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A Call for Institutional Reform of the Office of Legal Counsel
\\server05\productn\H\HLP\4-1\HLP102.txt unknown Seq: 1 11-FEB-10 17:43 A Call for Institutional Reform of the Office of Legal Counsel Bradley Lipton* INTRODUCTION The Office of Legal Counsel (OLC) has been deemed “the most impor- tant government office you’ve never heard of” by Newsweek magazine.1 In- deed, the office is extraordinarily powerful, standing as the legal arbiter of what the executive branch can and cannot do. With great power, so the saying goes, comes great responsibility—to fairly and forthrightly interpret the law, to hold the government back when it risks overreaching, and to settle disputes with an even hand. Yet during the Administration of George W. Bush, OLC let partisan political interests and ideology interfere with its function as fair-minded authority. As a result, the office has sanctioned— and the executive branch has pursued—legally unsound policies. This con- duct most prominently entered the public consciousness in two incidents: the sanctioning of torture by U.S. military forces2 and the politicization of hiring at the Department of Justice.3 The nomination of OLC head Dawn Johnsen has also recently prompted controversy.4 This Essay explains what went wrong in the Office of Legal Counsel during the Bush Administration and suggests institutional reform to prevent such problems in the future. I begin by showing how OLC’s conduct vio- lated widely held norms within the legal community. Though many observ- ers have focused on OLC’s actions authorizing torture, this Essay contends, on the basis of more recently released documents, that the office’s role per- mitting warrantless wiretapping within the United States was a unique viola- tion of lawyerly values. -
Indirect Constraints on the Office of Legal Counsel: Examining a Role for the Senate Judiciary Committee
Stanford Law Review Volume 73 June 2021 NOTE Indirect Constraints on the Office of Legal Counsel: Examining a Role for the Senate Judiciary Committee William S. Janover* Abstract. As arbiter of the constitutionality of executive actions, the Department of Justice Office of Legal Counsel (OLC) possesses vast authority over the operation of the federal government and is one of the primary vessels for the articulation of executive power. It therefore is not surprising that the OLC has found itself at the center of controversy across Democratic and Republican administrations. OLC opinions have justified the obstruction of valid congressional investigations, the targeted killing of an American citizen overseas, repeated military incursions without congressional approval, and, most infamously, torture. These episodes have generated a significant body of proposals to reform, constrain, or altogether eliminate the OLC. All of these proposals can be categorized as either direct or indirect constraints on how the OLC operates. Direct constraints target how the OLC actually creates its legal work product. Indirect constraints instead focus on the OLC’s personnel or the public scrutiny the Office’s opinions will face. This Note expands on this existing body of research, focusing on how one institution unstudied in this context, the United States Senate Judiciary Committee, can operationalize meaningful indirect constraints on the OLC. Unlike the other actors that scholars have examined, the Committee’s position outside the executive branch allows it to sidestep the President’s ever-expanding reach within the federal bureaucracy. At the same time, the Committee’s oversight powers and its central role in the nomination of both the OLC’s leader and Article III judges give it important constitutional and statutory authority to constrain the Office. -
Congressional Record United States Th of America PROCEEDINGS and DEBATES of the 113 CONGRESS, FIRST SESSION
E PL UR UM IB N U U S Congressional Record United States th of America PROCEEDINGS AND DEBATES OF THE 113 CONGRESS, FIRST SESSION Vol. 159 WASHINGTON, WEDNESDAY, NOVEMBER 13, 2013 No. 161 Senate The Senate met at 10 a.m. and was and what we have focused on in recent tom-made medications for patients called to order by the President pro months is the problem we have with with unique health needs that cannot tempore (Mr. LEAHY). judges. be treated by off-the-shelf prescription Yesterday my friend did a remark- medicines. This practice is essential PRAYER ably good job in leading a precedent in- and can be critical for children, cancer The Chaplain, Dr. Barry C. Black, of- dicating the issues we have with the patients, and people with severe aller- fered the following prayer: DC Circuit, and I so appreciate his gies. Let us pray. leadership on this issue and all the The contaminated medicine mixed at Spirit of God, descend on our hearts, other issues on which the Judiciary the New England Compounding Center for apart from You life is a tale full of Committee works. It is too bad we can- was sent to scores of medical facilities sound and fury signifying nothing. not have the Judiciary Committee as it in 23 different States and given to May our Senators walk in Your ways, was in our earlier years in the Senate 14,000 patients. As I have indicated, 64 keeping Your precepts with such integ- where the productivity of that com- of them died and hundreds of those pa- rity that they will never be ashamed. -
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Case 3:10-cv-00940-GPC-WVG Document 567 Filed 11/12/16 Page 1 of 16 1 DANIEL M. PETROCELLI (S.B. #97802) [email protected] 2 DAVID MARROSO (S.B. #211655) [email protected] 3 DAVID L. KIRMAN (S.B. #235175) [email protected] 4 O’MELVENY & MYERS LLP 1999 Avenue of the Stars 5 Los Angeles, California 90067–6035 Telephone: (310) 553-6700 6 Facsimile: (310) 246-6779 7 JILL A. MARTIN (S.B. #245626) [email protected] 8 c/o TRUMP NATIONAL GOLF CLUB One Trump National Drive 9 Rancho Palos Verdes, CA 90275 Telephone: (310) 202-3225 10 Facsimile: (310) 265-5522 11 Attorneys for Defendants DONALD J. TRUMP and 12 TRUMP UNIVERSITY, LLC 13 UNITED STATES DISTRICT COURT 14 SOUTHERN DISTRICT OF CALIFORNIA 15 16 SONNY LOW, J.R. EVERETT, and Case No. 10-CV-0940-GPC (WVG) 17 JOHN BROWN, on Behalf of Judge: Hon. Gonzalo P Curiel Themselves and All Others Similarly 18 Situated, CLASS ACTION 19 Plaintiffs, DEFENDANTS’ EX PARTE APPLICATION TO CONTINUE 20 v. TRIAL DATE 21 TRUMP UNIVERSITY, LLC et al., DATE: EX PARTE 22 TIME: EX PARTE Defendants. COURT: 2D 23 JUDGE: HON. CURIEL 24 25 26 27 28 Case 3:10-cv-00940-GPC-WVG Document 567 Filed 11/12/16 Page 2 of 16 1 TABLE OF CONTENTS 2 Page 3 I. INTRODUCTION ........................................................................................... 1 4 II. THE CONSTITUTION, DEFERENCE TO THE PRESIDENT- ELECT, AND BASIC PRAGMATISM COMPEL THE MODEST 5 RELIEF SOUGHT IN THIS MOTION. ......................................................... 3 6 A. Separation of Powers Requires That the Trial Court Schedule Its Proceedings So As To Not Impede a President’s Public Duties. -
Non-Judicial Review
Georgetown University Law Center Scholarship @ GEORGETOWN LAW 2003 Non-Judicial Review Mark V. Tushnet Georgetown University Law Center, [email protected] This paper can be downloaded free of charge from: https://scholarship.law.georgetown.edu/facpub/235 40 Harv. J. on Legis. 453-492 (2003) This open-access article is brought to you by the Georgetown Law Library. Posted with permission of the author. Follow this and additional works at: https://scholarship.law.georgetown.edu/facpub Part of the Constitutional Law Commons GEORGETOWN LAW Faculty Publications February 2010 Non-Judicial Review 40 Harv. J. on Legis. 453-492 (2003) Mark V. Tushnet Professor of Law Georgetown University Law Center [email protected] This paper can be downloaded without charge from: Scholarly Commons: http://scholarship.law.georgetown.edu/facpub/235/ Posted with permission of the author ESSAY NON-JUDICIAL REVIEW MARK TuSHNET* Professor Mark Tushnet challenges the view that democratic constitutional ism requires courts to dominate constitutional review. He provides three di verse examples of non-judicial institutions involved in constitutional review and examines the institutional incentives to get the analysis" right." Through these examples, Professor Tushnet argues that non-judicial actors may per form constitutional review that is accurate, effective, and capable of gaining public acceptance. Professor Tushnet recommends that scholars conduct further research into non-judicial review to determine whether ultimately more or less judicial review is necessary in constitutional democracies. If nothing else, familiarity leads us to assume that constitutional re view must occur in courts and that non-judicial actors-politicians, said in a disparaging tone of voice-would fail to do a decent job of constitu tional review were they given the chance.' Courts are said to be distinc tively the forum of principle,2 the legislature and executive the forum of politics. -
Final Report of the Cybersecurity Subcommittee
HOMELAND SECURITY ADVISORY COUNCIL FINAL REPORT OF THE CYBERSECURITY SUBCOMMITTEE: Part I - Incident Response June 2016 Page | 1 This page is intentionally left blank. This publication is presented on behalf of the Homeland Security Advisory Council, Cybersecurity Subcommittee, co-chaired by Steve Adegbite, Juliette Kayyem, Jeff Moss and Dr. Paul Stockton as Part I – Incident Response of the final report and recommendations to the Secretary of the Department of Homeland Security, Jeh C. Johnson. <Signature on file> <Signature on file> ______________________________ _________________________________ Steve Adegbite Juliette Kayyem Chief Information Officer Founder E*Trade Financial Corp Kayyem Solutions, LLC <Signature on file> <Signature on file> ______________________________ _________________________________ Jeff Moss Dr. Paul Stockton Found Managing Director Black Hat and DEF CON Conferences Sonecon LLC This page is intentionally left blank. CYBERSECURITY SUBCOMMITTEE MEMBERS: Incident Response Group Steve Adegbite (Co-Chair) – Chief Information Security Officer, E*TRADE Financial Corporation; Member of Homeland Security Advisory Council Juliette Kayyem (Co-Chair) – Founder, Kayyem Solutions, LLC; Member of Homeland Security Advisory Council Jeff Moss (Co-Chair) – Founder of Black Hat and DEF CON Conferences; Member of Homeland Security Advisory Council Paul Stockton (Co-Chair) – Managing Director, Sonecon LLC; Member of Homeland Security Advisory Council Incident Response Group Barry Bates – Executive Vice President at National Defense -
Arif Alikhan Thad Allen Howard Berman Michael Chertoff David
24 Streamlining and Consolidating Congressional Oversight of the U.S. Department of Homeland Security Appendix Task Force on Streamlining and Consolidating Congressional Oversight of the U.S. Department of Homeland Security Task Force Members Arif Alikhan Juliette Kayyem Thad Allen Thomas H. Kean Sr. Howard Berman Loretta Sanchez Michael Chertoff John Tanner David Dreier Caryn A. Wagner Bob Graham Kenneth L. Wainstein Lee H. Hamilton Retreat Organizers Meryl Justin Chertoff Kathleen Hall Jamieson Biographical Information on Retreat Hamilton. Allen supports the firm’s work with Participants and Organizers the departments of Justice and Homeland Security. Allen completed his distinguished Arif Alikhan career in the U.S. Coast Guard as its 23rd Counterterrorism and homeland security commandant. Prior to that assignment, Allen expert Arif Alikhan joined Los Angeles World served as Coast Guard chief of staff. During Airports as the new deputy executive director his tenure in that post, in 2005, he was for law enforcement and homeland security on designated principal federal official for the Nov. 7, 2011. Prior to that, Alikhan was a U.S. government’s response and recovery Distinguished Professor of Homeland Security operations in the aftermath of hurricanes and Counterterrorism at National Defense Katrina and Rita in the Gulf Coast region. University in Washington, D.C. Alikhan previously served as assistant secretary for Howard Berman policy development at the U.S. Department of Howard Berman is a former representative Homeland Security. His federal service also from California who served 15 consecutive includes 10 years with the U.S. Department of terms in the U.S. House of Representatives Justice as a federal prosecutor and senior from 1982 to 2012. -
THE LAW PRESIDENTS MAKE Daphna Renan*
COPYRIGHT © 2017 VIRGINIA LAW REVIEW ASSOCIATION THE LAW PRESIDENTS MAKE Daphna Renan* The standard conception of executive branch legal review in the scholarship is a quasi-judicial Office of Legal Counsel (“OLC”) dispensing formal, written opinions binding on the executive branch. That structure of executive branch legalism did have a brief heyday. But it obscures core characteristics of contemporary practice. A different structure of executive branch legalism—informal, diffuse, and intermingled in its approach to lawyers, policymakers, and political leadership—has gained new prominence. This Article documents, analyzes, and assesses that transformation. Scholars have suggested that the failure of OLC to constrain presidential power in recent publicized episodes means that executive branch legalism should become more court-like. They have mourned what they perceive to be a disappearing external constraint on the presidency. Executive branch legalism has never been an exogenous or external check on presidential power, however. It is a tool of presidential administration itself. Exploring changes in the structure of executive branch legal review sheds light on the shifting needs of the * Assistant Professor, Harvard Law School. From 2009–2012, I served in the Justice Department as Counsel to the Deputy Attorney General and then as an Attorney Advisor in the Office of Legal Counsel. The views expressed are my own and the discussion is based only on publicly available materials. For generous engagement with this project at various stages, -
Guidelines for the President's Legal Advisors
Guidelines for the President's Legal Advisors INTRODUCTON* At the outset of the twenty-first century, the President's constitutional and statutory powers are the subject of serious controversy among political leaders, legal academics, the American public, and the international community alike. The "war on terror," that followed the September 11, 2001 terrorist attacks in particular has brought assertions of new and expansive presidential authority regarding enemy combatants, military tribunals, preemptive self-defense and warrantless domestic wiretaps, torture and other extreme interrogation techniques. Each assertion raises new variations on enduring questions about the Constitution's allocation of governmental power and the protections it affords individuals from governmental abuses, as well as about how constitutional principles should affect the interpretation of federal statutes that purport to constrain governmental authority. Unchanging, however, and essential to understanding presidential power, is the President's overriding obligation to exercise executive authority in conformity with the law. Presidents are not constrained merely by whatever checks Congress and the courts might impose; congressional oversight and judicial review by their nature provide only limited safeguards against presidential abuse. Rather, the constitutional text and structure, as well as longstanding practice, affirmatively obligate Presidents to ensure that their actions comply with all relevant constitutional, statutory, and other legal requirements. On assuming office, Presidents must take an oath to "preserve, protect and defend the Constitution."' Presidents also must "take Care that the Laws be faithfully executed.",2 And to uphold the Constitution and faithfully execute the laws, Presidents need good legal advice. From our nation's earliest days, Presidents have recognized their need for legal counsel. -
Full Article
THE HYDRAULIC THEORY OF OPPOSITION Ian M. Swenson * For many years scholars and the public have assumed that Circuit Court confirmation hearings, like Supreme Court confirmation hearings, are con- tentious and focused on hot button issues such as abortion. In fact, this article will show that prior to the Trump administration Circuit Court nom- inees were rarely questioned about abortion and hearings were rarely con- tentious. But in the 115th Congress (the first two years of the Trump ad- ministration) the majority of nominees were questioned about abortion— some of them at great length. This article seeks to explain this change in senatorial behavior and suggests that it is the result of legal and political pressures on the senators as well as changes to Senate procedures. This is the Hydraulic Theory of Opposition. The legal and political pressures on * JD, New York University School of Law, 2019. My thanks to Dean Trevor Morrison for his supervision. My thanks also to Luke Goveas, Cameron Sinsheimer, and Nicholas Gallagher, for their smart and helpful edits. Thanks finally to the editors of the Journal of Law & Liberty for their terrific work preparing this article for publication. 205 206 New York University Journal of Law & Liberty [Vol. 14:205 the Democratic senators drive them to oppose these nominees based on the nominees’ presumed position vis-à-vis abortion; and the way the Senate structures its procedures determines how this opposition manifests. Because the Senate has eliminated sub rosa forms of opposition—such as the filibus- ter and Blue Slips—contentious confirmation hearings are now how that opposition manifests. -
Coercive Interrogation Techniques: Do They Work, Are They Reliable, and What Did the Fbi Know About Them?
S. HRG. 110–941 COERCIVE INTERROGATION TECHNIQUES: DO THEY WORK, ARE THEY RELIABLE, AND WHAT DID THE FBI KNOW ABOUT THEM? HEARING BEFORE THE COMMITTEE ON THE JUDICIARY UNITED STATES SENATE ONE HUNDRED TENTH CONGRESS SECOND SESSION JUNE 10, 2008 Serial No. J–110–98 Printed for the use of the Committee on the Judiciary ( U.S. GOVERNMENT PRINTING OFFICE 53–740 PDF WASHINGTON : 2009 For sale by the Superintendent of Documents, U.S. Government Printing Office Internet: bookstore.gpo.gov Phone: toll free (866) 512–1800; DC area (202) 512–1800 Fax: (202) 512–2104 Mail: Stop IDCC, Washington, DC 20402–0001 VerDate Nov 24 2008 12:58 Dec 10, 2009 Jkt 053740 PO 00000 Frm 00001 Fmt 5011 Sfmt 5011 S:\GPO\HEARINGS\53740.TXT SJUD1 PsN: CMORC COMMITTEE ON THE JUDICIARY PATRICK J. LEAHY, Vermont, Chairman EDWARD M. KENNEDY, Massachusetts ARLEN SPECTER, Pennsylvania JOSEPH R. BIDEN, JR., Delaware ORRIN G. HATCH, Utah HERB KOHL, Wisconsin CHARLES E. GRASSLEY, Iowa DIANNE FEINSTEIN, California JON KYL, Arizona RUSSELL D. FEINGOLD, Wisconsin JEFF SESSIONS, Alabama CHARLES E. SCHUMER, New York LINDSEY O. GRAHAM, South Carolina RICHARD J. DURBIN, Illinois JOHN CORNYN, Texas BENJAMIN L. CARDIN, Maryland SAM BROWNBACK, Kansas SHELDON WHITEHOUSE, Rhode Island TOM COBURN, Oklahoma BRUCE A. COHEN, Chief Counsel and Staff Director STEPHANIE A. MIDDLETON, Republican Staff Director NICHOLAS A. ROSSI, Republican Chief Counsel (II) VerDate Nov 24 2008 12:58 Dec 10, 2009 Jkt 053740 PO 00000 Frm 00002 Fmt 5904 Sfmt 5904 S:\GPO\HEARINGS\53740.TXT SJUD1 PsN: CMORC C O N T E N T S STATEMENTS OF COMMITTEE MEMBERS Page Feingold, Hon. -
ACADEMIC FREEDOM Andacademic DUTY Final Program
Final Program Amended December 9, 2011 ACADEMIC FREEDOM and ACADEMIC 2012 ANNUAL MEETING JANUARY 4–8, 2012 DUTY WASHINGTON, DC w w w.aals.org/am2012/ THE ASSOCIATION OF AMERICAN LAW SCHOOLS SPONSORS OF THE AssOCIATION OF AMERICAN LAW SCHOOls AALS would like to thank and recognize the following organizations and law schools for their generous contributions to support the association’s many goals and activities. Foundational Gifts ($100,000 or more) West, a Thomson Reuters business Foundation Press, a Thomson Reuters business Printing Directory of Law Teachers, Journal of Legal Education, AALS Newsletter, 2012 Annual Meeting Final Program Sponsor Gifts ($15,000 to $25,000) Lexis Nexis Sponsorship of 2012 Annual Meeting Convention Tote Bags for Registrants Wolters Kluwer Law & Business Lanyards, Badge Holders, Badge Envelopes for 2011-2012 Professional Development Programs and 2012 Annual Meeting and One Day of Refreshment Breaks at 2011 Workshop for New Law School Teachers Contributor Gift ($10,000 to $15,000) Carolina Academic Press Financial Support of Annual Meeting 2012 Inaugural Law and Film Series Law School Admission Council (LSAC) Financial Support of 2012 Workshop for Pretenured People of Color Law School Teachers We would like to thank the following for their donations to AALS for the 2011-2012 Academic Year Complete Equity Markets, Inc. 2012 Annual Meeting Continental Breakfast for Section Officers Gonzaga University School of Law Sponsored Food at the Reception for Registrants at the 2011 Conference on the Future of the Law