NEW YORK – The Knight First Amendment Institute at Columbia University today published 10 Office of Legal Counsel (OLC) memos written between 1972 and 1984, defining the authority of the president and other executive branch officials to withhold information from the courts and Congress. The Institute obtained the documents as part of a landmark legal settlement of a lawsuit seeking disclosure of OLC opinions written more than 25 years ago. The Institute has already published hundreds of other OLC memos obtained through the settlement, and it expects to publish more in the coming weeks.
“Since its establishment almost a century ago, the Office of Legal Counsel has played an immensely important role in shaping government policy—and especially in defining the separation of powers between Congress and the executive branch,” said Stephanie Krent, staff attorney at the Knight First Amendment Institute. “These long-withheld opinions shed light on the government’s understanding of executive privilege at some pivotal historical moments, and they also provide vital context for contemporary debates.”
The documents published today include:
- Executive privilege (April 10, 1972)
- Power of Congressional Committee to compel appearance or testimony of Presidential Assistant (April 10, 1972)
- Presidential Immunity from Coercive Congressional Demands for Information (July 24, 1973)
- Power of the House of Representatives to demand criminal investigation files in connection with impeachment proceedings (October 29, 1973)
- Administration’s Policy on Assertion of Executive Privilege (June 8, 1977)
- Suing to Enjoin the Enforcement of a Senate Committee’s Subpoena (January 16, 1981)
- Executive Privilege – Reagan Memorandum (April 6, 1982)
- Executive Privilege (April 19, 1982)
- Confidentiality of communications between the President and his closest advisers (February 27, 1984)
Sometimes called the “Supreme Court of the executive branch,” the OLC issues legal opinions governing the full range of executive powers, policies, and responsibilities. Its formal written opinions constitute final and authoritative pronouncements of the law within the executive branch. On February 15, 2019, the Knight Institute submitted a request to the OLC for all of its formal written opinions issued prior to February 15, 1994, taking advantage of new legislation that limits the authority of federal agencies, including the OLC, to withhold memos that are more than 25 years old. When the OLC failed to release any opinions in response to this request, the Institute filed suit, Francis v. DOJ, on behalf of five scholars, Campaign for Accountability, and the Institute itself. The Institute reached a settlement with the OLC in August 2021. Under that settlement, the OLC has provided the Institute with indexes of OLC opinions written between 1945 and February 15, 1994, and released 230 of the opinions listed on those indexes. It also agreed to disclose a list of classified OLC opinion titles written between 1974 and February 15, 1994.
This settlement does not address the OLC’s obligations to publish contemporary opinions. The Knight Institute represents Campaign for Accountability in a separate lawsuit challenging the OLC’s failure to disclose its opinions under the Freedom of Information Act’s “affirmative disclosure” provisions. In 2020, then-Judge Ketanji Brown Jackson issued a decision allowing the case to move forward with respect to one especially important category of OLC opinions: opinions that resolve disputes between federal agencies. That case is currently pending before Judge Jia M. Cobb in the federal district court in Washington, D.C.
“Except in the most extraordinary circumstances, the public should have access to the OLC’s formal opinions when they’re written, not decades later,” said Alyssa Morones, legal fellow at the Knight First Amendment Institute. “Congress and the Biden administration shouldn’t wait for the courts to address the OLC’s transparency obligations.”
The Knight Institute maintains an OLC Reading Room on its website that is the most comprehensive public database of opinions written by the OLC. It contains the approximately 1,400 opinions published by the OLC in its online database and is being updated with the hundreds of opinions produced to date in Francis v. DOJ. In January, the Institute launched @OLCforthepeople, a Twitter account that alerts the public each time the OLC adds an opinion to its own online database—a process that generally happens without public notice.
Access the Knight Institute’s OLC Reading Room here.
Read more about Francis v. DOJ here.
Read more about Campaign for Accountability v. DOJ here.
For more information, contact: Adriana Lamirande, firstname.lastname@example.org.