Nuts & Bolts: Executive Privilege
Today Congress issued contempt citations for White House chief of staff Josh Bolten and former White House counsel Harriet Miers for failing to comply with subpoenas in the matter of the U.S. attorneys firings. Unless it is resolved, the matter now goes either to a grand jury for criminal indictments or to civil court. Either way, courts will be asked to rule on the White House’s claims to executive privilege. I described the contempt process yesterday because I’d seen misleading and confused press accounts and blog posts on the topic. For the same reason, I’ve decided to describe the unfortunately underdeveloped law of executive privilege.
In short, executive privilege is the common law doctrine that coequal branches of government must afford respect for the inherent sensitivity and confidentiality of communications between the president and his advisers. That respect requires that the president and other executive branch officers can refuse to comply with congressional or judicial demands for information. The idea of executive privilege has roots in George Washington’s presidency, but it was first tested judicially during Richard Nixon’s confrontations with Congress over Watergate.
This area of law is not well developed; there have only been ten cases about executive privilege and only seven of them actually involved conflicts between Congress and the Executive Branch. Two reached the Supreme Court. The reason for the lack of caselaw is that it is much more common for Congress and the president to arrange a political compromise than risk an embarrassing loss in court. Congressional claims that their requests for information are necessary for a legislative purpose do not obscure the truth: these conflicts are almost entirely about scoring political points against rivals and it is only through negotiation and compromise that the competing parties can truly take control of the outcome. Given the underdeveloped nature of executive privilege, taking one of these conflicts to court is essentially a roll of the dice.
From the seven cases that specifically dealt with the issue of executive privilege claims against Congressional inquiries we can get the broad outline of the situation. First, executive privilege is a qualified privilege, meaning that it cannot simply be claimed without explanation and justification by the president. Once claimed, there is a presumption that a particular communication is protected by privilege, but each claim of privilege is subject to judicial review. Moreover, the privilege is limited to communications made in performance of the president’s official, non-delegable Article II duties. Executive privilege can be claimed for all communications made or received by the president or the president’s advisers in the course of preparing advice or making policy decisions. However, this extends only to White House staff who are closely involved in presidential decisionmaking.
Once a claim of executive privilege has been made, courts will balance the president’s need for confidentiality in a particular matter against Congress’ claim that the requested information is critical to the performance of its functions. In some cases, emphasis was placed on increased presidential interest in confidentiality for matters involving the military, diplomacy, or national security. Furthermore, executive branch lawyers for Presidents Reagan, Bush 41, Clinton, and Bush 43 have argued that Congress’ interest in information for oversight purposes is less compelling than for legislative purposes, however, the caselaw is unclear on this point.
It is important to note that executive privilege is not usually applied in a blanket fashion, where a person refuses to testify entirely or to return any documents at all. Often, the subpoenaed individual will testify, but assert executive privilege as to specific questions or documents requested. It is unlikely that they have a valid claim of privilege to every conceivable question that they could be asked.
Two other things must be considered. First, courts faced with claims of executive privilege against congressional requests for information have sometimes refused to rule on the question at all. Instead, they have cited the political question doctrine and insisted that Congress and the president work out a solution themselves. The political question doctrine provides that courts should exercise judicial discretion to reject cases involving issues which are more properly committed to a coequal branch of government or where it would be imprudent to interfere. On both occasions that the courts took this avenue, the competing parties worked out a compromise.
Second, every president since Reagan has insisted that the Department of Justice can be instructed not to seek indictments in cases where the president has asserted executive privilege. This is important because the final step for Congress in the statutory contempt process is presentation of the certified contempt citation to the U.S. Attorney for the District of the Columbia. The U.S. Attorney is then supposed to take the contempt citation before a grand jury. As a member of the Executive Branch–and as a political appointee–it is unlikely that, faced with an order from the Attorney General not to seek an indictment, the U.S. Attorney would actually do so.
In short, the law of executive privilege is a mess, committing a standardless balancing test to courts reluctant to intervene in political squabbles. Unfortunately, Congress and the Bush Administration seem determined to bring this to the courts. The bright side is that another judicial decision can only serve to clarify this area of law.