Office of Legal Counsel


The Office of Legal Counsel 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 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

Early in the Trump administration, OLC approved Executive Order 13769. Days later, Acting Attorney General Sally Yates announced that the Department of Justice would not defend the Order in court. 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." Yates was fired later that day. Her successor as acting attorney general, Dana Boente, referenced OLC's analysis when he reversed her decision. The Executive Order was challenged in court, then superseded by subsequent Executive Orders and Presidential Proclamations.
In a United 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.

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 torture of detainees, including beating, binding in contorted stress positions, hooding, subjection to deafening noise, sleep disruption, sleep deprivation to the point of hallucination, deprivation of food, drink, and withholding medical care for wounds, as well as waterboarding, walling, sexual humiliation, subjection to extreme heat or extreme cold, and confinement in small, coffin-like boxes. The Justice Department's Office of Professional Responsibility later concluded that Yoo committed "intentional professional misconduct" in advising the CIA that it could torture detainees and that by signing Yoo's memorandum, Bybee had "acted in reckless disregard of his obligation to provide thorough, objective, and candid legal advice."
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

NameYears servedAppointed byNotes
Angus D. MacLean1933–1935Franklin D. Roosevelt
Golden W. Bell1935–1939Franklin D. Roosevelt
Charles Fahy1940–1941Franklin D. Roosevelt
Oscar S. Cox1942–1943Franklin D. Roosevelt
Hugh B. Cox1943–1945Franklin D. Roosevelt
Harold W. Judson1945–1946Franklin D. Roosevelt
George T. Washington1946–1949Harry Truman
Abraham J. Harris1950–1951Harry Truman
Joseph C. Duggan1951–1952Harry Truman
J. Lee Rankin1953–1956Dwight EisenhowerBecame Solicitor General of the United States in 1956.
W. Wilson White1957Dwight EisenhowerAfter a short tenure, selected to be first head of the Justice Department's Civil Rights Division.
Malcolm R. Wilkey1958–1959Dwight EisenhowerLater appointed to the United States Court of Appeals for the District of Columbia Circuit and served as United States Ambassador to Uruguay.
Robert Kramer1959–1961Dwight Eisenhower
Nicholas Katzenbach1961–1962John F. KennedyServed as United States Attorney General from 1965-1966.
Norbert A. Schlei1962–1966John F. Kennedy
Frank M. Wozencraft1966–1969Lyndon Johnson
William H. Rehnquist1969–1971Richard NixonLater nominated and confirmed to the Supreme Court of the United States as Associate Justice and later Chief Justice.
Ralph E. Erickson1971–1972Richard Nixon
Roger C. Cramton1972–1973Richard Nixon
Antonin Scalia1974–1977Gerald FordLater nominated and confirmed as Associate Justice of the U.S. Supreme Court.
John M. Harmon1977–1981Jimmy Carter
Theodore B. Olson1981–1984Ronald ReaganLater became U.S. Solicitor General.
Charles J. Cooper1985–1988Ronald Reagan
Douglas Kmiec1988–1989Ronald ReaganLater U.S. Ambassador to the Republic of Malta during the "Arab Spring" uprisings.
William P. Barr1989–1990George H. W. Bush77th and 85th Attorney General.
Michael Luttig1990–1991George H. W. BushAppointed to the United States Court of Appeals for the Fourth Circuit in 1991.
Timothy Flanigan1991–1992George H. W. Bush
Walter Dellinger1993–1996Bill ClintonLater became acting U.S. Solicitor General.
Christopher Schroeder1996acting
Dawn Johnsen1997–1998acting
Randolph D. Moss1998–2001Bill ClintonServed as acting AAG from 1998 to 2000; nominated November 9, 1999; recess-appointed August 3, 2000; confirmed by United States Senate December 15, 2000
Jay S. Bybee2001 – March 2003George W. BushIn charge when the OLC issued the Bybee memo and other Torture memos; appointed to the United States Court of Appeals for the Ninth Circuit in March 2003.
Jack GoldsmithOctober 2003 – June 2004George W. BushLater Professor at Harvard Law School and author of The Terror Presidency
Daniel Levin2004–2005acting
Steven G. Bradbury2005–2009actingServed as acting AAG 2005–2007, continued to function as senior appointed official in charge of OLC until January 20, 2009.
David J. Barron2009–2010actingProfessor at Harvard Law School and served as Acting AAG from January 2009 to July 2010.
Jonathan G. Cedarbaum2010–2011actingServed 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. Krass2011actingSenior appointed official leading OLC since the end of January 2011 until June 2011, when Virginia A. Seitz was confirmed.
Virginia A. Seitz2011–2013Barack ObamaConfirmed by the Senate in a voice vote on June 28, 2011. Resigned effective December 20, 2013.
Karl R. Thompson2014–2017actingAppointed Principal Deputy AAG on March 24, 2014.
Curtis E. Gannon2017actingAppointed Principal Deputy AAG on January 20, 2017.
Steven Engel2017–presentDonald Trump

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: