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Protesters delivered a petition to Attorney General Merrick Garland in support of the Equal Rights Amendment, during a rally and march on January 27, 2022, in Washington.
The Revolving Door Project, a Prospect partner, scrutinizes the executive branch and presidential power. Follow them at therevolvingdoorproject.org.
One former employee of the Office of Legal Counsel, upon quitting her job during the Trump presidency, described the OLC’s work to The Washington Post succinctly: “using the law to legitimize lies.” Three years later, and a year after Trump left office, most of those legitimized lies remain intact.
It will come as no surprise that former President Trump abused the powers of the Department of Justice. But in reviewing the opinions released by the DOJ’s Office of Legal Counsel over Trump’s four years, its deference to his agenda, in spite of those abuses, stands out. Deferring to the president has been the OLC’s norm since the pre-2016 era, which is itself troubling; that impulse becomes particularly alarming when the president is charting a course to sabotage American democracy.
The OLC is both a powerful and secretive force within the executive branch. It provides authoritative legal opinions to the president and executive branch agencies, opinions that can form the basis for controversial executive actions. Most of the OLC’s determinations are never released to Congress or the public. A few are published without fanfare on its website.
We have no idea how many confidential opinions, formal or informal, the OLC offered Trump or anyone else during Trump’s term, and no idea if any of them have been reconsidered since. That’s an obvious problem. In the aftermath of a presidency marked by a norms-shattering regime of corruption, the usual procedures—like the OLC’s stubborn secrecy, and reluctance to depart from its past opinions—have become unacceptable. The Office of Legal Counsel requires new transparency and deserves renewed scrutiny.
The OLC’s obsequiousness to Trump started on day zero: The moment he took office, it issued an opinion stating that positions in the White House were exempt from the prohibition on nepotism. The author of that memo, veteran DOJ employee Daniel Koffsky, remains at the DOJ today—as an ethics official, of all things. Two days before Koffsky gave presidential nepotism the official OK, Jamie Gorelick—Attorney General Merrick Garland’s close friend and Jared Kushner’s “ethics lawyer”—laid out the argument in a New York Times op-ed. From the get-go, the OLC was willing to contort any which way to accommodate Trump, at the cost of the office’s integrity.
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While we don’t know the full extent of the OLC’s misdirection under Trump, we do know that of the 48 opinions published on its website during Trump’s presidency, only three have been publicly revisited under President Biden. (Again, 48 isn’t the full number of released opinions, since some aren’t listed on the website—like the 2017 OLC memo approving Trump’s travel ban, which was released in response to a FOIA request. Visibility of the office remains patchwork.) One revised opinion pertained to the disclosure of Trump’s tax returns, and another to prisoners released to home confinement during the pandemic.
The third revised opinion was just released on January 26, and reconsiders the OLC’s 2020 assessment of the Equal Rights Amendment, which argued that Congress did not have the authority to revive the ERA ratification process. The 2022 opinion reins in the OLC’s past overreach, pointing out that the OLC is hardly the appropriate party to be making determinations about the ERA’s ratification; the matter “will be resolved not by an OLC opinion but by the courts and Congress.”
The three OLC opinions that were revisited show a path available for Merrick Garland’s DOJ, without any need for congressional or presidential approval, to recoup some of the OLC’s rightfully sullied credibility. In a 2021 opinion, the Office of Legal Counsel acknowledged that its 2019 opinion on releasing Trump’s tax returns “went astray” when it determined that Congress could not compel the disclosure of Trump’s tax returns because it lacked a “legitimate legislative purpose.” On the contrary, assessing the IRS’s presidential audit program was a “plainly legitimate area for congressional inquiry,” the OLC amended.
Strengthening executive power and undercutting legislative power is a running theme throughout the Office of Legal Counsel’s Trump-era opinions, so it’s significant that the OLC in 2021 acknowledges that it “failed to accord the respect and deference due a coordinate branch of government.” In fact, it weaponized the separation of powers to undermine congressional oversight of the executive branch. By that same token, the OLC can now play a role in restoring congressional oversight. All it takes is Garland deciding it isn’t his job to defend the last president’s loathsome legacy.
Strengthening executive power and undercutting legislative power is a running theme throughout the Office of Legal Counsel’s Trump-era opinions.
What about the obverse? It’s true that a future GOP-led Congress could engage in bad-faith “oversight” of a Biden-led executive branch. But if the Office of Legal Counsel under Garland seeks to retain the corrosive Trump-era OLC opinions that protected Trump from congressional oversight, that would be not only wrongheaded, but a cynical political decision from Garland’s purportedly depoliticized DOJ. There are far better ways for Biden to preserve his ability to take executive action than deferring to Trump’s anti-democratic tactics. And Garland’s DOJ has an important role in shaping what legally sound executive action looks like.
The OLC’s pivot on home confinement exemplifies that opportunity. In January 2021, five days before Biden’s inauguration, Trump’s OLC issued an opinion stating that the Bureau of Prisons didn’t have the authority to decide which or whether prisoners released to home confinement during the pandemic could remain there after the CARES Act expired. Upon reconsideration, the OLC decided in December 2021 that its “prior opinion failed to address important and persuasive counterarguments,” including the Bureau of Prisons’ surprisingly humane argument that rather than forcing prisoners to return en masse to prison, “an individualized approach betters serves penological goals.” This is a laudable re-evaluation. Garland’s DOJ can and must do more of it.
One place to start is a particularly infamous opinion released on the same day as the first home confinement memo, which claimed that the incoming president should be denied access to the outgoing president’s files on the presidential computer, and would need to request access from the National Archives and Records Administration (NARA). Kel McClanahan, the executive director of National Security Counselors, called the opinion “balls to the wall bonkers,” and said it illustrated the phenomenon that “OLC will justify ANYTHING, no matter HOW CRAZY, that the President wants to do.” The opinion also foreshadowed and lent legitimacy to Trump’s October 2021 lawsuit against NARA and the House Select Committee investigating the attack on the Capitol, trying to prevent the committee from accessing Trump’s records in NARA’s custody.
The OLC churned out eight opinions in the two weeks before Biden took office. (That’s a lot, relatively speaking; it only released eight in all of 2020.) Some are bizarre lip service to conservative agitprop, like whether a federally funded rodeo competition could be segregated by sex (yes), whether federal buildings could put up more religious decorations (yes), and whether federal student aid money could be used for abortions (no). Others, like the January 8, 2021, opinion that congressional oversight of the White House should be more limited than oversight of executive agencies and departments, are blatant attempts to preempt congressional investigations of Trump.
A laundry list of other opinions exists explicitly to help Trump and his advisers subvert investigation and impeachment in various ways, including that Trump could make a preliminary, protective assertion of executive privilege over the entirety of material subpoenaed for Special Counsel Robert S. Mueller’s investigation. Two undermined the House of Representatives’ subpoenas of executive branch officials—one on procedural grounds, and the other on the grounds of executive privilege. Still another affirmed the immunity of Kellyanne Conway from compelled congressional testimony, and another claimed that even the president’s former advisers were immune from congressional testimony.
Even Trump’s infamous July 25, 2019, call with the Ukrainian president that led to his first impeachment was recast as a White House employee’s complaint about the president’s behavior that did not rise to the level of an “urgent concern.”
Other Office of Legal Counsel opinions from that time are less glaringly Trump-centric, but just as pernicious. Another high priority OLC reconsideration should be this 2019 opinion, which vindicates two distinct right-wing obsessions: bad-faith “cost-benefit analysis” of regulations, and undermining the independence of independent agencies, both of which are major obstacles to progressive governance at a basic level.
The Office of Legal Counsel can work to address its corroded legacy without the input of Biden or Congress, but it will likely need Garland’s support. That makes Garland’s reluctance to seem “political” even more troubling. Garland has bigger and thornier work to take on, but revising the flawed legal guidance that the OLC provided back when it was busy “legitimizing lies” is an obvious baby step in de-Trumpifying the Department of Justice.
