Monday, August 5, 2013

From Onion Skin to Online: Office of Legal Counsel Opinions

[In this guest post, Reference Librarian and Senior Lecturing Fellow Marguerite Most explores the history of the Justice Department's Office of Legal Counsel, just as a new collection of previously-unreleased opinions has been published.]

"Criminal Liability for Newspaper Publication of Naval Secrets"…"Use of Marshals, Troops, and Other Federal Personnel for Law Enforcement in Mississippi"…"The President and the War Power: South Vietnam and the Cambodian Sanctuaries". The Table of Contents reads like above-the-fold headlines in our nation's most respected newspapers. These are actually titles in the new series of supplemental opinions from the U.S. Department of Justice's Office of Legal Counsel, most of which address the legality of executive orders. These are opinions which "with the passage of time have become publishable."

Last week, the Office of Legal Counsel released volume one of its new series: Supplemental Opinions of the Office of Legal Counsel
(Op. O.L.C. Supp.). The opinions date from 1933 – 1977; many early ones were transcribed from onion-skin carbon copies in the OLC archives to the digitized PDFs which are now online in the Office's Electronic Reading Room.

Under the authority of the United States Attorney General, the Office of Legal Counsel provides legal advice to the President and to executive branch agencies. In the years following the establishment of the OLC, Attorneys General signed some opinions by name and signed opinions were eventually published in a 4-volume series covering 1940 to 1982. From 1977, opinions of the Office of Legal Counsel were published in a separate series (Op. O.L.C.); in 1982, the two series were combined with those AG opinions issued under the Attorney General’s own name appearing in the OLC volume for that year. Official opinions from 1992 forward are posted on the OLC website. Opinions from volume 1 (1977) are shelved in the Documents collection of the Library and are also available in LLMC Digital and HeinOnline.

In 1933, the year in which the OLC was established, the Office of the Assistant Solicitor General issued 83 opinions and 70 memoranda addressing the legality of executive orders. Many of these were pre-decisional advice addressing the legality of possible future actions, and were considered confidential and covered by the attorney-client and the deliberative process privileges. Opinions that were not published were deposited in the OLC archives along with memoranda and correspondence to the President, the Attorney General, and officials within executive agencies. This first volume of supplemental OLC opinions contains writings issued from 1933 to 1977, when OLC first began publishing its primary series. The supplemental series is intended to fill gaps in the record and to make public materials not deemed appropriate to release when written. The editor is careful to point out in the Foreword that "not all of the selections… reflect current law or the current position of the Office."

The foreword also includes this note of interest to the Duke Law School community: "We also wish to acknowledge the contributions of former Deputy Assistant Attorney General H. Jefferson Powell, now on the faculty at Duke University Law School. Professor Powell conceived of this project in the fall of 2011. He also did significant early spade work, combing through the OLC archives and selecting candidate opinions for publication. His initiative and efforts to bring this idea to fruition are deeply appreciated." Other law school faculty members with connections to the Office of Legal Counsel include Professor Chris Schroeder, Professor Emeritus Walter Dellinger, Professor Stuart Benjamin and Professor Sara Sun Beale.

The collection will be of interest to historians as well as to legal scholars and practitioners. The popular press has already begun mining the opinions for stories such as this one which appeared August 1, 2013 in The Atlantic: “A Chilling Memo on the Fate of Japanese Americans in 1942."

If you’re looking for a good read, look no further.

--Marguerite Most, Reference Librarian and Senior Lecturing Fellow

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