Executive Privilege: History, Law, Practice and Recent Developments

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.