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
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.[4] 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."[5] Yates was fired later that day.[4] Her successor as acting attorney general, Dana Boente, referenced OLC's analysis when he reversed her decision.[5] The Executive Order was challenged in court, then superseded by subsequent Executive Orders and Presidential Proclamations.[5]

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.[6]

Obama Administration

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.[7] 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.[8]

George W. Bush Administration
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,[9] 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.[10][11][12] 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[13][14]: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."[14]: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.[15] 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.[16][17][18] An opinion issued by the Government Accountability Office concluded that his status was not a violation of the Federal Vacancies Reform Act of 1998.[19]

List of Assistant Attorneys General in charge of OLC
This list is incomplete; you can help by expanding it.
NameYears servedAppointed byNotes
Angus D. MacLean1933–1935Franklin D. Roosevelt[20]
Golden W. Bell1935–1939Franklin D. Roosevelt
Charles Fahy1940–1941Franklin D. Roosevelt
Oscar S. Cox1942–1943Franklin D. Roosevelt
Hugh B. Cox1943–1945Franklin D. Roosevelt
Harold W. Judson1945–1946Franklin D. Roosevelt
George T. Washington1946–1949Harry Truman
Abraham J. Harris1950–1951Harry Truman
Joseph C. Duggan1951–1952Harry Truman
J. Lee Rankin1953–1956Dwight EisenhowerBecame Solicitor General of the United States in 1956.
W. Wilson White1957Dwight EisenhowerAfter a short tenure, selected to be first head of the Justice Department's Civil Rights Division.
Malcolm R. Wilkey1958–1959Dwight EisenhowerLater appointed to the United States Court of Appeals for the District of Columbia Circuit and served as United States Ambassador to Uruguay.
Robert Kramer1959–1961Dwight Eisenhower
Nicholas Katzenbach1961–1962John F. KennedyServed as United States Attorney General from 1965-1966.
Norbert A. Schlei1962–1966John F. Kennedy
Frank M. Wozencraft1966–1969Lyndon Johnson
William H. Rehnquist1969–1971Richard NixonLater nominated and confirmed to the Supreme Court of the United States as Associate Justice and later Chief Justice.
Ralph E. Erickson1971–1972Richard Nixon
Roger C. Cramton1972–1973Richard Nixon
Antonin Scalia1974–1977Gerald FordLater nominated and confirmed as Associate Justice of the U.S. Supreme Court.
John M. Harmon1977–1981Jimmy Carter [21]
Theodore B. Olson1981–1984Ronald ReaganLater became U.S. Solicitor General.
Charles J. Cooper1985–1988Ronald Reagan
Douglas Kmiec1988–1989Ronald ReaganLater U.S. Ambassador to the Republic of Malta during the "Arab Spring" uprisings.
William P. Barr1989–1990George H. W. Bush77th and 85th (current, as of 2019) Attorney General.
Michael Luttig1990–1991George H. W. BushAppointed to the United States Court of Appeals for the Fourth Circuit in 1991.
Timothy Flanigan1991–1992George H. W. Bush
Walter Dellinger1993–1996Bill ClintonLater became acting U.S. Solicitor General.
Christopher Schroeder1996acting
Dawn Johnsen1997–1998acting
Randolph D. Moss1998–2001Bill ClintonServed 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. Bybee2001 – March 2003George W. BushIn 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 GoldsmithOctober 2003 – June 2004George W. BushLater Professor at Harvard Law School and author of The Terror Presidency (2007)
Daniel Levin2004–2005acting
Steven G. Bradbury2005–2009actingServed 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. Barron2009–2010actingProfessor at Harvard Law School and served as Acting AAG from January 2009 to July 2010.
Jonathan G. Cedarbaum2010–2011actingServed 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. Krass2011actingSenior appointed official leading OLC since the end of January 2011 until June 2011, when Virginia A. Seitz was confirmed.
Virginia A. Seitz2011–2013Barack ObamaConfirmed by the Senate in a voice vote on June 28, 2011. Resigned effective December 20, 2013.[22]
Karl R. Thompson2014–2017actingAppointed Principal Deputy AAG on March 24, 2014.[23]
Curtis E. Gannon2017actingAppointed Principal Deputy AAG on January 20, 2017.[24]
Steven Engel2017–presentDonald 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 include:[25]

  • Steven Engel, Assistant Attorney General
  • Curtis Gannon, Principal Deputy Assistant Attorney General
  • Henry Whitaker, Deputy Assistant Attorney General
  • Liam Hardy, Deputy Assistant Attorney General
  • Jennifer Mascott, Deputy Assistant Attorney General

Further reading
  • 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.
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References
  1. Huston, Luther A. (1967). The Department of Justice. New York: Frederick A. Praeger.
  2. Johnsen, Dawn (January 6, 2009). "The President's Law Firm". Slate.
  3. Klaidman, Daniel; Stuart Taylor Jr.; Evan Thomas (February 6, 2006). "Palace Revolt". Newsweek. p. 34. Retrieved October 22, 2008.
  4. Steve Almasy; Darran Simon (March 30, 2017). "A timeline of President Trump's travel bans". CNN. Retrieved August 18, 2018.
  5. Arnsdorf, Isaac (February 2, 2017). "Justice Department releases letter approving travel ban". POLITICO. Retrieved November 7, 2019.
  6. Ordoñez, Franco (May 8, 2017). "Trump White House kept travel ban secret from its first attorney general". mcclatchydc. Retrieved August 19, 2018.
  7. Savage, Charlie (June 17, 2011). "2 Top Lawyers Lost to Obama in Libya War Policy Debate". The New York Times. Retrieved July 3, 2020.
  8. 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.
  9. Shane, Scott (June 3, 2007). "Soviet-Style 'Torture' Becomes 'Interrogation'". The New York Times.
  10. 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.
  11. Friedlander, Robert A.; Boon, Kristen E.; Levie, Howard S. (2010). Terror-Based Interrogation. Terrorism: Commentary on Security Documents. 109. Oxford University Press. pp. 230–234. ISBN 978-0195398144.
  12. Oliver Laughland (December 9, 2014). "How The CIA Tortured its Detainees". The Guardian. Retrieved December 15, 2014.
  13. 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.
  14. 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.
  15. Presidential Nominations database, via THOMAS (accessed January 24, 2009).
  16. Ackerman, Spencer (October 19, 2007). "Who Is Steve Bradbury?". Talking Points Memo.
  17. Kiel, Paul (February 6, 2008). "White House Insists on Confirmation of Torture Memo Author". Talking Points Memo. Retrieved April 18, 2019.
  18. "Webb opens, closes vacant Senate session". CNN. December 26, 2007. Retrieved October 26, 2019.
  19. 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.
  20. {{cite book |url=https://books.google.com/books?id=xpy0AAAAIAAJ |title=Register, Department of Justice and the Courts of the United States (1972–1976) |publisher=United States Government Printing Office |page=131 |quote=Office of Legal Counsel (Formerly Office of Assistant Solicitor General and Executive Adjudications Division, list of officeholders through 1973.
  21. John M. Harmon bio Archived 2008-12-07 at the Wayback Machine, Graves, Dougherty, Hearon & Moody.
  22. Mauro, Tony (February 24, 2014). "Virginia Seitz Leaves DOJ Office of Legal Counsel". Legal Times. National Law Journal.
  23. "Meet the Assistant Attorney General". Justice.gov. January 11, 2018. Archived from the original on November 26, 2014. Retrieved June 17, 2019.
  24. "Meet the Leadership". justice.gov. United States Department of Justice. January 20, 2017. Retrieved June 4, 2017.
  25. Benson, Brett (2017). Federal Yellow Book: Winter 2018.
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