Wither OLC

October 28th, 2015

Charlie Savage reports that the President sought legal advice concerning the Bin Laden Raid from the CIA’s general counsel, the NSC’s legal adviser, the Joint Chiefs’ legal adviser, and the Pentagon general counsel. He did not seek the advice, or even notify Attorney General Holder or the Office of Legal Counsel. This is a remarkable revelation, and speaks to the weakening of the Office of Legal Counsel.

Eric Posner writes:

More interesting, the OLC–which would normally be called upon to render the final opinion–was not included. Not just the OLC, but the entire Justice Department was frozen out. Why? Could it be that the OLC was less than cooperative when the White House sought a legal rubber stamp for the Libya intervention in 2011? Has the OLC been demoted for its insubordination?

Jack Goldsmith adds:

But there is no doubt that OLC’s authority and influence have in general diminished by comparison to prior administrations of both parties.  Many people who would know have told me that OLC’s advice is now sought much less than in the past, especially in national security decisions.  A few people have told me that OLC simply has no place at the table in important national security decisions.  And now today, Charlie Savage reports, in an article derived from his forthcoming book, that the Obama administration gave the President legal advice about the 2011 Bin Laden operation in deep secrecy that cut out the Attorney General and OLC.

The real news here is that the AG was not told about the Bin Laden raid.  That is very hard to understand or justify.  The failure to consult OLC is only a little less surprising.

I know from first and second-hand conversations that some important lawyers in the Obama administration came to Office thinking that OLC had too much sway in prior administrations.   And then the sky did not fall when Attorney General Holder, early in the administration, reportedly overruled an OLC opinion on the unconstitutionality of a D.C. voting rights bill after the Acting Solicitor General advised him he could defend the law in court.


I would add to this discussion that the Obama Administration did not seek a formal opinion from OLC concerning the legality of DACA in 2012. Rather they only sought oral advice. This was acknowledged in a cryptic footnote in the 2014 DAPA memorandum, which suggests some of the internal tensions within the Obama administration:

Before DACA was announced, our Office was consulted about whether such a program would be legally permissible. As we orally advised, our preliminary view was that such a program would be permissible, provided that immigration officials retained discretion to evaluate each application on an individualized basis. We noted that immigration officials typically consider factors such as having been brought to the United States as a child in exercising their discretion to grant deferred action in individual cases. We explained, however, that extending deferred action to individuals who satisfied these and other specified criteria on a class-wide basis would raise distinct questions not implicated by ad hoc grants of deferred action. We advised that it was critical that, like past policies that made deferred action available to certain classes of aliens, the DACA program require immigration officials to evaluate each application for deferred action on a case-by-case basis, rather than granting deferred action automatically to all applicants who satisfied the threshold eligibility criteria. We also noted that, although the proposed program was predicated on humanitarian concerns that appeared less particular- ized and acute than those underlying certain prior class-wide deferred action programs, the concerns animating DACA were nonetheless consistent with the types of concerns that have customarily guided the exercise of immigration enforcement discretion.

This oral advice sounds like the President didn’t really care what they had to say. Further, the footnote suggests that OLC was trying to signal that they didn’t completely back the proposal. And reports about the design of DAPA suggest that DHS Secretary Jeh Johnson was in charge, and not OLC.