A Public-Interest Group Files a Lawsuit for Secret Legal Opinions Guiding White House Executive Actions
The Trump administration’s general refusal to disclose the legal basis for its actions is improper, an ethics organization said in a federal lawsuit.
Citizens for Responsibility and Ethics in Washington asked a federal judge to issue an injunction ordering the Department of Justice and the Office of Legal Counsel to release all formal written opinions the Office of Legal Counsel has created and will create in the future. The lawsuit also asks for all indexes to the opinions.
The nonprofit, founded in 2003 to monitor government integrity, filed a similar lawsuit in 2013 against the Obama administration. The most recent lawsuit, filed Friday in federal court in the District of Columbia, seeks the “secret law” behind the Trump administration’s decisions. The Office of Legal Counsel has previously said that the opinions are confidential.
“This lawsuit is part of a long effort to give the public access to these vital opinions,” Noah Bookbinder, CREW executive director, said in a statement. “The law is clear that the government must release this secret law to the public, and we are asking the court to enforce the law since the Department of Justice will not.”
The Office of Legal Counsel, which gets its authority to tell the president and others what’s law from the Judiciary Act of 1789, has provided opinions on subjects such as immigration and spying on citizens. The infamous Bybee memo provided the legal justification for waterboarding.
The Trump administration has provided the opinion from the Office of Legal Counsel that Trump used to justify appointing son-in-law Jared Kusher as a senior adviser under the provisions of the federal anti-nepotism law.
Opinions of the Office of Legal Counsel provide the equivalent of immunity from criminal prosecution. The Department of Justice typically doesn’t prosecute people who relied on decisions from the Office of Legal Counsel even if their actions are later determined or believed to be illegal.
About 25 attorneys work in the Office of Legal Counsel, and it has a budget of about $8 million. Former Supreme Court justices William Rehnquist and Antonin Scalia once worked in the Office of Legal Counsel.
Trump has nominated Steven Engel to lead to Office of Legal Counsel. A former George W. Bush administration official, Engel spent the Obama years in private practice. Cases included representing Republican governors in U.S. vs. Texas, which fought an Obama program to delay some deportations of undocumented immigrants. He also represented those challenging the individual mandate provision of the Affordable Care. He must be confirmed by the Senate.