In the first two years of the Obama administration, the OLC came to a conclusion at least twice that government officials disagreed with. In June 2011, New York Times reporter Charlie Savage revealed that President Obama had taken the unusual step of ignoring advice from the Office of the Legal Counsel regarding the legality of military action in Libya. The written statements of the OLC have always been considered binding on the executive branch, unless they are overturned by the attorney general or president. [7] In 2009, Attorney General Eric Holder rescinded an unpublished OLC statement concluding that a DC voting rights bill pending in Congress was unconstitutional. [8] Third, counsel has a special responsibility for law and ethics in the West Wing. He may need advice in a variety of areas, including increasingly national security, but a fundamental responsibility is to ensure that the president and staff adhere to laws and ethical standards. Second, the White House counsel is the lawyer, not the client, an agent, not a client. This is one reason why White House advisers generally do well not to interfere in the content of political issues. It is usually a mistake for the defense attorney to try to be both a lawyer and a constituent member of the “client,” because if the lawyer is active in politics, he may tend towards a legal position that is useful to his political preferences, and others in the political debate may suspect bias (even if there is none) and lose confidence in the lawyer`s professional objectivity. On behalf of the Attorney-General, the Deputy Attorney-General in charge of the Legal Aid Service advises the President and all executive authorities. The Office prepares the legal opinions of the Attorney General and issues its own written and other advice in response to requests from the President`s Adviser, the various executive agencies and other parts of the Ministry of Justice. These requests generally involve particularly complex and important legal issues, or on which two or more organizations disagree.
The Office is also responsible for reviewing and advising on the constitutionality of pending legislation. According to press reports, the Office of the Legal Counsel has reviewed and approved the legality and form of the order. The White House counsel would certainly have checked it, but he is new to the job and he may have reasonably referred the fundamental question of whether it was properly drafted to other lawyers within the executive branch. Unlike ethical compliance, he is not so much the senior advisor or the last word here. It must certainly play a key role in coordinating legal advice within the executive on form and legality, and one of the functions of coordination is a thorough “veterinarian” who, if properly executed, should detect errors of form and legality. It is not clear that most of the time, the White House counsel is primarily responsible for drafting the order. The White Houses find themselves in the middle of politically sensitive mess, some of which reach the level of a scandal in its own right, and these are the ones that incriminate the consultants` best judgment. They must be sensitive to the political dimensions of the task without getting lost in the political moment and not maintain the distance required by sound judgment and legal advice. However, your advice is usually useless if it is not shaped by the complex politics surrounding important legal issues. Maybe McGahn pushed for that transparency, maybe not.
The decision here rests with senior management. The result — no meaningful information — made it difficult to judge how the White House adviser is handling his responsibilities. However, it is clear that McGahn and his office were not well served by this outcome. The level of transparency on these issues is something that should be monitored in the future, and this is a reasonable reason to assess the quality of ethics during Trump`s tenure. Here, however, there is another case where the attitude of the respective administration exposes the lawyer to special requirements in controlling these types of contacts. One of Trump`s closest advisers, Steve Bannon, called the attorney general a “clearing house” for the government. for politics and philosophy” and played a decisive role in the “birth of a new political order”. This remarkable statement suggests that the White House adviser should pay the utmost attention to the relationship between the DOJ and the White House, and it is institutional and public interests — not the president`s politics or political interests — that are in control here. If that happened, however, it was certainly not appropriate to release McGahn`s legal opinion to the public during a briefing by the White House press secretary. It would have been better if Mr.
Spicer had simply said that the White House would comment on nothing other than why the president made his decision to demand Flynn`s resignation. By leaking the contents of McGahn`s legal decision, Spicer removed it from the private space of legal care, giving the impression that the White House was preemptively deciding a legal matter that was duly left to the DOJ. Moreover, from a president`s point of view, the choice of advisor is necessarily somewhat “personal”. These decisions during the different presidencies have been different – litigators, corporate lawyers, lawyers with no government experience and others with a lot of experience and lawyers with political backgrounds. But all presidents, of course, consider the elected council “their own.” After all, the lawyer chosen is the president`s advisor. The lawyer who acts as a White House adviser is, of course, not a president`s personal adviser, but is tasked with providing legal support to the president`s office. The president is the “client,” but so are the individual White House staff, and the obligation extends to the public. It is, of course, difficult, and some consider it impossible, for the President`s Council to separate obligations to the institution from the requirements of loyal service to the flesh and blood person occupying the office. According to press reports, the Office of the Legal Counsel has acted as an arbiter within the executive branch in the past and its legal opinions have generally been respected by agencies and departments.
[3] In addition to acting as external legal counsel to other executive branch agencies, the Office of Legal Counsel plays a unique role within the Department itself. It reviews all orders proposed by the Attorney General and regulations that require the approval of the Attorney General. It also performs various special duties assigned by the Attorney General or Deputy Attorney General. Finally, the Council must determine how all these tasks will be carried out most effectively in each Presidency, taking into account the specific tone, the orientations highlighted and the political challenges faced by the incumbent. That`s not to say that the White House adviser is just the president`s lawyer and has to adapt exactly to what that president wants.