Office of Legal Counsel Publishes New “Secret Law” Opinions

The Justice Department’s little-known but powerful Office of Legal Counsel (OLC) has published the titles and text of four previously withheld opinions as part of a larger release of opinions on its website. The release, which occurred on July 5 and has not been reported until now, came after a Freedom of Information Act (FOIA) appeal from the Project On Government Oversight that OLC formally replied to last week.

“After carefully considering your appeal, and as a result of discussions between OLC personnel and this Office, I am releasing additional portions of one page to you,” wrote a Justice Department official who handled POGO’s appeal. POGO sought the names, dates, and authors of five out of seven unclassified OLC opinions issued in the first half of 2017. POGO had obtained a one-page list of opinions, but information for these five opinions was originally redacted. The Justice Department released a new list revealing information about four of the five opinions; however, the name and author of one OLC opinion, issued shortly before the end of the Obama Administration, remains redacted.

The four newly released OLC opinions cover subjects such as restrictions on lobbying after working for the government, whether Robert Lighthizer was legally eligible to be nominated as U.S. Trade Representative, the ability of a department to pay for private counsel for employees who testify before Congress, and the authority of Members of Congress to also be members of executive branch commissions. The most surprising part of the newly published opinions is how utterly unworthy of redaction they ever were. For the most part, they simply reiterate prior decisions. Ironically, one of the newly released opinions cites by name a previous OLC opinion the title of which remains redacted on official lists.

The OLC is responsible for interpreting how agencies apply and interpret laws, and it is notoriously secretive. A 2010 OLC “best practices” memo states that the office provides “controlling advice to Executive Branch officials on questions of law that are centrally important to the functioning of the Federal Government.” Given that many of the questions before it will never be “resolved by the courts,” the memo says “OLC's advice may effectively be the final word on the controlling law.” This is a major reason these opinions should be as public as possible.

An example of the office’s power can be found in the series of infamous—and since withdrawn—“torture memos,” which made it the official position of the executive branch that using “Enhanced Interrogation Techniques” on foreign “unlawful combatants” did not violate domestic or international law. One of these formerly secret opinions states that OLC "cannot predict with confidence that a court would agree with our conclusion" on the question of whether certain CIA techniques were cruel, inhumane, and degrading. Yet despite the legal uncertainty, the opinion states that the question "is unlikely to be subject to judicial inquiry" and quotes case law that "the courts have nothing to do and can give no redress."

When these classified opinions became public, legal experts harshly criticized them. The Justice Department internal legal watchdog, the Office of Professional Responsibility, found that two key OLC officials responsible for the memos, John Yoo and Jay Bybee (now a federal judge), did not “exercise independent legal judgment and render thorough, objective, and candid legal advice.”

Although OLC has made some strides towards openness, OLC opinions are not consistently released to the public, and the heavily redacted lists that the OLC provides in response to FOIA requests leave out any classified opinions, making it impossible to tell how many there are. In 2013, a lawsuit forced the OLC to release an opinion related to targeted killings, but several lawsuits for other OLC opinions have failed.

Given that the executive branch generally considers the OLC’s views as binding, the public deserves to know the subject matter that the OLC is issuing opinions on. These opinions can provide the public with substantial insight into how the government interprets the law and where there is legal ambiguity. (The titles of OLC opinions correspond with the questions that they are answering, rather than the answers.) Because of the importance of these opinions, POGO appealed the OLC’s redaction of opinion titles, authors, and even dates. Last week, after waiting over a year for the office to process our appeal, the OLC responded by releasing several unredacted sections. Only one of the five previously redacted opinion titles remains redacted, although the OLC has now released that opinion’s date.

The other four opinions from early 2017 were quietly uploaded to the OLC database in July 2018, but their release has not been reported until now.

In one of the opinions, issued on the last full day of the Obama Administration, the OLC issued an opinion stating that because of the way a law is worded, statutory post-government employment restrictions for high-level officials—mostly restrictions on lobbying—only apply to people being paid exactly the same amount as a certain high-level pay rate. Officials who make more than that number are considered exempt from those restrictions, and have been for years. By keeping opinions like this one secret, the OLC prevents Congress from being aware of potential loopholes and from clarifying any ambiguous language.

Another newly released opinion allows the use of taxpayer funds to pay for private lawyers when agency employees testify before Congress. Specifically, when a Congressional committee interviews an agency employee and bans agency lawyers from attending (since they represent the agency being investigated), agencies can pay a private lawyer to provide legal representation for the individual. A fine line is drawn in the opinion between, on the one hand, representing public servants in their official capacity—in which case the lawyer’s ultimate client would be the agency—and representing public servants in their individual capacity but about their professional activities, where the lawyer is truly representing just the individual’s interests. In order to authorize truly individual representation, the agency must determine that its interests and the “purely personal” interests of the individual (not being charged with a crime, for example), sufficiently overlap so as to justify the spending.

While some OLC opinions are rather dull and address procedural issues like the legality of the Department of Defense—instead of the National Background Investigations Bureau—performing background checks of Department personnel, each opinion is requested because of a specific situation, and thus each opinion has real-world impact.

In light of last week’s response, POGO has submitted a new FOIA request to the OLC, applying the same effective arguments from our prior, limited appeal to the catalog of OLC opinions published since 1998. The request is focused on getting more titles published, and while we hope it will lead to more opinions being released in their entirety—just like our 2017 FOIA appeal may have led to these opinions being released—each additional title that is published will give the public more insight into how their government works.