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The Post on OLC:

Today's Washington Post has an editorial about the DoJ's Office of Legal Counsel. Here's is how it begins:

Since its creation in the early 20th century, the Justice Department's Office of Legal Counsel has been considered the legal conscience of the executive branch, rendering judgments to presidents and executive agencies about what the law allows. The OLC responds to executive branch requests for clarifications on everything from how to determine annual leave for federal employees to whether treaty provisions are constitutional and how torture should be defined. Its opinions are binding on the executive and essentially carry the weight of law. Past OLC opinions continue to have force when a new administration begins, just as Supreme Court decisions enjoy the force of law long after the justices who made them have left the bench.

Unfortunately, during the Bush administration, the OLC has become known as a partisan enabler of legally and ethically questionable presidential policies, including those involving the use of torture. The OLC's decisions have eroded the legitimacy of the office and given legal cover to behavior that most Americans -- and most lawyers -- regard as improper.

AntonK (mail):
As usual, the Washington Post poses as an intellectually serious newspaper. And as usual, all they can muster is the word "torture" over and over again. Torture is just so yesterday...

How boring...
3.11.2008 10:17pm
Jagermeister:
Here's a serious question for the lawyers. How does acting as advice counsel (where according to the Post, the duty is to give advice of the law) differ from acting as defense counsel (where according to previous posters, the duty is to do what ever is necessary to get the defendant acquitted)?

It seems like in one case the expectation is uphold the law, and in the other, give the best possible interpretation for the client. What differentiates the two?

I have specific examples in mind from previous threads, but I'll withhold them for now, to avoid biasing any answers.
3.11.2008 10:34pm
Nathan_M (mail):

How does acting as advice counsel (where according to the Post, the duty is to give advice of the law) differ from acting as defense counsel (where according to previous posters, the duty is to do what ever is necessary to get the defendant acquitted)?

When a lawyer is acting as advice counsel (a term I love, although I'd be inclined to say giving an opinion) she ought to give her client as accurate and unbiased account of the law as she can.

If she is acting as counsel in a legal dispute, she ought to make any non-frivolous argument she can that she thinks will help her client achieve a good outcome.

To put things more concretely, suppose a client wants to get change jobs in violation of a restrictive covenant in an employment contract, and asks a lawyer for an opinion about it. The lawyer should look at all the reasons why it might be unenforceable, why it might be enforceable, assess how strong the relative arguments are, and predict as best she can what would happen if the client switched jobs. Her goal is to inform, not to persuade.

If the client then switches jobs, and his former employer sues him, the lawyer's job then switches to arguing in favour of her client's position. Now she ought to argue as forcefully as she can why the provision is invalid.

To specifically answer the question, what differentiates the two is that in the first role the lawyer's job is (basically) to predict what a court will do. In the second role her job is to convince a court to do something.
3.11.2008 11:35pm
Dilan Esper (mail) (www):
I'd tend to be the type of person who one would expect to be outraged by Bush's politicization of OLC (because I think that the Bush torture and wiretapping policies, among other things, are outrageous). And yet I am not.

The truth is that OLC probably had an inflated view of itself in the past. Its pronouncements do not have the force of law, any more than any lawyer's advice to his or her client has the force of law.

Of course, I want OLC to give independent advice. But just as lawyers have to resist client pressures to give impartial advice and sometimes fail to do so, the OLC will give in to pressure from its client.

The mistake is forgetting that, as Chief Justice Marshall said, it is entirely the province of the judiciary to say what the law is. Indeed, the critics of the Bush Administration who criticize the politicization of OLC are, in a sense, reading from the same script as the Bush Administration itself, assuming that the executive branch has legislative and judicial powers, allowing it to say what the law is rather than simply obeying it.

Obviously, we want the OLC to give an honest opinion when it is asked for legal advice by the executive branch. But if we just think of it as the legal counsel for the executive branch instead of the law unto itself, we will be less upset when its opinion is wrong or improperly influenced by politics. If the President wants a binding legal interpretation on something, as it says in the Federal Rules of Civil Procedure, the District Courts are always open.
3.11.2008 11:47pm
Attila (Pillage Idiot) (mail) (www):
They probably recycled that editorial from the Meese era, substituting in the word "torture." OLC is always going to end up on the cutting edge of the law, and in these times, that cutting edge is more controversial than ever. Welcome to the first decade of the 21st century.
3.12.2008 12:29am
JonC:
The mistake is forgetting that, as Chief Justice Marshall said, it is entirely the province of the judiciary to say what the law is.

Marshall said "emphatically," not "entirely." There's a difference. Setting aside the current OLC controversy, it's completely appropriate for the executive and the legislature to exercise their own judgment with respect to their own constitutional and legal obligations. It really couldn't be any other way.


If the President wants a binding legal interpretation on something, as it says in the Federal Rules of Civil Procedure, the District Courts are always open.


So rather than examine for itself what the law says, the executive should turn to the courts for advisory opinions?
3.12.2008 12:37am
AnonLawStudent:
Seconds to JonC. It's key to remember that Congress and the President may have entirely reasonable but significant differences regarding the limits of their respective powers. Judicial review may never occur unless the President disobeys Congress, particularly when the "law" in question impinges only the powers of the President.

Jager: There is an important clarification and to the role of advice counsel which depends on the nature of the question asked. The client can ask what his options are, and/or what action he should undertake. A whole different animal exists if, desiring to undertake action X, the client asks if X is legal, and if not, how far can he go toward X without running afoul of the law. Both types of questions are perfectly legitimate, but the nature of the response will differ significantly. It's a distinction that, IMHO, far too few have analyzed in recent coverage of the OLC.
3.12.2008 1:01am
PDXLawyer (mail):
AnonLawStudent makes a good point. As a lawyer, I see it as my job to be an "enabler" of my clients, so I don't agree with the Post that the OLC being an "enabler" was a bad thing.

Of course, I won't "enable" conduct that is, in my judgment, criminal. And, though most of my clients (mostly small business people) appreciate my pointing out possible ethical issues that they may have overlooked, OLC faced a different situation. Presidents have many, many advisors on ethics and policy - they don't need lawyers in this area. What Presidents need are lawyers who will do their best to locate the *exact* bounds of the law, and it appears that this is what the OLC did.

Lawyers and law are not the only sources of wisdom and right. The basic problems may be that the OLC, or the Washington Post, has forgotten this.
3.12.2008 5:26am
pluribus:
AntonK:

Torture is just so yesterday...
How boring...

Somehow I doubt that the torturees find it boring.
3.12.2008 10:22am
pluribus:
Dilan Esper:

The mistake is forgetting that, as Chief Justice Marshall said, it is entirely the province of the judiciary to say what the law is.

It is entirely the province of the lawyer to tell the client what the law is. That, in fact, is what the lawyer bills for. Yes, the judiciary may not agree with the lawyer all the time, but a good lawyer will be overruled by the judiciary less often than a bad one. The client would find it burdensome to go to the judiciary every time he had a legal question he or she wanted answered.
3.12.2008 10:34am
pluribus:
Dilan Esper

If the President wants a binding legal interpretation on something, as it says in the Federal Rules of Civil Procedure, the District Courts are always open.

Whether closed or open, the courts do not give advisory opinions. They decide cases and controversies.
3.12.2008 10:38am
Dilan Esper (mail) (www):
You guys don't seem to know that if there is a threatened violation of the law (including by the President or some other member of the executive branch), the District Courts are empowered under Article III and federal statute to grant a declaratory judgment, and it is not an advisory opinion.

I've gotten into this argument before. It is amazing how many people have no idea what the doctrine prohibiting "advisory opinions" actually bars.
3.12.2008 3:21pm
AnonLawStudent:
Dilan:

It takes far more than "a threatened violation of the law" to create Art. III standing, including for purposes of seeking declaratory judgment. Off the top of my head, may I suggest that you review, e.g., Steffel v. Thompson, 415 U.S. 452, 475 (1974) (declaratory relief is available only when the "plaintiff demonstrates a genuine threat of enforcement"); Younger v. Harris, 401 U.S. 37, 42 (1971) ("[P]ersons having no fears of state prosecution except those that are imaginary or speculative are not . . . appropriate plaintiffs," with "imaginary and speculative" broadly defined); Poe v. Ullman, 367 U.S. 497, 508 (1961) ("immediacy . . . is an indispensable condition of constitutional adjudication"). Only in the First Amendment context do federal courts reduce the requirements for Art. III standing. See Virginia v. Am. Booksellers Ass'n, 484 U.S. 383, 392-93 (1988) (finding standing to challenge statute when plaintiff booksellers were target of statute, despite lack of prosecutorial action). For this reason, it is necessary for the President to actually violate a "law" which impinges only upon his official powers in order to create standing - and obtain judicial review - via a harmed third party. Nor is this understanding novel to the current administration. See John N. Pomeroy, An Introduction to the Constitutional Law of the United States 444-45 (1868).
3.12.2008 4:55pm
Jagermeister:
Thanks for what answers there were to my question. I had kinda hoped that this thread would take off, since the issue of OLC's "pushing the limits" vs. cautioning the executive would seem especially applicable in light of Yoo's opinions. But, I guess there was more fun to be had over at the Spitzer-Clinton thread. Oh, well. I tried.
3.12.2008 5:24pm
Dilan Esper (mail) (www):
Anon:

You are being quite silly and arguing an untenable position. If the President or the executive branch says "we're going to violate this law, and we want a declaration that we are entitled to", that clearly constitutes a genuine, nonspeculative threat sufficient to confer standing.

It's precisely because often times government lawyers don't admit this in declaratory and injunctive suits brought by private parties that this issue gets litigated. That was the case in the cases you mentioned. But if the government admits it, Article III and the DJA are clearly satisfied.
3.12.2008 7:17pm
Contrarian:
I'm not sure from where "the conscience of the Justice Department" meme that the WaPo repeats came. Rehnquist rejected such a formulation when he was the head of OLC, eschewing a European ministry of justice model for the office in favor of common law adversarialism.

Plus, I think it too far-fetched to believe that the CIA would have waited for legal advice before interrogating/torturing high-ranking al Qaeda types. OLC was probably not advising when it issued the memoranda. It was probably engaging in zealous advocacy in defense of the CIA agents. That would explain the tone of the "advice." And since the ethical duties that apply in the settings differ, it suggests that the OLC attorneys didn't shirk their professional responsibilities.
3.12.2008 7:58pm