Times Sues DOJ for|Legal Memoranda

MANHATTAN (CN) - New York Times reporter Charlie Savage sued the Department of Justice, demanding legal memos it produced on the president's authority to make appointments during a Senate recess.

Savage and the Times claim the Justice Department improperly withheld two legal memoranda outlining the president's power to make appointments during a Senate recess period in which pro forma sessions continued.

"On Jan. 4, 2012, President Barack Obama appointed Richard Cordray as director of the new Consumer Financial Protection Bureau," the Times says in its federal FOIA complaint. "That same day, the president also named three members of the National Labor Relations Board.

"These appointments took place in the midst of the Senate's annual winter break, which lasts for several weeks.

"Because the House of Representatives did not grant the Senate permission to adjourn for greater than three days, however, the Senate held a pro forma session every third day during its break - putatively carving its lengthy recess into a sequence of short ones. Presidents have traditionally not made recess appointments during Senate recesses of fewer than 10 days.

"The administration contended that, despite these pro forma sessions, the Senate was functionally on a recess of multiple weeks, at least for purposes of interpreting the president's recess appointment power.

"But a number of commentators, academics, and former government officials debated the legal grounds permitting the president's ability to make appointments during a time in which the Senate formally considered itself to be meeting every third day, warning that the administration had set a precedent that future presidents could use to gut the confirmation process."

After academics and officials expressed concern, the Department of Justice published a memo justifying the recess appointments.

The Times wants the Justice Department to release two other memoranda: "Re: Recess Appointments in the Current Recess of the Senate" (Feb. 20, 2004) and "Re: Lawfulness of Making Recess Appointment During Adjournment of the Senate Notwithstanding Periodic 'Pro Forma Sessions'" (Jan. 9, 2009).

The Times says the documents are an issue of great public concern: the constitutional limits of the president's authority to make recess appointments.

The Justice Department denied the Times' request in February, and never responded to its appeal.

The newspaper wants to see the documents.

It is represented by David McCraw.

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