The Bridge: Secrets, Secrets Are No Fun

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The Notorious O.L.C.

There’s an office in the Department of Justice that influences policy and the actions of those at the highest levels of government. Its opinions have impacted our daily lives. This office exercises an exorbitant amount of power.

But it’s as transparent as a brick wall and doesn’t answer to the public. The story of the Office of Legal Counsel (OLC) will make you furious and have you wondering how on Earth this is legal. That’s a question we at POGO have asked a lot, too.

In this edition:

• Little office, outsized (and unchecked) impact
• A dangerous track record
• Reforming the OLC

OLC has long been in need of reform. POGO and other groups have been calling attention to the office’s flaws and its dangerous opinions for years.

But first, some context.

What even is the Office of Legal Counsel? This little-known office often flies under the radar, in large part because its opinions aren’t automatically made public.

OLC was established in 1934. It resides in the executive branch’s Department of Justice. On paper, it’s charged with giving legal advice and opinions to the president and other leaders in the executive branch. Most of the time, this advice isn’t formalized. But when the matter is of great significance, OLC issues a formal, written memo justifying its legal thinking.

OLC’s opinions are binding within the executive branch and are essentially treated as law. But OLC also engages in systemized secrecy, claiming it issues “advice” in order to hide its opinions from the public and Congress. The thinking here: If it’s technically just advice that it’s giving the executive branch, there’s no reason for the public to see it. OLC uses this wordplay to assert its power and conceal its work from the public as much as possible.

Right now, the majority of OLC’s opinions are secret, and only it has the power to decide which opinions it releases proactively and when. It should make us all very uncomfortable that there’s a playbook governing the decision-making of our executive branch that we aren’t allowed to see.

OLC is essentially the executive branch’s “person on the inside.”OLC lawyers too often grant the president power beyond what the Constitution or rule of law has previously established, disempowering Congress and the courts in the process. And there really isn’t anyone holding OLC accountable, since the office answers to the president.

Free passes and license to kill

The calls OLC makes are shockingly, upsettingly, dangerously consequential. Though not all of these memos are still in effect, this list of a handful of past OLC opinions illustrates just how powerful that office can be:

• Torture, or “enhanced interrogation techniques,” is permissible, despite federal and international law.
• The government is allowed to surveil its citizens, i.e., wiretap their phones, without a warrant.

• The government is allowed to order executionary drone strikes on American citizens without regard for due process.
• The Food and Drug Administration is not allowed to regulate — that is, enact humane and ethical standards for — death-penalty drugs.
• The president is allowed to take military action without congressional approval.
• Anti-nepotism laws don’t apply in the White House.
• Sitting presidents cannot be indicted for federal crimes.

• Executive branch advisers are outside the reach of congressional subpoenas.
• White House officials need not be prosecuted for contempt of Congress.

On other occasions, OLC has blocked inspectors general and whistleblowers from reporting misconduct and undermined the checks and balances between the legislative and executive branches.

Reining in OLC.

With its opinions, OLC is essentially drafting a playbook that gives the executive branch an unfair, unethical leg up on Congress, the courts, and the public. The lack of transparency and the abuse of power are so extreme and undemocratic, it’s hard to believe an office like this can exist unchecked. And until we reform the office, it will continue to enable the dangerous expansion of presidential power.

My colleague, David Janovsky, analyst for The Constitution Project at POGO, recently provided testimony to the Senate Judiciary Committee for a hearing on OLC’s role in the unconstitutional expansion of executive power. In his testimony, David pitched robust reforms to rein in OLC. It’s an expansive list because OLC has a lot of problems, ranging from a lack of transparency to a lack of accountability and abuses of power.

Read Now: Congress Can Rein in the OLC (Testimony)

One of the reforms David touched on in his testimony is the creation of a congressional Office of Legal Counsel — a legislative branch office that could mirror and match OLC, providing Congress with the much-needed ability to push back on the executive branch’s OLC opinions.

You can read all of David’s testimony on our website.

My colleagues at POGO have written many illuminating pieces on the Office of Legal Counsel over the years, relaying histories of some of the shameful abuses OLC opinions have justified and proposing airtight ways to reform the office. I wanted to share my reading list with you below.