Letting us in on the secret

The administration has maddeningly argued in court against releasing OLC memos on the president’s use of his recess appointment power, contending that secrecy is “essential” in order to “ensure the candor of executive branch deliberations.” This argument proves too much: But if so, why publish any OLC opinions at all?

The White House has also disclosed OLC opinions when convenient, only to ignore the office later. Before launching military operations in Libya, the administration happily brandished an OLC ruling that the president did not need to obtain prior congressional approval.

Then, when OLC differed with the president on whether its actions in Libya amounted to “hostilities” under the War Powers Act — and therefore required congressional approval to continue — the administration chose to bypass OLC.