The Justice Department Can’t Keep Its Own Law Secret Forever

By Cristian Farias, Politico, Aug. 29, 2019

In 2016, Congress amended the Freedom of Information Act to place a 25-year cap on documents previously shielded by what the Justice Department calls “deliberative process privilege”—which the government has cited in the past to keep OLC’s precedent-setting legal opinions secret. By law, then, that type of privilege should no longer cover OLC decisions older than 25 years—though some or portions of them may still be kept from disclosure if, for example, they contain classified information. And neither should the department be allowed to claim attorney-client privilege over these opinions, which aren’t legal advice but controlling decisions of law.

With this understanding of the law and with an eye toward greater transparency, a group of scholars last week filed a lawsuit in federal court arguing that Office of Legal Counsel memoranda that are at least 25 years old should be disclosed to the public under the Freedom of Information Act. Among the plaintiffs are historians of presidential power, the civil rights movement, the laws of war, government surveillance and immigration—all areas where the government’s enormous discretion to enforce the law has been guided by legal judgments that our citizenry would be well served to understand and reckon with, even today. (The Justice Department didn’t comply with an earlier administrative request for these opinions.)

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