As President-Elect Joe Biden announces his picks for cabinet positions, the Nation’s focus has increasingly turned to the challenges facing the incoming administration. One such challenge will be revitalizing the Office of Legal Counsel (OLC), a small component of the Department of Justice (DOJ) that has long played a crucial role in helping the president carry out the constitutional duty to “take Care that the Laws be faithfully executed.” OLC, along with the rest of DOJ, has suffered significant reputational damage during the Trump administration, which has repeatedly attempted to use the Department for its own political ends.
Over the summer, the American Constitution Society (ACS) held a convening that brought together OLC alumni and legal experts to discuss the issues facing OLC and how the Office’s standing as a source of independent, principled legal advice can be restored. The resulting recommendations from the group (entitled The Office of Legal Counsel and the Rule of Law), as well as a companion Issue Brief that I wrote detailing the unique challenges of reforming OLC, provide a roadmap to revitalize OLC in the new administration. In this article I will draw on the ACS paper and issue brief to outline the role of OLC, its recent challenges and intermittent reforms, and some key steps that the next administration should take to restore the Office’s independence and credibility.
OLC’s Obligation to Provide Candid, Independent Legal Advice
OLC exercises delegated authority from the attorney general in advising the president and executive branch agencies on the constitutionality and legality of proposed actions. As the primary expositor of binding legal advice in the executive branch, OLC prides itself on providing “candid, independent, and principled advice – even when that advice is inconsistent with the aims of policymakers.”
OLC attorneys often describe this duty as an obligation to provide advice based on the Office’s “best view” of the law. Of course, OLC is ultimately subordinate to the president and the attorney general, who are themselves democratically accountable actors. OLC is therefore not “independent” in the same way that an Article III court is. Accordingly, in forming its best view of the law, OLC’s advice should be expected to reflect institutional considerations unique to the executive branch. Those considerations, however, should never determine the outcome of a legal question or result in a mere rubber stamp of the president’s preferred policy.
In recent years, however, OLC has faced criticism that it has abdicated this traditional role in favor of facilitating the president’s political interests. Commentators have pointed to, for example, OLC’s approval of President Trump’s travel ban, OLC’s opinion justifying withholding the president’s tax returns from Congress, and OLC’s conclusion that the administration was not required to transmit to Congress a whistleblower complaint alleging that Trump had asked Ukraine to investigate his political opponent.
It is true that, across administrations, OLC has sometimes been criticized for advancing a purportedly too-aggressive view of executive power. (As previously explained, I do not agree that a desire to protect the executive’s institutional interests, without more, is necessarily inappropriate given OLC’s position within the executive branch.) But, as one of my former OLC colleagues recently explained, two features of some of OLC’s Trump-era opinions are particularly troubling: “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.” In addition, as the ACS Rule of Law document recognizes, “Over the last four years, the Office has issued and made publicly available opinions that arguably distort the separation of powers by brooking no recognition for Congress’s prerogatives as a co-equal branch, in high-visibility disputes with Congress over politically charged legal questions.” These factors have fueled suspicions that OLC has strayed from its well-established mandate to provide independent legal advice based on its best view of what the law requires.
If this concern sounds familiar, it is: In 2004, OLC became the focus of public scrutiny when the Office’s classified memoranda justifying the use of torture leaked to the media. In the aftermath of those revelations, OLC was pointedly and appropriately criticized for “abandon[ing] fundamental practices of principled and balanced legal interpretation” to justify the Bush administration’s desired, unlawful outcome. After an investigation, the Justice Department’s Office of Professional Responsibility (OPR) concluded in 2009 that the assistant attorney general and deputy assistant attorney general primarily responsible for the memoranda committed professional misconduct when they failed to “exercise independent legal judgment and render thorough, objective, and candid legal advice.” (However, then-Associate Deputy Attorney General David Margolis overruled OPR’s finding of misconduct and declined to refer the case for professional discipline, arguing that OPR failed to identify a “known, unambiguous obligation or standard” of attorney conduct that the OLC attorneys violated.) In the years following, OLC implemented several reforms, including written best practices, aimed at ensuring that such abuses would not recur and reaffirming the Office’s commitment to providing principled legal advice based on its best view of the law.
Barriers to Reform
It’s now 2020, and the renewed discourse over OLC’s independence raises several questions: most obviously, why did past reforms fail (or, at a minimum, fail to become permanent), and what can be done about it? As I recently wrote for ACS, like many government institutions, OLC depends on adherence to certain crucial norms and traditions to function as intended. No statute requires OLC to provide independent legal advice based on its best view of the law, as opposed to merely facilitating the president’s political goals. Nor is the binding nature of OLC’s opinions on executive branch actors, or those actors’ obligation to seek such opinions, mandated by law. Indeed, any attempt to enshrine these various principles into statute or otherwise micromanage the manner in which the president receives legal advice would be constitutionally questionable because it would trigger substantial separation-of-powers concerns.
Moreover, OLC is uniquely susceptible to pressures within the executive branch, which can make voluntarily adhering to best practices challenging even in the most scrupulous of administrations – and can cause a significant breakdown of norms in less-conscientious ones. These pressures, which I address more fully in my ACS Issue Brief (and which have been explored extensively in the academic writing cited therein), include the fact that OLC is situated within the politically accountable executive branch and headed by politically appointed leadership, who may be more attuned to the president’s agenda and less familiar with the Office’s culture and norms. In addition, because OLC’s advice is binding only by tradition – and because more recently OLC has found itself vying with other administration lawyers for influence, particularly in the national security space – the Office may at times feel tempted to say yes to preserve its seat at the table.
Restoring OLC: Separation of Powers, Independence, and Accountability
Given these realities, restoring OLC’s status as the gold standard for independent, professional legal advice in the executive branch will require a public recommitment to norms and best principles by strong leaders who put a premium on integrity and good faith. The document that resulted from the ACS convening, The Office of Legal Counsel and the Rule of Law, provides a valuable roadmap of the types of reforms that the new administration may wish to consider.
As the piece suggests, OLC’s work should be grounded in three related, overarching principles, which have historically guided the Office’s work but also have sometimes presented OLC with challenges: respect for the separation of powers, providing independent legal advice, and accountability. OLC has long had a special duty to interpret and defend the constitutional separation of powers. Navigating these issues requires applying case law and OLC’s own precedent faithfully, balancing the need to protect executive branch prerogatives with yielding to the interests of a coequal branch when appropriate. Providing independent legal advice – based on OLC’s best view of the law rather than on political or policy considerations – furthers these principles by ensuring that the president exercises power lawfully and respects the prerogatives of the coequal branches. And a good-faith, robust commitment to transparency, which includes the timely publication of OLC opinions, can help ensure accountability on these and other issues.
The Rule of Law paper recommends that, to advance these broad principles, OLC implement a series of specific reforms. First, OLC should undertake a retrospective review of its recent work “to identify opinions or advice that fail to promote a legitimate interpretation of the law at issue, or that advance a conception of the separation of powers that unduly shields the president or the executive branch from scrutiny and accountability.” In particular, this review should focus on advice regarding executive branch relations with Congress and the use of law enforcement and national security authorities, which are the known areas of greatest concern. Such a review will enable OLC to identify any problematic approaches to legal questions in these areas that should be reconsidered or repudiated.
Second, OLC should publicly issue updated guidance in two important areas: best practices for the Office and the separation of powers. As an initial matter, since 2005, OLC has been guided by memoranda setting forth best practices that should form the basis of OLC’s approach to opinion writing and executive branch legal interpretation more generally. The current iteration of this memorandum has not been updated since 2010. As soon as possible, the Office should publish an updated memorandum reaffirming these best practices, emphasizing that OLC’s advice should be based on its best view of the law rather than on political considerations. In addition, the memorandum should set forth specific safeguards to ensure OLC’s ability to give independent advice. Such safeguards might include reaffirming the norm that OLC seek the views of the affected agencies before writing an opinion and, as described in the Rule of Law paper, “an express agreement between OLC and the White House Counsel’s Office about the nature of their relationship. Ideally that relationship would be at arms’ length, with the expected channels of communication clearly articulated and regularized.” Issuing a new best practices memo with these and other principles spelled out would send a strong message to the public and to OLC attorneys that complying with best practices and a commitment to providing objective, candid legal advice are priorities that define OLC’s work.
The Office should also update its guidance on separation-of-powers doctrine to reflect developments in the law and to underscore the importance of interbranch comity and accommodation. The current guidance, colloquially known as the “Dellinger memo,” was written in 1996 and has served as an important resource for several generations of OLC attorneys. The Dellinger memorandum generally takes a balanced approach, emphasizing the legitimate need to protect executive branch prerogatives when appropriate, but also making clear that OLC should take into account the interests of the coequal branches whenever separation-of-powers questions arise. But in the time since the Dellinger memo was issued, the Supreme Court has handed down important cases addressing core separation-of-powers issues, including the appointment and removal powers, and Congress passed the Federal Vacancies Reform Act (in 1998). The Dellinger memo should be updated to reflect these and other developments.
Updating the Dellinger memo is also necessary to ensure that OLC employs an appropriately nuanced approach to separation-of-powers problems. The Dellinger memo superseded a 1990 memo on the same topic by then-Assistant Attorney General for OLC William Barr. The Barr memo adopted a more rigid, pro-executive approach to these issues, which is difficult to reconcile with established Supreme Court precedent, and evinced an overtly combative attitude toward Congress. Some of OLC’s recent opinions, which do not appear adequately to take into account congressional interests, coupled with the citation of the superseded Barr memo in a number of recent Justice Department views letters, raise significant questions about whether OLC is following the balanced approach that the Dellinger memo and Supreme Court precedent require. (Views letters are vehicles through which DOJ communicates to Congress its opinion on legislation, including constitutional concerns.) A new separation-of-powers memo, reflecting a renewed commitment to an appropriate conception of separation-of-powers doctrine and respect for the prerogatives of the coequal branches, will be crucial to OLC’s ability to provide reasoned, accurate advice based on its best view of the law going forward.
Third, OLC should commit to a strong presumption of publishing its final opinions within a reasonable time after they are issued. Publication enhances the transparency of OLC’s decision-making process. Such transparency, as the Rule of Law piece explains, “helps to ensure accountability by opening [OLC] up to scrutiny outside the Office – scrutiny that can also help prevent the politicization of OLC decision-making.” To be sure, privileged, classified, or sensitive material may be exceptions to this presumption. But a presumption in favor of publishing final opinions – especially when the administration relies on OLC advice to justify major policy decisions – will help Congress and the public understand the legal basis for executive actions and hold the executive branch and OLC accountable.
For decades, OLC has played a vital role as the “constitutional conscience” of the executive branch, serving “as a foothold for constitutional values amidst inevitable political contestation within an administration.” As the Biden administration begins to consider how best to renew OLC, these reforms, and the more detailed recommendations in the ACS Rule of Law piece, can provide a useful starting point to help the Office live up to these ideals.
Image: WASHINGTON, DC – MAY 1, 2019: U.S. Sen. Kamala Harris (D-CA) listens as U.S. Attorney General William Barr testifies before the Senate Judiciary Committee May 1, 2019 in Washington, DC. Barr testified on the Justice Department’s investigation of Russian interference with the 2016 presidential election. (Photo by Alex Wong/Getty Images)