To see the damage that this unaccountable office can inflict on the rule of law, you need only consider its recently released opinion justifying the withholding from Congress of the whistleblower complaint about Trump’s communications with Ukraine. The complaint was filed through the proper channels as explicitly prescribed by the Intelligence Community Whistleblower Protection Act. The plain language of that statute directs the director of national intelligence in no uncertain terms to forward to the House and Senate intelligence committees all complaints that the Intelligence Community Inspector General (ICIG) had determined to include credible allegations of misconduct rising to the level of an “urgent concern” — a term defined in the statute, generally, as something pertaining to an “intelligence activity.” Despite this clear statutory mandate, an OLC attorney advised acting intelligence director Joseph Maguire that he could substitute his own judgment for that of his inspector general and conclude that the complaint did not pertain to an “urgent concern” because the statute “does not expressly define ‘intelligence activity,’ but the meaning of the phrase seems clear from context.” Every other argument in the opinion is predicated on this conclusion. In other words, an OLC lawyer’s impression of how the most critical term in the opinion seemed to be defined formed the basis for the constitutional crisis that has engulfed both ends of Pennsylvania Avenue and culminated in the commencement of an impeachment inquiry.
Such is the power of an opinion from this office.
That’s not to suggest that all of its opinions are bad. Like all legal opinions, the bad ones tend to stick out, but most of their opinions are generally unobjectionable. Many are based on solid legal analysis. Others, though — such as the whistleblower opinion or the infamous 2002 “torture memo,” which justified torture of detained enemy combatants by applying a definition of “severe pain” borrowed from a statute that regulates insurance benefits under Medicare — are little more than thinly veiled post hoc rationalizations for decisions the government had already made.
The executive branch treats the pronouncements of these lawyers as binding but then vigorously defends against their public release by claiming that they are just “advice” from a lawyer to a client, except for opinions the office itself decides should be released — which OLC insists is entirely up to its discretion. This dualism is best exemplified by a line from an internal OLC memo titled “Best Practices for OLC Advice and Written Opinions”: “OLC’s core function, pursuant to the Attorney General’s delegation, is to provide controlling advice to executive branch officials on questions of law that are centrally important to the functioning of the Federal Government.”
The problem is, “controlling advice” is an oxymoron, since advice is something the recipient is free to disregard, which is the opposite of controlling. The two competing interpretations given by executive branch lawyers, depending on the context, are completely irreconcilable: An opinion cannot both be binding on the executive branch and also legal advice from an attorney to a client.
In the “controlling” corner, we can find Mueller’s May 29 public statement, which said his office was “bound” by “long-standing department policy” holding that “a president cannot be charged with a federal crime while he is in office” and that indicting Trump was “therefore not an option we could consider.” But the policy Mueller “was bound by” was an OLC opinion, first written in 1973 about Watergate. Likewise, the inspector general for the intelligence community informed Congress last week that he could not provide the whistleblower complaint to the appropriate committees because he is “bound by the determination reached as a result of the Acting DNI’s consultations with” OLC, even though he “respectfully disagree[s] with that determination, particularly DOJ’s conclusion.” Within a matter of months, two high-profile misconduct investigations were interrupted because the agencies involved considered OLC opinions to be binding. As Maguire testified to Congress on Thursday morning, “As you know, for those of us in the executive branch, Office of Legal Counsel opinions are binding on all of us.”
Such a powerful office, with “binding” opinions that other agencies must follow even if officials disagree with them, should surely be subject to public scrutiny, right? But consider OLC’s argument every time someone tries to obtain an unpublished opinion through the Freedom of Information Act, which courts consistently accept uncritically. In short, OLC regularly asserts under oath that it only “serv[es] an advisory role as legal counsel to the executive branch … in a special relationship of trust with the Attorney General,” and that the relationship between OLC and any other part of the executive branch is the same as the relationship between any attorney and any client. If you accept this argument, the most formal and detailed OLC opinion becomes simple “advice” that the purported client can follow or ignore at their leisure. So there’s no reason to release it under open-records laws, because it is covered by attorney-client privilege.
This tension is exacerbated because OLC was originally designed to give authoritative legal opinions to the executive branch on matters which were unlikely to ever appear in court, sort of like an in-house judge who only issued advisory opinions. But in the last 10 or 15 years, OLC has been captured by Justice Department litigators, and a review of their more recent opinions reveals a disturbing pattern: The office now hardly ever tells an agency — let alone the president — that an action is prohibited, even though the “Best Practices” memo instructs it to do just that if appropriate. Instead, lawyers there provide a legal rationale — often strained — for whatever action it is that the agency wants to take. They are no longer providing impartial authoritative opinions; they are acting as “the executive branch’s lawyers.” As such, they even stoop to including wholly irrelevant allegations in their opinions, which previously would be seen only in a courtroom, such as the references in the whistleblower opinion to the whistleblower’s motivations and the fact that he or she did not personally witness the president’s phone call — neither of which have any pertinence to a legal question of whether a complaint alleges an urgent concern or whether an agency head has the authority to overrule his inspector general on that question.
But the executive branch already has lawyers whose sole job is to defend the things it wants to do; they litigate for the Justice Department and work in every agency’s Office of General Counsel. What it does not have is objective legal expertise. And that’s bad for the agencies, it’s bad for the law and it’s bad for the country.
There are many ways to fix this problem, but they all fall to Congress to act. Congress could legislate that OLC opinions are binding, which would mean that no privilege would apply to their release (although they could be withheld for other reasons, such as classification or law enforcement considerations). Congress could legislate that OLC opinions are not binding, which would free up agencies to ignore them and maybe ensure that bad opinions are weeded out. Congress could mandate that OLC opinions must be released to lawmakers so they can evaluate whether they agree with OLC’s interpretation of the law. Congress could add a caveat to FOIA that a court must presume that an agency that acted in accordance with an OLC opinion fully accepted the reasoning of the opinion, thereby triggering an exception to any claim of privilege. Congress could even remove OLC from the Justice Department entirely and establish it as an independent agency with a mandate to issue objective, authoritative advisory opinions on questions of law, like a “legal inspector general.”
Any of these options would clarify and remedy the problematic relationship among OLC, the executive branch and the rest of the world. Legislation would make OLC choose a lane; either it is an authoritative source for independent legal analysis, or it is yet another office full of zealous advocates. But the one thing Congress cannot do is ignore it. Ignoring the growing divide between OLC’s original purpose and its practical reality is what has led us to the point where a handful of career civil service lawyers can affect the course of entire administrations and then refuse to tell anyone what they did.