Executive privilege is confusing, and so this primer is meant to explain why some documents may not be disclosed, what the legal basis is for executive privilege, when it does and does not apply, and when the privilege can be overcome. This isn’t about how we think executive privilege should be applied; this is just an overview of the existing law.
What is “executive privilege?”
The earliest American example of executive privilege may be President Thomas Jefferson’s claim that he could keep a letter from a military advisor secret from Vice President Aaron Burr’s treason tribunal, but the Supreme Court did not begin to define the privilege’s contours until the White House tried to block disclosure of the now-famous Nixon tapes.
The Court’s decision eventually led to the tapes’ disclosure, but the justices recognized in their 1974 United States v. Nixon decision that “those who expect public dissemination of their remarks may well temper candor with a concern for appearances and for their own interests to the detriment of the decisionmaking process.” Presidents must have a limited power to resist disclosure of certain information when keeping that information confidential is necessary to ensure a well-functioning executive branch of government. This power exists in addition to other checks on the disclosure of government documents, such as the president’s power to classify sensitive national security information.
The term “executive privilege” is often used as a blanket term to refer to any presidential assertion that an executive branch document should not be disclosed, but the courts have recognized both a stronger and a weaker form of executive privilege.
The stronger “presidential communications privilege”
The stronger form is known as the “presidential communications privilege.” This relatively robust privilege applies to communications made directly to the president so long as those communications occur “in performance of [a president’s] responsibilities” and “in the process of shaping policies and making decisions.” The presidential communications privilege may also apply to communications “authored or solicited and received by those members of an immediate White House adviser’s staff who have broad and significant responsibility for investigating and formulating the advice to be given the President on the particular matter to which the communications relate.”
Communications authored by agency officials—executive branch officials outside the White House—are not subject to the presidential communications privilege unless the documents were specifically solicited and received by the president or an appropriate White House advisor to the president.
The weaker “deliberative process privilege”
The weaker form of executive privilege is known as the “deliberative process privilege,” which applies to discussions among executive branch officials that are part of the government’s decision-making process. This privilege can apply to executive branch officials outside of the president’s inner circle, but it is both more limited in scope and easier to overcome.
As Judge Patricia Wald explained in the seminal Espy case, “[t]he deliberative process privilege does not shield documents that simply state or explain a decision the government has already made or protect material that is purely factual, unless the material is so inextricably intertwined with the deliberative sections of documents that its disclosure would inevitably reveal the governments deliberations.”
General Kagan served as an attorney and policy advisor on President Clinton’s White House staff, and a substantial amount of the work she produced during that service will therefore be subject to the stronger presidential communications privilege. Documents related to her White House service are therefore unlike documents produced by Chief Justice John Roberts or Justice Samuel Alito during their time at the Department of Justice—which, at best, could only be subject to the weaker deliberative process privilege. (The documents Roberts produced during his tenure in the Office of White House Counsel, of course, may be subject to the presidential communications privilege.)
Who can claim executive privilege?
Either the sitting president or a former president during whose term an allegedly privileged document was created may assert executive privilege. President Barack Obama issued Executive Order 13489 on his second day in office, which sets out procedures permitting both current and former presidents to invoke executive privilege with respect to presidential records kept in the National Archives, and defining the role of the Archivist of the United States in making these records public.
The archivist must make the current and former president aware of any soon-to-be-disclosed documents which, if disclosed, might “impair national security (including the conduct of foreign relations), law enforcement, or the deliberative processes of the executive branch”—although a president may still invoke executive privilege with respect to documents not identified by the archivist.
The archivist, under normal circumstances, will also give the current and former presidents 30 days to decide whether to assert executive privilege before those documents are released. But this 30-day period can be reduced when the White House, Congress, or the judiciary seek presidential records.
President Obama has indicated that he will not claim executive privilege with respect to records pertaining to the Kagan nomination. Yet some documents—such as certain documents General Kagan produced while serving in the Office of White House Counsel—are likely to be withheld because of concerns that disclosing them would undermine national security. Former President Clinton also retains the right to assert that some documents relating to Kagan’s White House service are privileged.
Can a claim of executive privilege be overcome?
The courts have consistently held that executive privilege is not absolute and can be “overcome by an adequate showing of need.” This is a flexible standard and does not lend itself to clear predictions about whether a particular assertion of executive privilege will be upheld, but the courts have provided some guidelines to govern claims of executive privilege. The Supreme Court held in United States v. Nixon, for example, that a claim of executive privilege will normally be defeated when the privileged information is needed to provide evidence in a criminal trial—although the strong presumption against revealing information that would jeopardize national security would control even in this instance.
The courts have been much less eager to breach the privilege with respect to congressional hearings. Case law suggests that a claim of executive privilege may ultimately be defeated when the privileged documents are “demonstrably critical to the responsible fulfillment of [a congressional] Committee’s functions,” but courts generally encourage “negotiations” between Congress and the executive branch, and will only step into a dispute over privileged documents if the political branches fail to reach a compromise.
If such a claim of executive privilege arises during the Kagan confirmation process, the courts will probably not be useful in resolving a challenge to that claim. Disclosure of such documents would only be “demonstrably critical” to the Judiciary Committee’s function if they reveal information that cannot be discovered elsewhere—such as in documents that have already been disclosed. And President Obama’s indication that he would not invoke executive privilege may lead courts to conclude that negotiations would prove more fruitful than a judicial order.
It is unlikely, in light of President Obama’s support of open access to presidential records relating to General Kagan, that information relevant to her nomination will be kept from the public. Nevertheless, some Clinton-era documents are likely to remain undisclosed, either because they contain sensitive national security information or because former President Clinton asserts executive privilege. If such a claim arises, the White House’s general encouragement of open access will bolster any narrow assertion of executive privilege, because it will be unlikely that the privileged documents will lead to insights that cannot be discovered elsewhere in the National Archives.
Read more on the nomination of Solicitor General Elena Kagan to the Supreme Court of the United States, here.
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