Some Basic Information About Executive Privilege

News media reports and experts have been discussing executive privilege lately in connection with the investigation of Russian election interference and obstruction of justice. I thought it would be useful to discuss the landscape.

Executive privilege is a principle that protects communications between the President of the United States and senior officials in the executive branch from disclosure to Congress, the courts, investigators, and the public. Our Constitution does not specifically create or mention such a privilege, though it may imply such a principle through the basic separation of our three branches of government. A seminal case is U.S. v. Nixon, 418 U.S. 683 (1974), which concerned a special prosecutor’s effort to obtain audiotape recordings of Nixon and aides surrounding the Watergate burglary investigation. The Supreme Court considered, under the umbrella term ‘executive privilege,’ two different types of privilege. The deliberative process privilege, a common law principle that protects the internal processes and deliberations of the executive branch, and the Presidential communications privilege, arguably the stronger or more protective element of ‘executive privilege,’ which protects communications from the President in performing his or her responsibilities or shaping policies and making policy decisions. The latter is generally reserved for communications with a President’s most senior advisers. The Supreme Court held it had the authority to review claims of executive privilege and significantly limited the scope of the privilege. The opinion led to the disclosure of the Nixon White House tapes central to the Watergate investigation.

In the Independent Counsel investigation during the Clinton presidency, the U.S. Court of Appeals for the D.C. Circuit weighed in regarding executive privilege related to the investigation of Agriculture Secretary Mike Espy. The White House withheld some documents related to a White House Counsel investigation of Espy in response to the Independent Counsel’s requests. In In Re Sealed Case, 121 F.3d 729 (D.C. Cir. 1997), the Court of Appeals further limited the deliberative process privilege in cases with a reason to believe government misconduct occurred. Though the Court confirmed the stronger nature of the Presidential communications privilege, it held the privilege applies to a President’s direct decision-making, and therefore could protect communications with certain high-ranking White House staff, but that the privilege would not protect communications with staff at executive agencies. Also, on the issue of whether the White House had waived executive privilege, the Court took a relatively narrow view and largely refused to imply a waiver. However, documents and information that the White House shared with third-parties were deemed to waive executive privilege.

Subsequent assertions of executive privilege have met with little success. Bush 43’s attempt to shield communications with White House Counsel Harriet Miers and White House Chief of Staff Joshua Bolten regarding the termination of a group of several United States Attorneys yielded a district court opinion that largely rejected the assertion of executive privilege. U.S. House of Representatives v. Miers, 558 F. Supp.2d 53 (D.D.C. 2008). Due to timing and based on a compromise that resolved the dispute, the federal courts of appeal did not consider this dispute. After the Obama administration asserted executive privilege in connection with a Congressional investigation of “Operation Fast and Furious,” the ATF plan to identify and arrest criminals by engineering weapons sales into Mexico, a federal district court largely rejected the administration’s assertion of the deliberative process privilege over the Justice Department’s response to Congressional and media inquiries about Operation Fast and Furious.

With this historical and legal backdrop, executive privilege will probably not serve to meaningfully aid the Trump administration’s effort to limit disclosures related to the current special counsel investigation. First and foremost, courts will not likely support the assertion of executive privilege where special counsel is actively investigating potential misconduct. Second, the fact that the President has repeatedly made public statements regarding the investigation, orally and through social media, may constitute a waiver of executive privilege to some degree, though non-identical documents that have not been released may still be protected, to the extent executive privilege were upheld.

To be clear, the administration has not invoked executive privilege, but a number of officials have refused to answer questions from Congress during hearings about alleged Russian manipulation of U.S. elections and alleged obstruction of justice. If Congress has strong interest in obtaining documents and answers to its questions, voluntary testimony will evolve into enforceable subpoenas, and continued refusals could provoke litigation to require disclosures, if Congress is so inclined.

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