Opinions
I worked in the Justice Department. I hope its lawyers won’t give Trump an alibi.

By Erica Newland
January 10 at 6:51 PM

Erica Newland is a counsel for the nonprofit group Protect Democracy and a former attorney adviser in the Justice Department’s Office of Legal Counsel.

President Trump said Thursday that he will “maybe definitely” declare a national emergency to free up funds for his long-promised wall at the southern border. One reason for the president’s hesitation might be that he is awaiting word from the people who would be asked to give such a declaration the green light: Justice Department lawyers at the Office of Legal Counsel, or OLC, where I worked from August 2016 until I quit in mid-November.

Lawyers at OLC wear many hats, but their most significant role comes in advising the White House on the legality of proposed actions, including executive orders, proclamations and other presidential documents. .... When OLC approves orders such as the travel ban, it goes over the list of planned presidential actions with a fine-toothed comb, making sure that not a hair is out of line. It is this work that gives OLC its reputation as home to some of the federal government’s finest attorneys. But when it comes to the president’s findings about the state of the world, OLC generally defers to the president.

This deference, which is baked into OLC’s culture, proceeds from the assumption that the president is acting consistent with Article II of the Constitution and with his oath of office, both of which require that he “faithfully” execute the laws. That means he has a constitutional duty to act honestly and in the public interest. OLC’s deference is also born of a recognition that its lawyers are not equipped to be sophisticated fact-finders.

But when I was at OLC, I saw again and again how the decision to trust the president failed the office’s attorneys, the Justice Department and the American people. The failure took different forms. Sometimes, we just wouldn’t look that closely at the claims the president was making about the state of the world. When we did look closely, we could give only nudges. For example, if I identified a claim by the president that was provably false, I would ask the White House to supply a fig leaf of supporting evidence. Or if the White House’s justification for taking an action reeked of unconstitutional animus, I would suggest a less pungent framing or better tailoring of the actions described in the order.
....

Eventually, I decided that the responsibilities entailed in my oath were incompatible with the expectations of my job. If my former colleagues at OLC, and throughout the Justice Department, are now working on the possible declaration of a national emergency, I dearly hope they are as meticulous in their review of the president’s justifications as they are in their review of the actions he plans to take. And I hope, more than anything else, that they are asking themselves whether they, too, are just fashioning a pretext, building an alibi.

Read more:

Harry Litman: How the Supreme Court might rule if Trump declares an emergency for his wall

Jennifer Rubin: An ‘emergency’ power grab would only add to Trump’s problems

Henry Olsen: Trump is threatening to go around Congress to get his wall. History shows he’ll fail.

John Q. Barrett: How Congress can stop Trump’s ‘emergency’