A lawyer who worked in the Justice Department’s Office of Legal Counsel (OLC) under the Trump administration writes in a new Washington Post op-ed that she sometimes felt that she and her colleagues were “using the law to legitimize lies” made by President TrumpDonald TrumpCapitol fencing starts coming down after 'Justice for J6' rally Netanyahu suggests Biden fell asleep in meeting with Israeli PM Aides try to keep Biden away from unscripted events or long interviews, book claims MORE.
“Lawyers at OLC wear many hats, but their most significant role comes in advising the White House on the legality of proposed actions, including executive orders, proclamations and other presidential documents,” Erica Newland, a former attorney adviser at the Justice Department, wrote in The Washington Post.
“When OLC approves orders such as the travel ban, it goes over the list of planned presidential actions with a fine-toothed comb, making sure that not a hair is out of line. It is this work that gives OLC its reputation as home to some of the federal government’s finest attorneys,” Newland continued. “But when it comes to the president’s findings about the state of the world, OLC generally defers to the president.”
Newland noted that such deference proceeds from the assumption that Trump, as president, is "acting consistent with Article II of the Constitution and with his oath of office, both of which require that he ‘faithfully’ execute the laws.”
“That means he has a constitutional duty to act honestly and in the public interest. OLC’s deference is also born of a recognition that its lawyers are not equipped to be sophisticated fact-finders,” she continued.
Newland wrote that while working at OLC, she saw “again and again how the decision to trust the president failed the office’s attorneys, the Justice Department and the American people.”
“The failure took different forms. Sometimes, we just wouldn’t look that closely at the claims the president was making about the state of the world. When we did look closely, we could give only nudges,” Newland wrote.
“For example, if I identified a claim by the president that was provably false, I would ask the White House to supply a fig leaf of supporting evidence. Or if the White House’s justification for taking an action reeked of unconstitutional animus, I would suggest a less pungent framing or better tailoring of the actions described in the order.
“I often wondered, though, whether my attempts to remove the most basic inaccuracies from the face of a presidential order meant that I was myself failing to carry out my oath to protect and defend the Constitution,” she continued. “After all, the president had already submitted, through his early drafts or via Twitter, his reasons for issuing a particular order. I sometimes felt that, rather than engaging in professionally responsible advocacy, my OLC colleagues and I were using the law to legitimize lies.”
Newland described feeling a “twinge of recognition” earlier this month after reading an article from The New Yorker about how editors on the reality television show “The Apprentice” described reverse-engineering episodes on the show after “Trump made impulsive decisions about firing a contestant.”
“The article described editors ‘scouring hundreds of hours of footage . . . in an attempt to assemble an artificial version of history in which Trump’s shoot-from-the-hip decision made sense,’” Newland wrote. “Like a staff member at ‘The Apprentice,’ I occasionally caught myself fashioning a pretext, building an alibi.”
“Eventually, I decided that the responsibilities entailed in my oath were incompatible with the expectations of my job,” Newland goes on to write in the op-ed. “If my former colleagues at OLC, and throughout the Justice Department, are now working on the possible declaration of a national emergency, I dearly hope they are as meticulous in their review of the president’s justifications as they are in their review of the actions he plans to take.”
“And I hope, more than anything else, that they are asking themselves whether they, too, are just fashioning a pretext, building an alibi,” she added.