Weaponizing the Office of Legal Counsel

Boston College Law Review Volume 62 Issue 2 Article 4 2-24-2021 Weaponizing the Office of Legal Counsel Emily Berman University of Houston Law Center, [email protected] Follow this and additional works at: https://lawdigitalcommons.bc.edu/bclr Part of the Law and Politics Commons, and the President/Executive Department Commons Recommended Citation Emily Berman, Weaponizing the Office of Legal Counsel, 62 B.C. L. Rev. 515 (2021), https://lawdigitalcommons.bc.edu/bclr/vol62/iss2/4 This Article is brought to you for free and open access by the Law Journals at Digital Commons @ Boston College Law School. It has been accepted for inclusion in Boston College Law Review by an authorized editor of Digital Commons @ Boston College Law School. For more information, please contact [email protected]. WEAPONIZING THE OFFICE OF LEGAL COUNSEL EMILY BERMAN INTRODUCTION ............................................................................................................................ 516 I. CONGRESSIONAL OVERSIGHT AND INVESTIGATIONS ............................................................... 522 A. Congress’s Investigative Powers ........................................................................................ 523 B. Congressional-Executive Information Disputes ................................................................. 526 II. INFORMATION CONFLICTS AND OLC SEPARATION-OF-POWERS OPINIONS ............................ 531 A. The OLC as an Executive Branch Institution ..................................................................... 532 1. OLC’s Role as an Independent Arbiter of Legal Questions ........................................... 532 2. Some OLC Opinions Are Not Like the Others .............................................................. 536 B. The Advantages OLC Memos Confer on the Executive ...................................................... 538 1. Creating a First-Mover Advantage ................................................................................ 538 2. Declaring “What the Law Is” ........................................................................................ 544 3. Characterizing History ................................................................................................... 548 4. Generating Political Cover ............................................................................................ 551 5. Discouraging Compromise ............................................................................................ 557 III. LEVELING THE LEGAL PLAYING FIELD .................................................................................. 559 A. Executive Branch Reforms ................................................................................................. 560 B. Legislative Branch Reforms ............................................................................................... 562 C. Other Reform Possibilities ................................................................................................. 566 CONCLUSION ............................................................................................................................... 569 515 WEAPONIZING THE OFFICE OF LEGAL COUNSEL EMILY BERMAN* Abstract: This Article argues that the Office of Legal Counsel (OLC)—an office within the Justice Department that issues legal opinions that govern executive branch actors—arms the executive branch with a powerful weapon to deploy in its conflicts with Congress. Despite its reputation as a neutral arbiter of constitutional questions, OLC’s separation-of-powers opinions do not simply describe the executive’s view of the law; they actually augment executive powers vis-à-vis Congress. This novel argument emerges from two descriptive claims laid out in this Article. The first is that OLC’s institutional design guarantees that its separation-of-powers opinions will articulate a decidedly pro-executive view of the law. The second is that these executive-friendly legal analyses not only guide the ac- tions of executive officials, but also shape the legal landscape outside the executive branch. In other words, OLC makes its own legal reality: its separation-of- powers opinions first envision a world that values executive branch prerogatives over congressional interests, and then, by their very existence, help realize that vision. The result is that OLC provides the executive with a powerful weapon in its inter-branch disputes with Congress—a phenomenon that to date has gone un- remarked. After identifying the mechanisms through which OLC places a thumb on the executive’s side of the scale in inter-branch disputes, this Article suggests several ways that Congress could level the playing field. INTRODUCTION “We’re fighting all the subpoenas.”1 This statement encapsulates the Trump Administration’s approach to sharing information with Congress. De- spite the legislative branch’s universally recognized oversight and impeach- ment authority, executive branch officials have denied legislators’ access to © 2021, Emily Berman. All rights reserved. * Associate Professor of Law, University of Houston Law Center. I would like to thank participants in Duke Law School’s Faculty Workshop (especially Walter Dellinger and Christopher Schroeder), the Loyola-Chicago Constitutional Law Colloquium, the Chicagoland Junior Scholars Workshop, the Ohio State Law School Summer Workshop Series, and the University of Houston Law Center’s Work-in-Progress Workshop, as well as David Fontana and Aziz Huq. 1 Charlie Savage, Trump Vows Stonewall of ‘All’ House Subpoenas, Setting Up Fight Over Pow- ers, N.Y. TIMES (Apr. 24, 2019), https://www.nytimes.com/2019/04/24/us/politics/donald-trump- subpoenas.html [https://perma.cc/J62K-BF7Y] (quoting President Donald Trump); see id. (“Mr. Trump has . abandon[ed] even the pretense of trying to negotiate accommodations and compromise . .”). 516 2021] Weaponizing the Office of Legal Counsel 517 documents and testimony related to the inquiry into President Donald Trump’s relations with Ukraine, the President’s tax returns, portions of Special Counsel Robert Mueller’s report on Russian interference with the 2016 election, and more. Although President Trump’s efforts to rebuff congressional inquiries are the most recent—and most aggressive—examples of executive recalcitrance, they are by no means the first. Indeed, congressional-executive disputes over access to information are literally as old as the Constitution.2 Democratic and Republican administrations alike have chafed at Congress’s demands for information. Whether it was Eric Holder’s Justice Department’s efforts to deny congressional access to information regarding the investigation into gun- running known as Operation Fast and Furious,3 the House Judiciary Commit- tee’s thwarted efforts to acquire evidence regarding George W. Bush’s motiva- tions for firing multiple United States Attorneys in 2007,4 or inter-branch wrangling in the course of the many investigations of Bill and Hillary Clinton,5 conflicts over access to executive branch information form the backdrop of many political battles. Despite the many instances in which these and similar disputes have arisen in the past, they are rarely submitted to the courts, leaving the legal rules that apply—and thus the rights and obligations of the political branches to one another—unarticulated by a third-party arbiter such as the ju- dicial branch and therefore uncertain.6 Thanks to the Justice Department’s powerful Office of Legal Counsel (OLC), however, the executive branch’s legal position on issues related to congressional-executive information disputes is often quite certain and persuasive- ly articulated. OLC, which provides legal advice that binds the executive branch unless overridden by the President or the Attorney General, has devel- oped opinions offering legal analysis of many of the questions that touch on 2 See generally LOUIS FISHER, THE POLITICS OF EXECUTIVE PRIVILEGE 58 (2004) (reviewing the nature of disputes between the executive and legislative branches and how that comports with separation-of-powers concerns); MARK J. ROZELL, EXECUTIVE PRIVILEGE: PRESIDENTIAL POWER, SECRE- CY, AND ACCOUNTABILITY 37–43 (2d ed. 2002) (analyzing the history of executive privilege and its effect on presidential authority); Hist. of Refusals by Exec. Branch Offs. to Provide Info. Demanded by Cong., 6 Op. O.L.C. 751, 751 (1982) (detailing instances where executive branch officials declined to provide information requested by Congress). 3 See Josh Gerstein, Subpoena Fight Over Operation Fast and Furious Documents Finally Settled, POLITICO (May 9, 2019), https://www.politico.com/story/2019/05/09/fast-and-furious-documents- holder-1313120 [https://perma.cc/3VPJ-L6Y8] (describing the battle and its resolution). 4 See Sheryl Gay Stolberg, Bush Asserts Executive Privilege on Subpoenas, N.Y. TIMES (June 29, 2007), https://www.nytimes.com/2007/06/29/washington/29bush.html [https://perma.cc/9T67-S47F]. 5 See, e.g., Megan Carpentier, Travelgate to Furnituregate: A Guide to the Clinton Scandals of the 90s, THE GUARDIAN (May 27, 2016), https://www.theguardian.com/us-news/2016/may/27/hillary- clinton-bill-clinton-scandals [https://perma.cc/9589-BVXU]. 6 See infra notes 54–57 and accompanying text. But see Comm. on the Judiciary v. McGahn, 968 F.3d 755, 778 (D.C. Cir. 2020) (en banc) (rare example of congressional litigation to enforce subpoenas). 518 Boston College Law Review [Vol. 62:515 executive information sharing with

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