Judge’s decision on Barr memo puts spotlight on secretive DOJ office
A small but powerful section of the Department of Justice (DOJ) is under renewed scrutiny after a federal judge tore into former Attorney General William Barr and ordered the DOJ to release a memo that let former President Trump claim he was exonerated by the Mueller probe.
Critics of the Office of Legal Counsel (OLC), which provides legal advice to the White House and Cabinet agencies, have long argued it acts as a rubber stamp for the president and essentially drafts laws behind closed doors. The judge’s accusation this week that the OLC was tasked with clearing Trump’s name is only likely to increase calls for reform and greater transparency.
Ethics and transparency advocates have been calling for the office to be reformed for years, and some are hoping that the latest revelation about how it operated during the Trump administration will provide some momentum.
“If you think of the federal government like a private client, then they go to OLC like their private attorney — to make the best arguments in favor of what they want,” said Erica Newland, counsel at Protect Democracy and a former OLC attorney who has spoken out against the Trump DOJ since leaving in 2018 after joining as a career attorney in 2016.
“But if you think that the federal government is representing the interests of the American public and the rule of law, and that the president has an obligation to faithfully execute the law, OLC’s precedent and role doesn’t really advance that.”
Danielle Brian, the executive director of the nonpartisan Project on Government Oversight, said the office should be reformed to make it more transparent and less likely to provide legal cover for controversial policies or actions.
“It’s remarkable how often when you see there’s something that’s clearly wrong in the government’s operations, you can so frequently tie it back to an OLC decision that allows them to do it,” Brian said. “I would describe it as a deeply secretive office of lawyers in the Justice Department that has increasingly seen it as its job to justify executive branch overreach.”
The OLC, typically staffed by about five political appointees and 20 career attorneys, received little public attention until the George W. Bush administration, when it provided legal justifications for the CIA’s torture of terror suspects and the expansion of the national security state, which included spying on Americans’ electronic communications without a warrant.
Former President Obama relied on legal opinions from the office when he unilaterally ordered military action in Syria and Libya, as well as the 2011 assassination of Anwar al-Awlaki, a U.S. citizen and al Qaeda leader.
During the Trump era, the office played a key role in the administration’s battles against congressional oversight from House Democrats, claiming that the president and his close advisers were immune from congressional subpoenas.
District Judge Amy Berman Jackson’s decision this week was the culmination of a two-year legal battle to obtain Justice Department documents related to Barr’s 2019 claim that the Mueller report did not support a criminal case against Trump for obstruction of justice.
The liberal watchdog group Citizens for Responsibility and Ethics in Washington sued for the records in 2019 under the Freedom of Information Act (FOIA). Justice Department attorneys fought the case, arguing the memo was exempt from the public records law.
Jackson, an Obama appointee, ultimately found little to support that claim and accused both Barr and the DOJ’s litigators of being “disingenuous” about former special counsel Robert Mueller’s report and the internal discussions over the government’s response.
Even though OLC memos are binding on the federal government and inform officials’ decisionmaking at the highest levels, the office rarely releases them to the public. Watchdog groups often have to file FOIA lawsuits in order to obtain them.
In court, the DOJ often fights to keep the memos private, arguing they are products of deliberative decisionmaking and subject to attorney-client privilege, two areas where there are exceptions to FOIA disclosure requirements.
Stephanie Krent, an attorney with the Knight First Amendment Institute at Columbia University who has been involved in FOIA litigation over OLC documents, said the lack of transparency has made it difficult for the public to understand the office’s influential role.
“Most OLC opinions are not public, and OLC does not consider itself obliged to publish any of its opinions. It does so on certain occasions as a matter of discretion, but it does not view itself as being obligated under the Freedom of Information Act, to publish its opinions,” Krent said. “We have no capabilities to hold OLC accountable to understand what the office is doing when it purports to make law for the executive branch.
“If OLC proactively made its final documents and final opinions public, the public would have such a richer knowledge of what OLC is really doing, how it creates its opinions, and how its legal advice and analysis has been influenced,” she added.
Jackson’s decision was the latest rebuke of the OLC by a federal judge. In 2019, the House Judiciary Committee subpoenaed former White House counsel Don McGahn as part of an investigation following up on the Mueller report. The OLC provided the White House with a memo that said the president and his close advisers are immune from congressional subpoenas demanding their testimony.
The White House directed McGahn not to comply with the subpoena, prompting the Judiciary Committee to sue. In November 2019, District Judge Ketanji Brown Jackson, an Obama appointee, sided with the House, ruling that the OLC argument was unpersuasive and that “presidents are not kings.”
The case is still tied up on appeal.
Despite public outcry over the office’s most controversial opinions in the past two decades, like the Bush-era torture memos, there has been little effort from Congress or the Justice Department to make changes.
Some Democrats, angered by what they saw as the politicization of the Justice Department under Trump, have called for the DOJ to conduct a review of the office’s work and retract any damaging OLC memos from the previous administration.
Sen. Sheldon Whitehouse (D-R.I.), a member of the Senate Judiciary Committee, said that this week’s court ruling highlighted the need to evaluate the office at the very least.
“Judge Jackson’s withering opinion is the latest blow to a long-troubled Office of Legal Counsel,” Whitehouse told The Hill in a statement. “At this point, several federal courts have eviscerated Trump-era OLC opinions and cast a shadow on the Department’s reputation. And we know of other bad examples from recent history, like the Bush torture opinion. A comprehensive review of the office’s work is in order to understand whether other OLC opinions are as toxic as Barr’s, and if reforms at OLC may be needed.”
The House and Senate judiciary committees have jurisdiction over the Justice Department.
Watchdog groups argue that the OLC is effectively making laws for the executive branch in secret, leaving the public in the dark about what the government is doing and why officials believe their actions are lawful.
“I have high hopes that the ongoing and regular evidence of the OLC being the central villain in bad governing is hopefully fueling interest to significantly reform that office,” Brian, of the Project on Government Oversight, said.
A DOJ spokesperson was not immediately available to comment on the criticisms of the office, whether there would be a review of the OLC’s work during the Trump era or if any opinions from the previous administration have been retracted.
Newland agreed the office needs reforms and encouraged the Biden administration to start reviewing OLC opinions as far back as 1981, when the Reagan administration began to unwind some of the post-Watergate reforms.
“I worry about some of those opinions which may have been written in bad faith having precedential value,” she said.
One such opinion could be a 1989 one, written by Barr when he was the assistant attorney general for the OLC, that said the Justice Department isn’t obligated to act “as if we were an Article III judge,” referencing the Constitution’s establishment of a judicial system.
“We are the executive’s only advocates, and when the President’s core powers are at stake, the executive’s case is so compelling, and the practical consequences of defeat so grave, we have a duty to advance the President’s cause,” he wrote at the time.
Newlands hopes such a review would also help establish “stronger lines between OLC’s role, and these types of machinations — the policy and political decisions,” while the DOJ trains a number of new OLC attorneys who were hired under the Trump administration.
“I think it is very easy for lines to blur. Once you start going to folks for legal advice and then when their philosophy is ‘We’re just trying to help you achieve your political prerogatives,’ it’s like, ‘OK, well, these are lawyers who can help us finesse things in ways that sound legally defensible.’ But it’s really just PR,” she said.
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