Volume 35

The Office of Legal Counsel’s Client is the President: Why the Model Rules Demand a Secretive Agency Identify its Boss

by Justin Wm. Moyer

When I first talked to Gwen Levi in April 2021, she was scared.  A 75-year-old woman released from prison amid the coronavirus pandemic after serving 16 years for a nonviolent drug offense, Levi could be reincarcerated for the most minor violation of her release conditions. Even if she complied with them, a memo issued in the Trump administration’s final days (“Trump memo”) recommended returning people like her to prison after the health emergency ended. Advocates for prisoners urged the memo’s author, the Justice Department’s Office of Legal Counsel (OLC), to rescind it. The Biden administration, however, would not act.

In June, Levi’s worst fear was realized. While in a computer class, she missed a call from a corrections official—a violation of her release terms—and was sent to D.C. Jail to await a transfer to Federal Bureau of Prisons’ (BOP) custody. Though the coronavirus still raged, Levi was headed back to a prison system where 293 inmates and seven staff members have died of Covid. “There’s no question she was in class,” her lawyer told me. “Because she could have been robbing a bank, they’re going to treat her as if she was robbing a bank.”

After Levi’s story went viral, her sentence was reduced to time served, and she was sent home. However, thousands of others released early from prison because of the coronavirus faced reincarceration until the OLC reversed itself in late 2021, endorsing a statutory interpretation rejected by the OLC serving Trump. Those who had struggled to understand why Biden wouldn’t undo Trump’s policy were vindicated by an argument that looked less like legal reasoning than the exercise of raw power.

To understand how the OLC could perform this public about-face, I will examine this influential Justice Department agency—one that can’t decide whether it serves the current president, the executive branch writ large, the American people, or some combination of the above. Though the OLC “exercises the Attorney General’s authority . . . to advise the President and executive agencies,” its role is not just advisory. The office says its decisions, which appear inconsistently in the public record, are “controlling on questions of law within the Executive Branch.” Yet, the OLC’s decisions may be overruled by the president even though, in this game of jurisprudential chicken, presidents are reluctant to overrule the OLC.

The OLC’s confusion over the scope of its authority further obscures the clear purpose of an important office whose operations are already shrouded in secrecy. In this Note, I will argue that 1) the OLC’s client is the current president and 2) the Model Rules of Professional Conduct demand that the OLC acknowledge that its client is the current president. Applying this logic to the present case: President Biden, as head of the executive branch, is the OLC’s client in the Trump memo controversy. As the OLC’s client, President Biden always had the power, without resorting to novel statutory interpretation, to rescind the Trump memo. Thus, the only authority that kept thousands in fear—fear of being torn from the lives they built outside of prison in the past two years—was President Biden himself. The Note concludes by contemplating the consequences of revealing the president as the OLC’s client for the executive branch and agency law.


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