Academic journal article Harvard Law Review

The Immunity-Conferring Power of the Office of Legal Counsel

Academic journal article Harvard Law Review

The Immunity-Conferring Power of the Office of Legal Counsel

Article excerpt

At a February 2008 congressional hearing, Attorney General Michael Mukasey stated that "the Justice Department ... could not investigate or prosecute somebody for acting in reliance on a Justice Department opinion," even if it turns out that the advice in the opinion was erroneous. (1) When pressed by Congressman Bill Delahunt on whether any "legal precedent" supported this conclusion, the Attorney General replied that his analysis rested on "a practical consideration." (2) He acknowledged, "I can't sit here and cite you a case." (3)

The Department of Justice's Office of Legal Counsel (OLC) had issued the legal opinions that were the subject of this colloquy. OLC exercises the Attorney General's opinion-writing function and serves as "the executive branch's most authoritative legal voice." (4) As OLC has risen in prominence since 9/11, many commentators have asserted, in agreement with Attorney General Mukasey, that it is "virtually inconceivable" that criminal charges could be brought against officials for illegal acts previously approved by an OLC opinion. (5) This "momentous and dangerous power[]" of OLC is not limited to issues in the war on terrorism. (6) It is potentially at stake every time the office interprets a criminal law that applies to the government.

The widespread belief in OLC's immunity-conferring power is not matched by analysis of the legal or institutional bases supporting the belief. This Note aims to fill that gap. Part I provides background on OLC's advisory function and procedures. Part II analyzes three potential defenses that stand in the way of prosecuting someone who has relied on an OLC opinion: entrapment by estoppel, the public authority defense, and innocent intent. Part III contends that, although the immunizing effect of OLC opinions is ambiguous as a doctrinal matter, Department of Justice prosecutions are implausible due to various institutional and practical factors. Part IV concludes.

I. THE ADVISORY FUNCTION OF THE OFFICE OF LEGAL COUNSEL

A. History

Under Article II of the Constitution, the President must "take Care that the Laws be faithfully executed." (7) The President must exercise the power of legal interpretation to carry out this textually specified duty: he must first construe the law in order to enforce it.

By statutory duty, the Attorney General aids the President in fulfilling this function. In the Judiciary Act of 1789, Congress charged the newly created office of the Attorney General with the obligation to "give ... advice and opinion upon questions of law when required by the President of the United States, or when requested by the heads of any of the departments." (8) The Attorney General's opinions were prepared primarily by the Solicitor General or Assistant Solicitor General until the mid-twentieth century. (9)

Upon the elimination of the Assistant Solicitor General position in 1950, OLC assumed the opinion-writing mantle. (10) The office is tasked under Department of Justice regulations with "[p]reparing the formal opinions of the Attorney General; rendering informal opinions and legal advice to the various agencies of the Government; and assisting the Attorney General in the performance of his functions as legal adviser to the President." (11) Today, OLC lawyers pen almost all of the Department of Justice's formal opinions--"the largest body of official interpretation of the Constitution and statutes outside the volumes of the federal court reporters." (12)

B. Pressures

In the private lawyer context, a defendant who acts illegally cannot invoke an advice-of-counsel defense. (13) As Judge Richard Posner noted: "There are almost a million lawyers in the United States. Not all of them are competent; not all are honest. If unreasonable advice of counsel could automatically excuse criminal behavior, criminals would have a straight and sure path to immunity. …

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