Letter to Senator Jeff Sessions - Clarify Position on DOJ's Office of Legal Counsel and Its Review of the Administration's Executive Orders

Letter

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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