Office of Legal Counsel
Encyclopedia
The Office of Legal Counsel (OLC) is an office in the United States Department of Justice
that assists the Attorney General in his function as legal adviser to the President and all executive branch agencies.
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 Brownell, issued April 3, 1953.
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. The decisions of the Office are binding on all executive agencies.
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.
Newsweek characterized the OLC as "the most important government office you've never heard of. Among its bosses -- before they went on the Supreme Court -- were William Rehnquist
and Antonin Scalia
. Within the executive branch, including the Pentagon
and Central Intelligence Agency
, the OLC acts as a kind of mini Supreme Court. Its carefully worded opinions are regarded as binding precedent -- final say on what the president and all his agencies can and cannot legally do." However, this binding effect has never been tested in a U.S. court.
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
, with Democrats arguing that Bradbury was in the position illegally and Republicans arguing that Democrats were using his nomination to score political points.
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.
United States Department of Justice
The United States Department of Justice , is the United States federal executive department responsible for the enforcement of the law and administration of justice, equivalent to the justice or interior ministries of other countries.The Department is led by the Attorney General, who is nominated...
that assists the Attorney General in his function as legal adviser to the President and all executive branch agencies.
History
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 McGrathJ. Howard McGrath
James Howard McGrath was an American politician and attorney from the U.S. state of Rhode Island.McGrath, a Democrat, served as U.S. Attorney for Rhode Island before becoming Governor, U.S. Solicitor General, U.S...
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 Brownell, issued April 3, 1953.
Responsibilities
The Office of Legal Counsel (OLC) assists the Attorney General of the United States in his function as legal adviser to the PresidentPresident of the United States
The President of the United States of America is the head of state and head of government of the United States. The president leads the executive branch of the federal government and is the commander-in-chief of the United States Armed Forces....
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. The decisions of the Office are binding on all executive agencies.
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.
Newsweek characterized the OLC as "the most important government office you've never heard of. Among its bosses -- before they went on the Supreme Court -- were William Rehnquist
William Rehnquist
William Hubbs Rehnquist was an American lawyer, jurist, and political figure who served as an Associate Justice on the Supreme Court of the United States and later as the 16th Chief Justice of the United States...
and Antonin Scalia
Antonin Scalia
Antonin Gregory Scalia is an American jurist who serves as an Associate Justice of the Supreme Court of the United States. As the longest-serving justice on the Court, Scalia is the Senior Associate Justice...
. Within the executive branch, including the Pentagon
The Pentagon
The Pentagon is the headquarters of the United States Department of Defense, located in Arlington County, Virginia. As a symbol of the U.S. military, "the Pentagon" is often used metonymically to refer to the Department of Defense rather than the building itself.Designed by the American architect...
and Central Intelligence Agency
Central Intelligence Agency
The Central Intelligence Agency is a civilian intelligence agency of the United States government. It is an executive agency and reports directly to the Director of National Intelligence, responsible for providing national security intelligence assessment to senior United States policymakers...
, the OLC acts as a kind of mini Supreme Court. Its carefully worded opinions are regarded as binding precedent -- final say on what the president and all his agencies can and cannot legally do." However, this binding effect has never been tested in a U.S. court.
List of Assistant Attorneys General in charge of OLC
| Name | Years Served | Appointed By |
|---|---|---|
| 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 George Thomas Washington George Thomas Washington was an American jurist who served as judge of the U.S. Court of Appeals for the D.C. Circuit from 1949 to 1965.-Biography:... |
1946-1949 | Harry Truman |
| Abraham J. Harris | 1950-1951 | Harry Truman |
| Joseph C. Duggan | 1951-1952 | Harry Truman |
| J. Lee Rankin J. Lee Rankin J. Lee Rankin was the 31st United States Solicitor General, from 1956 to 1961. In 1952, Rankin managed the Dwight Eisenhower for President campaign in Nebraska and in 1953, Eisenhower selected Rankin to serve as United States Assistant Attorney General.Known for his straightforward, quiet, and... |
1953-1956 | Dwight Eisenhower |
| W. Wilson White | 1957 | Dwight Eisenhower |
| Malcolm R. Wilkey | 1958-1959 | Dwight Eisenhower |
| Robert Kramer Robert Kramer Robert Kramer was an American film director, screenwriter and actor. He directed 19 films between 1965 and 1999... |
1959-1961 | Dwight Eisenhower |
| Nicholas deB. 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 |
| Ralph E. Erickson | 1971-1972 | Richard Nixon |
| Roger C. Cramton | 1972-1973 | Richard Nixon |
| Antonin Scalia Antonin Scalia Antonin Gregory Scalia is an American jurist who serves as an Associate Justice of the Supreme Court of the United States. As the longest-serving justice on the Court, Scalia is the Senior Associate Justice... |
1974-1977 | Gerald Ford |
| John M. Harmon John Harmon (attorney) John M. Harmon is an American lawyer who serverd as United States Assistant Attorney General for the Office of Legal Counsel during the Jimmy Carter administration.-Biography:... |
1977-1981 | Jimmy Carter |
| Theodore B. Olson | 1981-1984 | Ronald Reagan |
| Charles J. Cooper Charles J. Cooper Charles J. "Chuck" Cooper is an appellate attorney and litigator in Washington, D.C. and a founding member and chairman of the law firm Cooper & Kirk, PLLC... |
1985-1988 | Ronald Reagan |
| Douglas Kmiec Douglas Kmiec Douglas W. Kmiec is an American legal scholar, author, and former U.S. ambassador. He is the Caruso Family Chair and Professor of Constitutional Law at Pepperdine University School of Law. Kmiec came to prominence during the United States presidential election, 2008 when, although a Republican, he... |
1988-1989 | Ronald Reagan |
| William P. Barr | 1989-1990 | George H.W. Bush |
| Michael Luttig | 1990-1991 | George H.W. Bush |
| Timothy Flanigan Timothy Flanigan Timothy Elliott Flanigan is an American lawyer and politician.On May 24, 2005, President George W. Bush nominated him as Deputy Attorney General of the United States, the #2 position in the Department of Justice. On October 7, 2005, his name was withdrawn from consideration... |
1991-1992 | George H.W. Bush |
| Walter Dellinger | 1993-1994 | Bill Clinton |
| Beth Nolan Beth Nolan Beth Nolan is a vice president and general counsel ofthe George Washington University. She was Bill Clinton's final White House Counsel... |
1995 | acting |
| Dawn Johnsen Dawn Johnsen Dawn Elizabeth Johnsen is an American lawyer and professor of Constitutional law, who is currently on the faculty at Maurer School of Law at Indiana University in Bloomington, Indiana... |
1996-1998 | acting |
| Randolph D. Moss | 1998-2001 | Bill Clinton |
| Jay S. Bybee | 2001-2003 | George W. Bush |
| Jack Goldsmith Jack Goldsmith Jack Landman Goldsmith is a Harvard Law School professor who has written a number of texts regarding international law, cyber law, and national security law... |
2003-2004 | George W. Bush |
| Daniel Levin | 2004-2005 | acting |
| Steven G. Bradbury Steven G. Bradbury Steven G. Bradbury is an attorney at the Washington, D.C office of Dechert LLP.Bradbury was head of the Office of Legal Counsel in the United States Department of Justice during the George W. Bush administration. Appointed the Principal Deputy Assistant Attorney General for OLC in April 2004, he... |
2005-2009 | George W. Bush |
| David J. Barron | 2009-2010 | acting |
| Jonathan G. Cedarbaum | 2010-2011 | acting |
| Caroline D. Krass | 2011 | acting |
| Virginia A. Seitz Virginia A. Seitz Virginia A. Seitz is an American attorney who specializes in constitutional law, labor law, employment law and administrative law and who has been confirmed by the United States Senate to serve as the Assistant Attorney General for the Office of Legal Counsel in the United States Department of... |
2011-present | Barack Obama |
- Angus D. MacLean (1933-1935)
- Golden W. Bell (1935-1939)
- Charles Fahy (1940-1941)
- Oscar S. Cox (1942-1943)
- Hugh B. Cox (1943-1945)
- Harold W. Judson (1945-1946)
- George T. WashingtonGeorge Thomas WashingtonGeorge Thomas Washington was an American jurist who served as judge of the U.S. Court of Appeals for the D.C. Circuit from 1949 to 1965.-Biography:...
(1946-1949) - Abraham J. Harris (1950-1951)
- Joseph C. Duggan (1951-1952)
- J. Lee RankinJ. Lee RankinJ. Lee Rankin was the 31st United States Solicitor General, from 1956 to 1961. In 1952, Rankin managed the Dwight Eisenhower for President campaign in Nebraska and in 1953, Eisenhower selected Rankin to serve as United States Assistant Attorney General.Known for his straightforward, quiet, and...
(1953-1956) - W. Wilson White (1957-1957), after a short tenure, selected to be first head of the Justice Department's Civil Rights Division
- Malcolm R. Wilkey (1958-1959)
- Robert KramerRobert KramerRobert Kramer was an American film director, screenwriter and actor. He directed 19 films between 1965 and 1999...
(1959-1961) - Nicholas deB. Katzenbach (1961-1962)
- Norbert A. Schlei (1962-1966)
- Frank H. Wozencraft (1966-1969)
- William H. Rehnquist (1969-1971), later nominated and confirmed as Associate, and subsequent Chief Justice of the U.S. Supreme Court
- Ralph E. Erickson (1971-1972)
- Roger C. Cramton (1972-1973)
- Antonin ScaliaAntonin ScaliaAntonin Gregory Scalia is an American jurist who serves as an Associate Justice of the Supreme Court of the United States. As the longest-serving justice on the Court, Scalia is the Senior Associate Justice...
(1974-1977), later nominated and confirmed as Associate Justice of the U.S. Supreme Court - John M. HarmonJohn Harmon (attorney)John M. Harmon is an American lawyer who serverd as United States Assistant Attorney General for the Office of Legal Counsel during the Jimmy Carter administration.-Biography:...
(1977-1981) - Theodore B. Olson (1981-1984), later became U.S. Solicitor General
- Charles J. CooperCharles J. CooperCharles J. "Chuck" Cooper is an appellate attorney and litigator in Washington, D.C. and a founding member and chairman of the law firm Cooper & Kirk, PLLC...
(1985-1988) - Douglas KmiecDouglas KmiecDouglas W. Kmiec is an American legal scholar, author, and former U.S. ambassador. He is the Caruso Family Chair and Professor of Constitutional Law at Pepperdine University School of Law. Kmiec came to prominence during the United States presidential election, 2008 when, although a Republican, he...
(1988-1989) - William P. Barr (1989-1990)
- Michael Luttig (1990-1991)
- Timothy FlaniganTimothy FlaniganTimothy Elliott Flanigan is an American lawyer and politician.On May 24, 2005, President George W. Bush nominated him as Deputy Attorney General of the United States, the #2 position in the Department of Justice. On October 7, 2005, his name was withdrawn from consideration...
(1991-1992) - Walter Dellinger (1993-1994), later became Acting U.S. Solicitor General
- Beth NolanBeth NolanBeth Nolan is a vice president and general counsel ofthe George Washington University. She was Bill Clinton's final White House Counsel...
, 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. - Dawn JohnsenDawn JohnsenDawn Elizabeth Johnsen is an American lawyer and professor of Constitutional law, who is currently on the faculty at Maurer School of Law at Indiana University in Bloomington, Indiana...
, served as Acting AAG from 1996-1998 - Randolph D. Moss, 1998-2001 (served as Acting AAG from 1998-2000; nominated November 9, 1999; Recess-appointed Aug. 3, 2000; confirmed by United States SenateUnited States SenateThe United States Senate is the upper house of the bicameral legislature of the United States, and together with the United States House of Representatives comprises the United States Congress. The composition and powers of the Senate are established in Article One of the U.S. Constitution. Each...
December 15, 2000) - Jay S. Bybee (2001-2003), in charge when the OLC issued the "Torture memo"
- Jack GoldsmithJack GoldsmithJack Landman Goldsmith is a Harvard Law School professor who has written a number of texts regarding international law, cyber law, and national security law...
(2003-2004), professor at Harvard Law School and author of The Terror Presidency (after resigning from OLC) - Daniel Levin, served as Acting AAG from 2004-2005
- Steven G. BradburySteven G. BradburySteven G. Bradbury is an attorney at the Washington, D.C office of Dechert LLP.Bradbury was head of the Office of Legal Counsel in the United States Department of Justice during the George W. Bush administration. Appointed the Principal Deputy Assistant Attorney General for OLC in April 2004, he...
, served as Acting AAG from 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 Jan. 20, 2009 - David J. Barron, Professor at Harvard Law School and served as Acting AAG from January 2009-July 2010.
- Jonathan G. Cedarbaum, 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 was the senior appointed official leading OLC since the end of January 2011 until June 2011, when Virginia A. SeitzVirginia A. SeitzVirginia A. Seitz is an American attorney who specializes in constitutional law, labor law, employment law and administrative law and who has been confirmed by the United States Senate to serve as the Assistant Attorney General for the Office of Legal Counsel in the United States Department of...
was confirmed. - Virginia A. SeitzVirginia A. SeitzVirginia A. Seitz is an American attorney who specializes in constitutional law, labor law, employment law and administrative law and who has been confirmed by the United States Senate to serve as the Assistant Attorney General for the Office of Legal Counsel in the United States Department of...
was confirmed by the Senate in a voice voteVoice voteA voice vote is a voting method used by deliberative assemblies in which a vote is taken on a topic or motion by responding verbally....
on June 28, 2011.
In the news
During the entirety of President George W. Bush's second term, Steven G. BradburySteven G. Bradbury
Steven G. Bradbury is an attorney at the Washington, D.C office of Dechert LLP.Bradbury was head of the Office of Legal Counsel in the United States Department of Justice during the George W. Bush administration. Appointed the Principal Deputy Assistant Attorney General for OLC in April 2004, he...
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
110th United States Congress
The One Hundred Tenth United States Congress was the meeting of the legislative branch of the United States federal government, between January 3, 2007, and January 3, 2009, during the last two years of the second term of President George W. Bush. It was composed of the Senate and the House of...
, with Democrats arguing that Bradbury was in the position illegally and Republicans arguing that Democrats were using his nomination to score political points.
In January 2009, President Barack Obama
Barack Obama
Barack Hussein Obama II is the 44th and current President of the United States. He is the first African American to hold the office. Obama previously served as a United States Senator from Illinois, from January 2005 until he resigned following his victory in the 2008 presidential election.Born in...
announced his intention to nominate Dawn Johnsen
Dawn Johnsen
Dawn Elizabeth Johnsen is an American lawyer and professor of Constitutional law, who is currently on the faculty at Maurer School of Law at Indiana University in Bloomington, Indiana...
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
Presidency of Bill Clinton
The United States Presidency of Bill Clinton, also known as the Clinton Administration, was the executive branch of the federal government of the United States from January 20, 1993 to January 20, 2001. Clinton was the first Democratic president since Franklin D. Roosevelt to win a second full term...
. Her nomination was withdrawn on April 9, 2010.
In June 2011, New York Times reporter Charlie Savage
Charlie Savage
Charlie Savage is a newspaper reporter in Washington, D.C., with the New York Times, which he joined in May 2008. In 2007, when employed by the Boston Globe, he was the recipient of the 2007 Pulitzer Prize for national reporting on the issue of Presidential Signing Statements, specifically the use...
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.
External links
- 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.