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Office of Legal Counsel

The Office of Legal Counsel (OLC) is an office in the United States Department of Justice that assists the Attorney General's position as legal adviser to the President and all executive branch agencies.

History

The Office of Legal Counsel was created in 1934 by an act of US 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.[1]

Responsibilities

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."[2] 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.[3]

Controversies

Trump Administration

During the Trump Administration, questions have been raised about OLC's capacity for exercising sound, apolitical legal judgment.[4] The Trump OLC has never publicly reached an outcome that has dissatisfied Attorney General Jeff Sessions or President Trump. Multiple executive orders that OLC has approved for lawfulness have, however, been invalidated by federal courts. For example, in November of 2017, a federal judge permanently enjoined Executive Order 13768, which stated that "sanctuary jurisdictions" including "sanctuary cities" who refused to comply with immigration enforcement measures would not be "eligible to receive Federal grants, except as deemed necessary for law enforcement purposes" by the U.S. Attorney General or Secretary of Homeland Security.[5]

OLC also approved as lawful President Trump's travel ban ("Travel Ban 1") on January 27, 2017.[4] OLC put its imprimatur on an executive order that prohibited all refugees, immigrants, non-immigrants (travelers, students, patients coming for surgery, etc.), and green card holders from certain Muslim-majority countries from setting foot on U.S. soil.[6] Gannon worked with Rosemary Hart and Scott Stewart of OLC, as well as with John Bash of the White House Counsel's Office, on the Order.[7] In emails, Stewart referred to the draft order as the "immigration EO about terrorists."[7] Emails also indicate that OLC intended to approve the Order notwithstanding potential concerns about its lawfulness, with Hart writing in an email a few hours before the Order was signed, "We of course are in a crunch time and we don't know what sort of leeway we have to be making changes."[7] On January 30, 2017, Acting Attorney General Sally Yates announced that the Department of Justice would not defend the Order in Court. She was fired that evening.[8] She has since testified that OLC did not notify her of the existence of the draft travel ban before it was issued.[9]

Notwithstanding OLC's conclusion that the Order was lawful, Travel Ban 1 was never endorsed by a single federal court. After a federal judge in Seattle temporarily blocked Travel Ban 1 from continuing in effect, and the 9th Circuit Court of Appeals upheld that decision, President Trump withdrew the Order and signed a new executive order, Travel Ban 2, which OLC also approved as lawful.[8] President Trump described Travel Ban 2 as a "watered down" version of the first Travel Ban Order, writing on Twitter that "People, the lawyers and the courts can call it whatever they want, but I am calling it what we need and what it is, a TRAVEL BAN!"[10] Federal district court judges in Hawaii and Maryland blocked Travel Ban 2 from going into effect, and the 4th Circuit Court of Appeals upheld the Maryland judge's determination.[11]

On September 24, 2017, President Trump issued a third travel ban executive order, Travel Ban 3, which OLC also approved as lawful. The Supreme Court, in Hawaii v. Trump, ultimately held that under the appropriate standard of review, the Court of Appeals erred in concluding that challengers to Travel Ban 3 were likely to succeed on the merits of their constitutional claim.[12] Justice Kennedy, who provided the fifth vote for that conclusion, authored a concurrence which indicated that while he believed that judicial review of the travel ban was circumscribed by the "foreign affairs power of the Executive," executive branch lawyers had an independent obligation to ensure that the President was not violating constitutional rights, an obligation they had not fulfilled. Justice Kennedy wrote that while there are "numerous instances in which the statements and actions of Government officials are not subject to judicial scrutiny or intervention," the "Constitution and the rights it proclaims and protects" are not "confined to those spheres in which the Judiciary can correct or even comment upon what those officials say or do." Indeed, it is "an urgent necessity that officials adhere to these constitutional guarantees and mandates in all their actions, even in the sphere of foreign affairs." And "the very fact that an official may have broad discretion, discretion free from judicial scrutiny, makes it all the more imperative for him or her to adhere to the Constitution and to its meaning and its promise."

Obama Administration

In the first two years of the Obama Administration, OLC at least twice reached an outcome with 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.[13] 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.[14]

George W. Bush Administration

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 use of enhanced interrogation techniques widely regarded as torture, including: mental and physical torment and coercion such as prolonged sleep deprivation, binding in stress positions, and waterboarding.

List of Assistant Attorneys General in charge of OLC

Name Years served Appointed by Notes
Angus D. MacLean 1933–1935 Franklin D. Roosevelt [15]
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 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
Robert Kramer 1959–1961 Dwight Eisenhower
Nicholas Katzenbach 1961–1962 John F. Kennedy
Norbert A. Schlei 1962–1966 John F. Kennedy
Frank H. Wozencraft 1966–1969 Lyndon Johnson
William H. Rehnquist 1969–1971 Richard Nixon Later nominated and confirmed as Associate, and subsequent Chief Justice of the U.S. Supreme Court.
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 [16]
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
Michael Luttig 1990–1991 George H. W. Bush
Timothy Flanigan 1991–1992 George H. W. Bush
Walter Dellinger 1993–1994 Bill Clinton Later became acting U.S. Solicitor General.
Beth Nolan 1995 acting [17] Served as acting Assistant AG, OLC, while Deputy Assistant Attorney General. Nominated to become Assistant AG, OLC, but Senate did not vote on the nomination. Became White House Counsel in 1996.
Dawn Johnsen 1996–1998 acting
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
Jay S. Bybee 2001 – March 2003 George W. Bush In charge when the OLC issued the Bybee memo and other Torture memos; appointed as a federal judge; started March 21, 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.
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.[18]
Karl R. Thompson 2014–2017 acting Appointed Principal Deputy AAG on March 24, 2014.[19]
Curtis E. Gannon 2017 acting Appointed Principal Deputy AAG on January 20, 2017.[20]
Steven Engel 2017–present Donald Trump

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

Current Political Appointees at the Office of Legal Counsel

Current political appointees at the Office of Legal Counsel include:[21]

  • Steven Engel, Assistant Attorney General
  • Curtis Gannon, Principal Deputy Assistant Attorney General
  • Henry Whitaker, Deputy Assistant Attorney General
  • Sarah M. Harris, Deputy Assistant Attorney General
  • Liam Hardy, Deputy Assistant Attorney General

References

  1. ^ Huston, Luther A. (1967). The Department of Justice. New York: Frederick A. Praeger.
  2. ^ "The President's Law Firm," Slate, January 6, 2009.
  3. ^ Klaidman, Daniel; Stuart Taylor Jr.; Evan Thomas (2006-02-06). "Palace Revolt". Newsweek. p. 34. Retrieved 2008-10-22.
  4. ^ a b "From the Travel Ban to Family Separations: Malevolence, Incompetence, Carelessness". Lawfare. 2018-07-03. Retrieved 2018-08-19.
  5. ^ CNN, Jeremy Diamond and Euan McKirdy,. "Judge issues blow against Trump's sanctuary city order". CNN. Retrieved 2018-08-19.
  6. ^ "Justice Department releases letter approving travel ban". POLITICO. Retrieved 2018-08-18.
  7. ^ a b c "FOIA Response from DOJ's Office of Legal Counsel".
  8. ^ a b CNN, Steve Almasy and Darran Simon,. "A timeline of President Trump's travel bans". CNN. Retrieved 2018-08-18.
  9. ^ "Trump White House kept travel ban secret from its first attorney general". mcclatchydc. Retrieved 2018-08-19.
  10. ^ "Trump slams Justice Department for 'watered down' travel ban". POLITICO. Retrieved 2018-08-18.
  11. ^ "Timeline of the Muslim Ban". ACLU of Washington. Retrieved 2018-08-18.
  12. ^ "Hawaii v. Trump, No. 17-965" (PDF).
  13. ^ Charlie Savage (June 17, 2011). "2 Top Lawyers Lost to Obama in Libya War Policy Debate". The New York Times.
  14. ^ Johnson, Carrie (2009-04-01). "Some in Justice Department See D.C. Vote in House as Unconstitutional". ISSN 0190-8286. Retrieved 2018-08-18.
  15. ^ Register, Department of Justice and the Courts of the United States, United States Government Printing Office (1972–1976), p. 131. "Office of Legal Counsel (Formerly Office of Assistant Solicitor General and Executive Adjudications Division," list of officeholders through 1973.
  16. ^ John M. Harmon bio Archived 2008-12-07 at the Wayback Machine., Graves, Dougherty, Hearon & Moody.
  17. ^ "Nolan to Become 1st Female White House Counsel". Los Angeles Times. August 20, 1999. Retrieved August 2, 2009.
  18. ^ [www.nationallawjournal.com]
  19. ^ [www.justice.gov]
  20. ^ "Meet the Leadership". justice.gov. United States Department of Justice. 20 January 2017. Retrieved 2017-06-04.
  21. ^ Benson, Brett (2017). Federal Yellow Book: Winter 2018.

External links