The Volokh Conspiracy

The NYT has a very interesting story on the targeting of Anwar al-Awlaki for a drone strike.  Of particular interest is the story’s account of the efforts by academics-turned-government-lawyers to ensure that targeting al-Awlaki would be legal.  Here’s a taste:

David Barron and Martin Lederman had a problem. As lawyers in the Justice Department’s Office of Legal Counsel, it had fallen to them to declare whether deliberately killing Mr. Awlaki, despite his citizenship, would be lawful, assuming it was not feasible to capture him. The question raised a complex tangle of potential obstacles under both international and domestic law, and Mr. Awlaki might be located at any moment.

According to officials familiar with the deliberations, the lawyers threw themselves into the project and swiftly completed a short memorandum. It preliminarily concluded, based on the evidence available at the time, that Mr. Awlaki was a lawful target because he was participating in the war with Al Qaeda and also because he was a specific threat to the country. . . .

But as months passed, Mr. Barron and Mr. Lederman grew uneasy. They told colleagues there were issues they had not adequately addressed, particularly after reading a legal blog that focused on a statute that bars Americans from killing other Americans overseas. In light of the gravity of the question and with more time, they began drafting a second, more comprehensive memo, expanding and refining their legal analysis and, in an unusual step, researching and citing dense thickets of intelligence reports supporting the premise that Mr. Awlaki was plotting attacks. . .

Due to return to academia in the fall of 2010, the two lawyers finished their second Awlaki memorandum, whose reasoning was widely approved by other administration lawyers, that summer. It had ballooned to about 63 pages but remained narrowly tailored to Mr. Awlaki’s circumstances, blessing lethal force against him without addressing whether it would also be permissible to kill citizens, like low-ranking members of Al Qaeda, in other situations.

Nearly three years later, a version of the legal analysis portions would become public in the “white paper,” which stripped out all references to Mr. Awlaki while retaining echoes, like its discussion of a generic “senior operational leader.” Divorced from its original context and misunderstood as a general statement about the scope and limits of the government’s authority to kill citizens, the free-floating reasoning would lead to widespread confusion.

Charles Krauthammer has a column today taking President Obama to task for his recent decision to “lift the shadow of deportation” from otherwise law-abiding undocumented aliens who came to the U.S. as children and allow them to “request temporary relief from deportations and apply for work authorization.”  (For DHS’s page on the program, see here.)  He argues that it’s impermissible to exercise discretion categorically:  rather, he says it requires review on a “case-by-case basis on considerations of extreme and extenuating circumstances.” I’m a big fan of the good doctor, but I’m not so sure he’s right about whether the exercise of discretion has to be individualized, at least not as a general matter. I think it requires a closer look at the specific statutes at issue.

It’s a background principle of administrative law that, “[a]bsent statutory language to the contrary, agencies are free to decide whether to implement a grant of discretion by means of rules, which provide prospective standards of behavior, or by means of case-by-case decisionmaking (or adjudication).” Agency Rules as Constraints on the Exercise of an Agency’s Statutory Discretion, 7 Op. OLC 39, 44 (1983) (AAG Ted Olson); cf. NAACP v. Fed. Power Comm’n, 425 U.S. 662, 668 (1976) (“As a general proposition it is clear that the Commission has the discretion to decide whether to approach these problems through the process of rulemaking, individual adjudication, or a combination of the two procedures.”). So the question then becomes whether the specific provisions of the immigration laws allow the Secretary of Homeland Security to exercise her discretion by rule in this manner.

I’d love to take a more careful look at the immigration laws and determine for myself whether I think they authorize the President’s action, but (1) I have actual paying clients to tend to, and (2) it’s well known that prolonged exposure to the hyper-reticulated Immigration and Nationality Act can actually cause your brain to melt.  Here’s what I do know:

Continue reading ‘President Obama’s Deferred Action on Immigration (and OLC)’ »

A unanimous panel of the Ninth Circuit (Fisher, Smith, Pallmeyer (dj, NDIll, by designation)) held today that former OLC Deputy Assistant Attorney General John Yoo is entitled to qualified immunity in the lawsuit brought by former detainee Jose Padilla.  If you’re just tuning in, the first two paragraphs set forth the nature of the lawsuit and the court’s reasoning in some detail:

In this lawsuit, plaintiffs Padilla and his mother, Estela Lebron, seek to hold defendant John Yoo, who was the Deputy Assistant Attorney General in the U.S. Department of Justice’s Office of Legal Counsel (OLC) from 2001 to 2003, liable for damages they allege they suffered from these unlawful actions. Under recent Supreme Court law, however, we are compelled to conclude that, regardless of the legality of Padilla’s detention and the wisdom of Yoo’s judgments, at the time he acted the law was not “sufficiently clear that every reasonable official would have understood that what he [wa]s doing violate[d]” the plaintiffs’ rights. Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2083 (2011) (internal quotation marks omitted). We therefore hold that Yoo must be granted qualified immunity, and accordingly reverse the decision of the district
court.

As we explain below, we reach this conclusion for two reasons. First, although during Yoo’s tenure at OLC the constitutional rights of convicted prisoners and persons subject to ordinary criminal process were, in many respects, clearly established, it was not “beyond debate” at that time that Padilla — who was not a convicted prisoner or criminal defendant, but a suspected terrorist designated an enemy combatant and confined to military detention by order of the President — was entitled to the same constitutional protections as an ordinary convicted prisoner or accused criminal. Id. Second, although it has been clearly established for decades that torture of an American citizen violates the Constitution, and we assume without deciding that Padilla’s alleged treatment rose to the level of torture, that such treatment was torture was not clearly established in 2001-03.

Yale’s Bruce Ackerman, writing in the WSJ, calls for the White House to release the legal memorandum upon which President Obama based his decision to make several recess appointments while the Senate claimed not to be in recess.  As Ackerman notes, the Justice Department’s Office of Legal Counsel “traditionally served as the executive branch’s authoritative spokesman on matters of high legal importance,” but no longer.  On matters from the constitutionality of proposed legislation to the scope of the President’s authority as commander-in-chief, the White House increasingly looks elsewhere when it wants to ensure it gets a desired legal conclusion.  So, here, the President apparently relied upon the White House counsel — who is appointed unilaterally by the President — rather than OLC, which is headed by a Senate-confirmed Assistant Attorney General.  Comments Ackerman:

In challenging the Senate on recess appointments, President Obama has only relied on his White House Counsel, not the Justice Department, in reaching his constitutional conclusions. But so far, the current counsel, Kathryn Ruemmler, has failed to publish the written opinion she presumably prepared to advise the president on his responsibilities. . . .

This is no small difference in a dispute between the president and the Senate on recess appointments. If Mr. Obama had turned to [OLC head Virginia] Seitz as his principal authority, he would have been relying on somebody the Senate itself certified as a suitable official to resolve hotly contested matters of constitutional law. In turning to Ms. Ruemmler, he is asking one of his own appointees to judge whether the Senate can block the appointment of more unilateral appointees.

Within this context, it is hardly enough for him to inform the Senate that Ms. Ruemmler has given the go-ahead. At the very least, he should provide his counsel’s legal opinion explaining why he has the constitutional authority to second-guess the Senate on whether it is in recess.

So far, Ms. Ruemmler has only provided brief media interviews to explain the administration’s “practical, common-sense approach.” On her view, as she explained to NPR, a Senate’s “holiday session” is “just a gimmick” that prevents the president from governing.

Of note, Ackerman finds Ms. Ruemmler’s “casual remarks” wholly insufficient, even though he agrees with her ultimate conclusion that the President’s recess appointments were constitutional. For Ackerman, the issue here is “whether the president has an obligation to make his own constitutional case, or merely announce his judgment by fiat.”

UPDATE: Jack Goldsmith cautions that we should not assume that OLC was not consulted, though he urges.  As he notes, it is rare for a President to bypass or overrule OLC.  He is correct.  The problem is that the White House won’t say whether the Justice Department was consulted and the current administration bypassed OLC on the constitutionality of DC voting rights legislation and overruled OLC on the nature of the military intervention in Libya.  In the latter case, the White House also refused to say whether OLC had been consulted until that information was leaked and reported by the NYT‘s Charlie Savage.  So until the White House is willing to say whether OLC was in the loop, I think skepticism is warranted.  In any event, the Administration should be willing to offer a more complete justification of its position.  Writes Goldsmith:

I can understand why the administration might not want the OLC opinion itself released, especially if (as is probably the case) the opinion notes the closeness of the issue and acknowledges counterarguments, both of which could be used against DOJ in subsequent litigation. But beyond these concerns, which could be addressed by releasing a suitably summarized legal analysis, arguments based on attorney-client and executive privilege ring hollow in this context. The Obama administration’s supposed commitment to DOJ transparency has applied much more to Bush-era legal work than to Obama-era legal work. That looks bad and it is bad. I believe the President has a prerogative to use all of the constitutional tools at his disposal in fighting against a Congress that he believes is unduly intransigent. But especially in an area like this that is hard for courts to review and that raises no issue of classified information, Congress and the American people should be given an opportunity to judge the validity of the President’s legal arguments.

FURTHER UPDATE:  As John Elwood reports, there is an OLC opinion and it has just been posted on the DOJ website.

Former OLC nominee Dawn Johnsen objects to Eric Posner’s suggestion that Harold Koh and John Yoo are “peas in a pod” for their aggressive, politically motivated legal interpretations (albeit peas of differing ideological stripes). In her view, both Yoo and Koh are wrong, but in meaningfully different ways.

Yoo’s infamous memos on torture and other subjects, you’ll recall, made sweeping claims of presidential authority to act contrary to clear federal statutory commands, based on a radical view of the president’s constitutional war powers. This view denies Congress the ultimate authority to prohibit torture, no matter how clearly defined, where the president as commander-in-chief deems it warranted. More, Yoo’s legal claims—and the Bush administration’s executive actions—were kept hidden from the public and ultimately were revealed only through government leaks.

That extreme and secret claim of a sweeping authority to violate statutes simply has nothing in common with the Obama administration’s very public engagement on the meaning of a controversial provision of the War Powers Resolution: its requirement that, after 60 days, the president must terminate military action not specifically authorized by Congress. Since its enactment, interpretation of the “60-day clock” has been the subject of repeated public debate between the executive branch and Congress. Here, Obama is openly joining that debate, but expressly is not challenging Congress’ legislative authority to establish limits on his conduct of war.

President Nixon vetoed the War Powers Resolution because he believed the 60-day clock interfered with the president’s war powers. Congress disagreed and overrode his veto, and a published 1980 OLC opinion (correctly) found the 60-day clock constitutional. The Obama administration asserts that the 1980 memorandum remains in force and that it is not challenging the constitutionality of the War Powers Resolution. By contrast, in one of his memos, Yoo baldly states—without authority or any reference to the contrary 1980 OLC opinion—that neither this nor any other statute “can place any limits on the President’s determinations as to any terrorist threat, the amount of military force to be used in response, or the method, timing, and nature of the response.”

One key point for Johnsen are that the Obama Administration’s interpretation of “hostilities” is public, whereas the Bush Administration’s positions were secret. Yet the Obama Administration’s rejection of OLC’s conclusions (to which Johnsen also objects) is public only because of diligent reporting and helpful leaks.

POST-SCRIPT: It seems to me that the Yoo-Koh comparison has the most force is with regard to statutory interpretation, and Johnsen does not address this point. John Yoo provided the administration with a highly questionable but politically desirable interpretation of what constitutes “torture.” Harold Koh provided the administration with a highly questionable but politically desirable interpretation of what constitutes “hostilities.”

That is about how long it has been since DOJ’s Office of Legal Counsel had a confirmed head.  Jack Goldsmith resigned effective July 30, 2004.   But the Senate has just confirmed Virginia Seitz by voice vote to be Assistant Attorney General for the Office, after a relatively “speedy” confirmation process lasting just under six months.*  It may take a little bit to get her sworn in, but now we see the light at the end of the proverbial tunnel.

Best wishes to Virginia in her new post.  Godspeed!

*Yes, I’m kidding.  That isn’t quick, except perhaps by the standards of modern divided Washington.

Glenn Greenwald draws an interesting, if unfavorable, comparison between the actions of lawyers in Department of Justice under President Bush and President Obama.

Bush decided to reject the legal conclusions of his top lawyers and ordered the NSA eavesdropping program to continue anyway, even though he had been told it was illegal (like Obama now, Bush pointed to the fact that his own White House counsel (Gonzales), along with Dick Cheney’s top lawyer, David Addington, agreed the NSA program was legal). In response, Ashcroft, Comey, Goldsmith, and FBI Director Robert Mueller all threatened to resign en masse if Bush continued with this illegal spying, and Bush — wanting to avoid that kind of scandal in an election year — agreed to “re-fashion” the program into something those DOJ lawyers could approve (the “re-fashioned” program was the still-illegal NSA program revealed in 2005 by The New York Times; to date, we still do not know what Bush was doing before that that was so illegal as to prompt resignation threats from these right-wing lawyers).

That George Bush would knowingly order an eavesdropping program to continue which his own top lawyers were telling him was illegal was, of course, a major controversy, at least in many progressive circles. Now we have Barack Obama not merely eavesdropping in a way that his own top lawyers are telling him is illegal, but waging war in that manner (though, notably, there is no indication that these Obama lawyers have the situational integrity those Bush lawyers had [and which Archibald Cox, Eliot Richardson and William Ruckelshaus had before them] by threatening to resign if the lawlessness continues).

Greenwald also ponders why the Obama Administration never went to Congress. During the Bush Administration, the White House did not seek Congressional approval of some anti-terror initiatives because some within the Administration — most notably, Dick Cheney — wished to establish the principle that the Executive could act unilaterally to address national security concerns. This approach was unwise, but it is easy to understand. But what is the explanation here? It is hard to see what larger legal principle the Administration is trying to vindicate.

UPDATE: What principle is the Administration vindicating? One possibility, suggested in the comments, is the principle that approval by a multinational entity (the UN, NATO, etc.) should be sufficient to authorize U.S. military action. One data point in support of this theory is the line of division within the Administration: attorneys at Justice and Defense versus Koh at State.

Jack Balkin blogs on the Obama Administration’s decision to overrule OLC at Balkinization.  He compares the Obama Administration’s actions with those of the Bush Administration. The Bush White House undermined OLC’s role by cocooning those who were working on certain questions and short-circuiting intra- and interagency rule. Through this process, the White House got the OLC opinions it wanted on key questions related to the War on Terror. This was only the Bush Administration practice for a short period, however. Beginning with Jack Goldsmith’s tenure, OLC began to assume a more traditional role and, as a consequence, OLC issued some opinions that were definitely contrary to what the White House wanted to hear. In one infamous case, OLC concluded that prior opinions approving the constitutionality of a terrorist surveillance program were in error. Confronted with this information (and the threat of resignations from within the Justice Department), President Bush acquiesced, and the program was altered to conform with OLC’s understanding of the relevant constitutional constraints.

The Obama Administration has not repeated the Bush Administration’s early mistakes with OLC, but it is now clear it is making errors of its own. As John Elwood notes below, this is not the first time this Administration has overruled OLC when the office did not reach a desired conclusion. The Administration bypassed OLC’s determination that Congress could not grant full congressional representation to the District of Columbia absent a constitutional amendment.

Writes Balkin:

Obama’s strategy, like Bush’s, also short circuits the normal process of seeking opinions from the OLC; it simply does so in a different way.

By bypassing a careful set of procedures designed to produce careful legal opinions, George W. Bush was able to say that he was following the OLC, or at least a rump of the OLC. But he was effectively undermining the OLC’s function as an honest broker of executive branch opinions. Obama also bypassed this same careful set of procedures by canvassing various lawyers until he found opinions he liked better than the OLC’s. If one is disturbed by Bush’s misuse of the process for vetting legal questions, one should be equally disturbed by Obama’s irregular procedures.

Here is how Balkin concludes:

The fact that Obama is a former professor of constitutional law does not justify his scuttling practices that are designed, over long periods of time, to improve legal deliberations and help ensure that presidents conform to the law. Former professors of constitutional law, like current ones, have been known to disagree among themselves about what the law requires; they have even been known to make mistakes and engage in serious misjudgments.

The fact that Obama may think he is smarter and more learned than George W. Bush also does not justify his practice. The next President, or the one after that, may think themselves smarter than Obama. They will certainly find a group of able lawyers somewhere in their Administration to tell them so. Obama came into office promising to reform the abuses of the Bush Administration and its manipulation of the OLC. The best way to do that is not to create entirely new abuses of one’s own.

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.

The NYT‘s Charlie Savage has confirmed that the President overruled the Department of Justice Office of Legal Counsel’s opinion of what constitutes “hostilities” under the War Powers Resolution, preferring instead the conclusion reached by the White House Counsel’s office and the State Department’s Harold Koh.  In another story earlier this week on the Administration’s explanation to Congress that U.S. participation in NATO operations in Libya do not constitute “hostilities” under the law, Savage reported that White House Counsel Bob Bauer refused to say whether the Administration’s position was based upon an OLC opinion.  Now, however, Savage is able to report that the Administration rejected the legal position of both OLC and that of Defense Department general counsel Jeh C. Johnson.

Presidents have the legal authority to override the legal conclusions of the Office of Legal Counsel and to act in a manner that is contrary to its advice, but it is extraordinarily rare for that to happen. Under normal circumstances, the office’s interpretation of the law is legally binding on the executive branch. . . .

The administration followed an unusual process in developing its position. Traditionally, the Office of Legal Counsel solicits views from different agencies and then decides what the best interpretation of the law is. The attorney general or the president can overrule its views, but rarely do.

In this case, however, [acting OLC head Caroline] Krass was asked to submit the Office of Legal Counsel’s thoughts in a less formal way to the White House, along with the views of lawyers at other agencies. After several meetings and phone calls, the rival legal analyses were submitted to Mr. Obama, who is a constitutional lawyer, and he made the decision.

A senior administration official, who spoke on the condition of anonymity to talk about the internal deliberations, said the process was “legitimate” because “everyone knew at the end of the day this was a decision the president had to make” and the competing views were given a full airing before Mr. Obama.

The story quotes former Clinton OLC head Walter Dellinger saying the Administration’s legal conclusion was “defensible” despite the problematic decision-making process.  Former Bush OLC head Jack Goldsmith, on the other hand, finds the Administration’s position “aggressive” and unpersuasive.

Yesterday, the White House finally sent to the Senate the long-rumored nomination of Virginia Seitz to be Assistant Attorney General.  I’ve discussed the (then-rumored) nomination here.  

In keeping with tradition, the nomination does not specify that Seitz would be AAG for the Office of Legal Counsel. If I remember correctly, that is because the legislation creating most of the Justice Department’s AAG spots doesn’t specify that they’ll head a particular office. As a technical matter, this might permit the Attorney General to reassign one AAG to head another DOJ component (so long as the legislation creating that AAG spot is similarly general). Thus (for example), the AG could switch the confirmed AAG for the Criminal Division and the confirmed AAG for OLC without renominating either of them. But that strikes me as extraordinarily unlikely to happen nowadays, since it would make the relevant Senate committees so unhappy.

UPDATE:  Thanks to a reader who was ready with the authorities, here is confirmation of my recollection that AAGs can be moved around.  Ted Olson, when he was head of OLC, signed an opinion concluding that “the Attorney General may reassign Assistant Attorneys General . . . from one unit to another without resubmitting their names to Congress.”  Historical Use of Assistant Attorneys General, 7 Op. O.L.C. 165, 165 (Oct. 27, 1983).  The opinion said that the Office had “identified at least ten occasions on which an Attorney General ha[d] made such transfers,” including Robert Jackson (Tax to Antitrust), Tom Clark (Antitrust to Criminal Division), and David Bazelon (Lands, now ENRD, to Office of Alien Property).  Id. at 165-66.  This reading seems to be confirmed by 28  U.S.C. § 507A(a), added, in 2006, which provides that “[o]f the [eleven] Assistant Attorneys General appointed under 28 [ U.S.C. §] 506, one shall serve, upon the designation of the President, as the Assistant Attorney General for National Security.”

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. 

Continue reading ‘OLC’s “Best Practices” In Giving Legal Advice’ »

The Wall Street Journal reports that in January, President Obama will nominate DC’s Virginia Seitz to be Assistant Attorney General for the Office of Legal Counsel.  OLC hasn’t had a confirmed head since July 2004. 

NPR reported back on August 4 that Seitz, who is a respected appellate litigator at Sidley Austin, was the front-runner for that post. And her name had been making the rounds locally for a couple months before that, making this a very long-running trial balloon indeed.

The Journal reports that “[s]everal conservatives contacted Tuesday . . . warned her nomination could run into trouble if Republicans object to her shortage of national-security experience.” National security law has certainly been an increasingly important part of OLC’s docket since 9/11. But while Jack Goldsmith had experience in national security law before coming to OLC, Jay Bybee (who was confirmed in October 2001) did not. (Of course, some critics would say that Bybee’s lack of preexisting experience in the area played a role in the Office’s issuance of national security opinions that have been controversial.)  Before 9/11, OLC heads frequently had no significant pre-existing experience in that area. 

The Journal reports that the Obama Administration will name Caroline Krass as the Principal Deputy in the Office. That may help to blunt the criticism that Ms. Seitz lacks national security experience: Caroline (who was a classmate of mine in law school) has extensive experience in national security law, and during my tenure at OLC, she was one of the foremost OLC experts in the area.  And she’s worked in national security while in her current position in the White House.

Another member of the Obama Administration’s “beachhead team” is leaving OLC.

About one month after Acting Assistant Attorney General David Barron announced that he was returning to Harvard Law School, Deputy Assistant AG Marty Lederman has announced he’s leaving the Office in August and will return to Georgetown University Law Center this fall.

I understand that Marty has been doing a lot of terrorism-related issues for OLC–particularly matters involving detention of alleged enemy combatants.  In addition, he has signed two opinions, one concluding that two criminal prohibitions created by the Matthew Shepard Hate Crimes Prevention Act are constitutional, and one concluding that provisions of the Ronald Reagan Centennial Commission Act of 2009, which provided that members of Congress would serve as members of the Commission, would raise “constitutional problem[s]” under the Appointments Clause, the Ineligiblility Clause, and the separation of powers.

The latter opinion appears to have provided the basis for one of President Obama’s signing statements, in which he said that members of Congress “will be able to participate only in ceremonial or advisory functions” of the Ronald Reagan Centennial Commission, and not “matters involving the administration of the act, in light of the separation of powers and the Appointments and Ineligibility Clauses of the Constitution.”

Marty signed the second-lowest number of opinions among his cohort of DAAGs, edging out only Jonathan Cedarbaum, the new acting head of OLC (who signed only one opinion as DAAG; two if you count his testimony to Congress on the Virgin Islands’ proposed constitution, which is published on OLC’s website).  But that is likely only a partial measure of Marty’s output.  DAAGs frequently also write opinions that are signed by the AAG or Acting AAG; David Barron signed 9 full-blown opinions by my count, far more than any of the other DAAGs during that time.  But it’s impossible to identify from publicly available materials which additional opinions Marty might have written that David Barron signed.  UPDATED in response to a comment (5:51pm EDT): And yes, it’s a possibility that Marty signed some classified opinions too, although there are many fewer of those than unclassified opinions.

The New York Times reports that David Barron, acting head of the Justice Department’s Office of Legal Counsel, will step down next month to return to Harvard Law School.  Deputy Assistant Attorney General Jonathan Cedarbaum will replace him.  Of note, OLC has not had a Senate-confirmed head in six years.  More at Main Justice.