The media has reported that the Department of Justice (DOJ) had “no comment” on whether its Office of Legal Counsel (OLC) conducted any review of the recent executive actions released by the Administration; During his confirmation hearing, Senator Sessions repeatedly testified that political influence will not affect processes at DOJ if he is confirmed as Attorney General

 

In a letter to Senator Sessions, the lawmakers asked about his commitment to OLC review of all future executive actions and the public disclosure of OLC written legal opinions to the president


WASHINGTON, DC – Following recent executive actions, U.S. Senators Amy Klobuchar (D-MN), Dick Durbin (D-IL), Sheldon Whitehouse (D-RI), Al Franken (D-MN), Chris Coons (D-DE), and Richard Blumenthal (D-CT), members of the Senate Judiciary Committee, have asked Senator Jeff Sessions (R-AL), nominee for Attorney General, to clarify his position on the Department of Justice’s (DOJ) Office of Legal Counsel (OLC) and its review of the Administration’s executive orders. The media has reported that DOJ had “no comment” on whether its OLC conducted any review of the recent executive actions released by the Administration. During his confirmation hearing, Senator Sessions repeatedly testified that political influence will not affect processes at DOJ if he is confirmed as Attorney General. In a letter to Senator Sessions, the lawmakers asked about his commitment to OLC review of all future executive actions and the public disclosure of OLC written legal opinions to the president.

“As you know, the Department of Justice is responsible for providing legal advice to the White House on both questions of constitutional law and the limits of Executive power. It has been longstanding practice under administrations of both parties that the Department’s Office of Legal Counsel (OLC) review all Executive Orders for legality before they are issued by the President,” the senators wrote. “We are concerned that OLC may not have reviewed the recent executive actions released by the Administration. The news media has reported that the Department had “no comment” on whether OLC conducted any review. Similar reports suggest that federal agencies received little to no advance warning about the Administration’s recent executive actions.”

“If you are confirmed as Attorney General, will you commit to OLC review of all future executive actions before they are issued by the President? If you are confirmed as Attorney General, will you commit to OLC review of already released executive actions if you find that OLC did not sufficiently review these actions prior to their release?,” the senators continued. “If you are confirmed, will OLC follow a presumption in favor of timely publication of its written legal opinions for prior and future executive actions?”

Earlier today, Klobuchar, Durbin, Whitehouse, Franken, Coons, Blumenthal and other members of the Senate Judiciary Committee sent a letter to the Acting Attorney General asking whether Department of Justice lawyers charged with ensuring that the President is following the law have actually reviewed the executive actions and memoranda that the President has issued.

 
Today, Acting Attorney General Sally Yates ordered Justice Department attorneys not to defend President Trump’s executive order on immigration in court.

The full text of the lawmakers’ letter is below:

Dear Senator Sessions:

As you know, the Department of Justice is responsible for providing legal advice to the White House on both questions of constitutional law and the limits of Executive power. It has been longstanding practice under administrations of both parties that the Department’s Office of Legal Counsel (OLC) review all Executive Orders for legality before they are issued by the President. 

We are concerned that OLC may not have reviewed the recent executive actions released by the Administration. The news media has reported that the Department had “no comment” on whether OLC conducted any review. Similar reports suggest that federal agencies received little to no advance warning about the Administration’s recent executive actions.

Members of both parties have criticized the recent executive orders due to vague language and possible conflicts with legal precedents. Indeed, several emergency stays issued by federal courts this weekend questioned the legality of a recent Executive Order seeking to keep many refugees, travelers and legal residents from entering our country. Close review of proposed executive actions by career attorneys at OLC might have prevented this serious legal conflict.

Federal rules and practices require that the Department provide legal counsel to the President on proposed administrative actions. These requirements are critical because OLC is supposed to provide neutral legal advice to the White House devoid of any political influence. Review by OLC should guard against excessive claims of executive authority. It also helps ensure that affected agencies are consulted and that the administration adheres to the rule of law.

During your confirmation hearing, you repeatedly testified that political influence will not affect processes at the Department if you are confirmed as Attorney General. While your nomination is pending before the Senate Judiciary Committee, we respectfully request that you answer the following questions regarding your position on OLC and its review of the Administration’s executive orders.

  • If you are confirmed as Attorney General, will you commit to OLC review of all future executive actions before they are issued by the President?
  • If you are confirmed as Attorney General, will you commit to OLC review of already released executive actions if you find that OLC did not sufficiently review these actions prior to their release?
  • Traditionally, OLC publicly discloses its written legal opinions to the President. To date, no OLC legal opinions for the recent executive actions have been released. If you are confirmed, will OLC follow a presumption in favor of timely publication of its written legal opinions for prior and future executive actions?

Thank you for your attention to these questions.

Sincerely,

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