OLC Lawyers: President Asks for Fewer OLC Opinions To Avoid FOIA Requests

November 6th, 2015

Josh Gerstein reports on comments from Caroline Krass and Karl Thompson, who both served as the heads of the Obama Administration’s Office of Legal Counsel. In short, both argue that one of the reasons why President Obama has sought fewer OLC opinions is because he was concerned they would be FOIA’d.

Concerns about legal opinions being made public under the Freedom of Information Act are leading various parts of the federal government to stop asking for written advice from the Justice Department’s Office of Legal Counsel, a top Obama administration lawyer said Thursday.

“I think that has served as a deterrent to some in terms of coming to the office to ask for a formal opinion,” said Central Intelligence Agency General Counsel Caroline Krass, who spent more than a decade at the Justice Department office that issues legal advice for the executive branch. …

Speaking in Washington at an American Bar Association conference on national security law, Krass said scrutiny of OLC has had the effect of reducing demands for its formal opinions.

“I do think one reason is a focus the office has gotten of the past 10 years or so in the public which has now led to Freedom of Information Act requests pretty much anytime the administration adopts a position in the context of domestic law or national security that could be [or] seems a little bit edgy or slightly controversial, immediately the request for the OLC opinion comes,” Krass said.

The current acting head of OLC, Karl Thompson, said during the same panel discussion that there’s no question the number of agency requests for issuance of formal opinions is way down.

“It is absolutely true that the volume of requests for formal opinions has declined sharply over the last several years,” he said.

This answer may be a partial explanation, but is not complete. First, one of the first acts of the Holder Justice Department was to release four of the so-called “Torture Memos” authored by the Bush Office of Legal Counsel. At the time, Holder explained:

“The President has halted the use of the interrogation techniques described in these opinions, and this administration has made clear from day one that it will not condone torture,” said Attorney General Eric Holder.  “We are disclosing these memos consistent with our commitment to the rule of law.”

Transparency for thee, but not for me.

Second, as Charlie Savage reveals in his new book (and I discussed here), in several instances the President has simply ignored OLC. The administration disregarded OLC’s oral advice about extending hostilities in Libya beyond 60 days, and got a second opinion from Harold Koh. AG Holder ignored OLC’s advice about D.C. statehood, and sought a second opinion from Neal Katyal. President Obama only sought “oral” advice from OLC on DACA–and if you read the DAPA memo carefully, you can tell that advice was vey precarious for something of such a huge magnitude. Attorney General Holder wasn’t even notified about the Bin Laden raid–let alone seek an OLC opinion. I could go on.Perhaps fewer opinions have been sought because OLC simply wasn’t important to the President’s decision-making. Perhaps this rationalization about FOIA helps the OLC lawyers explain why they’ve been cut out–as both Jack Goldsmith and Eric Posner have observed–but I don’t know how persuasive this is.

Perhaps President Obama hasn’t sought opinions from OLC is that he isn’t interested in lawyers who institutionally check his power. Those closer to the White House are less likely to say no. An OLC opinions is only useful when it serves the cause. As Charlie Savage reports, OLC was only asked to reduce its DACA analysis to writing because WH Counsel Eggleston “argued that showing that Thompson had said some steps they had considered would not be lawful would show that they had really thought about it and obeyed legal limits.”

Eric Posner sums it up well:

More interesting, the OLC–which would normally be called upon to render the final opinion–was not included. Not just the OLC, but the entire Justice Department was frozen out. Why? Could it be that the OLC was less than cooperative when the White House sought a legal rubber stamp for the Libya intervention in 2011? Has the OLC been demoted for its insubordination?

The withering of OLC makes Thompson’s later point almost lamentable:

However, Thompson said the office is still doing plenty of work advising agencies and the White House verbally and in emails. And he insisted those less formal opinions carry weight.

“There are a lot of different ways in which OLC gives advice. A very small piece of that is writing formal opinions. The vast majority of our advice is provided informally — is delivered orally or in emails. That is still authoritative. It is still binding by custom and practice in the executive branch. It’s the official view of the office. People are supposed to and do follow it,” Thompson said.

Supposed to, at least.

In any event, even if OLC opinions are not being FOIA’d, there has been a pipeline to Charlie Savage’s inbox, and the public has learned all about them–so someone on the inside is talking.

Update: A reader writes in with an additional question. Why wouldn’t the “informal” advice that is delivered in emails be subject to FOIA? The oral advice, such as the advice initially given about DACA, or the 72-hour recess appointments, cannot be subject to FOIA.