Executive Privilege: A Primer
In view of the current conflict between Congress and the President, it might be useful to outline existing law on executive privilege, and thus to provide a kind of primer (a tentative, preliminary, and incomplete one to be sure). The following does not focus on or attempt to resolve the current controversy.
Nor does it trace the practices of Congress and the executive branch over time. One of the largest lessons is that much of the law remains unsettled. The Supreme Court has not said a great deal; the court of appeals for the District of Columbia Circuit has said more; but it is not at all clear that a majority of the Supreme Court would agree with what the lower court has said. Here is (the bulk of) the law as it now stands.
1. The President has a generalized privilege against disclosure of his own discussions with his close advisers. US v. Nixon (1974).
2. This privilege is not absolute. The “generalized interest in confidentiality” can be overcome by the need for evidence that “is demonstrably relevant” to a criminal trial, if that evidence is “specific and central to the fair adjudication in a particular criminal case.” Id.
3. The privilege might be absolute if the case involved “a claim of need to protect military, diplomatic, or sensitive national security secrets.” Id. (Note: points 2 and 3 apply in either a grand jury proceeding or a criminal trial.)
4. The privilege apparently applies to the Vice President no less than to the President, at least where the communications of the Vice President are intended to culminate in advice to the President. See Cheney v. USDC (2004).
5. In a civil case, it will be harder to overcome the privilege, because civil cases do “not share the urgency or significance of the criminal subpoena.” Id. A generalized request for information, in a civil case, will not overcome the privilege. Id.
6. How does executive privilege apply to conflicts between Congress and the President? The Supreme Court has not said. The key rulings come from the DC Circuit, and the Supreme Court might not agree with that court. See points 12 and 13 below.
7. To whom does executive privilege apply? The Supreme Court has not clearly said. On one view, the privilege applies only to communications involving the President. On another view, the privilege applies to everyone within the executive branch. The DC Circuit has ruled that the privilege applies to presidential advisers in the course of preparing advice for the President. In Re Sealed Case (1997). This includes a) communications authored by such advisers and b) communications which these advisers solicited and received from others.
8. But 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.” This means that the privilege does NOT extend “to staff outside the White House in executive branch agencies.” Id. The privilege is limited to “communications authored or solicited and received by members of an immediate White House adviser’s staff who have broad and significant responsibility for investigating and formulating the advice to be given to the President on the particular matter to which the communications relate.” Id. See also Judicial Watch (2004), underlining the lesson and saying that the privilege does not extend to “internal Justice Department documents that never make their way to the Office of the President,” even if those “documents were created for the sole purpose of advising the President.” (It is not at all clear the Supreme Court would agree with this view.)
9. Direct decisionmaking by the President is required. If the President himself is not directly involved, there is no privilege. See In Re Sealed Case. (Cf. Cheney v. USDC, extending the privilege to the Vice President, at least in the context of communications designed to culminate in advice to the President.) Thus the court of appeals has said that the Attorney General and the Deputy Attorney General cannot “be equated with the close presidential advisers” protected by the privilege. See Judicial Watch.
10. The appointment and removal power are quintessential and nondelegable, and hence communications related to the exercise of that power are privileged. In Re Sealed Case.
11. The court of appeals said that propositions 7-10 might NOT bear on the scope of the privilege in the congressional-executive context, because the “President’s ability to withhold information from Congress implicates different constitutional considerations.” Id.
12. According to the court of appeals in 1974, Congress’ ability to obtain information from the President should be analyzed under the US v. Nixon framework. See Senate Select Committee v. Nixon (1974). This means that a generalized request from Congress, unaccompanied by “particularized showings” of need, will run into trouble. Id.
13. It is not enough for a Senate committee to overcome the privilege by saying that it needs materials “in order to resolve particular conflicts in the voluminous testimony it has heard, conflicts relating to ‘the extent of malfeasance in the executive branch,’ and, most importantly, the possible involvement of the President himself.” Id. At least this is so when another committee had the relevant materials, id., and when thse materials could not be shown to be “critical to the performance of . . . legislative functions.” Id. But this is a very narrow ruling in light of presidential release of many materials and the “subsequent and on-going investigation of the House Judiciary Committee” with respect to impeachment.
14. The executive branch has a generalized “deliberative process privilege,” rooted in the common law. See In Re Sealed Case (1997). This privilege applies throughout the executive branch. Compare 7-10, above.
15. The deliberative process privilege is highly qualified and it depends on a balancing test; it is far weaker than the presidential communications privilege. When “there is reason to believe that the documents may shed light on government misconduct, ‘the privilege is routinely denied.’” Id.
16. It is possible that conflicts between Congress and the President in this domain would be taken to present a political question – but unlikely, because this view has attracted close to no support on any federal court.
17. What, in particular, does US v. Nixon mean by a demonstrated, specific need, sufficient to overcome the privilege? The court of appeals has said that a party seeking to overcome the privilege must demonstrate 1) “that each discrete group of the subpoenaed material likely contains important evidence” and 2) “that this evidence is not available with due diligence elsewhere.” In Re Sealed Case.
18. Questions without clear answers therefore include a) how far down the line the privilege extends, b) the relationship of US v. Nixon to conflicts between Congress and the President, c) whether the latter conflicts might present a political question, d) the nature, basis, and scope of the deliberative process privilege, and e) the precise showing that must be made to overcome the privilege. With respect to e), a generalized interest in possible wrongdoing is far less likely to overcome the privilege than a specific need to answer the question whether specifically described wrongdoing has occurred.