Academic journal article Harvard Law Review

III. Presidential Power and the Office of Legal Counsel

Academic journal article Harvard Law Review

III. Presidential Power and the Office of Legal Counsel

Article excerpt

During the last four months of 2011, the United States used unmanned drones to kill at least sixty people in Pakistan alone. (1) Drones have also been used in other nations, such as Yemen and Somalia. (2) Who decided that these strikes were legal, especially the targeted killing of U.S. citizen Anwar al-Awlaki? That duty fell to the Department of Justice's Office of Legal Counsel (OLC), which drafted the legal opinions justifying these killings. (3) Although extremely influential within the executive branch, (4) OLC has received little publicity for most of its history, (5) leading Newsweek to label it "the most important government office you've never heard of." (6) Its responsibilities include offering legal advice on proposed legislation and executive orders and helping to mediate legal disputes among various executive branch actors, but its most significant (as well as most controversial) function is drafting the official opinions of the Attorney General. (7) This role is especially important when the White House itself asks for legal analysis; yet, in such instances, OLC's mission to provide nonpartisan legal advice is in tension with both OLC's natural desire to assist the President and the President's general authority over the executive branch.

OLC, whose opinions have considerable influence across the government, (8) has attempted to strike a balance between protecting presidential power and ensuring fidelity to the law by developing institutional norms designed "to protect its independence and to ensure that the Office will pursue ... a 'court-centered' or 'independent authority' model of government lawyering instead of the 'opportunistic' model of a private lawyer." (9) When the norms are followed, they help to ensure that OLC functions as an "independent" Attorney General, able to render impartial advice. (10) When OLC disregards these norms under White House pressure, however, OLC may issue flawed opinions that improperly expand presidential power. Recent examples of OLC lawyers being pressured by the White House into disregarding these safeguards include the "torture memos" (11) and its opinions authorizing drone strikes against suspected terrorists abroad. (12) In addition, OLC's ability to constrain the President may falter where the President intentionally circumvents the office, as where President Obama rejected OLC's interpretation of the War Powers Resolution. (13) Each of these occurrences offers lessons for future relations between OLC and the White House. Increasingly, constraints on presidential power are coming not from other branches of government (as in the traditional Madisonian model of the separation of powers) but instead from political constraints on the President himself. (14) The incidents described above help shed light on the question of whether OLC legal opinions can impose a meaningful political constraint on presidential authority.

Section A introduces OLC and describes the White House's influence over OLC's legal opinions, and in particular the influential roles of the President and the White House Counsel. Section B discusses the internal norms and safeguards OLC has developed over time to maintain its independence from the White House and explains that this independence is desirable because it helps to ensure that OLC's legal opinions are accurate and unbiased. Section C illustrates the dangers of OLC's failing to adhere to its own safeguards or of the President's short-circuiting the opinion-writing process. Section D discusses reforms that have been implemented in order to preserve OLC's independence.

A. White House Influence on the Office of Legal Counsel

For most of its executive branch clients, OLC follows a standard set of procedures designed to protect its independence and ensure that its opinions provide the best possible view of the law. When the White House is the client, however, some of these safeguards do not apply, and OLC's impartiality is correspondingly more likely to wane. …

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