When Courts Say NO, Office Of Legal Counsel Says YES
After failing to persuade judges, DOJ writes its own orders.
In February, Donald Trump went on former FBI Deputy Director Dan Bongino’s podcast and demanded that the federal government “nationalize and take over” the midterm elections. He followed up with an executive order instructing the Department of Homeland Security to compile a national list of eligible voters, adding that the Post Office should refuse to deliver ballots to anyone not on that list.
The Department of Justice’s Civil Rights Division then demanded that every state turn over its complete, unredacted voter rolls, including drivers license and social security numbers. The plan is to feed the lists into DHS’s horribly broken SAVE Program and weed out supposedly “ineligible” voters. (What could possibly go wrong??) As a two-fer, DHS would then have a list of names, addresses, and contact information for untold numbers of people that its chatbot thinks are immigrants here illegally.
Fifteen red states complied, but most states refused to hand over sensitive voter data. In response, the DOJ sued at least 30 states and the District of Columbia. But so far, not a single court has sided with the feds. Judges in Arizona, California, Massachusetts, Michigan, Oregon, and Rhode Island all tossed the DOJ’s lawsuits demanding the voter rolls.
And so the government is getting creative. With no court willing to endorse its legal theories, it turned to the Office of Legal Counsel, a division of the Justice Department that acts as a legal advisor to the executive branch and the president.
In the past, the OLC at least pretended to render real legal guidance, even sometimes telling the president things he didn’t want to hear. In 2011, President Obama asked the OLC whether military intervention in Libya would amount to hostilities that must be approved by Congress pursuant to the War Powers Resolution. He wanted the answer “no.” But the OLC concluded the answer was “yes.” (Obama intervened anyway.)
But as with every executive branch agency under Trump, the office has jettisoned any pretense of independence. Trump wanted something he could point to as evidence that he’s entitled to seize state voter rolls, and the OLC dutifully complied.
In a May 12 memorandum opinion, the OLC agreed that the Civil Rights Act of 1960 — a law designed to prevent Jim Crow-era Southern states from obstructing and disenfranchising Black voters — can be used to force states to turn over confidential voter data to the Trump administration so it can prune undesirable voters. (Notably, the memo’s author, Principal Deputy Assistant Attorney General Lanora C. Pettit, joined the Trump administration last year after several years working for Texas Attorney General Ken Paxton.)
Even well-reasoned, good-faith OLC memoranda are just statements of opinion and are non-binding on any state, court, or any other party (except internally at the Department of Justice). This memo is neither well-reasoned nor in good faith, and its arguments have been repeatedly rejected by judges across the country.
