Senators: Justice Department’s Chief Counsel Breaking the Law

Nothing surprises me any more.

Four Democratic senators wrote Alberto Gonzales today to inquire whether Stephen Bradbury, the apparent acting head of the Justice Department’s Office of Legal Counsel, was illegally carrying out his duties.

Bradbury was nominated for the top spot at OLC last year, but the Senate Judiciary Committee returned his nomination to the president, refusing to hear it until Bradbury’s role in approving the National Security Agency’s surveillance program became clear. The President shut down an internal Justice Department investigation of the matter last year by taking the unprecedented and unexplained step of denying security clearances to investigators from the Office of Professional Responsibility.

In the letter, written by Senate Judiciary Chairman Patrick Leahy (D-VT), along with Sens. Durbin (D-IL), Kennedy (D-MA), and Feingold (D-WI), the senators say that since it’s been more than 210 days since the Senate returned the nomination to the President, Bradbury should not be carrying out the duties for the spot under the Vacancies Act. But that certainly appears to be what is happening.

It’s enough to make your head spin. Bradbury signed a letter last week that advised that “the President and his immediate advisers are absolutely immune from testimonial compulsion by a Congressional committee.” Both the White House and Harriet Miers relied on that advice when she refused to appear before the House Judiciary Committee.

Think about it: Bradbury’s advice meant that Miers did not need to testify to Congress about whether she plotted to circumvent the Senate confirmation process in order to replace independent-minded U.S. attorneys with political cronies. As a committee staffer put it, “This appears to be yet another attempt by this Administration to circumvent the confirmation process in order to install a controversial nominee in a key Justice Department post, and now, ironically, that nominee is involved in protecting the Administration’s efforts to circumvent the confirmation process.” Yikes.

Remember that the head of the OLC is a crucial position. Back in 2004, former head of OLC Jack Goldsmith advised that the Justice Department could not authorize the President’s surveillance program — a decision that nearly led to a mass resignation of senior Department officials when the President decided (however briefly) to ignore that determination.

You can read the senators’ letter here.