Office of Legal Counsel

Based on Wikipedia: Office of Legal Counsel

The President's Secret Lawyers

Somewhere in the bowels of the Department of Justice, a small office wields extraordinary power. When a president wants to know if a controversial action is legal, this is where he calls. When government agencies clash over who has authority to do what, this is where they turn for a ruling. And when an administration needs legal cover for something that would otherwise seem plainly unlawful, this is often where that cover gets manufactured.

The Office of Legal Counsel, or OLC, has been called "the president's law firm." But that nickname, while accurate, undersells its significance. Unlike private attorneys who merely advise their clients, the opinions issued by OLC carry the force of law throughout the executive branch. When OLC says something is constitutional, every federal agency treats that as the final word—unless the attorney general or president personally overrules it, which almost never happens.

Think about what this means in practice. The OLC is not a court. Its lawyers are not judges. They serve at the pleasure of the president. Yet their legal interpretations bind hundreds of thousands of federal employees across dozens of agencies. The Brennan Center for Justice, a nonpartisan law and policy institute, has described OLC opinions as having "the same legal force as the statutes they interpreted."

This is power exercised largely in shadow. Most OLC opinions remain secret from the public. Some of the most consequential legal interpretations in American history have emerged from this office, shaping everything from presidential war powers to surveillance programs to interrogation techniques—often without congressional knowledge or public debate.

Origins of the Office

The OLC was born in 1934, during the sweeping governmental reorganizations of the New Deal era. At first, it was a modest operation led by an assistant solicitor general. The office evolved through several name changes. In 1951, Attorney General J. Howard McGrath promoted it to a full division and renamed it the Executive Adjudications Division. Two years later, Attorney General Herbert Brownell Jr. gave it its current name.

The office has served as a launching pad for legal heavyweights. Two of its former heads—William Rehnquist and Antonin Scalia—went on to become Supreme Court justices. Both became icons of the conservative legal movement, and their time at OLC helped shape their approaches to executive power. The office has long attracted ambitious lawyers who see it as a gateway to higher positions in government or prestigious academic appointments.

As of late 2024, only one woman has ever served as the Senate-confirmed head of OLC: Virginia Seitz, appointed by President Obama. This striking lack of gender diversity at the top of such an influential office reflects broader patterns in the upper echelons of legal power.

What the Office Actually Does

The OLC's day-to-day work spans an enormous range of legal questions. When the president wants to issue an executive order, OLC reviews it for legal sufficiency before it's signed. When Congress passes a bill that might encroach on presidential authority, OLC analyzes whether it's constitutional. When two cabinet departments disagree about their respective powers, OLC referees the dispute.

The office also serves as in-house counsel for the Justice Department itself, reviewing all regulations and orders that require the attorney general's approval.

Historically, OLC built a reputation as something of an honest broker within the executive branch. Agencies trusted that its opinions would be grounded in law rather than political expediency. This reputation was crucial to the office's authority—its opinions carried weight precisely because they were seen as impartial legal analysis rather than political rubber stamps.

That reputation would be severely tested in the years following September 11, 2001.

The Torture Memos

During President George W. Bush's first term, OLC produced what became known as the "torture memos"—a set of legal opinions that authorized interrogation techniques the United States had previously condemned as torture when practiced by other countries.

The memos were drafted primarily by Deputy Assistant Attorney General John Yoo and signed by Assistant Attorney General Jay Bybee. They advised the Central Intelligence Agency and the Department of Defense that the president could lawfully authorize a range of brutal techniques against terrorism detainees.

The techniques included waterboarding—a form of controlled drowning that causes extreme panic and the sensation of imminent death. They included "walling"—slamming detainees repeatedly into walls. They included sleep deprivation so prolonged that subjects experienced hallucinations. They included stress positions so painful that limbs became contorted. They included confinement in small, coffin-like boxes.

The memos employed clinical euphemisms. "Enhanced interrogation techniques" replaced the word torture. Legal gymnastics redefined terms to exclude practices that clearly fell within common-sense definitions of torture.

Years later, the Justice Department's own Office of Professional Responsibility investigated the authors. It concluded that John Yoo had committed "intentional professional misconduct" in advising that torture was lawful. It found that Jay Bybee had "acted in reckless disregard of his obligation to provide thorough, objective, and candid legal advice."

The consequences for Yoo and Bybee? Yoo returned to his tenured professorship at Berkeley Law. Bybee was confirmed to a lifetime appointment on the Ninth Circuit Court of Appeals before the full extent of his role in the torture memos became public. He remains a federal judge to this day.

In 2005, Steven Bradbury became acting head of OLC and approved a new set of torture memos. His nomination to be permanent head became a political football between the Republican White House and the Democratic-controlled Senate, but he served in the acting capacity throughout the remainder of Bush's presidency.

When Presidents Overrule Their Lawyers

The Obama administration created its own OLC controversies, though of a different character.

In 2011, reporter Charlie Savage revealed something unusual: President Obama had overruled OLC's advice about the legality of military action in Libya. This was remarkable. Presidents almost never publicly reject OLC opinions. The whole point of the system is that OLC provides legal cover—and that cover works only if the president follows the advice.

What happened? OLC concluded that the sustained bombing campaign in Libya required congressional authorization under the War Powers Resolution. Obama disagreed. He claimed the action didn't constitute "hostilities" under the law, a position so strained that even supporters found it difficult to defend.

Two years earlier, Attorney General Eric Holder had overturned an unpublished OLC opinion concluding that a bill granting Washington, D.C. voting rights in Congress was unconstitutional. This was notable both for happening at all and for its direction—a Democratic attorney general rejecting a legal opinion that would have blocked a Democratic policy priority.

The Travel Ban and Sally Yates

The Trump administration tested OLC's role in new ways.

Early in 2017, OLC approved Executive Order 13769, which restricted entry into the United States from several Muslim-majority countries. Critics immediately labeled it a "Muslim ban," arguing that its true purpose was religious discrimination regardless of its facially neutral language.

Days after the order was signed, Acting Attorney General Sally Yates announced that the Justice Department would not defend it in court. This was extraordinary. The attorney general's job typically includes defending presidential actions against legal challenges, and OLC had already blessed this one.

Yates explained her reasoning: OLC's review was narrow. It assessed only whether the order was "lawful on its face and properly drafted"—essentially a technical legal review. OLC did not, and typically does not, consider outside evidence about an order's true purposes, nor does it evaluate whether a policy is "wise or just."

In other words, Yates was saying that OLC approval doesn't answer whether something is actually constitutional in the full sense. It answers only whether the text of the document passes basic legal muster.

President Trump fired Yates that same evening. Her successor, Dana Boente, cited OLC's analysis when reversing her decision. The executive order was later superseded by revised versions that faced their own legal challenges.

During subsequent Senate testimony, Yates was asked whether any previous attorney general had ever rejected an executive order that OLC had approved. She said she wasn't aware of that ever happening. But she added a telling detail: she also wasn't aware of any situation where OLC had failed to tell the attorney general about an executive order before it was issued. The travel ban order, it emerged, had been reviewed without normal Justice Department coordination.

The Barr Memorandum

The Mueller investigation into Russian interference in the 2016 election and possible obstruction of justice by President Trump culminated in March 2019, when Special Counsel Robert Mueller delivered his final report to Attorney General William Barr.

What happened next revealed how OLC could be used not to provide genuine legal advice, but to create after-the-fact justification for a decision already made.

Before Barr had even finished reading the Mueller report, he had already decided to clear Trump of obstruction of justice. He then tasked OLC with preparing a memorandum that would justify this predetermined conclusion.

This inverted the normal relationship between legal analysis and decision-making. Normally, you ask your lawyers for advice, then decide what to do based on that advice. Here, the decision came first, and the legal reasoning was reverse-engineered to support it.

The memorandum was written in just two days, simultaneously with Barr's public letter summarizing the Mueller report. It was signed by Steven Engel, the head of OLC, and Ed O'Callaghan, a senior Justice Department official.

When advocacy groups sued to obtain the memorandum under the Freedom of Information Act, the Justice Department claimed it was protected by "deliberative process privilege"—an exemption that shields internal government discussions that occur before a decision is made.

A federal appeals court rejected this argument. The D.C. Circuit found that Barr had already made his decision by the time the memorandum was written. The memo wasn't genuine deliberation—it was, in the court's words, a "thought experiment" designed to paper over a conclusion reached on other grounds.

The Whistleblower Complaint

Later in 2019, OLC issued an opinion that would draw sharp condemnation from an unusual source: the government's own inspectors general.

The Trump-Ukraine scandal began with a whistleblower complaint alleging that President Trump had pressured Ukraine to investigate his political rival. Under federal law, such complaints deemed credible and "urgent" by the Intelligence Community Inspector General must be transmitted to Congress.

Steven Engel authored an OLC opinion concluding that the Justice Department should not forward this particular complaint to Congress. His reasoning: the complaint concerned the president's conduct, not intelligence community activities, so the whistleblower statute didn't apply.

Sixty-seven inspectors general from across the federal government signed a letter sharply criticizing this decision. They called the OLC memo "wrong as a matter of law and policy." They warned it would have a "chilling effect on effective oversight"—meaning future whistleblowers would be discouraged from coming forward if they saw that legal technicalities could be used to suppress their concerns.

The inspectors general recommended that OLC withdraw or amend its opinion. Their core objection was that OLC had "effectively overruled" the Inspector General's own determination that the complaint was credible and urgent. In other words, OLC had inserted itself into a process designed to ensure accountability and used its authority to block that accountability.

The Problem With the President's Law Firm

The Office of Legal Counsel occupies an uncomfortable position. It is supposed to provide objective legal analysis. But its lawyers serve at the pleasure of the president. They are political appointees who often share the administration's ideological orientation and who may have ambitions for higher office.

This creates obvious pressures. A lawyer who consistently tells a president "no" may find herself replaced by one more amenable to saying "yes." An OLC head who obstructs a major presidential initiative may not get that federal judgeship he was hoping for.

The office's secrecy compounds the problem. Most OLC opinions are never made public. This means that controversial legal interpretations can shape government behavior for years without public awareness, let alone public debate. When opinions eventually surface—often through leaks or lawsuits—the policies they authorized may already be deeply entrenched.

The torture memos are the most dramatic example. For years, the Bush administration relied on secret OLC opinions to authorize practices that would have provoked public outrage if known. By the time the memos became public, the interrogation program had been operating for years.

Can This System Be Reformed?

Various proposals have aimed to strengthen OLC's independence. Some scholars have suggested requiring Senate confirmation for more positions within the office, creating additional oversight. Others have proposed mandatory public disclosure of opinions after a certain period, eliminating indefinite secrecy. Still others have suggested giving OLC lawyers civil service protections that would make it harder to fire them for inconvenient opinions.

None of these reforms have been enacted. And each carries its own problems. Senate confirmation could make appointments more political, not less. Mandatory disclosure might push controversial advice into other, even more secretive channels. Civil service protections could insulate lawyers from accountability for genuine misconduct.

The deeper problem may be structural. As long as OLC exists to serve the president, its institutional incentives will pull toward accommodation rather than restraint. The office's authority depends on administrations accepting its opinions. An OLC that consistently constrained presidential action would likely find itself marginalized, its opinions ignored or its lawyers replaced.

This is the paradox of executive branch legal counsel. The more independent it becomes, the less influence it may have. The more influential it becomes, the more pressure it faces to align with presidential preferences.

Why This Matters

The Office of Legal Counsel matters because law matters. In a system built on the rule of law, the interpretations of government lawyers shape what the government believes it can do. When OLC says something is legal, officials throughout the executive branch act on that basis. When OLC's legal reasoning is flawed—or worse, deliberately distorted to reach a preferred outcome—those flaws propagate through the entire executive branch.

We don't elect OLC lawyers. Most Americans have never heard of the office. Yet its opinions authorize drone strikes, surveillance programs, detention policies, and executive orders that affect millions of lives. Its legal conclusions about presidential power shape the practical limits on what presidents actually do.

The office's recent history suggests both its potential and its perils. At its best, OLC can restrain executive overreach by delivering unwelcome legal truths. At its worst, it can enable abuses by providing legal cover for the unjustifiable.

Which version of OLC we get depends heavily on the lawyers who staff it, the attorneys general who oversee it, and the presidents who appoint them. But it also depends on public attention. Secrecy insulates the office from accountability. The more citizens understand what OLC does and how it operates, the harder it becomes for the office to function as a rubber stamp for presidential preferences.

The president's lawyers work for the president. But they also work for the Constitution. When those loyalties conflict, the choices made in that small Justice Department office reverberate far beyond its walls.