As I noted earlier today, the Obama Administration has invoked Executive Privilege with respect to the documents that are the subject of a dispute between Attorney General Eric Holder and the House Government Reform And Oversight Committee related to the committee’s investigation of the Fast And Furious scandal. Since the only written record we have of the invocation of the privilege at this time is the letter that the Justice Department delivered to Committee Chair Darrell Issa less than an hour before today’s hearing on whether or not to hold the Attorney General in contempt, it’s hard to fully evaluate the merits of the privilege claim. Suffice it say that it would appear that we’ve got a full-fledged Separation Of Powers conflict brewing between the House and the White House that, if left unresolved, will require a court to at some point rule on the Executive Branch’s claim of privilege. So, this seems as good at time as any to take a look at the legal issues surrounding what remains, even for many attorneys, a mysterious, somewhat ambiguous, and often highly politically charged area of the Constitutional Law.
As a preliminary matter, it’s necessary to clear up something that has been repeated several times today, both in the Committee room and on television. Specifically, it is simply not the case that Executive Privilege only applies if the President is personally involved in the matter that is the subject of a particular investigation, hearing, or trial. It’s easy, perhaps, to understand why people might think that this is the case. The most famous Executive Privilege case, and one of the few times that the courts have actually spoken on the issue, is United States v. Nixon, which involved President Nixon’s attempt to withhold the recordings made in the Oval Office from the Watergate Special Prosecutor. In that case, the Court rejected President Nixon’s assertion of a full and unqualified privilege, thus ordering him to turn over the tapes which led Nixon to resign 15 days later after it was revealed that included among those tapes was evidence of Nixon’s involvement in covering up the the Watergate break-in. The Nixon Court, however, did not say that there was no Executive Privilege at all and, ever since that decision was handed down in 1972 the Executive Branch and Congress have struggled more than once over the boundaries of the privilege and the question of what the President may and may not withhold.
Essentially, what the Nixon case, along with legal developments beforehand, tells us is that there are two kinds of Executive Privilege. The first kind of Executive Privilege is generally referred to as the “Presidential Communications Privilege” and covers communications between the President and his advisers. The Vice-President also has this privilege which he can assert on his own if necessary. This privilege is recognized as being rooted in the Constitution, the Separation Of Powers, and the idea that a President must be able to receive candid advice from his advisers. In order for this privilege to be invoked, though, it must involve direct communications between the President and his advisers. The second kind of Executive Privilege is generally referred to as the “Deliberative Process Privilege” and it covers certain kinds of internal communications inside the agencies of the Executive Branch. This privilege is much weaker than the Communications Privilege in that it is rooted in Common Law rather than the Constitution. The exact extent of this privilege hasn’t been heavily litigated so it’s rather unclear what is and isn’t covered, and when the interests of Congress in performing its Constitutional role of overseeing the operations of Executive Branch agencies would override it. At the very least, though, it is accurate to state that the Deliberative Process Privilege is much weaker and far smaller in scope than the Presidential Communications Privilege.
Based on all of the available information, it seems fairly apparent that the White House’s invocation of privilege in this case is meant to invoke the Deliberative Process Privilege, largely because there is no evidence that the White House in general or the President in particular were involved in the Fast and Furious Operation or the investigation that occurred in the aftermath of the murder of Brian Terry. Therefore, to the extent that the White House is claiming privilege in this matter, the claim is going to be weak and may only be limited to specific categories of documents. Moreover, since the Deliberative Process Privilege is not absolute, it is possible that any claim of privilege will be overridden by the public interest in investigation and oversight by Congress.
With that in mind, what exactly can we say about the Administration’s invocation of privilege in this case?
Todd Gaziano argues that Holder is going to have a weak argument if this matter actually goes to Court:
First, the Supreme Court in United States v. Nixon (1974) held that executive privilege cannot be invoked at all if the purpose is to shield wrongdoing. The courts held that Nixon’s purported invocation of executive privilege was illegitimate, in part, for that reason. There is reason to suspect that this might be the case in the Fast and Furious cover-up and stonewalling effort. Congress needs to get to the bottom of that question to prevent an illegal invocation of executive privilege and further abuses of power. That will require an index of the withheld documents and an explanation of why each of them is covered by executive privilege—and more.
Second, even the “deliberative process” species of executive privilege, which is reasonably broad, does not shield the ultimate decisions from congressional inquiry. Congress is entitled to at least some documents and other information that indicate who the ultimate decision maker was for this disastrous program and why these decisions were made. That information is among the most important documents that are being withheld.
Third, the Supreme Court in the Nixon case also held that even a proper invocation must yield to other branches’ need for information in some cases. So even a proper invocation of executive privilege regarding particular documents is not final.
And lastly, the President is required when invoking executive privilege to try to accommodate the other branches’ legitimate information needs in some other way. For example, it does not harm executive power for the President to selectively waive executive privilege in most instances, even if it hurts him politically by exposing a terrible policy failure or wrongdoing among his staff. The history of executive-congressional relations is filled with accommodations and waivers of privilege. In contrast to voluntary waivers of privilege, Watergate demonstrates that wrongful invocations of privilege can seriously damage the office of the presidency when Congress and the courts impose new constraints on the President’s discretion or power (some rightful and some not).
As I said at the start of this post, it is not easy to evaluate the merits of the Administration’s Executive Privilege claim without having a better idea of what documents they are claiming are subject to the privilege. Hopefully, that will become clear once the House is provided with a Privilege Log, which they are at the very least entitled to under these circumstances. At the very least, though, it strikes me that the Administration’s claims are going to be tough to defend on the facts and the law. The fact that the Administration waited eight months after the subpoena was issued to invoke the privilege, during which time the Attorney General himself continually stated that he was willing to give the Committee access to at least some of the documents would seem to lend some credence to those who suspect that the invocation of privilege on the same day that the Committee was going to vote to hold the Attorney General in contempt was merely a political move. On the law, it’s hard to see how the Deliberative Process Privilege will be able to overcome the public interest in Congressional oversight and investigation. On balance, it seems rather obvious where the benefit of the doubt should be given.
There will be more to come from this, of course, and perhaps this will all be resolved before it ever makes it to Court. For the moment, though, we’ve got a conflict between the Obama Administration’s previously stated committment to transparency and its apparent desire to shield from public view whatever might be in those documents.
