When I first talked to Gwen Levi in April 2021, she was scared.\u00a0 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\u2019s final days (\u201cTrump memo\u201d) recommended returning people like her to prison after the health emergency ended. Advocates for prisoners urged the memo\u2019s author, the Justice Department\u2019s Office of Legal Counsel (OLC), to rescind it. The Biden administration, however, would not act.<\/p>\n
In June, Levi\u2019s worst fear was realized. While in a computer class, she missed a call from a corrections official\u2014a violation of her release terms\u2014and was sent to D.C. Jail to await a transfer to Federal Bureau of Prisons\u2019 (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. \u201cThere\u2019s no question she was in class,\u201d her lawyer told me. \u201cBecause she could have been robbing a bank, they\u2019re going to treat her as if she was robbing a bank.\u201d<\/p>\n
After Levi\u2019s 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\u2019t undo Trump\u2019s policy were vindicated by an argument that looked less like legal reasoning than the exercise of raw power.<\/p>\n
To understand how the OLC could perform this public about-face, I will examine this influential Justice Department agency\u2014one that can\u2019t decide whether it serves the current president, the executive branch writ large, the American people, or some combination of the above. Though the OLC \u201cexercises the Attorney General\u2019s authority . . . to advise the President and executive agencies,\u201d its role is not just advisory. The office says its decisions, which appear inconsistently in the public record, are \u201ccontrolling on questions of law within the Executive Branch.\u201d Yet, the OLC\u2019s decisions may be overruled by the president even though, in this game of jurisprudential chicken, presidents are reluctant to overrule the OLC.<\/p>\n
The OLC\u2019s 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\u2019s 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\u2019s client in the Trump memo controversy. As the OLC\u2019s 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\u2014fear of being torn from the lives they built outside of prison in the past two years\u2014was President Biden himself. The Note concludes by contemplating the consequences of revealing the president as the OLC\u2019s client for the executive branch and agency law.<\/p>\n
<\/p>\n