What’s the legal basis for executive privilege?

Gfactor replies:

Let’s start off with the bare facts: The text of the Constitution doesn’t mention any executive privilege or immunity for the president – i.e., the right to disregard subpoenas issued by courts or Congress – and no law or amendment has been passed to create such a privilege. Those who invoke executive privilege typically rely on (a) historical precedent (presidents from George Washington to George Bush have declined to produce documents on occasion and gotten away with it) and (b) constitutional interpretation concerning the nature of the president’s job and its relationship to the other branches of government.

When future Supreme Court justice Antonin Scalia, then an assistant attorney general, defended the concept before Congress, he pointed to George Washington’s refusal in 1796 to turn documents about the negotiation of the Jay Treaty over to the House of Representatives. Washington didn’t directly invoke any privilege; what he said was “To admit, then, a right in the House of Representatives to demand and to have as a matter of course all the papers respecting a negotiation with a foreign power would be to establish a dangerous precedent,” which sounds like he’s asserting a diplomatic secrets privilege. But Washington also argued that the House had no standing to make such a demand anyway, as it has no constitutional role in the treaty-making process; by contrast, he pointed out, he had already provided all relevant documents beforehand to the Senate, whose responsibilities do include providing advice and consent in the forming of treaties.

An earlier episode involving Washington and executive privilege had taken place in 1792, when Congress asked the administration for information regarding the failure of a U.S. military expedition. Washington discussed the issue with his cabinet; according to notes kept by Secretary of State Thomas Jefferson, all agreed that a president has a right to withhold information when it’s in the public interest to do so. This is one of those cases, though, where discretion ultimately won out – the administration provided the information to Congress after all.

Another early justification for executive privilege was that it interfered with the president’s job. In a previous staff report I discussed Jefferson’s assertion of privilege during the Aaron Burr trial. Jefferson worried that if he was subject to subpoena courts could “bandy him from pillar to post, keep him constantly trudging from north to south & east to west, and withdraw him entirely from his constitutional duties.” Jefferson found this inconsistent with the notion of separation of powers. (President Clinton would no doubt find these concerns reasonable.)

According to a 1958 memo prepared by Attorney General William Rogers, as of then 17 presidents had asserted executive privilege on 27 occasions. (Later, in an influential article Archibald Cox, applying a stricter standard, whittled that number down to a total of nine instances of assertions by just three presidents: Tyler, Truman, and Franklin Roosevelt.) President Eisenhower invoked executive privilege that year in response to demands for information from the McCarthy Commission; in fact, it was Ike’s administration that coined the term executive privilege. Every administration from then on has invoked the privilege [.pdf] at least a few times.

Most disputes about executive privilege have involved information requests from Congress rather than from a court; specifically, they tend to stem from Congress’s attempted exercise of its oversight powers. In response to such requests, the executive branch has asserted several specific kinds of executive privilege: foreign relations, military affairs (these two are often lumped together as “state secrets”), law-enforcement investigation, and “deliberative process” – i.e., relating to policy discussions between the president and his advisors. Two opinions issued by the D.C. circuit court have found that the deliberative process privilege can’t be derived from the Constitution but identified instead a related “presidential communications privilege,” which was said to derive from the “constitutional separation of powers principles and the President’s unique constitutional role.”

A 2007 Congressional Research Service white paper written by Morton Rosenberg describes the basic rules of executive privilege as they’re currently understood: The Nixon and post-Watergate cases established the broad contours of the presidential communications privilege. Under those precedents, the privilege, which is constitutionally rooted, could be invoked by the President when asked to produce documents or other materials or information that reflect presidential decision making and deliberations that he believes should remain confidential. If the President does so, the materials become presumptively privileged. The privilege, however, is qualified, not absolute, and can be overcome by an adequate showing of need. Finally, while reviewing courts have expressed reluctance to balance executive privilege claims against a congressional demand for information, they have acknowledged they will do so if the political branches have tried in good faith but failed to reach an accommodation.

Still, it’s a controversial doctrine, especially as the current administration seems intent on greatly expanding its scope. Some would happily see it vanish entirely, but whether they like it or not – or whether it’s in the Constitution or not – it’s been recognized by judges and legislators for a while now and probably isn’t going away soon.

Sources and references:

Barr, William, Congressional Requests for Confidential Executive Branch Information, June 19, 1989, 13 Op. Off. Legal Counsel 153

Bush uses privilege to Deny Ex-aides’ Testimony; White House-Congress Showdown Escalates Over Attorney Firing Subpoenas, msnbc.com, July. 11, 2007: http://www.msnbc.msn.com/id/19675580

CRS Annotated Constitution, Article II: http://www.law.cornell.edu/anncon/html/art2frag30_user.html#art2_hd124

DOJ, United States Attorneys’ Manual § 9-90.000, National Security: http://www.usdoj.gov/usao/eousa/foia_reading_room/usam/title9/90mcrm.htm

Dorf, Michael, A Brief History of Executive Privilege, from George Washington to Dick Cheney, Findlaw’s Writ, Feb. 06, 2002 : http://writ.news.findlaw.com/dorf/20020206.html

Doyle, Charles, Administrative Subpoenas and National

Security Letters in Criminal and Intelligence Investigations: A Sketch, Congressional Research Service, April 15, 2005: http://www.fas.org/sgp/crs/natsec/RS22122.pdf

Fisher, Louis, National Security Whistleblowers, Congressional Research Service, December 30, 2005

Goldsmith, Jack, Authority of Agency Officials to Prohibit Employees From Providing Information to Congress, May 24, 2004: http://www.usdoj.gov/olc/crsmemoresponsese.htm

Graham, Kenneth, “Federal Privileges in the 21st Century: A Cautionary Tale for Codifiers,” 38 Loy. L.A. L. Rev. 861 (2004)

Holding, Reynolds, “The Executive Privilege Showdown,” Time, March 21, 2007: http://www.time.com/time/nation/article/0,8599,1601450,00.html

In re Sealed Case (Espy), 121 F.3d 729 (D.C. Cir. 1997): http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=dc&navby=case&no=963124a

Judicial Watch v. Department of Justice, 365 F.3d 1108 (D.C. Cir. 2004): http://pacer.cadc.uscourts.gov/docs/common/opinions/200405/03-5093a.pdf

Kirtley, Jane, “Transparency and Accountability in a Time of Terror: The Bush Administration’s Assault on Freedom of Information,” 11 Comm. L. & Pol’y 479 (2006)

Kitrosser, Heidi, “Secrecy and Separated Powers: Executive Privilege Revisited,” 92 Iowa L. Rev. 489 (2007)

Leahy, Patrick, Ruling on the White House’s Claims of Executive Privilege and Immunity Made in Response to Senate Judiciary Committee Subpoenas, November 29, 2007: http://leahy.senate.gov/press/200711/112907ExecutiveRuling.pdf

Letter from Fred Fielding to Patrick Leahy and John Conyers dated June 28, 2007: http://www.whitehouse.gov/news/releases/2007/06/LetterfromCounseltothePresident06282007.pdf

Letter from Paul Clement to George W. Bush dated June 27, 2007: http://www.whitehouse.gov/news/releases/2007/06/LetterfromSolicitorGeneral06272007.pdf

Marshall, William, “The Limits on Congress’s Authority to Investigate the President,” 2004 U. Ill. L. Rev. 781

Olson, Theodore, History of Refusals By Executive Branch Officials to Provide Information Demanded by Congress, Part I, December 14, 1982, 6 Op. Off. Legal Counsel 751

Olson, Theodore, History of Refusals By Executive Branch Officials to Provide Information Demanded by Congress, Part II, January 27, 1983, 6 Op. Off. Legal Counsel 782

O’Neil, David, “The Political Safeguards of Executive Privilege,” 60 Vand. L. Rev. 1079 (2007)

Press Release: Senate Judiciary Committee Approves Contempt Citations For Rove, Bolten In Bipartisan Vote, Dec. 13, 2007: http://leahy.senate.gov/press/200712/121307a.html

Reno, Janet, Assertion of Executive Privilege With Respect To Clemency Decision, September 16, 1999: http://www.usdoj.gov/olc/falnpotus.htm

Relyea, Harold, “Presidential Adviser’s Testimony Before Congressional Committees: An Overview,” October 6, 2004 Congressional Research Service: http://oversight.house.gov/documents/20050927185419-55237.pdf

Rosenberg, Morton, “Presidential Claims of Executive Privilege: History, Law, Practice and Recent Developments,” Congressional Research Service, September 27, 2007: http://www.fas.org/sgp/crs/secrecy/RL30319.pdf

Smith, William French, Assertion of Executive Privilege in Response to a Congressional Subpoena, October 13, 1981, 5 Op. Off. Legal Counsel 27

Williams, Peter, “What is Executive Privilege?”, msnbc.com, July 9, 2007: http://www.msnbc.msn.com/id/19682945/

Gfactor

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