All of this is made more problematic because the OLC does not proactively publish an index of opinions, which means the public is in the dark about what opinions even exist. The Knight Institute, where I work, has much to say about that theory (in short, it’s wrong), but at least for now, this means that the public’s knowledge about these important legal opinions depends on the OLC’s selective disclosures, leaks, and the work of intrepid FOIA requesters and litigators. Its lawyers typically argue, as they did when responding to the Talking Points Memo FOIA request, that its opinions are protected by the attorney-client privilege and the deliberative process privilege. Although the OLC has pledged to be transparent about its legal decisions, it has historically released only a fraction of the opinions it writes. The OLC, a small but powerful office within the Justice Department, drafts binding legal opinions that shape the policies of federal agencies and guide government conduct affecting the lives of people in the United States and around the world. Even though the opinion had shaped parts of foreign policy for over a decade, the OLC never published it, and no one outside the federal government knew what the opinion said until the Times obtained it in 2022. assistance to the International Criminal Court was informing the Biden administration’s response to atrocities in Ukraine.
This knowledge gap isn’t unique to that area of law.Īs another example, last April, the New York Times’ Charlie Savage reported that a 2010 OLC opinion on U.S. None of these opinions, though, have been publicly released. Thanks to a public records request brought by Talking Points Memo, what we do know is that the OLC has some relevant advice dating back to the Obama administration. One might naturally want to know what the Office of Legal Counsel, the so-called “ Supreme Court of the executive branch,” has to say about this legal theory. As the debt ceiling crisis looms, legal scholars (and reportedly the White House) are once again considering whether the president can invoke the Fourteenth Amendment to raise the borrowing limit singlehandedly. A secretive office within the executive branch has just taken an incremental but important step toward transparency on legal decisions that affect not only Americans, but also people around the world.
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