Office of Legal Counsel
The Office of Legal Counsel (OLC) is an office in the United States Department of Justice that assists the Attorney General's position as legal adviser to the President and all executive branch agencies.
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.
The Office of Legal Counsel (OLC) assists the Attorney General of the United States in their function as legal adviser to the President and all the executive branch agencies, hence the appellation "the president's law firm." 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.
Usually 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.
According to press accounts, the OLC has historically acted as a referee within the executive branch and its legal opinions have generally been given deference among the agencies and departments. However, in the 21st century, some OLC opinions have come into question. An August 2002 OLC memo which narrowly defined torture, led to abuses within the CIAs Detention and Interrogation Program and its use of various forms of torture. In late January 2017, an OLC opinion regarding Executive Order 13769, which restricted entry into the US from certain Muslim countries, was quickly challenged from within and outside the executive branch. The acting Attorney General Sally Yates refused to defend the EO in court. A few days later in the case Washington v. Trump, a temporary restaining order was issued by the United States District Court for the Western District of Washington barring enforcement of the EO and the TRO was upheld by the Ninth Circuit on February 9, 2017, contravening the opinion of the OLC.
List of Assistant Attorneys General in charge of OLC
|Name||Years served||Appointed by||Notes|
|Angus D. MacLean||1933–1935||Franklin D. Roosevelt |
|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||Became Solicitor General in 1956.|
|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 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 |
|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 ||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.|
|Randolph D. Moss||1998–2001||Bill Clinton||Served as acting AAG from 1998 to 2000; nominated November 9, 1999; Recess-appointed August 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)|
|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 January 20, 2009.|
|David J. Barron||2009–2010||acting||Professor at Harvard Law School and served as Acting AAG from January 2009 to 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||2011–2013||Barack Obama||Confirmed by the Senate in a voice vote on June 28, 2011. Resigned effective December 20, 2013.|
|Karl R. Thompson||2014–2017||acting||Appointed Principal Deputy AAG on March 24, 2014.|
|Curtis E. Gannon||2017||acting||Appointed Principal Deputy AAG on January 20, 2017.|
|Steven Engel||2017–present||Donald Trump|
In the news
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. His position became a point of political friction between the Republican President and the Democratic-controlled 110th Congress, when Democrats contended that Bradbury was in the position illegally, while Republicans argued that Democrats were using his nomination to score political points. An opinion issued by the Government Accountability Office concluded that his status was not a violation of the Federal Vacancies Reform Act of 1998.
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. She had previously held that position, in an acting capacity, during the Clinton administration. Her nomination was withdrawn on April 9, 2010.
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.
- Huston, Luther A. (1967). The Department of Justice. New York: Frederick A. Praeger.
- "The President's Law Firm," Slate, January 6, 2009.
- Klaidman, Daniel; Stuart Taylor Jr.; Evan Thomas (2006-02-06). "Palace Revolt". Newsweek. p. 34. Retrieved 2008-10-22.
- 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.
- John M. Harmon bio Archived 2008-12-07 at the Wayback Machine., Graves, Dougherty, Hearon & Moody.
- "Nolan to Become 1st Female White House Counsel". Los Angeles Times. August 20, 1999. Retrieved August 2, 2009.
- "Meet the Leadership". justice.gov. United States Department of Justice. 20 January 2017. Retrieved 2017-06-04.
- Presidential Nominations database, via THOMAS (accessed January 24, 2009).
- Spencer Ackerman, "Who Is Steve Bradbury?", TPM Muckraker, October 19, 2007.
- "Webb opens, closes vacant Senate session", CNN, December 26, 2007.
- Kepplinger, Gary L. (2008-06-13). "Federal Vacancies Reform Act of 1998-Assistant Attorney General for the Office of Legal Counsel, U.S. Department of Justice". Government Accountability Office. Retrieved 2017-06-01.
- "President-elect Obama announces key Department of Justice posts". Change.gov: The Obama-Biden Transition Team. 2009-01-05. Archived from the original on 2009-04-30.
- Eric Lichtblau, "Obama Names 4 for Justice Jobs in Break From Bush Path", The New York Times, January 5, 2009.
- Ben Smith, "Bush's legal foes now Obama's legal team", Politico, January 24, 2009.
- Charlie Savage (April 9, 2010). "Obama Nominee for Justice Post Withdraws". The New York Times.
- Charlie Savage (June 17, 2011). "2 Top Lawyers Lost to Obama in Libya War Policy Debate". The New York Times.
- Office of Legal Counsel Department of Justice's Official OLC Homepage.
- The Missing Memos Special Project ProPublica's tracking table of both released and yet to be released OLC memos.
- Office of Legal Counsel Memos The ACLU's page dealing with the OLC memos.
- 4 Torture Memos Released 16Apr2009 in response to FOIA suit by ACLU.
- Senate Armed Forces Committee Report on Torture Released 22Apr2009.