Previously Undisclosed OLC Opinions Illuminate the Growth of Executive Power

Jonathan Shaub
Friday, September 23, 2022, 8:01 AM

These newly released memoranda cover the scope and nature of executive privilege as well as the question of how constitutional disagreement between Congress and the executive branch about privilege can and should be resolved.

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Editor's Note: Pursuant to a FOIA settlement, the Knight Institute recently received a set of previously undisclosed OLC memoranda related to executive privilege. They have provided these memoranda to Lawfare to read and consider how they fit into the existing public knowledge of OLC’s views on executive privilege.

It is by now widely recognized that the executive branch—the president in particular—has been accumulating and exercising increasing constitutional authority over the past several decades, often at the expense of Congress. The legal scaffolding that supports this authority and the accompanying presidential action usually consists of a mix of judicial precedents, historical practice, and constitutional exposition. And the group of lawyers that typically provides that scaffolding is the Justice Department’s Office of Legal Counsel (OLC). Established in 1934, OLC has been delegated primary responsibility for the attorney general’s statutory duty (established in the Judiciary Act of 1789) to “give … advice and opinion upon questions of law when required by the President of the United States, or when requested by the heads of any of the departments.” 

OLC does not usually share the legal advice it provides to the president and executive branch agencies. On occasion, particularly when the White House takes significant executive action, OLC will publish a formal, written opinion explaining the legal basis for the action, as it did in support of Biden’s recent student-debt relief plan, in support of military actions ordered by recent presidents, and in support of Trump’s refusal to comply with congressional subpoenas during his first impeachment. But most of OLC’s legal advice remains unknown to the public. The Knight First Amendment Institute at Columbia University has, through litigation and public advocacy, made it a priority to change that. As part of a settlement under the Freedom of Information Act, the Justice Department is providing previously unknown OLC memoranda to the Knight Institute on a rolling basis, many of which reveal legal rationales and opinions that have never before been made public. (The Knight Institute has also established a Twitter account @OLCforthepeople to track new opinions published by OLC.)

The new, privilege-related releases consist of 12 distinct documents totaling 93 pages. Many of the arguments in these memoranda echo other arguments made in already public documents, and several have been cited or quoted by OLC in later opinions. But these memoranda are exceptionally valuable precisely because they situate those citations and quotations in a context that was never previously available to the public. That context—including arguments and rationale that OLC later discarded—illustrates how OLC develops constitutional law on behalf of the executive branch. And it demonstrates clearly that the doctrine of executive privilege, in particular, has undergone an enormous transformation (or mutation, depending on your view) over the past five decades.

These newly released memoranda cover the scope and nature of executive privilege as well as the question of how constitutional disagreement between Congress and the executive branch about privilege can and should be resolved. They can be grouped into three general time periods: the spring of 1972; the period between Nixon’s resignation and the Reagan administration; and the early Reagan administration. The memos in the first group were written about a year after the Pentagon Papers were leaked and shortly before the initial Watergate break-in, and they highlight a Nixon White House searching for legal arguments to maintain the secrecy of its inner workings. The second period represents a time of flux for privilege as the executive branch wrestles with the fallout from Watergate and attempts to interpret and apply United States v. Nixon, the Supreme Court’s foundational 1974 opinion ordering Nixon to turn over the Watergate tapes to a grand jury. And the third grouping dates to the early Reagan administration, a crucial period in which OLC begins a conscious process of reformulating and standardizing the executive branch doctrine of executive privilege and initiates what I have called the modern era of executive privilege. 

A close reading of these memoranda cast significant doubt on the prevailing OLC conceit that the executive branch’s current positions on privilege reflect a long, historical practice. In distinct ways, each memorandum provides a window into OLC’s past views on privilege and valuable insight into its development. Piecing together the development of the doctrine calls to mind Nietzsche’s recognition that “[t]hat which we now call the world is the result of a number of errors and fantasies, which came about gradually in the overall development of organic beings.” 

Unlike most of OLC’s public writings, which are often unequivocal in their arguments and present their conclusions with a veneer of historical and constitutional inescapability, several of these memoranda are explicit about their ambiguity. They make clear that there is no “best” answer and that the executive branch must choose between a more aggressive interpretation of executive privilege (what a couple of the memoranda call the “firm” approach”) or a less aggressive position (the “conciliatory” approach). Reading these confidential, candid observations in light of OLC’s current public positions on privilege, contempt, and testimonial immunity illuminates OLC’s conscious choice—or, rather, series of choices—to adopt the most aggressive constitutional path, which grants the executive branch the most power vis-à-vis Congress.

Many of these documents warrant individual attention. Here, I examine the tranche holistically and highlight a few of the most enlightening portions of the documents. In doing so, I should acknowledge that I previously worked at OLC on these issues, and I was familiar with most of these memoranda prior to their release from my time there. But, having spent the better half of the 5 years I have been away from OLC studying and writing about the office’s current positions on privilege, I too had forgotten just how different these historical documents sound from the executive branch’s modern positions. Their public release allows others to appreciate more fully what I came to realize when I worked there—that the executive branch’s doctrine of executive privilege aggressively claims historical roots as support for its extensive scope, but that those roots, if examined and understood in context, cannot bear the full weight asked of them. 

What follows is, first, a short summary of what I think are the most interesting points in this tranche of memos. After that, I dig in to a few of these items in more detail, particularly the ones that illuminate aspects of OLC’s development of executive privilege that have previously been less visible to the public.


  • Constitutional hardball: As detailed further below, several of these memoranda explicitly set out options for the president or attorney general to consider, often at the start of a new presidential administration. The memos advise openly that the ambiguity of the law allows the president to adopt a “firmer” approach based on “absolutes” and constitutional doctrine—what might be calledconstitutional hardball”—or a more conciliatory and cooperative approach, based on compromise and informal norms. Strikingly, although the recommendation of OLC and the executive branch’s actions indicate it often initially chose the latter, less aggressive approach, viewing these options in light of current OLC opinions makes it clear that OLC has now fully adopted the most aggressive, constitutional approach set out, that is, the one that maximizes executive authority.
  • Judicial resolution: A number of these memos contemplate or even advocate for a role for the judiciary in resolving interbranch disputes. They recognize that, when a “constitutional impasse” between the executive and Congress occurs, the judiciary is the only neutral entity available to resolve it. Today, by contrast, the Justice Department strenuously and consistently objects to any possible judicial role in resolving these disputes. As I suggest in a forthcoming paper, the executive branch’s aggressive approach has moved away from these past positions that favor judicial resolution, which could threaten the executive’s accumulated authority. But these memos reflect a period in which OLC was much more receptive to the idea of allowing judicial resolution, perhaps because they occurred during a period in which, as one memo says, the executive branch was on the “defensive” against Congress after Watergate. One rather remarkable memo from 1981 is dedicated solely to the question of whether the Department of Justice could have sued to enjoin the Senate Judiciary Committee from both issuing and enforcing a subpoena for certain files in criminal investigations. Given the executive branch’s current position that courts have no authority to resolve these kinds of suits, the memo is remarkable because the question was posed at all. And, although the memo concludes that courts would likely decline to entertain a suit in that posture pursuant to judicial discretion (except where grand jury information was at issue), its 11 pages of analysis never once suggest that they lacked authority to resolve it or that judicial review would be contrary to executive branch interests. 
  • Presidential administration: Perhaps the most interesting set of memos are a collection dating to the beginning of the Reagan administration. They advocate for the centralization and definition of executive privilege, arguing that the executive branch had been put on the “defensive” by Watergate and attempting to reestablish a powerful executive. These memos establish the background context of the Reagan memorandum, a document formalizing the executive branch’s policy on executive privilege that has been utilized by every president after Reagan and that, in my view, ushered in the modern era of privilege. These documents demonstrate the administration’s deliberate attempt to exert control over agencies with respect to information and executive privilege, a move that mirrors the Reagan administration’s larger legacy of presidential administration and unitary executive theory—the most robust version of which holds that the Constitution grants the president “complete policy control of the discretionary decision-making of administrative agencies” and that Congress lacks authority to interfere with or temper that control.
  • Impeachment: One of the most interesting documents dates to Oct. 29, 1973, one day before the Nixon impeachment process began. The document was apparently provided to Sol Lindenbaum, an executive assistant to the attorney general. An extremely short memo, it simply says, “There are a number of Presidential statements to the effect that the President would not claim Executive privilege against demands for information made by the House of Representatives when it acts as the Grand Inquest of the Nation in order to determine whether to institute impeachment proceedings or to impeach an officer of the United States.” It then collects these statements without further comment. Notably, OLC issued an opinion during Trump’s first impeachment concluding in a cursory manner that executive privilege did apply in an impeachment and relegating these contrary statements and others to a footnote. As I’ve described at length, I believe the current OLC position represents a distortion of both history and executive privilege. And this document, including its historical context, adds further support to that position. 
  • Testimonial immunity: As described in more detail below, several of these memos date to the beginnings of the formulation of the OLC doctrine of testimonial immunity. They display how inconclusive historical precedents in an initial OLC opinion can transform into “well-established” principles in a subsequent opinion and how OLC’s formulation of its immunity doctrine today varies significantly from its original rationale.
  • Incorporation and interpretation of United States v. Nixon: The time periods represented by these opinions are intriguing because they fall on both sides of the Supreme Court’s decision in Nixon. In opinions predating Nixon, OLC describes executive privilege differently—with one memorandum denoting it “a constitutional authority of the President” to withhold information and another defining it largely as an “absence of power” in Congress to subpoena the president (a view with which I have agreed). Memos from 1977 and 1981 emphasize the unsettled nature of privilege prior to Nixon, but rely on Nixon’s “explicit recognition … that the privilege is of constitutional stature” to affirm the conclusion that it can be asserted against Congress. Thus, while earlier memos describe historical precedents and provide a glimpse of OLC searching for the right constitutional foundation for these precedents, Nixon—though ultimately ruling against the president—gave OLC a constitutional foundation for privilege on which it constructed its modern doctrine.

Choosing Between Constitutional Hardball and Conciliation

Several of the memos note existing disagreements between the executive branch and Congress about fundamental constitutional principles and then advise that there are two available paths, one aggressive and one more conciliatory. The memoranda at times advise taking the less aggressive path, and that advice seems to have been taken at times. But reading these from a historical vantage point, and in light of OLC’s current positions, it becomes clear that—eventually—the most aggressive approach, the one that maximized executive power, became OLC’s approach in every instance. Congress is not a passive participant in this escalation of constitutional confrontation, of course, and much could be written about changes in congressional practice that may have contributed to OLC’s turn more to constitutional hardball and away from compromise and cooperation. But these memos make that transition more transparent than it has ever been before.

For example, a 1972 memorandum addressed to Nixon’s White House counsel John Dean discusses privilege and testimonial immunity (discussed at more length below) and then addresses the consequences of asserting these defenses against Congress. After discussing Congress’s contempt power, the memo provides a “concluding comment” to note that “two alternative courses of action are available.” The first approach would posit that a presidential adviser could “ignore” an indictment for contempt of Congress or a warrant for arrest for inherent contempt “upon the basis that the separation of powers makes him absolutely immune.” The memo notes that position would be a “logical extension” of the doctrine of immunity. But the memo then suggests a “second and perhaps more conciliatory and orderly approach,” which would be to “seek a judicial resolution of the constitutional issue.” The memo notes that either avenue “appears to be open, the principal question being the policy determination as to which avenue to follow.” The first approach would be founded on “a complete and absolute reliance on the separation of powers” while the second would “necessarily involve an acknowledgement that the doctrine of separation of powers is not completely absolute.”

The executive branch initially adopted the latter of these two approaches, the more “conciliatory” one. About 10 years after this memo was written, the Justice Department filed a suit seeking judicial resolution of a contempt charge based on a claim of privilege, seeking, as the memo advised, “judicial resolution of the constitutional issue.” Today, however, OLC’s opinions on immunity and privilege reflect a full-throated defense of the former approach, the “complete absolute reliance on the separation of powers” that allows executive branch officials to “ignore” congressional subpoenas without any fear of criminal contempt of Congress or inherent contempt. In its 2019 opinion defending Trump White House counsel Don McGahn’s immunity, for example, OLC concluded that “McGahn may not constitutionally be penalized, civilly or criminally” for ignoring the congressional subpoena, without any need for a judicial resolution of that issue.

A similar choice is presented in an important 1981 memorandum written by Ted Olson, then the head of OLC, about establishing a policy for executive privilege at the outset of the Reagan administration. Writing to Attorney General William French Smith, Olson concludes the memo with a section on “Possible Approaches” and sets out both a “‘Firm’ Approach” and a second approach entitled “Greater Cooperation.” In favor of the “firm” approach, the memo claims that “Congress has been able to place the Executive Branch on the defense in executive privilege matters” after Watergate and that some “[a]ction to return the initiative to the Executive Branch, if effective, would be highly desirable.” It robustly asserts that the Reagan administration “has nothing to apologize for when it legitimately resists congressional demands for information” and that Reagan was “elected with a mandate for strong leadership.” 

In describing this firm approach, the memo highlights three policies the administration could adopt: (a) refuse to comply with congressional demands “where Congress has failed to advance any legitimate and bona fide legislative need for the information; (b) identify particular areas—such as deliberative materials—that are “presumptively privileged” and refuse to turn them over “unless a strong legislative need is shown”; and (c) instruct agencies to refuse to comply with demands unless the committee pledges not to disclose the material, and to refuse entirely if there is a pattern of congressional disclosure. 

The memo ultimately recommends against fully adopting the firm approach, though it advises the attorney general to discuss it. It notes that this “bold” approach might “dramatically reverse” the perceived congressional-executive imbalance but that, in doing so, it would likely “alienate[]” members of Congress of both parties and result in an “inter-branch confrontation.” Instead, it advocates improved coordination of executive branch practice with respect to executive privilege, as discussed below. 

Notably, however, the current OLC position, reflected most starkly in the opinion issued at the end of the Trump administration on congressional oversight of the White House, has fully adopted the potentially risky firm approach set out in this memorandum. OLC has concluded that it can evaluate and, if it decides to, reject congressional interests in oversight as illegitimate. And the office now considers an entire swath of information, including deliberative process information, “presumptively privileged,” and not subject to disclosure absent critical congressional need.

One final document similarly reflects this choice between conciliation and cooperation or constitutional hardball. In 1977, near the beginning of the Carter administration, the acting head of OLC, John Harmon, wrote a memo to White House counsel Robert Lipshutz on the administration’s approach to privilege. The entire memo is particularly striking in its acknowledgment of Congress’s authority—a study in contrast to the memos advocating a more robust executive branch doctrine at the outset of the Reagan administration. But perhaps its most surprising recommendation involves congressional subpoenas. The memorandum acknowledges that a congressional request does not really raise an issue of executive privilege because it is a request, not a legal obligation. Yet the memo continues to note that past administrations “have not relied on a distinction between a request and a demand in determining whether to invoke executive privilege” and calls that a “wise course that should be continued.” “To insist” on the “formal and public” procedure of subpoenas would, in the view of Harmon, “compromise attempts at negotiation” and “lead to confrontations, both constitutional and political.” Instead, Harmon advised it would be “far better to keep Congressional initiatives on an information basis” and not insist on subpoenas. 

Today, OLC has abandoned this “wise course” entirely. Committees and members of Congress may request information, of course, and at times the executive branch provides it, particularly when the same party controls both branches. But the executive branch began to distinguish between a request and a subpoena as early as the Reagan administration. And the contemporary OLC does not even view a subpoena as triggering a legal obligation aside from continuing to engage in negotiations. By contrast, this memo and others from this period appear to regard congressional subpoenas as legally binding absent an assertion of privilege.

“Presidential Administration” of Executive Privilege

Perhaps the most informative and enlightening set of these memoranda date to the beginnings of the Reagan administration and offer a window into the deliberate construction of the modern doctrine of executive privilege. Olson’s lengthy memo to Attorney General Smith at the outset of the administration describes three problems related to executive privilege that warrant addressing: the “uncompromising and militant attitude on the part of some congressmen regarding what they believe to be their absolute right to information”; the “failure of the Executive Branch effectively to coordinate its responses to congressional demands”; and the “lack of articulated and coherent principles to guide decisions in this area.” The memo recommends that Reagan issue a new memorandum to the heads of executive branch agencies and departments to address these problems.

This move toward centralization reflects the larger movement toward what then-professor Elena Kagan called “presidential administration.” And the rationale is similar. The administration wanted to bring the various agencies under White House control, not just with respect to policy formation and agency action, but also with respect to information sharing. 

One problem identified in the memo is “overcompliance.” As Olson details, the procedures at that time principally derived from the so-called Nixon memorandum on privilege that the proposed Reagan memorandum would replace. The Nixon memorandum, in Olson’s view, established procedures—such as requiring agencies to consult with OLC and the White House before raising any claims of privilege—that, if utilized across the administration, could effectively coordinate policy and ensure agencies did not arbitrarily withhold information from Congress when the administration did not wish to do so. But the memo highlights the inability of the Nixon memorandum to deal with what it calls “overcompliance,” that is, agencies turning over information to Congress in response to requests without first checking with the White House or OLC. 

This memo and other contemporary memos included with it, including the draft Reagan memorandum to be issued to agencies, highlight a new administration intent on establishing White House and OLC control of information. As a cover sheet to the proposed Reagan memorandum makes clear, the new procedures would “reduce erosion of presidential prerogatives by repeated production of information which should be properly withheld.” That project has been wildly successful, with OLC now defining executive privilege itself as the president’s authority to control the dissemination of wide swaths of information—even, in some instances, within the executive branch. What began as a policy of coordination has ultimately become a constitutional doctrine of control, impervious even to statutory alteration.

There is also a fascinating contrast between the 1977 memorandum about adopting a privilege policy written at the beginning of the Carter administration and the set of memos dating to the nascent days of the Reagan administration. Both memos describe a need for a centralized process, but the 1977 memo advises that it is of “utmost importance that only the President himself may authorize the assertion of Executive privilege” because of the need to prevent agencies from unnecessarily relying on privilege to reject requests. The memo notes that assertions of privilege by agency officials have “resulted in an alienation of Congress and a hostile attitude toward the privilege,” and thus should be utilized more circumspectly. The 1977 memo also recommends that any administration policy on privilege “should require that Congressional requests for information be handled expeditiously because delay in processing requests is a major irritant to Congress.” 

That concern is largely absent in the 1981 memo. Moreover, while the 1977 memo rejects the need to define information that should be protected, stating that “an assertion of Executive privilege should not and does not merely depend on whether certain information falls within [certain] categories,” the 1981 memorandum advocates defining executive privilege and establishing areas that are “presumptively” privileged. And the Reagan memorandum does exactly what the 1977 memorandum advised against, specifying certain types of information—namely foreign relations, deliberative process, and national security information—that raises a substantial question of privilege and should not be disclosed without consultation with the White House.

The Reagan memorandum thus largely prevents agency officials from disclosing significant swaths of information without White House and OLC approval. As a result, and somewhat ironically, the principle that only the president should assert privilege—described in the 1977 memo as a way to prevent repeated reliance on privilege and interbranch conflict—has, as a result of the centralization in the Reagan administration, ultimately become a new mechanism for rejecting congressional demands without any assertion of privilege, because these categories of information are protected by default until the president authorizes release. As I and other scholars have noted, this practice has developed extensively since its origins in the Reagan administration, leading to prophylactic doctrines that prevent disclosures to Congress in order to protect the president’s ultimate authority to decide what to do with the information. 

Testimonial Immunity

The group of documents from the spring of 1972 focus primarily on the nascent doctrine of testimonial immunity—the position that immediate White House advisers to the president are absolutely immune from compelled congressional testimony. Presidents of both parties have relied on this doctrine, but it was utilized extensively by the Trump administration, most prominently in McGahn’s refusal to testify and in the refusals of several witnesses to testify during the House’s first impeachment investigation. Most recently, this doctrine formed the defense mounted by former White House Chief of Staff Mark Meadows to justify Meadows’s refusal to comply with a subpoena from the Jan. 6 committee. A district court judge is currently considering Meadows’s claim of immunity, with input from the Justice Department, a case we dissected recently on the Lawfare podcast.

Two interesting things jump out from these memoranda. First, they are written about one year after the foundational Rehnquist memorandum (Feb. 5, 1971), the document that OLC points to as first articulating the doctrine of testimonial immunity. The Rehnquist memorandum (which also has never been officially published by OLC but has been public for a number of years) is notoriously inconclusive about immunity, however. As judges and commentators who have considered its arguments have noted, then-head of OLC William Rehnquist details some historical examples of advisers refusing to comply with congressional subpoenas but then notes that those “precedents are obviously quite inconclusive” and says that “any generalizations” drawn from that history “are necessarily tentative and sketchy.” He proceeds, though, to offer the tentative conclusion that the president and his immediate advisers are immune.

These newly public memoranda demonstrate how a “tentative” conclusion in a prior memorandum can become a firm principle a year later by simply omitting the qualifications that surrounded the conclusion previously. A short, unaddressed memo dated March 15, 1972, indicates in handwritten notes that it was delivered to Clark MacGregor, a counsel in the Nixon White House. It addresses a potential congressional request for the testimony of Peter Flanigan, a presidential assistant. This short memorandum, barely a year after the tentative conclusions of the Rehnquist memorandum, states that it “has been firmly established, as a matter of principle and precedents, that members of the President’s immediate staff shall not appear before a congressional subpoena” about their official duties (emphasis added). It then provides some of the same examples as the Rehnquist memorandum. A more comprehensive memorandum from April 1972 addressed to White House counsel John Dean reaffirms this principle, stating that “as a matter of principle a high-level Presidential Assistant should be regarded as absolutely immune from testimonial compulsion.” Although it, like the Rehnquist memorandum, includes the qualifier “to the extent generalizations can be drawn” when making this conclusion from the historical examples, gone is the accompanying language from the Rehnquist memorandum about the “tentative” nature of his conclusions and the “inconclusive” nature of the historical precedents. In a year, OLC had taken tentative, sketchy conclusions about inconclusive precedents and reframed them as firmly established principles.

The memoranda from this period also illustrate the lack of consistency in OLC’s initial formulation of the immunity doctrine and the constitutional basis for it. While some writings discuss this immunity as an outgrowth of the separation of powers, one of the newly released memoranda describes immunity as simply an exercise of executive privilege and the need for confidentiality among the president and his advisers. Discussing the same historical examples, the memo says presidents have “invoked the doctrine of Executive privilege with respect to committee requests for the appearance” of advisers. And it notes that the refusals to appear “were grounded on the principle that Presidential Assistants cannot be interrogated as to their discussions with the President, or their advice or recommendations to the president” and the rationale that the president “must be free to receive from his advisers their candid opinions with the fear that they will be second-guessed either by Congress, the press, or the public.” 

Contemporary congressional testimony by Rehnquist reflects a similar understanding of immunity as simply an outgrowth of privilege, a doctrine that allows an adviser not to show up simply because all of the information sought would be privileged. And the rationale about the president receiving candid advice is the same rationale the Supreme Court relied on in United States v. Nixon to hold that presidential communications are entitled to a presumptive privilege. But Nixon concluded that the privilege was qualified and could be overcome by compelling need. As a result, OLC later dropped privilege as the constitutional basis for immunity—because then it would be only a qualified immunity—and focused on the separation of powers as the constitutional basis for the doctrine. These early writings add additional evidence that—although OLC traces the immunity doctrine back to the Rehnquist memorandum—the constitutional basis for privilege is of a more recent vintage and has been shaped and refocused in light of subsequent Supreme Court cases in order to maintain the conclusion that the immunity is absolute and not subject to any balancing.


Anyone interested in the historical development of executive privilege should read this collection of previously confidential memoranda. But, more broadly, these memoranda—particularly when compared with and contrasted to current OLC positions—illustrate the way OLC develops and interprets executive branch authority over time. They provide insight into the way in which OLC opinions build a case for historical inevitability that reflects some truth but does not necessarily wrestle with the entire historical context of past precedents.

This is not to say that the public should view OLC opinions with more skepticism than legal opinions from the judiciary or expressed by congressional committees or members. But OLC’s ability to curate the opinions it chooses to publish, as well to cull nonpublic statements and precedents when helpful to a particular argument, should give the public pause before conceding the historical pedigree to which OLC opinions often lay claim. The lack of transparency about the full extent of the historical precedent in the office makes those claims difficult to assess. As these memoranda demonstrate, each position and recommendation is a creature of both legal reasoning and historical context. That’s particularly true in areas such as privilege, where historical precedents and positions play an outsized role given the dearth of judicial precedent. This context is vital, but often absent, from OLC writings. And it is typically unavailable to the public.

It is easy, and at times popular, to dismiss OLC as simply a tool to empower the executive, particularly when the office’s positions are invoked in transparent attempts to evade accountability. But, perhaps because of my experience there, I think that facile approach misunderstands the office and mischaracterizes the problem. As these memoranda on executive privilege illustrate, OLC is often writing in an area where there are few answers and scattered historical precedents of ambiguous importance. OLC’s job is to advise the president on boundaries of the law, even when few firm boundaries exist. OLC is at its best when it forthrightly acknowledges this ambiguity and the various approaches that are legally available to the president and policymakers, as a number of these memoranda do. But when its opinions claim a particular approach is dictated by the law or historical precedent—as opposed to a policy decision on which available legal avenue to take (a characterization apt for many recent opinions on privilege)—OLC eliminates the transparency of the rationale and the process that led to the ultimate action. 

In other words, OLC’s lack of transparency about historical documents such as these memoranda has made it almost impossible to interrogate its claims to historical pedigree in its current opinions. Not only is there a lack of transparency about OLC’s advice—the merits of which is a worthy subject for debate—but there is also a lack of transparency about the process of executive branch decision-making and its historical evolution. That is certainly true in the context of executive privilege. Because of the Knight Institute’s advocacy, these memoranda now shed some much needed light on that context, and others as well.

Jonathan Shaub is a contributing editor to Lawfare and an assistant professor of Law at the University of Kentucky J. David Rosenberg College of Law. He formerly served in the U.S. Department of Justice as an attorney-adviser in the Office of Legal Counsel and as a Bristow Fellow in the Solicitor General's Office.

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