Executive Privilege: A Primer

by hilzoy

It occurred to me that it might be useful for me to try to sort out what, exactly, executive privilege is. As always, I have tried to get it right, but welcome correction from any lawyers who read this.

Here (pdf) is a report by the Congressional Research Service on Presidential advisors testifying before Congress. (The CRS is nonpartisan; those with suspicious minds should know that this report is from 2004, when the Congress was under Republican control, and before the current brouhaha had started.) It lists all the advisors who have testified before Congress, and says why they were called. (Clinton's advisors testified 47 times.) It also contains a useful guide to executive privilege, as well as some interesting history -- for instance, who knew that the President's entire personal staff consisted of one (1) secretary until 1929, when three whole new positions were added? Not me.

As I understand it, the question whether the President can invoke executive privilege in response to Congressional subpoenas involves two ancient prerogatives, both of which were familiar to the Framers and understood by them to belong to (respectively) the President and the Congress, but that are not mentioned in the Constitution. To quote Mark Kleiman, they are "those penumbras of emanations conservatives so despise when they're not using them." (Some conservatives, at any rate.)

The Constitution gives the Congress "all legislative Powers herein granted." It does not mention a Congressional power to subpoena documents or witnesses. However, courts have held that the power to pass laws should be held to involve as well any powers needed for Congress to be an effective, competent legislature, such as the ability to inform itself about the matters on which it proposes to legislate:

"We are of opinion that the power of inquiry -- with process to enforce it -- is an essential and appropriate auxiliary to the legislative function. (...) While the power to exact information in aid of the legislative function was not involved in those cases, the rule of interpretation applied there is applicable here. A legislative body cannot legislate wisely or effectively in the absence of information respecting the conditions which the legislation is intended to affect or change; and where the legislative body does not itself possess the requisite information -- which not infrequently is true -- recourse must be had to others who do possess it. Experience has taught that mere requests for such information often are unavailing, and also that information which is volunteered is not always accurate or complete; so some means of compulsion are essential to obtain what is needed. All this was true before and when the Constitution was framed and adopted. In that period the power of inquiry, with enforcing process, was regarded and employed as a necessary and appropriate attribute of the power to legislate -- indeed, was treated as inhering in it. Thus there is ample warrant for thinking, as we do, that the constitutional provisions which commit the legislative function to the two houses are intended to include this attribute to the end that the function may be effectively exercised."

Likewise, the Constitution gives the President "the executive Power", and the obligation to "take Care that the Laws be faithfully executed." It does not mention executive privilege. However, as in the case of Congressional subpoenas, the courts have held that the President's powers give him a right to claim executive privilege. Executive privilege crops up in Marbury v. Madison:

"There are undoubtedly facts, which may come to their knowledge by means of their connection with the Secretary of State, respecting which they cannot be bound to answer. Such are the facts concerning foreign correspondences and confidential communications between the head of the department and the President. This, however, can be no objection to their being sworn, but may be a ground of objection to any particular question. Suppose I claim title to land under a patent from the United States. I demand a copy of it from the Secretary of State. He refuses. Surely he may be compelled by mandamus to give it. But in order to obtain a mandamus, I must show that the patent is recorded in his office. My case would be hard indeed if I could not call upon the clerks in the office to give evidence of that fact. Again, suppose a private act of congress has passed for my benefit. It becomes necessary for me to have the use of that act in a court of law. I apply for a copy. I am refused. Shall I not be permitted, on a motion for a mandamus, to call upon the clerks in the office to prove that such an act is among the rolls of the office or that it is duly recorded?"

The circumstances of US v. Nixon are materially different from those we find ourselves in now, since the result in that case turned on the national interest in the rule of law, which was in question because the subpoenas under consideration were issued by a court in the process of investigating criminal wrongdoing by the President. However, that doesn't affect its statement of the basic rationale behind executive privilege, which is relevant here:

"The expectation of a President to the confidentiality of his conversations and correspondence, like the claim of confidentiality of judicial deliberations, for example, has all the values to which we accord deference for the privacy of all citizens and, added to those values, is the necessity for protection of the public interest in candid, objective, and even blunt or harsh opinions in Presidential decision-making. A President and those who assist him must be free to explore alternatives in the process of shaping policies and making decisions and to do so in a way many would be unwilling to express except privately. These are the considerations justifying a presumptive privilege for Presidential communications. The privilege is fundamental to the operation of Government and inextricably rooted in the separation of powers under the Constitution."

The CRS report says this about executive privilege:

"A distinction has been recognized by the courts between two aspects of executive privilege — the presidential communications privilege and the deliberative process privilege. The former has a constitutional basis in the separation of powers doctrine, relates to “direct decisionmaking by the President,” and concerns “quintessential and non-delegable powers,” whereas the latter “is primarily a common law privilege” applicable “to decisionmaking of executive officials generally.” The former applies to entire documents (including factual material) and “covers final and post-decisional materials as well as pre-deliberative ones.” The latter covers predecisional and deliberative materials, not “purely factual [material], unless the material is so inextricably intertwined with the deliberative sections of documents that its disclosure would inevitably reveal the government’s deliberations.” Both privileges are qualified. When either privilege is asserted, the court will balance the public interests involved and assess the need of the party seeking the privileged information."

Basically: executive privilege and the Congressional power to subpoena seem to me to be quite similar, constitutionally. Neither is mentioned in the Constitution. Both have been accepted by the courts on the grounds that the Congress cannot do its job well unless it is understood to have the power to obtain, by compulsion if necessary, the information it needs; and the President cannot do his job well unless the advice he is given is confidential.

In both cases, the courts have also noted that these prerogatives were understood to attach to the Congress and the executive (respectively) when the Constitution was drafted. And in both cases, I think the courts are right to find that the Congress and the President, respectively, have these powers. The Congress really does need to be able to issue subpoenas, and the President really does need to receive confidential advice.

Because neither prerogative is found in the Constitution (or, as far as I know, in positive law), there are no explicit rules that state how far they extend. However, executive privilege, at least, is generally understood to be limited. It is strongest when the subject of communication is related to the military, diplomacy, or national security. It attaches most strongly to advice actually given to the President, though it sometimes seems to extend to advice given to his senior advisors. (In US v. Nixon, the Supreme Court refers to "the need for confidentiality of high-level communications", not just confidentiality of communications with the President.) For this reason, the fact that Tony Snow said that the President was not consulted about firing the US Attorneys does not seem to me to be decisive.

However, Judge Norma Holloway Johnson's opinion on Clinton officials' claim of executive privilege proposes an additional limitation:

"Although the Court must presume that presidential communications are privileged, the scope of the privilege is limited 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 to the President on the particular matter to which the communications relate." In re Sealed Case, 121 F.3d at 752."

This would seem to suggest that to be covered by executive privilege, a communication must concern a matter on which the President will actually be advised, not just any communication between his top advisors on a matter someone else in his administration will decide on.

In any case, the strongest case for executive privilege would seem to be advice received directly by the President concerning matters of national security. The national security part seems to be more optional, here, than the 'advice directly received by the President' part: courts seem, on my reading, to be quite comfortable with the idea that advice given to the President on agricultural policy is covered, but less clear on whether discussions among his aides, when no actual advice will be offered, counts as privileged.

In addition to being limited, executive privilege is also defeasible. That is: it's not just that some things are not covered by it, it's that even when something is covered by it, that fact is not necessarily decisive. Thus, in US v. Nixon, the President's legitimate interest in keeping his and his advisors' deliberations confidential had to be weighed against the courts' interests in obtaining evidence relevant to a criminal trial. The Supreme Court ruled first that the court's interests could, in principle, out weigh the President's interest -- that executive privilege was not absolute -- and then that it did outweigh that interest. Here's how the Supreme Court compared the two competing interests:

"In this case we must weigh the importance of the general privilege of confidentiality of Presidential communications in performance of the President's responsibilities against the inroads of such a privilege on the fair [418 U.S. 683, 712]   administration of criminal justice. 19 The interest in preserving confidentiality is weighty indeed and entitled to great respect. However, we cannot conclude that advisers will be moved to temper the candor of their remarks by the infrequent occasions of disclosure because of the possibility that such conversations will be called for in the context of a criminal prosecution. 20
 
On the other hand, the allowance of the privilege to withhold evidence that is demonstrably relevant in a criminal trial would cut deeply into the guarantee of due process of law and gravely impair the basic function of the courts. A President's acknowledged need for confidentiality [418 U.S. 683, 713]   in the communications of his office is general in nature, whereas the constitutional need for production of relevant evidence in a criminal proceeding is specific and central to the fair adjudication of a particular criminal case in the administration of justice. Without access to specific facts a criminal prosecution may be totally frustrated. The President's broad interest in confidentiality of communications will not be vitiated by disclosure of a limited number of conversations preliminarily shown to have some bearing on the pending criminal cases.

We conclude that when the ground for asserting privilege as to subpoenaed materials sought for use in a criminal trial is based only on the generalized interest in confidentiality, it cannot prevail over the fundamental demands of due process of law in the fair administration of criminal justice. The generalized assertion of privilege must yield to the demonstrated, specific need for evidence in a pending criminal trial."

Suppose, for the sake of argument, that the matters the Congress seeks to learn about are, in fact, the sort that executive privilege covers. In this case, as I understand it, the question whether the President and his advisors have to obey those subpoenas or not would depend on how courts weighed the various interests at stake in the Congressional subpoenas, on the one hand, and the President's claim of executive privilege, on the other.

I have absolutely no idea how this would shake out in court. I hope it doesn't get there. The President could avoid setting precedents by agreeing to have Rove et al testify under oath voluntarily; that seems to be the way it's usually done. But this President is not known for his wisdom and willingness to compromise.

***

One interesting side note: both Congressional subpoenas and executive privilege seem to present problems for Constitutional literalists, since neither is found in the Constitution. (Since they present the same problem, neither side in the present dispute would be well advised to start pointing out that the prerogative claimed by the other cannot be found in the Constitution.)

Personally, I am not a Constitutional literalist. I think that the following is a perfectly good interpretive principle: that when some power that the Constitution plainly does grant can only be exercised effectively given some other power that it does not grant [UPDATE: but that it also does not explicitly withhold], we can understand the Constitution to grant that power.

I also think that this principle should be applied cautiously: it's one thing to hold that the power to legislate cannot be used effectively without the power to compel evidence, and quite another to construct in this fashion a whole elaborate daisy chain of powers. But that's just a way of saying that the interpretive principle I just cited needs to be applied correctly, bearing in mind the distinction between what really is needed to make a power granted by the Constitution effective, and what we think might be in some arcane way useful.

Moreover, whether or not one accepts some such principle isn't necessarily a matter of whether one takes the words of the Constitution seriously or not; one might be (and I am) drawn to this principle because of the kind of document I take the Constitution to be. There are all kinds of places where it explicitly refers to an existing legal understanding, within which it is supposed to be interpreted. (The Ninth Amendment is the most obvious example.)

If you think, as I do, that the Constitution was not understood by the Framers to be exhaustive, or to be a document that had to be applied without taking into account commonly accepted legal claims, like the claim that the advice given to a President should be presumed to be confidential absent some compelling interest to make it public, then it follows that this is (roughly) how it was intended to be interpreted.

What is certainly true is that accepting some principle such as the one I cited above is a long, long way from taking the bare words of the Constitution and feeling free to interpolate your own political or moral views as needed. When I conclude that executive power ought to be understood to include a defeasible privilege on the grounds that such a privilege is essential to the effectiveness of the executive, that's completely different from reaching that conclusion on the grounds that I, hilzoy, favor executive privilege.

I might not like some part of the Constitution. (I do not like the Electoral College, for instance.) But it is plainly there, in the Constitution, whether I like it or not; and no honest interpretation could deny that. (There are lots of points on which honest interpretations can differ, but surely not this one.) I think, on these grounds, that were the Congress to pass a law prohibiting electors from casting votes, that would be unconstitutional, even though the Constitution doesn't say this in so many words.

It makes no sense to think that the Constitution requires that Presidents be elected by the Electoral College but that it is silent on the question whether the electors shall be allowed to vote. And that is true whether or not I, personally, want electors to vote, or think it's a morally good thing that they vote, or whatever.

Which is one way of explaining why it annoys me when Antonin Scalia talks as though the alternative to his version of literalism, which he himself does not consistently follow, were a sort of "anything goes" attitude, in which I substitute my personal moral or political views for the Constitution. It is not.

Comments

[Dantheman]

"for instance, who knew that the President's entire personal staff consisted of one (1) secretary until 1929, when three whole new positions were added? Not me."

I recall reading that Lincoln had two secretaries, Nicolay and Hay. However, in order to avoid the 1 secretary limit, Hay was officially appointed to be a clerk in the Department of the Interior, and was assigned to the White House. I am curious how many other similar cases there were.

I'll leave discussions on my opinion on Constitutional literalism for another time, and just say, good post.

[cleek]

let's just note that the official line on the firings (via Tony Snow) is that the President and AGAGAG were not involved. so where does the idea that the president's right to unfiltered advice will be hampered come into play?

how can i protest an investigation into something based on my supposed 'right' if i'm also claiming i wasn't involved in that something in the first place ??

[Fred in Vermont]

I think that part of the idea of the unitary executive is that all of the executive branch is "the President" in some sense.

This would mean that one staff member talking to another would be a presidential communication in terms of executive privilege.

[jrudkis]

Interestingly, it seems that Marbury was indicating a broader executive privilege than Bush is asserting: Marbury seems to indicate that the entire executive branch has a privilege, and can refuse to answer questions in some circumstances. It seems to me that Bush is claiming only his inner circle, not the DOJ.

Additionally, the Nixon case provides a significantly greater protection through in camera review, rather than broad subpeona power:

Statements that meet the test of admissibility and relevance must be isolated; all other material must be excised. At this stage the District Court is not limited to representations of the Special Prosecutor as to the evidence sought by the subpoena; the material will be available to the District Court. It is elementary that in camera inspection of evidence is always a procedure calling for scrupulous protection against any release or publication of material not found by the court, at that stage, probably admissible in evidence and relevant to the issues of the trial for which it is sought. That being true of an ordinary situation, it is obvious that the District Court has [418 U.S. 683, 715] a very heavy responsibility to see to it that Presidential conversations, which are either not relevant or not admissible, are accorded that high degree of respect due the President of the United States. Mr. Chief Justice Marshall, sitting as a trial judge in the Burr case, supra, was extraordinarily careful to point out that
"[i]n no case of this kind would a court be required to proceed against the president as against an ordinary individual." 25 F. Cas., at 192.

Does a Congressional subpeona offer similar guarantees, or are they asking to put on a public display?

[Francis]

nice use of the word defeasible... although it usually arises in real estate, relating to the manner in which title is held.

[jrudkis]

Hilzoy,

Great post by the way. It was very informative and well written.

[jpe]

think that part of the idea of the unitary executive is that all of the executive branch is "the President" in some sense.

The more accurate reading, I think, is to read unitary in psychoanalytic terms It's not unitary as in some corporate identity / agency, but as in a phallus that goes around smashing things in its way.

Christ, I'm reading too much Zizek.

[KCinDC]

This, however, can be no objection to their being sworn, but may be a ground of objection to any particular question.

That sentence seems to refer to one of the points I can't understand about Bush's position. I could understand not answering certain questions because of privilege. At a stretch I might even pretend to understand refusing to allow certain people to be questioned at all. But how can it make sense to say that it's okay for them to answer questions, just as long as they're not sworn in and no record is made? That seems to have nothing to do with privilege at all, but bears a remarkable (but no doubt coincidental) resemblance to the conditions that make lying easiest.

[CaseyL]

Does a Congressional subpeona offer similar guarantees, or are they asking to put on a public display?

I'm not sure how relevant the passage you quote is to the current situation. There's no Special Prosecutor, as there was during Watergate, and there won't be, because the Special Prosecutor law lapsed. Also, the opinion refers to a Court review en camera. The USA matter hasn't yet gone to the courts, though it might, if the White House doesn't respond to the Senate and House subpeonas.

[jrudkis]

CaseyL,

It appears to me that the courts provide more protection for executive material subpeonas than Congress, so it is in the interest of the executive to involve the Courts. It would be interesting to see of the Court requires the executive to comply with subpeonas more onerous than the restrictions they have placed on themselves.

KCinDC,

It makes sense with regard to protecting executive privilege. If in fact the executive has nothing to hide but simply will not bend over for Congress, it is a reasonable solution to tell them what they want, but not accept Congressional authority. I see it as very similar to the response of the executive with regard to the war power's act, where I believe all presidents since passage have complied with the terms, but refuted the power of congress to demand compliance.

[hilzoy]

jrudkis: as I read the decision, it is narrowly tailored to the specific case in question, which (as I understand it) is the way judicial decisions are supposed to be. I read it as saying: the President has an interest in keeping his communications confidential; in this case, that's only slightly compromised, since evidence can be examined in camera. I don't think it takes any position on whether that's necessary or not.

I mean, it seems clear that the President's interest in the confidentiality of his communications with his advisors is more seriously compromised by public hearings than by a judge looking at the evidence in confidence; but the decision does not say, as far as I can tell, what other interests, if any, would warrant public hearings.

[hilzoy]

jrudkis: I crossposted with you.

It's easy to avoid admitting Congress' authority: just have people testify voluntarily. Oaths and transcripts have nothing to do with that.

It would be odd, on the other hand, if the administration invoked executive privilege, whose whole point is to keep the content of communications between a President and his advisors confidential, after having offered to reveal the content of those communications.

[jrudkis]

It is narrowly tailored, but there are not a lot of cases on point, so that is what we have to work with.

And I suppose it depends on your goals: Bush may beleive that the current constitution of the USSC would expand the case law in a manner that is favorable to the executive, and that may in the future impact cases that really are material to his freedom.

[J Thomas]

And I suppose it depends on your goals: Bush may beleive that the current constitution of the USSC would expand the case law in a manner that is favorable to the executive, and that may in the future impact cases that really are material to his freedom.

Do you think he thinks there's a serious chance he's facing prison?

[Hartmut]

I think "freedom" means "freedom of action " here.

[J Thomas]

Oh.

Too bad.

If there was any justice Bush would be basing all his decisions right about now on the hope of staying out of prison.

[Hartmut]

In that case he'd probably use the scenario thought up by someone in an older thread: Pardon Vice President Cheney, resign, get a pardon from President Cheney.
I think the question, whether a president can pardon himself, has not been answered yet.