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.