March 29th, 2010, Fairfax, VA—Attorney General Eric Holder has admitted that Barack Obama’s nominee for Assistant Attorney General to the Office of Legal Counsel, Dawn Johnsen, was fulfilling key duties related to that post even though she has not been confirmed by the Senate.
According to Holder’s written testimony, when asked of allegations that Johnsen had been making hiring decisions at the Office of Legal Counsel (OLC), he wrote that while the acting Assistant Attorney General has made all personnel decisions, “Professor Johnsen’s participation in this process has been appropriate and consistent with the past practice of presidential nominees of both parties. Like such other nominees, she was involved in the consideration of candidates for political appointments, such as those persons who would serve as her deputies should she be confirmed.”
The testimony continued, “By contrast, with respect to applicants for civil service positions, Professor Johnsen simply forwarded some resumes for attorney positions to the Acting Assistant Attorney General for OLC and occasionally offered her views as to some candidates for those positions who came to her attention and on general attorney staffing issues.”
Holder denied that Johnsen participated “in the interviews of any candidates for career positions, nor was she part of the final selection process.”
Americans for Limited Government President Bill Wilson today renewed his call for the nominee to be defeated by the Senate. “Based upon Attorney General Holder’s own testimony, Dawn Johnsen has already had input into the makeup of the Office of Legal Counsel despite the fact that she has not been confirmed to the position of Assistant Attorney General.”
Wilson called Holder’s testimony “a smoking gun,” and said “raises a rather serious constitutional concern that Johnsen has averted the Advice and Consent Clause of the Constitution.”
ALG had filed a Freedom of Information Act (FOIA) request on October 26th, 2009 to the Justice Department’s (DOJ) Office of Legal Counsel attempting to confirm allegations that Johnsen has been performing duties pursuant to that office without being confirmed by the Senate, including making hiring decisions.
The ALG FOIA request has gone unheeded in spite of a 20-day statutory requirement. It has been 155 days since the request was filed, and over 100 business days.
The story was broken by the National Review Online, where according to the report, Johnsen may have been “involving herself in OLC’s decisions on hiring junior lawyers. If those reports are accurate, Johnsen’s actions would seem a serious violation of the Senate’s understanding of pre-confirmation etiquette—an etiquette that is especially punctilious for nominees who have generated controversy—and would give senators additional reason to oppose her nomination.”
ALG Counsel Nathan Mehrens said “it was even more urgent now that the Justice Department fulfill the FOIA request. Holder’s testimony on the extent of Johnsen’s involvement can now be confirmed or refuted be the release of the FOIA documents.”
Mehrens added, “The Senate has a duty to verify Holder’s testimony on this count before passing final judgment on Johnsen’s nomination.”
Wilson said that the Senate needed to delay consideration of Johnsen until the FOIA request had been fulfilled. “It’s the right thing to do,” he said, adding, “there are some serious issues of fact that must be resolved, and all Senate deliberation on the nominee should be delayed until the Justice Department stops stonewalling our request.”
Wilson pointed to a DOJ memorandum recommitting the Department of Justice to Barack Obama’s promise for his Administration “to be the most open and transparent ever” as “pathetic.”
“In an apparent preparation for April Fool’s Day, the DOJ issued its memo reaffirming the Obama Administration’s ‘commitment’ to transparency. What a joke,” Wilson said.
Since filing the request, Mehrens has sent a follow-up letter to the DOJ, and Wilson urged the Senate Judiciary Committee to postpone consideration of Johnsen.
According to the law, “Each agency, upon any request for records… shall… determine within 20 days (excepting Saturdays, Sundays, and legal public holidays) after the receipt of any such request whether to comply with such request and shall immediately notify the person making such request of such determination and the reasons therefor, and of the right of such person to appeal to the head of the agency any adverse determination.”
“Eric Holder can try to make Dawn Johnsen’s acting out duties appear ‘normal,’ but the fact is Johnsen acting is in clear contradiction of the constitutional Advice and Consent Clause and should be enough to torpedo her nomination,” Wilson concluded.
Freedom of Information Act Request, October 26th, 2009.
Letter to Justice Department Office of Legal Counsel, February 24th, 2010.
Letter to Senate Judiciary Committee, February 25th, 2010.
Letter from Congressman Steve King to DOJ Office of Legal Counsel, March 1st, 2010.
ALG Backgrounder on Dawn Johnson, December 10th, 2009.