Transparency is a key component of a strong democracy.
The Department of Justice’s Office of Legal Counsel (OLC) provides legal advice to the executive branch and its agencies, but these legal opinions are generally kept secret, and gaining access to them is a long and difficult process. CREW is urging the House Appropriations Committee to pass a provision requiring public access to OLC opinions.
CREW’s recent victory in obtaining a critical OLC memorandum demonstrates both the importance of public access to these opinions as well as the flawed process in place to access them. In April 2019, we filed a Freedom of Information Act request for OLC documents given to then-Attorney General Barr relating to claims of obstruction of justice against Donald Trump. For more than three years, the Department of Justice (DOJ) used the courts to try to keep this memorandum hidden from public view until the courts ruled against their justification of “deliberative-process privilege”.
These impediments to transparency mean that the vast majority of OLC opinions remain hidden from the public. Since 2016, CREW has filed 9 FOIA requests to obtain OLC documents, but to date has only received a third of these records.
CREW sent a letter to Congresswoman Rosa DeLauro, Chair of the House Committee on Appropriations requesting that the Office of Legal Counsel transparency rider remain included in the FY 2023 Commerce, Justice, Science, and Related Agencies Appropriations report. This provision asks the Attorney General to direct the OLC to publish all legal opinions and related materials on a publicly accessible website, or to provide a written explanation to Congress justifying the withholding of them.
CREW has also sent a comment to the Senate Judiciary Committee, requesting changes to the DOJ OLC Transparency Act to expand the bill’s definition of “OLC opinion”. While currently the bill defines these opinions as “legal interpretation”, expanding this definition to also include “communication on non-legal guidance” would ensure OLC communications like the Barr memo which are not legal interpretations, but still guide agency action, are also accessible to the public.
The public deserves access to the legal advice given to the executive branch. These opinions may be of critical importance because they likely include binding legal advice to executive branch agencies on issues such as election integrity, regulation of firearms, surveillance, and abortion access. The longstanding DOJ stance that a sitting president cannot be indicted stems from an OLC opinion–one that received renewed attention during the Trump presidency.
Access to these opinions is also essential for Congress to provide oversight and monitor for potential overreach of the executive branch. Including this provision in the appropriations bill would be a critical step forward in the ongoing fight for transparency in the DOJ and our government writ large.