The Office of Legal Counsel's Client is the President: Why the Model Rules Demand a Secretive Agency Identify its Boss

• Author: Justin Wm. Moyer
• Position: J.D., Georgetown University Law Center (expected May 2024); B.A., Wesleyan University (1998)
• Pages: 953-972

The Office of Legal Counsel’s Client is the

President: Why the Model Rules Demand a

Secretive Agency Identify its Boss

JUSTIN WM. MOYER*

This Note argues that the Model Rules of Professional Conduct require the

Office of Legal Counsel to identify President Biden as its client. Had the

agency done so when Biden first took office, it could have immediately imple-

mented Biden’s policy preference: keeping former prisoners home during the

coronavirus pandemic.

INTRODUCTION

When I first talked to Gwen Levi in April 2021, she was scared.

1

Justin Wm. Moyer & Neena Satija, Inmates Sent Home Amid Pandemic May Have to Return Under

Trump-era Policy, WASH. POST (Apr. 21, 2021), https://www.washingtonpost.com/local/public-safety/federal-

prisoners-pandemic/2021/04/21/5d4cc3c8-96fa-11eb-8e42-3906c09073f9_story.html [https://perma.cc/7UUR-

VGR3].

A 75-year-old

woman released from prison amid the coronavirus pandemic after serving 16 years

for a nonviolent drug offense, Levi could be reincarcerated for the most minor viola-

tion of her release conditions.

2

Even if she complied with them, a memo issued in

the Trump administration’s final days (“Trump memo”) recommended returning

people like her to prison after the health emergency ended.

3

Advocates for prisoners

urged the memo’s author, the Justice Department’s Office of Legal Counsel (OLC),

to rescind it.

4

The Biden administration, however, would not act.

5

In June, Levi’s worst fear was realized. While in a computer class, she missed

a call from a corrections official—a violation of her release terms—and was sent

to D.C. Jail to await a transfer to Federal Bureau of Prisons’ (BOP) custody.

6

* J.D., Georgetown University Law Center (expected May 2024); B.A., Wesleyan University (1998).

© 2022, Justin Wm. Moyer, Justin is a law student and reporter for The Washington Post. This Note would not

have been possible without the formerly incarcerated people, quoted here and not, willing to tell their stories.

The views expressed here are those of the author, and any mistakes, errors, or omissions are solely attributable

to the author.

1.

2. Id.

3. Home Confinement of Fed. Prisoners After the Covid-19 Emergency, 2021 WL 222748 (O.L.C. Jan. 15,

2021) [hereinafter Trump memo].

4. Moyer & Satija, supra note 1.

5. Id.

6.

953

Justin Wm. Moyer & Neena Satija, A Grandmother Didn’t Answer Her Phone During a Class. She was

Sent Back to Prison, WASH. POST (June 26, 2021), https://www.washingtonpost.com/local/public-safety/

inmates-pandemic-biden-trump-policy/2021/06/25/e89aa28e-d376-11eb-baed-4abcfa380a17_story.html [https://

perma.cc/474X-YRVD].

Though the coronavirus still raged, Levi was headed back to a prison system

where 293 inmates and seven staff members have died of Covid.

7

BUREAU OF PRISONS, https://www.bop.gov/coronavirus [https://perma.cc/A468-CP8W] (last visited Apr.

17, 2022).

“There’s no

question she was in class,” her lawyer told me. “Because she could have been

robbing a bank, they’re going to treat her as if she was robbing a bank.”

8

After Levi’s story went viral, her sentence was reduced to time served, and she

was sent home.

9

Justin Wm. Moyer, Grandmother Jailed After Not Answering her Phone During Class is Ordered

Released from Prison Sentence, WASH. POST (July 6, 2021), https://www.washingtonpost.com/local/inmates-

pandemic-policy-gwen-levi/2021/07/06/ede8be98-de7e-11eb-a501-0e69b5d012e5_story.html [https://perma.

cc/F3S3-G69G].

However, thousands of others released early from prison because

of the coronavirus faced reincarceration until the OLC reversed itself in late

2021,

10

David Nakamura, Bureau of Prisons Can Keep Inmates in Home Confinement After Coronavirus

Emergency Ends, WASH. POST (Dec. 21, 2021), https://www.washingtonpost.com/national-security/prisoners-

covid-home-confinement/2021/12/21/1536316e-629c-11ec-8ce3-9454d0b46d42_story.html [https://perma.cc/

C264-P7H2].

endorsing a statutory interpretation rejected by the OLC serving Trump.

11

Those who had struggled to understand why Biden wouldn’t undo Trump’s pol-

icy were vindicated by an argument that looked less like legal reasoning than the

exercise of raw power.

To understand how the OLC could perform this public about-face, I will exam-

ine this influential Justice Department agency—one that can’t decide whether it

serves the current president, the executive branch writ large, the American peo-

ple, or some combination of the above. Though the OLC “exercises the Attorney

General’s authority . . . to advise the President and executive agencies,”

12

its role

is not just advisory. The office says its decisions, which appear inconsistently in

the public record,

13

Columbia University’s Knight First Amendment Institute created an online tracking tool for OLC deci-

sions in 2022 because the agency “publishes only a subset in an online reading room, based on discretionary cri-

teria it applies behind closed doors . . . without any kind of public .” Press Release, Knight First Amendment

Institute, Institute Releases New Tool to Track OLC Opinions (Jan. 14, 2022), https://knightcolumbia.org/blog/

institute-releases-new-tool-to-track-olc-opinions [https://perma.cc/D2HD-KL3X].

are “controlling on questions of law within the Executive

Branch.”

14

Yet, the OLC’s decisions may be overruled by the president even

though, in this game of jurisprudential chicken, presidents are reluctant to over-

rule the OLC.

15

See, e.g., Charlie Savage, 2 Top Lawyers Lost to Obama in Libya War Policy Debate, N.Y. TIMES (June

17, 2011), https://www.nytimes.com/2011/06/18/world/africa/18powers.html [https://perma.cc/563V-HG9M]

(“Presidents have the legal authority to override the legal conclusions of the Office of Legal Counsel and to act

in a manner that is contrary to its advice, but it is extraordinarily rare for that to happen.”).

The OLC’s confusion over the scope of its authority further obscures the clear

purpose of an important office whose operations are already shrouded in secrecy.

7.

8. Moyer & Satija, supra note 6.

9.

10.

11. Discretion to Continue the Home-Confinement Placements of Fed. Prisoners After the Covid-19

Emergency, 2021 WL 6145876 (O.L.C. Dec. 21, 2021) [hereinafter Biden memo].

12. Re: Best Practices for OLC Opinions, 2005 WL 6219354, at 1 (O.L.C. May 16, 2005).

13.

14. Re: Best Practices for OLC Opinions, supra note 12, at 1.

15.

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