Current, Future Justice Officials Clash Over OLC Proposal

In a revealing conflict of views between outgoing and incoming Justice Department officials, Attorney General Michael Mukasey recently told Congress that a proposal that was conceived by Prof. Dawn Johnsen to require expanded reporting to Congress concerning Justice Department Office of Legal Counsel (OLC) opinions is unconstitutional. Prof. Johnsen has been designated by President-elect Obama as the new OLC head.

The dispute concerned “The OLC Reporting Act of 2008″ (S.3501) that was introduced by Sen. Russ Feingold last September.

“The bill would require the Attorney General to report to Congress when the Department of Justice issues a legal opinion concluding that the executive branch is not bound by a statute,” Sen. Feingold explained last year. Currently, no such notification to Congress is required, and the executive branch may silently interpret a seemingly straightforward statute as non-binding.

The Feingold bill emerged from a suggestion offered by Prof. Johnsen at an April 30, 2008 hearing on “Secret Law.”

The OLC Reporting Act, which would not require disclosure of the actual legal opinions, “strikes a sensible and constitutionally sound balance between the executive branch’s need to have access to candid legal advice… and the legislative branch’s need to know the manner in which its laws are interpreted,” Prof. Johnsen wrote in a September 15 letter with former Bush White House Associate Counsel Brad Berenson.

It’s not constitutionally sound at all, objected Attorney General Mukasey in a November 14 letter (pdf) to Congress that was disclosed this week. The bill is unconstitutional because it improperly seeks to mandate the timing and extent of disclosure of classified information, and because it infringes on the constitutional doctrine of executive privilege, he said.

The legislation would require that Congress be notified of “many legal opinions” that fall within its terms, the Attorney General wrote. And it would mistakenly lead legal advisers to tailor their advice in such a way as not to trigger the reporting requirements of the Act, he warned.

Accordingly, Attorney General Mukasey said, “the Department strongly opposes this legislation, and if it were presented to the President, his senior advisers would recommend that he veto it.”

But the Department’s strong opposition to the bill is likely to fade very soon, considering that one of the new President’s “senior advisers” is also one of the bill’s authors.