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16 ■ JUNE 28, 2021 NEWS

‘An Aberration:’ Biden’s DOJ Legal Counsel

Pick Vows a Trump-Era Departure

By Andrew Goudsward

resident Joe Biden’s nominee to head the Justice
Department’s Office of Legal Counsel pledged
Pat a confirmation hearing Wednesday to pro-
vide “impartial and independent” legal advice to the
Executive Branch if confirmed to lead an office that
became entangled in Trump-era controversies over
political influence at the department.
Christopher Schroeder, a Duke University law
professor who served in the Office of Legal Coun-
sel during the Clinton administration, emphasized
to the Senate Judiciary Committee that the office
“is not a policymaking operation” and should focus
only on interpreting the law on thorny regulatory
and enforcement questions facing the White House
or other federal agencies.
“Our function is, through delegation from the at- Senate Judiciary Committee hearing room sign.
torney general, to fulfill our obligation to provide Photo: Diego M. Radzinschi/ALM
the best legal advice in an impartial and indepen- sis that we can achieve and that will certainly take
dent way to the Executive Branch,” Schroeder told cognizance of judicial decisions that defer from in-
senators. terpretive decisions that the office has taken in the
The Office of Legal Counsel’s opinions on execu- past and much more,” Schroeder told Whitehouse.
tive power issued under the Trump administration Stressing his independence, Schroeder pointed to
have faced scrutiny, and in some cases criticism, an OLC memo drafted during his time in the Clin-
from judges in high-profile cases including those ton administration in which the office determined
involving the Justice Department’s memo on a po- that an administration plan to intercept private
tential Trump prosecution, congressional subpoenas planes from South America dropping illegal drugs
for former White House Counsel Don McGahn and in the United States was illegal.
requests for then-President Donald Trump’s tax re- “It was not received well by the administration at
cords. the time,” he said. “It’s an example I can talk about
“Every time an OLC opinion seems to get in front in which we had to render advice which was not
of a court, it gets pounded into the ground,” said consistent with policy positions being taken in the
Sen. Sheldon Whitehouse, D-Rhode Island. “You’ve administration.”
got a real problem on your hands and I think OLC The OLC in 1973 developed the Justice Depart-
has real credibility problems with courts and this ment policy against indicting a sitting president.
committee.” That policy was slammed twice in court in 2019.
Schroeder said he hopes those recent opinions U.S. District Judge Victor Marrero of the Southern
will be viewed as a historical “aberration.” District of New York, in tossing out a lawsuit from
“It’s my intention if I’m fortunate enough to be Trump challenging the Manhattan district attorney’s
confirmed to aspire to the highest quality of analy- subpoena for his tax returns, wrote that “The Court

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