DOCSLIB.ORG

A Typology of Justice Department Lawyers' Roles and Responsibilities

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
A Typology of Justice Department Lawyers' Roles and Responsibilities NORTH CAROLINA LAW REVIEW Volume 98 Number 5 Legal Ethics in the Age of Trump Article 5 6-1-2020 A Typology of Justice Department Lawyers' Roles and Responsibilities Rebecca Roiphe Follow this and additional works at: https://scholarship.law.unc.edu/nclr Part of the Law Commons Recommended Citation Rebecca Roiphe, A Typology of Justice Department Lawyers' Roles and Responsibilities, 98 N.C. L. REV. 1077 (2020). Available at: https://scholarship.law.unc.edu/nclr/vol98/iss5/5 This Article is brought to you for free and open access by Carolina Law Scholarship Repository. It has been accepted for inclusion in North Carolina Law Review by an authorized editor of Carolina Law Scholarship Repository. For more information, please contact [email protected]. 98 N.C. L. REV. 1077 (2020) A TYPOLOGY OF JUSTICE DEPARTMENT LAWYERS’ ROLES AND RESPONSIBILITIES* REBECCA ROIPHE** President Trump’s administration has persistently challenged the legitimacy of the Department of Justice (“DOJ”). In the past, DOJ, like other governmental institutions, has been fairly resilient. Informal norms and practices have served to preserve its proper functioning, even under pressure. The strain of the past three years, however, has been different in kind and scale. This Article offers a typology of different roles for DOJ lawyers and argues that over time the institution has evolved by allocating different functions and responsibilities to different positions within DOJ. By doing so, it has for the most part maintained the proper balance between independence and responsiveness to the administration. By explaining these roles and responsibilities, this Article both describes the different DOJ lawyer roles and seeks to strengthen the institution by making the informal norms that preserve and protect its mission more explicit. The Article concludes that, as DOJ expanded, it evolved to allow the Attorney General to balance the political and legal responsibilities of his office. He does so by advising and implementing administration policies while preventing impermissible political considerations from influencing those DOJ officials who are charged with the neutral interpretation and enforcement of the law. INTRODUCTION ............................................................................. 1078 I. HISTORICAL BACKGROUND ................................................ 1083 A. The Early Government Lawyers: Before 1870 ...................... 1083 B. The Creation of DOJ and Its Development .......................... 1086 II. A TYPOLOGY OF GOVERNMENT LAWYERS .......................... 1091 A. The Attorney General ....................................................... 1091 1. The Role of the Attorney General ............................ 1092 2. The Ethical Responsibility of the Attorney General .. 1094 B. Civil Division Attorneys ................................................... 1099 1. The Role of Civil Division Attorneys ....................... 1099 2. The Ethical Responsibility of Civil Division Attorneys ............................................................... 1101 C. The Solicitor General ....................................................... 1105 * © 2020 Rebecca Roiphe. ** Professor of Law and Dean for Faculty Development, New York Law School. Thanks to Doni Gewirtzman, Bruce Green, and Ed Purcell for helpful comments on earlier drafts. The Article also benefitted from the discussions at the New York Law School faculty workshop as well as the panels at the North Carolina Law Review symposium, Legal Ethics in the Age of Trump. 98 N.C. L. REV. 1077 (2020) 1078 NORTH CAROLINA LAW REVIEW [Vol. 98 1. The Role of the Solicitor General ............................. 1105 2. The Ethical Responsibility of the Solicitor General ................................................................... 1106 D. The Office of Legal Counsel ................................................ 1111 1. The Role of Office of Legal Counsel Lawyers ............ 1111 2. The Ethical Responsibility of Office of Legal Counsel Lawyers ..................................................... 1113 E. Prosecutors ....................................................................... 1117 1. The Role of Federal Prosecutors ............................... 1119 2. The Ethical Responsibility of Federal Prosecutors .... 1120 III. DOJ LAWYERS IN THE TRUMP ADMINISTRATION ............... 1122 A. Attorney General ............................................................. 1122 B. Civil Division Lawyers .................................................... 1130 C. Solicitor General .............................................................. 1132 D. Office of Legal Counsel Lawyers ......................................... 1134 E. Federal Prosecutors .......................................................... 1137 CONCLUSION ................................................................................. 1140 INTRODUCTION President Trump’s unwillingness to abide by presidential and democratic norms has led to an increased concern about the resilience of American democracy and its institutions.1 His refusal to play by the rules has highlighted how much of our system is built on informal traditions that guide presidential conduct.2 Like the presidency, other American democratic institutions are fluid and imprecise. The work they do is discretionary and, in turn, depends on traditions, practices, and the judgment of the individuals who work within them. These informal norms and institutional practices have worked fairly well up until now. Of course, there have been moments of stress and even failure, but for the most part institutional practices have been sufficient to sustain fundamental aspects of American democracy. As the President defies these norms, however, it becomes increasingly critical to acknowledge and sustain them. One of the President’s unconventional tactics is accusing institutions and individuals that hold government actors accountable of being purely partisan players. Unsurprisingly, one of the main targets of his accusations has been the 1. See, e.g., David Frum, How To Build an Autocracy, ATLANTIC (Mar. 2017), https://www.theatlantic.com/magazine/archive/2017/03/how-to-build-an-autocracy/513872/ [https://perma.cc/8A3J-CA96 (dark archive)]. 2. See generally Daphna Renan, Presidential Norms and Article II, 131 HARV. L. REV. 2187 (2018) [hereinafter Renan, Presidential Norms] (describing the norms that augment and constrain the presidential power). 98 N.C. L. REV. 1077 (2020) 2020] A TYPOLOGY OF DOJ LAWYERS 1079 Department of Justice (“DOJ”).3 The professional, nonpartisan norms and the practices designed to promote those norms within the DOJ are fundamental to the rule of law.4 The purpose of this Article is to strengthen these informal norms and traditions by giving them greater definition and clarity. Since President Trump’s inauguration, journalists and scholars have paid increased attention to government lawyers’ conduct.5 Are lawyers employed to help the administration avoid obstacles to its ends? Are they there to protect the American public? Do they constitute a check on power or another tool in its exercise? The answer to these questions depends on the position that the lawyer holds and the work that the lawyer is doing. As a whole, the Department of Justice ought to strike a proper balance between responsiveness and independence, ensuring effectiveness and accountability while maintaining enough independence from the President to guarantee the orderly development of the law and its fair application. DOJ as a whole ought to be fair in interpreting the meaning of the law and independent from political influence in enforcing it in individual cases. But it should not be so separate and unaccountable that it fails to give effect to the administration’s policies and priorities. This Article argues that the roles of the different lawyers within DOJ ought to be defined to advance these twin goals.6 3. Recently, Trump called the FBI “scum” at a rally in Pennsylvania. Tom Porter, Trump Called the FBI ‘Scum’ and Hit Out at the Report that Discredited His Theory the Russia Probe Was a Deep-State Plot at a Wild Pennsylvania Rally, BUS. INSIDER (Dec. 11, 2019), https://www.businessinsider.com/trump- called-the-fbi-scum-at-a-pennsylvania-rally-2019-12 [https://perma.cc/H4HE-P2P6]. 4. The rule of law is hard to define precisely and many have offered requirements. Aristotle articulated an important conception of the rule of law in Book III of his Politics: “[I]t is as much a man’s duty to submit to command as to assume it . for this is law, for order is law; and it is more proper that law should govern than any one of the citizens . .” ARISTOTLE, POLITICS bk. III, at 117 (William Ellis trans., London, George Routledge & Sons Ltd. 1895) (c. 384 B.C.E.). John Adams famously repeated this sentiment when he drafted the Constitution of the Commonwealth of Massachusetts, writing that the rule of law requires a “government of laws and not of men.” MASS. CONST. art. XXX. For my purposes, I will assume that the rule of law requires at least the fair and equal application of known and clear laws to all people, including government officials, and that the processes for enacting and enforcing the laws are fair and efficient. See generally Robert A. Stein, What Exactly Is the Rule of Law?, 57 HOUS. L. REV. 185, 187–98 (2019) (offering an overview of historical definitions of the term and distilling critical principles of the rule of law from them). 5. See, e.g., W. Bradley Wendel, Sally
Load more

Recommended publications
  • Iqbal Brief: Barr Amicus Brief
    No. 07-1015 IN THE Supreme Court of the United States __________ JOHN D. ASHCROFT, former Attorney General of the United States, and ROBERT MUELLER, Director of the Federal Bureau of Investigation, Petitioners, v. JAVAID IQBAL, et al., Respondents. __________ On Writ of Certiorari to the U.S. Court of Appeals for the Second Circuit __________ BRIEF OF WILLIAM P. BARR, GRIFFIN BELL, BENJAMIN R. CIVILETTI, EDWIN MEESE III, WILLIAM S. SESSIONS, RICHARD THORNBURGH, AND WASHINGTON LEGAL FOUNDATION AS AMICI CURIAE IN SUPPORT OF PETITIONERS __________ Paul J. Larkin, Jr. Daniel J. Popeo 1314 Cleveland St. Richard A. Samp Alexandria, VA 22302 (Counsel of Record) (703) 931-1704 Washington Legal Foundation 2009 Mass. Ave, NW Washington, DC 20036 (202) 588-0302 Date: September 5, 2008 QUESTION PRESENTED 1. Whether a conclusory allegation that a cabinet-level officer or high-ranking official knew of, condoned, or agreed to subject a plaintiff to allegedly unconstitutional acts purportedly committed by subordinate officials is sufficient to state individual- capacity claims against those officials under Bivens. 2. Whether a cabinet-level officer or other high- ranking official may be held personally liable for the allegedly unconstitutional acts of subordinate officials on the ground that, as high-level supervisors, they had constructive notice of the discrimination allegedly carried out by such subordinate officials. iii TABLE OF CONTENTS Page TABLE OF AUTHORITIES................... iv INTERESTS OF AMICI CURIAE ...............1 STATEMENT OF THE CASE..................3 SUMMARY OF ARGUMENT ..................5 ARGUMENT...............................11 I. THE DECISION BELOW IMPROPERLY PERMITS COMPLAINTS TO PROCEED TO DISCOVERY BASED ON MERE CONCLUSORY ASSERTIONS OF WRONGDOING.......................11 II.
    [Show full text]
  • Advice and Dissent: Due Process of the Senate
    DePaul Law Review Volume 23 Issue 2 Winter 1974 Article 5 Advice and Dissent: Due Process of the Senate Luis Kutner Follow this and additional works at: https://via.library.depaul.edu/law-review Recommended Citation Luis Kutner, Advice and Dissent: Due Process of the Senate, 23 DePaul L. Rev. 658 (1974) Available at: https://via.library.depaul.edu/law-review/vol23/iss2/5 This Article is brought to you for free and open access by the College of Law at Via Sapientiae. It has been accepted for inclusion in DePaul Law Review by an authorized editor of Via Sapientiae. For more information, please contact [email protected]. ADVICE AND DISSENT: DUE PROCESS OF THE SENATE Luis Kutner* The Watergate affair demonstrates the need for a general resurgence of the Senate's proper role in the appointive process. In order to understand the true nature and functioning of this theoretical check on the exercise of unlimited Executive appointment power, the author proceeds through an analysis of the Senate confirmation process. Through a concurrent study of the Senate's constitutionally prescribed function of advice and consent and the historicalprecedent for Senatorial scrutiny in the appointive process, the author graphically describes the scope of this Senatorialpower. Further, the author attempts to place the exercise of the power in perspective, sug- gesting that it is relative to the nature of the position sought, and to the na- ture of the branch of government to be served. In arguing for stricter scrutiny, the author places the Senatorial responsibility for confirmation of Executive appointments on a continuum-the presumption in favor of Ex- ecutive choice is greater when the appointment involves the Executive branch, to be reduced proportionally when the position is either quasi-legis- lative or judicial.
    [Show full text]
  • Fewer Hands, More Mercy: a Plea for a Better Federal Clemency System
    FEWER HANDS, MORE MERCY: A PLEA FOR A BETTER FEDERAL CLEMENCY SYSTEM Mark Osler*† INTRODUCTION .......................................................................................... 465 I. A SWAMP OF UNNECESSARY PROCESS .................................................. 470 A. From Simplicity to Complexity ....................................................... 470 B. The Clemency System Today .......................................................... 477 1. The Basic Process ......................................................................... 477 a. The Pardon Attorney’s Staff ..................................................... 478 b. The Pardon Attorney ................................................................ 479 c. The Staff of the Deputy Attorney General ................................. 481 d. The Deputy Attorney General ................................................... 481 e. The White House Counsel Staff ................................................ 483 f. The White House Counsel ......................................................... 484 g. The President ............................................................................ 484 2. Clemency Project 2014 ................................................................ 485 C. The Effect of a Bias in Favor of Negative Decisions ...................... 489 II. BETTER EXAMPLES: STATE AND FEDERAL .......................................... 491 A. State Systems ................................................................................... 491 1. A Diversity
    [Show full text]
  • Who Is the Attorney General's Client?
    \\jciprod01\productn\N\NDL\87-3\NDL305.txt unknown Seq: 1 20-APR-12 11:03 WHO IS THE ATTORNEY GENERAL’S CLIENT? William R. Dailey, CSC* Two consecutive presidential administrations have been beset with controversies surrounding decision making in the Department of Justice, frequently arising from issues relating to the war on terrorism, but generally giving rise to accusations that the work of the Department is being unduly politicized. Much recent academic commentary has been devoted to analyzing and, typically, defending various more or less robust versions of “independence” in the Department generally and in the Attorney General in particular. This Article builds from the Supreme Court’s recent decision in Free Enterprise Fund v. Public Co. Accounting Oversight Board, in which the Court set forth key principles relating to the role of the President in seeing to it that the laws are faithfully executed. This Article draws upon these principles to construct a model for understanding the Attorney General’s role. Focusing on the question, “Who is the Attorney General’s client?”, the Article presumes that in the most important sense the American people are the Attorney General’s client. The Article argues, however, that that client relationship is necessarily a mediated one, with the most important mediat- ing force being the elected head of the executive branch, the President. The argument invokes historical considerations, epistemic concerns, and constitutional structure. Against a trend in recent commentary defending a robustly independent model of execu- tive branch lawyering rooted in the putative ability and obligation of executive branch lawyers to alight upon a “best view” of the law thought to have binding force even over plausible alternatives, the Article defends as legitimate and necessary a greater degree of presidential direction in the setting of legal policy.
    [Show full text]
  • John Mitchell and the Crimes of Watergate Reconsidered Gerald Caplan Pacific Cgem Orge School of Law
    University of the Pacific Scholarly Commons McGeorge School of Law Scholarly Articles McGeorge School of Law Faculty Scholarship 2010 The akM ing of the Attorney General: John Mitchell and the Crimes of Watergate Reconsidered Gerald Caplan Pacific cGeM orge School of Law Follow this and additional works at: https://scholarlycommons.pacific.edu/facultyarticles Part of the Legal Biography Commons, and the President/Executive Department Commons Recommended Citation 41 McGeorge L. Rev. 311 This Article is brought to you for free and open access by the McGeorge School of Law Faculty Scholarship at Scholarly Commons. It has been accepted for inclusion in McGeorge School of Law Scholarly Articles by an authorized administrator of Scholarly Commons. For more information, please contact [email protected]. Book Review Essay The Making of the Attorney General: John Mitchell and the Crimes of Watergate Reconsidered Gerald Caplan* I. INTRODUCTION Shortly after I resigned my position as General Counsel of the District of Columbia Metropolitan Police Department in 1971, I was startled to receive a two-page letter from Attorney General John Mitchell. I was not a Department of Justice employee, and Mitchell's acquaintance with me was largely second-hand. The contents were surprising. Mitchell generously lauded my rather modest role "in developing an effective and professional law enforcement program for the District of Columbia." Beyond this, he added, "Your thoughtful suggestions have been of considerable help to me and my colleagues at the Department of Justice." The salutation was, "Dear Jerry," and the signature, "John." I was elated. I framed the letter and hung it in my office.
    [Show full text]
  • Of LAW Why the President Will Prevail JANUARY 2021 | VOL
    JANUARY 2021 | THETRUMPET.COM Flaw in Mideast peace deals Abraham Lincoln’s view on tearing down sacred statues COVID-19’s economic impact Will blockchain block out America? The key to answered prayer RULE of LAW Why the president will prevail JANUARY 2021 | VOL. 32, NO. 1 | CIRC. 247,820 FEATURES FROM THE EDITOR : COVER STORY 1 Why Donald Trump Will Remain America’s President The Radical Left’s Ongoing Coup 6 Battle for God’s Truth 8 Europe vs. Donald Trump 11 Deadly Flaw in Mideast Peace Deals 15 INFOGRAPHIC Economic Virus 18 Lincoln’s View on Tearing Down Sacred Statues 20 Liberté, Égalité, and Down With Muslims! 22 A Military Alliance in All But Name 25 Will Blockchain Block Out America? 26 Guttenberg—an Expert on Financial Crises 27 DEPARTMENTS WORLDWATCH 28 SOCIETYWATCH 31 PRINCIPLES OF LIVING 33 The All-Important Key to Answered Prayer DISCUSSION BOARD 34 COMMENTARY 35 America’s Election: ‘Truth Dies in the Streets’ THE KEY OF DAVID TELEVISION LOG 36 WIN MCNAMEE/GETTY IMAGES, COVER: GARY DORNING/TRUMPET GARY COVER: IMAGES, MCNAMEE/GETTY WIN Trumpet editor in chief Gerald Flurry’s weekly television program theTrumpet.com/keyofdavid News and analysis updated daily theTrumpet.com Trumpet executive editor Stephen Flurry’s television program theTrumpet.com/trumpetdaily FROM THE EDITOR GERALD FLURRY Why Donald Trump Will Remain America’s President The media and virtually the entire world rushed to crown Joe Biden president. But Bible prophecy shows that God still has plans for Mr. Trump. n Saturday, Nov. 7, 2020, just four days after the Amos 7:7 reads, “Thus he shewed me: and, behold, the Lord presidential election, the American news media decided stood upon a wall made by a plumbline, with a plumbline in his O to declare Joe Biden the winner and the president-elect hand.” A plumbline is usually used in measuring a building or of the United States.
    [Show full text]
  • June 1-15, 1972
    RICHARD NIXON PRESIDENTIAL LIBRARY DOCUMENT WITHDRAWAL RECORD DOCUMENT DOCUMENT SUBJECT/TITLE OR CORRESPONDENTS DATE RESTRICTION NUMBER TYPE 1 Manifest Helicopter Passenger Manifest – 6/2/1972 A Appendix “B” 2 Manifest Helicopter Passenger Manifest – 6/5/1972 A Appendix “A” 3 Manifest Helicopter Passenger Manifest – 6/6/1972 A Appendix “A” 4 Manifest Helicopter Passenger Manifest – 6/9/1972 A Appendix “A” 5 Manifest Helicopter Passenger Manifest – 6/12/1972 A Appendix “B” COLLECTION TITLE BOX NUMBER WHCF: SMOF: Office of Presidential Papers and Archives RC-10 FOLDER TITLE President Richard Nixon’s Daily Diary June 1, 1972 – June 15, 1972 PRMPA RESTRICTION CODES: A. Release would violate a Federal statute or Agency Policy. E. Release would disclose trade secrets or confidential commercial or B. National security classified information. financial information. C. Pending or approved claim that release would violate an individual’s F. Release would disclose investigatory information compiled for law rights. enforcement purposes. D. Release would constitute a clearly unwarranted invasion of privacy G. Withdrawn and return private and personal material. or a libel of a living person. H. Withdrawn and returned non-historical material. DEED OF GIFT RESTRICTION CODES: D-DOG Personal privacy under deed of gift -------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- NATIONAL ARCHIVES AND RECORDS ADMINISTRATION *U.S. GPO; 1989-235-084/00024 NA 14021 (4-85) THF WHITE ,'OUSE PRESIDENT RICHARD NIXON'S DAILY DIARY (Sec Travel Record for Travel AnivilY) f PLACE DAY BEGAN DATE (Mo., Day. Yr.) _u.p.-1:N_E I, 1972 WILANOW PALACE TIME DAY WARSAW, POLi\ND 7;28 a.m. THURSDAY PHONE TIME P=Pl.ccd R=Received ACTIVITY 1----.,------­ ----,----j In Out 1.0 to 7:28 P The President requested that his Personal Physician, Dr.
    [Show full text]
  • Torture and the Office of Legal Counsel in the Bush Administration: Hearing Before the Subcomm
    Georgetown University Law Center Scholarship @ GEORGETOWN LAW 2009 What Went Wrong: Torture and the Office of Legal Counsel in the Bush Administration: Hearing Before the Subcomm. on Administrative Oversight and the Courts of the S. Comm. on the Judiciary, 111th Cong., May 13, 2009 (Statement of David Luban, Prof. of Law, Geo. U. L. Center) David Luban Georgetown University Law Center, [email protected] This paper can be downloaded free of charge from: http://scholarship.law.georgetown.edu/cong/42 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: http://scholarship.law.georgetown.edu/cong Part of the Ethics and Professional Responsibility Commons, and the Military, War and Peace Commons Testimony of David Luban Professor, Georgetown University Law Center Hearing: What Went Wrong: Torture and the Office of Legal Counsel in the Bush Administration May 13, 2009 U.S. Senate Judiciary Committee Subcommittee on Administrative Oversight and the Courts Chairman Whitehouse and members of the subcommittee. Thank you for inviting me to testify today. You've asked me to talk about the legal ethics of the interrogation memos written by lawyers in the Office of Legal Counsel. Based on the publicly- available sources I've studied, I believe that the memos are an ethical train wreck. When a lawyer advises a client about what the law requires, there is one basic ethical obligation: to tell it straight, without slanting or skewing. That can be a hard thing to do, if the legal answer isn't the one the client wants.
    [Show full text]
  • Attorney General Barr Letter on Mueller Report, LAWFARE (Mar. 24, 2019, 3:44 PM)
    April 11, 2019 VIA ONLINE PORTAL Douglas Hibbard Chief, Initial Request Staff Office of Information Policy U.S. Department of Justice 1425 New York Avenue NW Suite 11050 Washington, DC 20530-0001 Via FOIAOnline Re: Expedited Freedom of Information Act Request Dear Mr. Hibbard: Pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. § 552, and the implementing regulations of the Department of Justice (DOJ), 28 C.F.R. Part 16, American Oversight makes the following request for records. Requested Records American Oversight requests that DOJ produce the following within twenty business days and seeks expedited review of this request for the reasons identified below: 1. All communications (including emails, email attachments, letters, messages sent by courier, and other communications) attaching or otherwise including any draft, or any portion of a draft, of Attorney General William Barr’s March 24, 2019 letter to the Judiciary Committees of the U.S. Senate and the U.S. House of Representatives concerning Special Counsel Robert Mueller’s “Report on the Investigation into Russian Interference in the 2016 Presidential Election.”1 2. All records reflecting communications (including emails, email attachments, telephone call logs, talking points, electronic or handwritten notes, or drafts used as reference documents during oral communications) between DOJ and any employee or official at the White House regarding Attorney General William Barr’s March 24, 2019 letter to the Judiciary Committees of the U.S. Senate and the U.S. House of Representatives concerning Special Counsel Robert Mueller’s “Report on the Investigation into Russian 1 A copy of Attorney General Barr’s letter can be viewed here: Quinta Jurecic, Document: Attorney General Barr Letter on Mueller Report, LAWFARE (Mar.
    [Show full text]
  • 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.
    [Show full text]
  • JUNE 10, 2019 Chairman Nadler, Ranking Member Collins, the Last
    STATEMENT OF JOHN W. DEAN U.S. HOUSE OF REPRESENTATIVES, COMMITTEE ON THE JUDICIARY HEARINGS: “LESSONS FROM THE MUELLER REPORT: PRESIDENTIAL OBSTRUCTION AND OTHER CRIMES.” JUNE 10, 2019 Chairman Nadler, Ranking Member Collins, the last time I appeared before your committee was July 11, 1974, during the impeachment inquiry of President Richard Nixon. Clearly, I am not here as a fact witness. Rather I accepted the invitation to appear today because I hope I can give a bit of historical context to the Mueller Report. In many ways the Mueller Report is to President Trump what the so-called Watergate “Road Map” (officially titled “Grand Jury Report and Recommendation Concerning Transmission of Evidence to the House of Representatives”) was to President Richard Nixon. Stated a bit differently, Special Counsel Mueller has provided this committee a road map. The Mueller Report, like the Watergate Road Map, conveys findings, with supporting evidence, of potential criminal activity based on the work of federal prosecutors, FBI investigators, and witness testimony before a federal grand jury. The Mueller Report explains – in Vol. II, p. 1 – that one of the reasons the Special Counsel did not make charging decisions relating to obstruction of justice was because he did not want to “potentially preempt [the] constitutional processes for addressing presidential misconduct.” The report then cites at footnote 2: “See U.S. CONST. ART. I § 2, cl. 5; § 3, cl. 6; cf. OLC Op. at 257-258 (discussing relationship between impeachment and criminal prosecution of a sitting President).” Today, you are focusing on Volume II of the report.
    [Show full text]
  • 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.
    [Show full text]