I have immense esteem for my friend Norm Singleton at the Campaign for Liberty. His lengthy Capitol Hill experience, depth of knowledge, and humor have duly earned him respect from operators across the political spectrum. Therefore, when I read his piece disagreeing with my predictions on the future of Internet gambling, I took it to heart.
Norm wrote that he doesn’t share my “optimistic” assessment that the Office of Legal Counsel (OLC), under Attorney General Jess Sessions, is unlikely to reverse OLC’s 2011 opinion. This memo, which clarified that the Wire Act of 1961 applied only to sports betting and opened the door for states to legalize Internet gambling within their borders.
It is true that Sessions did promise to “review” this memo during his confirmation hearing—making it practically mandatory he do something. However, other forces at play make the chance that OLC will broadly reinterpret or withdraw the memo highly unlikely, even if Sessions or even President Trump demand it.
What is the OLC?
Federal law empowers the attorney general to provide legal advice to the various aspects of the executive branch. The Office of Legal Counsel—a shop of about two dozen lawyers—is the office that provides these opinions. Often referred to as “the president’s law firm,” the advice of OLC lawyers is sought to clarify some of the most vexing legal questions the federal government faces about the Constitution and federal statutes. These opinions are binding for executive agencies, and because the questions they address are unlikely to surface in the judicial arena, often represent the final word on these matters.
For the most part, OLC advice is sought on a voluntary basis; there is no requirement for the president or agencies to submit legal questions to OLC (except for certain questions arising within the military, disputes between agencies, and review of proposed executive orders). Despite this, and having its own in-house legal counsel, the White House is still one of the most frequent solicitors of OLC advice.
Why would the White House—which has its own highly capable in-house counsel—require the opinion of OLC? The answer is that OLC, unlike White House counsel, is perceived as an independent entity with a reputation for “serious, even-handed analysis, not mere advocacy.” And though the president can overrule OLC opinion (though that is extremely rare), he or she is bound by the oath of office to operate within the confines of the Constitution.
The White House seeks out OLC opinions when it wants to avoid litigation, get cover for politically controversial actions, and point to credible outside support for its decisions. The value of OLC opinions depends on maintaining this credibility, which is already on shaky ground thanks to the actions of President George W. Bush and his OLC.
OLC and precedent
OLC’s reputation for integrity is grounded in its adherence to the highest standards of legal interpretation. Part of this has to do with the fact that the office respects the opinions of its predecessors; it doesn’t simply reverse decisions each time the nation elects a new administration with a different political ideology.
OLC opinions operate like judicial precedent. OLC internal policy directs statutory interpretation to be guided by the text of the law, give “great weight” to previous OLC opinions, and “not lightly depart from such past decisions, particularly where they directly address and decide a point in question.” (See 2005 and 2010 memoranda “Best practices for OLC opinions”).
Opinions can be overturned, but as with judicial precedent, OLC historically has set a high bar for reversing previous opinions, even when they appear to be wrongly decided. Take, for example, President Bill Clinton’s executive order eliminating eligibility for government contracts companies that hired permanent employees to replace workers on strike. When asked to review Clinton’s proposed order, OLC stood by the opinion of George H.W. Bush’s OLC, even though the Office believed both the Bush and Clinton orders were erroneous (a suspicion confirmed when courts invalidated Clinton’s order and questioned the legality of Bush’s).
The notable exception to this commitment to precedent occurred under George W. Bush—a controversy from which OLC is still recovering.
OLC and Politics
Shortly after Congress confirmed Jack Goldmsith as OLC head in 2003, he reviewed and ultimately withdrew his predecessor’s opinion that “enhanced interrogation” methods (e.g. waterboarding) were legal. This reversal met OLC’s high bar for diverting from precedent, which Georgetown Law Professor David Luban described as “aggressive advocacy briefs” that barely go through the motions of standard legal argument and represent “violation of craft values common to all legal interpretive communities.”
After forcing Goldstein’s resignation, the Bush administration appointed a new OLC head who quickly reinstated torture’s legality by issuing new memos. These would later be withdrawn under the Obama administration—in a manner that, again, met the threshold for reversal—but it came at a great cost.
The revelations of the Bush-era OLC’s “advocacy,” the withdrawing of no fewer than seven opinions during the Obama era, and the invalidation of OLC-approved executive orders by courts in both the Obama and now Trump administrations have severely damaged the Office’s reputation as an objective purveyor of legal advice and even led to calls for it to be abolished.
Herein lies the danger for the current administration.
Destroying what you need later
There is still value in obtaining OLC opinions favorable to the president’s agenda items. For example, Trump may seek the Office’s advice on the legality of sending troops into foreign nations or new immigration rules. However, strong-arming it into creating an Internet gambling prohibition where none exists in statute could be the straw that breaks the back of OLC’s credibility. Considering how politically divisive just about every Trump action seems to be, it would be unwise to destroy any instrument that might provide him with cover.
It is possible that President Trump and Attorney General Sessions are too shortsighted to see this danger. However, Steven A. Engel, Trump’s nominee to head OLC, is not ignorant to this risk.
Engel served in OLC as an assistant during the George W. Bush administration and even had a hand in writing and reviewing some of those—now withdrawn—memos on interrogation. He insists to this day that there was a legal basis to support OLC’s opinion on torture, but that scandal still haunts not only the Office, and Engel himself.
Unlike the opinion on enhanced interrogation methods, even the most tortured reading (pun intended) of statute and legislative history would not support interpreting the Wire Act as prohibiting Internet gambling. As the 2011 OLC memo itself documented, Congress was not at all ambiguous about limiting the Act to only sports gambling. Withdrawing or overruling that opinion based simply on the desires of the current administration would eliminate OLC’s remaining credibility.
During his Senate confirmation hearing, Engel described OLC as an outfit with a standard for “integrity, independence, and professionalism,” and he vowed that if confirmed he would be a “faithful steward of the Office so as to preserve and build its reputation and to pass on the Office stronger to its future leadership.”
It doesn’t sound like Engel wants his legacy as the man who helmed OLC as it sunk. I cannot imagine Trump or Sessions could find any viable candidate who would.
Thus, while my friend Norm is right to fear that online gambling is still on Jeff Sessions’s hit list, I still think that the OLC is unlikely to aid or abet him in that effort.