Indirect Constraints on the Office of Legal Counsel: Examining a Role for the Senate Judiciary Committee.

Date01 June 2021
AuthorJanover, William S.

Table of Contents Introduction I. The President's Legal Advisors A. The Executive Branch and the Constitution B. A History of Controversy II. Attempts at Reform A. Direct Constraints 1. Reimagining the executive branch 2. Internal codes of conduct and interpretive norms B. Indirect Constraints 1. Transparency 2. Mobilizing external actors III. A Role for the Senate Judiciary Committee A. The Committee's Powers and Prerogatives B. Constraining the Office of Legal Counsel 1. Committee oversight hearings 2. Assistant attorney general confirmation processes 3. Future confirmation processes for Office of Legal Counsel alumni C. The Limits of Institutional Capacity Conclusion Introduction

On September 27, 2019, Democratic members of the United States House of Representatives introduced House Bill 4556, the SUNLIGHT Act of 2019. (1) The bill would require the gradual publication of every opinion of the Department of Justice (DOJ) Office of Legal Counsel (OLC), with exceptions for national security and other limited purposes. (2) This transparency requirement would represent a dramatic change for an office whose work product has only episodically faced scrutiny from the courts and the general public. (3)

In the months leading up to the bill's introduction, the OLC repeatedly published opinions that placed then-President Donald Trump beyond the reach of congressional oversight. The OLC argued that senior advisors to the President are "absolutely immune" from being compelled to testify before Congress (4) and provided a legal justification for the Department of the Treasury to avoid complying with a House Ways and Means Committee request for the President's tax returns. (5) The OLC also supported the Director of National Intelligence's decision not to forward a whistleblower complaint regarding President Trump to Congress. The complaint detailed Trump's attempts to leverage military aid to Ukraine for damaging information about then-candidate Joe Biden's family; the OLC posited that the complaint did not involve an "urgent concern" that would implicate statutory reporting requirements. (6) When the House of Representatives responded by commencing an impeachment inquiry, the OLC said the executive branch did not have to comply with any requests for documents or testimony until the full House had formally authorized the inquiry. (7)

The OLC's expansive view of President Trump's powers was evident in other contexts as well. In 2020, the Office approved the unilateral spending of $44 billion from the Department of Homeland Security's Disaster Relief Fund to continue expanded unemployment-insurance payments. (8) It also appeared to buttress the Administration's deployment of federal law-enforcement officers to suppress protests in Portland, Oregon. (9)

As the substantive breadth of these opinions suggests, the OLC is one of the most powerful entities in the entire executive branch. It can tip the scales of legal authority between the political branches or stamp novel presidential action with constitutional imprimatur. And the Office's decisions can bear on deadly serious issues, such as the treatment of enemy combatants in United States custody (10) or the targeted killings of American citizens known to be inciting acts of terrorism overseas. (11) Indeed, reliance on OLC reasoning can be a powerful shield from liability--the DOJ generally declines to prosecute acts that are consistent with OLC guidance even if they otherwise would be criminal. (12) As one former head of the Office put it, OLC opinions are like "get-out-of-jail-free cards." (13)

Because the OLC's power has proven prone to abuse, academics, legislators, and lawyers have proposed numerous reforms aimed at constraining its jurisdiction or reasoning. The Office's work product is subject to fewer legal checks than a bill or a court opinion, so it is natural that many have focused on transparency reforms like the SUNLIGHT Act. A formal publication system theoretically would temper the Office's most extreme legal positions, in turn engendering a greater respect for. individual liberty and the separation of powers. Unfortunately, it is highly unlikely that a transparency bill will ever become law. Even in eras of greater cooperation between the President and Congress, it is difficult to imagine the executive branch signing away even a small portion of its ability to interpret the law or a veto-proof majority of Congress supporting the legislation. Indeed, a bill like the SUNLIGHT Act might even be unconstitutional according to adherents of the unitary executive theory because it would, in effect, unduly impinge on the President's obligation to take care that the nation's laws be enforced. (14)

Transparency is not the only approach that reformers have identified to constrain the OLC. Others would go much further, completely reimagining how the executive branch interacts with the law. But some of these proposals might require a constitutional amendment to implement--an even taller order than overcoming a presidential veto. (15) Taking a less ambitious approach, previous administrations have published internal lists of interpretive norms for OLC lawyers, (16) essentially relying on the Office policing itself. Even internally, however, Presidents of both major parties are reluctant to clip their own wings, especially in an era in which the executive branch plays such a crucial role in the development and enforcement of policy. The Trump Administration's maximalist approach to executive power through the OLC was nothing new, and it is clear that existing proposals to combat this approach to the law are unlikely to succeed in practice.

With that in mind, this Note puts forward an alternative set of constraints on the OLC. Instead of introducing yet another bill that has no chance of surviving the President's veto or issuing yet another eminently worthy set of interpretive norms that OLC lawyers will not always meet, we should focus on reforms that stand a real chance of mitigating the Office's abuses of authority. Instead of completely restructuring how the executive branch makes law and interprets the Constitution, we should take the OLC as it stands and focus on changing how the Office operates today. Though our inability to rely on the White House as a partner in this project largely prevents us from directly changing how the OLC actually interprets the law, plenty of reforms--focusing on, for example, the Office's personnel and increased public scrutiny--remain available. These indirect constraints are less likely to require the President's signature on a bill or buy-in from the President's appointees.

The most effective indirect constraints rely on the existing institutional capacities of actors outside of the executive branch. Of the other possible standard-bearers for this approach, none possesses the power and constitutional prerogative of the United States Senate Judiciary Committee. The Committee's privileged role in the confirmation of Article III judges, its oversight jurisdiction over the DOJ, and its position at the intersection of law and electoral politics combine to make it an especially compelling institution to constrain the OLC. These traits allow the Committee and its members to meaningfully alter how the Office operates while limiting obstruction from the executive branch.

The remainder of this Note proceeds as follows. In Part I, I briefly review the history of executive-branch legal interpretation, which dates to the beginning of the Republic. Though the OLC is a far more sophisticated, formal body than its predecessors, the historical development of executive interpretive power is a useful lens through which to understand how the Office operates. I then discuss some of the most infamous incidents in which the OLC's work product strayed from the legal mainstream and prioritized the President's agenda over individual rights or the separation of powers. These episodes--especially the OLC's deeply strained justification for torture in the aftermath of the September 11, 2001, terrorist attacks--catalyzed much of the reform literature this Note analyzes, so it is important to understand to what exactly scholars were reacting.

Part II reviews the prior proposals that academics and OLC alumni have offered to constrain or otherwise restructure the executive branch's political-legal apparatus. These proposals range from the truly radical--replacing the OLC with an executive-branch analogue to the Supreme Court to resolve interagency disputes--to the narrow, such as adopting a norm in favor of stare decisis in all OLC decisionmaking. I divide the proposals into direct and indirect constraints. As these terms suggest, direct constraints act specifically on the OLC's operation rather than on some other process that influences how the Office's lawyers work (by altering the incentive structure surrounding the writing process). They either limit the OLC's jurisdiction or they alter the manner in which its lawyers actually write their opinions. These direct constraints include the many proposed interpretive norms that OLC alumni have developed in recent decades. Indirect constraints may have the same effects as direct constraints, but they involve an additional step in carrying out the policy. They may deprive the President of his or her desired personnel or increase public scrutiny of OLC opinions, thereby incentivizing improved legal reasoning and greater respect for fundamental constitutional values. Indirect constraints are important policy prescriptions, but only some of them stand a realistic chance of actually limiting the OLC's worst excesses.

Part III then explains why the Senate Judiciary Committee is well positioned to reform the OLC by imposing three distinct indirect constraints. First, the Committee's jurisdiction allows it to contemporaneously dig into the merits of the OLC's opinions and its operations more generally. Second, the...

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