If Merrick Garland is serious about his stated goal to serve the rule of law as attorney general, he’ll have to do more than undo the abuses of power at the Justice Department from the last several years. He will need to take on long-standing concerns about the department’s role, under administrations from both parties, in expanding the power of the executive branch at the expense of Congress, the courts, and the American people.
There is perhaps no better example of this need than the Office of Legal Counsel (OLC), a small but incredibly powerful and secretive component of the Justice Department. The office has signed off on some of the most destructive and even illegal executive actions of recent decades—from torture to drone strikes to stonewalling oversight—under Democrats and Republicans alike. Both the newly confirmed attorney general and Congress need to take actions to ensure that the legal advice the office provides respects the Constitution and federal law.
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OLC’s main job is to advise executive branch agencies and the president on whether proposed actions are legal and constitutional. The office has said that its advice is “based on its best understanding of what the law requires,” even, or especially, when that means telling the president or other officials that they can’t do something. This role as the executive branch’s honest broker is particularly important because, as the office notes, many of the issues it opines on will never be adjudicated in court.
As we and many others have noted for years, though, OLC often falls short. Rather than speaking truth to power, it frequently acts as an enabler
for the president. Over the last several decades, OLC has played a key role in developing legal theories that grant presidents far more power than they have traditionally been understood to possess. Rather than providing objective advice about the legality of a presidential directive, the office too often provides legal cover for the executive branch, no matter how strained or implausible the reasoning. Even in instances where lower federal courts have come to opposite conclusions, OLC has proven to reliably come down on the side of the executive branch.
This is especially concerning because within the executive branch, OLC opinions are considered binding unless the president or attorney general overrules them. That gives OLC tremendous influence in setting the parameters of how the government acts. In fact, officials who act in accordance with an OLC opinion typically have immunity from punishment if their actions are later determined to be illegal.
Even worse, much of OLC’s work goes on in secret. The office takes the position that its opinions are exempt from open records laws, and while it does proactively publish a certain number of them, there is often a substantial delay before the public sees OLC’s justifications for government actions.
The office’s tendency to expand presidential power has led to executive actions that have directly harmed people, undermined rights, and stifled Congress’s efforts to oversee the executive branch.
The office’s failings are best illustrated by its most notorious opinions. It advised the CIA that torture was permissible, despite federal and international law that explicitly prohibited it. The office approved warrantless surveillance of Americans’ communications despite the clear requirements of the Fourth Amendment. More recently, it signed off on a drone strike against a U.S. citizen abroad, despite serious constitutional concerns stemming from due process rights.
An exhaustive list of harmful OLC opinions would be far too long to print, but an additional smattering illustrates the massive scope of the office’s damage. It has approved military action without congressional approval; barred the Food and Drug Administration from regulating the drugs used for lethal injections; blocked an inspector general from reporting to Congress the misconduct that led to former President Donald Trump’s first impeachment; effectively nullified the laws governing succession of leadership at federal agencies; and in a line of opinions dating back to the 1980s, blocked Congress from carrying out its constitutionally mandated oversight function at nearly every turn.
A Roadmap for Reform
What measures are necessary to ensure the office consistently respects the rule of law? A good place to start is the recommendations in our recently published policy agenda for Congress and the new administration. There, we set out four categories of commonsense reforms to bring the office in line: increased transparency, a review of past opinions, process improvements within OLC, and congressional pushback.
First, Congress should require OLC to release all of its non-classified opinions. Increasing transparency at OLC has long been a Project On Government Oversight (POGO) priority, and has enjoyed support from both sides of the aisle in Congress in the past. If the public and Congress don’t know how the executive branch is interpreting the law, they cannot hold it accountable or fix laws that are too vague. OLC, for its part, has said that such a requirement would be unconstitutional, but Congress, and if necessary the courts, have a say in that as well.
Related: Justice Department's "Secret Law" Still Prevalent, Documents Show
The Justice Department’s Office of Legal Counsel produces binding legal opinions on important issues, many of which are secret.Read more
Next, OLC needs to get its house in order. Garland and whoever is chosen to lead the office must conduct a review of the office’s previous opinions and withdraw the most damaging ones. This has been done before, most notably with regard to memos authorizing torture, and a group of experts that recently considered OLC reforms identified a new review as a key measure.
Withdrawing problematic opinions serves multiple goals. The most important is that it removes the legal basis for whatever action the opinion has approved. In addition, it removes the “precedent” the opinion created. OLC treats its past opinions as some of the most important sources of guidance when it writes new opinions. Over time, this process can result in the steady expansion of an idea, as an older opinion is used as the jumping-off point for a newer, broader interpretation. Removing those problematic older opinions can short-circuit that process. This list from POGO includes some opinions that should be high on the list of candidates for withdrawal.
Transparency and housekeeping can only take the office so far. Any reform agenda for OLC must also create sufficient safeguards to prevent the office from approving violations of constitutional rights and the separation of powers. There are several possible measures that fall into this category.
OLC should conduct more robust fact-finding. Some presidential authorities, like emergency powers, only become available in certain conditions. But as alumni of the office have written, OLC rarely questions or verifies whether those conditions actually exist when it conducts its reviews. University of Arizona law professor Shalev Roisman argues that OLC should verify and sign off on the underlying facts before approving a proposed action. This could be a substantial departure from how the office currently operates, and its lawyers are not subject matter experts. But failing to develop a way to verify factual assertions means the office runs the risk of approving illegal actions, as former OLC attorney Annie Owens notes. Indeed, the limited nature of OLC’s review was vividly illustrated in the case of the Trump administration’s first ban on immigration and travel from several Muslim-majority countries. The acting head of the Justice Department refused to implement the ban, noting that while OLC had signed off, its review was limited to the plain text of the order and did not take into account the context surrounding it.
OLC memos should contain more robust elaboration of alternate perspectives. The office’s best practices memo includes a peer review process and suggests the office’s work should “fairly and candidly” engage with counterarguments. But this does not go far enough to ensure the office explicitly considers viable legal theories that may be disfavored within the executive branch. To rectify this, the office could require as part of its peer review process that one lawyer write a dissent. Professors Emily Berman and Oona Hathaway both note that this approach is analogous to the “red teams” used by military and intelligence agencies to ensure the rigor of their analyses.
OLC lawyers should be held to higher standards. Even the lawyers involved in OLC’s lowest point, the torture memos, escaped any accountability—in fact, one was elevated to a federal judgeship. All lawyers at the Justice Department are held to the basic professional standards of the jurisdiction where they practice law. But as Yale law professor Jack Balkin colorfully put it, those standards are so low that only the “scum of the earth” violate them. Government attorneys, especially in such an influential post as OLC, should be held to a higher standard. One way to do this is to clarify that OLC lawyers are advisers, rather than advocates, which would make them subject to specific ethical rules, including an obligation to “render candid advice” rather than try to justify their clients’ wishes. Another option is to hold supervisors in the office responsible for the work of their subordinates, in the same way that law firm partners are responsible for the work of junior lawyers.
The final category of reforms looks beyond the executive branch. OLC’s opinions have done significant damage to Congress’s institutional powers. Congress does not have an equivalent to OLC to advocate on its behalf, so when it is confronted with an OLC opinion that flatly rejects its prerogatives, it is at a real disadvantage.
It does not have to be this way. As longtime Congressional Research Service expert and POGO scholar in residence Louis Fisher has written, Congress used to hold hearings with Congressional Research Service experts who challenged OLC’s legal analysis. Subsequent staffing cuts and an emphasis on “neutrality” within the service make this kind of oversight more difficult. Revitalizing the Congressional Research Service would be a good step, but a more robust reform would be to create an entity that serves a similar role as OLC, providing dedicated legal analysis to Congress. Reviving Congress’s legal resources could go a long way toward helping push back on OLC’s interpretations, reducing the odds that OLC’s view will carry the day not because it is the best view of the law but because Congress never stood up for itself.
These four reforms—real transparency, a review of opinions, improvements to OLC’s processes, and enhanced congressional legal resources—would go a long way toward addressing some of the office’s worst abuses.
But they’re not the only necessary steps, and many experts and groups have proposed additional reforms to address the problems with OLC. For instance, there are many factors that drive OLC toward extreme pro-executive positions, including political pressure from the White House and a desire to give advice presidents will want to follow. One proposal to deal with that pressure involves more tightly controlling how OLC and the White House interact.
Another complicating factor is that OLC is only one of multiple entities that conduct legal interpretation within the executive branch. Some of these other entities, like the White House counsel’s office, which reports directly to the president, may have even more incentive to say yes to presidents than OLC does. Since presidents can ultimately get legal advice from whomever they choose, having an office within the White House that competes with OLC for prestige and access encourages both to expand executive power. To address this, another potential reform involves transferring some of the White House counsel’s tasks to OLC to reduce this competition and encourage more distance between presidents and their legal advisers.
That approach also touches on a more fundamental paradox with reforming OLC: The more successful reforms are at making OLC a transparent and honest appraiser of what the executive branch can and cannot do, the less likely agencies or the White House may be to ask for its advice in the first place.
The office writes far fewer formal opinions than it once did, often opting to give informal advice with less of a paper trail. Both academic and anecdotal research have at least partially linked this trend to the increased likelihood that opinions will be made public. And when the office makes known its opposition to a policy, the White House may try to minimize its role in deliberations. While this may not seem like a bad thing given OLC’s track record, if the office can be reformed, that effort would go to waste if agencies then circumvented the office. Future reforms should ensure this does not happen.
All these additional problems need serious attention, but they should not distract from the urgency of the initial round of reforms. Without them, OLC will likely continue to expand the power of the presidency, at the expense of separation of powers and the people of the United States—no matter who occupies the White House.
The Constitution Project works to combat the increasing partisan divide regarding our constitutional rights and liberties.