Discussion on the US office of Legal Counsel and the Knight First Amendment Institute, at Columbia University. What is the role of the Office of Legal Counsel and how does its opinions affect the American people.

The Office provides information by way of legal opinions to a variety of government agencies that affect the health and welfare of the American people. But, if those opinions are routinely kept secret, Americans can neither comply with the law, nor challenge it. As we all know, Democracy dies in darkness -  the Knight Institute is working to let the sun shine in, to bring transparency and accountability to the American people.

Guest: Attorney Stephanie Krent of the Knight First Amendment Institute, at Columbia University.

hello and welcome to the legal edition i'm your host attorney mary kay elloian i show topic today unmasking the first amendment litigating freedom of information and secret office of legal counsel opinions our guest is attorney stephanie krent she is an attorney at the knight first amendment institute at columbia university an organization dedicated to freedom of speech and the press in the digital age she and her team are working to bring transparency to olc opinions that previously remained secret from the public she is a graduate of barnard college and yale law school let's welcome attorney stephanie krant welcome attorney krant thank you so much mary kay it's great to be here now you have been working pretty much exclusively i believe on the litigation with regards to the office of legal counsel can you please tell us a little bit about what you've been doing and and exactly what is the office of legal counsel absolutely so i've been working with colleagues um at the knight first amendment institute where i work on two cases involving the freedom of information act and records produced by the office of legal counsel so just to back up and talk about what the office of legal counsel is it's an office within the department of justice sometimes referred to as olc and so it's staffed by department of justice attorneys and these attorneys within olc answer some of the most important legal questions of our time so they write opinions responding to requests made by other executive agencies about what the law is and what agencies obligations are under the law and so what they're doing is really opining on you know very important legal issues that affect all of us you know not just because they affect governance but because some of the opinions touch on questions of surveillance and public benefits but the unfortunate thing is that many of those opinions are not public um so olc does publish some opinions each year but that's by no means comprehensive and so we simply don't know all of the olc's decision making what it says the law is and therefore how agencies are responding and acting in accordance with those requirements and why are those opinions secret well that's a great question mary kay and it's one that we at the knight institute have been thinking about a lot uh you know the government will argue uh that these opinions are pieces of legal advice but in fact they're not legal advice they're really legal opinions because traditionally olc opinions are binding on executive branch agencies so agencies aren't free to simply disregard them one formal olc attorney actually called the olc the supreme court of the executive branch so it kind of gives you a sense of the magnitude of their role within the executive branch and the influence that they have over the executive branch we hear about it every day i mean we heard about it in the mueller report you know they couldn't uh prosecute a sitting president because of an olc opinion give us a little history on on that how far these opinions go back well these opinions span decades i mean the olc has been drafting opinions since at least the 1940s um and over time the role of the office has shifted but in 2010 the olc actually published a best practices memo explaining its role and what it says is that the olc's mission is to provide controlling legal advice to executive branch agencies so as you've said they've weighed in on questions you know about whether or not sitting presidents can be indicted very famously they weighed in on whether or not um it was okay to torture combatants i'm sorry suspected combatants in the wake of 9 11. they've also weighed in on questions about surveillance and targeted killings so throughout the decades they've played a really huge role in defining the power of the executive branch um especially with respect to the separation of powers and the executive branch's relationship with congress we know that for exa for example robert mueller he didn't dare challenge the olc opinion he believed it was set in stone and um would not be could not be challenged um and that and that has that view has pervaded pretty much throughout our government especially this administration uh so if you could a little bit explain about the secret process these aren't government secrets are they these secret opinions i mean there's nothing that's classified in them is there so some olc opinions may be classified but many are not um many olc opinions deal with questions about you know conflicts of interest of people who work in the government as i mentioned before of questions questions of public benefits information sharing across the government so those issues really aren't classified at all the way they are written is very similar to the way a case might proceed in a federal court or through an arbitration so an agency will submit a question to olc olc only opines by writing a formal written opinion if it believes that there's really a concrete dispute that olc can resolve so it's not just issuing advisory opinions these are really opinions that resolve a legal issue that's very much active before the agency in fact there's an executive order that directs agencies when there's a dispute between them to submit that dispute to olc um and olc will kind of be the final word to say which agency is correct and which is not in order to draft these opinions um olc attorneys seek submissions from the agencies that have made the request kind of like legal briefs in a case uh they'll also rely on sources of law so obviously typically we think of you know constitutional provisions or statutory provisions that might be relevant but olc also consults its own prior opinions because it believes that those opinions create a system of precedent um so it views its past opinions as controlling the same way you'd view a past decision of a court as a controlling piece of precedent does that anyone ever challenge this i know robert mueller didn't no and that's uh typically olc opinions are binding right so executive branch agencies feel beholden to follow the olc's legal advice because that is its role in the executive branch you know as the olcs best practices memo says its position is to provide controlling legal advice so it's seen as an entity that provides binding opinions and really sets out interpretations of law for other agencies to follow why is it so important that we know what these olc opinions state these opinions are on a wide array of topics that really get to the heart of the way our government interacts um you know with other branches of government and the way it interacts with us so for example there was one opinion about you know mandatory urinalysis for government employees another one about whether women were entitled to veterans benefits so they have a very direct role on our lives but we don't know what those opinions say and i think what's worse is that olc doesn't even have a comprehensive index of opinion titles so not only do we not know the substance of these opinions in many cases we don't even know the topics on which olc is a pining so it's you know it's an issue legally because of the freedom of information act which is you know what my work has focused on but i think there's also a much broader problem when you think about democratic values if the public doesn't know what the law is if the how do you abide by the law if you don't know what the law is it seems counterintuitive right it's very difficult to understand the government's justification for taking a particular action if you don't have all of the information before you so if you don't know there was an olc opinion you know either telling the government to act a certain way or telling the government not to act in a certain way it's very difficult to know why the government is taking the actions it is taking and on what basis it's doing so right and and someone could uh fall fall into a trap without even knowing that they're violating a law or rule or whatever um give us some examples of if you have any people that have maybe potentially not known uh what you know olc opinion you know says and fall privy to it well the olc typically its opinions aren't really addressing you know criminal law um or federal law that a particular person could violate it it's more advice i'm sorry it's more an opinion that really guides say a prosecutor's office who has a question about what the law is or an executive agency who's wondering whether or not they can take a certain step so whether or not they can use certain funding for a conference they'd like to host whether or not they can surveil united states citizens abroad within the meaning of the constitution how they can share information with other members of law enforcement so these are are questions that have a huge impact i think the olc has played a significant role really in many legal controversies so you know you mentioned the mueller report and the prior olc opinion that said that a sitting president could not be indicted the olc also drafted an opinion that related to the the whistleblower who submitted a report to congress not actually with the content of the whistleblower report but informing congress that a whistleblower report had been made and that sort of dance was in part because of an olc opinion stating to the director of uh the dni that he did not have to submit a report to congress and that the appropriate person to report the uh the whistleblowers report to was actually within the department of justice itself so it sounds like there can be a lot of uh pitfalls for um you know keeping this secret and most people aren't aware of you know what can happen talk talk to us about some of the cases that you've litigated so there are two major cases uh that i've worked on and that we at the knight institute have worked on with respect to these opinions and they both revolve around the freedom of information act typically known as foia so foia is pretty well known for i think one of its provisions which allows any member of the public including lawyers or just interested citizens to request records from government agencies and governments can only withhold those records if the record kind of falls into one of the very explicit exemptions within the statute but there's another provision of foia and that provision is sometimes referred to as the reading room provision or the affirmative disclosure provision yeah what's that so the name affirmative disclosure provision kind of tips it off um but this is the provision of foia that requires agencies to produce certain records and to publish them on a prospective basis so in other words agencies don't have to wait for a member of the public in fact they cannot wait for a member of the public to make a request they must publish these records which include final opinions and statements of law and interpretation kind of as soon as they're finalized yeah you know for for lawyers like ourselves when we're doing research we want to know what the law is and we go to an index we go to all these these indices and we look up the law in this keynotes and we we have an idea what's going on it sounds like you're flying blind here with what you're trying to do because none of it's been you know provided to you that's exactly right so each year the olc does publish a small number of of opinions but it's by no means comprehensive and you know imagine the position of a historian or a researcher who's reading an olc opinion sees a citation to a past olc opinion but that opinion is not public um so there's a real dearth of information about how the olc is creating this system of law that binds the executive branch and that's what we're trying to combat through these freedom of information act cases so the first case uh the first case is called campaign for accountability the department of justice and that's a case under the affirmative disclosure provision of foia um it was filed in 2016 seeking the release of all formal written opinions of olc on a prospective basis over the years you know as the litigation has continued it's been narrowed right now we're currently litigating the question of whether or not the olc must proactively release its opinions that resolve inter-agency disputes so as i mentioned before you know olc has a role in deciding disputes that arise between agencies both when the agencies feel deadlocked initially and then kind of come to the olc with a dispute um but also when one agency makes a request of the olc and another agency kind of jumps in to say it has a different view of what the law should be so that's where that case is and we're hoping to enter into briefing early next year well these are very very important cases because they affect so much for example i believe you're litigating one too against the cdc trying to get information i think that was one of them that your organization is litigating can you just speak briefly on that sure um so that's a case in which we filed a freedom of information act request to learn about the cdc's employee speech policies so essentially to try to figure out you know what cdc employees have been free to say about coven 19 and what restrictions are on them if they have to seek approval um before they speak and from whom and so that's been a case that we've been litigating since early may and as we all know dr fauci uh wasn't able to say a whole lot i believe although he's with another organization but uh the cdc is headed by believe dr red redfield that's right yeah so what are some of the other um issues that you feel is is is imperative to bring uncover with these cases what other issues you think the public should know about well you know uh this may be going back to basics a little bit but the supreme court has said over and over that the purpose of the freedom of information act is to create an informed citizenry and to prevent secret law which is really anathema to democracy so when i think about these cases and they think about you know the government's reticence to make certain records public i really wonder about who who those agencies think they're serving i mean the purpose of these laws is to make sure that those of us who are governed know what the government is doing and the decisions it's making um when president obama took office in 2009 he issued an executive order basically instructing agencies to try to disclose as much as possible but in in our experience agencies still continue to withhold quite a bit of information when they were faced with freedom of information act requests um and with the olc in particular the government seems to be very protective of olc opinions very protective of olc's ability to really selectively disclose um so to disclose opinions that it believes are significant to just close opinions that might help the president's position on a certain issue by buttressing what he or she says with legal arguments but to withhold all the rest um so to withhold opinions that the public has requested and that the public in my opinion has a legal right to see um so that's that's been a really troubling trend so example with the cdc potentially they're stifling the speech of the employees to tell people how to protect themselves during covet isn't that pretty much the reason why we filed the request is exactly because we wanted to know the answer to that question and so to what extent was the government you know the agency itself possibly the white house to what extent were those political actors influencing what scientists felt free to say whether or not that extended to what scientists could say you know in their personal capacities so not in their official acts as representatives of the cdc but just as individuals with expertise that was really the concern animating uh that lawsuit which is ongoing and of course the cell chills speech anytime you put parameters on what can be said it's going to chill speech people are not going to come forward for fear of reprisal that's right so do you see any difference in this this present administration versus past administrations with regards to suppression of information um coming forth you know with respect to these opinions by the office of legal counsel in particular i would say that under both administrations so the current one and the obama administration government attorneys have argued pretty strenuously against kind of comprehensive disclosure of olc opinions so there hasn't been a huge difference in terms of the government's position about whether or not uh it must publish all of its opinions kind of on a prospective basis do you see that changing with any of your litigation you know i hope so uh one of the cases that that we haven't discussed yet is a case called francis v department of justice and that's the case so that's a case we filed uh last august so about a year and a half ago um under the other provision of foia basically allowing any member of the the public to request records uh so in that case we requested all of the olc's opinions that were published prior to 1994. in that case we've actually since filing suit had a very productive relationship with the government and through that case thus far we've been able to obtain access to over i think 300 olc opinions primarily from the 60s 70s and 80s and we've also seen received lists of opinion titles from several years so that's given us a really important glimpse into the way that the office functioned and what it does um so it's been really heartening to see the progress we've made in that case and again as this is so important because they're advising the president they're advising agencies that make health law that make laws that affect the american public so it's vital that attorneys like yourself and others have access to this information so you know what the law is and you know how to stay within the confines it or challenge it if it infringes upon um you know other rights absolutely i think it's it's critical uh that members of the public know how the government is acting what parameters it's put on itself and the reasons why it's making the decisions it's making you know in particular with the torture memos there was obviously a huge outcry when the public learned um about what was going on in the bush administration and i think it was incredibly important that the public see the opinions that were drafted by the olc in that case approving the use of torture um because in many cases the public did not agree that torture was lawful uh and it's for that's the purpose of transparency right to make clear what the government is doing so that if the public disagrees uh the public can voice its concern and can do so by voting as well right and it's supposed to be representative government of the people so keeping it secret from the people is counterintuitive to what a real democracy is supposed to be exactly uh and that's why we think that these cases are so important and why we hope that we continue to learn new information about olc opinions yeah and of course you're not asking for anything that's uh confidential that would um secrets of the united states or anything that would make the country and put the country in a bad light you're asking for information that affects the american people that's right the government has options if it believes certain opinions are classified um and those i think can be resolved on a a case-by-case basis but what we're really seeking is a commitment by the government to be releasing these opinions and you know you and i have been talking about um the legal reasons why the government must do that and why they should do that but it's important to state you know i mentioned president obama's executive order earlier president biden and his administration could decide to make these opinions more public there's nothing preventing him from doing that from telling the olc to go back through its archives to publish those opinions and to do so on a forward-looking basis as well it seems it seems clear to me but again you know when you're fighting the bureaucracy of of the wheels of government it can be a daunting task and that's why what you do in your your agency is so important so tell us some other other other issues that your group is litigating right now uh sure so um you know we've taken a special interest in the olc and transparency around office of legal counsel opinions but that's not all we do um we're an organization that's dedicated to promoting the freedom of speech and the press in the digital age so right now we're working on several cases around pre-publication review which is a process by which you know past employees who work in certain intelligence agencies have to get kind of pre-cleared before they publish books or writings about their time in government we're also currently in court challenging speech restrictions on immigration judges um who may want to speak up about you know certain actions that the federal agency overseeing them which is called the executive office for immigration review to what that agency has done in recent years to you know decrease the independence of those immigration judges and to change the way the immigration court system works um so those are two of our ongoing cases we also have been litigating a case against president trump for blocking social media critics on twitter um that case actually has been up through the district court on the second circuit and there is a petition for certiorari um currently pending with the supreme court so um those cases are all very much active and things that my colleagues and i have been working on at the knight institute those are fascinating topics and in the petition for certiorari that's if the u.s supreme court decides to take the case it's pretty much saying we'd like you to take a look at this but it's at your discretion that's right so we don't know what the supreme court will do um and we are waiting like everyone else to to learn what they're going to do with that case now did your office get involved at all with the issues of you know the don mcgahn issue where he was counsel for the president and uh and he thwarted a subpoena did your office get involved with any um you know research with regards to that uh not to my knowledge no okay uh what other issues um are you currently litigating now that um you would want the public to know or even prospectively what you would like the public to know to be thinking about well i think this next administration as every administration change does really provides the people coming into the government people coming into power to think about what they want their relationship to members of the public to be so you know we've learned about surveillance on on american citizens on members of the public we've learned about attempts to purchase data from data brokers we've learned you know about agency reticence to release records under the freedom of information act so i would really urge members of the public to put a lot of scrutiny onto this incoming administration the way they should with every incoming administration because putting pressure on these administrations is one of the best ways we can shed light on the important issues of you know treating members of the public with respect and making public their dealings with members of the public right and helping lawyers like you and i to discern what the law is and how we can protect the rights of those that we are engendered to protect that's exactly right thank you so much this has been a pleasure thank you mary kay i want to thank our guest attorney stephanie krent for sharing her research and opinions on the olc and the first amendment i also want to thank you our viewers for tuning in for more information on today's topic and our guest visit us online at thelegaledition.com and remember this information is for general educational purposes it is not legal or professional advice and now you can download our podcasts and subscribe online find us on facebook youtube instagram and twitter