          Constitutionality of the OLC Reporting Act of 2008
S. 3501, the OLC Reporting Act of 2008, which would require the Department of Justice to report to
   Congress on a wide range of confidential legal advice that is protected by constitutional privilege, is
   unconstitutional.
The bill raises very serious policy concerns because it would undermine the public interest in
  confidential advice and information sharing that is critical to informed and effective government
  decisionmaking.

                                                                                   November 14, 2008

                             LETTER FOR THE MAJORITY LEADER
                                  UNITED STATES SENATE

    The Department of Justice has reviewed S. 3501, the OLC Reporting Act of
2008, which would amend 28 U.S.C. § 530D to require the Department to report
to Congress on a wide range of confidential legal advice, thus extending the
reporting requirement far beyond the decisions on statutory unenforceability
currently covered by the statute. The bill would require reporting about advice that
is protected by constitutional privilege and, in so doing, could deter Executive
Branch officials from seeking, and the Department from providing, candid legal
advice regarding the administration of important government programs. We
believe that the bill is unconstitutional. Moreover, the bill raises very serious
policy concerns because it would undermine, rather than advance, the public
interest in confidential advice and information sharing that Congress, the Supreme
Court, and administrations of both parties have long recognized as critical to
informed and effective government decisionmaking. For these reasons, explained
in greater detail below, the Department strongly opposes this legislation, and if it
were presented to the President, his senior advisers would recommend that he veto
it.

                                      I. Unconstitutionality

   Section 2 of the bill would amend 28 U.S.C. § 530D(a)(1) to require the Attor-
ney General to submit to Congress, within 30 days of issuing legal advice covered
by the provision, a report of any instance in which the Department issues an
“authoritative legal interpretation” of “any Federal statute,” even if the legal
construction has not risen, and may never rise, to the level of an Executive Branch
policy not to enforce the statute in question and simply construes the statute using
settled interpretive rules that courts routinely employ. Section 2 would then amend
28 U.S.C. § 530D(a)(2) to mandate that any report containing “classified infor-
mation” related to “intelligence activities” shall be deemed “submitted to Con-
gress” in accordance with section 530D as amended only if the information is
submitted to the House and Senate judiciary committees as well as the intelligence




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                  Constitutionality of the OLC Reporting Act of 2008


committees, and that any report containing “classified information about covert
actions” shall be deemed properly submitted only if it is submitted to the foregoing
committees, the Speaker and Minority Leader of the House of Representatives,
and the Majority and Minority Leaders of the Senate.
    The bill is unconstitutional in two respects. First, it infringes upon the Presi-
dent’s settled constitutional authority over classified information by purporting to
prescribe the content, timing, and recipients of any classified disclosures the
Executive Branch chooses to make in connection with section 530D reports. See,
e.g., Dep’t of Navy v. Egan, 484 U.S. 518, 527 (1988) (discussing the President’s
constitutional authority to control national security information); Whistleblower
Protections for Classified Disclosures, 22 Op. O.L.C. 92, 94–99 (1998) (same,
discussing cases and practice since the Founding). Administrations of both parties
have recognized that legislative mandates directing the timing and extent of
classified disclosures are constitutionally objectionable even when the disclosures
in question would go to Congress. In 1998, for example, the Department objected
to, and President Clinton ultimately threatened to veto, see Statement of Admin-
istration Policy, S. 1668—Disclosure to Congress Act of 1998 (Mar. 9, 1998), a
bill that would have required the President to allow federal agency employees to
disclose certain classified information directly to members of Congress. See
Whistleblower Protections for Classified Disclosures, 22 Op. O.L.C. at 100. The
Department testified that the bill:

      would deprive the President of his authority to decide, based on the
      national interest, how, when and under what circumstances particular
      classified information should be disclosed to Congress. This is an
      impermissible encroachment on the President’s ability to carry out
      core executive functions. In the congressional oversight context, as
      in all others, the decision whether and under what circumstances to
      disclose classified information must be made by someone who is act-
      ing on the official authority of the President and who is ultimately
      responsible to the President.

Id. S. 3501 violates the foregoing principles by purporting to prescribe the timing
and extent of any classified disclosures the President, acting through the Attorney
General, would choose to make in connection with the Executive Branch’s
reporting obligations under section 530D as amended.
   Second, and more broadly, the bill’s disclosure requirements are unconstitu-
tional because they would require reporting to Congress about confidential legal
advice that is subject to the constitutional doctrine of executive privilege while
narrowing section 530D’s current exemption for privileged information from
required reports. Currently, 28 U.S.C. § 530D requires the Attorney General to
report Department legal positions outside the litigation context only where the
Department “establishes or implements a formal or informal policy” either (1) to



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                 Opinions of the Office of Legal Counsel in Volume 32


refrain from enforcing a statutory or other legal position “on the grounds that such
provision is unconstitutional” or (2) to refrain from complying with a binding
judicial decision interpreting the Constitution or any other law that is enforced by
the Department. 28 U.S.C. § 530D(a)(1)(A)(i), (ii). The bill would substantially
expand the foregoing reporting obligations by requiring the Attorney General to
report on legal advice on statutory construction that does not, and may never,
result in a “formal or informal policy to refrain from enforcing” a federal statute
on constitutional or other grounds. Much of the legal advice the Department
provides the President and Executive Branch agencies about how to interpret and
comply with federal statutes might fall within one of the sub-provisions the bill
would add to section 530D(a)(1). For example, many legal opinions apply the
judicially created doctrine of constitutional avoidance to support an interpretation
of a statute that does not raise the constitutional concerns that would be raised by
an alternative interpretation. And many opinions similarly respect and apply the
judicially created “clear statement” principles that counsel against applying a
statute in a way that affects the balance of power among the three branches of the
federal government, or the balance of power between the federal government and
the states, absent a clear statement that the legislation is designed to do so.
   Thus, we believe that the bill would contemplate reporting on many Office of
Legal Counsel (“OLC”) opinions. OLC opinions belong to a category of Executive
Branch documents protected by executive privilege. They fall within the scope of
the deliberative process, attorney-client, and, to the extent they are generated or
used to assist in presidential decisionmaking, presidential communications
components of executive privilege. See, e.g., Assertion of Executive Privilege With
Respect to Clemency Decision, 23 Op. O.L.C. 1, 1–2 (1999) (opinion of Attorney
General Janet Reno) (addressing presidential communications component);
Assertion of Executive Privilege Regarding White House Counsel’s Office
Documents, 20 Op. O.L.C. 2, 3 (1996) (opinion of Attorney General Reno)
(discussing the deliberative process and attorney-client components) (“White
House Counsel’s Office Documents”); Confidentiality of the Attorney General’s
Communications in Counseling the President, 6 Op. O.L.C. 481, 494 n.24 (1982)
(explaining that the attorney-client privilege is “subsumed under a claim of
executive privilege when a dispute arises over documents between the Executive
and Legislative Branches”).
   Administrations of both political parties have long recognized the importance
of protecting the Executive Branch’s confidential legal advice. See Response to
Congressional Requests for Information Regarding Decisions Made Under the
Independent Counsel Act, 10 Op. O.LC. 68, 78 (1986) (discussing “importance of
protecting the President’s ability to receive candid legal advice”). As Assistant
Attorney General John Harmon explained in a memorandum issued at the end of
the Carter Administration:




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                  Constitutionality of the OLC Reporting Act of 2008


      [T]he reasons for the constitutional privilege against the compelled
      disclosure of executive branch deliberations have special force when
      legal advice is involved. None of the President’s obligations is more
      solemn than his duty to obey the law. The Constitution itself places
      this responsibility on him, in his oath of office and in the require-
      ment of article II, section 3 that “he shall take Care that the Laws be
      faithfully executed.” Because this obligation is imposed by the Con-
      stitution itself, Congress cannot lawfully undermine the President’s
      ability to carry it out. Moreover, legal matters are likely to be among
      those on which high government officials most need, and should be
      encouraged to seek, objective, expert advice. As crucial as frank de-
      bate on policy matters is, it is even more important that legal advice
      be “candid, objective, and even blunt or harsh,” see United States v.
      Nixon, 418 U.S. 683, 708 (1974), where necessary. Any other ap-
      proach would jeopardize not just particular policies and programs
      but the principle that the government must obey the law. For these
      reasons, it is critical that the President and his advisers be able to
      seek, and give, candid legal advice and opinions free of the fear of
      compelled disclosure.

Memorandum for the Attorney General, from John M. Harmon, Assistant Attorney
General, Office of Legal Counsel, Re: The Constitutional Privilege for Executive
Branch Deliberations: The Dispute With a House Subcommittee Over Documents
Concerning the Gasoline Conservation Fee at 26 (Jan. 13, 1981).
   Put simply, as is the case with all other public and private sector clients who
seek legal advice, if Executive Branch officials are to execute their constitutional
and statutory responsibilities, they must have access to candid and confidential
legal advice and assistance. See Confidentiality of the Attorney General’s Commu-
nications in Counseling the President, 6 Op. O.L.C. at 495 (emphasizing that the
attorney-client “privilege . . . functions to protect communications between
government attorneys and client agencies or departments . . . much as it operates to
protect attorney-client communications in the private sector”); Rules of Evidence
for the United States Courts and Magistrates, 56 F.R.D. 183, 235, 237 (1972)
(expressly stating that the “definition of client” for purposes of attorney-client
privilege “includes governmental bodies”).
   Finally, we note that the Executive Branch’s need to protect the confidentiality
of Office of Legal Counsel legal advice is comparable to the need recognized by
Attorney General Reno in 1996, in advising President Clinton on the legality and
appropriateness of an executive privilege assertion with respect to “analytical
material or other attorney work-product prepared by the White House Counsel’s
Office”:




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                 Opinions of the Office of Legal Counsel in Volume 32


      I agree [with the Counsel to the President] that the ability of the
      White House Counsel’s Office to serve the President would be sig-
      nificantly impaired if the confidentiality of its communications and
      work-product is not protected . . . . Impairing the ability of the Coun-
      sel’s Office to perform its important functions for the President
      would in turn impair the ability of you and future Presidents to carry
      out your constitutional responsibilities.

White House Counsel’s Office Documents, 20 Op. O.L.C. at 3.
   For all of these reasons, the bill’s expansion of section 530D’s reporting obliga-
tions would be unconstitutional even with respect to non-classified information.

                                II. Policy Concerns

   The bill’s disclosure requirements are not just unconstitutional; they are also
unjustified and bad policy. Requiring the Department to report on the broad range
of confidential legal opinions referenced in the bill would deter precisely the kind
of candid deliberations regarding government action that has long been recognized
as vital to the integrity of government decisionmaking. In 1974, a unanimous
Supreme Court emphasized

      the valid need for protection of communications between high Gov-
      ernment officials and those who advise and assist them in the per-
      formance of their manifold duties; the importance of this confidenti-
      ality is too plain to require further discussion. Human experience
      teaches that those who expect public dissemination of their remarks
      may well temper candor with a concern for appearances and for their
      own interests to the detriment of the decisionmaking process.

United States v. Nixon, 418 U.S. 683, 705 (1974). See also NLRB v. Sears, Roe-
buck & Co., 421 U.S. 132, 150–51 (1975) (noting that the deliberative process
component of executive privilege is premised on the belief that disclosing the
“communications and the ingredients of the decisionmaking process” would
inevitably “injur[e] the quality of agency decisions” by inhibiting “frank discus-
sion of legal or policy matters”).
   The bill’s requirements could deter the President and Executive Branch offi-
cials responsible for executing government programs, including especially highly
sensitive programs, from soliciting the Department’s legal advice for fear that the
advice would trigger reporting obligations that could compromise a program
and/or subject its legal assessment to unnecessary and damaging uncertainty or
publicity. In addition, the bill’s reporting requirements could chill the Depart-
ment’s ability or willingness to provide full and candid legal assessments of
statutes or government actions. For example, legal advisers might avoid relying on




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                   Constitutionality of the OLC Reporting Act of 2008


the well-established clear statement and constitutional avoidance rules of construc-
tion in order not to trigger the bill’s reporting requirements. Doing so would
inevitably degrade the quality of the resulting legal advice and, thus, the integrity
of the government decisionmaking to which it pertains. The bill would thus
undermine, rather than advance, the public’s interest in having Executive Branch
officials, just like private parties, receive full, candid and confidential legal advice
to ensure that they conduct the government’s business effectively and in accor-
dance with law.
   The foregoing problems with the bill’s reporting requirements are not a neces-
sary (or permissible) cost of legitimate congressional oversight. Congress has
ample authority to oversee Executive Branch programs and activities, and can
inquire through the committee and Government Accountability Office oversight
processes about the legal basis for Executive Branch decisions in the course of
overseeing those programs and activities. The Executive Branch has a well-
established process for accommodating such inquiries, see, e.g., Congressional
Requests for Confidential Executive Branch Information, 13 Op. O.L.C. 153, 158–
61 (1989); Whistleblower Protections for Classified Disclosures, 22 Op. O.L.C. at
101–02, which process the courts have recognized as the constitutionally contem-
plated method by which the branches should share information that Congress has a
legitimate need to know but that the Executive Branch also has a legitimate,
constitutionally based need to protect. See, e.g., United States v. AT&T Co., 567
F.2d 121, 127 (D.C. Cir. 1977). The bill’s reporting requirements are an unneces-
sary and unwise effort to replace this well-established process with a reporting
structure that violates constitutional limits and undermines the public interest
protecting the confidentiality of legal advice vital to the integrity and legality of
government decisionmaking. Accordingly, the Department strongly opposes the
legislation on both legal and policy grounds.
   Thank you for the opportunity to present our views. The Office of Management
and Budget has advised us that from the perspective of the Administration’s
program, there is no objection to submission of this letter.

                                               MICHAEL B. MUKASEY
                                                  Attorney General




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