Memorandum to the Attorney General -Editorial Board New Jersey Law Journal

 COMMENTARY NEW JERSEY LAW JOURNAL

Memorandum to the Attorney General

There is guidance from the advice then-Assistant Attorney General Theodore Olson gave to his boss Attorney General William French Smith in 1982 during Ronald Reagan’s first term.

December 11, 2022 at 10:00 AM

 5 minute read

Government

By Law Journal Editorial Board | December 11, 2022 at 10:00 AM

Vitriol on both sides of the political spectrum threatens to win out over good-faith debate. The attack on the Capitol at a critical moment, the groundless claims of election theft, pose enormous challenges for the law and particularly the United States Department of Justice. Fortunately for Attorney General Merrick Garland there is guidance—from the founding era and, more recently, the advice then-Assistant Attorney General Theodore Olson gave to his boss Attorney General William French Smith in 1982 during Ronald Reagan’s first term.

The Knight Center for the First Amendment at Columbia via the Freedom of Information Act obtained confidential memoranda of the DOJ Office of Legal Counsel. That office advises presidents and department heads in the way the Judiciary Act of 1789 described the attorney general as: “a meet person, learned in the law … whose duty it shall be to … prosecute and conduct all suits in the Supreme Court in which the United States shall be concerned, and … give his advice and opinion upon questions of law when required by the President of the United States, or when requested by the heads of any departments.”


The duties of that officer are particularly acutely challenged when, as today, the former president of the United States—twice impeached but not convicted of “high crimes and misdemeanors”—is the target of investigation. Today that duty falls to Merrick Garland. He faces an awesome challenge: the subject of the DOJ’s investigations is the former president who has announced that for the third time he will seek the White House.

It is one thing to say—as Garland has many times—that no one is above the law, that justice must be pursued without fear or favor. It is a more daunting task to live up to those words—one made more difficult by the change of hands in the United States House of Representatives. Incoming House committee chairmen have said they intend to make President Joe Biden’s son Hunter and the president himself a principal focus of their investigatory powers. In this environment can Garland live up to his charge in a way that retains public confidence?


Fortunately, the Knight Center has provided us with the benefit of the 1982 memorandum by then-Assistant Attorney General Theodore Olson to then-Attorney General William French Smith. Titled “Re The Role of the Attorney General in the Government of the United States,” Olson—who has long distinguished himself as a premier advocate before the Supreme Court—sets forth the duties in their complexity in a brilliantly lucid and concise manner.

We are not simply agents of clients, or citizens obligated to obey the law. As lawyers we are officers of the courts which license us. We can sign a subpoena, issue a notice of deposition, or demand production of documents. Like executive officers we swear an oath to uphold the Constitution and laws of both the states which license us, and of the United States of America. We usually view ourselves as zealous agents of our clients.

Because in the United States the people are said to be the sovereign, there is no lawyer in the country more subject to diverging and conflicting interests than is the attorney general of the United States of America.

The AG must confront the conviction of many that lawyers and prosecutors are mere partisans. Like the attorney general, each of us is inherently conflicted—we serve both our clients, and the governments and people of the United States. Conflicted because their multiple interests are often in tension.

The duty of independent advice of counsel inheres in the multiplicity of interests which we as lawyers must simultaneously serve. We are not merely agents of our clients or of the law. This fundamental fact is expressed in Rule of Professional Conduct 2.1 Advisor and Counselor. We are directed to “exercise independent professional judgment and render candid advice. In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social and political factors, that may be relevant to the client’s situation.” These are Merrick Garland’s marching orders.

We commend to him the stance expressed 40 years ago by Assistant Attorney General, Office of Legal Counsel, Theodore Olson to William French Smith on the “role of the Attorney General of the United States.” In a “Memorandum to the Attorney General” Olson gave advice that cannot be gainsaid:

“The responsibilities of the Attorney General are unique within the Executive Branch. While he is a policy-adviser and servant of the President like other cabinet members, his peculiar role as a lawyer—the lawyer for the United States—adds a significant additional dimension to his relationship to the President, the balance of the government, and to its citizens.

“While the Attorney General functions as the lawyer for the President and the Executive Branch, he is also charged with representing the government of the United States as a whole, including the Legislative Branch. Finally, he is the Administration official with the paramount responsibility of guiding the President in the performance of the foremost duty under the Constitution—to take care that the laws be faithfully executed.”

We commend to the Attorney General Assistant A.G. Olson’s advice to French Smith.