Presidents have been fighting with Congress for all of US history about the concept of executive privilege. The executive in question is the president and the privilege is his or her right to get honest advice in private and protect it from Congress and the courts.
The term "executive privilege" dates back to the Eisenhower administration, but fights over the separation of powers have been going on for centuries in the US.
The idea is that presidents can shield their aides from having to share internal communications with Congress when it is conducting oversight, as the Constitution suggests it must. Note: While the Constitution does not use that word, " oversight ," it does require Congress to make laws, which necessarily requires lawmakers to understand how the president is executing them.
Here's what that means. There's a natural tension there -- the official duties of one branch of government conflicting with the official duties of another. The danger, of course, is that this honest protection could be used to hide illegal or improper behavior. Post-presidential privilege?
Trump wants to carry that protection with him out of office and stretch it to cover people like Bannon, who had no official capacity. It's an odd twist in a debate that's touched every single president, including Republicans and Democrats.
Barack Obama invoked executive privilege to shield his Department of Justice from accountability for the Operation Fast and Furious gun tracking scandal. George W. Bush invoked executive privilege to shield his aides from accountability for the mass firing of US attorneys.
The ultimate test of privilege came when the Supreme Court rejected Richard Nixon's argument that he could keep recordings of his Oval Office conversations from a special prosecutor.
When questions of executive privilege are taken up in the courts, they take forever. Cases involving both Obama and Bush were not resolved until they were out of office. Eggleston cites Supreme Court cases from the Nixon era to argue it's actually President Joe Biden who should decide if Trump gets privilege now that he's out of office.
Trump's White House had an expansive but inconsistent view of privilege. And Jefferson is considered the first president to establish the precedent of only releasing parts of subpoenaed material; when he was subpoenaed by his political rival Chief Justice John Marshall to present documents for the treason trial of his former Vice President Aaron Burr, who was accused of plotting to carve out the Western territories to form an independent republic, Jefferson initially refused to turn over the requested materials.
President Dwight Eisenhower invoked executive privilege more than 40 times. Nixon had ever made such an extreme assertion of executive privilege in peacetime. Though plenty of others have invoked the idea, Nixon remains to this day the president most closely associated with the concept. In fact, the only Supreme Court case on executive privilege is United States v. Nixon , which came about when he claimed executive privilege during the Watergate investigation to get out of a grand jury subpoena and avoid handing over recordings of his conversations in the White House.
What is the limit to its use and how will it be enforced are questions that continue to be debated. Many scholars worried about that problem as soon as U.
So presidents have been very reluctant to assert executive privilege, and then the courts have tried to duck the issue, and they can. But the way things are going now, it looks not likely to be duckable — although you never know. The Court of Appeals for the D. Department of Justice, 6 and Loving v. Department of Defense. Miers 8 provided further guidance on the scope of the privilege. Taken together, these decisions narrowed and clarified the limits of the privilege and drastically altered the legal playing field in resolving such disputes.
That office prepared a report for the president, which was publicly released in October The president never saw any of the documents underlying or supporting the report. Separately, a special panel of the D. In response, the president withheld 84 documents, claiming both the executive and deliberative process privileges for all documents. The appeals court panel unanimously reversed and ordered that the documents be produced. At the outset, the D. But the deliberative process privilege discussed in detail in Chapter 6 applies to executive branch officials generally and is not constitutionally based.
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.
However, the privilege does not extend beyond close presidential advisers to reach communications with heads of agencies or their staffs. The court emphasized:. On the other hand, the privilege would not cover decision-making based upon powers granted to the president by a statute, or decisions required by law to be made by agency heads. Thus, communications regarding such matters as rulemaking, environmental policy, consumer protection, workplace safety, securities regulation, and labor relations would not be covered.
These limits in the scope of the presidential communications privilege were further clarified in the D. Department of Justice. In rejecting the claim of presidential communications privilege in Judicial Watch, the D. Thus, for the privilege to apply, not only must the presidential decision at issue involve a non-delegable, core presidential function, but the operating officials must also be sufficiently close to the president and senior White House advisers. In Loving v. Department of Defense , the D.
Circuit affirmed the distinction between the deliberative process privilege and the presidential communications privilege that had been carefully delineated in Espy and Judicial Watch. By law, the president must approve all such death sentences. Loving filed a FOIA request seeking disclosure of documents including a Defense Department memorandum containing recommendations to the president about his case and sentence.
The mere fact that the documents were viewed by the president was sufficient to bring them within the ambit of the privilege. The district court ruling in House Committee on the Judiciary v. Miers 32 sheds further light on the limits of the presidential communications privilege. The case involved subpoenas issued by the House Judiciary Committee to compel testimony by close presidential advisers in an investigation of the removal and replacement of nine U.
The Bush administration had invoked executive privilege and ordered the advisers not to appear, testify, or provide documents in response to the subpoenas. The executive argued to the district court that present and past senior advisers to the president are absolutely immune from compelled congressional process. The district court unequivocally rejected this position:. Based upon the court decisions outlined above, the following elements are necessary to support a claim of presidential communications privilege:.
Other core presidential powers include the commander-in-chief power, the sole authority to receive ambassadors and other public ministers, and the power to negotiate treaties.
This category does not include decision-making where laws delegate policymaking and administrative implementation authority to the heads of agencies. This effectively means that the scope of the presidential communications privilege extends only to cover the Executive Office of the President and the White House. The presidential communications privilege remains a qualified privilege that may be overcome.
The president and his close advisers are subject to subpoenas and court enforcement of subpoenas. This was demonstrated most recently in the Miers case involving subpoenas by the House Judiciary Committee for close presidential advisers to testify. The Supreme Court emphatically reaffirmed that proposition in United States v.
Nixon in Professors Ronald D. Rotunda and John L. Nowak have compiled a list of historical investigations in which sitting or former presidents have been subpoenaed and involuntarily appeared or produced evidence in judicial forums or before congressional committees. Nixon , , , Gerald R. Ford , Ronald Reagan , and William J. Clinton , President Harry S. Truman was subpoenaed by the House Un-American Activities Committee in after he had left office.
Truman refused to comply and went on national television and radio to rebut the charges made by the committee. The committee never sought to enforce the subpoena.
Seven sitting or former presidents have made voluntary appearances in judicial forums and before congressional committees: Presidents Abraham Lincoln , Ulysses S. Grant , Theodore Roosevelt , , Richard M. Nixon , Gerald R. Ford , , Jimmy E. Carter , , , and William J. Clinton The most common of these is the attorney-client privilege, which protects conversations between lawyer and client as secret, and thus allows people to seek legal advice in confidence.
In congressional proceedings, a committee may determine, on a case-by-case basis, whether to accept common law testimonial privileges. Examples of common law testimonial privileges include the attorney-client, work-product, and deliberative process privileges. The application of each of these doctrines in congressional hearings is discussed below.
As noted above, the attorney-client privilege enables people to seek confidential legal advice by protecting the secrecy of conversations between attorney and client. To prove that the attorney-client privilege should apply, the person claiming the privilege must establish: 1 a communication, 2 made in confidence, 3 to an attorney, 4 by a client, and 5 for the purpose of seeking or obtaining legal advice. Courts have consistently emphasized that one of the essential elements of the attorney-client privilege is that the attorney be acting as an attorney and that the communication be made to secure legal services.
The privilege, therefore, does not apply to legal advice given by an attorney acting outside the scope of his or her role as attorney. The work-product doctrine is a related concept that protects the confidentiality of certain documents created by an attorney as part of his or her representation of a client. On its face, the definition would not apply to Congress, which is not a court or administrative tribunal, or to a congressional investigative hearing, which does not afford witnesses the same discovery rights afforded during litigation in court.
No court has held that the work-product doctrine applies to a legislative hearing, and pertinent federal court rulings support the proposition that it does not apply. Other than private persons, entities that often invoke claims of common law privilege include departments and agencies, the White House, and private organizations. However, their assertion of privilege does not necessarily provide a shield from congressional inquiry.
The attorney-client privilege is not a constitutionally based privilege. Rather, it is a judge-made exception to the general evidentiary principle of full disclosure in the context of court proceedings.
The attorney-client privilege is the product of a judicially developed public policy designed to foster an effective and fair adversary system. Courts view the privilege as a means to foster client confidence and encourage full disclosure to an attorney.
Free communication, the argument goes, facilitates justice by promoting proper case preparation. It is critically important to remember that the attorney-client privilege is designed for, and properly confined to, the adversary process: the adjudicatory resolution of conflicting claims of individual obligations in a civil or criminal proceeding. It would, in effect, permit the judiciary to determine congressional procedures, which is difficult to reconcile with the constitutional authority granted to each house of Congress to determine its own rules.
This was dramatically underlined in NLRB v. Finally, concerns that denying the privilege in the congressional setting would undermine it elsewhere appear over-exaggerated. Congressional investigations in the face of claims of executive privilege or the revelation of trade secrets have not diminished the general utility of these privileges nor undermined the reasons they continue to be recognized by the courts. Moreover, the assertion implies that current law is an impregnable barrier to the disclosure of confidential communications when, in fact, the privilege is riddled with qualifications and exceptions, and has been subject as well to the significant current development of the waiver doctrine.
Thus, there can be no absolute certainty that communications with an attorney will not be revealed. There are still unyielding private sector opponents of discretionary committee exercises of refusals to accept claims of attorney-client privilege. Negotiating tactics are the theme of such articles. There has been no definitive court ruling on the issue because no objector as yet has been willing to be the subject of a criminal prosecution as a matter of principle.
In practice, all committees that have denied claims of privilege have considered numerous factors before doing so. They balance these considerations against any possible injury to the witness. Committees also consider whether a court would have recognized the claim in the judicial forum, 68 and invite the submission of privilege logs to support the validity and weight of the claims. In the absence of a definitive court ruling, 69 the Legal Ethics Committee of the District of Columbia Bar issued an advisory opinion in February According to the D.
The opinion represents the first and thus far the only bar in the nation to directly and definitively address this question. Its publication aroused a good deal of debate. Rather, Congress has been sparing in its attempts to challenge claims of attorney-client privilege. Bar opinion. The deliberative process privilege permits government agencies to withhold documents and testimony relating to policy formulation from the courts.
The privilege was designed to enable executive branch officials to seek a full and frank discussion of policy options with staff without risk of being held to account for rejected proposals.
In addition, they may also argue that the privilege protects against premature disclosure of proposed policies before the agency fully considers or adopts them. Agencies may further argue that the privilege prevents the public from confusing matters merely considered or discussed during the deliberative process with those that constitute the grounds for a policy decision.
These arguments, however, do not necessarily pertain to Congress in its oversight and legislative roles. Such a broad application of the privilege would encourage agencies to disclose only materials that support their positions and withhold those with flaws, limitations, unwanted implications, or other embarrassments. Broad application of the deliberative process privilege to congressional investigations would also induce executive branch officials, including attorneys, to claim that oversight would dissuade them from giving frank opinions, or discourage others from seeking such advice.
Agencies often claim the privilege to forestall inquiries while they develop substantive rules. As with claims of attorney-client privilege and work-product immunity, congressional practice has been to allow committees discretion over acceptance of deliberative process claims. Other court rulings and congressional practices have recognized the overriding necessity of an effective legislative oversight process. As discussed in detail in Chapter 5, the presidential communications privilege is a constitutionally based doctrine that protects communications between the president and his or her immediate advisers in the Office of the President from disclosure.
The D. The court of appeals held in Espy that the deliberative process privilege. A congressional committee merely needs to show that it has jurisdiction and authority, and that the information sought is necessary to its investigation to overcome this privilege. A plausible showing of fraud, waste, abuse, or maladministration would conclusively overcome an assertion of privilege.
On the other hand, the deliberative process privilege covers a broader array of information. Whereas the presidential communications privilege covers only communications between the president and high-ranking White House advisers, the deliberative process privilege applies to executive branch officials generally.
Even before Espy , courts and committees consistently countered agency attempts to establish a privilege that thwarted congressional oversight efforts. Congress has vastly greater powers of investigation than those of citizen FOIA requesters. Circuit in Murphy v.
The disquieting ruling in the Fast and Furious litigation and its immediate and long-range disruptive consequences for effective investigate oversight demands closer, albeit somewhat repetitive, examination. The binding law with respect to executive privilege in the D. Those decisions made an unequivocal distinction between the constitutionally-based presidential communications privilege and the common law deliberative process privilege, which the presiding judge in COGR v.
Lynch ignored. While both have common general goals—to protect in some degree sensitive internal executive deliberations—and both are qualified privileges, the resemblance for purposes of legal significance and impact ends there.
Historically, Congress has been recognized as the initial determiner of its own institutional rights and prerogatives, particularly for matters directly or indirectly related to oversight. Since the s—with the express acquiescence of the Justice Department—all subpoena demands by the Justice Department to members or component entities must first be processed and reviewed by House and Senate leadership and counsel. The court emphasized that a critical purpose of the clause is to prevent intrusions into the legislative process.
Circuit Court of Appeals. Private parties and agencies often assert that yielding to committee demands for material arguably covered by the attorney- client, work-product, or deliberative process privileges will waive those privileges in other forums.
Applicable case law, however, is to the contrary. When a congressional committee compels the production of a privileged communication through a properly issued subpoena, it does not prevent the assertion of the privilege elsewhere, 95 as long as it is shown that the compulsion was in fact resisted. The history of congressional investigations of DOJ covers a broad scope of congressional inquiries, including committee requests for:.
In response, congressional inquiries into Justice Department operations have been frequently met with claims that such inquiries:. As a result, the Justice Department has often refused to supply internal documents or testimony sought by jurisdictional committees.
These lessons, outlined in detail below, should guide future committees in determining whether to undertake similar probes of DOJ or other executive agencies, as well as inform them about the scope and limits of their investigative prerogatives and the practical problems of such undertakings.
The outcomes of these inquiries provide formidable practice precedents which will allow committees to effectively engage uncooperative agencies. The Congressional Research Service review of oversight of the Justice Department over the last 95 years is a particularly instructive tool. This requirement to cooperate in investigations has applied even when there is ongoing or expected litigation. A number of these investigations spawned seminal Supreme Court rulings that today provide the foundation for the broad congressional power of inquiry.
All were contentious and involved Department claims that committee demands for agency documents and testimony were precluded either on the basis of constitutional or common law privilege or policy. To obtain documents and testimony, an inquiring committee need only show that the information sought is:.
Despite objections by an agency, either house of Congress, or its committees or subcommittees, may obtain and publish information it considers essential for the proper performance of its constitutional functions. There is no court precedent that requires committees to demonstrate a substantial reason to believe wrongdoing occurred before seeking disclosures with respect to the conduct of specific criminal and civil cases, whether open or closed. Indeed, the case law is quite to the contrary.
During the inquiries covered by the CRS compilation, committees sought and obtained a wide variety of evidence, including:.
Also, those investigations encompassed virtually every component of DOJ, including its sensitive Public Integrity Section and its Office of Professional Responsibility. They also covered all levels of officials and employees in Main Justice and field offices, from attorneys general down to subordinate line personnel.
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