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Abolish the White House Counsel's Office?

The White House Counsel's office has grown ever larger since its creation sixty-some years ago. While the office has often staffed-up late term, particularly when a President is (as seems inevitable) subject to investigation or extensive oversight, the Obama Administration has already fully staffed the office with more than double the number of attorneys it had just fifteen years ago. Is this a positive trend?

Yale law professor Bruce Ackerman thinks the White House Counsel's office should be abolished, and the President should rely upon the Justice Department for legal advice. While I don't know if I would go as far as Ackerman, I certainly agree that it the growth of the office is a negative trend. Indeed, I have heard as much from several former Justice Department officials (of both parties) and a former White House Counsel, each of whom believes that the migration of legal policy questions to the White House increases the politicization of how such questions are handled.

Ackerman would go even further, however, and also abolish -- or completely reconfigure -- the Office of Legal Counsel. Ackerman believes that OLC analyses are too one-sided and advocacy oriented, and would better serve the nation if it had to render legal opinions after an adjudicative process. I think Ackerman is wrong on this point. Contrary to his suggestion, OLC has not traditionally operated as an advocacy shop. That is not the office's institutional culture, and OLC has traditionally (if not always) resisted tailoring its legal opinions to the political preferences of the administration in office. (See, e.g., the Obama OLC's conclusion that a D.C. representation bill would be unconstitutional.) This is one reason why the political views of a potential OLC nominee are less important than the nominee's understanding of OLC's function within the government.

Insofar as some of the Bush Administration national security memoranda were faulty or one-sided, I believe this was due to departures from traditional OLC norms and procedures, including the walling-off of those who drafted such memoranda from the rest of OLC (as well as from legal offices in other parts of the government that may have reached contrary conclusions). These departures may have been understandable (even if regrettable), due to the sensitive nature of the issues involved or the sense of urgency engendered by the 9/11 attacks, but they were departures from business-as-usual at OLC, and should not be used as a basis for eliminating the office. If anything, it makes the case for reinforcing OLC's traditional norms.

A well-functioning OLC is not an advocacy shop -- as opposed to, say, the Solicitor General's office or the Office of Legal Policy. Rather, it plays the role of counselor, seeking to provide the executive branch with the best, objective legal advice. This is an important role -- even more so if the White House Counsel's office were to be reduced or eliminated. So while there may be a good argument for revisiting size and scope of the White House Counsel's Office, eliminating or restructuring OLC would throw the baby out with the bathwater.

Just an Observer:
Insofar as some of the Bush Administration national security memoranda were faulty or one-sided, I believe this was due to departures from traditional OLC norms and procedures ... . If anything, it makes the case for reinforcing OLC's traditional norms.

I agree. The Bush-era OLC, especially in early days, was an aberration. The best medicine seems to be a formal internal adoption of the principles articulated by Dawn Johnsen and her colleagues. The sooner she is confirmed, the better.

There also is an excellent case to be made for the bipartisan effort to enact statutory requirements increasing transparency, such as the bill that Johnsen and Brad Berenson helped draft.

(BTW, one fascinating bit of trivia that I learned from Ackerman's piece was that OLC used to be named the Executive Adjudications Division.)
4.23.2009 12:29pm
MCM (mail):
Is this a positive trend?


If the number of people employed increases as time increases, then yes, it is a positive trend. ;-)
4.23.2009 12:48pm
rosetta's stones:
Keep both the OLC and the White House Counsel. And hire a few dozen more people at the JD. Presidents need to be able to draw upon several different gaggles of lawyers, so they can choose which gaggle they agree with. The gaggle which most often comes up with the right answer gets a yearly junket to Tahoe.
4.23.2009 12:48pm
Houston Lawyer:

the Obama Administration has already fully staffed the office with more than double the number of attorneys it had just fifteen years ago


Meanwhile, they can't seem to hire anyone who can help out at Treasury. Almost gives the impression that they don't want the markets to recover. Can't let a good emergency go to waste.
4.23.2009 1:58pm
Dave Roth (mail):
I don't quite understand your conclusion.


Insofar as some of the Bush Administration national security memoranda were faulty or one-sided, I believe this was due to departures from traditional OLC norms and procedures, including the walling-off of those who drafted such memoranda from the rest of OLC (as well as from legal offices in other parts of the government that may have reached contrary conclusions). These departures may have been understandable (even if regrettable), due to the sensitive nature of the issues involved or the sense of urgency engendered by the 9/11 attacks, but they were departures from business-as-usual at OLC, and should not be used as a basis for eliminating the office. If anything, it makes the case for reinforcing OLC's traditional norms.


So the only thing preventing the OLC from acting out of line is the "traditional norms" OLC attorneys have followed. The obvious lesson is: If the only thing preventing the OLC from misbehaving is the institutional pride of OLC attorneys, then the OLC has a major structural weakness.

It seems like awfully poor institutional design to make the proper functioning of an institution entirely dependent on the good behavior of those within the institution. A more formal check is clearly needed if the OLC is going to continue to play such a major role in US politics.
4.23.2009 2:01pm
Eli Rabett (www):
Seems to me that each President can set this up as he wants
4.23.2009 2:09pm
Bill Poser (mail) (www):
I wonder if it would not be better if part of the function of the OLC were performed by the courts. In the current US system, this is not possible since the courts are not permitted to issue advisory opinions, but it seems to me that it works quite well in countries that permit it. In Canada, for example, the Governor General in Council, effectively the Cabinet, may request the opinion of the Supreme Court, a procedure known as a "reference". References most often involve constitutional issues but not always. There have been cases in which the government has referred a criminal case where there was reason to suspect a miscarriage of justice,e.g. the David Milgram case. The opinion of the court in such cases is not binding, and the court may, and occasionally does, decline to issue and opinion.
4.23.2009 2:33pm
Just an Observer:
Dave Roth: So the only thing preventing the OLC from acting out of line is the "traditional norms" OLC attorneys have followed. The obvious lesson is: If the only thing preventing the OLC from misbehaving is the institutional pride of OLC attorneys, then the OLC has a major structural weakness.

Ultimately it will always be true that a huge piece of this comes down to professional performance by fallible humans with a constitutional duty to "take care that the laws be faithfully executed."

In the Bush administration the fish stank from the head when it came to respecting the Take Care duty. OLC lawyers, on whose professional honor and good faith the system depended, failed the nation. You are right that it could happen again.

What is missing so far is accountability. We have seen none.

I think it would help restore institutional damage today -- and help avoid a national crisis -- if Judge Bybee would just say, "I was wrong. My secret torture opinions failed to meet the professional standards of OLC. I apologize to my clients in the government, as well as to the torture victims. I also understand that if the opinions had been public at the time of my nomination to the bench, I would not have been confirmed. So I resign."

Failing such example, which does depend on the conscience of actors such as Bybee and Yoo to reclaim their own honor, we should attempt some accountability in some systemic venue. First we should see if the limited mechanisms under the status quo for disciplining the lawyers, starting with the Office of Professional Responsibility, lead to some remedial action.

If not, then the system of law and lawyers will have failed. It will then need to be fixed for the future, perhaps by strengthening professional canons or internal DOJ regulations.

Let's see what happens next.
4.23.2009 3:39pm
Bob from Ohio (mail):
The President is entitled to get his advice from whomever he wants.

The Counsel office grew because presidents felt(and continue to feel) that they can get more confidential and better advice from a smaller group under their direct control and without involvement of career people.

If you abolish the Counsel office, it will just be reconstituted under a group of "Special Assitants" who just happen to be lawyers and just happen to be given legal chores by the Chief of Staff or President.


legal policy questions to the White House increases the politicization


You cannot remove politics from the political office of the President. Nor should you.

If Justice establishes a new policy and it blows up, it is the President who has to deal with the political fall out. Legal policy does not exist in some special vaccum.
4.23.2009 4:30pm
sonicfrog (mail) (www):
Get rid of extra lawyers mucking up the system? Sounds good. I'm in.


The Counsel office grew because presidents felt(and continue to feel) that they can get more confidential and better advice from a smaller group under their direct control and without involvement of career people.


Which is why former officials of the Bush and Cheney administration now find themselves under increased legal pressure. The more opinions you have access to, the more likely you'll find one to suit your needs, instead of finding the most correct interpretation of the law.

No offense to lawyers. God know I can't get enough of the legalites here at Volokh. But too much of anything is a bad thing, and that includes legal opinions.
4.23.2009 4:46pm
rosetta's stones:

"You cannot remove politics from the political office of the President. Nor should you.

If Justice establishes a new policy and it blows up, it is the President who has to deal with the political fall out. Legal policy does not exist in some special vaccum."



Well said.
4.23.2009 6:32pm
Just an Observer:
Meanwhile, back in the real world, there is a very good chance that Dawn Johnsen will not have the opportunity to make her institutional mark restoring OLC. She is increasingly vulnerable to a filibuster.

Marc Ambinder reports: White House Worried About Johnsen Nomination

And Greg Sargent says: Key Dem Senator Likely To Vote Against Top Obama Legal Nominee
4.24.2009 12:03pm
CJColucci:
Why not do the same thing in the states: abolish the office of counsel to the Governor and have the Attorney General handle that job?
4.24.2009 4:02pm

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