The Real Decline of OLC

In 2015, Jack Goldsmith wrote a series of blog posts about what he termed the “Decline of OLC.” Goldsmith opined that “there is no doubt that OLC’s authority and influence have in general diminished by comparison to prior administrations of both parties” and that “OLC’s advice is now sought much less than in the past, especially in national security decisions.”

As is typical of his work, Professor Goldsmith was careful to avoid conflating a descriptive point with a normative assessment of it. But, at the time, I remember thinking that although I could not evaluate the descriptive point — I had just started working at OLC and had no idea how the volume of work in the Office compared to prior periods — normatively, I wondered if being less involved was such a bad thing. After all, during OLC’s worst years — the era of the infamous Torture Memos — OLC’s problem was certainly not that it wasn’t included enough. It was OLC’s deep involvement with and approval of problematic and controversial policies that so damaged the Office.

Indeed, as I’m sure Goldsmith would agree, OLC’s power derives not only from its involvement in executive branch decisions, but also from its legitimacy. Executive branch policymakers have plenty of options to obtain legal advice. Historically, they have come to OLC when necessary, because it has a reputation for the highest quality legal work, and for giving its “best understanding of what the law requires,” rather than an advocate’s analysis of how to approve of proposed action. The more OLC can cultivate this reputation, the more valuable its opinion is, and the more power it has.

OLC’s long-term legitimacy, however, might sometimes be in tension with its involvement. After all, the more OLC unfailingly says “Yes” to proposed executive action, the more the White House Counsel will be tempted to ask its view. Increased involvement might thus sometimes (but not always) be the result of reliably saying “Yes” — conduct that is likely to decrease OLC’s legitimacy. Indeed, warranted or not, any highly publicly involved OLC risks being perceived as a rubber stamp. In short, assessing OLC’s power requires considering not only OLC’s involvement in executive branch decision making, but also its legitimacy, and the two might sometimes work at cross-purposes.

This brings us to today. If we were witnessing a decline of OLC’s involvement in 2015, times have certainly changed. In recent months, OLC has been on the frontlines defending some of the Trump Administration’s most politically fraught policies. It approved President Trump’s proclamation reallocating funds to pay for his long sought-after border wall. It was the legal face of the Secretary of Treasury’s refusal to turn over President Trump’s personal tax returns to Congress. It has provided the legal justification for some of the Trump White House’s most extreme claims relating to executive privilege. And, most recently, it provided the public legal justification for the Trump Administration’s initial refusal to turn over the Ukraine whistleblower complaint to Congress.

In my view, OLC’s very public involvement in the most controversial policies of this White House has done great harm to the Office’s legitimacy. It may be inevitable that the more OLC publicly defends controversial or high-profile presidential policies in any administration the more its legitimacy is harmed, but I think two patterns of conduct in recent months have helped exacerbate this harm. First, OLC’s legal analysis has been at times extreme, and, at others, only barely defensible even on its own flawed terms. Second, OLC has put the Office’s institutional credibility on the line in situations that seem more closely tied to the personal political interests of this President than any institutional interest of the Presidency. Historically, OLC has frequently been critiqued for its purportedly overly expansive view of the President’s executive power to enact policies, but I cannot recall it being so involved in the President’s personal political scandals.

First, OLC’s legal analysis has fallen short of what we might expect from an office seeking to provide the “best understanding of what the law requires.” Some of its recent public positions have been, in my view, plainly extreme. For example, take OLC’s opinion justifying the Secretary of Treasury’s refusal to turn over the President’s tax returns after they were requested by the Chairman of the House Ways and Means Committee. Despite statutory language stating that the Secretary “shall furnish” tax-return information “upon written request” from the committee chair, OLC found that, because the Secretary of Treasury had “reasonably concluded” that the committee chair’s “true” motive was political rather than “legitimately legislative,” he did not need to abide by the statute. I am sure many past administrations believed that Congress’s conduct was motivated by political, rather than “legitimate legislative” purposes, but I am not aware of any instance where OLC has tried to make this the line upon which the President’s duty to “take Care that the Laws be faithfully executed” turns. To put it mildly, it is unclear how the Secretary of the Treasury (or OLC) can reliably differentiate between situations where Congress’s motive is “truly” political rather than “legitimate[ly] legislative.” It takes no great congressional scholar to know that it is hard to disentangle Congress’s legislative motives from political considerations. And, apart from the President’s tax returns, the opinion’s underlying reasoning is perhaps even more concerning as it seems to give the President the unprecedented power to avoid enforcing laws whenever he “reasonably concludes” – a rather low threshold – that the laws were “truly” motivated by politics rather than “legitimate legislative purposes.” Beyond the tax return opinion, OLC’s defense of the Trump Administration’s unprecedented executive privilege assertions could also fairly be called “extreme.” Such extreme interpretations obviously undermine OLC’s reputation for even-handed, disinterested analysis.

But, even where OLC’s positions have been less extreme, they have still often fallen short of the “best view” of the law. On these occasions, OLC’s argument might be facially defensible, but only if one fixates on hyper-narrow statutory textual analyses that only come into focus by ignoring glaringly relevant legal context to the point of being obtuse. Take OLC’s reported approval of the proclamation authorizing the construction of the Border Wall. That proclamation relied in part on a statutory provision giving the President the power to reallocate funds for “military construction projects” upon declaring a “national emergency.” I can imagine an argument that the construction of the Border Wall could in the abstract qualify as a “military construction project[],” but one only gets to this question by ignoring the fact that the longest government shutdown in American history had just been precipitated by Congress’s continued and clear refusal to fund that very wall. Could Congress really have intended that this seemingly random statutory provision be used to authorize construction of the wall in this context, so long as the President all-of-a-sudden declared a “national emergency” and claimed the wall was, in fact, a “military construction project[]”? (It is possible that OLC addressed this issue internally, but it has not released a full legal analysis).

The opinion recently released to justify the acting Director of National Intelligence’s refusal to turn over the whistleblower complaint seems similarly obtuse. That opinion focused on the narrow statutory question of whether the allegation that President Trump had pressured the President of Ukraine to investigate Joe Biden in order to advance his reelection campaign qualified as an “urgent concern” relating to “the administration or operation of an intelligence activity” such that the DNI had to transmit the complaint to Congress. OLC’s focus on this narrow textual question, however, required ignoring the implication from the larger statutory scheme that seems to require that the DNI transmit any whistleblower complaint that the Inspector General (IG) deems “credible” and of “urgent concern,” as the IG had here. The statute does not anywhere suggest that the IG can be overruled on these findings. And, as Steve Vladeck succinctly put it, “it wouldn’t make sense to allow political leaders of the intelligence community [like the DNI] to be able to suppress whistleblower complaints that could very well be about them.” Perhaps OLC might have disagreed with this view, but it didn’t even raise this threshold issue in the opinion.

Even less defensible was OLC’s failure to assess the complaint’s alternative allegation that White House officials misused a highly sensitive classified computer system to cover up the call. This allegation would seem to fall even more squarely under the statutory definition of “urgent concern” relating to the “administration or operation of an intelligence activity” within the responsibility of the DNI “involving classified information.” But, OLC never bothers to explain why this allegation was insufficient to trigger transmittal. Instead, it dismisses the allegation in a footnote because “the []IG did not discuss” it in concluding the complaint required transmittal to Congress. Of course, the IG had already found the complaint qualified for transmittal based on the allegation relating to President Trump’s conduct, so there was no need to assess the allegation relating to abuse of the classification system. The obvious thing to do would have been to see if the IG would have nonetheless found the complaint satisfied the statutory criteria based on this alternative allegation, or to explain why this allegation also fell outside the scope of the statute. OLC’s choice to simply ignore this allegation was, in my view, indefensible.

But, what is perhaps most remarkable about this example is the broader context in which OLC was operating. OLC was the public justification for the administration’s refusal to turn over a whistleblower complaint alleging an extremely serious abuse of power by the President. It did so through a published opinion that could predictably be critiqued as thin, gratuitously critical of the whistleblower’s complaint, and, even, misleading. And, it did all this essentially for nothing. The next day, the whistleblower complaint was released. The classified version of the OLC opinion was released. OLC put its credibility on the line, and the only thing gained was less than a day of political cover for the President.

Which brings me to my last point. The aspect that has perhaps most harmed OLC’s legitimacy has been its role as the public legal defense not just of controversial and expansive presidential power, but of the President’s personal political interest. Why was OLC engaging at all with whether President Trump’s personal tax returns should be released to Congress? This was not a question relating to some important executive branch policy. Why should OLC be called on to intervene here? Similarly, why was OLC engaging at all with whether serious allegations of abuse of power by the President ought to be relayed to Congress? Again, OLC did not appear to be defending some constitutional presidential power or policy here.  It claimed to be doing a standard textual analysis, but it did so in the service of preventing the personal political fallout from an extremely serious allegation of abuse of office being transmitted to Congress. It is certainly true that OLC has been historically criticized for being a shill for the institutional interests of the Presidency, but I do not recall it being criticized as being a shill for the personal, political interests of a particular President.

Some might respond to this post by noting that there is nothing new about OLC being the public face of controversial legal policies or about its being criticized for failing to provide a disinterested, “best view” of the law (think of OLC’s support for the use of force in Libya or President Obama’s DACA policy). What strikes me as different in this situation has been the combination of the rapid succession of OLC publicly defending controversial legal policies, the sometimes extreme and otherwise tenuous legal analysis used in these instances, and the nature of the interests being protected here relating to the personal political scandals of the President, rather than the President’s policy priorities or powers. This combination seems novel to me, and I think it has done significant damage to the Office.

I do not mean to suggest that this state of affairs is entirely in OLC’s control. OLC can control the legal analysis it puts forward, but it cannot refuse to answer a question that it is formally asked by, say, the White House Counsel. That said, OLC might well try to explain to the White House Counsel that it serves the long-term interest of the Presidency for OLC to maintain its legitimacy, and that such legitimacy might be harmed by its being used as the consistent legal defense for controversial presidential conduct, particularly as it relates to the President’s personal political interests. It could also relay such equities in informal discussions that might predate particular formal requests for advice. We simply do not know what the internal process looked like for how OLC came to be the public legal face for these policies. But, whoever is primarily responsible, the point is that this state of affairs has hurt the Office’s long-term power. Finally, I also do not mean to suggest that the most important question in assessing executive branch lawyering is OLC’s power. The proper role of OLC within executive branch lawyering has been discussed at great length elsewhere. The point I am making here is narrower. Regardless of whose “fault” it is or what the ideal amount of long-term power is for OLC, that power is, in my view, in decline.

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To be sure, in the short-term, OLC might seem quite powerful. It is clearly involved in the hot-button issues of the day, and has an apparently close working relationship with the White House. But, I think this very involvement will have serious long-term costs for OLC. For OLC to have power, it must differentiate itself from the myriad other executive branch lawyers seeking to defend the President’s preferred policies. To do this, the Office must develop a reputation as principled and disinterested. OLC would do well to remember that what sets it apart is not its seat at the table, but what it says once it’s there.

I will close by confessing that I care deeply about OLC, an Office in which it was my absolute privilege to serve. And, although I have been rather critical of the Office’s recent work in this post, I do not think its continued decline is inevitable. While I believe we are witnessing a real decline of OLC, I still have hope it can be reversed. And the path toward that goal might start by its stepping back, rather than forward.

 

Photo credit: Kiyoshi Tanno/Getty Images

 

About the Author(s)

Shalev Roisman

Shalev Roisman is an Associate Professor of Law at the James E. Rogers College of Law at the University of Arizona. He served as an Attorney-Adviser in the Office of Legal Counsel at the U.S. Department of Justice. His posts represent the views of the author alone. Follow him on Twitter (@Shalev_Roisman).