Holder admits controversial nominee working for Justice Dept. despite not being confirmed by Senate 

This past February, 2009 President Obama nominated Dawn Elizabeth Johnsen to be Assistant Attorney General for the Office of Legal Counsel in the U.S. Department of Justice. Johnsen was immediately controversial, as her opinions as a lawyer have been pretty extreme. Take this brief she filed in a Supreme Court case:

“Statutes that curtail [a woman’s] abortion choice are disturbingly suggestive of involuntary servitude, prohibited by the Thirteenth Amendment, in that forced pregnancy requires a woman to provide continuous physical service to the fetus in order to further the state’s asserted interest.”

Got that? If you oppose abortion, you’re really in favor of slavery. Testifying before the Senate, Johnsen claimed not to have made this statement, but unfortunately for her, it’s easily verifiable. Anyway, it was long suspected that Johnsen was doing vital work at the DOJ despite the fact that she had yet to be confirmed. Back in October, legal expert Ed Whelan noted the potential problem:

The controversial nomination of Dawn Johnsen to Office of Legal Counsel at the Department of Justice seems to be going nowhere.  But from what I hear from reliable sources, Johnsen has 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.

According to a press release from Americans for Limited Government, today Attorney General Eric Holder admitted that this is exactly what is going on:

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.”

Americans for Limited Government also notes that the DOJ is stonewalling their Freedom of Information Act request on Johnsen:

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 Dawn Johnsen, Barack Obama’s nominee for Assistant Attorney General to the Office of Legal Counsel, 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.

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Mark Hemingway

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