Office of Legal Counsel

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The Office of Legal Counsel (OLC) is an office in the United States Department of Justice that assists the Attorney General in his function as legal adviser to the President and all executive branch agencies.

History[edit]

The Office of Legal Counsel was created in 1934 by an act of US Congress, as part of a larger reorganization of executive branch administrative agencies. It was first headed by an assistant solicitor general. In 1951, Attorney General J. Howard McGrath made it a division led by an assistant attorney, and named it the Executive Adjudications Division. This name was changed to Office of Legal Counsel in an administrative order by Attorney General Herbert Brownell, Jr., issued April 3, 1953.[1]

Responsibilities[edit]

The Office of Legal Counsel (OLC) assists the Attorney General of the United States in his function as legal adviser to the President and all the executive branch agencies, hence the appellation "the president's law firm.".[2] The OLC drafts legal opinions of the Attorney General and also provides its own written opinions and oral advice in response to requests from the Counsel to the President, the various agencies of the executive branch, and offices within the Department of Justice. Such requests typically deal with legal issues of particular complexity and importance or about which two or more agencies are in disagreement. The Office also is responsible for providing legal advice to the executive branch on all constitutional questions and reviewing pending legislation for constitutionality. The decisions of the Office are binding on all executive agencies.

All executive orders and proclamations proposed to be issued by the President are reviewed by the OLC for form and legality, as are various other matters that require the President's formal approval.

In addition to serving as, in effect, outside counsel for the other agencies of the executive branch, the OLC also functions as general counsel for the Department of Justice itself. It reviews all proposed orders of the Attorney General and all regulations requiring the Attorney General's approval.

Newsweek characterized the OLC as "the most important government office you've never heard of. Among its bosses -- before they went on the Supreme Court -- were William Rehnquist and Antonin Scalia. Within the executive branch, including the Pentagon and Central Intelligence Agency, the OLC acts as a kind of mini Supreme Court. Its carefully worded opinions are regarded as binding precedent -- final say on what the president and all his agencies can and cannot legally do."[3] However, this binding effect has never been tested in a U.S. court.

List of Assistant Attorneys General in charge of OLC[edit]

Name Years Served Appointed By Notes
Angus D. MacLean 1933–1935 Franklin D. Roosevelt [4]
Golden W. Bell 1935–1939 Franklin D. Roosevelt
Charles Fahy 1940–1941 Franklin D. Roosevelt
Oscar S. Cox 1942–1943 Franklin D. Roosevelt
Hugh B. Cox 1943–1945 Franklin D. Roosevelt
Harold W. Judson 1945–1946 Franklin D. Roosevelt
George T. Washington 1946–1949 Harry Truman
Abraham J. Harris 1950–1951 Harry Truman
Joseph C. Duggan 1951–1952 Harry Truman
J. Lee Rankin 1953–1956 Dwight Eisenhower
W. Wilson White 1957 Dwight Eisenhower After a short tenure, selected to be first head of the Justice Department's Civil Rights Division
Malcolm R. Wilkey 1958–1959 Dwight Eisenhower
Robert Kramer 1959–1961 Dwight Eisenhower
Nicholas deB. Katzenbach 1961–1962 John F. Kennedy
Norbert A. Schlei 1962–1966 John F. Kennedy
Frank H. Wozencraft 1966–1969 Lyndon Johnson
William H. Rehnquist 1969–1971 Richard Nixon Later nominated and confirmed as Associate, and subsequent Chief Justice of the U.S. Supreme Court
Ralph E. Erickson 1971–1972 Richard Nixon
Roger C. Cramton 1972–1973 Richard Nixon
Antonin Scalia 1974–1977 Gerald Ford Later nominated and confirmed as Associate Justice of the U.S. Supreme Court
John M. Harmon 1977–1981 Jimmy Carter [5]
Theodore B. Olson 1981–1984 Ronald Reagan Later became U.S. Solicitor General
Charles J. Cooper 1985–1988 Ronald Reagan
Douglas Kmiec 1988–1989 Ronald Reagan Later U.S. Ambassador to the Republic of Malta during the "Arab Spring" uprisings.
William P. Barr 1989–1990 George H. W. Bush
Michael Luttig 1990–1991 George H. W. Bush
Timothy Flanigan 1991–1992 George H. W. Bush
Walter Dellinger 1993–1994 Bill Clinton Later became Acting U.S. Solicitor General
Beth Nolan 1995 acting [6] Served as Acting Assistant AG, OLC, while Deputy Assistant Attorney General. Nominated to become Assistant AG, OLC, but Senate did not vote on the nomination. Became White House Counsel in 1996.
Dawn Johnsen 1996–1998 acting
Randolph D. Moss 1998–2001 Bill Clinton Served as Acting AAG from 1998-2000; nominated November 9, 1999; Recess-appointed Aug. 3, 2000; confirmed by United States Senate December 15, 2000
Jay S. Bybee 2001 – March 2003 George W. Bush In charge when the OLC issued the Bybee memo and other Torture memos; appointed as a federal judge; started March 21, 2003
Jack Goldsmith October 2003 – June 2004 George W. Bush Later Professor at Harvard Law School and author of The Terror Presidency (2007)
Daniel Levin 2004–2005 acting
Steven G. Bradbury 2005–2009 acting Served as Acting AAG 2005–2007 (nominated June 23, 2005; nomination approved by Senate Judiciary Committee but never voted on by full Senate), continued to function as senior appointed official in charge of OLC until Jan. 20, 2009
David J. Barron 2009–2010 acting Professor at Harvard Law School and served as Acting AAG from January 2009-July 2010.
Jonathan G. Cedarbaum 2010–2011 acting Served as Acting AAG, July–November 2010; continued to function as senior appointed official in charge of OLC until the end of January 2011.
Caroline D. Krass 2011 acting Senior appointed official leading OLC since the end of January 2011 until June 2011, when Virginia A. Seitz was confirmed.
Virginia A. Seitz 2011–present Barack Obama Confirmed by the Senate in a voice vote on June 28, 2011.

In the news[edit]

During the entirety of President George W. Bush's second term, Steven G. Bradbury served as acting head of OLC. He was first officially nominated on June 23, 2005, and then repeatedly re-nominated because of Senate inaction.[7] His position became a point of political friction between the Republican President and the Democratic-controlled 110th Congress, with Democrats arguing that Bradbury was in the position illegally and Republicans arguing that Democrats were using his nomination to score political points.[8][9]

In January 2009, President Barack Obama announced his intention to nominate Dawn Johnsen to the position of Assistant Attorney General for the Office of Legal Counsel.[10] She had previously held that position, in an acting capacity, during the Clinton administration.[11][12] Her nomination was withdrawn on April 9, 2010.[13]

In June 2011, New York Times reporter Charlie Savage revealed that President Obama took the unusual step of overruling the Office of Legal Counsel's advice with respect to the legality of military action in Libya. The OLC's written opinions have historically been considered binding on the executive branch.[14]

References[edit]

  1. ^ Huston, Luther A. (1967). The Department of Justice. New York: Frederick A. Praeger. 
  2. ^ "The President's Law Firm," Slate, January 6, 2009.
  3. ^ Klaidman, Daniel; Stuart Taylor Jr. and Evan Thomas (2006-02-06). "Palace Revolt". Newsweek. p. 34. Retrieved 2008-10-22. 
  4. ^ Register, Department of Justice and the Courts of the United States, United States Government Printing Office (1972–1976), p. 131. "Office of Legal Counsel (Formerly Office of Assistant Solicitor General and Executive Adjudications Division," list of officeholders through 1973.
  5. ^ John M. Harmon bio, Graves, Dougherty, Hearon & Moody.
  6. ^ "Nolan to Become 1st Female White House Counsel". Los Angeles Times. August 20, 1999. Retrieved August 2, 2009. 
  7. ^ Presidential Nominations database, via THOMAS (accessed January 24, 2009).
  8. ^ Spencer Ackerman, "Who Is Steve Bradbury?," TPM Muckraker, October 19, 2007.
  9. ^ "Webb opens, closes vacant Senate session," CNN, December 26, 2007.
  10. ^ "President-elect Obama announces key Department of Justice posts". Change.gov: The Obama-Biden Transition Team. 2009-01-05. 
  11. ^ Eric Lichtblau, "Obama Names 4 for Justice Jobs in Break From Bush Path," New York Times, January 5, 2009.
  12. ^ Ben Smith, "Bush's legal foes now Obama's legal team," Politico, January 24, 2009.
  13. ^ Charlie Savage (April 9, 2010). "Obama Nominee for Justice Post Withdraws". New York Times. 
  14. ^ Charlie Savage (June 17, 2011). "2 Top Lawyers Lost to Obama in Libya War Policy Debate". New York Times. 

External links[edit]