Search Documents and Resources

    • Mission and Vision
    • Board & Staff
    • Financials
    • Contact Us
    • Privacy Policy
    • Donor Privacy Policy
    • Explore our work
    • Center for Defense Information
    • The Constitution Project
    • Congressional Oversight Initiative
    • Policy Letters
    • Reports
    • Testimony
    • For Oversight Staff
    • Whistleblower Resources
    • Report Corruption
  • Take Action
  • Sign Up
  • Donate
  • facebook
  • twitter
  • instagram
  • youtube
    • Mission and Vision
    • Board & Staff
    • Financials
    • Contact Us
    • Privacy Policy
    • Donor Privacy Policy
    • Explore our work
    • Center for Defense Information
    • The Constitution Project
    • Congressional Oversight Initiative
    • Policy Letters
    • Reports
    • Testimony
    • For Oversight Staff
    • Whistleblower Resources
    • Report Corruption
Project On Government Oversight
  • Take Action
  • Sign Up
  • Donate
  • Afghanistan
  • More Topics
  • About
  • Mission & History
  • Board & Staff
  • Financials
  • Take Action
  • For Federal Employees
  • COVID-19: Tips
  • Contact Us
  • Privacy Policy
  • Subscribe
  • Donate
Project On Government Oversight
    • Mission and Vision
    • Board & Staff
    • Financials
    • Contact Us
    • Privacy Policy
    • Donor Privacy Policy
    • Explore our work
    • Center for Defense Information
    • The Constitution Project
    • Congressional Oversight Initiative
    • Policy Letters
    • Reports
    • Testimony
    • For Oversight Staff
    • Whistleblower Resources
    • Report Corruption
  • Take Action
  • Sign Up
  • Donate
Constitutional Principles

Congress can Rein in the Office of Legal Counsel

By David Janovsky | Filed under testimony | October 25, 2022

(Photo illustration: Leslie Garvey / POGO)

Testimony for:

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.

Sign up for our weekly newsletter!

Get a roundup of POGO's latest work and announcements. Delivered Saturday mornings.

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

Congress has many tools available to mitigate OLC’s damage to the separation of powers.

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.

Increasing Transparency

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.

Despite OLC’s stated support for transparency, in practice it continues to keep many non-classified memos secret.

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

Empowering Congress

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.

Fast-Track Litigation

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.

Conclusion

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

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.

Author

  • Author

    David Janovsky

    David Janovsky is a policy analyst for The Constitution Project at POGO.

Related Tags

    Constitutional Principles Governance Office of Legal Counsel (OLC) Department of Justice (DOJ) Checks and Balances Executive Branch Congress

Related Content

  • Oversight

    POGO Testimony: Modernizing Congressional Oversight Powers — to Save Them

  • Abuse of Power

    Rubber Stamp or Rule of Law?

  • Abuse of Power

    Closely Held Contrivances

  • Constitutional Principles

    Congress Needs to Reclaim Its Time from the Courts

1 This statement draws from prior POGO work, including David Janovsky, “Rubber Stamp or Rule of Law,” Project On Government Oversight, March 23, 2021, https://www.pogo.org/analysis/2021/03/rubber-stamp-or-rule-of-law; “Article One: Strengthening Congressional Oversight Capacity”: Hearing before the House Select Committee on the Modernization of Congress (117th Cong., November 4, 2021) (statement of David Janovsky, Project On Government Oversight); David Janovsky, “Closely Held Contrivances,” Project On Government Oversight, September 22, 2021, https://www.pogo.org/analysis/2021/09/closely-held-contrivances. 2 David Janovsky, “Rubber Stamp or Rule of Law,” Project On Government Oversight, March 23, 2021, https://www.pogo.org/analysis/2021/03/rubber-stamp-or-rule-of-law. 3 "Testimonial Immunity Before Congress of the Former Counsel to the President,” 43 Op. O.L.C. __ (2019), https://www.justice.gov/olc/opinion/file/1215066/download; Memorandum from Curtis E. Gannon, Acting Attorney General, about “Authority of Individual Members of Congress to Conduct Oversight of the Executive Branch,” May 1, 2017, https://www.justice.gov/olc/file/1085571/download; “Whether the Department of Justice May Prosecute White House Officials for Contempt of Congress,” 32 Op. O.L.C. 65 (2008), https://www.justice.gov/opinion/file/832851/download; see also Rob Cetrino, “The DOJ Needs to Stop Thwarting Congressional Oversight,” Project On Government Oversight, May 9, 2022, https://www.pogo.org/analysis/2022/05/the-doj-needs-to-stop-thwarting-individual-member-oversight. 4 “Breaking the Logjam Part 2: The Office of Legal Counsel’s Role in Shaping Executive Privilege Doctrine”: Hearing before the Senate Judiciary Subcommittee on Federal Courts, Oversight, Agency Action, and Federal Rights, 117th Cong. (2022) (statement of Christopher Schroeder at 1:02:30), https://www.judiciary.senate.gov/meetings/breaking-the-logjam-part-2-the-office-of-legal-counsels-role-in-shaping-executive-privilege-doctrine. 5 David Janovsky, “Closely Held Contrivances,” Project On Government Oversight, September 22, 2021, https://www.pogo.org/analysis/2021/09/closely-held-contrivances. 6 Citizens for Ethics and Responsibility in Washington v. DOJ, No. 21-5113 (D.C. Cir. 2022), https://www.citizensforethics.org/wp-content/uploads/2022/08/Final-opinion.pdf; “Francis v. DOJ,” Knight First Amendment Institute, https://knightcolumbia.org/cases/francis-v-doj. 7 “Breaking the Logjam Part 2” (statement of Christopher Schroeder at 27:30) [see note 4]. 8 “DOJ OLC Transparency Act,” S.3858 (117th Cong., 2022), https://www.congress.gov/bill/117th-congress/senate-bill/3858. 9 Erica Newland, “I worked in the Justice Department. I hope its lawyers won’t give Trump an alibi,” Washington Post, January 10, 2019, https://www.washingtonpost.com/opinions/i-worked-in-the-justice-department-i-hope-its-lawyers-wont-give-trump-an-alibi/2019/01/10/9b53c662-1501-11e9-b6ad-9cfd62dbb0a8_story.html; Shalev Roisman, “Presidential Factfinding,” Vanderbilt Law Review, vol. 72, no. 3, 876, https://cdn.vanderbilt.edu/vu-wp0/wp-content/uploads/sites/278/2019/04/30122425/Presidential-Factfinding.pdf. 10 Annie Owens, Reforming the Office of Legal Counsel: Living Up to Its Best Practices, American Constitution Society, October 2020, 12, https://www.acslaw.org/wp-content/uploads/2020/12/Owens-Reforming-OLC-Final.pdf. 11 Memorandum from Acting Assistant Attorney General David Barron on Best Practices for OLC, July 16, 2010, 2, https://www.justice.gov/sites/default/files/olc/legacy/2010/08/26/olc-legal-advice-opinions.pdf. 12 Emily Berman, “Weaponizing the Office of Legal Counsel,” Boston College Law Review, vol. 62, no. 2 (2021), 561, https://levin-center.org/wp-content/uploads/2021/09/weaponizing_the_office_of_legal_counsel_final_publication.pdf; Oona Hathaway, “National Security Lawyering in the Post-War Era: Can Law Constrain Power?” UCLA Law Review, vol. 68, no. 2 (2021), 82, https://ssrn.com/abstract=3530588. 13 “John Yoo and Jay Bybee’s Disgrace,” Los Angeles Times, February 23, 2010, https://www.latimes.com/archives/la-xpm-2010-feb-23-la-ed-yoo23-2010feb23-story.html. 14 28 CFR § 77.3, https://www.law.cornell.edu/cfr/text/28/77.3. 15 David Luban, “Selling Indulgences,” Slate, February 14, 2005, https://slate.com/news-and-politics/2005/02/selling-indulgences.html. 16 Federalist 51, 1788, https://avalon.law.yale.edu/18th_century/fed51.asp. 17 See, for example, Berman, “Weaponizing the Office of Legal Counsel,” 562 [see note 12]; Hathaway, “National Security Lawyering in the Post-War Era: Can Law Constrain Power?” 83 [see note 12]; Article One: Restoring Capacity and Equipping Congress to Better Serve the American People: Hearing Before the House Select Committee on the Modernization of Congress, 116th Cong. (January 14, 2020) (statement of Elise Bean, Co-director, Levin Center at Wayne Law), https://www.congress.gov/116/meeting/house/110374/witnesses/HHRG-116-MH00-Bio-BeanE-20200114.pdf; Harold Hongju Koh, The National Security Constitution: Sharing Power after the Iran-Contra Affair (New Haven: Yale University Press, 1990), 169-171. 18 “Breaking the Logjam Part 2” (statement of Sheldon Whitehouse at 33:10) [see note 4]; see also Berman, “Weaponizing the Office of Legal Counsel,” 538 [see note 12]. 19 Sarah Turberville and David Janovsky, “Congress Needs to Reclaim Its Time from the Courts,” Project On Government Oversight, November 18, 2020, https://www.pogo.org/analysis/2020/11/congress-needs-to-reclaim-its-time-from-the-courts. 20 “Breaking the Logjam Part 2” (statement of Christopher Schroeder at 1:18:00) [see note 4].

Site Footer

  • facebook
  • twitter
  • instagram
  • youtube
  • Press Center
  • Contact Us
  • Careers
  • Briefing
  • Newsletters
  • Publications
  • Report Corruption
Better Business Bureau Accredited Charity CharityWatch Top Rated Charity Great Nonprofits 2021 Top-Rated Charity Navigator Four-Star Charity

©2023 POGO | Privacy Policy

Project On Government Oversight logo

Project On Government Oversight

Oversight in your inbox.