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Office of Legal Counsel

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United States Department of Justice
Office of Legal Counsel
Seal of the U.S. Department of Justice
Office overview
Formed1934; 90 years ago (1934)
JurisdictionFederal government of the United States
HeadquartersRobert F. Kennedy Department of Justice Building
950 Pennsylvania Avenue NW
Washington, D.C., United States
Office executive
Parent departmentU.S. Department of Justice
WebsiteOfficial website

The Office of Legal Counsel (OLC) is an office in the United States Department of Justice that supports the attorney general in their role as legal adviser to the president and all executive branch agencies. It drafts legal opinions of the attorney general and provides its own written opinions and other advice in response to requests from the counsel to the president, the various agencies of the executive branch, and other components of the Department of Justice. The office reviews and comments on the constitutionality of pending legislation. The office reviews any executive orders and substantive proclamations for legality if the president proposes them. All proposed orders of the attorney general and regulations that require the attorney general's approval are reviewed. It also performs a variety of special assignments referred by the attorney general or the deputy attorney general.[1]

History

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The Office of Legal Counsel was created in 1934 by an act of Congress, as part of a larger reorganization of executive branch administrative agencies. It was first headed by an assistant solicitor general. In 1951, attorney general J. Howard McGrath made it a division led by an assistant attorney, and named it the Executive Adjudications Division. This name was changed to Office of Legal Counsel in an administrative order by attorney general Herbert Brownell Jr., issued April 3, 1953.[2]

Responsibilities

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The Office of Legal Counsel (OLC) assists the attorney general of the United States in their function as legal adviser to the president and all the executive branch agencies, hence the appellation "the president's law firm."[3] OLC drafts legal opinions of the attorney general and also provides its own written opinions and oral advice in response to requests from the counsel to the president, the various agencies of the executive branch, and offices within the Department of Justice. Such requests typically deal with legal issues of particular complexity and importance or about which two or more agencies are in disagreement. The office also is responsible for providing legal advice to the executive branch on all constitutional questions and reviewing pending legislation for constitutionality.

Usually all executive orders and proclamations proposed to be issued by the president are reviewed by OLC for form and legality, as are various other matters that require the president's formal approval. In addition to serving as, in effect, outside counsel for the other agencies of the executive branch, OLC also functions as general counsel for the Department of Justice itself. It reviews all proposed orders of the attorney general and all regulations requiring the attorney general's approval.

According to press accounts, OLC has historically acted as a referee within the executive branch and its legal opinions have generally been given deference among the agencies and departments.[4] The Brennan Center for Justice described opinions of the Office of Legal Counsel as "authoritative legal interpretations that have the same legal force as the statutes they interpreted."[5]

Controversies

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George W. Bush administration

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Main articles: Torture Memos and Enhanced interrogation techniques

During President George W. Bush's first term in office, OLC deputy assistant attorney general John Yoo drafted, and assistant attorney general Jay S. Bybee signed, a set of legal memoranda that became known as the "torture memos." These memos advised the CIA and the Department of Defense that the president may lawfully authorize the torture of detainees (euphemistically referred to as "enhanced interrogation techniques"), including beating, binding in contorted stress positions, hooding, subjection to deafening noise, sleep disruption,[6] sleep deprivation to the point of hallucination, deprivation of food, drink, and withholding medical care for wounds, as well as waterboarding, walling, sexual humiliation, subjection to extreme heat or extreme cold, and confinement in small, coffin-like boxes.[7][8][9] The Justice Department's Office of Professional Responsibility (OPR) later concluded that Yoo committed "intentional professional misconduct" in advising the CIA that it could torture detainees[10][11]: 254  and that by signing Yoo's memorandum, Bybee had "acted in reckless disregard of his obligation to provide thorough, objective, and candid legal advice."[11]: 257 

In May 2005, during President George W. Bush's second term, a set of similar torture memos were approved by Steven G. Bradbury, who served as acting head of OLC from February 2005 through the remainder of President Bush's second term. Bradbury was first officially nominated on June 23, 2005, and then repeatedly re-nominated because of Senate inaction.[12] His position became a point of political friction between the Republican president and the Democratic-controlled 110th Congress, when Democrats contended that Bradbury was in the position illegally, while Republicans argued that Democrats were using his nomination to score political points.[13][14][15] An opinion issued by the Government Accountability Office concluded that his status was not a violation of the Federal Vacancies Reform Act of 1998.[16]

Obama administration

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In the first two years of the Obama Administration, OLC at least twice reached an outcome with which Administration officials disagreed. In June 2011, New York Times reporter Charlie Savage revealed that President Obama took the unusual step of overruling the Office of Legal Counsel's advice with respect to the legality of military action in Libya. OLC's written opinions have historically been considered binding on the executive branch, unless they are overturned by the attorney general or president.[17] In 2009, attorney general Eric Holder overturned an unpublished OLC opinion that had concluded that a D.C. voting rights bill pending in Congress was unconstitutional.[18]

Trump administration

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Further information: Legal challenges to the Trump travel ban

Early in the Trump administration, OLC approved Executive Order 13769 (referred to as the "travel ban" because it restricted entry from certain foreign countries which had Muslim-majority populations). Days later, acting attorney general Sally Yates announced that the Department of Justice would not defend the order in court.[19] Explaining her decision, Yates stated that OLC's review assessed only whether a "proposed executive order is lawful on its face and properly drafted," not outside evidence about the order's purposes or whether the policy of the order is "wise or just."[20] Yates was fired later that day.[19] Her successor as acting attorney general, Dana Boente, referenced OLC's analysis when he reversed her decision.[20] The executive order was challenged in court, then superseded by subsequent executive orders and presidential proclamations.[20]

In a United States Senate hearing, Yates was asked whether she was aware of any past instance of an attorney general rejecting an executive order that had been approved by OLC. Yates testified that she was not aware of that ever happening, but that she was also not aware of a situation in which OLC failed to tell the attorney general about an executive order before it was issued.[21]

Barr letter

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Main articles: Barr letter and Mueller report

In March 2019, the Mueller investigation delivered its final report to attorney general Bill Barr. Even before reading the report, Barr had already made the decision to clear Trump of obstruction of justice. Upon receiving the report, Barr tasked the OLC with preparing a memorandum that would pretextually justify Barr's decision, instead of providing candid counsel.[22][23][24] This memorandum was written in tandem with the Barr letter over the course of two days;[25] the final version was signed by Steven Engel and Ed O'Callaghan.[23][24][26][27] The D.C. Circuit held that the memo was not shielded from disclosure by the deliberative process privilege, because then-attorney general Barr had already determined, by the time the memo was written, that DOJ would not charge Trump with a crime, making the memo akin to a "thought experiment."[24]

Whistleblower complaint

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Main article: Trump–Ukraine scandal

In September 2019, Engel authored an OLC opinion[28] that the Justice Department should not forward the Trump–Ukraine scandal whistleblower complaint to Congress.[29] In an October 2019 letter, 67 inspectors general from the Council of the Inspectors General on Integrity and Efficiency sharply criticized the Justice Department's decision to withhold the complaint from Congress, describing the memo as having a "chilling effect on effective oversight" and being "wrong as a matter of law and policy." The inspectors general recommended the OLC memo be withdrawn or amended because it "effectively overruled the determination by the ICIG regarding an 'urgent concern' complaint" that the ICIG concluded was "credible and therefore needed to be transmitted to Congress."[30][31][32][33]

List of assistant attorneys general in charge of OLC

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Name Years served Appointed by Notes
Angus D. MacLean 1933–1935 Franklin D. Roosevelt[34]
Golden W. Bell 1935–1939 Franklin D. Roosevelt
Charles Fahy 1940–1941 Franklin D. Roosevelt
Oscar S. Cox 1942–1943 Franklin D. Roosevelt
Hugh B. Cox 1943–1945 Franklin D. Roosevelt
Harold W. Judson 1945–1946 Franklin D. Roosevelt
George T. Washington 1946–1949 Harry Truman
Abraham J. Harris 1950–1951 Harry Truman
Joseph C. Duggan 1951–1952 Harry Truman
J. Lee Rankin 1953–1956 Dwight Eisenhower Became Solicitor General of the United States in 1956.
W. Wilson White 1957 Dwight Eisenhower After a short tenure, selected to be first head of the Justice Department's Civil Rights Division.
Malcolm R. Wilkey 1958–1959 Dwight Eisenhower Later appointed to the United States Court of Appeals for the District of Columbia Circuit and served as United States Ambassador to Uruguay.
Robert Kramer 1959–1961 Dwight Eisenhower
Nicholas Katzenbach 1961–1962 John F. Kennedy Served as United States attorney general from 1965 to 1966.
Norbert A. Schlei 1962–1966 John F. Kennedy
Frank M. Wozencraft 1966–1969 Lyndon Johnson
William H. Rehnquist 1969–1971 Richard Nixon Later nominated and confirmed to the Supreme Court of the United States as Associate Justice and later Chief Justice.
Ralph E. Erickson 1971–1972 Richard Nixon
Roger C. Cramton 1972–1973 Richard Nixon
Antonin Scalia 1974–1977 Gerald Ford Later nominated and confirmed as Associate Justice of the U.S. Supreme Court.
John M. Harmon 1977–1981 Jimmy Carter [35]
Theodore B. Olson 1981–1984 Ronald Reagan Later became U.S. Solicitor General.
Charles J. Cooper 1985–1988 Ronald Reagan
Douglas Kmiec 1988–1989 Ronald Reagan Later U.S. Ambassador to the Republic of Malta during the "Arab Spring" uprisings.
William P. Barr 1989–1990 George H. W. Bush 77th and 85th (until December 2020) attorney general.
Michael Luttig 1990–1991 George H. W. Bush Appointed to the United States Court of Appeals for the Fourth Circuit in 1991.
Timothy Flanigan 1991–1992 George H. W. Bush
Walter Dellinger 1993–1996 Bill Clinton Later became acting U.S. Solicitor General.
Christopher Schroeder 1996 acting
Dawn Johnsen 1997–1998 acting First term as acting AAG; also nominated to the role under President Obama but the Senate neglected to take up the nomination[36]
Randolph D. Moss 1998–2001 Bill Clinton Served as acting AAG from 1998 to 2000; nominated November 9, 1999; recess-appointed August 3, 2000; confirmed by United States Senate December 15, 2000; appointed to the United States District Court for the District of Columbia in 2014.
Jay S. Bybee 2001 – March 2003 George W. Bush In charge when the OLC issued the Bybee memo and other Torture memos; appointed to the United States Court of Appeals for the Ninth Circuit in March 2003.
Jack Goldsmith October 2003 – June 2004 George W. Bush Later Professor at Harvard Law School and author of The Terror Presidency (2007)
Daniel Levin 2004–2005 acting
Steven G. Bradbury 2005–2009 acting Served as acting AAG 2005–2007 (nominated June 23, 2005; nomination approved by Senate Judiciary Committee but never voted on by full Senate), continued to function as senior appointed official in charge of OLC until January 20, 2009.
David J. Barron 2009–2010 acting Professor at Harvard Law School and served as acting AAG from January 2009 to July 2010; appointed to the United States Court of Appeals for the First Circuit in 2014.
Jonathan G. Cedarbaum 2010–2011 acting Served as acting AAG, July–November 2010; continued to function as senior appointed official in charge of OLC until the end of January 2011.
Caroline D. Krass 2011 acting Senior appointed official leading OLC since the end of January 2011 until June 2011, when Virginia A. Seitz was confirmed.
Virginia A. Seitz 2011–2013 Barack Obama Confirmed by the Senate in a voice vote on June 28, 2011. Resigned effective December 20, 2013.[37]
Karl R. Thompson 2014–2017 acting Appointed Principal Deputy AAG on March 24, 2014.[38]
Curtis E. Gannon 2017 acting Appointed Principal Deputy AAG on January 20, 2017.[39]
Steven Engel 2017–2021 Donald Trump
Dawn Johnsen 2021 acting Second term as acting AAG[36]
Christopher H. Schroeder 2021–2023 Joe Biden
Benjamin C. Mizer 2023 acting
Gillian E. Metzger 2023–2024 acting
Christopher Fonzone 2024–present Joe Biden

Only one woman, Obama-appointee Virginia Seitz, has served as the confirmed head of OLC.

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Current political appointees at the Office of Legal Counsel include:[40]

  • Christopher Fonzone, assistant attorney general
  • Benjamin C. Mizer, principal deputy assistant attorney general
  • Vacant, deputy assistant attorney general
  • Vacant, deputy assistant attorney general
  • Vacant, deputy assistant attorney general

See also

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Further reading

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  • Arnold, Jason Ross (2014). Secrecy in the Sunshine Era: The Promise and Failures of U.S. Open Government Laws. University Press of Kansas. ISBN 978-0700619924. See chapter 5.

References

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  1. ^ "OFFICE OF LEGAL COUNSEL". United States Department of Justice. Retrieved October 29, 2021.
  2. ^ Huston, Luther A. (1967). The Department of Justice. New York: Frederick A. Praeger.
  3. ^ Johnsen, Dawn (January 6, 2009). "The President's Law Firm". Slate.
  4. ^ Klaidman, Daniel; Stuart Taylor Jr.; Evan Thomas (February 6, 2006). "Palace Revolt". Newsweek. p. 34. Retrieved October 22, 2008.
  5. ^ Goitein, Elizabeth (October 18, 2016). The New Era of Secret Law, Brennan Center for Justice. Retrieved 11 June 2023.
  6. ^ Shane, Scott (June 3, 2007). "Soviet-Style 'Torture' Becomes 'Interrogation'". The New York Times.
  7. ^ Gross, Michael L. (2010). Moral Dilemmas of Modern War: Torture, Assassination, and Blackmail in an Age of Asymmetric Conflict. Cambridge University Press. p. 128. ISBN 978-0521685108. Retrieved July 30, 2018. enhanced interrogation techniques [...] include hooding or blindfolding, exposure to loud music and temperature extremes, slapping, starvation, wall standing and other stress positions and, in some cases, waterboarding. [...] In the United States, enhanced interrogation was reserved for terror suspects [...] These methods include shaking, slapping, beating, exposure to cold, stress positions and, in the United States, waterboarding.
  8. ^ Friedlander, Robert A.; Boon, Kristen E.; Levie, Howard S. (2010). Terror-Based Interrogation. Vol. 109. Oxford University Press. pp. 230–234. ISBN 978-0195398144. {{cite book}}: |work= ignored (help)
  9. ^ Laughland, Oliver (December 9, 2014). "How The CIA Tortured its Detainees". The Guardian. Retrieved December 15, 2014.
  10. ^ Isikoff, Michael (February 19, 2010). "Report: Bush Lawyer Said President Could Order Civilians to Be 'Massacred'". Newsweek. Archived from the original on September 7, 2014.
  11. ^ a b Department of Justice Office of Professional Responsibility (July 29, 2009). Investigation into the Office of Legal Counsel's Memoranda Concerning Issues Relating to the Central Intelligence Agency's Use of "Enhanced Interrogation Techniques" on Suspected Terrorists (PDF) (Report). United States Department of Justice. Retrieved July 1, 2020 – via aclu.org.
  12. ^ Presidential Nominations database Archived February 1, 2016, at the Wayback Machine, via THOMAS (accessed January 24, 2009).
  13. ^ Ackerman, Spencer (October 19, 2007). "Who Is Steve Bradbury?". Talking Points Memo.
  14. ^ Kiel, Paul (February 6, 2008). "White House Insists on Confirmation of Torture Memo Author". Talking Points Memo. Retrieved April 18, 2019.
  15. ^ "Webb opens, closes vacant Senate session". CNN. December 26, 2007. Retrieved October 26, 2019.
  16. ^ Kepplinger, Gary L. (June 13, 2008). "Federal Vacancies Reform Act of 1998-Assistant Attorney General for the Office of Legal Counsel, U.S. Department of Justice". Government Accountability Office. Retrieved June 1, 2017.
  17. ^ Savage, Charlie (June 17, 2011). "2 Top Lawyers Lost to Obama in Libya War Policy Debate". The New York Times. Retrieved July 3, 2020.
  18. ^ Johnson, Carrie (April 1, 2009). "Some in Justice Department See D.C. Vote in House as Unconstitutional". The Washington Post. ISSN 0190-8286. Retrieved August 18, 2018.
  19. ^ a b Almasy, Steve; Simon, Darran (March 30, 2017). "A timeline of President Trump's travel bans". CNN. Retrieved August 18, 2018.
  20. ^ a b c Arnsdorf, Isaac (February 2, 2017). "Justice Department releases letter approving travel ban". POLITICO. Retrieved November 7, 2019.
  21. ^ Ordoñez, Franco (May 8, 2017). "Trump White House kept travel ban secret from its first attorney general". mcclatchydc. Retrieved August 19, 2018.
  22. ^ Chaitin, Daniel (August 24, 2022). "DOJ releases memo advising Barr on not pursuing Trump obstruction charges". Washington Examiner. Retrieved August 29, 2022. 'The court's ... review of the memorandum revealed that the Department in fact never considered bringing a charge,' the panel wrote in its opinion. 'Instead, the memorandum concerned a separate decision that had gone entirely unmentioned by the government in its submissions to the court — what, if anything, to say to Congress and the public about the Mueller Report.' The panel added: 'We affirm the district court.'
  23. ^ a b Mallin, Alexander (August 24, 2022). "DOJ releases memo behind Barr's decision not to prosecute Trump for obstruction". ABC News. Retrieved August 29, 2022. DOJ officials previously told the court that the memo should be kept from the public because it involved internal department deliberations and the advice given to Barr about whether Trump should face prosecution. But a district judge ruled that Barr was never engaged in such a process and had already made up his mind to not charge Trump.
  24. ^ a b c Gerstein, Josh; Cheney, Kyle (August 19, 2022). "Appeals court backs ruling to release DOJ memo on Trump prosecution". Politico. Retrieved August 30, 2022. Srinivasan said the memo, co-authored by Assistant Attorney General for Legal Counsel Steven Engel and Principal Associate Deputy Attorney General Edward O'Callaghan, seemed more like a "thought experiment" because Barr decided before the memo was written that Trump would not be charged with a crime.
  25. ^ Tucker, Eric (May 5, 2021). "Judge orders Justice Dept. To release Trump obstruction memo". Associated Press. Retrieved August 29, 2022. In her order, Jackson noted that the memo prepared for Barr, and the letter from Barr to Congress that describes the special counsel's report, are 'being written by the very same people at the very same time. The emails show not only that the authors and the recipients of the memorandum are working hand in hand to craft the advice that is supposedly being delivered by OLC, but that the letter to Congress is the priority, and it is getting completed first,' the judge wrote.
  26. ^ Engel, Steven A.; O'Callaghan, Edward C. (March 24, 2019). "Memorandum for the Attorney General: Review of the Special Counsel's Report" (PDF). United States Department of Justice. Retrieved August 30, 2022 – via Citizens for Responsibility and Ethics in Washington.
  27. ^ Lucas, Ryan (August 24, 2022). "DOJ releases a Mueller-era memo to Barr on the decision not to prosecute Trump". NPR. Retrieved September 25, 2022.
  28. ^ "'Urgent Concern' Determination by the Inspector General of the Intelligence Community". justice.gov. September 3, 2019. Retrieved October 26, 2019.
  29. ^ "Declassified whistleblower complaint" (PDF). September 26, 2019 [August 12, 2019]. Archived from the original (PDF) on September 26, 2019.
  30. ^ Cohen, Zachary; Shortell, David (October 25, 2019). "Coalition of Inspectors General slam DOJ opinion on whistleblower complaint". CNN. Retrieved October 26, 2019.
  31. ^ Volz, Dustin (October 25, 2019). "U.S. Watchdog Council Says Justice Department Erred in Blocking Whistleblower Complaint". The Wall Street Journal. Retrieved October 26, 2019.
  32. ^ Council of the Inspectors General on Integrity and Efficiency (October 22, 2019). "Letter to Steven A. Engel" (PDF). ignet.gov. Retrieved October 26, 2019.
  33. ^ Naham, Matt (October 25, 2019). "IG Handling FISA Probe, Others Blast OLC for Concluding Whistleblower Complaint Wasn't 'Urgent Concern'". lawandcrime.com. Retrieved October 26, 2019.
  34. ^ Register, Department of Justice and the Courts of the United States (1972–1976). United States Government Printing Office. 1972. p. 131. Office of Legal Counsel (Formerly Office of Assistant Solicitor General and Executive Adjudications Division, list of officeholders through 1973.
  35. ^ John M. Harmon bio Archived 2008-12-07 at the Wayback Machine, Graves, Dougherty, Hearon & Moody.
  36. ^ a b "IU professor Dawn Johnsen sworn in as counselor for DOJ". Indiana Daily Student.
  37. ^ Mauro, Tony (February 24, 2014). "Virginia Seitz Leaves DOJ Office of Legal Counsel". Legal Times. National Law Journal.
  38. ^ "Meet the Assistant Attorney General". Justice.gov. January 11, 2018. Archived from the original on November 26, 2014. Retrieved June 17, 2019.
  39. ^ "Meet the Leadership". justice.gov. United States Department of Justice. January 20, 2017. Retrieved June 4, 2017.
  40. ^ Benson, Brett (2017). Federal Yellow Book: Winter 2018.
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