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Re:FBI Kept Demanding Email Records Despite DOJ Saying It Ne... by rayiner on Thursday June 02, 2016 @10:28PM (#11827886)
It represents a real failure of leadership on the part of the President if parts of the executive are ignoring OLC opinions.
Re:FBI Kept Demanding Email Records Despite DOJ Saying It Ne... by dragonwriter on Friday June 03, 2016 @11:24AM (#11830840)
> It represents a real failure of leadership on the part of the President if parts of the executive are ignoring OLC opinions.

Whatever it might be executive-branch-wide if non-DOJ agencies were doing that, its a failure of leadership within DOJ if entities within DOJ are ignoring OLC opinions. Which is the issue here; the lowest common level of authority between FBI and OLC isn't the President of the United States.

Re:FBI Kept Demanding Email Records Despite DOJ Saying It Ne... by leereeves on Friday June 03, 2016 @01:59AM (#11828615)
What's the OLC's authority? Is their opinion binding?
Re:FBI Kept Demanding Email Records Despite DOJ Saying It Ne... by rayiner on Friday June 03, 2016 @11:07AM (#11830735)
It's not formally binding. But the executive is a single entity under the President. Constitutionally, the FBI doesn't have any independence. The OLC is like the executive's in-house legal counsel. One part of the executive ignoring its opinions is like having a division in your company ignoring your legal department's opinions and coming to its own conclusions. It represents a failure of leadership at the top.
Re:FBI Kept Demanding Email Records Despite DOJ Saying It Ne... by dragonwriter on Friday June 03, 2016 @11:51AM (#11831024)
> But the executive is a single entity under the President.

Given that Congress constitutionally can, and does, assign functions directly to specific entities within the executive branch, the concept of the unitary executive, while not entirely lacking in validity, is limited even as a description of the Constitutional structure, much less practical and political reality.

> The OLC is like the executive's in-house legal counsel.

No, its not.

Its like outside (advisory but not trial, as the latter function is handled by, well, much of the rest of DoJ) counsel to executive branch entities other than DoJ, which all, in fact, also have their own in-house counsel.

Re:FBI Kept Demanding Email Records Despite DOJ Saying It Ne... by rayiner on Friday June 03, 2016 @03:37PM (#11832657)
The three co-equal branches of government have the prerogative to independently interpret the Constitution. But Departments within the executive do not stand in the same place as the co-equal branches. They don't get to have their own interpretations of the Constitution--just the executive's interpretation. They do often have their own in-house counsel, but those are generally responsible for Department-specific issues, not generating independent opinions on matters of cross-cutting concern.

To stretch the corporate analogy, it's like a large company that might have regional or divisional legal departments in addition to a general counsel's office. While the divisional departments may have specific roles and expertise, they cannot go their own way on matters of company-wide concern.

Comparing OLC to outside counsel ascribes to departments an autonomy they don't possess. A company is an independent entity with the prerogative to ignore its outside counsel. But agencies like the FBI are not independent. They're mere organizational units of the executive.

Re:FBI Kept Demanding Email Records Despite DOJ Saying It Ne... by krashnburn200 on Friday June 03, 2016 @11:17AM (#11830800)
If by leadership you mean fire the instigator of the asshattery then I agree with you.
Re:FBI Kept Demanding Email Records Despite DOJ Saying It Ne... by rayiner on Friday June 03, 2016 @11:22AM (#11830824)
Sure. But failure to fire the people being insubordinate is also a failure of the President's leadership.
Re:FBI Kept Demanding Email Records Despite DOJ Saying It Ne... by dragonwriter on Friday June 03, 2016 @11:54AM (#11831048)
The people being insubordinate may well not be political appointees that serve at the pleasure of the President and who therefore could be fired by the President (and, procedurally, the President can't directly institute the processes which would lead to firing them, either), and while the President can fire the political appointees above them, the President can't replace those political appointees without the cooperation of the Senate (unless the opportunity for a recess appointment pops up.)
Re:FBI Kept Demanding Email Records Despite DOJ Saying It Ne... by ryanlol on Saturday June 04, 2016 @05:37AM (#11835681)
Failure to fire those political appointees for not firing insubordinates is hardly defensible.
Re:FBI Kept Demanding Email Records Despite DOJ Saying It Ne... by Pica_soO on Friday June 03, 2016 @11:38AM (#11830923)
Wenn das der Führer wüsste..
Re:FBI Kept Demanding Email Records Despite DOJ Saying It Ne... by scintill76 on Friday June 03, 2016 @04:52AM (#11829108)
From above, "Opinions issued by the OLC are generally treated as binding and final within the executive branch." So they don't have any legal authority or hierarchy per se since they're two parts of one legally defined branch of the government, but apparently the OLC is supposed to be the authority.
Re:FBI Kept Demanding Email Records Despite DOJ Saying It Ne... by kahnpro on Friday June 03, 2016 @07:12AM (#11829584)
But is the president not in charge of the entire executive branch? If he wanted to fix it, could be not issue binding orders?
Re:FBI Kept Demanding Email Records Despite DOJ Saying It Ne... by DiabloD3 on Friday June 03, 2016 @07:55AM (#11829758)
I'm not an expert on law by any means, but I think Obama can fix this with an executive order.