George W. Bush administration During President George W. Bush's first term in office, OLC deputy assistant attorney general
John Yoo drafted, and assistant attorney general
Jay S. Bybee signed, a set of legal memoranda that became known as the "torture memos." These memos advised the CIA and the Department of Defense that the president may lawfully authorize the torture of detainees (euphemistically referred to as "enhanced interrogation techniques"), including beating, binding in contorted
stress positions,
hooding, subjection to deafening noise, sleep disruption,
sleep deprivation to the point of
hallucination, deprivation of food, drink, and withholding medical care for wounds, as well as
waterboarding,
walling, sexual humiliation, subjection to extreme heat or extreme cold, and confinement in small, coffin-like boxes. The Justice Department's
Office of Professional Responsibility (OPR) later concluded that Yoo committed "intentional professional misconduct" in advising the CIA that it could torture detainees and that by signing Yoo's memorandum, Bybee had "acted in reckless disregard of his obligation to provide thorough, objective, and candid legal advice." His position became a point of political friction between the Republican president and the Democratic-controlled
110th Congress, when Democrats contended that Bradbury was in the position illegally, while Republicans argued that Democrats were using his nomination to score political points. An opinion issued by the
Government Accountability Office concluded that his status was not a violation of the
Federal Vacancies Reform Act of 1998.
Obama administration In the first two years of the Obama administration, OLC at least twice reached an outcome with which Administration officials disagreed. In June 2011,
New York Times reporter
Charlie Savage revealed that President Obama took the unusual step of overruling the Office of Legal Counsel's advice with respect to the legality of military action in Libya. OLC's written opinions have historically been considered binding on the executive branch, unless they are overturned by the attorney general or president. In 2009,
attorney general Eric Holder overturned an unpublished OLC opinion that had concluded that a D.C. voting rights bill pending in Congress was unconstitutional.
Trump administration Early in the Trump administration, OLC approved
Executive Order 13769 (referred to as the "travel ban" because it restricted entry from certain foreign countries which had
Muslim-majority populations). Days later, acting attorney general
Sally Yates announced that the Department of Justice would not defend the order in court. Explaining her decision, Yates stated that OLC's review assessed only whether a "proposed executive order is lawful on its face and properly drafted," not outside evidence about the order's purposes or whether the policy of the order is "wise or just." Yates was fired later that day.
Barr letter In March 2019, the
Mueller investigation delivered its
final report to attorney general
Bill Barr. Even before reading the report, Barr had already made the decision to clear Trump of
obstruction of justice. Upon receiving the report, Barr tasked the OLC with preparing a memorandum that would pretextually justify Barr's decision, instead of providing candid counsel. This memorandum was written in tandem with the
Barr letter over the course of two days; the final version was signed by
Steven Engel and
Ed O'Callaghan. The D.C. Circuit held that the memo was not shielded from disclosure by the
deliberative process privilege, because then-attorney general Barr had already determined, by the time the memo was written, that DOJ would not charge Trump with a crime, making the memo akin to a "thought experiment." that the
Justice Department should not forward the
Trump–Ukraine scandal whistleblower complaint to Congress. In an October 2019 letter, 67 inspectors general from the
Council of the Inspectors General on Integrity and Efficiency sharply criticized the Justice Department's decision to withhold the complaint from Congress, describing the memo as having a "chilling effect on effective oversight" and being "wrong as a matter of law and policy." The inspectors general recommended the OLC memo be withdrawn or amended because it "effectively overruled the determination by the ICIG regarding an 'urgent concern' complaint" that the ICIG concluded was "credible and therefore needed to be transmitted to Congress." == List of assistant attorneys general in charge==