As Trump (R) claims Expansive and Disputed Powers, He Curbed the Influential Office of Legal Counsel (OLC), Speeding-Up His ability to Act, but creating mounting Difficulties for Justice Department (DOJ) Lawyers. The DOJ’s Office of Legal Counsel has traditionally been a Powerful Guardrail in American Government. It has issued Interpretations of the Law that Bind Agencies across the Executive Branch, decided which proposed Policies were Legally Permissible or Out-of-Bounds and Approved Draft Executive Orders, before they went to Presidents for Signing.
But in Trump’s Second Term so far, the Office has largely been Sidelined. As Trump issues Policy after Policy pushing Legal Limits and Asserting an Expansive View of His Power, the White House has Undercut its Role as a Gatekeeper, Delaying giving it Senior Leadership, and Weakening its Ability to impose Quality Control over Executive Orders.
Its Diminished Voice is Shifting the Balance of Legal Power in the Executive Branch toward the White House, Speeding-Up Trump’s ability to Act, but Creating mounting Difficulties for the Justice Department Lawyers, who must Defend the Government in Court. “The Trump administration has cut out the traditional check the Justice Department has played,” said Jack Goldsmith, a Harvard Law Professor who Led the Office under the George W. Bush (R) Administration. “OLC being cut out is a piece of a larger strategy designed to ensure that the president can do whatever he wants, without any internal executive branch legal constraints on his will.”
Two and a half months into His Administration, Trump has neither submitted a Nominee to be the Office’s Senate-Confirmed Leader, nor Named an Acting Assistant Attorney General. This week, after being asked to Comment, the Department announced that Trump intended to Nominate, T. Elliot Gaiser (R), 35, the Ohio Solicitor General, for the Position.
Breaking with Tradition, the Trump Transition Team, did Not have the Dozens of Executive Orders He Signed in his first days in office, Vetted by the Office. Many have contributed to what is now more than 48 Restraining Orders and Injunctions, by Courts Blocking Administration Actions. And while the Administration has since started allowing the Office to Review Draft Executive Orders, that Consultation is far more Limited than in the past, according to People familiar with the Process. Traditionally, the Office traded Versions back and forth, until it was Satisfied with a Draft’s Form and Legality, then issued a Memo Approving the Final Text. Now, they said, it typically has an Opportunity to see a Version and Provide Ccomments for the White House to consider, but it does Not remain Involved to the End and Decide that an Order is Ready for the President.
The Trump Transition Team did Not submit the President’s Dozens of early Executive Orders to the Office of Legal Counsel, before He Signed them in His First days in Office. In another sign of OLC’s reduced Clout, Trump has taken a Series of Actions and made Claims that Contradict or raise Tensions with the Office’s Opinions. The Topics involve Birthright Citizenship, Blocking Spending Authorized by Congress, Migrants’ Right to Seek Asylum, Supreme Court Approval for the Existence of Independent Agencies, a President’s use of an Autopen to Sign Documents, and White House Jurisdiction over the Smithsonian Institution. Most of the Office consists of Career Lawyers, who stayed on after its Previous Leader Stepped Down at the End of the Biden (D) Administration. The Trump Team has been Slow to Fill that Vacuum.
On Jan. 27th, it installed Lanora C. Pettit (R), a 2010 Graduate of the University of Virginia Law School, who had worked for the Texas Solicitor General, as a Politically Appointed Deputy. The next month, it added a Second Deputy, M. Scott Proctor (R), a 2017 Graduate of Harvard Law and a former Clerk to Justice Clarence Thomas. Neither was given the Higher-Ranking Title of Principal Deputy, but Ms. Pettit is the Office’s Supervising Official in the Absence of anyone more Senior.
After Ms. Pettit’s arrival, the White House began letting OLC Review Draft Executive Orders, the Department said, while emphasizing that the Office was Not Legally required to Issue Approval Memos and insisting that the Absence of those Memos did Not mean Drafts were Not being Reviewed. But the People familiar with the Process noted that “Reviewed” is very different from “Approved.” Several Office of Legal Counsel Veterans from both Parties expressed doubts that it could have Approved several recent Directives, like Vituperative Orders seeking to Damage Law Firms that have Employed or Represented People Trump Dislikes. Judges have partly Blocked Three of those.
When past Administrations have taken Legally Controversial Actions, the White House has sometimes made Public OLC Memos that Approved the Steps. Such moves aim to Explain the Legal Rationales and Show that they were Not concocted after the Fact in an attempt to Justify a Decision that was actually based on a President’s mere Whim and Raw Will to Exercise Power. But the Office of Legal Counsel has been strikingly Missing in Public Debates over Aggressive Administration efforts to Revoke the Visas of Foreign Students; Fire Officials in Defiance of Job Protections against Arbitrary Removal; Refuse to Spend Funds appropriated by Congress; Dismantle Agencies; and Deport People without Due-Process, among others.
To date, the Administration has Published One Memo from the current Office of Legal Counsel, an Opinion by Ms. Pettit in Mid-March, saying that Trump could Designate Acting Members of Two Foreign-Assistance Foundations after He Fired their Boards. The only Memo published by the OLC under the Trump administration to date, asserted that Trump could Designate Acting Members of the U.S. African Development Foundation and the Inter-American Foundation. Martin Lederman, a Georgetown Law Professor who worked at the Office of Legal Counsel during Democratic administrations, said Trump’s Directives do Not appear to have gone through its Approval Process.
“When the system is working as it should, any fact or legal justification upon which an order depends is flyspecked by the office, and the president does not sign it until OLC is satisfied that it is well grounded,” He said. “It’s unimaginable that OLC would have approved many of these executive orders for form and legality. It’s obvious they didn’t.”
NYC Wins When Everyone Can Vote! Michael H. Drucker
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