Congress can Rein in the Office of Legal Counsel
Senate Judiciary Committee,
Subcommittee on Federal Courts, Oversight, Agency Action, and Federal Rights on "Breaking the Logjam Part 2: The Office of Legal Counsel’s Role in Shaping Executive Privilege Doctrine"
Chairman Whitehouse, Ranking Member Kennedy, and Members of the Subcommittee, thank you for your continuing oversight of the Office of Legal Counsel (OLC) and the opportunity to submit a statement on behalf of the Project On Government Oversight (POGO).1
POGO is a nonpartisan independent watchdog that investigates and exposes waste, corruption, abuse of power, and when the government fails to serve the public or silences those who report wrongdoing. We champion reforms to achieve a more effective, ethical, and accountable federal government that safeguards constitutional principles.
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As the Subcommittee’s hearings have ably demonstrated, OLC has engaged in a decades-long effort to expand executive branch authority, to the detriment of the rule of law and the constitutional separation of powers.2 This dynamic is acutely apparent in the context of Congress’s efforts to oversee the executive branch.
Judges, scholars, and this Subcommittee have all observed that OLC has created an aggressive view of executive prerogatives, one that overvalues confidentiality while simultaneously discounting the scope and import of congressional investigations. OLC has claimed that presidential advisers are absolutely immune from congressional subpoenas, that only committee chairs can conduct oversight of the executive branch, and that the Justice Department is not required to prosecute a contempt of Congress case against an official who claimed executive privilege.3
For years, POGO and other good government groups have called attention to OLC’s various and flawed assertions. Rather than fully recapitulating them here, this statement will focus on how Congress can work to rein in the office’s excesses while bolstering its own institutional prerogatives.
POGO believes that reforms should address three overarching issues: transparency for OLC’s written work; processes within OLC to make it less predisposed toward expansive, unchecked executive powers; and a leveling of the institutional playing field between Congress and the executive branch.
POGO was encouraged to hear Assistant Attorney General Christopher Schroeder affirm at the hearing that transparency is a goal of OLC.4 Given the weighty issues OLC evaluates, it is essential that Congress and the public are able to access and evaluate its work. Secrecy has facilitated some of OLC’s worst abuses, including memos authorizing torture and warrantless surveillance in the wake of 9/11, which the office repudiated only after they were leaked.5
Despite OLC’s stated support for transparency, in practice it continues to keep many non-classified memos secret. Many of the office’s disclosures have come only after extensive litigation.6 OLC opinions are not protected by Freedom of Information Act exemptions for pre-decisional materials and should be made public, a fact underscored by Schroeder’s statement during the hearing that these opinions have binding effect within the executive branch.7 It is essential that Congress and the public know the legal basis for executive branch actions.
Congress can and should ensure that non-classified OLC opinions are made public. There is currently legislation before this Committee sponsored by Senators Tammy Duckworth (D-IL) and Patrick Leahy (D-VT) that would require the publication of final OLC legal advice, provided it is not classified.8 A codified requirement for OLC to release its opinions within a prescribed timeframe is a necessary step for ensuring the office is accountable for its work.
Developing Internal Safeguards
The next category of reforms would add internal processes within OLC designed to make its work more robust and less likely to result in extreme outcomes. 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. While there is no guaranteed safeguard against this kind of outcome-oriented analysis, there are some noteworthy shortcomings in OLC’s current processes that should be addressed to increase the ability of the office to give the best view of the law and to avoid the aggrandizement of executive power.
OLC should conduct more robust fact-finding.
Some presidential authorities, like emergency powers, only become available in specific circumstances. But as alumni of the office have written, OLC rarely questions or verifies the White House’s assertions that those preconditions actually exist when it conducts its reviews of proposed executive actions.9 Failing to verify factual assertions means the office runs the risk of approving illegal actions.10 OLC should develop a process to ensure the veracity of the assertions that underly its legal analysis.
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 “candidly and fairly” engage with counterarguments.11 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.12
OLC lawyers should be held to higher standards.
Even the lawyers involved in one of the most shocking episodes in OLC’s history, the torture memos, escaped any accountability — in fact, one was elevated to a federal judgeship.13 All lawyers at the Justice Department are held to the basic professional standards of the jurisdiction where they practice law, but government attorneys, especially in such an influential post as OLC, should be held to a higher standard.14 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.15
Congressional Office of Legal Counsel
The framers envisioned a government of separate but interdependent powers in which ambition would check ambition.16 But the terms of the legal debate between Congress and the executive branch are skewed toward the latter. OLC has systematically advanced the interests of the executive branch under administrations of both parties. Even though Congress has equal — or even greater — institutional interests, it does not have an advocate that consistently advances those interests.
POGO, along with a number of other experts, endorses the creation of a congressional office that could play a role comparable to that of OLC by articulating Congress’s legal positions beyond the context of litigation.17
As Chairman Whitehouse explained during the hearing, the executive branch has a significant advantage in information disputes with Congress because OLC has created a body of opinions that the subjects of oversight requests can refer to even without soliciting new advice from the office.18 A congressional Office of Legal Counsel could develop a parallel body of legal interpretation that counters the pro-executive status quo, giving Members and their staff additional leverage in negotiations and an understanding of potential litigating positions should accommodations fail.
In the cases when judges have evaluated OLC’s positions on barriers to congressional oversight, such as executive privilege or testimonial immunity, OLC has fared poorly. But even litigation that results in victories for congressional committees favors the executive branch, which can simply wait out investigations while the judicial process unfolds.
Congress should codify an expedited process for judicial resolution of lawsuits to enforce its subpoenas. This could take the form of requiring action within a certain framework, removing layers of appellate review (for instance, by having cases heard by a three-judge district court with direct appeals to the Supreme Court), or both. Creating this sort of expedited procedure is well within Congress’s power to regulate the judiciary.19
As Chairman Whitehouse noted, creating a judicial resolution process capable of producing timely decisions will likely have benefits beyond favorable rulings.20 Litigation between the executive and legislative branches often results in settlements; an expedited process should improve the timeliness of those agreements as well.
Congress has many tools available to mitigate OLC’s damage to the separation of powers. The Subcommittee’s hearings on this important subject have positioned it to lead that effort. POGO hopes the Subcommittee will consider reforms to increase OLC transparency, encourage internal safeguards on its decision-making, and strengthen Congress’s institutional position relative to the executive branch. We look forward to continuing our engagement with the Subcommittee as it continues this vital work.
The Constitution Project seeks to safeguard our constitutional rights when the government exercises power in the name of national security and domestic policing, including ensuring our institutions serve as a check on that power.