Within the Department of Justice is a group of lawyers doing the lawyering for the Executive Branch of government. It reputedly has the best and brightest lawyers the DoJ has to offer, which would make sense since it’s lawyering for lawyers. It’s called the Office of Legal Counsel, and it’s putative mission is to be the legal adviser to a branch of government, including the president.
[T]he Office of Legal Counsel provides legal advice to the President and all executive branch agencies. The Office drafts legal opinions of the Attorney General and provides its own written opinions and other advice in response to requests from the Counsel to the President, the various agencies of the Executive Branch, and other components of the Department of Justice. Such requests typically deal with legal issues of particular complexity and importance or those about which two or more agencies are in disagreement. The Office is also responsible for reviewing and commenting on the constitutionality of pending legislation.
Not only does this seem relatively benign, but obviously necessary. How else would a branch of government arrive at unified decisions as to disputed questions? Even the Executive Branch needs legal advice, and when there are good arguments for different positions, an ultimate choice has to be made.
So why is it under attack?
When the Supreme Court and lower courts interpret the Constitution and laws, their decrees are public, accessible and subject to debate. In some instances, if an interpretation of the law doesn’t sit well with the public, Congress can respond by amending the law, effectively nullifying a court’s decision. Or if a ruling on a constitutional question is especially egregious, a constitutional amendment, though unlikely, remains an option.
But it turns out there’s a whole category of American law that is above such checks and balances. The public knows nothing about it and there’s no way to challenge it in court, let alone debate it in the halls of Congress.
What Cristian Farias is talking about isn’t some clandestine congressional caucus, or FISA court rulings, but the opinions of the OLC. The narrative is grounded in Knight First Amendment Institute at Columbia University director Jameel Jaffer’s question begging about the nature of OlC opinions.
In theory, it’s the province of the judiciary to say what the law is, but in practice this task often falls to the Office of Legal Counsel. This is because many important questions relating to the scope of executive power never come before the courts. It’s the executive branch that has the last word, and within the executive branch, it’s the OLC. When questions arise about what the government has the power to do, it’s often the OLC that answers them. When agencies have disagreements about the law, it’s the OLC that resolves them.
Because they have the force of law within the executive branch, and because they often address topics of real consequence, the OLC’s opinions are frequently the subject of litigation under the Freedom of Information Act (FOIA). Usually this litigation arises under the provisions of FOIA that require federal agencies to respond to requests for records. Someone learns of the existence of an OLC opinion, requests it, and then sues to enforce the request when the OLC fails to respond, or when it claims the opinion is privileged. Occasionally this kind of litigation results in important disclosures, but there’s something disturbingly backwards, and even undemocratic, about a system that allows the government to conceal and withhold opinions that have the force of law unless and until someone requests them.
On the one hand, saying they have the “force of law within the executive branch” is to use an inapt analogy as characterization, and then bootstrap the analogy as if it’s literally correct. The attempt to related it to court decisions, raised by Jaffer and repeated by Farias, is unfortunate spin.* OLC isn’t a court, nor is it supposed to be. It’s a legal adviser with a client who is duty bound to follow its advice because every person in the executive branch can’t invent their own interpretation of law whenever they feel like it.
But that doesn’t mean there isn’t a point to the argument that keeping OLC opinions secret doesn’t raise problems. There is a dark side to what OLC does as well, John Yoo’s Torture Memo being the quintessential example. A question can be posed to OLC to come up with a rationalization that allows conduct such as torture, or from a less brutal perspective, impose racial quotas or impose transgender bathroom rules, and thereby immunize those who comply. If OLC says it’s legal, it is until a court holds otherwise, and protects those who relied on it from consequences.
The effort to conflate law, whether enacted by Congress or held by a court, with OLC memos would serve to manipulate public opinion to support the call for transparency, that OLC opinions should be made public because, heck, they’re law. And in some instances, to some degree, it takes on some attributes of law. When OLC allows itself to be used as a tool to rationalize engagement in illegal conduct, the demand for transparency so that another branch of government can shut it down makes grave sense.
But to simply call it law, compare it to court rulings, and then leap to the conclusion that law shouldn’t be secret is a disingenuous argument designed to manufacture a false narrative and thereby create a false impression as to what OLC is doing.** The Knight Institute’s Campaign for Accountability v. DOJ case isn’t without justification, and there are good arguments to be made that OLC’s opinions, or at least a certain genre of opinions, should be subject to public review much as any agency’s regulations or guidance must be transparent.
The fight, however, should be made on its merits, not on spin and manipulation of public perception. We’re deluged with distorted definitions, begged questions, that make it impossible to reach intelligent answers about how best to run a country. As effective as it may be from an advocacy standpoint to create a fictional public view based on false narratives, it impairs our ability to make sound decisions, or even to have an intelligent argument as we’re not talking about the same thing.
This is a serious issue, and there are serious arguments to be made on both sides. That this is a “secret body of law,” however, isn’t serious and isn’t real. It has no place in the argument. It’s not that this isn’t a fight worth making, but that it should be a fair fight based on reality rather than twisted narrative.
David Barron, who led the office during the Obama administration, observed in 2010 that the OLC is “frequently asked to opine on issues of first impression that are unlikely to be resolved by the courts—a circumstance in which OLC’s advice may effectively be the final word on the controlling law.”
That’s about as close as he gets to analogizing OLC opinions to law, that the subject matter of the opinions may, in some instances, be “unlikely to be resolved by the courts” and thus “effectively the final word.”
**Never, in my wildest imagination, would I expect to find myself arguing for the benefit of OLC, and I would argue that I’m not doing so now, but rather arguing against the manufacture of a narrative designed to capture the public’s understanding and disingenuously spin it so that the transparency argument is based on the conflation of law and OLC advice.