Trump Sidelines Justice Dept. Legal Office, Eroding Another Check on His Power

New York Times

04-04-2025

The Justice Department's Office of Legal Counsel has traditionally been a powerful guardrail in American government.
It has issued interpretations of the law that bind agencies across the executive branch, decided which proposed policies were legally permissible or out of bounds and approved draft executive orders before they went to presidents to be signed.
But in President Trump's second term so far, the office has largely been sidelined. As Mr. Trump issues policy after policy pushing legal limits and asserting an expansive view of his power, the White House has undercut its role as a gatekeeper — delaying giving it senior leadership and weakening its ability to impose quality control over executive orders.
Its diminished voice is shifting the balance of legal power in the executive branch toward the White House, speeding up Mr. Trump's ability to act but creating mounting difficulties for the Justice Department lawyers who must defend the government in court.
'The Trump administration has cut out the traditional check the Justice Department has played,' said Jack Goldsmith, a Harvard law professor who led the office under the George W. Bush administration. 'O.L.C. being cut out is a piece of a larger strategy designed to ensure that the president can do whatever he wants, without any internal executive branch legal constraints on his will.'
Two and a half months into his administration, Mr. Trump has neither submitted a nominee to be the office's Senate-confirmed leader nor named an acting assistant attorney general. This week, after being asked to comment for this article, the department announced that he intended to nominate T. Elliot Gaiser, 35, the Ohio solicitor general, for the position.
Breaking with tradition, the Trump transition team did not have the dozens of executive orders he signed in his first days in office vetted by the office, according to current and former officials. Many have contributed to what is now more than four dozen restraining orders and injunctions by courts blocking administration actions.
And while the administration has since started allowing the office to review draft executive orders, that consultation is far more limited than in the past, according to people familiar with the process.
Traditionally, the office traded versions back and forth until it was satisfied with a draft's form and legality, then issued a memo approving the final text. Now, they said, it typically has an opportunity to see a version and provide comments for the White House to consider, but it does not remain involved to the end and decide that an order is ready for the president.
In another sign of O.L.C.'s reduced clout, Mr. Trump has taken a series of actions and made claims that contradict or raise tensions with the office's opinions. The topics involve birthright citizenship, blocking spending authorized by Congress, migrants' right to seek asylum, Supreme Court approval for the existence of independent agencies, a president's use of an autopen to sign documents and White House jurisdiction over the Smithsonian Institution.
Critics of executive overreach have long criticized the Office of Legal Counsel as too permissive. But Professor Goldsmith said it had nevertheless served as an important internal check. He cited its culture of serious legal analysis and, in contrast to lawyers based in the White House, its literal distance from the political and policymaking vortex of the Oval Office.
The White House press office did not respond to a request for comment. The Justice Department provided a statement from Emil Bove III, a former criminal defense lawyer for Mr. Trump who is now a top official at the department.
'The Office of Legal Counsel plays a crucial role in the D.O.J.'s day-to-day functions, engages with the White House and other administration partners on a regular basis and routinely reviews President Trump's executive orders,' he said. 'Any suggestion to the contrary is false.'
Most of the office consists of career lawyers who stayed on after its previous leader stepped down at the end of the Biden administration. The Trump team has been slow to fill that vacuum.
On Jan. 27, it installed Lanora C. Pettit, a 2010 graduate of the University of Virginia law school who had worked for the Texas solicitor general, as a politically appointed deputy. The next month, it added a second deputy, M. Scott Proctor, a 2017 graduate of Harvard Law and a former clerk to Justice Clarence Thomas.
Neither was given the higher-ranking title of principal deputy, but Ms. Pettit is the office's supervising official in the absence of anyone more senior.
After Ms. Pettit's arrival, the White House began letting O.L.C. review draft executive orders, the department said, while emphasizing that the office was not legally required to issue approval memos and insisting that the absence of those memos did not mean drafts were not being reviewed.
But the people familiar with the process, who spoke on the condition of anonymity to discuss a sensitive internal process, noted that 'reviewed' is very different from 'approved.'
Several Office of Legal Counsel veterans from both parties expressed doubts that it could have approved several recent directives — like vituperative orders seeking to damage law firms that have employed or represented people Mr. Trump dislikes. Judges have partly blocked three of those.
When past administrations have taken legally controversial actions, the White House has sometimes made public O.L.C. memos that approved the steps. Such moves aim to explain the legal rationales and show that they were not concocted after the fact in an attempt to justify a decision that was actually based on a president's mere whim and raw will to exercise power.
But the Office of Legal Counsel has been strikingly missing in public debates over aggressive administration efforts to revoke the visas of foreign students; fire officials in defiance of job protections against arbitrary removal; refuse to spend funds appropriated by Congress; dismantle agencies; and deport people without due process, among others.
To date, the administration has published one memo from the current Office of Legal Counsel, an opinion by Ms. Pettit in mid-March saying that Mr. Trump could designate acting members of two foreign-assistance foundations after he fired their boards.
In the past, the office has also performed another quality-control function: Checking factual statements in draft orders and insisting upon solid evidence supporting any material claims before approving them, veterans of the office say.
Last month, Mr. Trump issued an order invoking the Alien Enemies Act to summarily deport accused members of a Venezuelan gang. That law requires a link to a foreign state, and Mr. Trump said Venezuela's government controls the gang. But U.S. intelligence agencies concluded in February that Venezuela's government does not, in fact, control the gang.
Martin Lederman, a Georgetown law professor who worked at the Office of Legal Counsel during Democratic administrations, said Mr. Trump's directives do not appear to have gone through its approval process.
'When the system is working as it should, any fact or legal justification upon which an order depends is flyspecked by the office, and the president does not sign it until O.L.C. is satisfied that it is well grounded,' he said. 'It's unimaginable that O.L.C. would have approved many of these executive orders for form and legality. It's obvious they didn't.'
The office traces its origins to the Judiciary Act of 1789, which empowers attorneys general to render legal opinions to the president and department heads, and a 1962 directive from President John F. Kennedy, which requires them to review draft executive orders. In the modern era, attorneys general have delegated those functions to the Office of Legal Counsel.
On paper, attorneys general can overrule its conclusions and presidents are not bound to follow its advice. In practice, overriding or disregarding the office's judgments is rare and has been considered politically and legally risky.
The office gained notoriety after the Sept. 11, 2001, attacks when it issued secret memos blessing policies that violated torture and surveillance laws. In 2003, Professor Goldsmith, then the new chief of the Office of Legal Counsel, revoked them. The White House decided to keep a surveillance program going regardless, but backed down after top law enforcement officials threatened to resign.
In 2010, the office issued a 'best practices' memo declaring that its ethos must be to serve the rule of law, not to be a rubber stamp for the White House.
To be sure, Mr. Trump took contentious actions in his first term with the office's approval, like the killing of a top Iranian official and withholding Mr. Trump's tax returns from Congress.
But the head of the office that term, Steven Engel, played a central role among a team of lawyers who did not always sign off on what Mr. Trump or top aides like Stephen Miller, now the top domestic policy official in the White House, wanted to do.
For example, the White House clashed with the Homeland Security Department's top lawyer, John Mitnick, over legal risks from proposals like separating migrant children from parents and transporting migrants to so-called sanctuary cities. He was fired in 2019 and replaced by Chad Mizelle, an ally of Mr. Miller who is now Attorney General Pam Bondi's chief of staff.
And Mr. Trump announced in 2018 that he would issue an executive order ending birthright citizenship for babies born to undocumented parents — but never did. An Office of Legal Counsel opinion from 1995, which remained in place under Mr. Engel, says that would be unconstitutional.
But Mr. Trump issued such an order upon returning to office.
While Mr. Trump was out of power, his allies decided that lawyers, even conservative political appointees, had too often raised legal roadblocks. They made plans to screen out such lawyers in any second term in favor of hiring more permissive, MAGA-style loyalists.
Mr. Miller, who is not a lawyer, ran a legal foundation that recruited lawyers loyal to Mr. Trump's worldview and helped staff the administration. Those include Reed Rubinstein, Mr. Trump's nominee to be the State Department's top lawyer, and Gene P. Hamilton, who works for the White House counsel and former Trump campaign lawyer David Warrington.
In an executive order instructing independent agencies to submit to White House supervision in February, Mr. Trump declared, 'The president and the attorney general's opinions on questions of law are controlling on all employees in the conduct of their official duties.'
That sounded like a standard description of the Office of Legal Counsel, but the office went unmentioned.