“Serviceable Instruments of His Authority” the Office of Legal Counsel, Donald Trump, and the Expansion of Executive Power

Abstract

The Office of Legal Counsel (OLC), a tiny office in the United States Department of Justice, was designed to hold the executive branch to the law. But in practice, the office has often played a role in the expansion of presidential power. We analyze the publicly available OLC opinions from Trump's first term to understand whether, to what extent, and how lawyers in OLC provided legal scaffolding for President Trump's expansion of presidential power. We find that the OLC under the first Trump administration did expand power, but it did so in a manner largely consistent with previous administrations. The Trump OLC reinforced previous extensions of presidential power more frequently than it introduced novel extensions of power, citing OLC precedent from both Republican and Democratic administrations. We also note the prevalence in these opinions of language associated with the Unitary Executive Theory, a constitutional theory once considered radical that has been adopted by the conservative legal movement. Thus, even though the Trump OLC was functionally similar to previous administrations in advancing presidential prerogatives through its opinions, how it justified these reinforcements and extensions of power is functionally different from Democratic administrations—and, as some have argued, more dangerous.