Eric Holder on numerous occasions strongly urged the Senate to stop holding up Johnsen's confirmation.

    In March, 400 law professors sent a letter to the Senate Judiciary Committee urging it move her nomination.

    The letter, in part, maintained:

    Professor Johnsen is immensely qualified for this position. She has extensive previous experience in the Office of Legal Counsel, including service as its acting head for more than a year during the Clinton Administration. Doug Kmiec - the OLC head under Presidents Ronald Reagan and George H.W. Bush - has applauded Professor Johnsen's track record during that service, noting that she "repeatedly separated policy preference from rendered opinion."

    In February, The New York Times editorial paged blasted Republican obstructionism, calling Johnsen, "a highly qualified choice" whose nomination has drawn "baseless objection."

  • February 16, 2010
    Senate Republicans should cease holding up President Obama's "well qualified" nominee to head the Office of Legal Counsel (OLC), top Senate Judiciary Committee members maintain in a column for The National Law Journal.

    Sens. Patrick Leahy, chairman of the Senate Judiciary Committee, and Sheldon Whitehouse, chairman of the Judiciary Subcommittee on Administrative Oversight and the Courts, write that months "of obstruction by Senate Republicans" have stymied a vote on Dawn Johnsen's nomination to lead the OLC, noting that Obama nominated her a year ago.

    Leahy and Sheldon write:

    Johnsen has previously served for five years in OLC. She defended legitimate presidential powers. She produced opinions that conformed to the law, even if they did not advance the president's political interests. She has a proven record of setting aside her personal views to render independent legal opinions rooted in the Constitution and the law. Johnsen's former colleagues have called her the conscience of the office. Walter Dellinger, her former boss at OLC, has said that she ‘will be the best head of the OLC in the history of the office.'

    Main Justice notes that after Obama re-nominated Johnsen, an Indiana University law school professor and a former member of the ACS Board of Directors, in January, the Senate committee has continued to delay a vote on the nomination. "The panel is expected to consider her nomination next week," according to Main Justice

  • February 4, 2010

    Dawn Johnsen's nomination to lead the Justice Department's Office of Legal Counsel (OLC) was delayed again by the Senate Judiciary Committee this morning. Johnsen, a former member of the ACS Board of Directors, was first announced as President Obama's OLC nomination in January 2009. After prior support of the Senate Judiciary Committee, Johnsen's nomination spent the better part of 2009 -- a year of unprecedented obstruction -- languishing on the Senate floor without a vote.

    The New York Times and The Wall Street Journal published editorials today staking out opposing views on Johnsen's nomination. This battle of the editorial boards follows last week's Los Angeles Times editorial stating that "the obstruction of this nomination is and always has been unjustified."

    The Journal's editorial criticized Johnsen for her views on the OLC's role under the Bush administration, when that office produced the infamous "torture memos," noting: 

    During the Bush years she [Johnsen] has said that OLC gave "horrific legal advice" and "advice premised on an extreme and unfounded view of presidential power to justify desired counter terrorism policies." On issues such as the use of domestic electronic surveillance or interrogation policies, she has called the Bush Administration's practices controversial and "sometimes flatly illegal."

    Considering these same facts, The Times editorial called Johnsen "a highly qualified choice" whose nomination has drawn "baseless objections" causing "unreasonable delay."

  • January 28, 2010
    President Obama's nominee to head the Office of Legal Counsel (OLC) remains mired in the Senate, with today's decision by the Judiciary Committee to continue holding up the process. In a Jan. 28 editorial, the Los Angeles Times declared, "Obama's choice to head the Office of Legal Counsel is more than qualified, and the GOP obstruction to her confirmation needs to end." The newspaper's editorial page had previously urged the Senate to confirm Dawn Johnsen, an Indiana University law school professor and former member of the ACS Board of Directors.

    Today's editorial decries lawmakers' obstruction of the nomination, saying it relates to Johnsen's criticism of the OLC during the Bush administration, in particular its production of legal memos promoting the use of torture of detainees and her work for groups supportive of reproductive rights.