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.