Trump Is the Law for the Executive Branch
How the administration conforms legal interpretation to the president’s wishes.
The firing of three judge advocates general last Friday is the latest step in Trump 2.0’s scheme to blunt executive branch legal obstacles to President Donald Trump’s will. The theory underlying this scheme is that executive branch legal interpretation lies in the hands of a chief executive who believes he is saving the country, and that “He who saves his Country does not violate any Law.”
A Conventional Presidency
The actions of the four million or so people who work in the federal executive branch are heavily governed by law. More than 20,000 executive branch lawyers (the exact number is elusive) interpret this law and provide guidance to help ensure that executive branch officials conform to the law. This task is especially important since most executive branch action is not subject to judicial review.
The president sits atop these thousands of executive branch lawyers. Article II requires him to “take care that the Laws be faithfully executed,” which means that he must obey the law and enforce the law. But as an incident to this duty, the president must interpret the law. Because it is his duty, and because the executive power is vested in him, his interpretations bind the executive branch.
But the president is busy (and is often not a lawyer). So he typically delegates his interpretive authority to the attorney general (AG), who by custom delegates it to the Office of Legal Counsel (OLC). This authority is also decentralized to agency general counsel, and down from there. Agency lawyers are basically (skipping over small complications) bound by the legal interpretations of the Justice Department (the AG and/or OLC), which in turn can be (but rarely are) overturned or revised by the president himself, who can receive advice in this regard from the White House counsel.
This is the standard structure. But nothing about it is set in stone except for the president’s ultimate interpretive authority. The president can organize this authority and the advice he receives basically however he likes. Some administrations make OLC the interpretive kingpin. Some center important legal decisions in a White House-centered lawyer’s committee process led by the White House Counsel. Sometimes a president gets advice from outside the administration. There are other variations.
However legal interpretation is organized, every administration since Ford’s, and many before, with possible exceptions in the early George W. Bush administration, accepted that the president’s legal advisers should not be a rubber stamp. Put another way, they believed there is invariably space between what the law requires and what the president wishes; otherwise the presidency does not conform to law.
That does not mean that administration lawyers are detached or independent like judges. They use different interpretive principles that favor presidential power. And their legal advice “needs to have the political dimension clearly in view, without a regard for any pejorative attached to the word political,” as former Attorney General Elliot Richardson explained. Richardson was not advocating a rubber stamp. He was saying that an executive branch lawyer is part of an administration and seeks to help the president achieve his goals in a lawful manner.
OLC in its “Best Practices” memo notes that its legal analysis “may appropriately reflect the fact that its responsibilities also include facilitating the work of the Executive Branch and the objectives of the President, consistent with the law.” But the memo—which as of today is still on the OLC website—also says that OLC aspires to “provide advice based on its best understanding of what the law requires—not simply an advocate's defense of the contemplated action or position proposed by an agency or the Administration.”
The system often constrains the presidency but is imperfect in ensuring full executive branch compliance with the law. (So too is judicial review, but that is another story.) The law is often unclear and administration lawyers are often under pressure to find a way to approve a presidential initiative. Every administration is accused of illegal action, and the charge is often valid. Also, different lawyers view legal issues differently. Some are too permissive in their interpretations, others too constrictive. The same problem arises in courts, of course, and is ultimately sorted out by the Supreme Court (which itself has justices with different legal views).
The president is the Supreme Court for the executive branch. But in past practice, he has very rarely adjudicated legal issues. Every modern presidency until Trump 2.0 accepted that the legal issues for an administration would almost always be decided outside the White House, and understood that inevitably some administration policies would be blocked or modified due to a lawyer somewhere in the administration determining that they had legal problems. Something like this basic commitment is necessary for a presidency to act in accordance with law.
Trump 2.0
The Trump administration 2.0 rejects this basic commitment because too many lawyers in Trump 1.0 “disagreed with the president and tried to thwart him,” as Trump Office of Management and Budget (OMB) General Counsel Mark Paoletta said last February. His boss, OMB Director Russell Vought, complained in 2023 that the lawyers in Trump 1.0 would “come in and say it’s not legal, you can’t do that,” and that such legal objections are where “so much of things break down in our country.” These men were not talking about career attorneys or the ones on the Mueller investigation. They had in mind Trump’s White House and DOJ appointees.
The solution has been to find lawyers who will tell the president what he wants to hear so that he can do what he wants. As Defense Secretary Peter Hegseth explained yesterday: “We want lawyers who give sound constitutional advice and don’t exist to attempt to be roadblocks to anything … that happens in their spots.” (The second half of this sentence might suggest what “sound” means in the first half.) The lawyers appointed to Trump 2.0 “should be as aggressive as possible to help the president carry out his agenda,” said Paoletta last year. Vought echoed: “I don’t want President Trump having to lose a moment of time having fights in the Oval Office about whether something is legal.”
The administration is carrying out this goal in four steps.
Hire and Fire on the Basis of Personal Loyalty
Presidents often hire close associates to be top administration lawyers. John F. Kennedy, previously an extreme case, made his brother the attorney general and his speechwriter and close aide, Ted Sorenson, the White House counsel. But no president has come close to Trump in efforts to hire very loyal former personal attorneys as top administration lawyers, or in eliminating known or possible non-loyalist lawyers.
All of Trump’s top administration lawyers previously served as Trump’s personal counsel: Attorney General Pamela Bondi (Trump’s first impeachment, among other connections), Deputy Attorney General nominee Todd Blanche and Acting Deputy Attorney General Emile Bove (both on the Stormy Daniels and Jan. 6 and classified documents cases), Solicitor General Nominee John Sauer, (special counsel immunity case and 2020 Election challenges) and White House Counsel David Warrington (Trump’s 2024 presidential campaign, January 6th Committee, and the Colorado ballot disqualification case).
Late last week the administration announced three other top DOJ nominees (for the National Security Division, the Civil Division, and the Office of Legislative Affairs), all of whom are, as Reuters put it, “first-term loyalists.” And beyond that, it appears that every senior-level attorney hire, like all Trump administration hires, must pass an intensive loyalty test.
The Trump administration has also fired or reassigned dozens of attorneys, reportedly due to their roles related to policy matters important to the administration or their connections to prior investigations of Trump or other Jan. 6 matters. On Jan. 20, DOJ fired the top four officials who run the U.S. immigration courts. The next day the Justice Department reportedly reassigned around 20 career department officials, some of whom had worked on cases involving Trump. The following week it fired “a number of DOJ officials who played a significant role in prosecuting President Trump.” Then it fired more than a dozen prosecutors tied to the investigation of the Jan. 6 riot. On Feb. 20, Bondi terminated the general counsel for the Bureau of Alcohol, Tobacco, Firearms, and Explosives. Last Friday Hegseth fired the judge advocates general of the Army, Navy, and Air Force.
Trump has also ordered the termination of all U.S. attorneys, but this is standard practice. And Bove, after accepting the resignation of Acting U.S. Attorney Danielle Sassoon in connection with the Eric Adams matter, placed her top prosecutors on administrative leave pending investigation (at least one of whom then resigned).
Place Legal Interpretation in the White House, Not DOJ
An important and underappreciated Trump 2.0 innovation is to cut down or eliminate the interpretive authority of OLC and center that authority firmly in the White House like never before.
This may seem surprising to those who think OLC lawyers are yes-men and yes-women. OLC is much more detached from presidential wishes than the White House lawyers who work in the hot house, and often blocks presidential initiatives. OLC has many career attorneys and a thick culture. And OLC has a body of precedent that, though generally friendly to presidential power, is often constraining. For example, at least two White House initiatives—rejection of birthright citizenship and presidential impoundment authority—are contrary to OLC opinions.
The birthright citizenship executive order, and the uneven quality of executive orders to date, are good evidence that OLC is not playing its typical role in reviewing executive orders for form and legality. I have heard from several people that OLC is sidelined more generally. White House Press Secretary Karoline Leavitt said that White House Counsel Warrington approved the now-withdrawn OMB spending freeze. Normally, such a directive would have been vetted (and viewed disapprovingly) by OLC. Leavitt also said in the same press briefing that the White House Counsel’s Office determined that firing the inspectors general and federal prosecutors connected to Jan. 6 were within the president’s “executive authority.”
It is highly doubtful that Warrington and his handful of lawyers are doing deep or serious legal analysis across the dozens of controversial administrative initiatives. The White House’s Counsel’s Office in general lacks such capacity. It is also possible that the administration is still outsourcing legal analysis, as it did during the transition.
But it might not matter, since the theory of executive branch legal interpretation under Trump 2.0 has little need for legal analysis. The theory takes literally that the president is the chief legal interpreter. And it marries that view to Trump’s confident, expansive, self-justifying belief that “I have an Article 2, where I have the right to do whatever I want as president.” Trump is the law, so determining the legality of his particular wishes is unnecessary.
Issue Directives to Implement This Vision
The administration cannot ensure that all 20,000 plus executive branch lawyers are loyalists who will interpret the law to meet the president’s wishes. The firings are in part an intimidation tactic to achieve this goal. But the administration has issued formal directives to implement the clear message. There are too many to list, but here are a few that give a flavor of the efforts to ensure that legal interpretation conforms to the president’s agenda.
The birthright citizenship EO invokes “the authority vested in me as President by the Constitution” to offer an interpretation of the Fourteenth Amendment at odds with a prior OLC opinion and with a Supreme Court opinion and longstanding practice. And then it makes this view “the policy of the United States” binding on every “department or agency of the United States government.” The main civil service EO states that “Article II of the United States Constitution vests the President with the sole and exclusive authority over the executive branch, including the authority to manage the Federal workforce to ensure effective execution of Federal law.”
Last week’s EO on “Ensuring Accountability for All Agencies” laid out the general rule:
The President and the Attorney General, subject to the President’s supervision and control, shall provide authoritative interpretations of law for the executive branch. The President and the Attorney General’s opinions on questions of law are controlling on all employees in the conduct of their official duties. No employee of the executive branch acting in their official capacity may advance an interpretation of the law as the position of the United States that contravenes the President or the Attorney General’s opinion on a matter of law, including but not limited to the issuance of regulations, guidance, and positions advanced in litigation, unless authorized to do so by the President or in writing by the Attorney General.
The rule is consistent with the traditional idea that legal interpretive authority presumptively rests with the attorney general subject to revision or reversal by the president, and seeks to ensure that the rule is implemented in independent agencies.
But consistent with the other EOs, the emphasis here on presidential “supervision and control” contemplates active presidential control. Bondi pledged at her confirmation hearing to be independent. But she made clear on her first day in office that Justice Department lawyers must “zealously advance, protect, and defend their client's interests” and must not “deprive[] the President of the benefit of his lawyers.”
This sentiment, stripped of its personal quality, makes general sense for DOJ litigators. But it is dangerous if applied to legal advice at the outset of the policy implementation process (where OLC typically weighs in), when the legality of presidential action is vetted. In that context, administration lawyers are not supposed to “zealously advance” the client’s interest. They are supposed to apply the law to determine if the action is lawful. As the run of legally questionable executive orders makes clear, that is not happening.
The TikTok EO is another example of imposed presidential control and the absence of any non-presidential legal vetting. This EO might be the one that is most clearly unlawful, since the president instructed the attorney general not to enforce the law, and to inform private firms that they could ignore it, for no reason other than his disagreement with the policy in the law. The Supreme Court in 1838 ruled that a president lacked such general dispensing power to disregard law, but that is precisely the power asserted here.
Step 4: Chisel the Federal Courts
The first three steps ensure that legal interpretation inside the executive branch does not deviate from the president’s policies. Some but not all of these policies, however, are subject to review by the federal judiciary, which the president does not control. The administration has been on the losing end of many temporary restraining orders (TROs) thus far. In several of them, the Justice Department is “systematically exploiting loopholes” and engaging in other tactics to resist compliance.
Two examples stand out. One is Aids Vaccine Coalition v. United States Department of State, where Judge Ali (D.C. District Court) issued a TRO enjoining administration defendants from “enforcing or giving effect” to elements of the EO designed to dismantle USAID, including by canceling grants and refusing to spend appropriated foreign aid funds. Another is State of New York v. Trump, where Chief Judge McConnell (Rhode Island District Court) issued a TRO obstructing OMB’s efforts to suspend financial assistance appropriated by Congress to states.
The administration through the Justice Department has strongly resisted both orders. The basic playbook seems to be to (i) construe the TROs as narrowly as possible, (ii) claim that continuing administration actions that appear like the ones the TROs aimed to enjoin are distinct actions based on sources of legal authority independent from the executive orders and memos referenced in the TRO, and (less prominently) (iii) attribute delays in compliance to logistical difficulties.
Each of these three tactics has been deployed by prior administrations, though rarely with the intensity and never on the scale of Trump 2.0.
Conclusion
“[I]f we could run our country the way I’ve run my company, we would have a country that you would be so proud of,” Trump said in the final 2016 presidential debate. Trump is running the government the way he ran the Trump Organization—his word is the law, and he is surrounded by compliant lawyers and “yes” staff.
Whether the four-step scheme to implement this vision is itself lawful is a complicated question that I will save for another day. For now it suffices to say that the idea that the president is the chief law interpreter for the entire executive branch has a long pedigree and a great deal of support in recent Supreme Court decisions.
This long tradition has always, until now, assumed that, with very rare exceptions, the president’s policy directives would be vetted by attorneys who with at least a modicum of detachment would seek to ensure legal compliance independent of the president’s will. The tradition began when President George Washington received different views about the legality of his 1793 Neutrality Proclamation from Attorney General Edmund Randolph, Secretary of the Treasury Alexander Hamilton, and Secretary of State Thomas Jefferson.
Nothing like that appears to be going on in Trump 2.0. What instead seems to be happening is an effort to supercharge the presidential interpretive power in a way that effectively removes all internal executive branch legal constraints on presidential action.
One might say that this is just fine, and not lawless, to the extent that the Constitution gives the president supreme executive branch interpretive authority. But that view elevates form over substance. Article III vests “the judicial Power” in the Supreme and lower courts, but we would not say that these courts acted appropriately if they decided cases without any regard to what the law said. A president who structures the office so that anything he wants to do is lawful because, without consulting the law, he says so, is a lawless presidency except to the extent checked by the federal courts or, less likely, Congress.