A secretive office within the executive branch has just taken an incremental but important step toward transparency on legal decisions that affect not only Americans, but also people around the world.

Take for example the debt ceiling. As the debt ceiling crisis looms, legal scholars (and reportedly the White House) are once again considering whether the president can invoke the Fourteenth Amendment to raise the borrowing limit singlehandedly. One might naturally want to know what the Office of Legal Counsel, the so-called “Supreme Court of the executive branch,” has to say about this legal theory. But we don’t know.

Thanks to a public records request brought by Talking Points Memo, what we do know is that the OLC has some relevant advice dating back to the Obama administration. None of these opinions, though, have been publicly released.

This knowledge gap isn’t unique to that area of law.

As another example, last April, the New York TimesCharlie Savage reported that a 2010 OLC opinion on U.S. assistance to the International Criminal Court was informing the Biden administration’s response to atrocities in Ukraine. Even though the opinion had shaped parts of foreign policy for over a decade, the OLC never published it, and no one outside the federal government knew what the opinion said until the Times obtained it in 2022.

How does the system work? How should it?

The OLC, a small but powerful office within the Justice Department, drafts binding legal opinions that shape the policies of federal agencies and guide government conduct affecting the lives of people in the United States and around the world. Although the OLC has pledged to be transparent about its legal decisions, it has historically released only a fraction of the opinions it writes. Its lawyers typically argue, as they did when responding to the Talking Points Memo FOIA request, that its opinions are protected by the attorney-client privilege and the deliberative process privilege.

The Knight Institute, where I work, has much to say about that theory (in short, it’s wrong), but at least for now, this means that the public’s knowledge about these important legal opinions depends on the OLC’s selective disclosures, leaks, and the work of intrepid FOIA requesters and litigators. All of this is made more problematic because the OLC does not proactively publish an index of opinions, which means the public is in the dark about what opinions even exist.

That’s what makes today’s release of a new index of unclassified OLC opinions written between 1998 and 2019 so remarkable. The OLC published a version of this index several years ago in response to a records request from the Project on Government Oversight, but that version was heavily redacted and incomplete. In 2020, the Project on Government Oversight sued to force the office to provide a more accurate and less-redacted index, and last year, the OLC agreed to take a fresh look.

The new index provides a fuller view of the OLC’s work over the last twenty years. Coupled with indexes that the OLC released in response to FOIA litigation brought by the Knight Institute, we can now see a clearer picture of the office’s work in the decades since it was established in 1933 (Strangely, while the 2010 ICC opinion is accounted for in the index, the debt ceiling opinion is not). Under a settlement in the Knight Institute’s litigation, the OLC released indexes of its unclassified opinions written between 1945 and February 15, 1994. It also published 230 new opinions from that time, addressing, among many other issues, questions relating to the Pentagon Papers, the civil rights movement, presidential war powers, and executive privilege. As part of the same settlement, the Justice Department will soon give us an index of its classified opinions—though of course it remains to be seen how redacted that index will be.

There is no doubt that a tremendous amount of effort went into the creation of these new indexes, and journalists, historians, academics, and members of the public will benefit from their release. These recent strides toward transparency should not be discounted—and they also should not be the OLC’s last. Most of the opinions listed on these indexes are still unpublished, and even now the OLC has not published any indexes for the years after 2019. Scholars, civil society advocates, and lawmakers have called for legislative fixes that would require the OLC to proactively publish its opinions (and indexes of those opinions). As those proposals work their way through the Hill, the OLC should not lose sight of the work it can continue to do itself to make the office more transparent, and more publicly accountable.

IMAGE: Justice Department building at night (via Getty Images).