Maurer: OLC memo on boats strikes is 'bullshit'

 Dan Maurer of Lawfare describes the difference between a lie and “bullshit” in the context of the military boat strikes which continued yesterday with six more deaths:

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.

 

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.

 To read more CLICK HERE