Justice Department's "Secret Law" Still Prevalent, Documents Show

Will Trump’s Office of Legal Counsel Provide the Public With Its Influential Legal Opinions?

Senator Jeff Merkley (D-OR) speaking against secret law on the Senate floor in 2012.

Senator Jeff Merkley (D-OR) speaking against secret law on the Senate floor in 2012.

The Department of Justice’s Office of Legal Counsel (OLC) is tasked with providing authoritative interpretations of law within the executive branch. These interpretations have immense influence on how the government operates, including setting boundaries on presidential power—and many of these legal opinions and memoranda are kept from the public. Some dub these OLC opinions “secret law.”

Legal experts believe OLC will be in the hot seat during the Trump administration. "It's going to be an interesting time at OLC because a number of issues are going to be turned upside down," attorney Walter Dellinger told National Law Journal in November. From 1993 to 1996, Dellinger ran OLC. On January 31, Trump nominated Steven Engel to run the office.

“The fact that the incoming president has stated in several areas that he intends not to follow existing law will make the position more challenging,” Dellinger said, citing the example of Trump’s campaign promise to bring back waterboarding.

On several controversial topics, Attorney General Jeff Sessions told Congress that he would turn to OLC for legal advice, including on matters involving Trump’s conflicts of interest and whether Trump’s hotel revenue from foreign governments violates the Constitution’s emoluments clause.

The OLC’s secrecy practices are long-standing. Over the years, influential Members of Congress from both parties as well as transparency advocates have urged the White House and the Department of Justice to make these opinions public. At the onset of Obama’s administration, expectations were high that his OLC would be “more forthcoming about its own interpretations,” according to the Brennan Center for Justice in 2009.

Information obtained by the Project On Government Oversight (POGO) through the Freedom of Information Act (FOIA) shows that those hopes were not met: OLC did not substantially change its secrecy practices during the Obama administration.

POGO had requested a listing of OLC opinions from January 2014 through March 8, 2017. In response, OLC sent documents listing 24 unclassified opinions. Some of these opinions were public, such as opinions on the Department of Homeland Security’s discretion on enforcement of immigration laws and on the Justice Department’s ability to withhold information from its own Inspector General. Out of those 24, the agency completely redacted the titles of 11 opinions. Even the dates those memos were issued are blacked out.

OLC opinion heavily redacted

A heavily redacted list of OLC opinions for 2013 was released to a Huffington Post reporter.

Four out of the five opinions issued so far in 2017 are redacted. It is unknown whether those four were issued on or after Donald Trump’s inauguration or while Barack Obama was president—although the lists appear to put opinions in the order of their issuance and the last and only unredacted one is dated January 20, inauguration day. That opinion states that the anti-nepotism statute does not apply to Jared Kushner, Trump’s son-in-law, whom Trump appointed as a senior White House advisor.

However, an OLC memo dated January 27, 2017, about Trump’s executive order on foreign travel is not on the list provided to POGO—at least in unredacted form—despite its release under FOIA to The New York Times in early February. POGO’s FOIA request was issued on March 8. In a two-page memo, OLC approved Trump’s executive order “with respect to form and legality.” Federal courts have put the executive order, as well as a revised version, on hold, finding that those filing legal complaints against it “have a strong likelihood of succeeding on their claim that the Executive Order violates First Amendment rights under the Constitution,” as one federal judge wrote. The Justice Department told reporters at The Huffington Post that OLC regularly conducts very cursory reviews of executive orders.

“That Office should be sharing with the American public the opinions it’s been providing to the President, especially when they supposedly sanction the unprecedented authority he claims to possess,” said Senator Charles Grassley (R-IA), chairman of the Senate Judiciary Committee, in 2015. Obama was President at the time. “And I’m going to work to see that it does. The public’s business ought to be public. Transparency brings accountability. The ideals and principles I’m talking about are foundational to our Republic.”

“It is a basic tenet of democracy that the people have a right to know the law. The notion of ‘secret law’ has been described in court opinions and law treatises as ‘repugnant’' and `an abomination.’ In keeping with this principle, the laws passed by Congress and the case law developed by the courts have historically been matters of public record,” stated Senator Patrick Leahy (D-VT) in 2008. “When it became apparent in the middle of the 20th century that federal agencies were increasingly creating a body of non-public administrative law, Congress passed several statutes requiring this law to be made public—including the Federal Register Act, the Administrative Procedure Act, and the Freedom of Information Act—for the express purpose of preventing a regime of ‘secret law.’”

Unfortunately, secret law created by OLC exists and little has changed in recent years.

The Trump administration has an opportunity to set a new course. “Please direct your OLC to publish these memoranda, to help promote informed discourse by the American people,” POGO’s Executive Director Danielle Brian wrote in a letter sent to the President Trump last week. “It is these memos that established the legal justification used, for instance, to conduct domestic surveillance in the United States, to change immigration policy, and to allow the president to use military force abroad and in the United States.”

 A Large Body of Secret Law

“OLC is not just any executive office. For decades, it has been the most significant centralized source of legal advice within the Executive Branch,” wrote Trevor W. Morrison, a Columbia University law professor who formerly worked at OLC, in a law review article in 2010.

David Barron, then-chief of OLC, wrote guidance for the office in 2010, stating:

OLC's central function is to provide, pursuant to the Attorney General's delegation, controlling legal advice to Executive Branch officials in furtherance of the President's constitutional duties to preserve, protect, and defend the Constitution, and to "take Care that the Laws be faithfully executed." To fulfill this function, OLC must provide advice based on its best understanding of what the law requires—not simply an advocate's defense of the contemplated action or position proposed by an agency or the Administration. Thus, in rendering legal advice, OLC seeks to provide an accurate and honest appraisal of applicable law, even if that appraisal will constrain the Administration's or an agency's pursuit of desired practices or policy objectives. This practice is critically important to the Office's effective performance of its assigned role, particularly because it 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.

But despite their importance, many of OLC’s legal opinions have been kept from the public. According to a 2008 declaration by Paul Colborn, a senior executive in OLC who oversees their FOIA responses, “The majority of OLC memoranda remain confidential. The Office has, however, a limited publication project whereby certain memoranda are reviewed and selected for publication. Memoranda are selected for publication only where the [Justice] Department determines, in consultation with the agencies or offices for which the memoranda were written, that it is in the public interest that they be disclosed.”

Building off an earlier examination by the Sunlight Foundation, POGO combined the new information obtained through FOIA with a list of OLC opinions covering 1998 through 2013. POGO analyzed OLC’s release of materials during this time period to assess whether any major changes in OLC disclosure practices have occurred. While there have been some noteworthy efforts to make a large number of historical (covering 1933-1977) OLC legal opinions public and to declassify George W. Bush-era OLC opinions related to national security, the office is still excessively opaque when it comes to opinions of more recent vintage:

  • It is difficult to determine exactly how many unclassified OLC opinions have been issued since 1998, although official OLC lists show a total of 535 unclassified opinions issued from January 1998 through March 2017 (16 Congressional testimonies by OLC officials are also listed). POGO has compared those lists against the 323 opinions issued since 1998 in OLC’s public opinions database. It appears that some opinions whose titles are redacted in the lists were released by OLC in its database, and some that are named in the lists were not.
  • Of the 535 listed opinions, 215 (39 percent) have their titles fully redacted, including the date published. This prevents the public from knowing even the topic of those memos, despite the fact they are unclassified.
  • The percentage of redacted OLC opinion titles has not changed since the Sunlight Foundation’s analysis in 2012. Their analysis also found that 39 percent of unclassified OLC opinion titles were redacted over the period of January 1998 through June 2012. A substantial reduction in secrecy during the 8 years of the Obama administration would have lowered this percentage—but the percentage did not change.
  • Separate from the lists and the database, OLC also maintains an online FOIA reading room with 62 OLC opinions and letters, many related to national security that have been declassified. Most of these are not included in the lists and none are in the main OLC opinions database.
  • The number of total OLC opinions, including classified opinions, is unknown. The topics those unknown opinions address and their content is largely a secret.

Earlier this month, Citizens for Responsibility and Ethics in Washington (CREW), filed a FOIA lawsuit to make OLC opinions public. “It is imperative the American people know the laws that govern the country they live in,” CREW’s Executive Director Noah Bookbinder said. “Transparency is the bedrock of a free and open society.”

Screenshot of title on OLC memo titled Interrogation of al Qaeda Operative

Screenshot of OLC memo from 2002 that was released after extension litigation.

Classified Legal Advice

The OLC list provided to POGO does not include any classified OLC opinions. “For your information, Congress excluded three discrete categories of law enforcement and national security records from the requirements of the FOIA,” the OLC response letter to POGO states. “This response is limited to those records that are subject to the requirements of the FOIA.”

“This is a standard notification that is given to all our requesters and should not be taken as an indication that excluded records do, or do not, exist.”

Critics have argued that the executive branch can release much more legal guidance from OLC on national security programs, appropriately redacted if necessary, without putting at risk legitimate secrets. While certain facts may need to be withheld, the legal content should be made as public as possible. Indeed, some legal experts have argued more transparency—and the scrutiny that results—may improve the quality of guidance that OLC provides.

That scrutiny is especially important in the realm of national security, where presidents have often asserted sweeping power yet are supposed to be constrained by constitutional checks and balances and the rule of law.

“An incentive is created for the preparation of secret memoranda that make outlandish claims of Presidential power if they cannot be reviewed by anybody. No one knows of the memo. So its arguments do not face the transparency of public scrutiny. The President and Office of Legal Counsel take no responsibility for its conclusions,” stated Senator Grassley in 2012.

“Then the Office of Legal Counsel later issues a public opinion on the subject. To bolster very weak arguments, it cites earlier memos. But it avoids transparency as well by keeping the memoranda secret, so no one can see that the opinion's weak arguments may be supported by only other weak arguments. It avoids accountability by suggesting that this question was already decided by an earlier Office of Legal Counsel memorandum,” he added.

“Instantly, the number of administrations that support expanded Presidential power goes from zero to two, neither one of which is said to be responsible for that expansion. That bootstrapping can never lead to a reasoned, objective analysis of Presidential power.”

Exemption Five

OLC’s secrecy regarding its unclassified opinions relies primarily on FOIA’s Exemption Five. This exemption allows agencies to withhold materials deemed covered by the “deliberative process privilege and the attorney-client privilege,” which OLC has “determined it is not appropriate for discretionary release.” In a handful of cases, OLC used Exemption Six, which protects against a “clearly unwarranted invasion of privacy.” When the title of an OLC opinion is released, Exemption Six is sometimes used to redact names of OLC attorneys who drafted the opinion. Exemption Five was generally cited as the reason OLC redacted the titles and dates of the documents on the list they released to POGO.

While the purpose of Exemption Five lines up with OLC’s mission as a provider of legal advice within the executive branch, it can easily be over-applied. Some critics call it the “withhold it because you want to” exemption. Yet agencies have a wide degree of latitude to release this information if they choose to do so.

The Justice Department’s own FOIA guidance states:

The most common examples of information that an agency might disclose as a matter of administrative discretion can be found under Exemption 5, which incorporates civil discovery privileges that protect the institutional interests of the agency possessing the information. The universal considerations to take into account in considering whether to make a discretionary release of information that otherwise could be withheld under the deliberative process privilege are the sensitivity of the record's contents and the age of the document. Records protected by other Exemption 5 privileges can be the subjects of discretionary release as well.

One of the main problems with OLC’s use of Exemption Five’s deliberative-process privilege to withhold the opinion memos is that those final memos are controlling legal interpretations that are used to make policy decisions—and which may have policy impacts years and even decades later. They are not deliberative documents. The justification for keeping a legal opinion under wraps falls flat.

Exemption Five “was initially conceived to prevent government employees from ‘working in a fish bowl,’ to allow employees to give each other—and their supervisors—candid advice,” as the National Security Archive’s Nate Jones has written. But legal opinions by OLC are not the same as emails by employees discussing evolving opinions on a topic before an agency or the draft documents that do not represent an agency’s final views. Final legal opinions by OLC are supposed to represent well-considered advice based on thorough analysis of the law.

The attorney-client privilege position is not straightforward either. It is true that OLC views federal agencies as its clients. But the relationship is not the same as that between individuals and their private attorney since OLC and the agency for which it’s drafting an opinion both ultimately work for the public—making the public the ultimate client. Kathleen Clark, a law professor at the Washington University in St. Louis, has written that “government lawyers’ confidentiality obligations differ from those of private sector lawyers” and that determining the identity of the “client” is a much more complicated question in the government attorney context.

OLC has stated that it uses its discretion to decide what opinions it believes should be public, then it consults with agencies before deciding whether or not to disclose its legal opinions. The White House could set a standard that OLC and agencies are required to disclose OLC legal opinions unless there is a tangible, demonstrable, and specific risk of harm (rather than hypothetical harm). This would extend and strengthen long-standing guidance in Executive Order 12146, in place since 1979, which states that “agencies are encouraged to make available for public inspection and copying other opinions of their legal officers that are statements of policy or interpretation that have been adopted by the agency, unless the agency determines that disclosure would result in demonstrable harm.” Such a White House directive would also put teeth into existing OLC guidance that states OLC should not withhold publication “because of speculative or abstract fears.”

During the 114th Congress, bipartisan legislation sponsored by House Oversight and Government Reform Chairman Jason Chaffetz (R-UT) and Ranking Member Elijah Cummings (D-MD) attempted to address the problems the public is currently having when trying to access OLC memos through FOIA. The legislation, which passed the House but did not make it through the Senate, would have prevented the OLC from withholding opinions that are “controlling interpretations of law, final reports or memoranda” used to make a final policy decision. This language would not supersede the application of another FOIA exemption, such as one to protect national security information or personal privacy, it would simply require agencies to justify withholding these memos beyond the misapplication of exemption 5. There is continued Congressional interest in addressing this issue, but no legislation has been introduced yet.

Congressional Limitations on Access

In addition to the lack of public access, Congress—a co-equal branch of government—lacks full and consistent access to OLC opinions. This hobbles the legislative branch’s ability to fulfill its constitutional obligation to oversee the executive branch. In 2013, Members of Congress were allowed to review what has become known as the “drone memo”—the Obama administration’s classified legal justification for carrying out targeted drone strikes such as the one that killed US citizen Anwar al-Awlaki. The sharing of that memo, however, was an isolated incident that reportedly required President Obama’s personal authorization. Around that same time, John Brennan, in his confirmation hearing to be CIA Director, told Senators that:

It is rather exceptional, as I think you know, that the Office of Legal Counsel opinion, or advice, would be shared with you. I think this was determined because of the rather exceptional nature of the issue and in a genuine effort to try to reach the committee’s requirements.

It should not be exceptional for Members of Congress to read OLC opinions. These opinions play a crucial role in interpreting the extent of sometimes ambiguous laws. Without access to these records, Congress cannot know if the executive branch is interpreting laws differently than Congress intended. With access, Congress could better amend and clarify legislation so that the spirit of the law is sustained. This is especially true for controversial subjects like the extent of the President’s authority to authorize targeted drone strikes.

In 2008, Senator Patrick Leahy authored the “OLC Reporting Act,” which would have required the Justice Department to fully report on OLC opinions to Congress, “thus allowing Congress to assess the Department's interpretation and respond, where necessary, through legislation or oversight.”

The legislation did not become law and was only reintroduced once more, in 2009 in the House.

Recommendations

POGO recommends that OLC take the following steps:

  1. To the greatest extent possible, publicly release its legal opinions, memoranda, and other correspondence providing legal guidance.
  2. Regularly update its list of opinions and its opinion database of letters, memos, and testimony to reflect any releases of documents.
  3. Scale back its heavy use of FOIA’s Exemption Five to withhold the titles of its opinions, letters, and memos. The release of those titles does not put deliberative process or attorney-client relationships at risk.
  4. Include classified memos in its official lists and opinions database with appropriate redactions made under FOIA’s b(1) exemption.
  5. Provide Congress with full access to all OLC publications.
  6. Consolidate its published opinions by transferring the opinions currently in its FOIA reading room to its opinion database.

The White House should strengthen Executive Order 12146 and instruct OLC and agencies to disclose OLC legal opinions unless there is a tangible, demonstrable, and specific risk of harm (rather than hypothetical harm).

Congress should revive the OLC Reporting Act and legislation that would restrict OLC’s application of Exemption Five to its legal opinions.

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