The DOJ OLC Transparency Act: Is Transparency Enough to Combat Problematic Norms in the Office of Legal Counsel?

Patrick, Sarah | November 20, 2023

Over the last two decades, the Office of Legal Counsel has come under scrutiny for controversial opinions that have advised the President on the constitutionality of his actions, from interrogation and detention of military detainees to presidential immunity from congressional investigation and subpoenas to testify. Its opinions tend to conform with the unitary executive theory and defer to the executive’s position—and that’s only the opinions the public knows about. The Office of Legal Counsel is not required to disclose its opinions, and often does not, citing concerns about national security and the need for confidentiality. A recent legislative effort, the DOJ OLC Transparency Act, introduced in 2022, has attempted to address secrecy and deference to the executive in the Office of Legal Counsel. Although the bill has yet to be re-introduced in the 118th Congress, this Comment addresses whether the DOJ OLC Transparency Act is enough to combat OLC secrecy and deference to the executive, with the hope that future legislative efforts would take the criticisms in the Comment into consideration. The Act would require the OLC to publish all opinions on the DOJ website and allow free access to the public. However, transparency alone is not enough to combat problematic norms in the Office of Legal Counsel. This Comment addresses concerns with the Act’s scope, its class classification measures, and its enforcement mechanism.