| Agency Name: | United States Department of Justice Office of Legal Counsel |
| Type: | Office |
| Seal: | File:Seal_of_the_United_States_Department_of_Justice.svg |
| Jurisdiction: | Federal government of the United States |
| Headquarters: | Robert F. Kennedy Department of Justice Building 950 Pennsylvania Avenue NW Washington, D.C., United States |
| Chief1 Name: | Christopher Fonzone |
| Chief1 Position: | Assistant Attorney General |
| Parent Department: | U.S. Department of Justice |
The Office of Legal Counsel (OLC) is an office in the United States Department of Justice that supports the attorney 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 of 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.[2]
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."[3] 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.[4] The Brennan 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."[5]
See main article: Torture Memos and Enhanced interrogation techniques. 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 (euphemistically referred to as "enhanced interrogation techniques"), including beating, binding in contorted stress positions, hooding, subjection to deafening noise, sleep disruption,[6] 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.[7] [8] [9] The Justice Department's Office of Professional Responsibility (OPR) later concluded that Yoo committed "intentional professional misconduct" in advising the CIA that it could torture detainees[10] [11] 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.[12] 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.[13] [14] [15] An opinion issued by the Government Accountability Office concluded that his status was not a violation of the Federal Vacancies Reform Act of 1998.[16]
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.[17] 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.[18]
Early in the Trump administration, OLC approved Executive Order 13769 (referred to as the "travel ban" because it restricted entry from certain foreign countries which had Muslim-majority populations). Days later, acting attorney general Sally Yates announced that the Department of Justice would not defend the order in court.[19] 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."[20] 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.[21]
See main article: Barr letter and Mueller report. In March 2019, the Mueller investigation delivered its final report to attorney general Bill Barr. Even before reading the report, Barr had already made the decision to clear Trump of obstruction 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.[22] [23] [24] This memorandum was written in tandem with the Barr letter over the course of two days;[25] the final version was signed by Steven Engel and Ed O'Callaghan.[23] [24] [26] [27] The D.C. Circuit held that the memo was not shielded from disclosure by the deliberative 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."[24]
See main article: Trump–Ukraine scandal. In September 2019, Engel authored an OLC opinion[28] that the Justice Department should not forward the Trump–Ukraine scandal whistleblower complaint to Congress.[29] In an October 2019 letter, 67 inspectors general from the Council 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."[30] [31] [32] [33]
| Name | Years served | Appointed by | Notes | |
|---|---|---|---|---|
| Angus D. MacLean | 1933–1935 | Franklin D. Roosevelt[34] | ||
| Golden W. Bell | 1935–1939 | Franklin D. Roosevelt | ||
| 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 | ||
| 1946–1949 | Harry Truman | |||
| Abraham J. Harris | 1950–1951 | Harry Truman | ||
| Joseph C. Duggan | 1951–1952 | Harry Truman | ||
| 1953–1956 | Dwight Eisenhower | Became Solicitor General of the United States in 1956. | ||
| 1957 | Dwight Eisenhower | After a short tenure, selected to be first head of the Justice Department's Civil Rights Division. | ||
| 1958–1959 | Dwight Eisenhower | Later appointed to the United States Court of Appeals for the District of Columbia Circuit and served as United States Ambassador to Uruguay. | ||
| Robert Kramer | 1959–1961 | Dwight Eisenhower | ||
| 1961–1962 | John F. Kennedy | Served as United States attorney general from 1965 to 1966. | ||
| Norbert A. Schlei | 1962–1966 | John F. Kennedy | ||
| Frank M. Wozencraft | 1966–1969 | Lyndon Johnson | ||
| 1969–1971 | Richard Nixon | Later nominated and confirmed to the Supreme Court of the United States as Associate Justice and later Chief Justice. | ||
| 1971–1972 | Richard Nixon | |||
| 1972–1973 | Richard Nixon | |||
| 1974–1977 | Gerald Ford | Later nominated and confirmed as Associate Justice of the U.S. Supreme Court. | ||
| 1977–1981 | Jimmy Carter [35] | |||
| 1981–1984 | Ronald Reagan | Later became U.S. Solicitor General. | ||
| 1985–1988 | Ronald Reagan | |||
| 1988–1989 | Ronald Reagan | Later U.S. Ambassador to the Republic of Malta during the "Arab Spring" uprisings. | ||
| 1989–1990 | George H. W. Bush | 77th and 85th (until December 2020) attorney general. | ||
| 1990–1991 | George H. W. Bush | Appointed to the United States Court of Appeals for the Fourth Circuit in 1991. | ||
| 1991–1992 | George H. W. Bush | |||
| 1993–1996 | Bill Clinton | Later became acting U.S. Solicitor General. | ||
| 1996 | acting | |||
| 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[36] | ||
| 1998–2001 | Bill Clinton | Served as acting AAG from 1998 to 2000; nominated November 9, 1999; recess-appointed August 3, 2000; confirmed by United States Senate December 15, 2000; appointed to the United States District Court for the District of Columbia in 2014. | ||
| 2001 – March 2003 | George W. Bush | In 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. | ||
| October 2003 – June 2004 | George W. Bush | Later Professor at Harvard Law School and author of The Terror Presidency (2007) | ||
| 2004–2005 | acting | |||
| 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. | ||
| 2009–2010 | acting | Professor at Harvard Law School and served as acting AAG from January 2009 to July 2010; appointed to the United 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. | |
| 2011 | acting | Senior appointed official leading OLC since the end of January 2011 until June 2011, when Virginia A. Seitz was confirmed. | ||
| 2011–2013 | Barack Obama | Confirmed by the Senate in a voice vote on June 28, 2011. Resigned effective December 20, 2013.[37] | ||
| 2014–2017 | acting | Appointed Principal Deputy AAG on March 24, 2014.[38] | ||
| 2017 | acting | Appointed Principal Deputy AAG on January 20, 2017.[39] | ||
| 2017–2021 | Donald Trump | |||
| 2021 | acting | Second term as acting AAG | ||
| 2021–2023 | Joe Biden | |||
| 2023 | acting | |||
| 2023–2024 | acting | |||
| 2024–present | Joe Biden |
Only one woman, Obama-appointee Virginia Seitz, has served as the confirmed head of OLC.
Current political appointees at the Office of Legal Counsel include:[40]