WASHINGTON ― Just what the hell is the Justice Department doing while President Donald Trump is churning out chaos-inspiring executive orders, Sen. Sheldon Whitehouse (D-R.I.) is demanding to know.
Trump’s order Friday barring refugees and others from seven majority-Muslim nations sparked protests, lawsuits and confusion ― in the administration and outside of it ― as people scrambled to understand its meaning and legality.
In the pre-Trump world ― and in theory even in the Trump world ― executive orders should get a thorough vetting by the Justice Department Office of Legal Counsel and the White House Office of Management and Budget. Whitehouse and other Democratic senators, however, are questioning whether that’s been the case in the early days of the Trump era.
A Justice Department spokesman told The Huffington Post on Monday that that Office of Legal Counsel has traditionally answered the “narrow question” of whether executive orders are lawful on their face and properly drafted. The spokesman said that continues to be the case in the first 10 days of the Trump administration.
“OLC has continued to serve this traditional role in the present administration, and to date has approved the signed orders with respect to form and legality,” the spokesman said.
But here’s the key part of the statement: “OLC’s legal review has been conducted without the involvement of Department of Justice leadership, and OLC’s legal review does not address the broader policy issues inherent in any executive order.”
In other words, the Office of Legal Counsel approved the language and basic legality of the executive orders, but did not look at the broader potential impact and potential complications. And DOJ leadership, which in this case means acting Attorney General Sally Yates and others, were not involved in the process at all.
Curtis E. Gannon is the current acting assistant attorney general of the Office of Legal Counsel. Gannon, a Harvard-educated former clerk for Justice Antonin Scalia, previously worked as an assistant to the solicitor general and argued two dozen cases before the Supreme Court.
The Justice Department has a key role in immigration enforcement. The department’s Executive Office for Immigration Review actually oversees immigration judges, who aren’t exactly judges in the tradition of an independent judiciary. A national association for immigration judges has called for the creation of an independent court system without ties to a law enforcement agency.
Given the global disarray that greeted Trump’s immigration order, Whitehouse and every other Democrat on the Senate Judiciary Committee wonder if the Justice Department lawyers actually did review work.
“Several of the executive orders and memoranda issued this past week, including those relating to deportation priorities and sanctuary cities, have already been questioned by local law enforcement officials because of their vagueness, negative impact on public safety, and potential conflict with legal precedent,” Whitehouse and the others wrote in a letter to the acting attorney general, noting that the refugee order was stayed by a federal judge.
“The American public has the right to know that the White House is following the long-standing and sensible practice that new mandates affecting their lives and communities have been deemed legal by the Justice Department,” they added. “If, on the other hand, the Administration has chosen to deviate from these well-established norms, the public has the right to know that, too.”