Checking the Office of Legal Counsel

As discussed in this Lawfare article by William Ford of Protect Democracy, the House Select Committee on the Modernization of Congress has asked GAO to study the feasibility of establishing a Congressional Office of Legal Counsel (COLC) to act as a congressional analogue to the Office of Legal Counsel (OLC) in the Department of Justice. The idea would be that COLC could issue opinions on controversial separation-of-powers subjects reflecting the views and perspectives of the legislative branch and thereby function as a counterweight to OLC’s invariably pro-executive positions.

The Lawfare article thoughtfully describes the pros and cons of establishing a COLC. I am skeptical of the idea myself, but I look forward to GAO’s analysis of the issue. In the meantime, there are steps that can be taken to level the playing field between Congress and the executive branch in terms of constitutional analysis.

For example, in recent testimony for the House Appropriations Subcommittee on the Legislative Branch, I proposed one small step. The House Counsel’s website could be significantly upgraded to provide more information about its legal functions, including “non-privileged information about its legal advice and representation, including court filings, legal opinions and select explanatory or historical documents that would shed light on its operations and the legal views of the House.” This would provide some modest counterbalance to OLC, which maintains an extensive (though selective) database of its opinions on its website.

Another check on OLC would be to obtain more transparency with respect to some of its most controversial opinions. For example, I have a FOIA request to OLC which seeks information about the January 19, 2020 opinion that it submitted in the first Trump impeachment trial. Specifically, I want to find out if the legal advice that it claimed to have given the administration in October 2019 was before or after the October 8, 2019 letter in which White House Counsel Pat Cipollone told the House it would not comply with any subpoenas relating to its investigation of the former president’s efforts to withhold military aid from Ukraine. So far I have not gotten much (a shocker, I know), but still I persist.

There are many other ideas for reining in executive constitutional overreach. In his recent book The Living Presidency, Professor Sai Prakash has suggestions ranging from defunding the White House Counsel and OLC (p. 255) to having Congress issue its own declarations on controverted constitutional issues (p. 265). Similarly, Professor Emily Berman, in Weaponizing the Office of Legal Counsel proposes a number of reforms, including requiring OLC to include “dissenting opinions” as part of the opinion-writing process and increasing the use of details to Congress to give executive branch lawyers from OLC and elsewhere a better sense of the congressional perspective on disputed constitutional matters.

Thus, there is no shortage of ideas for leveling the legal playing field between Congress and the executive branch. Getting Congress to pay attention to these issues when they are not in the headlines is, however, another matter.

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