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 Seal of the U.S. Department of Justice | |
| Office overview | |
|---|---|
| Formed | 1934; 91 years ago (1934) |
| Jurisdiction | Federal government of the United States |
| Headquarters | Robert F. Kennedy Department of Justice Building 950Pennsylvania AvenueNW Washington, D.C., United States |
| Office executive |
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| Parent department | U.S. Department of Justice |
| Website | Official website |
TheOffice of Legal Counsel (OLC) is an office in theUnited States Department of Justice that supports theattorney general in their role as legal adviser to the president and all executive branch agencies. It drafts legal opinions of the attorney general and provides its own written opinions and other advice in response to requests from the counsel to the president, the various agencies of the executive branch, and other components of the Department of Justice. The office reviews and comments on the constitutionality of pending legislation. The office reviews any executive orders and substantive proclamations for legality if the president proposes them. All proposed orders of the attorney general and regulations that require the attorney general's approval are reviewed. It also performs a variety of special assignments referred by the attorney general or the deputy attorney general.[1]
The Office of Legal Counsel was created in 1934 by an act ofCongress, as part of a larger reorganization of executive branch administrative agencies. It was first headed by an assistant solicitor general. In 1951, attorney generalJ. 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 generalHerbert Brownell Jr., issued April 3, 1953.[2] The post has been held by the leading icons of the conservative legal movement, including two former Supreme Court justicesWilliam Rehnquist andAntonin Scalia.[3]
The Office of Legal Counsel (OLC) assists theattorney general of the United States in their function as legal adviser to thepresident and all theexecutive branch agencies, hence the appellation "the president's law firm."[4] OLC drafts legal opinions of the attorney general and also provides its own written opinions and oral advice in response to requests from thecounsel 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 allexecutive 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.[5] TheBrennan Center for Justice described opinions of the Office of Legal Counsel as "authoritative legal interpretations that have the same legal force as the statutes they interpreted."[6]
During President George W. Bush's first term in office, OLC deputy assistant attorney generalJohn Yoo drafted, and assistant attorney generalJay 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 torture of detainees (euphemistically referred to as "enhanced interrogation techniques"), including beating, binding in contortedstress positions,hooding, subjection to deafening noise, sleep disruption,[7]sleep deprivation to the point ofhallucination, deprivation of food, drink, and withholding medical care for wounds, as well aswaterboarding,walling, sexual humiliation, subjection to extreme heat or extreme cold, and confinement in small, coffin-like boxes.[8][9][10] The Justice Department'sOffice of Professional Responsibility (OPR) later concluded that Yoo committed "intentional professional misconduct" in advising the CIA that it could torture detainees[11][12]: 254 and that by signing Yoo's memorandum, Bybee had "acted in reckless disregard of his obligation to provide thorough, objective, and candid legal advice."[12]: 257
In May 2005, duringPresident George W. Bush's second term, a set of similar torture memos were approved bySteven 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.[13] His position became a point of political friction between the Republican president and the Democratic-controlled110th Congress, when Democrats contended that Bradbury was in the position illegally, while Republicans argued that Democrats were using his nomination to score political points.[14][15][16] An opinion issued by theGovernment Accountability Office concluded that his status was not a violation of theFederal Vacancies Reform Act of 1998.[17]
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 reporterCharlie 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.[18] 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.[19]
Early in the Trump administration, OLC approvedExecutive Order 13769 (referred to as the "travel ban" because it restricted entry from certain foreign countries which hadMuslim-majority populations). Days later, acting attorney generalSally Yates announced that the Department of Justice would not defend the order in court.[20] 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."[21] Yates was fired later that day.[20] Her successor as acting attorney general,Dana Boente, referenced OLC's analysis when he reversed her decision.[21] The executive order was challenged in court, then superseded by subsequent executive orders and presidential proclamations.[21]
In aUnited 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.[22]
In March 2019, theMueller investigation delivered itsfinal report to attorney generalBill Barr. Even before reading the report, Barr had already made the decision to clear Trump ofobstruction of justice. Upon receiving the report, Barr tasked the OLC with preparing a memorandum that would pretextually justify Barr's decision, instead of providing candid counsel.[23][24][25] This memorandum was written in tandem with theBarr letter over the course of two days;[26] the final version was signed bySteven Engel andEd O'Callaghan.[24][25][27][28] The D.C. Circuit held that the memo was not shielded from disclosure by thedeliberative process privilege, because then-attorney general Barr had already determined, by the time the memo was written, that DOJ would not charge Trump with a crime, making the memo akin to a "thought experiment."[25]
In September 2019, Engel authored an OLC opinion[29] that theJustice Department should not forward theTrump–Ukraine scandal whistleblower complaint to Congress.[30] In an October 2019 letter, 67 inspectors general from theCouncil of the Inspectors General on Integrity and Efficiency sharply criticized the Justice Department's decision to withhold the complaint from Congress, describing the memo as having a "chilling effect on effective oversight" and being "wrong as a matter of law and policy." The inspectors general recommended the OLC memo be withdrawn or amended because it "effectively overruled the determination by the ICIG regarding an 'urgent concern' complaint" that the ICIG concluded was "credible and therefore needed to be transmitted to Congress."[31][32][33][34]
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| Name | Years served | Appointed by | Notes |
|---|---|---|---|
| Angus D. MacLean | 1933–1935 | Franklin D. Roosevelt[35] | |
| 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 | BecameSolicitor 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'sCivil Rights Division. |
| Malcolm R. Wilkey | 1958–1959 | Dwight Eisenhower | Later appointed to theUnited States Court of Appeals for the District of Columbia Circuit and served asUnited States Ambassador to Uruguay. |
| Robert Kramer | 1959–1961 | Dwight Eisenhower | |
| Nicholas Katzenbach | 1961–1962 | John F. Kennedy | Served asUnited States attorney general from 1965 to 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 theSupreme Court of the United States asAssociate Justice and laterChief 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[36] | |
| 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 theRepublic of Malta during the "Arab Spring" uprisings. |
| William P. Barr | 1989–1990 | George H. W. Bush | 77th and 85th (until December 2020)attorney general. |
| Michael Luttig | 1990–1991 | George H. W. Bush | Appointed to theUnited States Court of Appeals for the Fourth Circuit in 1991. |
| Timothy Flanigan | 1991–1992 | George H. W. Bush | |
| Walter Dellinger | 1993–1996 | Bill Clinton | Later became acting U.S. Solicitor General. |
| Christopher Schroeder | 1996 | acting | |
| Dawn Johnsen | 1997–1998 | acting | First term as acting AAG; also nominated to the role under President Obama but the Senate neglected to take up the nomination[37] |
| 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 byUnited States Senate December 15, 2000; appointed to theUnited States District Court for the District of Columbia in 2014. |
| Jay S. Bybee | 2001 – March 2003 | George W. Bush | In charge when the OLC issued theBybee memo and otherTorture memos; appointed to theUnited States Court of Appeals for the Ninth Circuit in March 2003. |
| Jack Goldsmith | October 2003 – June 2004 | George W. Bush | Later Professor atHarvard Law School and author ofThe 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 atHarvard Law School and served as acting AAG from January 2009 to July 2010; appointed to theUnited States Court of Appeals for the First Circuit in 2014. |
| 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, whenVirginia A. Seitz was confirmed. |
| Virginia A. Seitz | 2011–2013 | Barack Obama | Confirmed by the Senate in avoice vote on June 28, 2011. Resigned effective December 20, 2013.[38] |
| Karl R. Thompson | 2014–2017 | acting | Appointed Principal Deputy AAG on March 24, 2014.[39] |
| Curtis E. Gannon | 2017 | acting | Appointed Principal Deputy AAG on January 20, 2017.[40] |
| Steven Engel | 2017–2021 | Donald Trump | |
| Dawn Johnsen | 2021 | acting | Second term as acting AAG[37] |
| Christopher H. Schroeder | 2021–2023 | Joe Biden | |
| Benjamin C. Mizer | 2023 | acting | |
| Gillian E. Metzger | 2023–2024 | acting | |
| Christopher Fonzone | 2024–2025 | Joe Biden | |
| Henry C. Whitaker (acting) | 2025 | Donald Trump[41] | As of February, his name was no longer on the OLC website.[42] |
| T. Elliot Gaiser | 2025–present | Donald Trump |
Only one woman, Obama-appointee Virginia Seitz, has served as the confirmed head of OLC.
Political appointees at the Office of Legal Counsel include:[43]
enhanced interrogation techniques [...] include hooding or blindfolding, exposure to loud music and temperature extremes, slapping, starvation, wall standing and other stress positions and, in some cases, waterboarding. [...] In the United States, enhanced interrogation was reserved for terror suspects [...] These methods include shaking, slapping, beating, exposure to cold, stress positions and, in the United States, waterboarding.
{{cite book}}:|work= ignored (help)'The court's ... review of the memorandum revealed that the Department in fact never considered bringing a charge,' the panel wrote in its opinion. 'Instead, the memorandum concerned a separate decision that had gone entirely unmentioned by the government in its submissions to the court — what, if anything, to say to Congress and the public about the Mueller Report.' The panel added: 'We affirm the district court.'
DOJ officials previously told the court that the memo should be kept from the public because it involved internal department deliberations and the advice given to Barr about whether Trump should face prosecution. But a district judge ruled that Barr was never engaged in such a process and had already made up his mind to not charge Trump.
Srinivasan said the memo, co-authored by Assistant Attorney General for Legal Counsel Steven Engel and Principal Associate Deputy Attorney General Edward O'Callaghan, seemed more like a "thought experiment" because Barr decided before the memo was written that Trump would not be charged with a crime.
In her order, Jackson noted that the memo prepared for Barr, and the letter from Barr to Congress that describes the special counsel's report, are 'being written by the very same people at the very same time. The emails show not only that the authors and the recipients of the memorandum are working hand in hand to craft the advice that is supposedly being delivered by OLC, but that the letter to Congress is the priority, and it is getting completed first,' the judge wrote.
Office of Legal Counsel (Formerly Office of Assistant Solicitor General and Executive Adjudications Division, list of officeholders through 1973.
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