OLC and the Obama Recess Appointments

By Jack Goldsmith
Monday, January 9, 2012, 2:40 PM

I have not had the time to study carefully the constitutional issues related to President Obama’s recent controversial recess appointments.  I worked on a few recess appointments during my time in the Bush administration.  Based on a superficial analysis I think the constitutional issues are much closer than the President’s legal critics suggest (and I am very surprised to see that David Addington, agreeing with Ed Meese, thinks the recess appointments are unconstitutional).  On this topic I recommend this op-ed by Bush OLC-ers Steve Bradbury and John Elwood.

This letter from Republican Senators on the Judiciary Committee to Attorney General Holder says that the recess appointments were “allegedly based upon legal advice provided to the President by the Office of White House Counsel.”  That is not unusual in this context.  It would be very unusual, however, if – as the Republican letter implies, and as White House silence on the matter has led many to believe – the White House Counsel declined to consult with OLC on this matter, or overruled its advice.  I doubt that is the case.  I expect that there is a memorandum from OLC (or from the Attorney General, relying on OLC) to the White House Counsel on the matter, and that the White House Counsel’s advice to the President relied on the DOJ advice.  If I am wrong, then something very unusual is afoot.

But why won’t the administration acknowledge the OLC advice?  Josh Gerstein says such an acknowledgment might trigger a duty to release the opinion under FOIA.   I can understand why the administration might not want the OLC opinion itself released, especially if (as is probably the case) the opinion notes the closeness of the issue and acknowledges counterarguments, both of which could be used against DOJ in subsequent litigation.  But beyond these concerns, which could be addressed by releasing a suitably summarized legal analysis, arguments based on attorney-client and executive privilege ring hollow in this context.  The Obama administration’s supposed commitment to DOJ transparency has applied much more to Bush-era legal work than to Obama-era legal work.  That looks bad and it is bad.  I believe the President has a prerogative to use all of the constitutional tools at his disposal in fighting against a Congress that he believes is unduly intransigent.  But especially in an area like this that is hard for courts to review and that raises no issue of classified information, Congress and the American people should be given an opportunity to judge the validity of the President’s legal arguments.