Executive Power

USG Confirmation of Some Elements of Recent OLC Posts

By Jack Goldsmith
Thursday, November 5, 2015, 9:53 PM

Josh Gerstein has a story that quotes USG officials who confirm some of the points I made in my two recent posts on OLC. 

CIA General Counsel Caroline Krass said that (as Gerstein put it) “scrutiny of OLC has had the effect of reducing demands for its formal opinions.”  Krass herself said:  “I do think one reason is a focus the office has gotten of the past 10 years or so in the public which has now led to Freedom of Information Act requests pretty much anytime the administration adopts a position in the context of domestic law or national security that could be [or] seems a little bit edgy or slightly controversial, immediately the request for the OLC opinion comes.”  She added:  “I think that has served as a deterrent to some in terms of coming to the office to ask for a formal opinion.”

And Acting OLC head Karl Thompson stated: "It is absolutely true that the volume of requests for formal opinions has declined sharply over the last several years."  He added: “There are a lot of different ways in which OLC gives advice. A very small piece of that is writing formal opinions. The vast majority of our advice is provided informally — is delivered orally or in emails. That is still authoritative. It is still binding by custom and practice in the executive branch. It’s the official view of the office. People are supposed to and do follow it.” 

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