Improving Transparency and Accountability at the Office of Legal Counsel

The Honorable Christopher H. Schroeder
Assistant Attorney General
Office of Legal Counsel
U.S. Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530

Re: Improving Transparency and Accountability at the Office of Legal Counsel

Dear Assistant Attorney General Schroeder:

I write to request a meeting to discuss the urgent need for transparency and accountability reforms at the Office of Legal Counsel (OLC).

For over a decade, the Project On Government Oversight and our allies in civil society have written about the need for the Office of Legal Counsel to make its opinions public. In recent years, we have also called for the office to make more fundamental reforms, including undertaking a comprehensive review of its prior opinions, and withdrawing or revising the most harmful ones; developing a methodology for verifying the factual claims underlying its legal opinions; and subjecting OLC attorneys to heightened ethical standards.¹ These reforms are consistent with ones you have expressed support for in the past, and we appreciate your record of advocacy for improvements to the office.²

Those concerns have taken on a new urgency based on the possibility that Office of Legal Counsel opinions are impeding congressional and Department of Justice investigations and prosecutions of former President Donald Trump and his high-level advisors for their role in the January 6 insurrection. In particular, we are concerned that:

(1) the line of OLC opinions asserting that current and former presidential advisors are absolutely immune from congressional subpoena³ may be preventing the Justice Department from taking appropriate action on the House of Representatives’ criminal referrals of Mark Meadows, Peter Navarro, and Dan Scavino for contempt of Congress; and

(2) an undisclosed OLC opinion (or similar opinion authored by former Assistant Attorney General for OLC Steven Engel) asserting that certain criminal statutes do not apply to the president under the “clear statement rule” may be an obstacle to the Justice Department criminally investigating former President Trump for his role in seeking to overturn the 2020 election.⁴

During your confirmation hearing, Senator Sheldon Whitehouse (D-RI) asked you about judicial opinions contradicting and criticizing past OLC opinions, including those discussed above. You responded that you hoped that those opinions would be viewed as “aberrations” in OLC’s history, and said you would “take cognizance of judicial decisions” that had contradicted OLC’s views. But while OLC has taken the commendable step of disavowing some recent opinions that failed to respect the separation of powers,⁵ there has been no sign of either of the opinions mentioned above being withdrawn or superseded, and the Justice Department has refused to comment on their effect on the January 6 investigation and contempt referrals.

We understand that there are sensitive matters that you may not be at liberty to discuss concerning ongoing criminal investigations by the department. With that in mind, we respectfully request a meeting to discuss the urgency of disclosing the memos discussed above and other OLC documents relevant to the January 6 investigation, as well as improving accountability and transparency at the office more generally.

Thank you very much.

Sincerely,

Danielle Brian
Executive Director