This OLC Opinion Is ‘Bullshit’

The Department of Justice’s Office of Legal Counsel (OLC) has become a flashpoint in the public debate over the Trump administration’s compliance with federal laws, the Constitution, and foundational rule-of-law principles. The Justice Department’s resistance to publishing the OLC opinion on the lawfulness of the military’s counternarcotic boat strikes is one such lingering controversy. But lack of transparency is not always the problem. On Dec. 23, 2025, the OLC provided its opinion on the “Proposed War Department Operation to Support Law Enforcement Efforts in Venezuela” (called “Operation Absolute Resolve”) to the legal adviser for the National Security Council.

This particular OLC memorandum—more specifically, the argument it makes based on an interpretation of law and many now redacted facts—contains “bullshit”: in the technical sense of the term first described by philosopher Harry Frankfurt in his classic book, On Bullshit. Frankfurt’s chief accomplishment is lexicographically and conceptually distinguishing a lie from bullshit, an approach that has been applied since in many disciplines, including ethics, international relations, and rhetoric.

Inspired by other legal scholars’ use of Frankfurt’s “bullshit” concept to address serious controversies, including constitutional interpretation, I aim to apply Frankfurt’s definitional clarity to another legal methodology target: national security-related OLC opinions that rely extensively on previous OLC opinions as support for their key propositions. This matters because those key propositions in turn result in legal conclusions aligned with known policy preferences of the president. As Michael Smith put it: “Bullshit is worth calling out wherever it may be.”

This piece takes up that challenge and finds that “the President’s law firm” is as guilty of purveying bullshit as any other group of legal professionals. This is an especially dangerous practice for a government agency. It often results in a superficial legal argument that supports a presidential policy preference well known to the OLC, that may or may not reflect the “best view” of the law, and provides a veneer of authority masking its objectionable “truthiness.”

In the national security context, the danger of a bullshit OLC argument is elevated for four reasons: (a) The OLC’s influence and authority within the executive branch enables it to claim its own conclusions are quasi-precedential and conclusive unless the OLC, the attorney general, or the president chooses to override them (see this important law review article by Trevor Morrison, a former OLC attorney); (b) the actions analyzed frequently deal with life and death decisions involving the U.S. military; (c) the relevant facts are often classified and kept from public scrutiny; and (d) the decisions these OLC opinions validate often avoid judicial review.

The OLC’s Functions and Stated Principles

The OLC derives its authority from 28 U.S.C. §§ 511-513. As a small unit within the Department of Justice, it assists the attorney general in providing legal advice to the heads of the other executive departments and agencies, as well as the president, on complex, interagency, and novel legal issues that arise from the day-to-day administration of government. The OLC’s scope also includes the interpretation of treaties and international law, as well as issues that implicate the president’s constitutional authorities relative to states, Congress, and federal courts.

The OLC’s core mission is to “provide controlling advice to Executive Branch officials on questions of law that are centrally important to the functioning of the Federal Government.” Of course, it is not the policy of the OLC to proliferate bullshit. In late 2004, OLC leadership promulgated internal “Principles to Guide the Office of Legal Counsel,” endorsed by 19 former OLC attorneys. The first principle states:

When providing legal advice to guide contemplated executive branch action, OLC should provide an accurate and honest appraisal of applicable law, even if that advice will constrain the administration’s pursuit of desired policies. The advocacy model of lawyering, in which lawyers craft merely plausible legal arguments to support their clients’ desired actions, inadequately promotes the President’s constitutional obligation to ensure the legality of executive action.

Such lofty principles, reinforced several years later by David Barron’s 2010 internal “best practices” memo to his OLC counsel, are commendable and arguably necessary for the OLC to complete its functions consistent with professional obligations and its self-described project of “dedication” to rule-of-law values. To that end, OLC reminded its counsel that:

[t]o fulfill this function appropriately, OLC must provide advice based on its best understanding of what the law requires. OLC should not simply provide an advocate’s best defense of contemplated action that OLC actually believes is best viewed as unlawful. To do so would deprive the President and other executive branch decisionmakers of critical information and, worse, mislead them regarding the legality of contemplated action.

This principle alone should render it unlikely that OLC opinions will be fouled with bullshit. However, as described below, the egregious reliance on previous OLC opinions to justify key legal conclusions about constitutional and statutory national security powers is bullshit, and the OLC’s fourth principle admits this:

OLC routinely, and appropriately, considers sources and understandings of law and fact that the courts often ignore, such as previous Attorney General and OLC opinions that themselves reflect the traditions, knowledge and expertise of the executive branch.

The 2010 “best practices” memo is still posted on the OLC’s website, 16 years and three presidential administrations later. In that memo, Barron writes, “OLC opinions should consider and ordinarily give great weight to any relevant past opinions of Attorneys General and the Office. The Office should not lightly depart from such past decisions, particularly where they directly address and decide a point in question.”

Citing previous legal analyses as binding precedent on factually similar questions is expected in the judicial branch. However, the practice seems far less natural and more prone to confirmation, survivorship, authority, and overconfidence biases when executive branch officials use it for a president who asserts total administrative control. Nevertheless, the OLC has methods to mitigate these biases via its second principle:

OLC’s advice should reflect all relevant legal constraints. In addition, regardless of OLC’s ultimate legal conclusions concerning whether proposed executive branch action lawfully may proceed, OLC’s analysis should disclose, and candidly and fairly address, the relevant range of legal sources and substantial arguments on all sides of the question.

Notwithstanding the occasional controversial national policy greenlit by an OLC memorandum, such as Jay Bybee’s and John Yoo’s “torture memos,” the OLC’s influence and authority remain high, regardless of the political party in the White House. As Newsweek once described it, “[w]ithin the executive branch, including the Pentagon and CIA, the OLC acts as a kind of mini Supreme Court. Its carefully worded opinions are regarded as binding precedent—final say on what the president and all his agencies can and cannot legally do.”

The objectionable character of bullshit legal arguments is intensified by the nature of the OLC’s subject matter and its audience: in the case of using the U.S.’s Armed Forces against another sovereign nation like Venezuela or Iran, ultimately the secretary of defense and the president. For that reason alone, uncovering the bullshit inside OLC memos—which is not always easy given their national security-related redactions—is an act of public service.

Frankfurtian Bullshit

Frankfurt defined “bullshit” as a fouler version of “humbug,” which Max Black defined as “short of lying,” but a “deceptive misrepresentation ... of somebody’s own thoughts, feelings, or attitudes” and “especially by pretentious word or deed.” Frankfurt does not say “bullshit” is better or worse than a lie. In fact, the bullshit statement may actually be true. Rather, Frankfurt distinguishes its purveyors’ goals and methods. A lie is a deliberate statement of a falsehood. The speaker knows the statement to be false or at least thinks he knows. And the liar’s intent is to keep the listener or reader away from the truth of the matter via his deliberately false statement. Delivering an effective lie takes “craftsmanship.” But, unlike a liar, the bullshitter does not care if the statement is false, has no intent to lasso the listener or reader away from the truth, may accidentally be stating the truth, and may not even know if the statement is true or false. The bullshitter has a different objective:

[T]he bullshitter hides ... that the truth-values of his statements are of no central interest to him …. He does not care whether the things he says describe reality correctly. He just picks them out, or makes them up, to suit his purpose.

The object or motive of bullshit, then, is to serve the bullshitter’s particular desire or need “to talk without knowing what he is talking about” (emphasis added).

This OLC Memo…

The heavily redacted version of the OLC’s Maduro Rendition memorandum was published on Jan. 13, 2026, 10 days after Operation Absolute Resolve commenced. The mission, led by the special operations unit known as Delta Force, was over in a matter of hours. The OLC refers to the planned mission as a “hybrid” operation because—as Trump later announced—it was an “extraordinary military operation ... an operation against a heavily fortified military fortress in the heart of Caracas to bring outlaw dictator Nicolás Maduro to justice.” Secretary of Defense Pete Hegseth described the mission as a “historic operation, a massive joint military and law enforcement raid flawlessly executed.” The memorandum memorializes the OLC’s advice that the “President may lawfully order military personnel to assist law enforcement in forcibly removing Maduro from Venezuela to the United States for prosecution.” That advice was based, it seems, primarily on facts “explained to” the OLC (it is unclear by whom) on Dec. 22, 2025, just one day before the signed memorandum. It is possible that there were other briefings too, but this is the only one mentioned.

There is much to criticize—and some to applaud—in this memorandum. For example, international law experts Charlie Trumball and Michael Schmitt note that the OLC makes the “sweeping” claim that transporting illicit narcotics by boat in the context of a noninternational armed conflict constitutes “war-sustaining activity,” thereby making the “narcoterrorist[]” crew into civilians “directly participating in hostilities.” The OLC draws this conclusion without citation, which is even more worrisome because it contradicts international law and the Department of Defense’s Law of War Manual, both of which distinguish between war-sustaining objects (which usually cannot be targeted) and direct participation in hostilities by persons.

Trumball and Schmitt warn that the legal standard the OLC employs to justify targeting those boat crews would apply just as well to U.S. “[c]ivilians support[ing] military operations in myriad ways, including by manufacturing arms or defense equipment, constructing military facilities, and providing logistics, intelligence, and security support ... innumerable tasks that would fall into the war-supporting and war-sustaining categories.” The authors suggest, reading between the lines, that a more measured and considered OLC memorandum would not arrive at such a conclusion, knowing that the law and national self-interest caution otherwise.  

The OLC at least acknowledges that this proposed operation “will constitute an armed conflict under international law.” Of course, proper conflict classification did not stop the OLC from concluding the operation does “not rise to the level of war in the constitutional sense,” a conclusion that enabled Trump to avoid the congressional consultation, notification, and duration requirements of the War Powers Resolution. In other words, the mission would be bound by international law, which the OLC misreads in part, but not bound by any domestic law limiting the president’s discretion to use military force in the first place.

…Is Bullshit

Or at least some of it is. Citing previous OLC opinions, which, according to the OLC, carry “great weight” and should not be lightly discounted, carries significant signs of Frankfurtian bullshit. Consider the following examples from Parts II and III of the memorandum:

• To support its proposition that “extraordinary rendition from the territory of another State is recognized to be such an exercise of force by the United Nations,” the memo cited an international law case book from 1962, “various international law scholars” (the entire footnote that probably identifies those scholars and their scholarship on the question is, incredibly, redacted), as well as two OLC opinions involving the FBI. Of note, the latter of the two is a controversial William Barr opinion from 1989, which concludes a president does not need to obey the UN Charter’s prohibition on the use of force as a matter of domestic law. The OLC did not explain why the facts in those particular “extraterritorial apprehension” cases, which would not include fleets of military aircraft, special operations forces, and a naval armada, are analogous to the Maduro operation.
  
• In defending its decision not to address the pressing question of whether Operation Absolute Resolve violates international law, the OLC cited three OLC opinions, including the Barr memo mentioned above. Again, the OLC failed to explain why those OLC memos matter, other than as conclusive proof that the OLC has drawn this conclusion before.
  
• The OLC stated emphatically that “what does define the President’s authority to order [this mission] is the Constitution—which we turn to now.” It then proceeded to not cite the Constitution or any relevant federal cases interpreting constitutional separation of war powers. Instead, the OLC relied exclusively on two earlier OLC opinions: regarding the unilateral decision to use force “against Syrian Chemical Weapons Facilities” in 2018 and “to Use Military Force in Libya” in 2011. Both opinions are useful to the OLC now because the OLC had concluded in 2011 and 2018 that the president’s use of force without Congress’s authority was permissible, given a reasonable determination that the “action serves important national interests” and the “anticipated nature, scope, and duration” of the conflict is not “war” in the way the framers intended. But without any discussion or analysis of the Constitution’s text, judicial precedent, and original meaning, the OLC’s legal conclusion amounts to the following:
  
  

  It is lawful for the president to do this now because we have said in earlier conflicts that those presidents could do it then.

  This is a far cry from the OLC’s best practice of striving for a “clear and concise analysis and a balanced presentation of arguments on each side of an issue” and a “focus on traditional sources of constitutional meaning, including the text of the Constitution, the historical record illuminating the text’s meaning, the Constitution’s structure and purpose, and judicial and Executive Branch precedents interpreting relevant constitutional provisions.”
  

• To support the proposition that the Posse Comitatus Act does not constrain the president’s use of the military to support law enforcement raids overseas, the OLC cited another 1989 OLC memorandum, “Extraterritorial Effect of the Posse Comitatus Act.” The Maduro memorandum did not cite the statute itself, its legislative history, or any federal case interpreting it.
  
• The OLC claimed that the “President is entitled to considerable deference” in assessing whether military force is necessary to support law-enforcement operations.” Thereafter, the OLC just cited three earlier OLC opinions. That claim may be true, but the proper grounds for that claim are in the Constitution’s text, original meaning, structure, and historical and judicial precedent. The OLC could have buttressed these legitimate sources of meaning with analogies to statutory grants of emergency power to use the military in law enforcement contexts such as the Insurrection Act, not earlier OLC work product. As a result, the OLC’s claim is legal advocacy, not legal interpretation.
  
• In discussing whether the president could make a reasonable judgment that the amount of force proposed in Operation Absolute Resolve still falls short of “war in the constitutional sense,” the OLC cited previous OLC opinions involving airstrikes against the Islamic State, Syria, and in Libya; deployment to Haiti; and continuing hostilities in Kosovo. Rather than cite the Constitution’s text, original intent or meaning, structure, or historical and judicial precedent, the OLC’s legal argument was simply that we’ve made this point before.
  
• In stating the legally accurate rule that “the operation must comply with, among other principles, the principle of proportionality in both the jus ad bellum and jus in bello contexts,” the OLC did not explain what that principle means in either context and cites only to a 1962 OLC opinion from the Cuban missile crisis and an international law handbook.
  
• For the proposition that “it is always dangerous to infer approval of an existing practice from legislation that does not pass, but Congress’s continued appropriation of funds to the agencies known to engage in the practice should be taken as (at minimum) acquiescence,” the OLC cited only a previous OLC opinion. It could have cited relevant judicial precedent involving the separation of national security powers between presidents and Congress, to the implications of congressional acquiescence, and the importance of appropriations acts—perhaps some well known in the canon, such as the Prize Cases, Youngstown Sheet & Tube v. Sawyer, Orlando v. Laird, or Dames & Moore v. Regan.
  
• There may be more instances of unexplained self-citation. Many of the sources cited in both the text and in footnotes are redacted.

These illustrations all share common traits. Each proposition is significant and essential to the OLC’s legal conclusion. The authority relied upon to support that proposition is almost exclusively one or more previous OLC opinions. None of them cites the Constitution’s text, original meaning, structure, or historical judicial precedent that the OLC’s operating principles suggest are critical to answering constitutional questions.

This is not to say that the OLC’s conclusions are necessarily bunk. Frankfurtian bullshit is defined by the statement’s reckless disregard for its own truth value; the author does not need to know or believe in the truth of the statement itself in order to be motivated to make it. Sloppy legal justifications—avoiding authoritative sources of law outside of the OLC’s own past opinions, for example—suggest that the author’s prime motive is to provide a plausible account of the proposed action’s legality as quickly as possible to enable an action that the administration had already committed considerable resources to.

More Reasons Why the OLC Opinion Is Bullshit

To be clear, much of the Maduro Rendition memorandum is not bullshit. There are statements of fact that could be debated or reframed. There are interpretations of statutes and judicial precedents on which lawyers with expertise in constitutional war powers and international law may disagree. Not even all citations to previous OLC opinions are per se bullshit. But the instances highlighted above raise this concern—at least as Frankfurt defined it—and some additional observations about this memorandum underscore their bullshittiness.

As Frankfurt wrote:

[T]he production of bullshit is stimulated whenever a person’s obligations or opportunities to speak about some topic are more excessive than his knowledge of the facts that are relevant to that topic. This discrepancy is common in public life, where people are frequently impelled — whether by their own propensities or by the demands of others — to speak extensively about matters of which they are to some degree ignorant.

To be fair, no direct evidence exists other than the flawed legal analysis of direct participation in hostilities, noted by Trumball and Schmitt, on which to criticize the professional competence—including research diligence—of this memo’s OLC author(s). The memo was signed by T. Elliot Gaiser, an assistant attorney general and the head of the OLC, who has practiced law for nine years, including three stints as a judicial clerk. To the OLC’s credit, the memorandum acknowledges a “counterargument” that the OLC has “not been provided intelligence that the weapons will imminently be used to attack the United States;” that the OLC has “not reached a definitive conclusion about how international law would apply” to this operation; and that the intelligence community “has had difficulty corroborating reports that Maduro personally directs the Cartel de Los Soles.” That said, consider the following additional points.

First, OLC’s 2004 “Principles” states that its attorneys:

should take special care to consider the implications for its advice in all foreseeable potential applications. Also, OLC typically should provide legal advice in advance of executive branch action, and not regarding executive branch action that already has occurred; legal “advice” after the fact is subject to strong pressures to follow an advocacy model, which is an appropriate activity for some components of the Department of Justice but not usually for OLC.

Moreover, the OLC’s “best practices” memo calls for collaboration, or at least consultation, with subject matter experts and the lawyers in the relevant agency or department when possible. The Maduro Rendition memo’s numerous references to “briefings” about the proposed operation indicate that the OLC certainly spoke with senior members of the military or the secretary of defense. But in their recent article, Trumball and Schmitt suggest that the “unsubstantiated and legally flawed” memorandum suffers from a lack of proper coordination and review by subject matter experts, for example, in the Department of Defense’s Office of General Counsel and the State Department. There is no indication that experts in international humanitarian law either reviewed or contributed to the final memorandum.

The timing of the memorandum is also noteworthy, coming a day after the OLC was briefed on several pertinent facts (again, by whom?) relevant to its legal analysis. The consequence of this speedy and isolated review is that the memo’s rationale permits enemy nations to lethally target U.S. civilian employees of the Department of Defense during an armed conflict, wherever they may be and whatever they may be doing, because of their role in “war-sustaining activities.” This is evidence that the OLC, by its own words, did not “take special care to consider the implications for its advice in all foreseeable potential applications.”

Second, there is reason to believe that the OLC was aware of Trump’s inclinations and objectives in Venezuela as it developed its legal opinion. Trump made no secret about a potential military attack inside Venezuelan territory or his interest in arresting Maduro. The presence of a veritable armada of U.S. naval warships in the Caribbean was no secret either. Additionally, it is clear that the OLC agreed with or at least accepted Trump’s declaration that the Maduro regime’s alleged involvement in the illicit drug trade constitutes a national security threat against the “United States and its allies in the region.”

Third, there is good reason to believe that the OLC recognized the Defense Department’s sunk cost in planning this mission, an effort that long predated both the oral and written legal opinions. In the memorandum, the OLC describes details of the “proposed operation,” including the location of Maduro’s capture; the number of anti-aircraft artillery batteries expected to present hostile resistance; the presence of “weapons ... capable of downing the helicopters carrying the assault and retrieval force;” the (heavily redacted) character of the U.S. “assault force;” the number of U.S. military aircraft expected to “serve as an escort and clear emplaced anti-aircraft batteries;” the possibility that three airfields may be “destroyed;” the expected duration of the mission; the precise time of the strike; a redacted description of “non-kinetic action” that would precede the strike, including disruption of power at Fort Tiuna where Maduro was most likely to be found. Such information is not gleaned from military doctrine and operations manuals, or from similar past armed conflicts. These tactical details are available only after extraordinary advance work in planning and preparing a military operation against a named target. The OLC was not blind to the fact that an opinion that concluded the president lacked legal authority for this operation would render months of intense planning and preparation at risk of being mooted.

Taken together, these three points suggest the OLC’s analysis was spoiled by (a) not enough intellectual rigor (including interagency legal input and review); (b) biases reflecting acceptance of Trump’s characterization of facts about Maduro’s conduct despite concerns from the intelligence community; and (c) a desire to facilitate the Defense Department’s complex military operation. Such enabling conditions, according to Frankfurt, remove barriers to bullshit.

In sum, the Maduro Rendition memo is riddled with bullshit. In overciting and underexplaining previous OLC opinions to support key legal propositions, the memo fails to meet the best practices and principles established by the OLC itself. By swallowing whole the core belief that OLC opinions are precedential within the executive branch and ignoring relevant constitutional text, case law, and original meaning to establish those key propositions, the memo fails to understand why some OLC opinions deserve quasi-precedential reverence, persuasive appeal, and a form of stare decisis in the first place.

Conclusion

There is no doubt that OLC opinions can be careful, thorough examinations of relevant law and facts that may be useful in developing a legal argument to address a president’s authority in a current national security crisis. The opinions memorialize legal analyses often rendered after discussion with subject matter experts and lawyers from the relevant agencies and departments; they are expected to arrive at the “best view” of the law given the authoritative sources in the Constitution’s text, structure, original meaning, relevant statutes, relevant case precedent, and past practice. For an alternative, see Bob Bauer’s argument that the “best view” is an unreasonable standard in many national security crises, but Bauer’s less onerous standard would not countenance bullshit either.

This does not suggest that the OLC should not cite its own previous opinions if relevant to the legal question presented. Instead, this piece is a cautionary note: An opinion’s legal arguments that rely heavily on prior OLC opinions seem to care only about its own past practice. At its root, this legal argument says nothing deeper than: We’ve determined presidents can do this, or something very like it, previously; therefore, the president, who’s our boss and client, can do so now. This looks an awful lot like the OLC would rather not care to revisit those other authoritative sources of law, not because it might be proven wrong, but because it knows that its opinion, as written, already serves the goal of producing a new plausible legal analysis to greenlight a decision the president already made.

Because such opinions—and many of the decisions they legally justify—are not subject to judicial review, and serve explicit executive branch needs, not much else needs to matter to the OLC if it is unprincipled and undisciplined in performing its function. As Smith notes in his discussion of “audience-centric bullshit,” “research suggests that those who use bullshit to persuade others may themselves be more susceptible to fall for bullshit—particularly bullshit that sounds profound but is, in fact, nonsense.” In other words, if the audience is himself a bullshit artist, he may not recognize others’ bullshit when it comes across the Resolute Desk.

Audience certainly matters, but the OLC ought to remind itself that this is because an “advocacy” approach to its analysis “inadequately promotes the president’s constitutional obligation to ensure the legality of executive action.” As a normative matter, that constitutional obligation outweighs whatever pragmatic stare decisis value previous OLC opinions may offer within the executive branch and to a particular president. The alternative is to believe that the OLC’s precedent matters more than the constitutional obligations of their client, a conclusion that has no merit whatsoever.

When even careful lawyers are motivated to “get to yes” for an imperious and unforgiving client, their work is prone to bullshit. And this particular OLC opinion is full of it. We may never see the bullshit infecting the boat strike OLC memorandum, but if OLC practice is any indicator, you can bet that it and any memorandum discussing authority for the current war in Iran will also be riddled with bullshit—in the technical sense.