Earlier this month, Sen. Chuck Grassley (R-IA) threatened to exact revenge for President Obama’s decision to recess appoint four critical consumer and worker protection officials by escalating the Senate GOP’s campaign of obstruction against the president’s nominees. In a speech on the Senate floor last night, Grassley named the first victim of his campaign of retribution — DOJ Office of Legal Counsel head Virginia Seitz — flagging OLC’s opinion saying that Obama has the constitutional authority to make the recess appointments as justification:
[Seitz] stated [in her confirmation hearing] that if the Administration contemplated taking action that she believed was unconstitutional, she would not stand idly by. [...] Ms. Seitz is the author of this wholly erroneous opinion that takes an unprecedented view of recess appointments clause [sic]. And I suppose that 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. [...] After reading this misguided and very dangerous legal opinion, I’m sorry the Senate confirmed her. It’s likely to be the last confirmation that she’ll ever experience.
Grassley’s attack on Seitz is troubling on many levels — not the least of which is the fact that her opinion reached the correct interpretation of the Constitution. As Seitz’s predecessor from the Bush Administration explained in a 2010 op-ed, the Senate is in recess when it is “not capable of acting on the president’s nominations.” When the president announced his recess appointments, the Senate was adjourned under an order stating that there will be “no business conducted” for weeks. So the Senate was in no shape to confirm a nominee until it returned to Washington, and the president acted entirely within his legal rights in making recess appointments.
Moreover, the attack on Seitz is particularly troubling in light of the unique nature of Seitz’s job. Unlike most lawyers in the Department of Justice, OLC’s attorneys are not advocates. Their job is to provide neutral, objective and correct legal advice to the executive branch, regardless of whether their advice agrees with the view held by powerful politicians. That is exactly what Seitz did here when she correctly reasoned that the Constitution means exactly what her Bush era predecessor said that it means — the Senate must be engaged in actual work to defeat the recess appointment power.
By punishing Seitz for issuing a legally correct opinion that he disagrees with, Grassley places dangerous pressure on Seitz and on all future OLC heads. OLC is an important office in its own right, but it is also frequently led by ambitious attorneys who go on to do greater things — both Chief Justice Rehnquist and Justice Scalia once held Seitz’s current job. Grassley’s thinly veiled threat sends a clear message to future OLC heads: hand down a decision that I disagree with and I will destroy your career.
Needless to say, this kind of incentive is neither conducive to honest reasoning by OLC heads nor likely to attract the best applicants to lead this office. If the executive branch is to receive accurate and unbiased legal advice, it must come from attorneys who are focused solely on the law — not on trying to anticipate what Chuck Grassley thinks the law should be.