Key Government Legal Offices Need Permanent Leadership

The Obama administration is confronting a range of foreign crises. Options for responding will continue to present difficult questions of both domestic and international law. And in the midst of these challenges, two of the government’s most important legal offices do not have confirmed leaders.

This situation is not new, but with each day that passes it becomes more worrying. The Office of Legal Counsel (OLC), which provides “controlling advice to Executive Branch officials on questions of law,” has lacked a confirmed Assistant Attorney General since last December. And the Legal Adviser to the State Department (L)—an office with unique historical credibility on questions of international law—has not been in place since January of 2013. The reason is not Senate obstruction (at least overtly): the White House has no pending nomination for either position.

These nominations should be made at the earliest possible opportunity. The vacancies pose subtle but important risks for the quality of legal dialogue within the administration. No office benefits from the flux of temporary leadership or the message that its work does not merit the President’s properly staffing it. Among the most significant effects: These offices, even if the quality of their work does not suffer, may lose the full ear of Cabinet secretaries and other parts of government, who respond to signals of presidential favor. Providing permanent leadership empowers a “voice in the room” uniquely equipped to weigh in on legal questions, encouraging greater attention to legal risks and restrictions and reducing the temptation to ignore or downplay them. No matter the skill of senior administration officials or their experience with questions of law, they cannot replace the work of dedicated lawyers fully empowered in their positions. And in extreme situations, acting heads may find themselves with less credibility to retract or revise prior legal opinions, or to wield threats of resignation.

Both the OLC AAG and L’s Legal Adviser are Senate-confirmed positions. It is vital to their status and importance within the Executive Branch and in interactions with Congress. Involvement of the Senate may also be the reason why these positions are not being filled. Preparing for hearings and managing the reaction to them takes time from administration staff, and can generate headaches and negative headlines. Majority Leader Reid is also already facing a busy calendar.

For those reasons one can understand why political enthusiasm for filling these positions might be low, and why the administration may believe it can muddle through. These offices, in the interim, have been under acting leadership from deputies, and there is no reason to question the work of these temporary leaders. There will never be an ideal moment, however, for staffing these positions. Complex legal questions and matters of high importance will continue to arise, as they have since the beginning of Obama’s term, in matters ranging from targeted killing to the War Powers Resolution (as well as countless other examples).

Like the situation itself, complaints over this state of affairs are not new. Ben Wittes commented on the vacancy at L in August 2013; Ryan Goodman raised the importance of L as a position of “moral conscience” in December. John Bellinger, former Legal Adviser to the second Bush Administration, criticized the administration just last month for continuing to leave his prior position vacant. The situation at the OLC, more recent but now stretching past two-thirds of a year, is also not news, even as 2014 has seen major attention to OLC’s work during President Obama’s first term.

Further, the administration has proven that it can fill positions in important legal offices. General counsels for Defense and the CIA, and the AAG for the DOJ’s National Security Division, have been appointed and confirmed in the past year. Undoubtedly these nominations required investments of time and effort, and presented the potential for political embarrassment. The administration carried them through nonetheless, and it is more than past time to do the same with OLC and L. White House Counsel Neil Eggleston, Attorney General Holder, and Secretary of State Kerry should back efforts to fill these positions. 

About the Author(s)

Eric Messinger

Former Assistant Managing Editor of Just Security Follow him on Twitter (@egmessinger).