Trump's most controversial moves have something in common: This DOJ office

Oct 18, 2026 - 08:10

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Trump's most controversial moves have something in common: This DOJ office

When White House officials wanted to know if President Donald Trump could send the U.S. military to help capture President Nicolás Maduro in Venezuela, a special unit in the Justice Department assured them it was legal.

When the administration was preparing to strike suspected drug traffickers’ boats on the open sea without congressional approval, the same small unit declared the action permissible.

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When the White House asked if the Presidential Records Act was constitutional, the office ruled it was not, giving Trump the apparent green light to save fewer records from his second term.

As the Trump administration pushes the bounds of executive power, the Justice Department unit known as the Office of Legal Counsel, or OLC, has affirmed some of its most high-profile and controversial actions - even as many experts question their legitimacy and some are later struck down by the courts.

Tucked away on the Justice Department’s fifth floor, the two dozen or so lawyers at the OLC are charged with assessing the legality of actions the executive branch wants to take, especially those that are novel or likely to be contentious. Much of its work, particularly on national security matters, remains shielded from public view, but some of the office’s conclusions have emerged in often dense legal opinions.

The OLC during Trump’s second term is not the first to be accused of adopting shaky reasoning to justify a president’s policies. Under President Barack Obama, the OLC wrote a controversial rationale for launching a deadly drone attack on a U.S. citizen overseas. Under President George W. Bush, the office justified the used of “enhanced interrogation” - what some call torture - against enemy combatants, including waterboarding.

But because Trump has advanced so many controversial policies - including imposing global tariffs, refusing to spend congressionally allocated funds and pushing to more broadly deploy the National Guard - the OLC now faces particular scrutiny.

Critics contend that during Trump’s second term, the OLC is sometimes responding to legal questions that appear personal to Trump, rather than addressing live policy debates, as is typical. For instance, Trump had quibbled over the Presidential Records Act after he was indicted in Florida for allegedly mishandling classified materials. These critics said the OLC opinion on this act seemed aimed at Trump’s prior issues with the law, rather than any active policy issues.

“It is not inconsistent with the type of advice OLC of any flavor, Democrats or Republicans, would give to other presidents,” said Carlos Uriarte, a Justice Department political appointee during the Biden administration who worked closely with the OLC. “What’s different is that this administration seems to be more willing to go into theoretical questions that are not before them.”

Trump’s OLC is headed by T. Elliot Gaiser, a 37-year-old former solicitor general of Ohio described by current and former colleagues as a constitutional originalist who, like Trump, has an expansive view of executive power.

Gaiser, who represented Trump’s losing presidential campaign in 2020 and refuses to acknowledge Joe Biden won that election, said his role in the Justice Department is to provide honest legal advice, not push for any particular outcome.

“We’re the least interested in advocating, [and] the most interested in saying, ‘Here’s our frank view of where we think we stand in respect to the law,’” Gaiser told The Washington Post in a rare interview.

His sparsely decorated office is filled with bound books of legal opinions, which surround a desk Gaiser proudly says is believed to have once been used by former Supreme Court justice Antonin Scalia, who headed the OLC under President Gerald Ford.

People who know and have worked with Gaiser spoke positively about him, with former associates describing him as “brilliant.” Gaiser clerked on the Supreme Court for Samuel A. Alito Jr. when the justice wrote the landmark opinion restricting abortion access. As OLC head, Gaiser has written conservative opinions backing restrictions around abortion access, expanded gun access and greater White House authority.

Gaiser said he has not hesitated to tell the White House when its ideas should not be enacted, though he declined to share specifics. Gaiser, and others familiar with the office, noted that the president is not required to listen to the OLC.

Much of OLC advice is shared privately. As a result, public perceptions of the OLC are largely shaped by the opinions it releases, even as they represent only a portion of its work.

The office’s role could become even more central if Democrats take control of Congress. The office recently approved an expanded view of executive privilege, for example, which Democrats fear will be used to shield Trump’s associates from testifying before Congress.

Gaiser’s office could also get asked to provide legal advice if outcomes are challenged during and after next month’s midterms. The office has already determined that the executive branch can legally seek a state’s voter rolls and share them with immigration authorities - a key part of the Trump administration’s strategy to identify noncitizen voters as it tries to argue that voter fraud is rampant.

Asked during the interview in his office who won the 2020 election, Gaiser demurred, citing his work as a lawyer for Trump’s campaign that year.

He cannot say publicly who won, Gaiser said, because that would reveal too much about the privileged legal advice he gave Trump campaign officials when he was their attorney.

“Joe Biden was sworn in as the president. He was certified the winner of the election by the Congress,” Gaiser said. “What I privately think happened in the 2020 election - what advice I provided to the president as the head of the campaign or to others in the campaign, the other campaign lawyers - that’s the kind of stuff I just really can’t get into.”

Although many Trump appointees display sharp elbows and make frequent appearances on cable news shows, Gaiser takes a lower profile, even as his work is attracting increased attention, including from Democratic lawmakers and federal courts.

After the OLC declared in April that the Presidential Records Act was unconstitutional, a federal court responded to lawsuits and said that, at least for now, the White House had to preserve records as normal. Advocacy groups are fighting to unseal the OLC’s memo justifying the deadly boat strikes in international waters.

One former OLC attorney, speaking on the condition of anonymity to offer a sensitive assessment, said the office’s opinions are based on shoddy legal arguments.

Under previous administrations, “you have opinions that at least try to grapple with counterarguments,” but that is not the case today, the former OLC lawyer said.

Gaiser sharply disputes the assertion that his office’s opinions are not high-quality, saying he and his lawyers deliver honest, accurate assessments.

“There is a continuum with the advice you give. You can say, this is lawful but risky. This is lawfully safe. This is unlawful,” Gaiser said. “OLC has a measure of independent counsel that we offer.”

During the first Trump administration, the OLC pushed back on some of the president’s most explosive actions. Steve Engel, then head of the OLC, testified about the Jan. 6, 2021 attack on the U.S. Capitol that he had advised Trump appointees that some of their plans to question the results of the 2020 presidential election were not legal.

Under Engel, the OLC also advised that an executive order ending birthright citizenship - the legal principal that virtually everyone born on U.S. soil is a citizen - would be unconstitutional, according to multiple people familiar with the matter, and the president did not issue one.

But when Trump became president a second time, he issued an order to end birthright citizenship on his first day in office. The OLC did not review it or the other executive orders Trump issued immediately upon his return, according to two people familiar with the matter.

The Supreme Court later affirmed birthright citizenship in a ruling that Trump called a “miscarriage of justice.”

Gaiser, who was confirmed in July 2025, had not taken office at that point, and said his office has since reviewed all of the president’s executive orders before they are issued.

The OLC attracted a burst of attention in August when it issued an opinion on executive privilege, which can shield communications between presidents and their aides. The office declared that the doctrine covers not only official advisers, but can also expand to cover outside associates consulted by the president in certain circumstances.

The opinion was released as the American Bar Association was suing the Trump administration over its efforts to sanction law firms that hired Trump’s perceived foes or took on cases he disliked. The ABA is seeking testimony from Boris Epshteyn, one of Trump’s outside advisers.

The ABA assailed the OLC opinion as self-serving and suspiciously timed. But Michael Edney, who worked at the OLC under Bush, said the opinion’s reading of executive privilege was not unreasonable, given the importance that some presidents place on outside consultation.

“It’s not all that crazy to me,” he said.

Most experts said that while OLC lawyers are not required to be blind to the president’s agenda, they cannot simply interpret the law to suit his priorities. Former OLC employees said the office should not be a rubber stamp, regardless of whether the president heeds its opinions.

“In the executive branch, like everywhere else in the world, lawyers give advice and clients make decisions,” Edney said. “Their job is to provide legal advice.”