Executive Privilege: History, Law, Practice and Recent Developments

Summary

Presidential claims of a right to preserve the confidentiality of information and documents in the face of legislative demands have figured prominently, though intermittently, in executive-congressional relations since at least 1792. Few such interbranch disputes over access to information have reached the courts for substantive resolution, the vast majority achieving resolution through political negotiation and accommodation.

In fact, it was not until the Watergate-related lawsuits in the 1970s seeking access to President Nixon's tapes that the existence of a presidential confidentiality privilege was judicially established as a necessary derivative of the President's status in our constitutional scheme of separated powers. Of the nine court decisions involving interbranch or private information access disputes, four have involved Congress and the Executive. Two of these resulted in decisions on the merits.

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.

However, until the District of Columbia Circuit's 1997 ruling in In re Sealed Case (Espy), and 2004 decision in Judicial Watch v. Department of Justice, these judicial decisions had left important gaps in the law of presidential privilege. Among the more significant issues left open included 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; whether the privilege encompasses all communications with respect to which the President may be interested or is it confined to presidential decisionmaking and, if so, is it limited to any particular type of presidential decisionmaking; and precisely what kind of demonstration of need must be shown to justify the release of materials that qualify for the privilege.

The unanimous panel in Espy, and the subsequent reaffirmation of the principles articulated in Espy by Judicial Watch, authoritatively addressed each of these issues in a manner that may have drastically altered the future legal playing field in resolving such disputes. A more recent dispute with Congress involving the removal and replacement of nine United States Attorneys has drawn formal claims of privilege by President George W. Bush.

Those privilege claims have been challenged in a civil suit brought by the House Judiciary Committee seeking declaratory and injunctive relief with respect to refusals to appear, to testify, and to provide documents by two subpoenaed present and former officials. A recent district court ruling upholding the committee's challenge may serve to further amplify the law in this area.

Source: Morton Rosenberg, https://sgp.fas.org/crs/secrecy/RL30319.pdf
This work is in the Public Domain.

Introduction

Presidential claims of a right to preserve the confidentiality of information and documents in the face of legislative demands have figured prominently, though intermittently, in executive-congressional relations since at least 1792, when President Washington discussed with his cabinet how to respond to a congressional inquiry into the military debacle that befell General St. Clair's expedition. Few such interbranch disputes over access to information have reached the courts for substantive resolution, the vast majority achieving resolution through political negotiation and accommodation.

In fact, it was not until the Watergate-related lawsuits in the 1970s seeking access to President Nixon's tapes that the existence of a presidential confidentiality privilege was judicially established as a necessary derivative of the President's status in the U.S. constitutional scheme of separated powers. Of the nine court decisions involving interbranch or private information access disputes, four have involved Congress and the Executive. Two of these resulted in decisions on the merits.

One other case involving legislation granting custody of President Nixon's presidential records to the Administrator of the General Services Administration also determined several pertinent executive privilege issues. The most recent appellate court ruling, involving a private group's right of access under the Freedom of Information Act to pardon documents in the custody of the Justice Department, centered on a presidential claim of privilege which was rejected and further clarified the law in this area.

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.

However, until the District of Columbia Circuit's 1997 ruling in In re Sealed Case (Espy) and its 2004 decision in Judicial Watch v. Department of Justice, these judicial decisions had left important gaps in the law of presidential privilege, which have increasingly become focal points, if not the source, of interbranch confrontations that have made their resolution more difficult. Among the more significant issues left open included 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; whether the privilege encompasses all communications with respect to which the President may be interested or is it confined to presidential decisionmaking and, if so, is it limited to any particular type of presidential decisionmaking; and precisely what kind of demonstration of need must be shown to justify the release of materials that qualify for the privilege. The unanimous panel in Espy, and the subsequent reaffirmation of the principles articulated in Espy by Judicial Watch, authoritatively addressed each of these issues in a manner that may have drastically altered the future legal playing field in resolving such disputes.

A more recent dispute with Congress involving the removal and replacement of nine United States Attorneys has drawn formal claims of privilege by President George W. Bush. Those privilege claims have been successfully challenged in a civil suit brought by the House Judiciary Committee seeking declaratory and injunctive relief with respect to refusals by present and former senior presidential aides to appear, to testify, and to provide documents by two subpoenaed present and former officials. The district court's opinion may serve to further amplify the law in this area. It is useful, however, before proceeding with a description and explication of Espy and Judicial Watch and the recent civil enforcement ruling to review and understand the prior case law and how it has affected the positions of the disputants.

The Watergate Cases

In interbranch information disputes since the early 1980s, executive statements and positions taken in justification of assertions of executive privilege have frequently rested upon explanations of executive privilege made by the courts. To better understand the executive's stance in this area and the potential impact on those positions by the Espy and Judicial Watch rulings, CRS will chronologically examine the development of the judiciary's approach and describe how the executive has adapted the judicial explanations of the privilege to support its arguments.

In Nixon v. Sirica, the first of the Watergate cases, a panel of the District of Columbia Circuit rejected President Nixon's claim that he was absolutely immune from all compulsory processes whenever he asserted a formal claim of executive privilege, holding that while presidential conversations are "presumptively privileged," 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, the show was deemed to have been made by the Special Prosecutor that the tapes subpoenaed by the grand jury contained evidence necessary to carry out the vital function of determining whether probable cause existed that those indicted had committed crimes.

The D.C. 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. Nixon. The appeals court initially determined that "[t]he staged decisional structure established in Nixon v. Sirica" was applicable "with at least equal force here." Thus in order to overcome the presumptive privilege and require the submission of materials for court review, a strong showing of need had to be established. 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."

The court held that, in view of the initiation of impeachment proceedings by the House Judiciary Committee, the overlap of the investigative objectives of both committees and the fact that the impeachment committee already had the tapes sought by the Senate Committee, "the Select Committee's immediate oversight need for the subpoenaed tapes is, from a congressional perspective, merely cumulative." Nor did the court feel that the Committee had shown that the subpoenaed materials were "critical to the performance of [its] legislative functions."

The court could discern "no specific legislative decisions that cannot responsibly be made without access to materials uniquely contained in the tapes or without resolution of the ambiguities that the [presidentially released] transcripts may contain." The court concluded that the subsequently initiated and nearly completed work of the House Judiciary Committee had, in effect, preempted the Senate Committee: "More importantly,.., there is no indication that the findings of the House Committee on the Judiciary and, eventually the House of Representatives itself, are so likely to be inconclusive or long in coming that the Select Committee needs immediate access of its own."

The D.C. Circuit's view in the 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 the Congress' interest in executive information is less compelling when a committee's function is oversight than when it is considering specific legislative proposals. This approach, however, arguably misreads the carefully circumscribed holding of the court and would seem to construe too narrowly the scope of Congress's investigatory powers.

The Senate Select Committee court's opinion took great pains to underline the unique and limited 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."

These included the commencement of impeachment proceedings by the House Judiciary Committee, a committee with an "express constitutional source," whose "investigative objectives substantially overlap" those of the Senate Committee; that the House Committee was presently in possession of the very tapes sought by the Select Committee, making the Senate Committee's need for the tapes "from a congressional perspective, merely cumulative;" the lack of evidence indicating that Congress itself attached any particular value to "having the presidential conversations scrutinized by two committees simultaneously;" that the necessity for the tapes to make "legislative judgments has been substantially undermined by subsequent events," including the public release of transcripts of the tapes by the President; the transfer of four of five of the original tapes to the district court; and the lack of any "indication that the findings of the House Committee on the Judiciary and, eventually, the House of Representatives itself, are so likely to be inconclusive or long in coming that the Select Committee needs immediate access of its own."

The appeals court concluded by reiterating the uniqueness of the case's facts and temporal circumstances: "We conclude that the need demonstrated by the Select Committee in the peculiar circumstances of this case, including the subsequent and on-going investigation of the House Judiciary Committee, is too attenuated and too tangential to its functions to permit a judicial judgment that the President is required to comply with the Committee's subpoena."

The Executive's position arguably ignores the roots of Congress' broad investigatory powers that reach back to the establishment of the Constitution and which have been continually reaffirmed by the Supreme Court. As George Mason recognized at the Constitutional Convention, Congress "are not only Legislators but they possess inquisitorial power. They must meet frequently to inspect the Conduct of the public offices." Woodrow Wilson remarked:

The Supreme Court has cited Wilson favorably on this point. Moreover, the Court has failed to make any distinction between Congress' right to executive branch information in pursuit of its oversight function and in support of its responsibility to enact, amend, and repeal laws. In fact, the Court has recognized that Congress' investigatory power "comprehends probes into departments of the Federal Government to expose corruption, inefficiency or waste."

Thus, to read Senate Select Committee as downplaying the status of oversight arguably ignores the court's very specific reasons for not enforcing the committee's subpoena under the unique circumstance of that case and creates a distinction between oversight and legislating that has yet to be embraced by the courts. 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.

Two months after the ruling in Senate Select Committee, the Supreme Court issued its unanimous ruling in United States v. Nixon, which involved a judicial trial subpoena to the President at the request of the Watergate Special Prosecutor for tape recordings and documents relating to the President's conversations with close aides and advisors. 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.

But although it considered a president's communications with his close advisors to be "presumptively privileged," the Court rejected the President's contention that the privilege was absolute, precluding judicial review whenever it is asserted. Also, while acknowledging the need for confidentiality of high-level communications in the exercise of Article II powers, the Court stated that when the privilege depends solely on the broad, undifferentiated claim of public interest in the confidentiality of such communications," a confrontation with other values arises." It held that "absent a need to protect military, diplomatic, or sensitive national security secrets, we find it difficult to accept the argument that even the very important interest in the confidentiality of presidential communications is significantly diminished by the production of" materials that are essential to the enforcement of criminal statutes.

Having concluded that the claim of privilege was qualified, the Court resolved the "competing interests" – the President's need for confidentiality vs. the judiciary's need for materials in a criminal proceeding – "in a manner that preserves the essential functions of each branch," holding 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 Court was careful, however, to limit the scope of its decision, noting that "we are not here concerned with the balance between the President's generalized interest in confidentiality ... and congressional demands for information."

In the last of the Nixon cases, Nixon v. Administrator of General Services, the Supreme Court again balanced competing interests in President Nixon's White House records. The Presidential Recordings and Materials Preservation Act 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, which would be returned to Mr. Nixon, but preserve the rest for historical and governmental objectives. The Court rejected Mr. Nixon's challenge to the act, which included an argument based on the "presidential privilege of confidentiality."

Although Nixon II did not involve an executive response to a congressional probe, several points emerge from the Court's discussion that bears upon Congress' interest in confidential executive branch information. First, the Court reiterated that the executive privilege it had announced in Nixon I was not absolute but qualified. Second, the Court stressed the narrow scope of that privilege. "In [Nixon I], the Court held that the privilege is limited to communications "in performance of [a President's] responsibilities ... of his office' ... and made in the process of shaping policies and making decisions."' Third, the Court found that there was a "substantial public interest[]" in preserving these materials so that Congress, pursuant to its "broad investigative power," could examine them to understand the events that led to President Nixon's resignation "in order to gauge the necessity for remedial legislation."

Post-Watergate Cases

Two post-Watergate cases, both involving congressional demands for access to executive information, demonstrate both the judicial reluctance to involve itself in the essentially political confrontations such disputes represent and also the willingness to intervene where the political process appears to be failing.

In United States v. AT&T, the D.C. 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. In that case, the Justice Department had sought to enjoin AT&T's compliance with a subpoena issued by a House subcommittee. The subcommittee was seeking FBI letters requesting AT&T's assistance with warrantless wiretaps on U.S. citizens allegedly made for national security purposes. 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 of Representatives, as intervenor, argued that its rights to the information flowed from its constitutionally implied power to investigate whether there had been abuses of the wiretapping power. 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." With regard to the executive's claim, the court noted that there was no absolute claim of executive privilege against Congress, even in the area of national security:

Likewise, the court rejected the congressional claim that the Speech or Debate Clause was "intended to immunize congressional investigatory actions from judicial review. Congress' investigatory power is not, itself, absolute."

According to the court, judicial intervention in executive privilege disputes between the political branches is improper unless there has been a good faith but unsuccessful effort at compromise. There is in the Constitution; the court held, a duty that the executive and Congress attempt to accommodate the needs of each other:

The court refused to resolve the dispute because the executive and Congress had not yet made that constitutionally mandated effort at accommodation. 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]." The court suggested, however, that it would resolve the dispute if the political branches failed to reach an accommodation. The court-encouraged negotiations ultimately led to a compromise. Subcommittee staff was allowed to review some unedited memoranda describing the warrantless wiretaps and report orally to subcommittee members. The Justice Department retained custody of the documents.

The federal district court in the District of Columbia displayed the same reluctance to intervene in an executive privilege dispute with Congress in United States v. House of Representatives. There the court dismissed a suit brought by the Justice Department seeking a declaratory judgment that the Administrator of the Environmental Protection Agency (EPA) "acted lawfully in refusing to release certain documents to a congressional subcommittee" at the direction of the President. The Administrator based her refusal upon President Reagan's invocation of executive privilege against a House committee probing the EPA's enforcement of hazardous waste laws. 

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 ... should be delayed until all possibilities for settlement have been exhausted." "Compromise and cooperation, rather than confrontation, should be the aim of the parties." As the Court of Appeals had done in United States v. AT&T, the district court in United States v. House of Representatives encouraged the political branches to settle their dispute rather than invite judicial intervention.

Only if the parties could not agree would the court intervene and resolve the interbranch dispute, and even then, the courts advised, "Judicial resolution of this constitutional claim...will never become necessary unless Administrator Gorsuch becomes a defendant in either a criminal contempt proceeding or other legal action taken by Congress." Ultimately the branches did reach an agreement, and the court did not need to balance executive and congressional interests.

Executive Branch Positions on the Scope of Executive Privilege: Reagan Through George W. Bush

Not surprisingly, the executive branch has developed an expansive view of executive privilege in congressional investigations, taking maximum advantage of the vague and essentially undefined terrain within the judicially recognized contours of the privilege.

Thus, executive branch statements have identified four areas that are asserted to be presumptively covered by executive privilege: foreign relations and military affairs, two separate topics that are sometimes lumped together as "state secrets," law enforcement investigations, and confidential information that reveals the executive's "deliberative process" with respect to policymaking.

Typically, the executive has asserted executive privilege based upon a combination of the deliberative process exemption and one or more of the other categories. As a consequence, much of the controversy surrounding the invocation of executive privilege has centered on the scope of the deliberative process exemption. The executive has argued that at its core, this category protects confidential predecisional deliberative material. Justifications for this exemption often draw upon the language in United States v. Nixon that identifies a constitutional value in the President receiving candid advice from his subordinates and awareness that any expectation of subsequent disclosure might temper needed candor. The result has been a presumption by the executive that its pre-decisional deliberations are beyond the scope of congressional demand. "Congress will have a legitimate need to know the preliminary positions taken by Executive Branch officials during internal deliberations only in the rarest of circumstances."

According to this view, the need for the executive to prevent disclosure of its deliberations is at its apex when Congress attempts to discover information about ongoing policymaking within the executive branch. In that case, the executive has argued, the deliberative process exemption serves as an important boundary marking the separation of powers. When congressional oversight "is used as a means of participating directly in an ongoing process of decisionmaking within the Executive Branch, it oversteps the bounds of the proper legislative function."

The executive has also argued that because candor is the principal value served by the exemption, its protection should extend beyond pre-decisional deliberations to deliberations involving decisions already made. "Moreover, even if the decision at issue had already been made, disclosure to Congress could still deter the candor of future Executive Branch deliberations." Executives have also taken the position that the privilege covers confidential communications with respect to policymaking well beyond the confines of the White House and the President's closest advisors. The Eisenhower Administration took the most expansive approach, arguing that the privilege applied broadly to advice on official matters among employees of the executive branch. The Nixon Administration appears to have taken a similar view, arguing that the privilege applied to decision-making at a "high governmental level" but conceding that the protected communication must be related to presidential decision-making. The Reagan Justice Department appears to have taken a slightly narrower view of the scope of the privilege, requiring that the protected communications have some nexus to the presidential decision-making process.

The George H. W. Bush Administration took the position that recommendations made to senior department officials and communications of senior policymakers throughout the executive branch were protected by executive privilege without regard to whether they involved communications intended to go to the President. Finally, the Clinton Administration took a similarly expansive position that all communications within the White House or between the White House and any federal department or agency are presumptively privileged.

The George W. Bush Administration, through presidential signing statements, executive orders, and opinions of the Department of Justice's Office of Legal Counsel (OLC), has articulated a legal view of the breadth and reach of presidential constitutional prerogatives that, if applied to information and documents often sought by congressional committees, would stymie such inquiries. In OLC's view, under the precepts of executive privilege and the unitary executive, Congress may not bypass the procedures the President establishes to authorize disclosure to Congress of classified, privileged, or even non-privileged information by vesting lower-level officers or employees with a right to disclose such information without presidential authorization. Thus, OLC has declared that "right of disclosure" statutes "unconstitutionally limit the ability of the President and his appointees to supervise and control the work of subordinate officers and employees of the Executive Branch." The OLC assertions of these broad notions of presidential prerogatives are unaccompanied by any authoritative judicial citations.

The executive has acknowledged some limits to its use of executive privilege. Thus, presidents have stated they will not use executive privilege to block congressional inquiries into allegations of fraud, corruption, or other illegal or unethical conduct in the executive branch. The Clinton Administration announced that "[i]n circumstances involving communications relating to investigations of personal wrongdoing by government officials, it is our practice not to assert executive privilege, either in judicial proceedings or in congressional investigations and hearings." Similarly, the Reagan Administration policy was to refuse to invoke executive privilege when faced with allegations of illegal or unethical conduct: "[T]he privilege should not be invoked to conceal evidence of wrongdoing or criminality on the part of executive officers." A significant application of this policy came in the Iran/Contra investigations when President Reagan did not assert executive privilege and even made "relevant excerpts" of his personal diaries available to congressional investigators.

The executive has often tied its willingness to forego assertion of privilege claims to the recognized exceptions to the deliberative process exemption, stating that it would not seek to protect materials whose disclosure "would not implicate or hinder" the executive decision-making processes. Thus, "factual, nonsensitive materials – communications from the Attorney General [or another executive branch official] which do not contain advice, recommendations, tentative legal judgments, drafts of documents, or other material reflecting deliberative or policymaking processes – do not fall within the scope of materials for which executive privilege may be claimed as a basis of nondisclosure."

Recent administrations have stated that their policy "is to comply with congressional requests for information to the fullest extent consistent with the constitutional and statutory obligations of the Executive Branch." Executive privilege will be invoked only after "careful review" in the "most compelling circumstances" and only after the executive has done "the utmost to reach an accommodation" with Congress. The George W. Bush Administration limited the formal claims of executive privilege to those instances where the effort to accommodate had failed, and Congress had issued a subpoena.

The duty to seek an accommodation is said to have been the result of the uncertain boundaries between executive and legislative interests.  This uncertainty imposes upon each of the branches an "obligation ... to accommodate the legitimate needs of the other" and a duty to conduct "good faith" negotiations.  Avoiding the disclosure of embarrassing information is not a sufficient reason to withhold information from Congress.  In fact, it has been averred that invocation of the privilege should not even be considered in the absence of a "demonstrable justification that Executive withholding will further the public interest."

Where negotiations have faltered, and the President has made a formal claim of executive privilege, the executive will likely argue (as the Clinton Administration did in its invocations of executive privilege) that the investigating committee has not made the showing required under Senate Select Committee v. Nixon that the subpoenaed evidence is "demonstrably critical to the responsible fulfillment of the Committee's functions."

As has been indicated above, since at least the Reagan Administration, each executive has argued that Congress's interest in executive information is less compelling when the Committee's function is oversight than when it is considering specific legislative proposals.

In sum, then, in the absence of a further judicial definition of executive privilege since the Nixon cases, the executive, through presidential signing statements, executive orders, Office of Legal Counsel Opinions, and, most recently, White House Counsel directives, has attempted to effect a practical expansion of the scope of the privilege.

The key vehicle has been the notion of the deliberative process. Developed under the Freedom of Information Act to provide limited protection for the pre-decisional considerations of agency officials, it has been melded with the recognized presidential interest in the confidentiality of his communications with his close advisors to include pre-and post-decisional deliberations and the factual underpinnings of those decisional processes and is argued to reach policy deliberations and communications of department and agency officials and employees in which the President may have an interest.

The Clinton Administration sought to make this doctrinal expansion effective by centralizing scrutiny and control of all potential claims of executive privilege in the White House Counsel's Office. In a memorandum dated September 28, 1994, from White House Counsel Lloyd Cutler to all department and agency general counsels, agency heads were instructed to directly notify the White House Counsel of any congressional request for "any document created in the White House ... or in a department or agency, that contains deliberations of, or advice to or from the White House" which may raise privilege issues. The White House Counsel is to seek an accommodation, and if that does not succeed, he is to consult with the Attorney General to determine whether to recommend invocation of privilege to the President. The President then determines whether to claim privilege, which is then communicated to Congress by the White House Counsel.

The Cutler memo modifies President Reagan's 1982 establishment of a more decentralized procedure. Under the Reagan memorandum, if the head of an agency, with the advice of agency counsel, decided that a substantial question was raised by a congressional information request, the Attorney General, through the Office of Legal Counsel and the White House Counsel's Office, was promptly notified and consulted. If one or more of the presidential advisors deemed the issue substantial, the President was informed and decided, and the decision would be communicated by the agency head to Congress. The Reagan memo also contrasts with the Cutler memo in that it had a far narrower definition of what the privilege covered. The Reagan memo pinpointed national security, deliberative communications that form part of the decision-making process, and other information important to the discharge of Executive Branch constitutional responsibilities.

Establishing the White House Counsel's Office as a central clearinghouse and control center for presidential privilege claims appears to have had the effect of diminishing the historic role of the Justice Department's Office of Legal Counsel as the constitutional counselor to the President and limiting agencies' ability to deal informally with their congressional overseers, which is likely to have been its principal objective. An apparent consequence during the Clinton years was a more rapid escalation of individual interbranch information dispute clashes, a widening and hardening of the differences in the legal positions of the branches on privilege issues, and an increased difficulty in resolving disputes informally and quickly.

President Clinton formally asserted executive privilege 14 times and resolved a number of disputes under the pressure of imminent committee actions on contempt citations and subpoena issuances. In addition, the Clinton Administration litigated and lost significant privilege cases between 1997 and 1998. One, Espy, to which CRS will now turn, arguably undermines many key executive assumptions about the privilege just detailed and thus may reshape the nature and course of future presidential privilege disputes.

Implications and Potential Impact of the Espy and Judicial Watch Rulings for Future Executive Privilege Disputes

In Espy, 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.

The case arose from an Office of Independent Counsel (OIC) investigation of former Agriculture Secretary Mike Espy. When allegations of improprieties by Espy surfaced in March of 1994, 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 publically released on October 11, 1994. The Espy court noted that the President never saw any of the underlying or supporting documents to the report. Espy announced his resignation on October 3, to be effective on December 31.

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 the executive and deliberative process privileges for all documents. A motion to compel was resisted on the basis of the claimed privileges. 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 court's opinion carefully distinguishes between the "presidential communications privilege" and the "deliberative process privilege." Both, the court observed, are executive privileges designed to protect the confidentiality of executive branch decision-making. But the deliberative process privilege, which applies to executive branch officials generally, is a common law privilege that requires a lower threshold of need to be overcome and "disappears altogether when there is any reason to believe government misconduct has occurred."

On the other hand, the court explained, the presidential communications privilege is rooted in "constitutional separation of powers principles and the President's unique constitutional role" and applies only to "direct decisionmaking by the President." The privilege may be overcome only by a substantial showing that "the subpoenaed materials likely contain[] important evidence" and that "the evidence is not available with due diligence elsewhere." The presidential privilege applies to all documents in their entirety and covers final and post-decisional materials as well as pre-deliberative ones.

Turning to the chain-of-command issue, the court held that the presidential communications privilege must cover communications made or received by presidential advisers in the course of preparing advice for the President, even if those communications are not made directly to the President. 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."

Thus the privilege will "apply both to communications which these advisers solicited and received from others as well as those they authored themselves. The privilege must also extend to communications authored or received in response to a solicitation by members of a presidential adviser's staff."

The court, however, was acutely aware of the dangers to open government that a limitless extension of the privilege risks and carefully cabined its reach by explicitly confining it to White House staff, and not staff in the agencies, and then only to White House staff that has "operational proximity" to direct presidential decisionmaking.

The appeals court's limitation of the presidential communications privilege to "direct decision-making by the President" makes it imperative to identify the type of decision-making to which it refers. A close reading of the opinion makes it arguable that it is meant to encompass only those functions that form the core of presidential authority, involving what the court characterized as "quintessential and non-delegable Presidential power."

In the case before it, the court was specifically referring to the President's Article II appointment and removal power, which was the focal point of the advice he sought in the Espy matter. But it seems clear from the context of the opinion that the description was meant to be in juxtaposition with the appointment and removal power and in contrast with "presidential powers and responsibilities" that "can be exercised or performed without the President's direct involvement, pursuant to a presidential delegation of authority or statutory framework." The reference the court uses to illustrate the latter category is the President's Article II duty "to take care that the laws are faithfully executed," a constitutional direction that the courts have consistently held not to be a source of presidential power but rather an obligation on the President to see to it that the will of Congress is carried out by the executive bureaucracy.

The appeals court, then, would appear to be confining the parameters of the newly formulated presidential communications privilege by tying it to those Article II functions that are identifiable as "quintessential and non-delegable," which would appear to include, in addition to the appointment and removal powers, the commander-in-chief power, the sole authority to receive ambassadors and other public ministers, the power to negotiate treaties, and the power to grant pardons and reprieves. On the other hand, 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, would not necessarily be covered. Of course, the President's role in supervising and coordinating (but not displacing) decision-making in the executive branch remains unimpeded. But his communications in furtherance of such activities would presumably not be cloaked by constitutional privilege.

Such a reading of this critical passage of the court's opinion is consonant with the court's view of the source and purpose of the presidential communications privilege and its expressed need to confine it as narrowly as possible. Relying on Nixon I, the Espy court identifies "the President's Article II powers and responsibilities as the constitutional basis of the presidential communications privilege ... Since the Constitution assigns these responsibilities to the President alone, arguably the privilege of confidentiality that derives from it also should be the President's alone."

Again relying on Nixon I, the court pinpoints the essential purpose of the privilege: "[Tlhe privilege is rooted in the need for confidentiality to ensure that presidential decisionmaking is of the highest caliber, informed by honest advice and knowledge. Confidentiality is what ensures the expression of 'candid, objective, and even blunt or harsh opinions' and the comprehensive exploration of all policy alternatives before a presidential course of action is selected."

The limiting safeguard is that the privilege will apply in those instances where the Constitution provides that the President alone must make a decision. "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."

The District of Columbia Circuit's 2004 decision in Judicial Watch, Inc. v. Department of Justice appears to lend substantial support to the above-expressed understanding of Espy. 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. Some 4,300 documents were withheld on the grounds that they were protected by Presidential communications and deliberative process privileges.

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 extension of the presidential communications privilege to internal Justice Department documents which had not been "solicited and received" by the President or the Office of the President was warranted. The appeals court reversed, concluding that "internal agency documents that are not solicited and received by the President or his Office are instead protected against disclosure, if at all, by the deliberative process privilege."

Guided by the analysis of the Espy ruling, the panel majority emphasized that the "solicited and received" limitation "is necessitated by the principles underlying the presidential communications privilege and a recognition of the dangers of expanding it too far."

Espy teaches the court explained that the privilege may be invoked only when presidential advisers in close proximity to the President, who have significant responsibility for advising him on non-delegable matters requiring direct presidential decisionmaking, have solicited and received such documents or communications or the President has received them himself. In rejecting the Government's argument that the privilege should be applicable to all departmental and agency communications related to the Deputy Attorney General's pardon recommendations for the President, the panel majority held that:

Indeed, the Judicial Watch panel makes it clear that the Espy rationale would preclude cabinet department heads from being treated as being part of the President's immediate personal staff or as some unit of the Office of the President:

The Judicial Watch majority took great pains to explain why Espy and the case before it differed from the Nixon and Post-Watergate cases. According to the court, "[u]ntil In re Sealed Case, the privilege had been tied specifically to direct communications of the President with his immediate White House advisors."

The Espy court, it explained, was for the first time confronted with the question of whether communications that the President's closest advisors make in the course of preparing advice for the President and which the President never saw should also be covered by the presidential privilege. 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."

The situation before the Judicial Watch court tested the Espy principles. While the presidential decision involved – exercise of the President's pardon power – was certainly a non-delegable, core presidential function, the operating officials involved, the Deputy Attorney General and the Pardon Attorney, were deemed to be too remote from the President and his senior White House advisors to be protected.

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 for confining the potentially broad sweep that would result from a functional test. Under the latter test, there would be no limit to the coverage of the presidential communications privilege. In such circumstances, the majority concluded, the lesser protections of the deliberative process privilege would have to suffice. That privilege was found insufficient, and the appeals court ordered the disclosure of the 4,300 withheld documents.

It may be noted that, in at least one analogous instance, the White House divulged documents sought by a congressional committee that argued the more limited reading of Espy. When Espy was decided, the House Resources Committee was in the midst of an inquiry into President Clinton's utilization of the Antiquities Act of 1906, which authorizes the President, in his discretion, to declare by public proclamation objects of historic or scientific interest on federal lands to be national monuments, by reserving parcels that "shall be confined to the smallest area compatible with the proper care and management to the objects to be protected."

The Act establishes no special procedures for the decision to declare a national monument and contains no provision for judicial review. Shortly before the 1996 presidential election, President Clinton reserved 1.7 million acres in Utah by proclamation. Central to the Committee's inquiry as to the propriety and integrity of the decision-making process that led to the issuance of the presidential proclamation were the actions of the Council on Environmental Quality (CEQ), an office within the Executive Office of the President with about the same degree of advisory proximity as that of the White House Counsel's Office. Requests for the physical production of documents from CEQ met with limited compliance: an offer to view 16 documents at the White House. The Committee believed that it required physical possession in order to determine the propriety of the process and issued a subpoena which was not complied with on the return date.

During intense negotiations, the White House claimed the documents were covered by the presidential communications privilege, even as defined by Espy. In a letter to the Committee, the White House Counsel's Office argued that the opinion did not confine the privilege to just core Article II powers but included presidential decision-making encompassed within Article II's duty to take care that the laws be faithfully executed. It asserted that since the President had the sole authority to designate a monument by law, that decisional process, including deliberations among and advice of White House advisers, was covered. The Committee, in reply letters, disagreed, arguing that Espy would not encompass a statutory delegation of decisional authority. On the eve of a scheduled Committee vote on a resolution of contempt, the White House produced all the documents.

The narrower reading of Espy by the House Committee also accommodates the need of Congress for flexibility in assigning tasks for executive fulfillment. It is, of course, the predominant practice of Congress to delegate the execution of laws to the heads of departments and agencies. But there are occasions when the nature of the decision-making is deemed so sensitive or important or unique that the direct presence of presidential authority is appropriate.

Where the exercise of such authority derives solely from the statutory delegation and does not find its basis in one of the so-called "core" constitutional powers of the President, it is a reasonable expectation of Congress that it will be able to determine whether and how the legislative intent has been carried out, just as it does with its assignments to the departments and agencies. A view that any delegation of decision-making authority directly to the President will thereby cloak it from congressional scrutiny is not only anomalous but arguably counterproductive to interbranch coordination, cooperation, and comity, as it would discourage such delegations. Of course, further judicial development of the principles enunciated in Espy may alter this view of its scope.

Recent Developments: George W. Bush Claims of Executive Privilege

In early 2007, the House Judiciary Committee and its Subcommittee on Commercial and Administrative Law commenced an inquiry into the propriety of the termination and replacement of a number of United States Attorneys. Six hearings and numerous interviews were held by the committees between March and June 2007, essentially focusing on testimony with respect to actions of present and former Department of Justice (DOJ) officials and employees as well as DOJ documents relating to the matter. On March 21, 2007, the House Subcommittee authorized Chairman John Conyers, Jr. to issue subpoenas to a number of present and former White House Officials for documents and testimony.

On June 13, 2007, Chairman Conyers issued subpoenas to White House Chief of Staff Joshua Bolten, as custodian of White House documents, returnable on June 28, 2007, and to former White House Counsel Harriet Miers, returnable on July 12, 2007.

On June 27, 2007, White House Counsel Fred F. Fielding, at the direction of President Bush, advised the Chairmen of the House and Senate Judiciary Committees that document subpoenas issued to the White House custodian of documents and to two former White House officials, Sara M. Taylor, subpoenaed by the Senate Judiciary Committee, and Harriet Miers, relating to those Committees investigations of the dismissal and replacement of nine U.S. attorneys in 2006, had been deemed by the President subject to executive privilege and that the subpoena recipients have been directed not to produce any documents. The Fielding letter also noted that the testimony sought from Ms. Miers and Ms. Taylor was also subject to a "valid claim of Executive Privilege" and would be asserted if the matter could not be resolved before the dates scheduled for their appearances.

Accompanying the Fielding letter was a legal memorandum prepared by Acting Attorney General Paul D. Clement for the President detailing the legal basis for a claim of executive privilege.

The memo identifies three categories of documents being sought: (1) internal White House Communications; (2) communications by White House Officials with individuals outside the Executive Branch, including individuals in the Legislative Branch; and (3) communications between White House and Justice Department officials.

With respect to internal White House communications, which are said to consist of discussions of "the wisdom" of removal and replacement proposals, which U.S. Attorneys should be removed, and possible responses to Congressional and media inquiries, such discussions are claimed to be the "types of internal deliberations among White House officials [that] fall squarely within the scope of executive privilege" since their non-disclosure "promote[s] sound decisionmaking by ensuring that senior Government officials and their advisors may speak frankly and candidly during the decisionmaking process," citing United States v. Nixon. Since it is argued what is involved in the exercise of the presidential power to appoint and remove officers of the United States, a "quintessential and non-delegable Presidential power" (citing Espy), the President's protected confidentiality interests "are particularly" strong in this instance.

As a consequence, an inquiring congressional committee would have to meet the standard established by the Senate Select Committee decision requiring a showing that the documents and information are "demonstrably critical to the responsible fulfillment of the Committee's function." Thus, it is claimed there is doubt whether the Committees have oversight authority over deliberations essential to the exercise of this core presidential power or that "their interests justify overriding a claim of executive privilege as to the matters at issue."

With respect to category two matters involving communications by White House officials with individuals outside the White House, the Clement memo asserts that confidentiality interests undergirding the privilege are not diminished if the President or his close advisors have to go outside the White House to obtain information to make an "informed decision," particularly about a core presidential power. Again, Espy and Senate Select Committee are referred to as supporting authorities.

As to the final category, respecting communications between the Justice Department and the White House concerning proposals to dismiss and replace U.S. Attorneys, it is claimed that such communications "are deliberative and clearly fall within the scope of executive privilege ... [T]he President's need to protect deliberations about the selection of U.S. Attorneys is compelling, particularly given Congress' lack of legislative authority over the nomination or replacement of U.S. Attorneys," citing Espy and Senate Select Committee. The privilege is asserted to extend to White House – DOJ communications "that have been previously disclosed to the Committees by the Department."

An argument that a waiver may have occurred is contrary to "relevant legal principles [that] should and do encourage, rather than punish, such accommodation[s] by recognizing that Congress' need for such documents is reduced to the extent similar materials have been provided voluntarily as part of the accommodation process." Since the Committees have these documents, seeking the relevant communications would be cumulative under Senate Select Committee. This rationale is argued to support the lack of any need for the testimony of the former White House officials subpoenaed:

On June 29, 2007, Chairman Conyers and Senate Judiciary Committee Chairman Patrick Leahy jointly responded to the Fielding letter and Clement memorandum. Characterizing the White House stance as "based on blanket executive privilege claims," which makes it difficult for the Committees "to determine where privilege truly does and does not apply," the Committees demanded that they be provided with a detailed privilege log that includes for each document withheld a description of the nature, source, subject matter, and date of the document; the name and address of each recipient of an original or copy of the document and the date received; the name and address of each additional person to whom any of the contents of the document was disclosed, along with the date and manner of the disclosure; and the specific basis for the assertion of privilege. A deadline for receipt of the privilege log was set for July 9, 2007.

On July 9, 2007, the White House Counsel refused to comply. On that same date, counsel to Ms. Miers informed Chairman Conyers that pursuant to letters received from the White House Counsel, Miers would not testify or produce documents, and the next day, July 10, announced that Miers would not appear at all. That same day the DOJ Office of Legal Counsel (OLC) issued an opinion that "Ms. Miers is [absolutely] immune from the compulsion to testify before the Committee on this matter and therefore is not required to appear to testify about the subject."

Citing previous OLC opinions, the opinion asserts that since the President is the head of one of the independent branches of the federal government, "If a congressional committee could force the President's appearance, fundamental separation of powers principles – including the President's independence and autonomy from Congress – would be threatened."

As a consequence, "[t]he same separation of powers principles that protect a President from compelled congressional testimony also apply to senior presidential advisors" because such appearances would be tantamount to the President himself appearing. The fact that Ms. Miers is a former counsel to the President does not alter the analysis since "a presidential advisor's immunity is derivative of the President's." Neither Ms. Miers nor Mr. Bolten complied with the return dates of their subpoenas.

On July 12, 2007, the House Subcommittee met, and Chairman Sánchez issued a ruling rejecting Ms. Miers' privilege claims with respect to failing to appear, produce documents, and testify, which was upheld by a 7-5 vote. On July 19, the Subcommittee Chair ruled against Mr. Bolten's privilege claims with respect to his failure to produce documents, which was upheld by a 7-5 vote. On July 25, the full Judiciary Committee voted 21-17 to issue a report to the House recommending that a resolution of contempt of Congress against Miers and Bolten be approved. Thereafter, the White House announced that it would order the United States Attorney for the District of Columbia not to present the contempt of Congress citation for grand jury consideration.

The Judiciary Committee filed its Report formally reporting a contempt violation to the House in November 2007. After further attempts at accommodation failed, the matter was brought to the floor of the House on February 14, 2008, which voted 223 to 32 to hold Ms. Miers and Mr. Bolten in contempt of Congress for their willful failure to comply with the Committee's subpoenas. At the same time, the House passed three resolutions. H.Res. 979 directed the Speaker to certify the report of the Judiciary Committee, detailing the refusals of Ms. Miers to appear before, to testify before, and to produce documents to the Committee and Mr. Bolten's refusal to produce documents, as required by subpoenas, to the United States Attorney for the District of Columbia for presentation to a grand jury pursuant to 2 U.S.C. 192 and 194.

H.Res. 980, in apparent anticipation that the criminal contempt citation would not be presented to the grand jury by the U.S. Attorney, authorized the Chairman of the Judiciary Committee to initiate civil judicial proceedings in federal court to seek a declaratory judgment affirming the duty of any individual to comply with any subpoena that is the subject of H.Res. 979 and to issue appropriate injunctions to achieve compliance. The resolution also authorized the House General Counsel to represent the Committee in any such litigation. H.Res. 982 adopted both H.Res. 979 and H.Res. 980.

On February 28, 2008, the Speaker certified the Committee's Report to the U.S. Attorney. On February 29, 2008, 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."

On March 10, 2008, the House General Counsel filed a civil action for declaratory judgment and injunctive relief against Ms. Miers and Mr. Bolten. The suit sought a declaration by the court that (1) Ms. Miers is not immune from the obligation to appear before the Committee in response to a duly authorized, issued, and served Committee subpoena; (2) Ms. Miers and Mr. Bolten produce privilege logs identifying all documents withheld on grounds of executive privilege; and (3) Ms. Miers and Mr. Bolten's claims are improper in the context of communications not involving the President or undertaken directly in preparation for advising the President and that Ms. Miers and Mr. Bolten's claims of executive privilege are, in any event, overcome by the Committee's demonstrated, specific need for the subpoenaed testimony and comments. In addition, the Committee sought an order directing Ms. Miers to appear before the Committee to respond to questions and to invoke executive privilege if and when appropriate; to have Ms. Miers and Mr. Bolten provide detailed privilege logs with respect to documents claimed to be privileged and for both to produce all non-privileged documents subject to the subpoenas.

On April 10, 2008, the House General Counsel filed a Motion for Partial Summary Judgment seeking a declaration that (1) Ms. Miers's failure to appear at all in response to the Committee's subpoena was without legal justification; (2) that she must appear before the Committee and assert privilege claims in response to questions, as appropriate, but must testify about subjects not covered by privilege; (3) that the failure of both Ms. Miers and Mr. Bolten to supply privilege logs with respect to withheld documents is legally unjustified; and (4) that both be ordered to provide detailed privilege logs with respect to documents claimed to be privileged and to produce all relevant non-privileged documents.

On July 31, 2008, the district court essentially granted the Committee's motion for partial summary judgment in its entirety. The court's lengthy opinion principally dealt with the Executive's claims that the suit should be dismissed because the Committee: (1) lacked standing, (2) had not stated a cause of action authorizing the suit, and (3) was inappropriately involving the court in a dispute between the political branches of a type of that traditionally has been resolved by negotiation and accommodation by the parties.

The court rejected the Executive's justiciability claims, finding both standing and an implied cause of action in the Constitution's institutional commitment to the Congress in Article I of "the power of inquiry," observing that the Supreme Court has consistently recognized that the power carries with it the "process to enforce it" which is "an essential and appropriate auxiliary to the legislative function," and that "issuance of a subpoena pursuant to an authorized investigation is ... an indispensable ingredient of law-making." In rejecting the suggestion that the court exercises its equitable discretion not to involve itself in a political dispute between the branches, the court observed that numerous courts since the initial Watergate rulings had found it appropriate to attempt to resolve subpoena disputes raising privilege and immunity questions in both civil and criminal contexts involving the political branches in circumstances where it appeared only judicial intervention could prevent "a stalemate that could result in a paralysis of government." The court noted that both parties conceded that an impasse had been reached and observed:

Turning to the sole merits issue raised by the Committee's motion for partial summary judgment – the Executive's claim that present and past senior advisers to the President are absolutely immune from compelled congressional process – the court's conclusion was an unequivocal rejection of the government's position:

At the outset, the court noted that a 1950 Supreme Court ruling in United States v. Bryan established that if compliance with a congressional subpoena requirement is ignored, "the great power of testimonial compulsion, so necessary to the effective functioning of courts and legislatures, would be a nullity."

In attempting to explain why compliance is to be excused in this instance, the Executive argued that since the President himself is absolutely immune to compelled congressional testimony, close advisers to the President himself must be regarded as his "alter ego" and be entitled to the same absolute immunity. Forcing such close advisors to testify before Congress would be tantamount to compelling the President to do so. The court responded that the same line of argument had been rejected by the Supreme Court in Harlow v. Fitzgerald, 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."

Recognizing that absolute immunity had been extended to legislators, judges, prosecutors, and the President himself, the Supreme Court rejected extending such immunity further, emphasizing that "[f]or executive officials in general, however, our cases make plain that qualified immunity represents the norm." The High Court rejected the argument that it had accorded derivative immunity to legislative aides in Speech or Debate cases as "sweep[ing] too far," noting that even cabinet members "are not entitled to absolute immunity."

The Harlow Court made the concession that a presidential aide could be accorded absolute immunity if it was shown that the responsibilities of his office embraced a sensitive function such as foreign policy or national security and that he was discharging the protected functions when performing the act for which liability is asserted. The Miers district court concluded that in this matter, since there was no involvement of national security or foreign policy concerns, neither Ms. Miers' nor Mr. Bolten's close proximity to the President is sufficient under Harlow to provide either absolute or qualified immunity.

In response to the Executive's claim that without absolute immunity, there would be a "chilling effect" on the candid and frank advice advisers would provide a Chief Executive, the court stated:

Next, the district court rejected the claim that Nixon v. United States established that a president's immunity is qualified, and not absolute, only when the judicial resolution of a criminal justice matter concerned. Here, the court emphasized, the Executive argued that what was involved was a "peripheral" exercise of Congress's power, not a core function of another branch. The court responded:

The court recognized that the effect of a claim of absolute privilege for close advisors was to make the President the judge of the parameters of his own qualified privilege. "Permitting the Executive to determine the limits of its own privilege would impermissibly transform the presumptive privilege into an absolute one, yet that is what the Executive seeks through its assertion of Ms. Miers's absolute immunity from the compulsory process. That proposition is untenable and cannot be justified by appeals to Presidential autonomy."

Finally, the district court rejected the government's fall-back position: that even if Ms. Miers is not entitled to absolute immunity, she should be accorded qualified immunity. The court dismissed the argument, relying on the requirements established by Harlow:

The court concluded that its rejection of a claim of absolute immunity rested on two premises: Such a claim would transform the President's qualified immunity into an absolute one, and if such a claim were to prevail, it would cover even non-privileged executive information:

On August 7, 2008, the Justice Department noted its intent to appeal the ruling and requested that the court stay its order directing compliance with the subpoena until its appeal is resolved. The district court's response to the stay request is pending.

The Miers/Bolten claim of executive privilege was the third of six such invocations by the Bush Administration. The first was asserted by President Bush on December 12, 2001, directing Attorney General Ashcroft to refuse to comply with document subpoenas issued by the House Government Reform Committee as part of the investigation of alleged law enforcement corruption in the FBI's Boston Field Office over a period of almost 30 years.

Following two hearings in which the validity of the privilege claim was the central issue, testimony presenting overwhelming evidence that similar DOJ documents and testimony had been provided in the face of investigative demands by jurisdictional committees for over 85 years, despite claims of interference with prosecutorial deliberations, and with a credible threat of a successful contempt vote on the floor of the House, the documents were relinquished.

The second claim of privilege, apparently asserted on behalf of the President by White House Counsel Alberto Gonzales, occurred during the Judicial Watch litigation over the release of some 4,300 pardon documents that were in the custody of the Pardon Attorney in the Justice Department and that had never been requested by White House officials or the President. The panel majority held that in light of the Espy ruling, the presidential communications privilege was inapplicable and ordered the documents to be released to the requesters.

The President has made three additional claims of executive privilege that are still unresolved. One involves a continuation of the House Judiciary Committee's investigation of the removal and replacement of nine U.S. Attorneys. On July 10, 2008, Karl Rove, a former White House Deputy Chief of Staff, refused to comply with a subpoena requiring his appearance for testimony before its Subcommittee on Commercial and Administrative Law, claiming absolute immunity based on opinions and directions from the White House and the Department of Justice. His claims of privilege were rejected by the Subcommittee. On July 30, 2008, the full Committee, by a vote of 20-14, approved a report recommending that Mr. Rove be cited for contempt by the House. The recommendation has not yet been forwarded for floor action.

Privilege claims have been made by the President with respect to three subpoenas issued by the House Oversight and Government Reform Committee in April and May 2008 to the Administrator of the Environmental Protection Agency (EPA) and the Office of Information and Regulatory Affairs of the Office of Management and Budget (OIRA). The subpoena to OIRA and one of the subpoenas to the Administrator of EPA seek documents related to the EPA's promulgation of a regulation revising national ambient air quality standards for ozone on March 12, 2008.

The other subpoena directed to the EPA Administrator seeks documents reflecting communications between EPA and OIRA concerning the agency's decision to deny a petition by California for a waiver from federal preemption to enable it to regulate greenhouse gas emissions from motor vehicles. The Attorney General, on June 19, 2008, advised the President that some 25 of the documents covered by the subpoena would be properly covered by an assertion of executive privilege. On June 20, 2008, the EPA Administrator advised the chairman of the Committee that he had been directed by the President to assert executive privilege with respect to the withheld documents. No action has yet been taken by the Committee.

The most recent presidential privilege claim, asserted on July 16, 2008, at the behest of the Attorney General, involves a House Oversight and Government Reform Committee subpoena to the Department of Justice (DOJ) for documents concerning the DOJ's investigation by a Special Counsel concerning the disclosure of Valerie Plame Wilson's identity as an employee of the Central Intelligence Agency.

The documents sought and withheld include the FBI reports of the Special Counsel's interviews with the Vice President and senior White House staff; handwritten notes taken by the Deputy National Security Advisor during conversations with the Vice President and senior White House officials; and other documents provided by the White House during the course of the investigation. The Attorney General's request to the President for a formal claim of privilege was spurred by the Committee's scheduling of a full Committee meeting to consider a resolution citing him for contempt of Congress.

Concluding Observations

As indicated in the above discussion, recent appellate court rulings cast considerable doubt on the broad claims of privilege posited by OLC in the past and now reiterated by the Clement Memo and July 10, 2007, OLC's opinion on absolute witness immunity. Taken together, Espy and Judicial Watch arguably have effected important qualifications and restraints on the nature, scope, and reach of the presidential communications privilege. As established by those cases, and until reviewed by the Supreme Court, the following elements appear to be essential to appropriately invoke the privilege:

1. The protected communication must relate to a "quintessential and non-delegable presidential power." Espy and Judicial Watch involved the appointment and removal and the pardon powers, respectively. Other core, direct precedential decision-making powers include the Commander-in-Chief power, the sole authority to receive ambassadors and other public ministers, and the power to negotiate treaties. It would arguably not include decision-making with respect to laws that vest policymaking and administrative implementation authority in the heads of departments and agencies or which allow presidential delegations of authority.
   
   
2. The communication must be authored or "solicited and received" by a close White House advisor (or the President). The judicial test is that an advisor must be in "operational proximity" to the President. This effectively means that the scope of the presidential communications privilege extends only to the administrative boundaries of the Executive Office of the President and the White House.
   
   
3. The presidential communications privilege remains a qualified privilege that may be overcome by showing that the information sought "likely contains important evidence" and the unavailability of the information elsewhere by an appropriate investigating authority. The Espy court found an adequate showing of need by the Independent Counsel, while in Judicial Watch, the court found the privilege did not apply, and the deliberative process privilege was unavailing.
   

Definitively applying the teachings of Espy and Judicial Watch to current withholding claims in a context not yet fully developed may be premature. However, the recent district court ruling in Miers unequivocally rejected the claim of absolute witness immunity and adopted the Committee's argument that the Supreme Court's ruling in United States v. Nixon allows only a qualified constitutional privilege that is presumptive when asserted but which may be overcome by a proper showing of need elsewhere by an authorized investigatory body such as a jurisdictional congressional committee; and the court's further recognition that subsequent Supreme Court and appellate court rulings have reiterated the qualified nature of the privilege may be a clear indication that the Committee's position is on firm legal grounds.

It may be noted that Miers's opinion approvingly cited the Espy ruling five times with respect to doctrinal trends and interpretations concerning the presidential communications privilege, further reinforcing the notion that Espy is the controlling law in the District of Columbia Circuit.  Also significant in Miers's opinion is the explicit rejection of the central legal position propounded by the Clement and OLC positions with respect to the claimed sufficiency of the nature and scope of the disclosures respecting the withheld documents that will be necessary to support the President's qualified privilege. If the initial Miers ruling is upheld on appeal, the next phase of the litigation would directly confront the applicability and effect of Espy and Judicial Watch on the nature, scope, and reach of the presidential communications privilege.