Dense legal memos from the Justice Department’s Office of Legal Counsel typically don’t command the nation’s collective attention, let alone lend themselves to easily digestible sound bites. So the media coverage and political discussion around an apparent dispute between Robert Mueller and Attorney General William Barr over the impact of OLC opinions on the former special counsel’s investigation of potential obstruction of justice by President Donald Trump has been a bit confusing.
The OLC’s longstanding view has been that federal prosecutors can’t indict a sitting president. Mueller, at his high-profile press event this week, reiterated that his investigators accepted the position that indicting a sitting president “is unconstitutional” and that charging Trump with a crime “was therefore not an option we could consider.”
Democrats want to be able to say that the only reason Trump wasn’t indicted is because he’s the sitting president, that being in the Oval Office put him above the law. But Mueller’s office has been careful to deprive them of a clean way to say that without caveat. And Trump supporters have seized upon the public uncertainty, leaving many Americans with the false belief that Mueller’s report cleared Trump and that it’s time for everyone to move on.
Barr and Mueller issued a carefully worded joint statement this week claiming there was no dispute between the two men over their views on how the OLC’s views on indicting a president shaped the Mueller investigation. But that might be overly diplomatic.
In a highly criticized press conference ahead of the mid-April release of a redacted version of the report, the attorney general said that he’d pushed Mueller on whether the special counsel’s team would have sought an indictment “but for” the OLC opinion.
Mueller, Barr told reporters, “was not saying that but for the OLC opinion, he would have found a crime.”
In fact, what Mueller explained this week and in his report was that, under his interpretation of the OLC’s views and Justice Department policy, he couldn’t even attempt to reach a decision on whether the president committed a crime. They couldn’t open that door at all. Mueller’s team believed that directly suggesting that the president committed crimes that he couldn’t be charged with would be unfair to Trump.
If they accused Trump of committing a crime without charging him, he wouldn’t have the ability to clear his name in court, Mueller’s team wrote. “[A] prosecutor’s judgement that crimes were committed, but that no charges will be brought, affords no such adversarial opportunity for public name-clearing before an impartial adjudicator,” Mueller’s team wrote.
Following DOJ policy, Mueller said in his prepared remarks, his team determined they “would not reach a determination ― one way or the other ― about whether the President committed a crime.” He said his office would not comment “on any other conclusions or hypotheticals” about Trump.
Barr evidently had a different view. After Mueller’s press event, the attorney general told CBS that he did think that Mueller could have reached a conclusion and that it was then his job to step in and reach that conclusion because the special counsel’s team had not.
“He could’ve reached a conclusion,” Barr said. “The [OLC] opinion says you cannot indict a president while he is in office but he could’ve reached a decision as to whether it was criminal activity.” Barr’s comments did not grapple with the role of Justice Department policy on speaking about uncharged conduct.
Mueller relied upon one OLC opinion from 1973 and another OLC opinion from 2000. The 2000 opinion argued that an “indictment or criminal prosecution of a sitting President would unconstitutionally undermine the capacity of the executive branch to perform its constitutionally assigned functions.” (A separate Justice Department memo, authored by the office of then-Independent Counsel Ken Starr and unearthed by The New York Times, argued that a president could, in fact, be indicted for “serious criminal acts that are not part of, and are contrary to, the president’s official duties.”)
Democratic presidential hopeful Elizabeth Warren said on Friday that, as president, she’d pick an OLC chief who would reverse the Justice Department’s view that a sitting president can’t be indicted.
The dispute over the role of the OLC opinions on the Mueller probe is focusing attention on the quasi-judicial role the office plays within the executive branch. Sometimes considered the president’s law firm, the OLC offers legal assessments for the White House and settles legal disputes between federal agencies. It signed off on President Barack Obama’s use of drones against terrorists with U.S. citizenship overseas and President George W. Bush’s use of “enhanced interrogation techniques.” More recently, it opined that Matthew Whitaker’s stint as acting attorney general (after Jeff Sessions was forced to resign) was legit.
The OLC is playing an essential role in the Trump era, providing an internal legal review of many of the administration’s actions. But a shift in OLC practices that accelerated during the Obama administration is shielding much of the office’s work from the public.
In the wake of Watergate, President Jimmy Carter’s administration used the OLC legal review process to rebuild public trust in the executive branch. By 1978, the office was issuing 380 formal opinions per year. But these days, the OLC “is no longer the decider,” former OLC attorney Daphna Renan wrote in a 2017 paper. Its “opinion-writing institution is withering,” Renan argued, and it “often engages in an informal, sometimes more preliminary form of legal analysis” instead of preparing formal legal memos.
The decrease in formal memos is reflected in records listing unclassified OLC opinions that HuffPost obtained through Freedom of Information Act requests. In 2009, the first year of the Obama administration, the OLC issued 28 unclassified opinions. In 2014, the OLC offered just three. The office issued 11 opinions in 2017 and five in roughly the first half of 2018.
And though the lists the OLC provided include only unclassified opinions, the government still withheld the names of many of the opinions in their entirety. (Sometimes just the fact that a memo was authored is newsworthy, even when the ultimate decision isn’t clear. HuffPost reported in 2013 that the OLC prepared a memo on the legality of manufacturing a high-value platinum coin to avert a fight with Congress over raising the debt ceiling.)
The opaque nature of the OLC’s work in recent years worries government transparency advocates. Noah Bookbinder, the executive director of Citizens for Responsibility and Ethics in Washington, previously told HuffPost that it seemed particularly important for the public to have a view into the OLC’s work during the Trump administration because of Trump’s “inclination to take actions that are really pushing the envelope legally” and willingness to “make decisions secretly and without a lot of public deliberation, or interest in hearing opposing viewpoints.”
The extent of the OLC’s involvement in any recent discussions about whether a sitting president can be indicted is unclear. HuffPost filed two FOIA requests last July seeking records about any such OLC discussions since the beginning of the Trump administration. The office hasn’t responded in substance.