The US Department of Justice on Thursday released a copy of the legal memo prepared by the Office of Legal Counsel about President Trump's executive order on immigration. The acting head of the office, Curtis Gannon, wrote that the order was approved for "form and legality."
The Office of Legal Counsel (OLC) traditionally reviews all executive orders for "form and legality." It's a narrow review that doesn't address the legal strengths or weaknesses of a particular executive action, and doesn't touch on whether Justice Department lawyers believe an order could withstand a constitutional challenge in court.
Multiple legal challenges to the immigration order have been filed in federal courts nationwide since it took effect on Jan. 27. Several judges have entered orders temporarily blocking enforcement of parts of the order as the cases go forward.
In a statement, a DOJ spokesman said: "The Office of Legal Counsel’s form-and-legality paperwork includes a short description of some of the provisions of the proposed executive order and memorializes the conclusion that the proposed order is approved with respect to form and legality. As is generally the case under the Office’s longstanding practice, however, it does not identify or contain substantive analysis of issues that were evaluated in the course of the review.”
The memo is dated Jan. 27, the same day that Trump signed the order.
Steven Bradbury, who served as a top official in the Office of Legal Counsel, including as acting head, from 2004 to 2009, told BuzzFeed News that the office's memo about the immigration order was "typical." The fact that the memo was short and didn't explain the office's analysis did not mean it was "slapdash," he said.
"It's consistent with the usual process," Bradbury said. "OLC reviews the order to determine that it's consistent with the relevant legal authorities of the president and also to determine that the form of the order is consistent with the appropriate form of a presidential directive to accomplish what the order is purporting to do," he said.
OLC rarely prepares formal written legal opinions, but will do so in response to a request by the White House or another executive agency. On Jan. 20, the office released an opinion in response to a question from the Trump administration about whether Trump's son-in-law Jared Kushner could work in the White House without violating anti-nepotism laws. (He could, the office held.)
Although the Office of Legal Counsel signed off on the memo for "form and legality," then–acting US Attorney General Sally Yates wrote in a Jan. 30 letter to department lawyers that she was "not convinced that the executive order is lawful." Yates ordered DOJ attorneys not to defend the order in court.
Within hours, Trump fired Yates — a decades-long veteran of the Justice Department and the former deputy attorney general under the Obama administration — and replaced her with Dana Boente, the US attorney in the Eastern District of Virginia, also a longtime DOJ lawyer nominated to his latest position by Obama. Boente rescinded what he described as Yates's "guidance" and directed lawyers "to do our sworn duty and to defend the lawful orders of our president."
After the OLC memo was released on Thursday, former acting US solicitor general Neal Katyal weighed in on Twitter, expressing surprise at the brevity of the memo.
Gannon was appointed by Trump to serve as the principal deputy assistant attorney general of the Office of Legal Counsel and immediately became the acting head in the absence of a Senate-confirmed nominee. Gannon had previously worked in the US solicitor general's office starting in 2007, and clerked for the late Justice Antonin Scalia.
Washington, DC, lawyer Steven Engel is Trump's nominee to lead the division. Trump announced on Jan. 31 that he was nominating Engel to serve as an assistant attorney general at the Justice Department, but didn't specify which division. The official nomination listing with Congress specified that Engel was nominated for the Office of Legal Counsel.
Engel is a partner at the law firm Dechert LLP and previously served as the deputy assistant attorney general in the Office of Legal Counsel under President George W. Bush.
Sally Yates was the acting US attorney general. An earlier version of this post misstated her former title.