Change in Continuity at the Office of Legal Counsel

The papers presented by Professors Kmiec and McGinnis have certainly contributed a great deal to an understanding of the Attorney General's opinion-writing function and the role of the Office of Legal Counsel ("OLC") in the performance of that function. There is much in their papers with which I fully agree and not too much with which I disagree. I think it is important, however, to say a bit about historical context, particularly since we have a. new administration in Washington and new leadership in the Department of Justice. To the extent that OLC has a distinctive outlook on legal questions, it is shaped by two forces: first, the interests of the executive branch as a continuing institution, and second, the views of the particular administration or the relevant administration oficials.

Anyone who ignores either of these forces will be surprised by how OLC functions.