POLSC232: American Government

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.