Weaponizing the Office of Legal Counsel

Abstract

Commentators have written a great deal about what I call the “primary effects” of the Office of Legal Counsel’s (OLC) work — the ways in which it establishes and dictates the executive’s position on the full spectrum of legal questions that branch confronts. This Article argues that this scholarly focus on OLC’s primary, intra-executive role has obscured the systemic effects that its positions play outside the executive branch — what I call its “secondary effects,” and which have thus far gone unremarked. My thesis is that, when it comes to inter-branch conflicts over congressional access to information in the executive branch’s possession, OLC opinions do not merely provide legal guidance to the executive branch but also actually influence the outcomes of those conflicts. More specifically, they place a thumb on the scale in the executive’s favor, making it harder for Congress to access the information it seeks.

Keywords: executive branch, congressional oversight, separation of powers, executive privilege, OLC, testimonial immunity