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Office of Legal Counsel

HistoryEdit

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]

ResponsibilitiesEdit

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]

ControversiesEdit

Trump administrationEdit

Early in the Trump administration, OLC approved Executive Order 13769 (referred to as the "travel ban" because it restricted entry from certain foreign countries, each of which had a Muslim-majority population). 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 AdministrationEdit

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 AdministrationEdit

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.

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.[9] 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.[10][11][12] An opinion issued by the Government Accountability Office concluded that his status was not a violation of the Federal Vacancies Reform Act of 1998.[13]

List of Assistant Attorneys General in charge of OLCEdit

Name Years served Appointed by Notes
Angus D. MacLean 1933–1935 Franklin D. Roosevelt [14]
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 of the United States 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 Later appointed to the United States Court of Appeals for the District of Columbia Circuit and served as United States Ambassador to Uruguay.
Robert Kramer 1959–1961 Dwight Eisenhower
Nicholas Katzenbach 1961–1962 John F. Kennedy Served as United States Attorney General from 1965-1966.
Norbert A. Schlei 1962–1966 John F. Kennedy
Frank M. Wozencraft 1966–1969 Lyndon Johnson
William H. Rehnquist 1969–1971 Richard Nixon Later nominated and confirmed to the Supreme Court of the United States as Associate Justice and later Chief Justice.
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 [15]
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 77th and 85th (current, as of 2019) Attorney General.
Michael Luttig 1990–1991 George H. W. Bush Appointed to the United States Court of Appeals for the Fourth Circuit in 1991.
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 [16] 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 to the United States Court of Appeals for the Ninth Circuit in March 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.[17]
Karl R. Thompson 2014–2017 acting Appointed Principal Deputy AAG on March 24, 2014.[18]
Curtis E. Gannon 2017 acting Appointed Principal Deputy AAG on January 20, 2017.[19]
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 CounselEdit

Current political appointees at the Office of Legal Counsel include:[20]

  • 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

ReferencesEdit

  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 (February 6, 2006). "Palace Revolt". Newsweek. p. 34. Retrieved October 22, 2008.
  4. ^ a b CNN, Steve Almasy and Darran Simon,. "A timeline of President Trump's travel bans". CNN. Retrieved August 18, 2018.CS1 maint: extra punctuation (link)
  5. ^ a b c Arnsdorf, Isaac. "Justice Department releases letter approving travel ban". POLITICO. Retrieved November 7, 2019.
  6. ^ "Trump White House kept travel ban secret from its first attorney general". mcclatchydc. Retrieved August 19, 2018.
  7. ^ Charlie Savage (June 17, 2011). "2 Top Lawyers Lost to Obama in Libya War Policy Debate". The New York Times.
  8. ^ Johnson, Carrie (April 1, 2009). "Some in Justice Department See D.C. Vote in House as Unconstitutional". ISSN 0190-8286. Retrieved August 18, 2018.
  9. ^ Presidential Nominations database, via THOMAS (accessed January 24, 2009).
  10. ^ Ackerman, Spencer (October 19, 2007). "Who Is Steve Bradbury?". Talking Points Memo.
  11. ^ Kiel, Paul (February 6, 2008). "White House Insists on Confirmation of Torture Memo Author". Talking Points Memo. Retrieved April 18, 2019.
  12. ^ "Webb opens, closes vacant Senate session". CNN. December 26, 2007.
  13. ^ 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.
  14. ^ 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.
  15. ^ John M. Harmon bio Archived 2008-12-07 at the Wayback Machine, Graves, Dougherty, Hearon & Moody.
  16. ^ "Nolan to Become 1st Female White House Counsel". Los Angeles Times. August 20, 1999. Retrieved August 2, 2009.
  17. ^ "Virginia Seitz Leaves DOJ Office of Legal Counsel". National Law Journal.
  18. ^ "Meet the Assistant Attorney General". Justice.gov. January 11, 2018. Archived from the original on November 26, 2014. Retrieved June 17, 2019.
  19. ^ "Meet the Leadership". justice.gov. United States Department of Justice. January 20, 2017. Retrieved June 4, 2017.
  20. ^ Benson, Brett (2017). Federal Yellow Book: Winter 2018.

External linksEdit