What I'd ask Attorney General nominee Bondi
If I were on the Senate Judiciary Committee and cared about Congress's lawmaking function
Good morning, everyone. Today’s newsletter focuses on the key question I think senators should ask Trump’s Attorney General nominee. We’ll get to that in a minute.
The Congressional Gears Start to Move
Appointments. This past week, the Senate adopted S. Res. 16 and S. Res. 17, which appointed most committee members. The House adopted a resolution (H. Res. 21) appointing members to the Appropriations, Energy and Commerce, and Ways and Means Committees; the committees were created by the adoption of the House Rules Package earlier in the week. These are the most powerful committees, except for the Rules Committee, which along with the Intel Committee is appointed by the authority of the Speaker.
The Speaker also appointed the members of the House Office Building Commission — congratulations Speaker Johnson, Majority Leader Scalise, and Minority Leader Jeffries. Alas, a quorum only requires two members, sorry HJ. The Commission, for those not in the know, “prescribe rules and regulations to govern [the Architect of the Capitol] in making all such employments [for the protection, care, and occupancy of the House buildings], together with rules and regulations governing the use and occupancy of all rooms and space in said building.” Does that include bathrooms?
Senator Vance resigned from the Senate.
Democrats. The Senate Democrats website was updated to rename the "Democratic Steering and Outreach Committee" to the "Democratic Steering and Policy Committee" and rename the "Democratic Policy and Communications Committee" to the "Democratic Strategic Communications Committee." Oookay.
Democrats are also apparently refusing to name who are the active members of the Democratic National Committee, so the American Prospect has published a leaked list of all 448 members.
Committee funding. The Senate Rules Committee ordered a report printed on "expenditure authorizations and requirements for Senate Committees." This sounds deadly dull, but it’s the bible for how committees must operate (with lots of fun details!) and the document is intended as a guide for Senate committees as they prepare budgets for the upcoming two-year period (March 1, 2025- February 28, 2027).
If you’ve ever wondered how Senate Committees are funded, I’ve got an explainer. The short answer: Congress appropriates Senate committee funds into two accounts: one for all committees but appropriations, and appropriations. Everybody but Appropriations must go before the Senate Rules Committee and ask for an allotment, i.e., a share of the funds, and the Rules Committee reports out resolutions that dole out the funds. Appropriators don’t have to go through this process, and they also get a lot more per-committee funds than anyone else. It basically works the same way in the House, but with House Administration replacing the Senate Rules Committee.
By longstanding agreement, each Senate committee doles out funds as follows: 10 percent of committee funds go for administrative expenses. The committee minority cannot receive less than 40 percent of funds, and the committee majority share of funds cannot exceed 60 percent. The House, I believe, goes 2/3s vs 1/3s.
Allowing new parents to be able to vote by proxy is part of a continued bipartisan push by some Members of the House. They’re offering a non-privileged resolution, so it’s doubtful it will get a vote. But it should.
The twelve bills that will be fast-tracked by the Republican's new House rules was the focus of a blogpost written by <checks notes> me for GovTrack. As is typical, legislation is being advanced by the majority to keep their team together and split the minority. Democrats have split on two poorly written messaging bills that ostensibly touch upon immigration and Israel and will have unwelcome consequences. Democrative have probably assessed that they can’t stop the legislation anyway, so why take the attack ad?
The shoe will be on the other foot, potentially, when addressing the debt ceiling comes up.
What to ask Attorney General nominee Bondi
Even the most casual reader of Congress.gov’s weekly committee calendar would see fourteen of the sixteen scheduled Senate hearings this week are for Trump’s expected nominees. (The two remaining hearings are the Senate Aging Committee’s hearing on wellness among seniors, likely an issue that hits close to home for some senators, and an organizing meeting for HSGAC that follows a hearing on “remain in Mexico.”)
If I were a senator serving on HSGAC I’d have some interesting questions for proposed OMB Director Vought, whose hearing is Wednesday, regarding impoundment and OMB’s “implementation” of various federal transparency laws (from the Open Government Data Act to the Congressional Budget Justification Transparency Act). Vought’s views on impoundment are pretty clear and troubling for anyone who thinks that Congress should make spending decisions.
To make any of that power grab work you need the Justice Department, and Attorney General nominee Pamela Jo Bondi will testify on Wednesday and Friday. More than anything else, I’d urge senators to ask about opinions issued by the Justice Department’s Office of Legal Counsel. It won’t get you a clip on CNN, but it matters a lot.
The Office of Legal Counsel’s core function, according to an OLC memoranda, is to provide “controlling advice to Executive Branch officials on questions of law that are centrally important to the functioning of the Federal Government.” This legal advice “may effectively be the final word on the controlling law,” yet it is routinely withheld from both Congress and the public. This withholding in effect creates secret law that controls agency actions but is shielded from both public debate and Congressional oversight.
In other words, the Office of Legal Counsel issues “opinions” that tell federal agencies the Justice Department’s determination of the law that binds those agencies. It interprets the Constitution to say when agencies should not feel themselves bound by the laws enacted by Congress, and it interprets statutes to give a reading on what Congress is telling them to do. If the OLC did this openly and transparently, and with due respect to Congress’s views on the law, it might be tolerable. That’s not what happens.
The Office of Legal Counsel issues thousands of opinions and routinely withholds them from Congress and the public. We do not know how many final, binding interpretations of the law exist or what they say.
That secrecy poisons the OLC’s interpretation of the law, pushing it away from the views that a court would embrace and towards a very pro-president, anti-Congress perspective. This isn’t just me talking, but the view of attorneys who worked at the OLC. Here’s what they wrote in 2020.
When the Justice Department provides an OLC opinion, it also makes a promise: that it will not prosecute those who follow its guidance. This creates perverse incentives, and has allowed all sorts of criminal activity to go unpunished. This is true of every administration, Democrat and Republican.
Former OLC attorneys, constitutional experts, Congress, and civil society have all identified one mechanism that will reduce the incentives of the attorneys at the OLC to lean in the direction of pleasing their political masters: transparency.
A list of all OLC opinions should be made publicly available. The text of the all final opinions should be proactively released, with redactions and omissions only as absolutely necessary. The OLC does have a process for releasing the opinions, but it’s a process designed to give the appearance of transparency while actually permitting indefinite nondisclosure. The OLC’s policy should be routine, proactive disclosure.
This is starting to happen, but not voluntarily, and only for OLC opinions older than 25 years — as a consequence of Congress’s change to the FOIA and litigation to enforce it. Pursuant to a settlement agreement, the DOJ agreed to release to plaintiffs a list of titles of all unclassified OLC opinions from 1945-1994 and all classified opinions from 1974-2021 except those codeword classified. The OLC also agreed to disclose 230 opinions from those indices. That’s better, but not nearly good enough.
Congress needs access to all final, authoritative OLC opinions. To this point, appropriators have included report language accompanying the FY 2024, 2023, 2022, 2021, and 2020 bills calling for action:
What was the response from Merrick Garland? Do I really need to spell it out?
Congress should insist on its prerogatives, including its function as a lawmaking body. Writing public laws that in effect are secretly edited by the OLC is no way to run a democracy. The approach outlined in the DOJ OLC Act (S. 3858) is one that the Justice Department should follow.
My questions, then, for Ms. Bondi:
As Attorney General, will she commit to publishing a full index of all existing OLC opinions within the next three months?
As Attorney General, will she commit to publishing the titles and subject matter of all new OLC opinions within a week of their issuance?
As Attorney General, will she commit to updating DOJ guidance on OLC opinions to require proactive disclosure of final opinions within thirty days of issuance?
As Attorney General, will she commit to review and publication of all OLC opinions from the last twenty-five years within the next six months?
I’ve previously made the case for how Congress should address OLC opinions and how the Executive branch can bring itself back into alignment with transparency. (This is my subtle way of saying that any enterprising senator should click on those links and look at the footnotes for sources.)
If I were on the Senate Judiciary Committee, or merely in the Senate, I would insist upon commitments from Ms. Bondi before allowing the nomination to move forward.
On titles
One more thing. One of my pet peeves is calling folks “general” when they’re not. Inspectors General are not generals. Attorneys General are not generals. The Solicitor General is not a general. You wouldn’t call a General Counsel general, would you?
I know we hate the French, with their silly fries and odd word order, but the word general is meant as an antonym to specific and indicates that a person has wide-ranging authority. From etymology online:
Josh Blackman goes into this in more depth in a hastily googled article I’m adding to reinforce my case.
Just think “General Attorney,” “General Solicitor,” “General Inspector” — and not inspector Clouseau. If you write the word general too many times, you become generally unaware of whether the word general is generally misspelled or generically misused.
Senators, I’ll be watching you if you make this mistake. There’s even a Seinfeld bit for those of you who are older, and thus likely to have taken umbrage about my Senate Aging Committee joke.