More on the Decline of OLC

With Charlie Savage’s book out today, I can add to my post last week about the decline of OLC as a source of relatively independent, dispositive legal advice on national security issues within the Executive branch. Savage shows that OLC played an important role in many national security decisions during the Obama years, especially early on. His story suggests that OLC’s influence depends on the relative strength of the Attorney General and White House Counsel’s Office, the implicit authority of the OLC head, and the hodgepodge of personalities and relationships among national security lawyers. He also adds to the evidence that OLC has declined in influence in the national security context over the course of the Obama presidency.

First, Savage’s book reminds me that I neglected in the earlier post to list the General Counsel of ODNI (now, Bob Litt) as one of the sources of strong legal influence on national security matters outside of OLC. The General Counsel of ODNI is Senate-confirmed and plays an important advice and coordination role for the White House and the intelligence community general counsels.

Second, the Obama administration adopted an inter-agency “lawyers’ group” model for deciding almost all important national security legal questions. There is much to be said for this model, which emphasizes deliberation, equities-consideration, consensus-building, and error avoidance—all good qualities, most if not all of which were lacking in the early Bush years. One downside is that the lawyers’ group tends to be White-House-centered, and White House-centered deliberations can (not must) undermine the already fragile independence of legal advice that OLC, operating as a semi-detached entity in the Justice Department, is designed to provide. OLC in the Obama years also got in the habit of circulating “tentative” unsigned draft legal advice. This practice is designed (among other things) to accomplish the good governance virtues listed above, but it can also make legal conclusions an implicit topic of bargaining. Whatever the merits and demerits of the lawyers’ group (and there are more merits and demerits than I can here consider), it can diminish OLC’s influence overall to the extent it makes OLC in practice one voice among many.

Third, as one might expect with a switch from an DOJ-dominant, OLC-centered model of legal decisionmaking to a White House-centered lawyers’ group model, the White House sometimes grabbed control from the lawyers’ group and cut OLC down (or out). I discussed one example last week—the killing of Bin Laden. Another example, the clearest one, concerns the deliberations about whether the War Powers Resolution required the President to stop bombing in Libya 60 days after the operation began in 2011. As the deadline approached, Savage reports, DOD General Counsel Jeh Johnson circulated a paper to the lawyers’ group arguing that the WPR “hostilities” criterion would be satisfied if the United States dialed back its involvement from a bombing to a supporting role. Caroline Krass, Acting head of OLC, did not circulate a memo but basically agreed with Johnson's memo, with a few tweaks. The State Department Legal Advisor’s Office “put out” a memo by David Pozen with a similar conclusion. Johnson’s view thus appeared to be “the consensus view.” But President Obama decided that he “would not ratchet down the mission.” White House Counsel Bob Bauer, after consulting with some in the lawyers’ group, advised the President that maintaining the mission was not consistent with the “favored” interpretation of the WPR but was a “legally available” option, a position that State Department Legal Advisor Harold Koh endorsed. Krass, according to Savage, informed the White House that OLC, if asked for a “formal, authoritative memo,” would not give the White House the answer it wanted to hear. So the White House did not ask. Later, Attorney General Eric Holder – the legal officer charged by statute* and custom with providing legal advice to the President and department heads – backed Krass's legal position only mildly to the President, and only after the President had made his contrary decision. For future students of executive branch lawyering, this episode will be an example of the dangers to independent legal advice that occur when the White House rather than Justice Department takes control of legal deliberation and decisionmaking. (Yes, I am aware that a DOJ/OLC-centered model is no guarantee of even semi-independence, but I do think it has a better chance.) Or, for presidential-power-maximalists, it will serve as an example of the virtues of White House legal decisionmaking, and a reminder of the fact that the President, the Chief Legal Officer of the government, can get legal advice from whomever he wants.

Finally, I want to add to last week's conclusion that because OLC opinions are now so readily FOIA-able, and because OLC has gotten slower in issuing advice, and because there are so many other potential sources of national security legal advice in the government (especially in an era of strong general counsels), OLC is asked much less often than before for formal legal opinions on national security matters. Several sources have confirmed this conclusion to me. They emphasize, however, that OLC still participates in the inter-agency lawyers’ group (usually—cf. the Bin Laden example), and is still consulted on national security matters, though on a much less formal basis and usually for oral or email advice. I accept these points, but I think they count as evidence of the overall decline in OLC’s influence.

In saying that OLC has declined in influence I do not mean to cast aspersions on my old Office, for which I have enormous affection. Nor do I mean in any way to suggest that the quality of OLC lawyering has diminished – it has not. Nor do I mean to imply that OLC is unimportant. It stills plays a very important role with its meat-and-potato administrative law and separation of powers docket. Nor, finally, am I saying that OLC is in irreversible decline in national security matters. Some of the factors listed above (e.g. the FOIA effect) are structural. But many depend on the implicit wishes of the President, the power of the Attorney General, and the personalities and relationships of top national security lawyers. When President Marco Rubio and his Attorney General Paul Clement assume office (or when President Hillary Clinton and her Attorney General Harold Koh assume office), they can insist, if they want, that OLC return to its traditional role.

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* However, the Attorney General’s statutory authority is technically quite qualified. Under 28 U.S. Code § 511, the “Attorney General shall give his advice and opinion on questions of law when required by the President.”