POLSC232: American Government

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."