Office of Legal Counsel

The **Office of Legal Counsel** (**OLC**) is an office in the United States Department of Justice that assists the Attorney General's position as legal adviser to the President and all executive branch agencies.

## History

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.

## Responsibilities

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." 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.

## Controversies

### Trump Administration

During the Trump Administration, questions have been raised about OLC's capacity for exercising sound, apolitical legal judgment. The Trump OLC has never publicly reached an outcome that has dissatisfied Attorney General Jeff Sessions or President Trump. Multiple executive orders that OLC has approved for lawfulness have, however, been invalidated by federal courts. For example, in November 2017, a federal judge permanently enjoined Executive Order 13768, which stated that "sanctuary jurisdictions" including "sanctuary cities" who refused to comply with immigration enforcement measures would not be "eligible to receive Federal grants, except as deemed necessary for law enforcement purposes" by the U.S. Attorney General or Secretary of Homeland Security.

OLC also approved as lawful President Trump's travel ban ("Travel Ban 1") on January 27, 2017. OLC put its imprimatur on an executive order that prohibited all refugees, immigrants, non-immigrants (travelers, students, patients coming for surgery, etc.), and green card holders from certain Muslim-majority countries from setting foot on U.S. soil. Gannon worked with Rosemary Hart and Scott Stewart of OLC, as well as with John Bash of the White House Counsel's Office, on the Order. In emails, Stewart referred to the draft order as the "immigration EO about terrorists." Emails also indicate that OLC intended to approve the Order notwithstanding potential concerns about its lawfulness, with Hart writing in an email a few hours before the Order was signed, "We of course are in a crunch time and we don't know what sort of leeway we have to be making changes." On January 30, 2017, Acting Attorney General Sally Yates announced that the Department of Justice would not defend the Order in Court. She was fired that evening. She has since testified that OLC did not notify her of the existence of the draft travel ban before it was issued.

Notwithstanding OLC's conclusion that the Order was lawful, Travel Ban 1 was never endorsed by a single federal court. After a federal judge in Seattle temporarily blocked Travel Ban 1 from continuing in effect, and the 9th Circuit Court of Appeals upheld that decision, President Trump withdrew the Order and signed a new executive order, Travel Ban 2, which OLC also approved as lawful. President Trump described Travel Ban 2 as a "watered down" version of the first Travel Ban Order, writing on Twitter that "People, the lawyers and the courts can call it whatever they want, but I am calling it what we need and what it is, a TRAVEL BAN!" Federal district court judges in Hawaii and Maryland blocked Travel Ban 2 from going into effect, and the 4th Circuit Court of Appeals upheld the Maryland judge's determination.

On September 24, 2017, President Trump issued a third travel ban executive order, Travel Ban 3, which OLC also approved as lawful. The Supreme Court, in *Hawaii v. Trump*, ultimately held that under the appropriate standard of review, the Court of Appeals erred in concluding that challengers to Travel Ban 3 were likely to succeed on the merits of their constitutional claim. Justice Kennedy, who provided the fifth vote for that conclusion, authored a concurrence which indicated that while he believed that judicial review of the travel ban was circumscribed by the "foreign affairs power of the Executive," executive branch lawyers had an independent obligation to ensure that the President was not violating constitutional rights, an obligation they had not fulfilled. Justice Kennedy wrote that while there are "numerous instances in which the statements and actions of Government officials are not subject to judicial scrutiny or intervention," the "Constitution and the rights it proclaims and protects" are not "confined to those spheres in which the Judiciary can correct or even comment upon what those officials say or do." Indeed, it is "an urgent necessity that officials adhere to these constitutional guarantees and mandates in all their actions, even in the sphere of foreign affairs." And "the very fact that an official may have broad discretion, discretion free from judicial scrutiny, makes it all the more imperative for him or her to adhere to the Constitution and to its meaning and its promise."

### Obama Administration

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. 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.

### George W. Bush Administration

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. 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. An opinion issued by the Government Accountability Office concluded that his status was not a violation of the Federal Vacancies Reform Act of 1998.

## List of Assistant Attorneys General in charge of OLC

Only one woman, Obama-appointee Virginia Seitz, has served as the confirmed head of OLC.

### Current Political Appointees at the Office of Legal Counsel

Current political appointees at the Office of Legal Counsel include:

* 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