OLC’s “Best Practices” In Giving Legal Advice

In May 2005, Steven G. Bradbury, Principal Deputy Assistant Attorney General for the Office of Legal Counsel, issued a memorandum entitled “Best Practices for OLC Opinions.”  At the time, the Office was the subject of controversy because of leaked national security opinions that were prepared during the months following 9/11.  Bradbury was (and for the remainder of the Bush Administration, would remain) the most senior official in the Office, but he had served as an Attorney-Adviser there under AAGs Mike Luttig and Tim Flanagan.  The memo codified and reaffirmed the Office’s traditional methods for preparing, reviewing, and issuing opinions. 

In July 2010, then-Acting Assistant Attorney General David J. Barron issued a memo entitled “Best Practices for OLC Legal Advice and Written Opinions.” In a gesture of continuity, the memo states that it “updates” (rather than “supersedes” or “replaces”) the May 2005 memo. See 2010 Memo at 1 n.*.  It expands the scope of the 2005 Memo explicitly to include informal advice as well as formal opinions; alters somewhat the process of review and comment for draft opinions (although it’s unclear how much practical effect that has); and codifies the presumption favoring publication that I observed in practice.

I’ve prepared a redline comparing the two documents here.  Because there is nothing people crave on the eve of a major holiday so much as a lengthy missive on the minutiae of the operations of a small government office, I have more detailed thoughts on the differences between the memos after the jump. 

Informal Advice: The 2005 Memo solely concerned preparation of formal opinions. In recognition of the significant role that informal advice plays in the recent work of the Office (particularly, if what I hear is accurate, during the current Administration), the 2010 Memo generalizes the principles set forth in the 2005 Memo to the provision of other forms of advice, such as oral or emailed advice. In a noteworthy passage, the 2010 Memo acknowledges that “the Office often operates under severe time constraints in providing advice” and that under such circumstances, the office “should make clear that its advice has been given with only limited time for review, and thus that more thorough consideration of the issue has not been possible.”  That is a codification of longstanding practice.

Difference in Review Practices: The biggest formal difference between the two memos is in the review process for draft opinions.  The 2005 Memo stated, “[o]nce OLC’s internal review is complete, a draft of the opinion may be shared outside the Office.”  The 2010 Memo, on the other hand, states that “[c]onsistent with its tradition of providing advice that reflects its own independent judgment, OLC does not ordinarily circulate draft opinions outside the Office.”  The 2010 Memo also states, however, that “the Office keeps the Office of the Attorney General and the Office of the Deputy Attorney General apprised of its work through regular meetings and other communications,” and states that

as part of our process, we may share an aspect of a draft opinion’s analysis with the requestor or others who will be affected by the opinion, particularly when their submissions have not addressed issues that arise in the draft. In some other cases, OLC may share the substance of an entire draft opinion or the opinion itself within the Department of Justice or with others, primarily to ensure that the opinion does not misstate any facts or legal points of interest.

As a matter of practice, at least during the latter years of the Bush Administration when I was there, affected agencies and components were routinely given copies of draft opinions for comment. It is hard to tell how much of a practical difference the change in wording makes, but it sounds like sharing full drafts is now the exception, although the Office may commonly share “aspect[s] of a draft opinion’s analysis.”

I disagree with the idea that allowing comment on a draft opinion reflects some lack of independence, as though agencies that engage in notice and comment rulemaking are somehow in the sway of commenters. In my experience, the process simply permits affected parties an opportunity to comment on the application of law to facts, and, again in my experience, if comments are unpersuasive, nothing changes.  I found the process was useful, as both memos indicate, largely to ensure that an opinion does not “misstate the facts” or “legal points of interest.”  An agency or component has no greater ability to exercise undue influence in commenting on a draft opinion than it does in its initial comment letter or in responding to follow-up questions.  I doubt OLC is truly that concerned about undue influence, or it wouldn’t generally allow review of “aspects of a draft opinion’s analysis” (which, if they’re shared, presumably are the relatively important parts of the analysis), nor would it allow review of an entire draft opinion “in some cases.”

Assuming OLC lawyers have the fortitude they must for the Office to perform its role, I think circulating the draft opinion produces a better product, and eliminates concerns that the draft opinion has been insulated from scrutiny (which was one of the criticisms leveled against some of the controversial early national security opinions).  I wouldn’t be surprised if, once a decent interval has passed from the controversy of the mid-2000s, OLC reverts to a general rule of allowing affected components and agencies to comment on complete drafts of opinions.

Publication: Another significant difference between the memos is in how they discuss publication. The 2005 Memo begins the publication section by noting the confidentiality interests that legal advice can implicate, and then proceeds to talk about the interests served by publication. The 2010 Memo—although it begins with a general description of the publication process—generally reverses that order, and begins by stating that publication is favored, and only then addresses the possibility that continuing confidentiality or secrecy interests would counsel against publication. Unlike with addition and multiplication, the order of presentation matters in writing, and the order in the new memo clearly emphasizes the importance of publication.

While I was there, OLC operated under a presumption that significant opinions would be published, but because of a publication process that was somewhat cumbersome, there tended to be a significant delay between when an opinion was signed and when it was published. The 2010 Memo makes that presumption favoring publication commendably explicit, and (also commendably) expands it a bit by establishing a presumption of prompt disclosure: “the Office operates from the presumption that it should make its significant opinions fully and promptly available to the public.”  As I’ve noted in my previous posts on the Office, the opinions that the current OLC has published have been published quickly. 

The 2005 Memo stated that “[a]ll opinions posted on the Web site are eventually published in OLC’s hardcover bound volumes.” The 2010 Memo inserts the qualifier, “[a]ll opinions posted on the Web site as published opinions of the Office are eventually published.” I will be interested to see what practical effect that additional language has. During the last Administration, we posted significant testimony on the website, with the expectation that—consistent with past practice—it eventually would be published in the bound volumes. I wonder if this new language signifies that that testimony will be excluded from the published volumes.  UPDATE (12/24/10 1:30pm): A friend of mine pointed out that OLC posts some opinions on its “FOIA Reading Room” page. The legend on that page notes the opinions linked there “may not necessarily be operative” (citing President Obama’s Executive Order 13491, which essentially prohibits reliance on Bush-era interrogation memos). The new language almost certainly includes those opinions in its sweep.

“Controlling” advice: The 2005 Memo explicitly stated that “OLC is authorized to provide legal advice only to the Executive Branch; we do not advise Congress, the Judiciary, foreign governments, private parties, or any other person or entity outside the Executive Branch.” It also stated that “OLC opinions are controlling on questions of law within the Executive Branch,” “subject to the President’s authority under the Constitution.” That language both explicitly stated the limited, Second-Branch-Only authoritativeness of the opinions, and acknowledged the President’s authority, as the ultimate repository of executive power, to overrule OLC or the Attorney General. (Offhand, I can only think of two instances when it’s been done, once by Jefferson and once by FDR, and my memory of even those is hazy.) The language explicitly limiting the advice-giving function to the Executive Branch only is more handy than you’d think, given the surprising number of no-particular-branch/multibranch platypuses out there. Quick: Can you give advice to the Smithsonian Institution?

The quoted language has been cut. In its place are two references to the Office’s role of dispensing “controlling advice to Executive Branch officials” and two references to “controlling legal advice” (without specifying to whom it is controlling, or how).

Emphasis: The 2005 Memo noted that “OLC has earned a reputation for giving candid, independent, and principled advice—even when that advice may be inconsistent with the desires of policymakers.” The 2010 Memo states that idea imperatively—“OLC must always give candid, independent, and principled advice”—and restates it at greater length for emphasis in the discussion of informal advice.

Differences in interpretive rules: The 2005 Memo emphasizes the importance of the text of the Constitution, and in particular the “original meaning of the text,” and states that the Office “should be faithful to that historical understanding.” The 2010 Memo retains the reference to the text, but (unsurprisingly, given the change in party) loses the reference to “original meaning.” In addition, the 2010 Memo in a few places replaces references to “statutory materials” with the more expansive “primary materials,” which clearly includes other sources.

Role of stare decisis: The 2010 Memo retains the 2005 Memo’s emphasis on “not lightly depart[ing] from such past decisions [of OLC],” but goes on to note that “past decisions may be subject to reconsideration and withdrawal in appropriate cases and through appropriate processes.” The 2005 Memo clearly contemplated that OLC opinions could be overruled (it just was understood it would not be done “lightly”). Explicit reference to overruling decisions is fitting given that the current Administration overruled several national security opinions during its first year.

Minor matters: It is a small thing, but I can’t let it pass without comment that the 2010 Memo includes in its first paragraph a reference to assisting the President in fulfilling “his or her constitutional duties” to take care that the law is faithfully executed. I was struck by the use of that language given how easily the phrase could have been rendered gender-neutral while avoiding that wordy locution (“assists in fulfilling the President’s duty to . . . take care the law is faithfully executed”); to say nothing of the fact that, if some of the primaries had come out differently, that phrase could have been rendered in a simple, unhypothetical “her constitutional duties.”