If you think the fact that the murderous attacks by the U.S. Navy on civilians in small boats are clearly illegal don’t get your hopes up that anything can be done about it. Former Office of Legal Counsel Jack Goldsmith tells us that there’s something called the “Golden Shield” which can apparently legalize any behavior by a government official.
The attorney general—and, by delegation, OLC—wields a power akin to an advance pardon: the ability to insulate executive officials from future criminal liability through legal advice. When the DOJ advises the president or another officer that a proposed action complies with federal criminal law, that opinion effectively guarantees immunity from prosecution by a later administration.
Former Central Intelligence Agency general counsel John Rizzo called such advice a “golden shield.” He had in mind the legally flawed OLC opinions that concluded that the CIA’s post-9/11 enhanced interrogation techniques (EIT) did not violate the criminal ban on torture. Rizzo viewed the OLC opinions as “the Executive Branch’s functional equivalent of a Supreme Court opinion [that] would protect the Agency and its people forevermore.”
[S]everal legal and practical considerations support OLC’s “immunity-conferring power.”
First, the attorney general and, by delegation, OLC exercise the president’s Article II power to determine governing law for the executive branch.
Second, under the doctrine of entrapment by estoppel, it violates due process to prosecute someone who reasonably relies on an authorized government opinion that the vetted conduct is lawful, even if the opinion turns out to be flawed. The government cannot advise someone that an act is legal and later punish them for doing it. At oral argument in Trump v. United States, the special counsel’s attorney, Michael Dreeben, invoked this principle in trying to persuade the justices that a presidential immunity defense from criminal prosecution was unnecessary. He stated that “it would be a due process problem to prosecute a President who received advice from the Attorney General that his actions were lawful.”
And here I thought the “I was only following orders” excuse had been tossed in the dustbin for all time after WWII. Apparently not.
There are some other legalese rationales as to why this essentially confer immunity on anyone who follows orders. I confess I had no idea the extent to which this idea was an accepted doctrine.
In case you were wondering, Trump’s OLC has reportedly issued a Golden Shield, in secret, for the murders in the high seas:
Legal deliberations inside the executive branch, according to officials familiar with the matter, have been closely held and largely limited to political appointees. The Justice Department’s Office of Legal Counsel — which Mr. Trump sidelined for most of the year until appointing an official to lead it in August as preparations for the attacks ramped up — has produced a memo apparently blessing the campaign. But the administration has not described its analysis.
That article by Charlie Savage of the NY Times, describes a process that is radically different than that undertaken by all the other administration who contemplated broadening the powers of the president in foreign affairs. The Trump administration just has a few insiders and this new toady at the office of Legal Counsel rubber stamping whatever Trump and his bloodthirsty henchmen want to do.
Between this and the plenary pardon power it looks like there’s no legal restraint on anything the president wants to do. As Goldsmith writes:
OLC’s golden-shield-conferring authority amplifies the administration’s already prodigious efforts to clear away legal constraints on Trump’s will and bring him closer to realizing his famous claim: “I have an Article II, where I have the right to do whatever I want as president.”
If we manage to survive this, I think we have to accept that legal accountability for this lawless, immoral regime is going to be very hard to come by. And even reforms will be awfully difficult to sustain now that Trump has laid the path for any would-be despot to simply ignore the rule of law and decimate existing norms. It’s going to take a tremendous effort to turn this around. I hope smart people are thinking about how to create something new out of the rubble because there’s no going back.