[T]his case puts you in a unique position of having to ensure your representation of OSC is consistent with its mandate to “act in the interests” of Mr. Carson. I respectfully suggest that your waiving OSC’s right to respond, apparently without Special Counsel Lerner’s specific authorization, was not very consistent with OSC’s mandate to Mr. Carson.
In other words, though the Solicitor General is expected to exercise a great deal of independence, amici’s request that his actions be consistent with the “shall act in the interests” mandate of OSC paradoxically requires him to yield his independence to OSC to a significant degree in this case.
The amici want to trust Special Counsel Lerner to do her duty. They want to trust that she will act in the interests of federal employees who seek OSC’s protection from PPPs and other prohibited activities. They want to be able to tell concerned federal employees that, finally, that they have reason to believe a Special Counsel will comply with her duties to act in their interests and protect them. This case provides an unprecedented opportunity for her to do so. OSC has never been party to a case at the Supreme Court before, let alone one involving a split in the circuits about an important issue of law – whether federal district courts can review OSC’s negative jurisdictional determinations, when used to terminate its investigations.
The amicus brief is also available here: