[Letter to the Majority Leader of the United States Senate from Attorney General Michael B. Mukasey Regarding the Constitutionality of the OLC Reporting Act of 2008, November 14, 2008]   [open pdf - 29KB]

This November 14, 2008 letter from Attorney General Michael Mukasey is addressed to the Majority Leader of the United States Senate. From the letter: "The Department of Justice has reviewed S. 3501, the 'OLC [Office of Legal Counsel] Reporting Act of 2008,' which would amend 28 U.S.C. § 530D to require the Department to report to Congress on a wide range of confidential legal advice, thus extending the reporting requirement far beyond the decisions on statutory unenforceability currently covered by the statute. The bill would require reporting about advice that is protected by constitutional privilege and, in so doing, could deter Executive Branch officials from seeking, and the Department from providing, candid legal advice regarding the administration of important Government programs. We believe that the bill is unconstitutional. Moreover, the bill raises very serious policy concerns because it would undermine, rather than advance, the public interest in confidential advice and information sharing that Congress, the Supreme Court, and Administrations of both parties have long recognized as critical to informed and effective Government decisionmaking. For these reasons, explained in greater detail below, the Department strongly opposes this legislation, and if it were presented to the President, his senior advisers would recommend that he veto it."

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