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The Justice Department’s Office of Legal Counsel has traditionally been a powerful guardrail in American government. It has issued interpretations of the law that bind agencies across the executive branch, decided which proposed policies were legally permissible or out of bounds and approved draft executive orders before they went to presidents to be signed.
But in President Trump’s second term so far, the office has largely been sidelined. As Mr. Trump issues policy after policy pushing legal limits and asserting an expansive view of his power, the White House has undercut its role as a gatekeeper — delaying giving it senior leadership and weakening its ability to impose quality control over executive orders.
Its diminished voice is shifting the balance of legal power in the executive branch toward the White House, speeding up Mr. Trump’s ability to act but creating mounting difficulties for the Justice Department lawyers who must defend the government in court.
Critics of executive overreach have long criticized the Office of Legal Counsel as too permissive. But Professor Goldsmith said it had nevertheless served as an important internal check. He cited its culture of serious legal analysis and, in contrast to lawyers based in the White House, its literal distance from the political and policymaking vortex of the Oval Office.
To date, the administration has published one memo from the current Office of Legal Counsel, an opinion by Ms. Pettit in mid-March saying that Mr. Trump could designate acting members of two foreign-assistance foundations after he fired their boards.
In the past, the office has also performed another quality-control function: Checking factual statements in draft orders and insisting upon solid evidence supporting any material claims before approving them, veterans of the office say.
When the system is working as it should, any fact or legal justification upon which an order depends is flyspecked by the office, and the president does not sign it until O.L.C. is satisfied that it is well grounded, said Martin Lederman, a Georgetown law professor who worked at the Office of Legal Counsel during Democratic administrations.
The office gained notoriety after the Sept. 11, 2001, attacks when it issued secret memos blessing policies that violated torture and surveillance laws.
For example, the White House clashed with the Homeland Security Department’s top lawyer, John Mitnick, over legal risks from proposals like separating migrant children from parents and transporting migrants to so-called sanctuary cities.
The Trump administration has made plans to screen out lawyers who have raised legal roadblocks from any second term in favor of hiring more permissive, MAGA-style loyalists…
…and has instructed independent agencies to submit to White House supervision in February, Mr. Trump declared, “The president and the attorney general’s opinions on questions of law are controlling on all employees in the conduct of their official duties.”
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