Charles Cooper, Who Sanctioned Delayed Notification of Covert Ops to Congress, Reportedly to Be Solicitor General

Update: According to the Hill, Cooper has withdrawn from consideration.

Yesterday, SCOTUSblog reported that Charles Cooper is likely to be named Trump’s Solicitor General.

Cooper is a close friend of Sen. Jeff Sessions, the Alabama lawmaker whom Trump has nominated to serve as attorney general, and helped to prepare Sessions for his confirmation hearings. Like Sessions, Cooper could prove to be a controversial pick. In addition to his role defending California’s ban on same-sex marriage, Cooper also signed a brief on behalf of the federal government supporting Bob Jones University in its challenge to the constitutionality of an Internal Revenue Service policy denying tax exemptions to religious institutions that discriminate based on race. The university had argued that its ban on interracial dating was based on its sincere religious beliefs, but the Supreme Court upheld the IRS policy, by a vote of 8-1. And in 1986, as the head of the Office of Legal Counsel, Cooper signed an OLC opinion that argued that employers could reject job applicants with AIDS if they were concerned about contracting the disease.

I take this solace out of the fact that a soul mate to Jeff Sessions will be appointed to Solicitor General. In Cooper’s most public recent work, the Prop 8 case, Cooper got his ass handed to him by facts and law. If he were to argue as poorly for Trump’s policies, it might help the courts keep the President’s excesses under check.

That said, there are things I’m gravely concerned about, with regards to the Cooper pick. I’m trying to figure out whether he is the author of the OLC memo stating that a President can ignore his own Executive Orders, the original pixie dust opinion.

But he is definitely the author of this Iran-Contra related opinion, stating that the President can delay notification on covert ops to Congress.

Section 501(b) of the National Security Act of 1947 must be interpreted in the light of § 501 as a whole and in light of the President’s broad and independent constitutional authority to conduct foreign policy. The requirement that the President inform certain congressional committees “in a timely fashion” of a foreign intelligence operation as to which those committees were not given prior notice should be read to leave the President with discretion to postpone informing the committees until he determines that the success of the operation will not be jeopardized thereby. Because the recent contacts with elements of the Iranian government could reasonably have been thought to require the utmost secrecy, the President was justified in withholding § 501(b) notification during the ongoing effort to cultivate those individuals and seek their aid in promoting the interests of the United States.

Effectively, Cooper came in, after the fact, and said it was no big deal that Ronald Reagan didn’t tell Congress he was negotiating with a sworn enemy of the United States to get around funding restrictions they had put into place. The opinion has been used since to keep Congress in the dark about things it should know — including, ironically, some of Obama’s negotiations with Iran.

Hawks should be most concerned, however, that Trump would use this to free Mike Flynn to negotiate with Russia and Syria without notice to Congress. Me, I’d be more worried that it would be used (again) to hide a torture program from Congress.

6 replies
  1. Peterr says:

    At least Youngstown v Sawyer made it into the discussion of the EO you cite above from the Iran/Contra era, which is more than can be said for a certain other former lawyer at OLC who wrote about executive authority.

    Of course, Cooper cites it only in two footnotes and not the body of the opinion, so that he can say (a) it really doesn’t apply all that much and (b) Reagan can go ahead and do what he wants. Still, he at least is honest enough to admit that it exists.

    Baby steps, I suppose . . .

  2. bmaz says:

    Seems legit.

    After all, Chuck Cooper was really brilliant and eloquent in the Prop 8 case, not just in closing statements, but personally afterwards.

    • Peterr says:

      Twas a thing to behold, bmaz.

      One spectator put it like this, back in the day, as Cooper went about his lawyering before Judge Walker:

      Cooper is getting his ass kicked with half of it his own cowpies he is stepping in. Most animated he has been was citing the effectively stone age Blackstone on law. Walker wants to know when at trial Blackstone testified. No kidding!


      Walker using Loving decision to box Cooper into the corner of religious bigotry. Cooper now trying to soft shoe his way into a way out by distinguishing race based animus from sex based. Ain’t doing real good either.


      ‘Only opposite based couples can procreate normally’. Don’t think Walker liked that statement (it came off with cement thud in the room).


      Here we go. Walker sticking fact that some hetero couples need in vitro etc to procreate down Cooper’s throat. Cooper regurgitating nonsensical bullshit.


      Uh oh. Now Cooper failling back on what people say ‘around watercoolers’ . Must those special separate but not equal religiosity bigot watercoolers I guess.


      Trying to argue ninth circuit Heller case mandates only rational basis review. Is the most coherent argument he has made in over an hour, but that is not even determinative even if you buy it, which is shaky.


      Crikey other than a joke Walker just cracked about St. Patrick’s Day festivities, not squat has occurred for almost twenty minutes. Ramping back up through as Cooper staggers to the end of his ill fated adventure in argument. Walker bringing it all back to discriminatory animus and necessary standard of review. Cooper blatherine again. Saying he ‘will stipulate’ gays have been historically discriminated against substantially. He just doesn’t think continuing that discrimination is, you know, discriminatory. What a “fucking retarded” argument as Rahm Emanuel would say.


      Jeebus now Cooper is arguing Blankenhorn is qualified as an expert. If I were Olson, I might literally just stipulate to it; but that would take away the fun of Walker pointing out Blankenhorn’s work is not even peer reviewed.

      Truly, truly an astounding bit of lawyering.

      But to really get a feel for just how astounding it was, you need to read the liveblog itself, to see the interactions with Vaughn Walker. It’s not just any lawyer who could come off like this at a trial of such obvious importance.

      And if Cooper had this much fun with the back-and-forth with Walker, imagine how much he’ll enjoy displaying his wisdom in the presence of Ginsberg and her colleagues.

      • Peterr says:

        Left out one more classic observation from that spectator:

        Okay, I am trying to be fair, but Cooper is just bad.

        Even his procreative argument is a circle of alligators chasing each others tails. Walker is probing him with questions: it is a one sided dance.


  3. SpaceLifeForm says:

    OT: Software patents – keep them dead

    On February 2, the Intellectual Asset Management (IAM) Blog published an interview

    former top patent judge Randall Rader, who said he’s still in the running for the top USPTO slot.

    “I possess the energy, experience, and ability to ‘make patents great again’ as part of the campaign to ‘make America great again,'” said Rader in a statement to IAM. “The President seems to be emphasizing jobs. I have said often that one key to protect US jobs is to protect the intellectual property that creates and sustains those jobs… I hope that I get the chance to serve this Administration at the USPTO.”

    Rader served as chief judge for the US Court of Appeals for the Federal Circuit, which hears all patent appeals. He’s a proponent of wide-ranging patent rights and was ultimately on the losing side of the Federal Circuit’s fractured 2013 Alice Corp. decision, for which he penned an opinion extolling the need for software patents.

    “The combination of new software and a computer machine accomplishes wonders by reducing difficult processes—like determining where someone is on the earth, instantly translating Chinese to English, or performing hundreds of functions in a hand-held device called a ‘smartphone’—into a series of simple steps,” Rader wrote.

    (dude is just another clueless fascist. And CAFC should not exist either. He makes me ill to read his breathless blather)

  4. SpaceLifeForm says:

    OT: “a free commercial here”


    Amazing the lack of ethics that the clusterpres surrounds himself with.

    Of course, it all flows downhill.



    Connecticut Sen. Richard Blumenthal says Supreme Court nominee Neil Gorsuch encouraged him to go public with the judge’s criticism of President Donald Trump’s comments attacking federal judges.
    The Democratic senator tells The Associated Press in an interview that Gorsuch called Trump’s attacks demoralizing and disheartening during a private meeting and said the lawmaker should feel free to quote him.
    Blumenthal says Gorsuch told him, “You can repeat that. You can quote me.”
    But Trump said during a Thursday luncheon with senators that Blumenthal had misrepresented Gorsuch. “His comments were misrepresented.”

    Ah, no.  The Clustertrump wants to not believe what he heard.  The clustertrump is delusional.  The clustertrump IS NOT FIT FOR OFFICE!

    (hopefully, Gorsuch will withdraw from consideration for SCOTUS.   I believe he realizes at this point that he will be forever tarnished if he was to be approved)

    So, how long until the house starts impeachment process?  Not just for the clustertrump but everyone already approved.  And Pence too.

    And how much longer until 16 gop senators decide that the clustertrump must go?
    I give it a few weeks for house, a year for senate.

    Just totally NOT FIT FOR OFFICE!

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