“Extraordinarily Rare”

As Charlie Savage notes twice in the article Jonathan discusses below, the President and the Attorney General have the authority, in the hierarchical Executive Branch, to overrule the advice of OLC.  But as the article also notes, it is “extraordinarily rare” for that to happen.  When Senator Whitehouse asked me after a hearing in 2008 for an example, the only one that came to mind was from the Roosevelt Administration. (There must be others, but I’m still drawing a blank.)  If press accounts are correct, together with the D.C. voting rights bill, we now have two recent examples.

Senator Whitehouse was outraged by even the possibility of the President or the Attorney General overruling OLC, which he characterized as being like former President Nixon’s 1977 quote to David Frost that when the “President does it, that means it is not illegal.” Whitehouse’s full quote from the 2008 hearing [http://www.fas.org/sgp/congress/2008/law.html] is below.

The Department of Justice is bound by the President’s legal determinations. I mean, I thought we’d cleared that when President Nixon told an interviewer that if the President does it it’s not illegal. That stands on the proposition that the President has authority to supervise and control the activity of subordinate officials within the executive branch.

But the idea that the Attorney General of the United States and the Department of Justice don’t tell the President what the law is and count on it, but rather it goes the other way, opens up worlds for enormous mischief.

But of course, the outrage now will come from the other side of the aisle. Cue Orin’s Rule.

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