Executive Privileges

Jun 20 '12

As I start this post, news is breaking that President Obama has formally invoked executive privilege in his administration’s running battle with the House Oversight and Government Reform Committee over the latter’s investigation of – and demands for documents from – the Justice Department’s “Fast and Furious” southwest border gun-tracking (or rather not) operation.

Combined with the President’s immigration announcement last week — regarding his plan to cease deportation of (and issue work permits to) young immigrants brought into the country by their parents — this has set off accusations of executive fiat, dictatorship, and the like, augmented today by dark hints of cover-up. For the moment I would note only that neither action is particularly out of line with recent presidential history, and give a quick background on the doctrine of “executive privilege” (from the perspective of presidential power and interbranch relations, rather than from the purified air of legal doctrine.)

First point: there is no such thing, in the Constitution at least. So to say it is “formally invoked,” as I did above, is not quite right. However, in the famous Nixon tapes case, U.S. v Nixon, the Court did hold that such a privilege was constitutionally grounded. The president lost the battle, but the presidency might have won the war.

Presidents have long asserted their authority to keep their internal deliberations shielded from Congress. The Washington administration concluded it had the right to withhold information from Congress concerning military operations and diplomatic negotiations.  More generally, over time presidents had claimed the right to determine what, in James Polk’s phrase, was “compatible with the public interest to communicate.”

But in the 20th century, as the number of presidential staffers increased, so did the desire of presidents to keep their counsel confidential.  “It is essential to efficient and effective administration that employees of the Executive Branch be completely candid in advising each other on official matters,” Eisenhower argued in 1954; thus he deemed it “not in the public interest that any of their conversations or communications, or any documents or reproductions, concerning such advice be disclosed.” His Attorney General, William P. Rogers, came up with the phrase “executive privilege” to justify the refusal of the administration to pass along information to Congress.

As Richard Nixon would put it, “it is absolutely essential, if the President is to be able to do his job as the country expects, that he be able to talk openly and candidly with his advisers about issues and individuals…. This kind of frank discussion is only possible when those who take part in it can feel assured that what they say is in the strictest confidence.”  And in fact some aspects of executive privilege had been generally accepted by Congress, with conflicts resolved case by case.

However, Nixon pushed the envelope much farther.  In March 1973, he claimed that the privilege could be claimed on behalf of former as well as current staff; in May he applied it not just to information requested by Congress but to that subpoenaed by grand juries.  He also extended it to “all documents, produced or received by the President or any member of the White House staff in connection with his official duties.”  In Senate testimony in April 1973, Attorney General Richard Kleindienst argued that the president could direct any member of the executive branch to refuse information in response to Congressional request.  Senator Ed Muskie couldn’t quite believe it: “the Congress, in your view, has no power to command the production of testimony or information by anyone in the executive branch under any circumstances?”  None, said Kleindienst, if the president says so.  Every employee? Muskie asked.  Right, said Kleindienst: “your power to get what the President knows is in the President’s hands.”

U.S v Nixon, forcing Nixon to turn over his Oval Office tapes to the special prosecutor (and thus dooming his tenure, given what was on those tapes), held that executive privilege was not absolute. But those limits were far clearer in defense of the judiciary’s right to get information in a criminal proceeding, and pretty vague as far as legislators’ abilities to get documents went.

After Nixon, “executive privilege” had a near-criminal connotation – Ford never even issued guidelines on the topic, as his predecessors had generally done, and tried to avoid even mentioning the term.  In general, Ford felt he had little choice but to provide Congress with virtually all it requested, even on the very sensitive topic of FBI and CIA abuses. Nor did things change much under Jimmy Carter. One 1977 memo expressed the  “hope to find a sound legal basis to answer [a] subpoena without using the term ‘executive privilege’” – but as proponents of the “open” presidency, Ford and Carter had little leeway to withhold secrets, by whatever name for secrecy their lawyers devised.

However, as with other aspects of the administrative presidency, starting in the 1980s, “executive privilege” received new life — if not immediately in name then in deed.  Reagan AG William French Smith wrote that “the interest of Congress in obtaining information for oversight purposes is, I believe, considerably weaker than its interest when specific legislative proposals are in question…. [T]he congressional oversight interest will support a demand for pre-decisional, deliberative documents…only in the most unusual circumstances.”

In the end, Reagan did not hold fast to the doctrine in this conflict or several others; during the Iran-contra investigation, he even consented to turning over portions of his personal diary.  Ironically, George H.W. Bush ultimately was more successful than Reagan at keeping information from Congress.  Mark Rozell, whose book-length treatment of the topic is indispensible, concludes that “Bush’s strategy was to further the cause of withholding information by not invoking executive privilege” and thus not calling attention to the doctrine.  This approach was similar to Ford’s, and Carter’s – but different in that Bush contended that executive privilege by any other name did, indeed, smell as sweet.  Under the rubric of “deliberative process privilege,” “attorney work product” and “attorney-client privilege,” “internal departmental deliberations,”“secret opinions policy,” “deliberations of another agency,” and the like, the Bush administration was frequently able to win the point while not engaging the larger argument.

It was Bill Clinton who brought the term itself back to life, prompted by his battles with Independent Counsel Ken Starr and Congress.  Clinton took a broad view of the doctrine; the administration renewed the Reagan-era distinction between oversight and legislation, arguing that Congress’s rights to access information concerning the former were weak. The doctrine was accordingly used aggressively – it was officially asserted fourteen times, in the end, compared to once by George H.W. Bush and three times by Ronald Reagan – to the point that journalists began drawing parallels to the 1970s. For example, refusing a Congressional request for documents concerning the administration’s policies in Haiti, Attorney General Janet Reno made the startling claim that Congress had no power to conduct oversight of foreign affairs, due in part to the “sole organ” doctrine of the 1936 Curtiss-Wright case.  The investigating committee backed down.

Further, in a case dealing with Agriculture Secretary Mike Espy ( In re Sealed Case, 121 F. 3d 729 (D.C. Cir. 1998)), the presidency achieved some broadening of judicial doctrine regarding executive privilege even as President Clinton suffered a tactical defeat.  The court’s careful opinion divided executive privilege into “deliberative process privilege” and “presidential communications privilege.”  The former, while valid, could be “overcome by a sufficient showing of need,” and denied “where there is reason to believe the documents sought may shed light on government misconduct.”  But the latter, following U.S. v. Nixon, was grounded in the separation of powers – thus “congressional or judicial negation of the presidential communications privilege is subject to greater scrutiny than denial of the deliberative privilege” – and when invoked, “the documents become presumptively privileged.”

And while George W. Bush rarely made formal claims of privilege — preferring the pragmatic practice of utilizing its substance while avoiding its nomenclature — one exception came in response to a subpoena seeking information on FBI investigations of Boston mobsters; releasing such documents would, Bush wrote to the Attorney General, “inhibit the candor necessary” for executive deliberation. Indeed, “Congressional pressure on executive branch prosecutorial decisionmaking,” he continued, “is inconsistent with separation of powers and threatens individual liberty.”

This is effectively what Obama claimed today. In a letter sent to Rep. Darrell Issa, the Justice Department said the documents on which AG Eric Holder would not budge describe “executive branch deliberative communications.” These have a long history of protection and do not necessarily imply, as Issa and John Boehner argued today, that the White House proper is involved in the deliberation.

It seems unlikely that Congress will be able to extract these documents by legal means – but then, executive privilege is more political than legal. Normally, these disputes are worked out via some sort of bargaining process – the House could hold up appropriations, for instance, to trade for information. But given that the legislative process is not moving anyway, these are not normal times. In this sort of policy vacuum, the president is likely to win – the battle, at least, if not the war.