President Donald Trump’s legal defense is putting a lot of weight on a brand-new memo from the Office of Legal Counsel. In fact, the memo appears to have been written specifically as part of the president’s defense strategy. That’s noteworthy because the OLC is part of the Department of Justice: It’s supposed to be legally independent, not partisan, and certainly not part of the president’s defense team.
The memo’s reasoning borders on egregious. It concocts a technicality to invalidate the subpoenas issued by the House of Representatives during the impeachment inquiry, making it somehow legitimate for Trump to have obstructed Congress — the basis of one of the articles of impeachment the president faces.
And then there’s the timing of the memo. It’s dated January 19, 2020, two days before the impeachment trial was slated to begin, and one day before Trump’s legal team issued its own memo summarizing his defense. Remarkably, the OLC’s memo was made public in the Trump defense team’s own memo, where it appears as Appendix C (page 126 of the memo PDF, if you’re looking for it).
In other words, the OLC memo was presented to the world as part of Trump’s defense team’s filing. That’s stunning for an office of the Department of Justice that once prided itself on exercising independent judgment from the rest of the department and the executive branch. It’s clear that today’s OLC has been recruited wholesale into Trump’s defense.
To be fair, the OLC claims it gave its advice about the House’s subpoena power months ago. It’s not unheard of for the office to create a document memorializing past advice. And there is nothing wrong with the White House having asked the OLC for advice about the subpoena powers of Congress relative to the executive branch, or for the OLC to have answered.
Yet there is a marked difference between a memo that captures past advice and a memo that appears timed to support a new legal argument being made by Trump’s defense team — namely that Trump cannot have obstructed Congress, because the subpoenas he defied were invalid. At the very least, the OLC has allowed itself to be used by the Trump defense team. Possibly, the OLC has effectively played a key role in setting that team’s legal strategy.
The memo argues that, when some of the House subpoenas were issued, the committees that issued them lacked the constitutional authority to do so because the House hadn’t yet voted on a resolution authorizing an impeachment inquiry. Then, the memo claims, when the House actually did vote to authorize the impeachment inquiry, it didn’t specify that it was retrospectively validating those subpoenas — so they remained unenforceable.
Both parts of this claim are legally weak. And they both go way beyond the power of the executive branch, which has no right to decide how the House can conduct impeachment proceedings, a power the Constitution gives solely to the House.
The House has the unquestioned power to make its own rules — including deciding who issues subpoenas, and how. The OLC memo admits this, then says the House broke its own rules by allowing subpoenas before passing the impeachment resolution. The trouble is that the House rules are silent about when subpoenas may be allowed. The OLC’s theory is based on the idea that the House has always passed a resolution before issuing subpoenas. But that’s simply not true — as the OLC memo acknowledges! In three judicial impeachments in the 1980s, the House impeached without ever first passing an authorizing resolution.
What’s more, to add suspenders to a belt, the subpoenas issued before the resolution was passed also said they were based on legislative oversight, not only impeachment. The OLC memo lamely says that their real purpose was impeachment. But oversight and impeachment are intertwined functions. And the subpoenas were totally legitimate as exercises of oversight of, for example, Trump’s violation of Congressional spending directives on Ukraine.
Even if the House were required to formally authorize impeachment proceedings, it ultimately did so in October 2019. It’s ludicrous to say this resolution didn’t fix the “problem” of no resolution. There is no way the House is required to say explicitly that that the authorization retroactively validates its subpoenas — the whole point of the vote was to validate the ongoing inquiry.
In any case, none of this should matter, because it isn’t up to the executive branch to tell the House how to run its impeachment inquiry – or which subpoenas are valid. An individual person trying to resist a subpoena in court could have argued the subpoena was invalid. But the OLC and Trump lack the constitutional authority to refuse all participation with an impeachment inquiry on the theory that the House didn’t follow its own rules. The proper remedy for such a blanket refusal is impeachment.
All of this matters not only for the impeachment inquiry, but for the OLC, a once-proud government office that strove to say what the law was on its own terms. Sure, the OLC has always favored the executive branch, as in its misguided insistence over the years that the president’s advisors enjoy absolute immunity from Congressional subpoena. And the specter of the Bush-era torture memos and the Obama-era drone memos still hangs over the office, as it should. But in terms of a loss of independence, this memo marks a new low for the OLC. It’s time to give up the myth of the OLC as somehow any different from any other executive branch legal office. Apparently, those working in that office have done so already.
Noah Feldman is a Bloomberg Opinion columnist. He is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. This column does not necessarily reflect the opinion of Minnesota Lawyer, the Bloomberg editorial board or Bloomberg LP and its owners.