Rob hill better placed executive privilege
However, existing precedent left important gaps in the law of presidential privilege that have increasingly become focal points, if not the source, of interbranch confrontations. Department of Justice, 6 addressed many of these unresolved questions, albeit in a noncongressional context, in a manner that may alter the future legal playing field in resolving such disputes.
In , an investigation into the removal of nine United States Attorneys drew formal claims of privilege by President George W. Those privilege claims were successfully challenged in a civil suit brought by the House Judiciary Committee, in which a federal district court held that senior presidential advisers do not enjoy absolute immunity from compelled testimony or production of documents pursuant to a congressional subpoena.
Similar to the U. Attorneys controversy, a civil suit was filed to compel the executive branch to comply with the committee subpoena. That case is currently pending before the U. District Court for the District of Columbia. To better understand the executive's stance in this area, this report will chronologically examine the development of the judiciary's approach to executive privilege and describe how the executive has adapted the judicial explanations of the privilege to support its arguments.
In Nixon v. Sirica, 10 the first of the Watergate cases, the Court of Appeals for the District of Columbia Circuit rejected President Nixon's claim that he was absolutely immune from all compulsory process whenever he asserted a formal claim of executive privilege.
The court held that while presidential conversations are "presumptively privileged," 11 the presumption could be overcome by an appropriate showing of public need by the branch seeking access to the conversations. In Sirica, "a uniquely powerful," albeit undefined, showing was deemed to have been made by the Special Prosecutor, who argued that the tapes subpoenaed by the grand jury contained evidence vital to determining whether probable cause existed that those indicted had committed crimes.
Circuit next addressed the Senate Watergate Committee's effort to gain access to five presidential tapes in Senate Select Committee on Presidential Campaign Activities v. Sirica" was applicable "with at least equal force here. The appeals court held that the committee had not met its burden of showing that "the subpoenaed evidence is demonstrably critical to the responsible fulfillment of the Committee's function. Circuit's view in Senate Select Committee, that the Watergate Committee's oversight need for the requested materials was "merely cumulative" in light of the then concurrent impeachment inquiry, has been utilized by the executive as the basis for arguing that Congress's interest in executive information is less compelling when a committee's function is oversight than when it is considering specific legislative proposals.
The Senate Select Committee court's opinion took great pains to underline the unique and limiting nature of the case's factual and historical context. Thus it emphasized the overriding nature of the "events that have occurred since this litigation was begun and, indeed, since the District Court issued its decision.
As George Mason recognized at the Constitutional Convention, Members of Congress "are not only Legislators but they possess inquisitorial power. They must meet frequently to inspect the Conduct of the public offices. The informing functions of Congress should be preferred even to its legislative function. The argument is not only that a discussed and interrogated administration is the only pure and efficient administration, but, more than that, that the only really self-governing people is that people which discusses and interrogates its administration.
In fact, the Court has recognized that Congress's investigatory power "comprehends probes into departments of the Federal Government to expose corruption, inefficiency or waste. Moreover, the Senate Select Committee panel's "demonstrably critical" standard for overcoming a President's presumptive claim of privilege is not reflected in any of the subsequent Supreme Court or appellate court rulings establishing a balancing test for overcoming the qualified presidential privilege. Nixon Nixon I , 28 which involved a judicial trial subpoena issued to the President at the request of the Watergate Special Prosecutor requesting tape recordings and documents relating to the President's conversations with close aides and advisers.
For the first time, the Court found a constitutional basis for the doctrine of executive privilege in "the supremacy of each branch within its own assigned area of constitutional duties" and in the separation of powers. Evaluating these interests "in a manner that preserves the essential functions of each branch," 33 the Court held that the judicial need for the tapes, as shown by a "demonstrated, specific need for evidence in a pending criminal trial," outweighed the President's "generalized interest in confidentiality.
The Presidential Recordings and Materials Preservation Act 37 granted custody of President Nixon's presidential records to the Administrator of the General Services Administration, who would screen them for personal and private materials, to be returned to President Nixon, and preserve the rest for historical and governmental objectives. The Court rejected President Nixon's challenge to the act, which included an argument based on the "presidential privilege of confidentiality.
First, the Court reiterated that the executive privilege it had announced in Nixon I was not absolute, but qualified. In United States v. Circuit was unwilling to balance executive privilege claims against a congressional demand for information unless and until the political branches had tried in good faith but failed to reach an accommodation.
The Justice Department argued that the executive branch was entitled to sole control over the information because of "its obligation to safeguard the national security. The House also argued that the court had no jurisdiction over the dispute because of the Speech or Debate Clause. The court rejected the "conflicting claims of the [Executive and the Congress] to absolute authority. This does not stand up. While the Constitution assigns to the President a number of powers relating to national security, including the function of commander in chief and the power to make treaties and appoint Ambassadors, it confers upon Congress other powers equally inseparable from the national security, such as the powers to declare war, raise and support armed forces and, in the case of the Senate, consent to treaties and the appointment of ambassadors.
Congress' investigatory power is not, itself, absolute. Under this view, the coordinate branches do not exist in an exclusively adversary relationship to one another when a conflict in authority arises. Rather, each branch should take cognizance of an implicit constitutional mandate to seek optimal accommodation through a realistic evaluation of the needs of the conflicting branches in the particular fact situation. Instead, the court "encouraged negotiations in order to avoid the problems inherent in [the judiciary] formulating and applying standards for measuring the relative needs of the [executive and legislative branches].
Subcommittee staff were allowed to review unedited memoranda describing the warrantless wiretaps and report orally to subcommittee members. The Justice Department, however, retained custody of the documents. District Court for the District of Columbia displayed the same reluctance to intervene in an executive privilege dispute with Congress in United States v. House of Representatives.
The court dismissed the case, without reaching the executive privilege claim, on the ground that judicial intervention in a dispute "concerning the respective powers of the Legislative and Executive Branches Compromise and cooperation, rather than confrontation, should be the aim of the parties. House of Representatives encouraged the political branches to settle their dispute rather than invite judicial intervention.
The court would intervene and resolve the interbranch dispute only if the parties could not agree. Even then, the courts advised, "Judicial resolution of this constitutional claim Many significant issues remained unresolved, including whether the President has to have actually seen or been familiar with the disputed matter; whether the presidential privilege encompasses documents and information developed by, or in the possession of, officers and employees in the departments and agencies of the executive branch outside the Executive Office of the President; whether the privilege encompasses all communications in which the President may be interested or if it is confined to a particular type of presidential decision making; and precisely what kind of demonstration of need can overcome the privilege and justify the release of privileged materials.
The U. Department of Justice. In re Sealed Case Espy In Espy, 58 the appeals court addressed several important issues left unresolved by the Watergate cases: the precise parameters of the presidential executive privilege; how far down the chain of command the privilege reaches; whether the President has to have seen or had knowledge of the existence of the documents for which he claims privilege; and what showing is necessary to overcome a valid claim of privilege.
When allegations of improprieties against Espy surfaced in March of , President Clinton ordered the White House Counsel's Office to investigate and report to him so he could determine what action, if any, he should undertake. The White House Counsel's Office prepared a report for the President, which was publicly released on October 11, The Espy court noted that the President never saw any of the report's underlying or supporting documents.
Espy had announced his resignation on October 3, to be effective on December The Independent Counsel was appointed on September 9 and the grand jury issued a subpoena for all documents that were accumulated or used in preparation of the report on October 14, three days after the report's issuance. The President withheld 84 documents, claiming both types of executive privilege for all documents.
A motion to compel was resisted on the basis of the claimed privilege. After in camera review, the district court quashed the subpoena, but in its written opinion the court did not discuss the documents in any detail and provided no analysis of the grand jury's need for the documents. The appeals court panel unanimously reversed. At the outset, the appeals court's opinion carefully distinguished between the "presidential communications privilege" and the "deliberative process privilege.
But the deliberative process privilege, which applies to executive branch officials generally, is a common law privilege which requires a lower threshold of need to be overcome, and "disappears altogether when there is any reason to believe government misconduct has occurred.
The court rested its conclusion on "the President's dependence on presidential advisers and the inability of the deliberative process privilege to provide advisers with adequate freedom from the public spotlight" and "the need to provide sufficient elbow room for advisers to obtain information from all knowledgeable sources. The privilege must also extend to communications authored or received in response to a solicitation by members of a presidential adviser's staff.
Therefore, it carefully restricted the privilege's reach by explicitly confining it to White House staff that has "operational proximity" to direct presidential decision making. The court held that the privilege did not apply to executive agency staff: We are aware that such an extension, unless carefully circumscribed to accomplish the purposes of the privilege, could pose a significant risk of expanding to a large swath of the executive branch a privilege that is bottomed on a recognition of the unique role of the President.
In order to limit this risk, the presidential communications privilege should be construed as narrowly as is consistent with ensuring that the confidentiality of the President's decisionmaking process is adequately protected.
Not every person who plays a role in the development of presidential advice, no matter how remote and removed from the President, can qualify for the privilege. In particular, the privilege should not extend to staff outside the White House in executive branch agencies. Instead, the privilege should apply only to communications authored or solicited and received by those members of an immediate White House advisor's staff who have broad and significant responsibility for investigation and formulating the advice to be given the President on the particular matter to which the communications relate.
Only communications at that level are close enough to the President to be revelatory of his deliberations or to pose a risk to the candor of his advisers. Of course, the privilege only applies to communications that these advisers and their staff author or solicit and receive in the course of performing their function of advising the President on official government matters.
This restriction is particularly important in regard to those officials who exercise substantial independent authority or perform other functions in addition to advising the President, and thus are subject to FOIA and other open government statutes. See Armstrong v. Executive Office of the President, 90 F. The presidential communications privilege should never serve as a means of shielding information regarding governmental operations that do not call ultimately for direct decisionmaking by the President.
If the government seeks to assert the presidential communications privilege in regard to particular communications of these "dual hat" presidential advisers, the government bears the burden of proving that the communications occurred in conjunction with the process of advising the President. Arguably, the opinion restricts the scope of the privilege to encompass only those functions that form the core of presidential authority, involving what the court characterized as "quintessential and non-delegable Presidential power.
Decision making vested by statute in the President or agency heads, such as rulemaking, environmental policy, consumer protection, workplace safety, and labor relations, among others, may not necessarily be covered by the privilege. Of course, the President's role in supervising and coordinating decision making in the executive branch remains unimpeded, but his communications in furtherance of such activities may not be protected by the constitutional privilege.
Judicial Watch v. Department of Justice 69 appears to lend substantial support to the interpretation of Espy discussed above. Judicial Watch involved requests for documents concerning pardon applications and pardon grants reviewed by the Justice Department's Office of the Pardon Attorney and the Deputy Attorney General for consideration by President Clinton.
The district court held that because the materials sought had been produced for the sole purpose of advising the President on a "quintessential and non-delegable Presidential power"—the exercise of the President's constitutional pardon authority—the presidential communications privilege extended to internal Justice Department documents which had not been "solicited and received" by the President or the Office of the President.
In rejecting the government's argument that the privilege should apply to all departmental and agency communications related to the Deputy Attorney General's pardon recommendations for the President, the panel majority held that Such a bright-line rule is inconsistent with the nature and principles of the presidential communications privilege, as well as the goal of serving the public interest Communications never received by the President or his Office are unlikely to "be revelatory of his deliberations Any pardon documents, reports or recommendations that the Deputy Attorney General submits to the Office of the President, and any direct communications the Deputy or the Pardon Attorney may have with the White House Counsel or other immediate Presidential advisers will remain protected It is only those documents and recommendations of Department staff that are not submitted by the Deputy Attorney General for the President and are not otherwise received by the Office of the President, that do not fall under the presidential communications privilege.
According to the court, "[u]ntil [Espy], the privilege had been tied specifically to direct communications of the President with his immediate White House advisors. The Espy court's answer was to "espouse[ ] a 'limited extension' of the privilege 'down the chain of command' beyond the President to his immediate White House advisors only," recognizing the need to ensure that the President would receive full and frank advice with regard to his non-delegable appointment and removal powers, but was also wary of undermining countervailing considerations such as openness in government Hence, the [Espy] court determined that while 'communications authored or solicited and received' by immediate White House advisors in the Office of the President could qualify under the privilege, communications of staff outside the White House in executive branch agencies that were not solicited and received by such White House advisors could not.
While the exercise of the President's pardon power was certainly a nondelegable, core presidential function, the officials involved, the Deputy Attorney General and the Pardon Attorney, were deemed to be too removed from the President and his senior White House advisers to be protected by the privilege.
The court conceded that functionally those officials were performing a task directly related to the pardon decision, but concluded that an organizational test was more appropriate than a functional test, since the latter could potentially significantly broaden the scope of the privilege. Where the presidential communications privilege did not apply, as here, the lesser protections of the deliberative process privilege would have to suffice. Committee on the Judiciary v.
Miers The important district court opinion in Committee on the Judiciary v. Miers has also played a role in defining the outer contours of executive privilege. In early , the House Judiciary Committee and its Subcommittee on Commercial and Administrative Law commenced an inquiry into the termination and replacement of a number of United States Attorneys. Six hearings and numerous interviews were conducted by the committees between March and June , focusing on the actions of present and former Department of Justice DOJ officials and employees as well as related DOJ documents.
Fielding, at the direction of President Bush, wrote to the chairmen of the House and Senate Judiciary Committees notifying the committees that the testimony sought from Ms. Miers was subject to a "valid claim of Executive Privilege," and would be asserted by the President if the matter could not be resolved before the scheduled appearance date. Miers informed Chairman Conyers that, pursuant to letters received from the White House Counsel, Miers would not answer questions or produce documents.
The next day Ms. Miers's counsel announced that she would not appear at all. Miers is [absolutely] immune from compulsion to testify before the Committee on this matter and therefore is not required to appear to testify about the subject.
Miers was a former counsel to the President would not alter the analysis since, in OLC's view, "a presidential advisor's immunity is derivative of the President's. Miers nor Mr. Bolten complied with the subpoenas by the return dates. Miers's and Mr.
Bolton's privilege claims. The Judiciary Committee filed its report formally reporting a contempt violation to the House in November The House voted 85 in favor of two resolutions. Bolten's refusal to comply with the committee subpoena to the U. Attorney for the District of Columbia for presentation to a grand jury pursuant to 2 U. Sections and Attorney would not present the criminal contempt citation to the grand jury.
That resolution authorized the chairman of the Judiciary Committee to initiate civil judicial proceedings in federal court to seek a declaratory judgment enforcing the subpoena. On February 28, , the Speaker certified the committee's report to the U. The next day, however, Attorney General Mukasey advised the Speaker that "the Department will not bring the congressional contempt citations before a grand jury or take any other action to prosecute Mr.
Bolten or Ms. Miers to appear before the committee, respond to questions, and only invoke executive privilege if appropriate. District Court issued a lengthy opinion rejecting the executive's claim that present and past senior advisers to the President are absolutely immune from compelled congressional process, the court rejected the executive's position: The Executive cannot identify a single judicial opinion that recognizes absolute immunity for senior presidential advisors in this or any other context.
That simple yet critical fact bears repeating: the asserted absolute immunity claim here is entirely unsupported by existing case law. In fact, there is Supreme Court authority that is all but conclusive on this question and that powerfully suggests that such advisors do not enjoy absolute immunity. The Court therefore rejects the Executive's claim of absolute immunity for senior presidential aides.
The court responded that the same line of argument was rejected by the Supreme Court in Harlow v. Fitzgerald, 91 a suit for damages against senior White House aides arising out of the defendants' official actions. The aides claimed they were "entitled to a blanket protection of absolute immunity as an incident of their offices as Presidential aides.
Miers's nor Mr. Bolten's close proximity to the President was sufficient under Harlow to provide either absolute or qualified immunity. Significantly, the Committee concedes that an executive branch official may assert executive privilege on a question-by-question basis as appropriate.
That should serve as an effective check against public disclosure of truly privileged communications, thereby mitigating any adverse impact on the quality of advice that the President receives Still, it is noteworthy that in an environment where there is no judicial support whatsoever for the Executive's claim of absolute immunity, the historical record also does not reflect the wholesale compulsion by Congress of testimony from senior presidential advisors that the Executive fears.
The court responded: Congress's power of inquiry is as broad as its power to legislate and lies at the very heart of Congress's constitutional role. Indeed, the former is necessary to the proper exercise of the latter: according to the Supreme Court, the ability to compel testimony is "necessary to the effective functioning of courts and legislatures. Both involve core functions of a co-equal branch of the federal government, and for the reasons identified in Nixon, the President may only be entitled to a presumptive, rather than absolute, privilege here.
And it is certainly the case that if the President is entitled only to a presumptive privilege, his close advisors cannot hold the superior card of absolute immunity Presidential autonomy, such as it is, cannot mean that the Executive's actions are totally insulated from scrutiny by Congress. That would eviscerate the Congress's oversight functions. Circuit to stay the district court order pending an expedited final decision by that court.
On September 16, , the D. Circuit granted the stay, but denied the Administration's request for an expedited schedule. At that time, the th House of Representatives will cease to exist as a legal entity, and the subpoenas it has issued will expire. In addition, Ms. Miers would be permitted to testify, under oath, in a closed, but transcribed, hearing.
Circuit dismissed Miers on October 14, , pursuant to a motion for voluntary dismissal. Ultimately, however, the committee was able to gain access to much of the information it had been seeking. The reasoning adopted by the court may have significant influence in that it so clearly repudiated the executive's claim of absolute immunity for presidential advisers, while reaffirming Congress's essential role in conducting oversight and enforcing its own subpoenas.
However, the impact of the ruling may also be limited by the fact that, as a district court decision, it carries only the precedential weight that its reasoning may bear. Moreover, the case did not provide any discussion of the merits of Miers's specific claims of executive privilege, but rather held that although not enjoying absolute immunity from congressionally compelled testimony, Ms. Miers was still free to assert executive privilege "in response to any specific questions posed by the Committee.
Department of Defense In Loving v. Department of Defense, the D. Circuit reaffirmed the distinction between the deliberative process privilege and the presidential communications privilege that had been carefully explained in Espy and Judicial Watch. After noting the two distinct versions of executive privilege, the appeals court determined that the documents in question were indeed protected from disclosure as they fell "squarely within the presidential communications privilege because they 'directly involve' the President.
The mere fact that the documents were viewed by the President was sufficient to bring them within the privilege. Committee on Oversight and Government Reform v. Holder Committee on Oversight and Government Reform v.
Holder, which is currently pending before the D. But he has said and written plenty on the subject. But a few years later after working in a Republican White House, you totally reversed your position and argued that presidents should be above the law and granted a free pass from criminal investigation while in office. Dick Durbin at the Sept. If you are in that seat, sir, because the White House has big expectations that you will protect the president from the due process of law, that should give every senator pause.
Sheldon Whitehouse at the Sept. Mazie Hirono at the Sept. Kavanaugh was a lead author of the Starr Report. Bush from to , and then as staff secretary to Bush. Georgetown Law School conference, February Politico dug up a video of a panel discussion about the Independent Counsel Act at a Georgetown Law School conference in February Georgetown Law Review, Any investigation that might conceivably result in the removal of the President cannot be separated from the dramatic and drastic consequences that would ensue.
This threat inevitably causes the President to treat the special counsel as a dangerous adversary instead of as a federal prosecutor seeking to root out criminality. In , Kavanaugh published another lengthy opinion on the issue in an article in the Minnesota Law Review in which he again described the issue as debatable, though in a footnote , he used different words.
In his Minnesota Law Review piece, Kavanaugh reiterated that a sitting president should not be indicted, and he argued that Congress ought to make that clear in law. But I believe that the President should be excused from some of the burdens of ordinary citizenship while serving in office.
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Since then, presidents have withheld information from Congress when its disclosure would harm national security or impede sensitive negotiations as well as for the purpose of ensuring they receive effective counsel from their advisers.
As former President Dwight D. Eisenhower said in There is no business that could be run if there would be exposed every single thought that an adviser might have, because in the process of reaching an agreed position, there are many, many conflicting opinions to be brought together. And if any commander is going to get the free, unprejudiced opinions of his subordinates, he had better protect what they have to say to him on a confidential basis.
However, the executive privilege is not absolute, and it is important to be clear about what the executive privilege does not protect. The executive privilege does not protect the president when he is acting in his personal capacity. The executive privilege does not protect information related to presidential decisions once they have been made. The executive privilege does not protect communications related to the current or future commission of a crime.
To the extent that the communications relate to a potential violation of law, they would not be protected from disclosure under the privilege. The executive privilege does not protect communications that are never received by the president or his office. The executive privilege cannot provide absolute immunity to congressional subpoenas. Courts have found that Article I of the U. As that happens, impeachment watchers should scrutinize claims of executive privilege because, while the executive privilege has an important place in the separation of powers, history and the judicial record show that it is far from absolute.
Here are five recent examples and their outcomes. In the case United States v. Nixon, he asserted his right to withhold information in response to a demand by special prosecutor Leon Jaworski that he surrender tape recordings made in the Oval Office. Ronald Reagan Reagan invoked executive privilege on three occasions, most notably in during the confirmation process for Associate Justice William Rehnquist, his nominee for chief justice of the Supreme Court.
Reagan used the privilege to prevent the release of memos Rehnquist wrote when he was an adviser to former Attorney General John Mitchell. Within a week, the White House reached an agreement with the Senate Judiciary Committee to turn over the documents, largely brokered by former Sen. Paul Laxalt R-Nev. Rehnquist went on to be confirmed Clinton sought to invoke executive privilege to bar independent counsel Kenneth Starr from questioning aides, including deputy counsel Bruce R.
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