As Trump Tests Legal Boundaries, Small DOJ Unit Poised for Big Role
Zoe Tillman, The National Law Journal
President-elect Donald Trump moved quickly in naming his picks for two key legal posts, selecting a conservative politician in Sen. Jeff Sessions to run the U.S. Department of Justice and a loyal adviser in Jones Day partner Donald McGahn II to serve as White House counsel.
Washington lawyers now have their eyes on a less visible appointment, but one that could set the tone on issues ranging from how completely the incoming president separates himself from his business interests to how his administration acts on campaign promises to spike trade agreements and revive harsh interrogation policies.
The Justice Department’s Office of Legal Counsel, which handles legal questions from the White House and federal agencies, often has the last word on murky areas of law and there are plenty trailing Trump into the White House. That positions the next OLC chief to play a key role as the White House maps out its agenda but may also mean navigating delicate politics in an administration that seems bent on testing conventional legal doctrine.
Former OLC officials say the next head of the office will have to walk a fine line to be a lawyer Trump trusts and won’t try to circumvent, without being seen as a rubber stamp.
“It’s going to be an interesting time at OLC because a number of issues are going to be turned upside down,” said Walter Dellinger, a partner at O’Melveny & Myers who led the office from 1993 to 1996.
Citing Trump’s statements in favor of waterboarding, for instance, Dellinger said “the fact that the incoming president has stated in several areas that he intends not to follow existing law will make the position more challenging—and more interesting.”
The Office of Legal Counsel often has a behind-the-scenes role in controversial executive branch policies. Under President George W. Bush, the Office of Legal Counsel established the legal framework for harsh interrogation techniques such as waterboarding; under President Barack Obama, it signed off on the deferral of deportation for millions of undocumented immigrants.
Questions about Trump’s ties to his eponymous company are expected to reach the office early in the new administration. In 2009, the OLC published an opinion about Obama’s acceptance of the Nobel Peace Prize, concluding that it didn’t violate the constitutional prohibition on receiving gifts or titles from foreign governments. Trump’s business dealings overseas and ties that his U.S. properties have to foreign governments present a new set of ethics questions.
Should Trump follow through on his campaign pledges to roll back Obama’s executive actions and federal regulations on everything from immigration to climate change, the office would advise him on whether he could do it, and how.
Early in Obama’s presidency, the OLC withdrew legal opinions from the second Bush administration about the use of harsh interrogation techniques on terror suspects. Trump, who said on the campaign trail that “torture works,” could ask the office to revisit the issue.
A large part of the office’s work is resolving legal spats among agencies and interpreting federal laws and regulations. The lawyers review executive orders, and serve as an adviser to the executive branch on separation-of-powers issues. Occasionally, a big legal question—like torture or government surveillance—will come through.
John McGinnis, a professor at Northwestern University Pritzker School of Law who served as deputy assistant attorney general in the office from 1987 to 1991, cautioned against assuming that Trump’s campaign proclamations signal the policies he’ll embrace as president.
“People in campaigns, this is all politicians, do not speak in policy legal terms. I would not want to predict that what will come to OLC can be captured in the soundbites of a campaign,” McGinnis said.
Since the election, Trump has continued to express his interest in reviving the practice of waterboarding, although he said in a recent interview with The New York Times that he was intrigued by his conversation with a military general who said the practice wasn’t effective.
LEGAL CREDIBILITY
The Office of Legal Counsel is staffed by about 25 attorneys and has a budget of roughly $8 million. Yet because of its influence, it is one of the more politically contentious offices at the Justice Department. That was especially true in the years after the Sept. 11, 2001, terrorist attacks, when the office faced criticism for providing a legal rationale for torturing terror suspects. Both Bush and Obama saw nominees to lead the office stall in the Senate amid partisan opposition.
With a Republican majority in the U.S. Senate and weakened filibuster rules for executive nominees, Trump is expected to have an easier time getting his nominee through.
Some former DOJ officials questioned whether Trump might have a tough time finding a lawyer willing to serve, given the nature of the legal questions they’re expected to confront and the president-elect’s reputation as someone who doesn’t like to be told “no.”
A former top DOJ official in the second Bush administration who spoke on condition of anonymity said he knew lawyers who were hesitant about working for the department and for the OLC, given the controversial questions that office takes on. However, he said that there were many others who would want to work in government regardless of reservations they might have about the president-elect. .
The office has been a stepping stone for many influential lawyers. Among those who held the post under past Republican presidents are the late Supreme Court justices William Rehnquist and Antonin Scalia; Gibson, Dunn & Crutcher partner Theodore Olson; J. Michael Luttig, general counsel of The Boeing Co. and a retired judge on the U.S. Court of Appeals for the Fourth Circuit; and Ninth Circuit Judge Jay Bybee, who ran the office in the aftermath of 9/11 and signed the legal opinion authorizing “enhanced interrogation techniques.”
Carl Nichols, a partner at Wilmer Cutler Pickering Hale and Dorr and a former principal deputy associate attorney general during the second Bush administration, said the OLC chief is typically one of the most trusted advisers to the attorney general.
The office has “enormous legal credibility,” Nichols said. The specifics of the legal questions surrounding Trump and his agenda differ in some ways from his predecessors, Nichols said, but the ultimate task of grappling with the scope of executive power is a familiar one for the OLC.
“It’s a place where the White House and the agencies know if they have a hard question, they’ll have really terrific legal minds thinking about it,” he said.
HARD QUESTIONS
OLC lawyers aren’t the only ones who give legal advice to the executive branch. There are White House lawyers and each agency has its own legal department. During the Obama administration, a body of senior agency lawyers known as “The Lawyers’ Group” met to consider national security-related legal questions.
Harold Koh, a professor at Yale Law School who served as the legal adviser to the U.S. Department of State during the Obama administration and worked as a lawyer in the OLC, wrote in a recent blog post that he thought the interagency approach, which had been used in previous administrations, was the most effective process.
“Different agencies have different equities, perspectives, and areas of expertise and getting the input of all relevant legal arms of our vast executive branch is vital to sound decisionmaking,” Koh wrote.
But the OLC’s decisions carry significant weight, said Jonathan Adler, a professor at Case Western Reserve University School of Law, and although the president isn’t bound by the office’s conclusions, there’s strong precedent against defying them. That has led presidents to occasionally try to circumvent the office, Adler said, rather than having to deal with a contrary opinion. He cited as one example Obama’s decision in 2011 to reportedly eschew the usual OLC process in soliciting opinions about the legality of military action in Libya without congressional approval.
The office’s legal opinions “reflect, or are supposed to reflect, serious, largely neutral or as neutral as possible assessments of important legal questions about what the executive branch may or may not do,” Adler said.
A successful OLC head will take an “extremely proactive” approach to find ways for the administration to legally achieve policy goals, building up political capital for the occasions when the office has to tell the White House or an agency that they can’t do something within the bounds of the law, McGinnis said.
Dellinger said that his advice to an incoming president would be to pick an OLC head “who has a substantial career that gives him or her substantial stature and the ability to say no, and that will help keep you out of trouble.”
To the next head of the OLC, Dellinger said he would advise he or she to make sure to consult with career government attorneys, to always give an honest opinion of the law, and to have a good career to fall back on in the event of a serious disagreement with the White House.
“The job will drive you crazy if you’re not prepared to walk out the door,” he said.
