The Department of Justice’s Office of Legal Counsel (OLC) serves as legal advisor to the president and executive branch agencies. OLC issues legal opinions and often acts as the final authority on how laws are to be interpreted.
However, these legal opinions and how they are analyzed are often withheld from Congress and the public. In fact, the few OLC opinions that have become publicly available often reveal that they undermine federal legislation and reinterpret the Constitution to expand executive branch power.
When opinions are kept secret, there is no way to know what opinions exist and Congress is unable to determine how the executive branch is interpreting the law, creating an imbalance of power between the branches. In sum, there’s no space for secret law, and OLC opinions can be a gateway to lawlessness.
Congress has struggled to access OLC opinions, and for years civil society has been pushing to make these reports available. However, there are avenues that Congress can take to bring much needed transparency and accountability to OLC opinions.
The first avenue is mandating the disclosure of OLC opinions within report language in appropriations legislation. The Commerce, Justice, and Science Appropriations Subcommittee has jurisdiction over the Department of Justice, and we asked them last year (see our House and Senate testimony) to include report language that requests the Justice Department provide to the Appropriations Committees a list of final OLC opinions currently in effect, and identify, for each opinion, who signed the opinion, who received it, the date it was issued, and the opinion’s title.
The FY20 House CJS Report included language that required the Justice Department to “submit a report to the Committee that lists each OLC opinion currently in effect” in certain circumstances (e.g., opinions designated as final or relied on). Unfortunately, the Senate CJS report did not include OLC transparency language, and the Joint Explanatory Statement superseded the House language and “strongly urged” the Attorney General to direct OLC to publish all legal opinions “that are appropriate for publication.” However, without a proper definition of “appropriate for publication”, the Justice Department was able to bypass the requirement.
Similar to last year, Demand Progress requested the CJS subcommittee include language to improve Executive Branch accountability by providing an index of the Justice Department Office of Legal Counsel opinions currently in effect. House appropriators did so, in their committee report. The report language states:
Pg. 59: “Office of Legal Counsel (OLC) opinions.—To serve the public interest, and in keeping with transparency and the precedent of public reporting of judicial decisions, the Committee asks the Attorney General to direct OLC to publish on a publicly accessible website all legal opinions and related materials, except in those instances where the Attorney General determines that release would cause a specific identifiable harm to the national defense or foreign policy interests; information contained in the opinion relates to the appointment of a specific individual not confirmed to Federal office; or information contained in the opinion is specifically exempted from disclosure by statute (other than sections 552 and 552b of title 5, United States Code). For final OLC opinions for which the text is withheld in full or in substantial part, the Attorney General should provide Congress a written explanation detailing why the text was withheld.
In addition, the Attorney General should also direct OLC to publish on a publicly accessible website a complete index of all final OLC opinions in both human-readable and machine-readable formats, arranged chronologically, within 90 days of the enactment of this Act, which shall be updated immediately every time an OLC opinion or a revision to an opinion becomes final. The index shall include, for each opinion: the full name of the opinion; the date it was finalized or revised; each author’s name; each recipient’s name; a unique identifier assigned to each final or revised opinion; and whether an opinion has been withdrawn.”
This language is a crucial step to provide greater transparency of OLC and the additional requirement to make opinions human- and machine-readable is also a huge victory.
Last Tuesday, the full Appropriations Committee approved the fiscal year 2021 Commerce, Justice, Science, and Related Agencies bill on a vote of 30 to 22. There was no discussion on the OLC language provision during the markup.We are glad to see the OLC transparency provision made it into report language. We now wait to see if companion language will be included in the Senate report language.
The OLC Sunlight Act
Beyond the appropriations process, Congress also has the ability to bring greater accountability and transparency to OLC opinions through authorizing language. Last year, the OLC Sunlight Act — championed by Reps. Cartwright, Lofgren, and Quigly — was introduced with this idea in mind. A bipartisan coalition of 17 organizations from across the political spectrum, including us, issued a letter endorsing the legislation.
The bill does two things: 1) it requires a publicly available list of all OLC opinions, including when they are issued and a summary of the legal question presented and 2) it requires OLC to publish all its final opinions online, with allowances for text to be withheld when it is properly classified, contains materials that impact privacy, and in other limited circumstances. The bill currently has 23 co-sponsors, all Democrats.
The legislation does not attempt to change any policy issues that are at stake in OLC opinions. Rather, it provides a greater protection for our democracy through transparency and accountability.
The status quo is simply not enough. Neither Congress nor the public knows what OLC opinions are in effect, especially because these opinions have sizable influences on federal law. We hope to see both the appropriations language included in the final passage of the appropriations bills and the passage of the OLC SUNLIGHT Act in the House and Senate.
— Written by Taylor J. Swift