The Department of Justice Office of Legal Counsel (OLC) has issued new guidance saying “Congressional committees participating in an impeachment inquiry may not validly compel executive branch witnesses to testify” unless attorneys for the White House are present. This new guidance not only breaks with past precedent, it’s also directly in opposition to the rules, written by Republicans, on how impeachments should be conducted. According to the OLC, congressional subpoenas to appear before the inquiry “are not legally valid” and cannot be enforced.
Until 2019, the OLC may have been an obscure room issuing what seemed to be esoteric statements that had, and have, no correspondence to actual laws. But as it turns out, the folks in this DOJ Star Chamber set the rules that bind everyone … from doing anything that threatens Donald Trump.
It was blind adherence to the OLC rules that prevented special counsel Robert Mueller from not only failing to indict Trump, but so carefully weasel-wording his statements that they could easily be dismissed. Those same OLC rules are the source of the idea that it would be “unfair” to even suggest that Trump did something wrong, because he wouldn’t have the chance to defend himself because he can’t be charged with anything, so there can’t be a trial, so there can’t be a defense, so it would be … and round and round it goes. Not only has this theory never been upheld in court, whenever it has brushed up against actual law it’s been smacked down hard.
But that’s not the only triumph of the OLC. This same fine group of logic twisters has over just the last few years declared that it was perfectly okay for Trump to issue an Executive Order that overturned sanctuary laws of states or cities, that Trump could arbitrarily change the requirements for immigration status, and that the original version Trump’s Muslim ban that tossed every immigrant—including refugees and green card holders—from Muslim-majority countries. None of the work from the OLC law boffins survived an encounter with a real judge.
And if that’s not enough, it was while at the OLC that Deputy AG John Yoo wrote the “torture memos” that gave the CIA the go-ahead for “enhanced interrogation” and holding prisoners at “black sites.” In short, the OLC has been the go-to location for White Houses seeking permission to extend the powers of a unitary executive way beyond what the law allows.
So it shouldn’t be a shocker that the latest OLC ruling is that none of Donald Trump’s people have to talk to the House impeachment inquiry. Even though they do. They really, really, do.
In October, 70 members of the Council of Inspectors General signed onto a letter warning that OLC positions were undermining the role of whistleblowers and seriously distorted the law by attempting to redefine “urgent concern” in a way that allowed the original whistleblower complaint to the acting Director of National Intelligence to be buried.
Now it’s clear that the OLC isn’t done in their efforts to draw a line between Trump and any consequences to his actions. Because the new “guidance” represents nothing less than a declaration that the White House can halt the appearance of any member of any executive branch department. In fact, even those officials who have already testified, would not have been required to obey subpoenas.
What’s also obvious is that this OLC ruling has even less support in law than its claim that a sitting executive is free from all legal actions. The Constitution gives the House complete control of how impeachments are to be conducted. Republicans re-wrote impeachment rules, including how witnesses are to be handled, and even a member of Ken Starr’s team has noted that Democrats are both following those rules and being fair to Republicans. Any attempt by members of the executive branch to evade testimony by citing the OLC ruling is as legally valid as reciting sections of Alice in Wonderland … and less likely to entertain a court. But here’s hoping every executive witness tries to hide behind the OLC. Because the sooner that office and it’s nonsense rulings gets crushed, the better.
One last historical note: During the Obama Administration, the OLC provided guidance saying that a bill pending in Congress that would give voting rights to residents of D.C. was “unconstitutional” and that the White House should speak out against the bill. Obama ignored them. Because the OLC is not the law, no matter what they think.