POLSC232: American Government

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.